Hallelujah!

It’s about time someone wrote a book that informs readers about the unadulterated truth of how we treat kids in America. It isn’t flattering, and worse, the future doesn’t look promising despite reform movements peppered across our nation.

In his book “The Evolution of the Juvenile Court: Race, Politics, and the Criminalizing of Juvenile Justice,” Professor Barry C. Feld employs a historical approach coupled with a prolific blending of artistic and technical prose to convey that policymakers have allowed social structural change factors like the economy, race and ethnicity, urbanization and politics to influence how kids should be treated as opposed to doing what is in their best interest.

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As a juvenile court jurist of almost 20 years, a reformer for most of those years and an adjunct law professor, I can adamantly state that this book is not only a must read, but should be added to the reading lists of those studying juvenile justice, including law students.

Barry Feld

Among several salient takeaways, the overarching one is the political scapegoating of the juvenile court by politicians. They target the courts for not fixing what ails our youth, mostly kids of color living in poverty, when in fact it’s their own policies — conceived out of a combination of racial bias and political fears — that exacerbates what ails our youth. In other words, the juvenile courts can’t fix the problems that politicians and policymakers create.

The bottom line from this book is that our society does more to exacerbate what ails our youth than we do to help them, and the more we do unto them, we do unto ourselves. This book makes clear that our juvenile justice system has become more like “The Killing Fields,” where too many kids are demonized for their god-given impulsive nature, and their future is slaughtered for a pound of flesh.

‘Dog whistle politics”

The Evolution of the Juvenile Court: Race, Politics, and the Criminalizing of Juvenile Justice | Barry C. Feld | NYU Press | September 2017 | 392 pages

Feld draws a parallel between the “Red Scare” of the ’50s, when Sen. Joseph McCarthy exploited America's fear of communism, and the “superpredator” youth scare of the ’90s, when politicians exploited people’s fear of an onslaught of violent youth crime. Both scares took partial truths and exploited them to create the belief that if we don’t do something drastic now, bad will happen to all of us.

Both resulted in creating more harm than good for individuals and for the public in general.

Feld refers to this as the “politics of race and crime” to describe how politicians seized the rising crime rates among youth in the ’80s and early ’90s to manipulate mass media. These politicians sensationalized violent youth crimes to scare the public by describing a wave of “superpredator” kids coming to maim, rape and kill our mothers, fathers, sisters and brothers.

This period, says Feld, is commonly described as the “get tough era.” Many have written about it, but Feld’s assessment includes the ugly exploitation of race to gain this political advantage. He superbly lays out how conservative politicians exploited people’s fear to garner support for mass incarceration of adults and juveniles alike by exploiting the rise in crime rates, which they implicitly attributed to blacks.

He references Ian Haney López, who coined the phrase “dog whistle politics” to describe how the tactics of conservative politicians — using code words that triggered racial animosity — simultaneously allowed for “plausible deniability by crafting language that lets the speaker deny that he's even thinking about race.” These code words exploited latent racial anxieties to garner support for their “law and order” agenda by blaming individual black people for making poor choices without any consideration that choices are influenced by conditions affecting the person.

What I glean from Feld’s assessment is that it doesn’t serve the interest of conservative politicians to re-examine the policies that create the structural conditions that produce poverty and crime: To do so would require a shift in social and economic policies in America that are contrary to their political interests.

These politicians would rather project the causes of crime on the personal choices of individual blacks than address the real causes. Those voters harboring racial animosities were the most excitable and feared the worst of the black “superpredator” kids when they heard politicians utter code words for blacks like “welfare queen,” “entitlement society” and more.

What is ironically sad, as Feld observes, is there are more whites collecting welfare than are blacks. Too many whites believe they are financially supporting blacks through welfare when in fact it’s the other way around.

‘Superpredator’ myth

Worse is the media that sensationalized these coded words. Feld points to a study conducted of media outlets that reported stories about poor families. It revealed they chose to feature black families in their coverage 59 percent of the time, even though only 27 percent of families living below the poverty line are black. The same results were found involving coverage of welfare, revealing that 60 percent of families portrayed were black, even though only 42 percent of families receiving welfare are black.

