THE BLOG
03/10/2009 12:18 pm ET | Updated May 25, 2011

Juvenile Injustice: The Scandal in Pennsylvania Is the Tip of an Ugly Iceberg

March 10, 2009, The Citizen's Voice, Wilkes Barre, PA

The recent scandal involving Pennsylvania juvenile court judges Mark A. Ciavarella Jr. and Michael T. Conahan is the tip of an ugly iceberg.

Ciavarella and Conahan have pleaded guilty to charges that they took kickbacks totaling $2.6 million in return for sentencing minors to incarceration at private detention centers, even when such sentences were not warranted by the facts. In a typical case, a stellar 17-year-old high school student was ordered to serve three months in detention simply for posting a spoof about her vice principal on her MySpace page, even though the page clearly noted that the material was a joke.

Over a period of five years, upwards of 2,500 young people may have been sentenced unjustly to terms ranging from a few months to several years, with parents charged substantial fines in many cases. Some of the juveniles are still incarcerated--a potential nightmare for authorities to try to sort out.

The case has prompted gasps from public officials and considerable news coverage, so perhaps you've already heard about it and have drawn your conclusions. But here's what you don't know.

The juvenile justice system was ill-conceived from the start and has unjustly incarcerated millions of young people, not just a few thousand. The U.S. system, and in fact virtually all juvenile justice systems in countries that now have such systems, were set in motion in 1899 in Cook County, Illinois, by Jane Addams and her wealthy, upper-class colleagues at Hull-House, a Chicago institution dedicated to social reform.

Documents from that era, including Addams' own writings, make it clear that the agenda of the new court system was not entirely benign. One of its main reasons for being was to give authorities virtually unlimited power to sweep the offspring of poor immigrants off the streets of major cities, where they were considered an ugly nuisance to America's morally superior affluent. New crimes by the dozen were invented for the young that had never been considered crimes by adults: playing ball on the street, staying out late, consorting with older men, truancy, immorality, and the all-encompassing "incorrigibility"--all basically crimes against the self, not others--often resulting in standard sentences of three years or more.

Addams also believed that America's sinful, "tender" young people could be returned to the right path by being housed in reformatories staffed entirely by nurturing women. The tough, angry teens who were actually being incarcerated had other ideas, and by 1928, when the juvenile justice system had spread to all but two states, reformatories had become harsh, crowded, understaffed, underfunded prisons, complete with manacles and whippings. An extensive 2001 study by the National Research Council confirms that the system as a whole is still disgraceful today, producing "negative effects on behavior and future developmental trajectories."

The most egregious aspect of the juvenile injustice system was that it stripped minors of their constitutional rights, including the right to a trial by jury and the right to counsel. Even as of 1960, fewer than 5 percent of juvenile offenders were represented by attorneys, with most hearings taking place in secret and no transcripts or recordings made. The issue finally came to the attention of the U.S. Supreme Court in 1967 when it heard the plight of Gerald Gault, a 15-year-old from Arizona who had been sentenced to six years of detention for placing an obscene phone call to a neighbor. There were no witnesses at his hearing--not even the neighbor who had made the complaint--and had Gault been an adult, the maximum sentence would have been two months in jail and a $50 fine. In a scathing decision, the court aptly called the juvenile justice system "peculiar," but it did not broadly restore constitutional rights to minors, leaving open the gaping loopholes exploited by Ciavarella and Conahan. Only about half of the defendants in Ciavarella's court were represented by counsel, for example.

If anything, things have gotten worse since 1967. The 1974 federal Juvenile Justice and Delinquency Prevention Act created links between the juvenile justice, mental health, and child welfare systems which have made it increasingly easy to keep young people locked up for years, bouncing from one system to another in what experts call "unplanned" incarcerations.

We need one system of justice and one set of crimes, and no one should be deprived of constitutional rights because of age. The Fifth Amendment plainly says that "no person" shall be deprived of due process of law; what a tragedy that our society has so often ignored the breadth and power of that language. As for youth laws, it offends common sense to define staying out late to be criminal just because someone is under a certain age. A crime should be defined by its harmful effects on people or property, not by the age of the perpetrator.

But wouldn't a single justice system put our tender young people at special risk? Not at all. The adult justice system offers far more resources and protections than any juvenile system, and punishment in the adult system is, at least in theory, always tempered by concerns about competence. When a perpetrator is found to be mentally ill, retarded, or senile, penalties and housing are adjusted accordingly. In that respect, where individual young people have special needs, they are far better off in the hands of the adult system--and the U.S. Constitution.

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The former editor-in-chief of Psychology Today, Dr. Epstein is the author of The Case Against Adolescence: Rediscovering the Adult in Every Teen and thirteen other books. You can find more information at http://TheCaseAgainstAdolescence.com.