The Maximum Security Adolescent
What's Become of the Juvenile Delinquent?
By Margaret Talbot, New America Foundation;
The New York Times Magazine | September 10, 2000
[Heads added by Tegenwicht]
[... Case of Jeff, adopted child. At 13 year, he got problems after
after curfew time, for loose change in unlocked cars. Stole a bike.
counseling in a juvenile crime deterrence program. Got house arrest
juveline court because he had left home.
Then, after a "play boxing" with boys, the quarrel went on and
came to his house. Jeff took the unloaded antique shotgun of his
and the boys headed home.
Result: ten years in an adult prison. ...]
New view on juveniles in de VS
But Jeff ]...]'s worst luck so far was to have fallen afoul of the
law at this particular moment in American judicial history, a moment
when the century-old notion of children and adolescents as less culpable
and more amenable to rehabilitation than adults has been giving way to
an altogether different view.
In this new and far harsher view, child criminals are virtually
indistinguishable from adult criminals: they are just as capable
forming criminal intent, just as morally responsible,
just as autonomous in their actions.
Since 1992, 45 states, including Arizona, have passed or
legislation making it easier to prosecute juveniles as adults.
While judges in the juvenile system have always had the
to send particularly brutal or chronic young offenders into the
system, state legislatures have been making it easier for less
wrongdoers to meet the same fate.
Because of changes over the last decade, 15 states now grant
the sole discretion to transfer juveniles into adult court for certain
of offenses. Twenty-eight states have statutes that automatically remove
youths charged with particular crimes -- many of them violent crimes,
but some property and drug offenses as well -- from the jurisdiction of
the juvenile system. Though many states allow only children 14 and older
to be prosecuted as adults, others have set younger minimum ages -- 10
in Vermont and Kansas -- or no lower limit at all.
As a result, the number of youths under 18 held in adult prisons, and
many cases mixed in with adult criminals, has doubled in the last 10
or so, from 3,400 in 1985 to 7,400 in 1997. Of the juveniles
any given day, one in 10 are in adult jails or prisons.
Arizona is one of the states where prosecutors can bump a juvenile
into adult court at their own discretion. It is also a state with a
number of mandatory sentencing laws.
Jeff [...] was charged as an adult on three separate counts of
assault with a dangerous weapon. Since the boys Jeff pulled his unloaded
gun on were all under 15, the prosecutor also had the option of
the assault as a so-called dangerous crime against children, and he did.
Stackhouse is convicted, he could be sentenced to a minimum of 30 years
[... ... ... ...]
As it happens, Jeff is not the only 14-year-old boy sitting in the
Madison Street Jail that day. A boy named Marco is there, too, and has
been for nearly a year. Like Jeff, he is the sort of kid who, not so
long ago, would have been kept within the juvenile system and considered
a candidate for psychological intervention rather than adult-style
Marco was arrested for sexually molesting his 7-year-old
I didn't meet Marco that day, but I talked to his lawyer, an
no-nonsense woman named Frances Gray, who is 47 and came to the law
after a career as a software programmer for Bell Atlantic. Gray liked
Marco and was worried about his fate. "Charged in the adult
wrote me in an e-mail message after our meeting, "his offenses
adult prison -- five years minimum" in the one adult facility in
that takes juveniles. But, Gray wrote, the prison has "no
programs for juvenile sex offenders like my client. All of the research
on juvenile sex offenders emphasizes the importance of, and amenability
to, treatment for this vulnerable age group." In fact, the only
prison could do for kids like Marco was to "segregate them so they
get beaten up by the general population (all sex offenders are preyed
upon in jails and prisons) until they turn 18 and are thrown to the
'wolves' in the adult sex offender treatment program."
[... ... ...]
The coming of the juvenile court system
One hundred years ago, when progressive-era reformers first invented
idea of a separate justice system for juveniles, it was boys like Jeff
and Marco 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
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
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
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 juvenile court system changed
The civil liberties critique of the juvenile justice system found its
most powerful expression in the Supreme Court's 1967 decision in the
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
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
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.
Even after the juvenile crime rate fell precipitously in the late
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
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."'
the focus was on the offense, not the offender.
"What I noticed," says Stephen Harper, an assistant public
Miami who has handled cases in which juveniles were transferred to the
adult system, "is that there was much less curiosity about who a
was, why he might have done what he did. Was there abuse in his
background, neglect, a drug-addicted parent?" Indeed, as more and
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
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
of vices and crimes" that advocates of the juvenile court had long
[ ... Jessica, then 13, had robbed her grandparents, or at
participated in that crime. "Armed robbery". Nine years in an
In the women's prison, older women nearly combated to function as
"her mom". Factually, the women spoilt her.
She did not go to class, because this is not ordered in an adults'
Jessica will get out of prison when she is 22.
She will have no education beyond the sixth grade, no job skills, no
friends her age and no experience of ordinary, unincarcerated life after
the age of 13. What she will have is a felony record -- unlike the
juvenile courts, adult courts do not preserve anonymity -- and a
collection of "mothers" and mentors, among whom a convicted
by far the most wholesome. She will have been raised by wolves, and then
she will be released, like most juveniles convicted in adult court, when
she is still young enough to commit many more crimes.
