19th century thinking

In my view, Gaston must be doing something right, otherwise why would the DA's office be filing an appeal with the Nevada Supreme Court to have his decision reversed? Also, why was there a concerted effort to get rid of Gaston as Juvenile Court Judge? The "official" reason (given in a September 8 article in the Review-Journal) was that Gaston "failed to consult with other justices before making major decisions" and that some thought "it was simply time for a change in leadership." This sounds to me like a typical "public relations" spin - meaning that there is a lot more going on that the court is willing to share with us (sort of like the old favorite "personality conflict"). Judges Steele and Hardcastle will hear juvenile cases starting January 2. The unofficial reasons are not known, but it seems rather obvious that there are serious philosophical differences between Gaston and other judges as to how to respond to juvenile offenders. It is a safe bet that Steele and Hardcastle fall somewhere to the more conservative end of the spectrum

In all the hoopla over this and related cases, Gaston's critics are ignoring something very important: Gaston is right and has plenty of evidence to back him up, as far as the merits of getting tough with juvenile offenders by certifying them as adults. The facts, brought out by numerous studies in recent years, are simple: youthful offenders who get certified are far more likely to get worse and continue in a life of crime, than comparable offenders who remain within the juvenile justice system. Apparently the DA's office doesn’t bother studying the research evidence on this matter. They'd rather use the usual get tough rhetoric. In fact, it is interesting to note that Gaston has presented a lot of evidence in his courtroom, while the district attorneys sit silently. Until now. It will be interesting to see what the Nevada Supreme Court will do. Will they bother looking at the research evidence or rely upon worn out get tough clichés?

Elisabeth Manion is an English teacher who believes in doing something most adults rarely do, including many who work within the juvenile justice system: listen to kids. In her letter she notes that every year she assigns her students writing assignments describing some of their experiences with the family court. The horror stories are numerous, and very familiar to those of us who have either worked with kids or studied the problem. What she relates brings up some of the many contradictions within the juvenile justice system - in this particular case, the family court system. The problem is that here we have a system, ostensibly set up to act "in the best interest" of the child, that in fact often sides with those who have the power in a family relationship: the parents or guardians, while systematically ignoring the wishes of the children involved. Ms. Manion has heard their pleas, their cries for help, in the essays they write (often cleverly masking their pain, something children have learned to do so well). They tell about no one in the family court bothering to really listen to them, in confidence, away from controlling parents and other authority figures.

Manion suggests that the court set aside some time for judges to hear kids tell their stories, about why they can=t live with their abusing parents or other guardians. She suggested Friday afternoons, noting that, in her words, "one could shoot a cannon through the building at Pecos and Bonanza and not hit a courtroom with a judge in it on Friday afternoons - save for Judges T. Arthur Ritchie, Jr. and Robert Gaston." Ms. Manion suggests that such a talk may not be a cure-all, but "at least the child will feel he has truly been heard by someone besides their impotent English teacher."

The contradiction should be clear: in a nation that professes to be "child-centered," children suffer the most abuses, by caretakers and a judicial system ostensibly looking after the children's best interests. The juvenile/family court system is beset with numerous problems - yet with all of its faults, it is still far better than the adult counterpart as far as dealing with youthful offenders. In order to better understand this problem, a brief history is in order.

In the "Best Interest of the Child"?

Efforts to separate children from adults as far as criminal matters are concerned began in earnest in the early 1800s, starting with the founding of what were known as "houses of refuge." These were the first in a long line of "correctional institutions" that were supposed to reform youthful offenders and potential offenders. By "potential" offenders I mean just that: many had believed that the way to prevent adult criminality was to "nip in the bud" the problem before it ever got that far. Reformers of the early nineteenth century looked closely at the life histories of many convicts locked up in the brand new prisons of the day and discovered that their "careers" in crime usually began with non-criminal activities and negative social circumstances.

Unfortunately there was a very poor, non-scientific logic to their rationale: they confused cause and effect. They assumed, wrongly, that just because something occurred in the past for these offenders then, ergo, if someone at a young age has that "something" then they are headed for a life of crime. But these reformers, like so many to follow, went ahead with their plans to "nip in the bud" the criminals of tomorrow.

