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Who is watching out for the children?

The premise of the juvenile justice system
has crumbled. And what it comes down to is whether
we believe the very nature of youth
is more than just a chronological fact

Essay by Alex Kotlowitz
Illustrations by Sigrid Wonsil

Last fall, I sat in on a murder trial in Cook County's Juvenile Court. The defendant -- I'll call him Terry -- was 16 years old; he had been 14 at the time of the crime.

Terry sat between his public defenders, an oversized double-breasted blue sportcoat hanging loosely from his lanky frame. He was a handsome kid, his hair closely cropped, his eyebrows dark and full, his eyes large and attentive.

Allegedly, Terry had approached two rival gang members in an alleyway in the Chicago suburb of Cicero, shooting and killing one of them, a 16-year-old boy. The prosecution's case centered on a confession Terry had given police. There was no physical evidence, and eyewitnesses had been unable to pick him out of a line-up.

It was easy, sitting in that courtroom, listening to the testimony, to lose sight of the fact that the defendant was a child. He had been dealt with as if he had the sense and reasoning capacities of an adult.

The Cicero police had, during their investigation, put Terry into a locked jail cell after telling him, "Let me know when you're ready to talk." On another occasion, they forced him to spend the night at the station, sleeping on a mattress in the roll call room.

No officer contacted Terry's grandfather, or DCFS, his legal guardian, to let them know they had custody of the boy. No one suggested he contact a lawyer.

Terry, for all his street savvy, had just graduated from eighth grade. In the presence of experienced detectives, who had handcuffed him, he was undoubtedly intimidated. Indeed, Terry told three stories or "confessions," each of which differed from the last. In his initial statement, he said it was an older gang member who had killed the rival.

Over the three days of examination and cross-examination, it became apparent that the case against Terry mimicked in every manner -- from his arrest to the trial -- the treatment of adults. In fact, I had been drawn to the case because it was the first juvenile trial in Illinois in recent memory to be heard by a jury. That had been requested by the defense. Ordinarily, a judge hears cases in juvenile court.

Some believe this is needed. If a child is being tried for a serious crime, he should receive all of the legal protections accorded grown-ups, including, for example, jury trials. Conversely, others believe that if a child is accused of an adultlike crime, he should face adultlike treatment.

An urban problem
-In 1997, eight of the more than 3,000 counties in the United States accounted for 26 percent of identified juvenile homicide offenders.

-Cities included in those counties were Chicago, Baltimore, Dallas, Detroit, Houston, Los Angeles, New York and Philadelphia.

-More than eight out of 10 counties across the nation reported no murders by juveniles.

Source: Office of Juvenile Justice and Delinquency Prevention

There are two forces at work here, and they feed off one another. The public wants a no-nonsense approach to juvenile offenders; it wants to send them to prison for longer periods. With so much more at stake, children's advocates rightfully use every legal means at their disposal to defend their clients. And so the juvenile justice system becomes more punitive and more adversarial, a miniature of its adult counterpart. The line between childhood and adulthood becomes blurred, and the special protections afforded children slowly wear away.

Illinois Issues May 2000 | 18

In short, the juvenile court is pulling further and further away from its founders' intent.

As a matter of history, Chicago is the birthplace of the juvenile court. It was founded in 1899 by Jane Addams and her Hull House colleagues on the premise that childhood should be treated as a separate and distinct province from adulthood, that with children who had gone astray there was, because of their malleability, still hope. At the turn of the century, this was the revolutionary concept of activists who also pushed such child-centered reforms as compulsory school attendance and child labor laws.

The juvenile court was built on the belief that because children differed from adults developmentally, they were more susceptible to influence and psychological damage. Because children were still growing emotionally and physically, adults had a shot at steering them toward a moral life. The process was to be rehabilitative not punitive, and in that spirit the court viewed itself "as a kind and just parent" to wayward youth. In hearing cases, judges were to consider not only the offense, but also the history and background of the youth involved.

