Why was Mike Brown standing outside of the huddle watching his players listen to an assistant at a crucial point at the end of game 4? I feel like this is unprecedented.
Also, f Anderson for thinking he was so crucial to the game that he could not foul out in overtime - leading to Howard taking over. Great job.
Thursday, May 28, 2009
Tuesday, May 19, 2009
24 bars
When I die how many will stay in my wake
I pray the lord my soul you’ll take
Influential, I’ll be essential
Always mental, prodigious with a pencil
Show the kids where I went to
To figure out what I been through
Ask who I’m into
But it’s your own breakthrough
Cause religion aint what makes you
It’s what you do from this view
Detach from all you think is due
Enlightenment becomes attainable
Cause what you have is only temporary in time
A foolish mind thinks there’s always something to find
Caught up in a race with no end in sight
Uncertainty about the future blinds your mind with fright
See, dog, the way leads the way, you don’t have much to say
Put down the worries of the future, adopt the pleasures of today
Because at some point, you’re gonna wish you had
Thinking to yourself, man I turned into my dad
Once a young lad, but I only thought about the bad
It made me lose my youth, now all I can think about is sad
But be glad; life can be led on your terms
Life is a dance, let yourself go and enjoy the turns
I pray the lord my soul you’ll take
Influential, I’ll be essential
Always mental, prodigious with a pencil
Show the kids where I went to
To figure out what I been through
Ask who I’m into
But it’s your own breakthrough
Cause religion aint what makes you
It’s what you do from this view
Detach from all you think is due
Enlightenment becomes attainable
Cause what you have is only temporary in time
A foolish mind thinks there’s always something to find
Caught up in a race with no end in sight
Uncertainty about the future blinds your mind with fright
See, dog, the way leads the way, you don’t have much to say
Put down the worries of the future, adopt the pleasures of today
Because at some point, you’re gonna wish you had
Thinking to yourself, man I turned into my dad
Once a young lad, but I only thought about the bad
It made me lose my youth, now all I can think about is sad
But be glad; life can be led on your terms
Life is a dance, let yourself go and enjoy the turns
The Perils of a Colorblind Society
Here is another paper without footnotes. Wrote this on the last day of finals, so that explains any shittiness (aside from me being shitty). When thinking about race in our society, many adhere to the belief that race should not matter. I fundamentally disagree because our country was built on widespread structural racial distinctions, and putting one's head in the sand regarding racial matters will only perpetuate our sordid history. Ignorance is not bliss. This paper looks at this idea from a legal perspective. I wrote this for one of the preeminent scholars on race in this country, so apologies for any turgid legalese.
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According to its proponents, the colorblind ideal is genuinely egalitarian. By disavowing classifications drawn on the basis of race, we affirm the moral irrelevance of race and honor equal opportunity. If race is truly irrelevant, why do blacks continue to stay at the bottom of nearly any economic measuring device? The post Civil War Amendments were passed in an effort to attempt to put blacks in this country on equal footing with their white counterparts. The Supreme Court since then has changed the way we look at these Amendments and equal protection in general. Have we progressed as a society enough to where race does not matter? The Court thinks so. In reality, this supposed neutrality by the Court ends up harming blacks in many ways. This paper will trace the roots of the anticlassification principle and discuss how it is inimical to the true goals of equal protection.
THE BROWN LINE OF CASES
Like many legal principles, a healthy understanding of the law from its nascent stages is vital. In taking this approach, one can begin to understand the core principles and legal justifications behind the law as well as how it has changed over time. Perhaps arguments supporting the victorious side have fallen on deaf ears or have been manipulated over time to mean something else. Either way, a sound understanding of the early law will enable one to see where the law is heading and potential implications of following the status quo.
In 1951, thirteen parents on behalf of twenty students filed a class action suit against the Board of Education of Topeka, Kansas. These parents were concerned with the law set forth in Plessy v. Ferguson in 1896, which stated separate but equal treatment of races did not violate the Fourteenth Amendment. The parents asserted this system of racial separation, while masquerading as providing separate but relatively equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans. The Plessy Court said segregation did not violate the Equal Protection Clause because it inflicted no legally cognizable harm on blacks. The Brown Court considered that argument and, after remarking on the significance of educational opportunity in modern life, said, “To separate children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” This language seems to support the idea that the Court was interested in the harm done to black schoolchildren. The Court went on to say, Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.