The first of these institutions was the New York House of Refuge, opened in 1824. It was an imposing structure (located on an island in the New York harbor) with a curious name. The term "refuge" suggested that the youths sent there would be protected from the evils of the surrounding world, not unlike bird sanctuaries would protect wild birds. The majority of those sentenced to these refuges did not commit any crime. They were committed for things like vagrancy, begging, being "incorrigible,: coming from an "unfit" home, etc. Today we call these "status offenses."

As would occur over and over again throughout the history of such institutions, those who found themselves locked up were consistently from the poorer segments of the society and/or ethnic and racial groups. The New York House of refuge was filled with mostly Irish youths; late 19th-century institutions (like "reform schools" and "industrial and training schools") would be filled up mostly of other European immigrants. (The 20th century would find these institutions filled increasingly with racial minority youth.)

The houses of refuge, like other institutions, were suppose to be acting in "the best interests of the child" and were suppose to be places where youth would receive "care and treatment." To the contrary, as so many exposé’s would show, they were usually brutalized. Non-criminals and petty offenders were too often turned into hardened criminals in the process.

The Legacy of Parens Patriae

The justification for such bold interventions came from a doctrine known as parens patriae, a carry-over from early English society where the king, in his presumed role as the "father" of his country, had the legal authority to take care of "his" people, especially those who were unable, for various reasons (including age), to take care of themselves. For children, the king or his authorized agents could assume the role of guardian to be able to administer their property. By the nineteenth century this legal doctrine had evolved into the practice of the state's assuming wardship over a minor child and, in effect, playing the role of parent if the child had no parents or if the existing parents were declared "unfit" - determined almost solely by those in authority.

This doctrine was upheld in a famous 1838 case known as Ex Parte Crouse. This case involved a 16-year-old girl named Mary Crouse who, without her father's knowledge, had been committed to the Philadelphia House of Refuge by her mother on the grounds that she was "incorrigible." Her father argued that the incarceration was illegal because she had not been given a jury trial. The Pennsylvania Supreme Court ruled against the father, stating that "May not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae or common guardian of the community?" Further, the Court observed that: "The infant has been snatched from a course which must have ended in confirmed depravity..." No evidence was brought forth to support such an assertion - because there was no evidence. The Supreme Court relied solely on the testimony of the managers of the refuge.

Some 40 years later a case in Chicago once again challenged the parens patriae doctrine, but this time it was rejected. The Illinois Supreme Court ruled that a boy=s incarceration in the Chicago House of Refuge was unconstitutional because he was there not because of a criminal offense, but because he was "in danger of growing up to become a pauper." The boy was being punished, not helped, said this court. These justices saw very clearly what the United States Supreme Court would see about 100 years later in the landmark decisions in Kent v. U.S. and In re Gault in the 1960s, namely, that just because one is under a certain age, does not mean that his "best interests" are always being served and, moreover, that the Bill of Rights do not apply.

The Child Savers and the Juvenile Court

Much has been written about a group known as the "child savers" who ushered in numerous reforms connected with children's issues, the most famous of which was the founding of the Juvenile Court. Like their early 19th-century counterparts, the child savers wanted to focus on "potential delinquents" but expanded their efforts to those already heading for a life of crime.

The result of their efforts was the establishment of the juvenile court. The new legislation of the period (first in Chicago in 1899, then elsewhere) created new categories of offenses and extended the state's power over the lives of children and youth. Because of the O'Connell case, only children who had committed felonies could be sent to reform schools. A method of "nipping the problem in the bud" was needed. The logic the reformers used was to define the new juvenile court as a sort of "chancery court," upon which the doctrine of parens patriae was based. Only in such a court, argued the child savers, could "the best interests of the child" be served. The 1899 Illinois Juvenile Court Act simply removed from the jurisdiction of the criminal courts all cases involving juveniles (at first the upper age was 16, later it was raised to 17) and then to formally establish the juvenile court.