Julian Mack, an early jurist, wrote that the juvenile court's goal was "not so much to punish as to reform, not to degrade but to uplift, not to crush but to develop, not to make him a criminal but a worthy citizen." Arguably, the juvenile court is among the most critical of our public institutions. It is here, after all, that we can, as Mack suggests, provide moral ballast for children who have lost their footing.

But the premise of the juvenile justice system -- that the court should have some elasticity in dealing with children -- has crumbled. The erosion began with a challenge not from law-and-order types, but from social liberals.

In 1967, 15-year-old Gerald Gault of Arizona was sentenced to six years in prison for making an obscene phone call. He was not represented by an attorney. It wasn't unusual then for juvenile cases to be heard without the benefit of counsel. Gault appealed to the U.S. Supreme Court, which ruled that children charged with delinquency were entitled to legal counsel, especially if they're at risk of losing their liberty.

Certainly, that made sense. Children, after all, should be entitled to the same rights as adults. But it conflicted with Addams' original idea. The juvenile court proceedings became more adversarial, and, as in the adult courts, legal gamesmanship ruled. And so the juvenile court began walking a shaky tightrope, trying to balance a child's right to due process and the ability of the court to show some flexibility in dealing with children who need intervention in their troubled lives.

Child offenders, adult crimes
-By 1998, all states had passed legislation making it easier to try children as adults.

-Fourteen states have established a threshold age at which juveniles can be tried as adults.

-In some instances in Illinois, judges can choose to send children as young as 13 into the adult court system.

-In Oklahoma, children as young as 7 can be tried as adults. That is the lowest age of responsibility in any state.

Source: Office of Juvenile Justice and Delinquency Prevention

The Gault decision by itself might not have changed things dramatically had there not been a surge in juvenile crime in the 1980s and 1990s, and a subsequent public outcry for more severe sanctions.

Chicago, for reasons that probably have more to do with happenstance than anything else, became the epicenter of childhood horrors, the scene of an appalling sequence of brutal crimes by children. Two of them, only a few

Illinois Issues May 2000 | 19

months apart, significantly shifted the juvenile justice terrain. In the summer of 1994, 11-year-old Robert "Yummy" Sandifer shot and killed a 14-year-old girl before he himself was gunned down by two teenage boys. That October, two boys, 10 and 11, dangled 5-year-old Eric Morse from a 14th floor window and dropped him to his death because he refused to steal candy for them.

Both crimes came on the heels of a seven-year period in which homicides committed by children had doubled. The public began to view children who had gone astray in a different light, as perpetrators, even as "superpredators," a term coined by former Princeton University professor John J. Dilulio Jr.

Race, of course, entered the equation. Most of the high-profile violent crimes committed by children, until recently, occurred in impoverished urban neighborhoods, in large part a consequence of the burgeoning drug trade. Many began to view these children, who were poor and black or Hispanic, through an otherworldly prism, as if they lived by some foreign moral code.

The response was perhaps a predictable one. Lock 'em up. For longer times. And in doing so, send a message to other would-be ruffians. Indeed, meting out punishment became paramount. And Illinois led the way.

In 1982, the state introduced one of the nation's first automatic transfer laws, which transferred children accused of murder, rape and certain other violent offenses into criminal court, where they could receive stiffer sentences. In some instances, judges can now choose to send children as young as 13 into adult court. If sentenced in juvenile court, a child cannot be detained past his 21st birthday.

An emboldened Illinois legislature passed subsequent legislation that automatically transferred teens for such nonviolent offenses as possessing drugs within 1,000 feet of a school or public housing. This meant that a 15-year-old first-time offender could be sent to prison for 30 years for the most serious drug charges. (Given that 90 percent of the state's public housing population are minorities, this law, intentionally or not, is specifically aimed at black or Hispanic children.)

The 1998 Juvenile Justice Reform Act, which on one level tries to engage the community in helping to punish and mentor child offenders, also made it easier to send children to prison for longer stretches.

As a result, the Illinois Department of Corrections' juvenile facilities are at 147.5 percent capacity. At one detention center, children sleep on cots in the recreation room.

