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:

• Given that the juvenile Court model was an American invention, how did the US become the extreme outlier that it is today?
• What does the war on kids look like today in America?
• How have recent Supreme Court decisions regarding extreme juvenile sentences been implemented on the ground?
• What does a war for kids entail?

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 20^th 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.