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August 3, 2018

The War on Kids Post #1

Greetings, fellow SL&P readers and Doug Berman fans! I’m Cara Drinan, and I’d like to thank Doug for generously offering me the opportunity to guest blog while he’s away on vacation. For the most part, I will blog about my recent book, The War on Kids: How American Juvenile Justice Lost Its Way (Oxford University Press 2017, available here), but if time permits, I’ll also post about current events.

I look forward to sharing my research over the coming days and hearing your thoughts and comments. The War on Kids begins by addressing the arc of American juvenile justice. Despite inventing the juvenile court a little more than a century ago, the United States has become an international outlier in the severity of its juvenile justice practices. The War on Kids explains that trajectory as a sub-plot to the story of mass incarceration, and then exposes the machinery of juvenile justice: how certain kids are more likely than others to end up in the system and what that bleak experience looks like for a juvenile inside the system. The latter half of the book turns to examining prospects for reform on the horizon. Recent Supreme Court juvenile sentencing decisions and related state legislative responses provide grounds for optimism, and yet implementation efforts to date have been slow and bumpy. Finally, the book concludes that we must launch a war for kids and outlines policy measures that such a war must entail: the elimination of extreme juvenile sentences, the abolition of mandatory minimums for kids, and a shift away from juvenile incarceration altogether.

Obviously, I can’t cover the whole book in a few blog posts, and I hope you’ll read it in full, but in the coming days I will address a few questions addressed within the book:

Today, I’ll tackle the first question – the question of how the United States became the extreme outlier that it is today in terms of juvenile justice. The U.S. invented the juvenile court model in Illinois in 1899. This early juvenile court wasn’t perfect by any stretch, but it was based on a shared recognition that a child who broke the law was typically in need of social services rather than punishment. In contrast to adult courts, juvenile courts shared several defining features: relative informality, broad judicial discretion, and a guiding ethic of juvenile vulnerability and rehabilitation. Over the course of the twentieth century, every state in the nation adopted the juvenile court model, as did developed nations around the globe.

Fast-forward 100 years, and by the end of the twentieth century, the U.S. had become known for its punitive “adult crime, adult time” approach to juveniles. Perhaps most notable to the international community, until 2005 the United States was the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison. In order to understand how this happened – and how it happened fairly quickly – it helps to think of the war on kids as a subplot to the story of mass incarceration.

As Doug’s regular readers well know, the American correctional population exploded in the late 20th century. In the 1970’s there were approximately 300,000 people in American jails and prisons, and today we have more than two million adults and children behind bars. While the story of mass incarceration is complex, there is no disputing that, with crime on the rise beginning in the 1960’s and into the 1990’s, politicians on both sides of the aisle embraced tough on crime positions. They enacted more criminal laws and enhanced penalties for criminal violations. As we sent more and more people to prison for increasingly long periods of time, our correctional population ballooned.

Juveniles suffered from this trend toward mass incarceration in two particular ways. First, politicians enacted laws that enabled prosecutors and judges to treat children as if they were adults. This was a massive shift. For most of the twentieth century a child accused of a crime was dealt with in juvenile court. However, as part of the get-tough policies of the 1980’s and 1990’s, lawmakers passed transfer laws (of several varieties) that made it increasingly easy and common for kids charged with a crime to be prosecuted in adult court. Today, every jurisdiction has at least one provision (and most have several) that permits a juvenile to be transferred to adult court often without judicial oversight. Twenty-three states set no minimum age for that transfer.

Second, around the same time, federal and state lawmakers introduced determinate sentencing schemes, including mandatory minimums that have been the source of extensive discussion here on this blog. It’s possible lawmakers were not considering these two policy shifts and their interaction, but these two developments were the perfect storm for juveniles. By the end of the twentieth century, transfer laws made it increasingly easy for kids to land in adult court, and once there, they were exposed to mandatory minimums that had been drafted with adults in mind. Two states supreme courts have recognized the absurdity of this in practice (Washington and Iowa, discussed here) and have barred mandatory minimums as they apply to youth, but the practice remains common.

That’s it for today. In my next post, I’ll explore what the war on kids actually looks like in practice.

August 3, 2018 at 09:12 AM | Permalink


To what extent can it be said that the US Supreme Court has been complicit in these developments, perhaps a) by its lack or slowness to respond and b) by the lack of clarity in its subsequent limiting rulings? It is often seen that the Supreme Court is reluctant to enforce significant change to State law and practice by giving only very narrow rulings in specific cases - in effect giving ruling to an individual rather than a class of individuals. Similarly, rulings are often not made retrospective so that those who have suffered under previous practice fail to gain any benefit. To what extent, in your view, has this been evident in the field of Juvenile Justice? Should the Supreme Court be more interventionist in protecting juveniles from an experience of injustice that will clearly scar their entire lives?

Posted by: peter | Aug 3, 2018 10:46:56 AM

Excuse me, Hon. Anyone who fails to mention the rising bastardy rate as the most powerful factor driving juvenile crime has zero credibility. You need to redo your book. The bastardy rate for blacks is 70+%, and the white rate has soared to 40%, as of the 2010 Census. We are in deep trouble if white people ever catch up to the black rate.

