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August 4, 2018

The War on Kids Post #2

In my last post, I addressed the irony of America inventing the juvenile court and then both exporting that concept to the world and abandoning it domestically. Today I want to unpack the realities of my claim that there has been a war on kids since the late 20th century. Let me acknowledge that, to some readers, the concept of a war on kids in America today may sound misguided or dramatic. After all, educators complain of helicopter parents and so-called free-range parents may face prosecution for granting their children liberties that were commonplace in my childhood. However, even as some children in America are more coddled and protected than ever before, I stand by my claim that the U.S. has waged a war on kids.

This is what the war on kids looks like. On any given day, there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons. While some hold themselves out as camps, academies or training facilities, these are correctional institutions; 89% of them are locked and many employ handcuffs, leg cuffs and restraining chairs, as well as solitary confinement. At the same time, we are not reserving detention for the most serious juvenile offenders. Nearly a quarter of youth in juvenile facilities have only been charged with a technical probation violation or a status offense. Schools, with police officers in the halls and zero-tolerance policies on the books, have become a gateway to the criminal justice system. In at least 22 states it’s a crime to disrupt school in ways that may have earned a student a trip to the principal’s office a few decades ago. Preschoolers, yes, preschoolers, can face suspension and expulsion for age-appropriate behaviors. This is deeply problematic, as suspensions, especially repeated ones, increase a student’s risk of dropping out of school and coming into contact with the criminal justice system.

Moreover, as I mentioned in my first post this week, our laws have cemented the notion that kids, once accused of a crime, may be treated as adults. Prosecutors routinely remove kids from juvenile court and charge them in adult court on the basis of the legal fiction of transfer laws. Youth in adult court are subject to mandatory sentences that today many of us would agree are too harsh even as applied to adults. Juveniles can be housed in adult correctional facilities, despite being the most vulnerable to physical and sexual assault in those locations. Until 2005 we were 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.

Perhaps most discouraging, the war on kids has taken its greatest toll on the nation’s most vulnerable kids – those in poor, minority areas that are under-resourced and heavily policed. Black youth are more than twice as likely as white youth to be arrested, and, even as overall youth detention rates continue to decline, black youth are five times as likely as white youth to be detained. Similarly, poverty shunts children into the criminal justice system who would never be there if they had the financial resources to pay for private counsel, a diversion program, or even an ankle bracelet. Finally, when one looks at youth serving the most extreme sentence on the books, life without parole, approximately half were physically abused and nearly 80 percent witnessed violence in the home. Thus, like most wars, the war on kids has had its greatest impact on poor, minority and otherwise vulnerable communities.

In my next post, I’ll address recent Supreme Court decisions regarding juvenile sentencing and their implementation at the state level.

August 4, 2018 at 10:59 AM | Permalink


"However, even as some children in America are more coddled and protected than ever before, I stand by my claim that the U.S. has waged a war on kids."

Aren't handcuffs, prison bars, and shackles coddles of iron?

The point I want to make with this rhetorical question is that if we dance to the other drummer, the drummer that David Behar dances too, then from that point of view the real war on kids isn't holding them accountable with imprisonment, the real war on children is the war being waged by the other coddling: the cops in schools, the helicopter parents, the high age of consent laws, and all those other things that have reduced children's liberties from those "that were commonplace in [your] childhood".

So this line of argument would agree that there is a war on kids but the real defenders of children in that war are the free range parents you reference. The real defenders of kids are those adults who want to educate teenagers on their sexuality so that the children can grow into better stewards of their own bodies. The real defenders of children are those who align children's responsibilities with those biological cycles of development that have existed since time immemorial. From that perspective there is a war, you just happen to be on the wrong side of it Professor--the side that promotes childhood irresponsibility rather than the side promoting childhood freedom.

Posted by: Daniel | Aug 4, 2018 11:31:44 AM

Hi, Sweetie. We are going to need the home address. All those kids that are being victimized will be released to your house, including the arrested Kindergarten kids. You will love them. You can show us how to manage them better. They probably just need a hug. I want to see how you, as a single foster mother, will tell a member of organized crime he cannot go out, to make a salary higher than yours. Post it on YouTube so we may all learn from you.