The judge of the juvenile court was to be like a benevolent, yet stern father. The proceedings were to be informal without the traditional judicial trappings. There was neither a need for lawyers nor constitutional safeguards because first of all the cases were not "criminal" in nature and second the court would always act "in the best interests of the child." The court was to be operated like a "clinic" and the child was to be "diagnosed" in order to determine the extent of his "condition" and to prescribe the correct treatment" plan, preferably as early in life as possible.

Ben Lindsey - a Model for the Ideal Juvenile Court Judge

Part of the rationale for the new court system made sense, for some believed that a totally separate court sensitive to the needs of children was needed. After all, the adult system was aimed at punishment, with little or no thought to why people were committed crime in the first place and no attempts to address such causes. The juvenile court would seek to address some of these causes and try to correct them. Perhaps the best exemplar of this approach was Judge Ben Lindsey of the Denver Juvenile Court. Here was a man who took the ideal of the juvenile court seriously. He would hold informal hearings in his office, where he would literally sit down with some of the kids brought before him and listened to their problems. He spent a lot of his own time visiting the homes and the hang-outs of these kids, trying to get the feel of what their life was like. In this regard he was unique among other juvenile court judges during this era. Evidence collected from several studies supports his anti-institutional attitudes, for his court was the least likely of all juvenile courts in the country to commit kids to institutions and the most likely to grant probation or find alternative dispositions.

In many ways Judge Gaston is like Ben Lindsey. Unfortunately Lindsey was eventually driven out of office by his enemies, who did not like his "soft" approach to young offenders. Now the same thing has happened to Judge Gaston.

In time, juvenile courts all over the country lost sight of Ben Lindsey's ideal - along with the ideal of so many reformers. It became more of a "court of law" - hence aimed at punishment - than a "social work" agency attempting to get to the bottom of the problems facing youth and their families. This is not to say that many working within its doors are not concerned with the welfare of children and are not trying to live out the ideals of Ben Lindsey. The problem is that far too often, when treatment runs up against punishment/control, the latter wins out. This is what is behind the efforts to certify some kids as adults.

Treatment versus Punishment

In recent years we seem to have taken a step backward in time in our rush to "get tough" with juvenile offenders. Part of this getting tough is to certify certain youths as adults (often called "waiver of jurisdiction"). There are many unproven assumptions about this process, include the erroneous belief that by certifying a youth as an adult he will "straighten out" and decide not to get into further trouble. Such an authoritarian stance (filled with a lot of macho threats and the use of fear) typically produces just the opposite (as illustrated so well in the movie American Beauty with the way "The Colonel" treated his son). In fact, such a policy is rather stupid. Instead of "getting tough" we need to "get smart." Sending youths to the adult system is, in a way, being "soft on crime" since all one has to do is their own time since few demands will be placed upon them to get better.

There are also a number of interesting contradictions to certifying a youth of 16 or 17 (some are recommending even younger ages, as low as 10 or 12 in some states), not the least of which is the curious fact that a youth can be deemed an adult as far as his criminal behavior is concerned, but not an adult as far as other rights and privileges that come with adulthood are concerned: getting married, dropping out of school, joining the military, going into debt, being able to drink, smoke and gamble, etc. They are "old enough to do the time" (a simple-minded phrase if there ever was one) after "doing the crime," but not old enough for all these other adult things!

But certain people in the DA's office want to use certification as a policy. But I say to them, borrowing the words used by actor Cuba Gooding in the film Jerry McGuire ("show me the money!") "show me the evidence" in support of certification! Show me what you are basing your policy on, other than blind faith. Is this policy based upon sound, scientific evidence from research? Or is this based upon theology? To Bob Teuton and fellow District Attorneys, plus any others supporting certification, prove me wrong! And for those voting to get rid of Judge Gaston, shame on you! Change your mind and come into the 21st century, rather than go back to the early 20th century.

Update: Gaston was removed from his duties at the juvenile court and is currently a judge in another court in Las Vegas. For further reading on the history of the juvenile court see references after the previous article.