The black family survived the most severe historic stresses. Its disparity in social pathologies was tiny until the 1960's, when it was destroyed by the vile feminist lawyer. Did you know that the black crime rate may have been 10% higher in the darkest time of Democratic Party terror and lynching, and not 400% higher as it is today? Do you plan to address the carpet bombing of the patriarchal black family by the vile feminist lawyer in the 1960's?

Posted by: David Behar | Aug 3, 2018 11:09:06 AM

Mr. Behar, it's uncharacteristically respectful of you to start your comment by referring to Prof. Drinan as "Honorable," but I'm guessing "Prof. Drinan" would have been just fine.

Posted by: DRF | Aug 3, 2018 11:27:11 AM

Interesting topic. I confess, however, that when I think of the notion of a "war for children" my response is that we already have one: it's strategy is to kill all the pedophiles. I find myself tuning out anyone who claims we need to do something "for the children". Not, of course, because in the abstract it is false but because the phrase has become so abused as to render it meaningless.

I will keep an open mind but I hope that any discussion of a "war for children" in this context will address how this specific war for children fits in with all the other wars for children we are already waging.

Posted by: Daniel | Aug 3, 2018 11:33:10 AM

She is just another far left, rent seeking, feminist abomination until proven otherwise. She is not stupid. She is bad. I am open to changing my mind, but I doubt she is any different or any more intellectually honest than Berman. She would not have been invited otherwise. I demand to know the neighborhood of Washington where she lives. She is also all swamp, but living in a safe neighborhood, I am going to guess, without having ever met her. Dismissed.

Posted by: David Behar | Aug 3, 2018 12:40:15 PM

Peter: Fair questions. A few thoughts. 1) The Court is limited as a function of institutional design in terms of how much it can regulate state criminal law; states have a lot of latitude. 2) The Court historically has been reluctant to intervene in state cases of custodial sentences - for anyone. Prior to Graham v. FL (which I'll discuss in a couple days), the Court had not invalidated a custodial sentence in nearly three decades. 3) It's only recent developments in neuroscience that, I think, have given the Court the push to view kids as categorically different for 8AM purposes.

Posted by: Cara Drinan | Aug 3, 2018 12:40:53 PM

Daniel. A social experiment has been going on, the past decade. Much darker skinned African immigrants have outperformed whites on the 2010 Census. They have had a miniscule crime rate for 2 generations. That means neither race, nor racism are factors in juvenile crime. Africans are the new Koreans. Harvard will have to institute reverse quotas to stop their flooding admissions.

African immigrants have intact patriarchal families, are Christians, love this country, are strivers, speak the King's English, and are intellectually superior from their merit selection in legal immigration. She needs to address that racial disparity. They have no juvenile crime, outside of the occasional silliness of young people.

The culmination of that experiment was the election of one of them as President of the US in 2008. Obama's life experience had almost nothing to do with being black in the US. Although a bastard, he was later raised by a Muslim step father married to his mother, then by Kansas based white grandparents married to each other.

Posted by: David Behar | Aug 3, 2018 1:20:18 PM


I appreciate you keeping an open mind, and in the coming days I'll say more about what exactly I mean when I speak of a war on/for kids. But let me say this. As I explain in the book, we can't really speak of "kids" in America, because while some kids in America have many advocates and protections, many have been written off. For example, almost a quarter of all kids in this country live in families with incomes below the poverty line. One in every 28 kids has an incarcerated parent. Those kids likely don't feel that wars have been waged on their behalf just yet.

Posted by: Cara Drinan | Aug 3, 2018 1:43:50 PM

"It's only recent developments in neuroscience"

Adolescents are superior to adults in every way, including in morality, since they have lower rates of violent crimes than adults. Their frontal lobe myelination until age 25 does not explain any difference in crime. They may be immature, but maturity comes only from experience and from responsibility. So 12 year old boys are doing a good job of running $300,000 combines at midnight in Iowa, because they have no choice. Those same busy kids are also at the top of scoring on standardized academic testing

There is synaptic pruning and apoptosis from learning, that cancels the effect of less myelinization. That makes adolescents superior, not inferior in morality.

Know nothing, but rent seeking bookworms on the Supreme Court pretextually picked on tiny, unreliable, not conclusive study to excuse vicious gangbangers in organized crime, killing hundred of competitors a year. These teen agers are functioning in a tougher environment, and making more money than the Justices. They are actually more clever, and intellectually superior to the Justices themselves, never mind, ordinary adults. I invite the Justices to survive in the Hood for a week. I am not going to ask them to make any money.

Posted by: David Behar | Aug 3, 2018 2:08:16 PM

One more example of why Behar should be banned from comments for lowering the discourse and driving away those of us seeking real discussion. I don't recall you ever calling Professor Berman babe or sweetie or even dude, so why the "Hon" for a female professor? If you had better, coherent arguments, you wouldn't start with such bs that makes others dismiss you out of hand.