Politicians, with the aid of the media, used the same tactics to appeal to the racial animus of whites when Republicans declared a war on drugs in the ’80s. Feld cites the sharp increase in media coverage that depicted drug users and dealers as black and bombarded television viewers with images of “crack whores” and “crack babies” that “confirmed the worst negative stereotypes of poor inner-city residents.” The disparities in how we treat blacks versus whites are so apparent, he writes, that one only need contrast our approaches to the crack cocaine epidemic affecting mostly blacks in the urban areas of the ’80s and the opioid epidemic affecting mostly whites in rural America today.

The book highlights criminologist Michael Tonry’s argument that the Republicans’ war on drugs was a cynical approach that had “a disastrous impact on the black community while doing little to alleviate the causes of drug use or crime,” while today conservative politicians take a softer approach by sympathetically portraying whites addicted to heroin and opioids.

And so, the slaughter of future black lives began with the passing of legislation to “avert the coming wave of violence” by creating automatic transfer laws and prosecutorial direct filings to treat kids as adults, or building more juvenile secure facilities to detain more kids and hold them longer.

Never mind that the prediction of “superpredator” youth never came. Never mind that the crime rate has declined dramatically since the mid-’90s. What did matter was that the harsh policies enacted to stave off a mythical Armageddon resulted in a mass incarceration of black youth and adults, and we continue to reel from its devastating effects.

Feld keenly points out that we continue this slaughter after 23 years despite knowing that the “superpredator” scare was a myth, and that the juvenile crime rate has been declining. He leads the reader down a well-researched and documented path that would cause any reasonable person by its winding end to question the motives of these mostly conservative politicians who continue their support of these harsh laws, notwithstanding that the reasons for creating them have been  proven to be a myth.

Life in prison without parole

This book asks the rhetorical questions: If the motivation for incarcerating so many juveniles is not grounded in a real threat, was it always about race, and does it continue to be about race, and do the rest of us go along with “dog whistle politics” because our implicit biases prevent us from seeing the truth?

The reader can glean that what we need to expose the truth are more of what many conservative politicians describe as naïve and unpretentious-sounding people shouting that the emperor is parading around in his birthday suit. Doing what’s right for kids may look naïve to the politician, but to those of us who specialize in juvenile justice it is our reality.

Feld understands the dynamics of policymaking in a democracy that often produces unintended consequences. He points out that politicians seek acceptance to get elected, and to that end they appeal to the intuition and common sense of the masses.

The harshest of all penalties imposed on youth during this “get tough” era was the automatic transfer laws subjecting kids to life in prison without parole (LWOP). Fortunately, as Feld points out, the U.S. Supreme Court in Roper v. Simmons, Graham v. Florida and Miller v. Alabama “recognized what get tough legislators did not—‘children are different’—and halted the most extreme sanctions.”

Notwithstanding this relaxation of harshness, the court in Miller mandated judges to conduct individualized assessments to determine youthful mitigation. But Feld raises a valid concern that Miller provided minimal guidance to judges, and the guidance they did provide invited subjectivity, making it difficult to implement these assessments “fairly and consistently.”

Feld makes a well-reasoned case that states should recognize a categorical prohibition against LWOP based on youthful mitigation and adopt a “youth discount” system in lieu of subjective individualized assessments to determine adult culpability. A youth discount would account for the diminished capacity of kids and would promote truth-in-sentencing for kids by including a constant factor that “Youth who produce the same harms as adults are not their moral equals and do not deserve the same consequences.” This, Feld says, is not an excuse for criminal actions because it does hold the youth accountable, but does so by proportioning punishment to their diminished capacity.

Defender programs most crucial

Despite the politics of race and crime employed by most conservative politicians that has put a wrecking ball to our juvenile justice systems, Feld does shine a light, albeit small, to recent reforms taken on by states like my own in Georgia. Notwithstanding these reform efforts, he observes that it’s not enough to slash commitments, save taxpayer costs and reinvest the cost savings into evidence-based programs. Not to diminish the positive impact of these reforms, he makes a persuasive point that more savings could be realized if more emphasis were placed on improving legal representation for youth.