The body of research on juveniles in adult prison is not especially
Until recently, there weren't enough Jessica Robinsons to warrant
systematic information-gathering. It isn't even all that easy to locate
young inmates, in part because states have adopted different policies
about how and where to house them. "The majority of states follow a
practice of dispersing young inmates in the general prison
says Dale Parent, a project director with the research firm Abt
Associates in Cambridge, Mass., which is conducting a long-term study on
juveniles in state prison systems. "They might not put a small,
vulnerable adolescent in a cell with a sex offender, but other than
that, they do not segregate the youth, and they have no separate
programs for them. A few states have extreme segregation -- physically
separate housing units where youthful offenders have no contact with the
adult population -- or arrangements with the state juvenile facility
where they spend a few years there and are transferred to prison on
their 18th birthdays."
There are plenty of reasons to keep juvenile offenders away from the
adult prison population. In general, young prisoners are more vulnerable
than adults to sexual exploitation and physical brutalization. They are
more likely than older inmates to commit suicide. They are more likely
than young people in juvenile detention facilities to be physically
assaulted and to return to a life of crime when they are set free.
None of this should come as any surprise. Prison populations are not
only older, larger and more criminally experienced than juvenile
detention populations, they are also more violent. (Nearly 50 percent of
prison inmates are violent offenders, while only 20 percent of juvenile
training school residents are.) Prisoners tend to be much more idle than
juveniles in detention. Only one-third of state prison inmates work more
than 34 hours a week, and only half take classes.
In juvenile facilities, on the other hand, kids spend most of the day
vocational-training, group counseling, substance abuse programs and the
like and are encouraged to form bonds with their counselors and
teachers. When Donna Bishop, a professor of criminology at Northeastern
University, interviewed minors in juvenile and adult facilities in
Florida, she concluded that youths in prison "spent much of their
talking to more skilled and experienced offenders who taught them new
techniques of committing crime and methods of avoiding detection."
An earlier study that Bishop and Charles Frazier conducted in Florida
points to the effects of such environments on recidivism.
Thousands of young offenders are sent to criminal court in Florida
But because so many of those transfers come about at the discretion of
prosecutors, thousands of other juveniles, charged with equally serious
crimes, are not. Bishop and Frazier were thus able to match by age,
race, gender, current charges and past criminal record 2,738 juveniles
who had been prosecuted as adults with 2,738 who had stayed in the
juvenile system. Over a period of up to two years, they found that 30
percent of the teenagers prosecuted in criminal court were rearrested;
the figure for those who had gone through the juvenile system was 19
percent. Transfers also proved more likely to be arrested for more
A critical resolution & more critics
Last year, the American Correctional Association, the professional
organization that represents prison staffs, passed a resolution in favor
of limiting transfers from juvenile to criminal court as sharply as
possible, holding youthful offenders only where they can be entirely
separate from adults and developing new training in adolescent
psychology for those prison officials who are forced to manage the very
Corrections-industry journals, meanwhile, have been particularly
blunt when it comes to laying out the practical dilemmas of treating
children as adults. "If inmates under the age of 18 are housed with
general population," a writer in Corrections Today asked recently,
this mean adult systems should treat them like adults in every way or
does it mean that special considerations should be made to their
questionable adult status? Can a youthful offender be sold tobacco
products? . . . Can an incarcerated juvenile file a child-abuse
complaint against prison officials?" These are far from
questions. "Unless a parent or guardian signs permission for
Elisa Corrado, a social worker who works with imprisoned juveniles in
Miami, "they can't get a Tylenol. They're still minors, even if
in adult prison."
If we are going to keep prosecuting juveniles as adults, one thing it
would surely be useful to know is what children can understand, at
different ages, about the criminal process. To what degree can a child
at 10 or 12 or an adolescent at 14 or 15 be expected to participate in
his or her own defense? Is immaturity, like insanity or mental
retardation, a form of incompetence -- an effective limitation on a
defendant's capacity to comprehend the charges and proceedings against
When the Supreme Court asserted in its 1962 decision in Gallegos v.
Colorado that "a 14-year-old boy, no matter how sophisticated . . .
not equal to the police in knowledge and understanding . . . and is
unable to know how to protect his own interests or how to get the
benefits of his constitutional rights," there may have been a
consensus that this was true. But now many judicial experts on both left
and right hold a vision of children as competent legal decision-makers,
reared on cop shows and Court TV and casually familiar with their
due-process rights and how to demand them.
The investigative stage of a crime
These questions acquire a particular poignancy when it comes to the
investigative stage of a crime, during which young suspects are
interviewed by the police. Children, especially those 12 and under, are
much more likely to waive their rights.
(In one study, 90 percent of juvenile suspects waived their rights to
silence and to counsel, compared with 60 percent of adults.)
And they are much more likely to say what they think adults want to
hear, especially if they think it means they can go home soon.