Posted by: defendergirl | Aug 3, 2018 2:41:25 PM

One wonders if Berman would ever invite the author of a book titled, "The War on Black Crime Victims."

Defendergirl. Have a blessed day. If we were at work, and made those PC comments, you would enter a world of regulatory and litigation investigation that would last your lifetime. Zero tolerance for feminism or for political correctness. I find this author detestable, and a pro-criminal enemy of all crime victims. She is a rent seeking feminist abomination, and I have no intellectual respect for her. We have discussed the point of education vs indoctrination. She is misleading in not labelling her speech as advocacy. She is pretending to be an educator, and quite dishonest. I would be satisfied with a clear disclosure. If we were employed by a university, I would also be challenging its tax exempt status after your remarks. As there should not KKK White Studies Department granting degrees, there should not be any Womens' Studies departments.

Posted by: David Behar | Aug 3, 2018 2:53:53 PM

It is not that difficult to get a legislature to increase a penalty but it is very difficult to get them to reduce one. The trend with risk assessment is to assume maximum risk. One of the outcomes is that beds in juvenile detention facilities are filled.

It takes bad behavior by only a few juveniles (in particular if guns are involved) to get a crackdown on all juveniles.
Drunks with guns are bad and kids with guns are just as bad.

Posted by: John Neff | Aug 3, 2018 3:56:02 PM

I sincerely want to help the advocates of decarceration. I am not being sarcastic.

Here is the place to start. Ask anyone sitting next to you on a bus. This is self evident.

Bring the files to, not know-nothing appellate court judges, but experienced investigators. Give the investigators good resources to apply modern technology. Find the 20% of current prisoners who are factually innocent. There are several other low hanging fruits. But, we are focusing now.

Defendergirl: I demand to know the number of your clients who were factually innocent that went home either before or after a trial. I will be impressed if you say, there is, one. If you are hand carrying plea offers, an email service would be as good as you are. An email service will not pressure the client to lie to the judge, to falsely attest, pleading guilty, when that is a false statement.

I know lawyers get uncomfortable when the Rules of Conduct are cited. I want you to like me. So, I am not making that long list of violations involved in a false plea of guilty, not to mention the violations of the Rules of Criminal Procedure, of Evidence, and of the local court.

Posted by: David Behar | Aug 3, 2018 11:14:10 PM

Prof. Drinan. Can you address a basic question of definition?

Adulthood is in reality, age 14. So says, biology, defining it as having the ability to reproduce. A plant is "adult" when it produces seeds.

The religious rituals of adulthood are around that age around the world, in all the world's mainstream religions.

Civilization has made puberty the time of adulthood for 10,000 years. For that time, people reaching 14 took on adult roles and responsibilities, including the most serious, that of soldier. The word, knight, comes from Nordic languages, and means, lad. So these lads went on Crusades, ran the farms, and fought on behalf of their king.

The increasingly later age of adulthood is a recent attempt to keep people out of the market, who are superior in every way to the union members, registered Democrats, and poor performers in the market, all lawyer clients.

Posted by: David Behar | Aug 3, 2018 11:38:08 PM

"The increasingly later age of adulthood is a recent attempt to keep people out of the market..."

This is not wholly false but it is not fully true, either.

It's important to remember that when civilization was developing life expectancy was also a lot shorter and the main reason it was shorter was because high infant mortality. Thus individuals who made it to 14 were by definition the halest of the species. That is no longer true. We have millions of babies that survive every year, many of them with significant disabilities, that would have never survived even 100 years ago. From that perspective the later age of adulthood is an attempt to tolerate a greater range of human infirmities. Of course, the trade-off for delaying adulthood to give the infirm more time to grow is restriction on the hale. Society seems to have accounted that trade-off worth it.

Posted by: Daniel | Aug 4, 2018 11:09:02 AM

"Society seems to have accounted that trade-off worth it."

Heck... no. Dirty, rent seeking, denier, tyrannical lawyers, using men with guns, have, not society. I invite all Coastal low life to spend a year living in a farm state.

The result of this denier lawyer tyranny? Massive waste of human potential; over the years, $trillions wasted on that baby sitting service, high school, to generate jobs for worthless, make work government workers, teachers.

Posted by: David Behar | Aug 4, 2018 12:47:27 PM

Daniel. You are in the business. What do you think about the evolving standard of civilization to make 25 the age of adulthood.

Hey, Drinan, if you are going to reduce the culpability of people younger than 25, don't you also have to stop their ability to sign contract, drink a glass of beer or vote, as well? After all, it is proven. Young people, impetuously voted for Hillary Clinton, not thinking about their real self interest. They have never done better than since the election of Donald Trump. These young people's frontal lobe development is impetuously leading them to vote for the Democratic Party, and against their own self interest.

I would appreciate it if Drinan told the readers her party registration.

Posted by: David Behar | Aug 4, 2018 12:53:35 PM

Hey, Drinan. The youth you wish to divert from imprisonment has a resting pulse lower than 60, and is not exercising nor physically fit.

Do you discuss the low resting pulse indicator in your book?

Posted by: David Behar | Aug 4, 2018 1:04:47 PM

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