Other states followed suit. By 1998, every other state had made it easier to transfer juvenile offenders into adult court. And after Eric Morse's death, Illinois legislators, in a frenzy to prepare for the coming wave of "superpredators," ordered a prison built to house offenders 10 to 12 years old. Yet nationally the juvenile crime rate has fallen by 30 percent since 1994. And there was never a need in Illinois for the facility intended to house that category of young offenders.

For more information
The Changing Borders of Juvenile Justice:
Transfer of Adolescents to the Criminal Court
Edited by Jeffrey Fagan and Franklin E. Zimring University of Chicago Press, 2000

An analysis of trends in juvenile justice from a sociolegal perspective. The editors note that while juvenile crime rates are declining, the number of juveniles being tried as adults has increased throughout the nation. The book examines the origins of juvenile law and the causes behind this shift in jurisdiction. The authors also discuss the psychological and developmental ramifications of reforms.

Youth on Trial
A Developmental Perspective on Juvenile Justice
Edited by Thomas Grisso and Robert G. Schwartz University of Chicago Press, 2000

These essays by experts in developmental psychology and law call into question American juvenile justice policy. As a whole, the collection assumes that "an enlightened juvenile justice system cannot ignore the psychological realities of adolescence." This is a call to "reintroduce sound, humane public policy into our justice system."

The Editors

Something is not right. It's not only the traditional liberals who believe this. Professors at George Mason University recently asked a collection of Illinois police chiefs, sheriffs and state's attorneys what they believe is the most effective strategy for reducing youth crime. Seventy-two percent said the priority should be to provide more after-school programs and educational child-care programs. Thirteen percent said hire more police officers. Only 12 percent said prosecute juveniles as adults.

When you walk into Cook County's Juvenile Court Building, an eight-story, steel and glass structure, the first thing you encounter is the raised, circular information center. It's where children and their parents go to ask directions or to find out their courtroom assignment. It couldn't be more child-unfriendly. The deputy

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Youth violent crimes
The rate at which juveniles committed violent crimes remained constant from 1973 until 1989. After reaching its highest point in 1993, the rate declined to its lowest levels since the mid-'80s.

Violent crimes Juveniles per 100,000
Source: Office of Juvenile Justice and Delinquency Prevention

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sheriffs who staff the booth sit so high off the ground that even adults must look skyward to get directions. It's perhaps an apt metaphor for how the juvenile justice system views its relationship to the children who pass through its maze: detached and inattentive to their needs. We want to pretend they're adults, but they're not. Not at all.

One longtime child advocate once told me she believed people had lost confidence in the juvenile justice system -- as well as confidence in the ability of children to "grow up and grow out of things."

People tired of what they thought was coddling of young hoodlums. People grew weary, and they consequently made leaps in assumptions about children.

Because of their actions, children who commit crimes seem older than they actually are, and so the inclination is to imbue them with adultlike qualities, and do to them as is done to adults.

That became most apparent in the case of the two Chicago boys, ages 7 and 8, who two summers ago were accused of killing Ryan Harris, an 11-year-old girl. The police interviewed them without their parents or lawyers present -- and attributed to them adultlike cunning; the police suggested the boys were being evasive, if not out-and-out lying to cover up their alleged role in the murder. In court, the proceedings mirrored the legal maneuvering and theatrics usually reserved for criminal court. And the press didn't stop to question whether such young boys were capable of the brutality and sexual activity of which they'd been accused. In the end, DNA evidence pointed to a 29-year-old man accused of similar crimes. The boys were exonerated, and as a direct result of the case, lawmakers this spring approved legislation requiring that children under the age of 13 suspected of murder or sexual assault have an attorney present during questioning by police. But the quickness and ease with which these two boys came to be viewed as simply a small-scale version of grown-ups astonished even the most jaded observers.

This case gave reason for pause. Who, some asked afterwards, is watching out for the children?