For example, Feld cites the underfunding of defender programs, which create high caseloads that in turn dilute the effective assistance of counsel for children. This is compounded by a lack of funding for investigators, evaluations and other tests to contravene the state’s case, and lack of appellate support to challenge injustices.

I cannot agree more with his observation that “The lack of appeals from juvenile courts retards the development of substantive law. Our juvenile justice systems will never grow and become healthy if we don’t give appellate courts the opportunity to expound on issues that will expand the law on justiciable issues.” This will never occur unless we take In re Gault seriously and dedicate funding sufficient to defend youth charged with crimes, especially those facing removal from their homes.  

Feld’s book begs the question of how many of our youth are sucked into a juvenile justice system who have no business inside but are there because they lacked adequate legal representation. The more kids we allow to enter, the more costly our system. When we allow low-risk kids to enter a high-risk system that makes them worse, the costs begin to outweigh the benefits.

As a law professor, Feld knows full well that the “rule of law” is the bedrock of our system of American jurisprudence, but he is also aware that from time to time we are confronted with changed circumstances that call into question the legal precedent we have followed for years.

Plessy v. Ferguson is a case in point. The Supreme Court held in Plessy that segregation was constitutional by rationalizing that separating our children based on race was not discriminatory provided the treatment was equal in both settings. We look back at this decision with what we know today and say, “What the hell were they thinking?”

They were thinking how they were living, a culture that had recently ended slavery by a violent civil war that left many people bitter and angry. The next best thing to slavery was segregation, and so the policymakers of the day gave birth to “Jim Crow” laws to assimilate the culture of slavery and appease the angry and bitter white folks.

Their thinking doesn’t justify their actions, the same point Feld makes in relation to our harsh treatment of kids during the superpredator scare. Conservatives then reacted to the sudden rise in violent crime just as Jim Crow enthusiasts did when slavery ended. Both imposed harsh and disproportionate laws to stave off what they feared and “to restore a previous halcyon social order” as Feld describes it.

Bench trials vs. jury trials

But he raises another point — that what was constitutional then is no longer constitutionally viable today — by pointing to a juvenile’s Sixth Amendment right to a jury trial. Despite the Supreme Court’s decision in Duncan v. Louisiana that guaranteed adults a right to a jury trial if they are facing more than six months of incarceration, the court held in 1971 in the case of McKeiver v. Pennsylvania that juveniles are not entitled to a jury trial primarily because juvenile courts operate with a rehabilitative design more so than punitive, and believed that judges can ascertain the facts as accurately as a jury.

Feld’s point about the issue of jury trials can be summed up by the immortal words of Bob Dylan, “The times they are a changin’.”

First, what we already know about the “get tough” era is that in many states youth are facing greater punitive sentences and for longer periods of time that turns McKeiver on its head. In Georgia there are more than 30 felonies for which a kid is facing secure confinement for up to 18 months or five years. These facilities are prisons. They have razor-wire fences, and they look like adult correctional facilities. It really doesn’t matter how much rehabilitation is attempted in these prisons, the fact remains that upon their release 65 percent reoffend and return, and that is not rehabilitation.

Second, Feld challenges the notion in McKeiver that judges can determine the facts just as accurately as juries. That is simply not true, he says, and he is right. Studies show that although “juries and judges agree about defendant’s guilt or innocence in about four-fifths of criminal cases, when they differ, juries acquit more often than do judges.” The problem with bench trials in juvenile matters, says Feld, is that judges, unlike jurors, hear from the same police officers, probation officers and from the same kid and have formed opinions of their credibility or character, and these factors may rule the day over the facts of the case.

Let’s just say that Feld has this judge rethinking the way evidence is evaluated and the credibility of witnesses are weighed.