You are an advocate. You are using exceptional anecdotes from newspaper articles to persuade emotionally, to try to change policy. All of journalism violates the Exception Fallacy. You had a good education. Did you ever take a course in Critical Thinking? If you give your address to Prof. Berman I will gladly send him a book on Critical Thinking, and postage to send it to you. I may send Berman his own copy. The above post would have to be returned without a grade, to a high school student in Civics class. It is missing half, the other side of the story.

Here you go, $3 on Kindle.


I am going to repeat a comment you are evading. The young person in prison has a resting pulse lower than 60 beats/minute. He is not exercising nor physically fit. Does that mean anything to you?

It is a far more reliable and highly proven indicator, in gigantic population studies, of the future, than studies of cartoons of shifting mathematical formula MRI results in a tiny sample of subjects, using subjects from researcher families and friends, not criminals. All these researchers are registered Democrats. You are probably looking at political immaturity, rather than culpability.

Posted by: David Behar | Aug 4, 2018 1:24:33 PM

Do you agree that teachers in New Jersey may not use school discipline, but most call the police for any serious disturbance? This is the policy in New Jersey. Is that in your book? So, when the police is called on a Kindergarten student, it is to avoid prison time for school officials if they violate this rule.

Do you agree that corporal punishment without due process should return to schools by law?

If corporal punishment does ever return, it should first be applied to educational law lawyers. They have totally destroyed all school discipline. The second place it should be applied is to the awful, overly entitled parents who disrespect school authority. Start with the horrible rich feminists.

Do you agree that authors who refuse to address questions of physiology, of lawyer rent seeking regulations, of pro-criminal advocacy are deniers, and are not arguing in good faith?

Posted by: David Behar | Aug 4, 2018 1:30:29 PM

Here is the New Jersey Memorandum, to generate make work jobs for worthless government workers and lawyers. It is written by prosecutors. Education officials were forced to agree to it. It is unconscionable by coercion, and voidable, but it is the law in New Jersey. It is also against policy and against all common sense.

They make excellent justifications for criminalizing school discipline problems. Do you have this in your book?


Do you want to do something that is actually useful to teachers and to students? You can sue New Jersey in the Third Circuit. I can help you get accepted. You will enjoy arguing before the great intellectuals on the Third Circuit.

Posted by: David Behar | Aug 4, 2018 1:46:34 PM

"Perhaps most discouraging, the war on kids has taken its greatest toll on . . . those in . . . areas that are . . . heavily policed."

And the problem with heavy policing is? Seriously, if certain areas have a high crime rate, then by all means heavily police them.

Posted by: MIJS | Aug 4, 2018 3:40:05 PM

MIJS: Of course I recognize the value of law enforcement maintaining public safety, and yes, sometimes high crime areas warrant greater police presence.

However: 1) As many have pointed out (and I recommend Andrew Ferguson's Rise of Big Data Policing), there is a risk today with the use of predictive policing technology that law enforcement is creating a self-fulfilling prophecy around racially disparate policing practices. 2) If crime rates are comparable (for example, drug use among blacks and whites) and one group is being policed/arrested/charged more than the other solely because one group is under police scrutiny and the other isn't, there is a big fairness concern.

Posted by: Cara Drinan | Aug 4, 2018 5:35:29 PM

OK, so police the others more. Don't just say, "stop."

Posted by: MIJS | Aug 4, 2018 6:25:13 PM

Professor Berman, Cuyahoga County exemplifies your concerns. In the last 18 months prosecutors here have increased their requests for discretionary bindovers of juvenile offenders into adult court by 400%. Unlike the cases subject to mandatory bindovers, once the discretionary kids are deemed not amenable to juvenile jurisdiction, there is no way a Common Pleas Court judge can send their case back should they find adult jurisdiction inappropriate.

Posted by: Cleveland Attorney | Aug 6, 2018 11:04:28 AM

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