The story of Terry, the boy whose trial I sat in on, is an instructive one. When he was 7, his father plunged into a coma after a car accident. One afternoon, his mother dropped Terry and his brother off at a friend's house, giving them $50. She told them she was going to look for an apartment to rent. She never returned. He lived with his grandparents for a while, then his aunt, but Terry, understandably angry, was too much for them to handle. He then became a ward of the state and was placed at a residential center from which he ran away frequently. His DCFS caseworker at the time of his arrest had never met him. Terry was of the streets, and at the trial the state's attorney referred to him as "a streetwise gang member" and "a punk." The 12-person jury acquitted Terry.

Was justice -- in its broadest sense -- served? If the juvenile court is to be as its founders intended, "a kind and just parent," should Terry's acquittal be the end of the state's involvement in his life? He's a boy who clearly needs adult direction, needs mentoring, needs nurturing to become, in the words of Judge Mack, "a worthy citizen."

The juvenile courts must certainly, when appropriate, punish -- and at times harshly, especially those children who maim or kill -- but if that's its only purpose, there's no need for a system separate from the adult criminal courts. Any good parent knows punishment for children is meaningless without accompanying moral guidance, without a sense of faith that they can do better.

Illinois law
1899: The first juvenile court in history is created in Chicago. All decisions about whether to send children into the adult court system are left up to the discretion of prosecutors and judges.

1966: U.S. Supreme Court decision gives sole discretion to transfer children to adult court to judges.

1982: For the first time, a requirement is established for some juveniles to be tried in the adult system. It includes defendants who were 15 or 16 and charged with the most serious violent offenses, such as first-degree murder and and aggravated criminal sexual assault. (Subsequent additional offenses include possession of weapons or drugs near a school or public housing.)

1995: Teens are charged in adult court unless they can convince the court they will make use of rehabilitation features of juvenile court.

1998: Juvenile Justice Reform Act: The determination on whether juveniles as young as 13 are transferred to adult court system is based chiefly on age and crime. It allows for judges to impose both a juvenile and adult sentence. An adult sentence kicks in only if the offender fails to complete the requirements of the juvenile sentence or faces subsequent charges.

Source: Northwestern University Legal Clinic's Children and Family Justice Center

The juvenile court's reach should be expanded, not shrunk, so that it becomes a place of healing as well as a place of accountability. What's more, is it enough to simply decide guilt and innocence? Or, if we truly care about our children, can we, should we, do more? What it comes down to in the end is whether we

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believe there's a need for a justice system that operates under different assumptions than its adult counterpart, whether we believe that the very nature of youth is more than just a chronological fact.

A lex Kotlowitz is the author of The Other Side of the River: A Story of Two Towns, a Death and America's Dilemma, his recently published hook about race in America. In 1991, Kotlowitz, who lives outside Chicago, also wrote the best-selling There Are No Children Here: The Story of Two Boys Growing Up in the Other America, an examination of the lives of children in Chicago's public housing. It was selected by the New York Public Library as one of the 150 most important books of the century. In 1993, it was adapted as an ABC Movie of the Week starring Oprah Winfrey.
This essay was made possible through generous donations from our readers.

The trends counter the assumptions
Recent youth crime trends have not lived up to expectations. The result: policy that appears to have missed its mark.

In anticipation of a growing youth population and a rising tide of juvenile violence, policy-makers took a hard stance. In 1982, Illinois became one of the first states to require children to be tried through the adult court system. The idea spread throughout the nation. By 1998, all states had passed laws to make it easier to try children as adults.

In Oklahoma, children as young as 7 can face trial in adult courts. In Illinois, children charged with violent crimes can be tried as adults as young as 13.

Nevertheless, the juvenile crime rate has been on the decline since 1993. In 1997, the national juvenile rate reached its lowest level since 1986.

Nor is the youngest segment of the population growing faster than others. In fact, the population of the youngest Americans is expected to decline. Illinois' juvenile population in 2015 is expected to have declined by as much as 15 percent from its 1995 level.

And while youngsters do commit violent crimes, the problem tends to be concentrated by region. In 1997, one of every four murders committed by a juvenile occurred in eight of the nation's 3,000-plus counties. Those counties included the cities of Chicago, Baltimore, Dallas, Detroit, Houston, Los Angeles, New York and Philadelphia.

The Editors

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