When it comes to losing one’s liberty for an extended time, our founding fathers created a jury system to take into account more than just a factual evaluation, he says. Jurors also assess culpability and are more inclined than judges to consider factors such as “the reasonableness of a response to provocation, the perceived need for self-defense, immaturity, and the like.” Jurors are inclined “to carry the community’s norms and sense of justice when they apply the law to the facts.”

Poverty the major factor

Among other reasons that kids should have a right to a jury trial in serious matters is something I am too well familiar with: the argument made by prosecutors and probation officers alike that the kid needs help and the court is the only one to make that happen. Forget about guilt and innocence. It’s like the days before Gault when the court operated under the parens patriae doctrine, and that’s exactly the point Feld makes —  it doesn’t matter what Gault did to protect the due process rights of kids if parens patriae behaviors are still allowed to occur. Sure, it's better, but we’re still not there, and a lot of that has to do with depriving kids the right to a jury trial when they are facing lengthy sentences.

But Feld makes clear that it's not enough to do system reform to bring about evidence-based practices to the local courts. This brings me to another takeaway, which is the biggest problem feeding our juvenile courts — poverty.

Feld makes a bold statement, but one that he can support with evidence: “Harsh as it may sound, child poverty is the United States’ public policy.” (P. 285)

There is a reason, he says, that our child poverty rate is double or triple that of most European countries. He points to our economic policies, which resist social welfare programs, as the single greatest factor driving our children to “comprise the largest age group in poverty …” Consider that “countries that spend more on social welfare and have lower levels of income and wealth inequality also have lower crime rates and levels of imprisonment.”

Feld points out that earned income “is the single best antidote to child poverty and influenced by many government policies” such as tax codes, housing subsidies, minimum wage, job training and other similar policies, but in comparison to other developed nations, the United States provides fewer resources that can reduce child poverty. Yet, he observes, “Compared with other developed nations, the United States provides fewer resources or income transfers to reduce child poverty, especially for female headed households whose children are most vulnerable.”

He correctly reveals how child poverty is the result of structural and political conditions arising from our “political-economic policies, wealth and income inequalities, and racial barriers.” What is sad, he says, is that “To hold young children responsible for their parents’ shortcomings offends basic decency and morality.”

Despair and decency

Feld offers ideas on what can be done to help alleviate child poverty, which in turn would reduce juvenile delinquency and eventually adult crime, but, sadly, he has serious doubts that we have the courage or the resolve to do what ought to be done.

Why, you may ask?

He sums it up quite simply by saying, “Even though white children comprise the largest number of children in poverty and would benefit most from programs to alleviate it, too many white people and public officials resist structural reforms to aid the poor because blacks and other children of color would benefit disproportionately.” In essence, he says that we fail the “my child test,” which occurs when we view other people’s kids, especially those kids of color, with “suspicion, hostility, and as potential threats to their own children’s well-being.”

Feld is adamant, and I agree, that we will never overcome child poverty and the traumatic impact it has on our children, which in turn leads to crime, until we acquire the political will and leadership to break down the structural inequalities that are the root causes of child poverty in America. But this will likely never occur, he says, because “Americans in general, place greater emphasis on individual behavior and cultural factors, than on structural inequality to explain the differences in people’s circumstances.”

As I have said in the past, and Feld has accentuated in his book, people don’t commit crimes because of the color of their skin. They do so because of their circumstances, which in America has been exacerbated by our economic and political policies.

He concludes his book expressing his “sadness and anger” for having studied juvenile justice for 40 years and observing how the plight of two generations of children have worsened. He describes his feelings of despair over the unwillingness of politicians to act and do what's right for children, but still holds on with “fervent hope that future, more enlightened generations of Americans will look back with shame on the contemporary child abuse inflicted by the state.”

His last words in the book poses the same question to our politicians today and of the future that was posed to Sen. Joseph McCarthy, whose politics of fear caused the end of careers and even lives of good people.

“Have you no decency, sir? At long last have you no sense of decency?”

Steven Teske is the chief judge of the Juvenile Court of Clayton County, Georgia, is the national chair of the Coalition for Juvenile Justice and won the 2018 leadership prize from the Juvenile Law Center.