Post-Aries, Post-Foucault

Yoshie Furuhashi furuhashi.1 at
Wed Nov 15 00:41:36 MST 2000

In America, it is time to write sequels to Philippe Aries's
_Centuries of Childhood_ & Michel Foucault's _Discipline & Punish_.
The centuries of childhood are coming to an end, and the soul is no
longer the prison of the body, when it comes to criminal justice.

It is noteworthy that reforms of both mental health institutions and
the juvenile justice system had the same trajectory: initiated by
civil libertarians in the name of recognizing the dignity & autonomy
of the individual & endowing the mentally ill & young offenders with
rights, the reforms ended up, contrary to the intentions of the
reformers, becoming parts of neo-liberalism.

Neo-liberalism = de-modernization.  This equation is perhaps the most
starkly visible in the belly of the beast and former socialist

*****   The New York Times
September 10, 2000, Sunday, Late Edition - Final
SECTION: Section 6; Page 41; Column 4; Magazine Desk
HEADLINE: The Maximum Security Adolescent
BYLINE:  By Margaret Talbot; Margaret Talbot is a contributing writer
for the magazine and a fellow at the New America Foundation.

...One hundred years ago, when progressive-era reformers first
invented the idea of a separate justice system for juveniles, it was
boys like Jeff [a 14-year-old boy] and Marco [another 14-year-old
boy, arrested for "molesting his 7-year-old sister"] they had in
mind.  Nearly everything about the newly created juvenile court, from
its paternalistic ethos to its central tenet that juveniles were not
to be confused with hardened criminals to its goal of sentencing "in
the best interest of the child," represented a radical break with the
past and a pledge of faith in the malleability of youth. Until then,
children had been tried, sentenced, imprisoned and sometimes executed
alongside adults.

The common-law tradition did offer some recognition that young
children were different from adults.  Children under 7 who committed
crimes were presumed not to be responsible for them and could not be
punished.  But after that, the question of culpability got murkier.
Those between the ages of 7 and 14 were generally thought to lack
responsibility for their actions.  Those between 14 and 21 were
presumed capable of forming criminal intent and were therefore
punishable.  Yet as early as the 1820's, judges who had to sentence
juveniles in criminal court worried openly about the implications of
putting young people behind bars.  Letting them off scot-free was
neither morally nor socially acceptable, but sending them to jail or
prison with adults was like consigning them, in the words of one
judge, to a "nursery of vices and crimes, a college for the
perfection of adepts in guilt."

By the turn of the century, these qualms had spread widely enough to
make jury nullification a problem: jurors were acquitting young
lawbreakers rather than imposing sentences that would lock them up
with adults.  At the same time, the emerging child-study movement and
the new specialty of pediatrics helped popularize the idea that
childhood was a distinct phase of life and that adolescents, in
particular, moved through discrete developmental stages, which adults
had a duty to try and understand.  Like compulsory school-attendance
laws and bans on child labor, the juvenile court was a product of
this new approach to childhood.  It was to be presided over by a
judge in street clothes, not a black robe, seated at a desk, where he
could easily put a reassuring arm around a troubled lad.

In 1899, Illinois established the first juvenile court; by 1925, 46
states had done the same.  The idea of a justice system tailored for
children sank deep roots in American culture.  In fact, it was not
until the late 1960's that the system came under any real
questioning.  Paradoxically, the assault was launched by the civil
liberties left.  Because the juvenile court was supposed to be
helping the accused child and because it shielded his identity in a
way the criminal court did not, it was liberated from the necessity
for due process protections -- the right to counsel, the right to
confront witnesses, the privilege against self-incrimination and so
forth.  The trouble with this arrangement was that it offered the
court nearly unlimited authority to confine youths while it devised
cures for their antisocial behavior.

The civil liberties critique of the juvenile justice system found its
most powerful expression in the Supreme Court's 1967 decision in the
Gault case.  On June 8, 1964, Gerald Gault, a 15-year-old boy living
in Gila County, Ariz., made an obscene phone call to his neighbor,
one Mrs. Cook.  (He wondered, quaintly enough, if she had "big
bombers.")  Mrs. Cook called the sheriff, who arrested the boy; his
mother came home from work and found Gerald missing, with no
explanation.  At two subsequent hearings, Mrs. Cook never appeared,
no other witnesses were sworn and no transcript made.  Yet in the
end, the judge ordered Gerald committed to a juvenile facility until
his 21st birthday -- even though the maximum sentence for an adult
who committed the same crime would have been two months in jail or a
$50 fine.  When the Supreme Court acted on the case, it concluded in
irate language that Gerald's constitutional rights had been breached
by "a kangaroo court" -- and extended to juveniles all due process
rights except that of a jury trial.

Gault was a necessary reform for a system that had become too
arbitrary.  But instead of leading to further constructive reforms,
it led to full-scale rebellion: Gault helped open the door to the
dismantling of the juvenile justice system.  It galvanized a liberal
movement for emancipation of minors that cast them as rights-bearing
autonomous citizens, barely distinguishable from adults.  It also
"energized the tough-on-crime constituency," says Steven Drizin, the
supervising attorney at the Children and Family Justice Center at the
Northwestern University School of Law.  "The juvenile court has been
fighting the sound bite ever since that if you give kids adult
rights, you can give them adult time, too." Of course, kids, some of
them anyway, weren't helping matters.  A spike in the juvenile crime
rate in the early 1990's and a cluster of school shootings in the
latter years of the decade all created the impression that young
people were getting away with murder.

Even after the juvenile crime rate fell precipitously in the late
90's, this sentiment continued to gain currency, as Franklin Zimring,
a criminal-law professor at the University of California at Berkeley,
points out, because "a punishment gap was opening between the adult
and juvenile systems.  The tough-on-crime crowd had won the war in
the criminal system; now they looked at the juvenile court and said,
'Hey, we've got to make it look more like the adult version."'
Increasingly, the focus was on the offense, not the offender.

"What I noticed," says Stephen Harper, an assistant public defender
in Miami who has handled cases in which juveniles were transferred to
the adult system, "is that there was much less curiosity about who a
kid was, why he might have done what he did.  Was there abuse in his
background, neglect, a drug-addicted parent?"  Indeed, as more and
more states began transferring kids to adult court, it became clear
that youth itself would not be considered a mitigating circumstance.
There was no contemporary legal precedent for going easier on a
14-year-old than a 40-year-old in criminal court -- that's what
juvenile court had been for, after all. And in any case, the new
mandatory sentencing laws left judges little opportunity for leniency.

The new attitude meant passing laws that allowed more and more kids
to be sent to adult court at younger and younger ages -- many of them
poor, a disproportionate number of them black.  It also meant
breaking the old taboo against dispatching the young to adult
prisons, those "nurseries of vices and crimes" that advocates of the
juvenile court had long lamented.   *****


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