The 7- and 8-year-old boys accused of sexually assaulting and killing
11-year-old Ryan Harris in Chicago two years ago -- and later cleared
of all charges -- were enticed to confess over a McDonald's Happy
An 11-year-old boy who now says he falsely confessed to
his elderly neighbor wanted to get the police interview over with so
he could go home to his younger brother's birthday party.
"Kids confess all the time," says Mara Siegel, a deputy
public defender in Phoenix. "They talk to the police all the time.
can drive you crazy."
Mark Chaffin, a pediatrician and psychologist at the University of
Oklahoma Health Sciences Center, agrees that children are particularly
vulnerable to offering false confessions. "Tendencies like wanting
please, wanting to say what they think the adult authority figure wants
to hear or misunderstanding the situation," he says, all leave
at risk. "I think law-enforcement officials know how to interview
who are mentally retarded or psychotic," he adds. "But there's
not a lot
of specific training about how you interview a 10-year-old
A few states require the presence of an "interested adult"
-- usually a
parent -- when a child is being interrogated, but most do not. So what
should be done? "My recommendation," says Thomas Grisso, a
psychologist at the University of Massachusetts Medical School, "is
kids 14 or under who are being questioned should have at least a parent
available. Even if they don't have good relationships with their
parents, the parents are still the people they look to for their buffer,
By the age of 14, several studies have shown, most children can
accurately explain the purpose of trials and the role of judges and
juries and can offer reasonably accurate definitions of a right.
Children under 14, however, have a much weaker grasp on these
Studies that have looked at juveniles' understanding of specific Miranda
rights have found that adolescents 15 and older generally comprehend
them about as well as adults, but that younger children frequently
misconstrue them. According to Grisso, many children understood
right to remain silent" to mean "they should remain silent
were told to talk." To one boy who took Grisso's Miranda
test, the right to remain silent simply meant "don't make
Recent insights from neuroscience tend to support the notion that
teenagers really are different from adults, and in precisely the ways
anyone who has ever been a teenager might think. Researchers at the
National Institutes of Mental Health have used brain imaging, for
example, to show that both the frontal lobe and the corpus callosum, the
cable of nerves connecting the left and right sides of the brain, are
still underdeveloped in adolescence. And they surmise that until those
parts of the brain have fully matured, they can contribute to greater
impulsiveness and wider and more frequent mood swings.
"Teenagers," Jay Giedd of the N.I.M.H. said in a speech
"don't utilize inhibitory pathways as well as their parents do to
their impulses." (To which their parents, anyway, might say,
Still, we are unlikely to return to an era when the juvenile system
sway over all lawbreakers under 18. And besides, limbically challenged
or not, a 17-year-old clearly isn't as deserving a candidate for
leniency as, say, a 12-year-old. Laurence Steinberg, a Temple University
psychologist who heads a research project on adolescent development and
juvenile justice, would rather see the law adopt more subtle dividing
"Most people older than 16 are not greatly distinguishable from
adults on the relevant competencies -- the ability to think through
future consequences, for example," he says. "On the other
13 and under really do not have these abilities. For them, adult court
should not be an issue." The tricky ages, says Steinberg, are 14,
sometimes 16. In that age range, some adolescents -- especially those
with emotional or learning difficulties, which would include many kids
in the criminal justice system -- are childlike in important respects,
while others are quite mature.
The majority of young offenders dabble in crime and grow out of the
to do so. "Self-report studies indicate that most teenage males
in some criminal conduct," notes Elizabeth Scott, a law
professor, in a
recent essay, "leading criminologists to conclude that
delinquency is 'a normal part of teen life."'
[... ... ...]
Jeff & Marco
Last month, I visited Phoenix again. Jeff was still in jail, though
protective custody at last. Not much had changed for him, though he
seemed a little more comfortable and, with a sprinkling of acne on his
chin, a little older. Marco, on the other hand, was 24 hours away from
being moved to prison in Tucson. Having pleaded guilty to two counts of
attempt to molest, he had been sentenced to five years in prison. His
lawyer, Frances Gray, had to see him one last time, to fill out some
paperwork, so she invited me to come along.
[... .. ...]
Before we go, I ask Marco if he thinks jail, where he has been for
than a year -- his family never could muster the $9,600 bail -- has
"Yeah," he says. "It's hard to explain. I know how to
a fight now, let's put it that way." He doesn't say anything for a
while, and then he adds: "When I first came here, I didn't know
do. I didn't even know there was a Madison Street Jail. Now when the new
guys come, they look at me like I'm supposed to tell them what to do,
like I'm the old-timer."
I'm thinking that nothing good is going to come of sending Jeff or
to prison. Some older adolescents -- 16- and 17-year-olds, especially --
do belong in adult court. Others in that age range would be good
for an innovative strategy called blended sentencing, which is now being
in 19 states. Under this practice, young offenders serve their time in
juvenile facilities until they are 18 or 21, but have an additional
sentence in adult prison hanging over them if officials think they still
pose a danger. But any child 14 or younger -- and make no mistake, it is
children we are talking about -- is too unformed, too vulnerable, too
easily swayed, too limited in his understanding of the criminal process
to be subjected to it in full force.