This Court presently interprets this to mean the Fourteenth Amendment prohibits any classification based on race, but there is no language from the opinion stating this contention. In fact, a look at the era surrounding Brown suggests leaving this language out was intentional. Contemporaneous with Brown, Fifth Amendment case law dictated close scrutiny of government policies classifying on the basis of race. Bolling v. Sharpe, a case decided along with Brown, said segregation in District of Columbia school systems violated the Fifth Amendment’s Due Process Clause. The Court, in mentioning racial classification in Korematsu and Bolling but not Brown, appears to have done that purposely. The Brown opinion, therefore, can properly be read not as condemning racial classification, but as addressing the consequences of separating schoolchildren in a specific institutional context. Other evidence of this comes from the Court refusing to hear a challenge to Virginia’s anti-miscegenation law in Naim v. Naim. If the Court really did announce classification based on race is presumptively invalid in Brown, surely it would have decided to hear a case dealing with the prohibition of marriage on the basis of racial classification. It is difficult to reconcile the present view that Brown eliminated any classification based on race with the circumstances at the time of the case showing the Court did no such thing. Perhaps the Brown Court meant racial classifications should be looked at on an individual basis to determine if they are appropriate. No matter what one thinks, there is no language from the opinion saying classifications based on race are presumptively invalid. Continuing this analysis of history will help show what Brown has come to mean today.
An incredible amount of controversy arose from the Brown decision. This controversy centered around the rationale adopted by the Court in its decision. As stated above, the Court overturned Plessy v. Ferguson on the idea that there was recognizable harm to black children. Separating black children created a sense of inferiority, which caused harm; ultimately meaning the practice was unconstitutional. The Opponents of Brown focused on this harm aspect in their criticism. In finding this separation harmed black children, the Court cited several studies in what is famously known as Footnote Eleven. Harm then became the axis on what Brown turned. If critics could diminish the claims of harm, they felt they could diminish Brown. They did just this by providing scientific research showing it was not segregation that harmed black children, but integration. By turning the debate to harms, critics asked what and whose harms are to be protected. One can think of many harms, so multiplying the harms to which the law might attend was a way of putting in issue the question whether those interpreting the Constitution ought to treat the dignitary injuries associated with group subordination as constitutionally cognizable harms at all. Courts in the South then decided several cases either directly conflicting with Brown or severely limiting it. The Naim Court in Virginia said laws prohibiting interracial marriage actually prevented harm. The Louisiana Court followed suit by saying interracial children are so harmed by societal pressures that anti-miscegenation laws are necessary under Brown. Maryland said public beaches and bathhouses could be segregated because members of each race were more comfortable with each other.
A school of thought emerged from the South described as “Neutral Principles”. This way of thinking said constitutional decisions should rest on reasons other than a judge’s sympathy for the claims of contending social groups. Herbert Wechsler’s writings paved the way for this thinking. He offered his own interpretation of Brown - racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved. To Wechsler, Brown was a case about the subordination of one race to another. To him, antisubordination was not constitutionally neutral and Brown was incorrectly decided. The issue was about choosing between two groups; something the Court should not be allowed to do. The Court should look at groups based on neutral principles and not choose one over the other. Competing views arose. Louis Pollack argued Brown created a legal presumption against all legal restrictions which curtail the civil rights of a single racial group. The Equal Protection Clause therefore prohibited state policies that inflicted the kinds of status harm that whites had historically inflicted on blacks. Pollack disagreed with Wechsler’s idea of neutral principles. He said the three post-Civil War Amendments were fashioned to one major end – an end to which we are only now making substantial strides – the full emancipation of the Negro. Looking at the post-Civil War Amendments in context, they were established to combat the long history of slavery. Therefore, in order to fully restore one historically disenfranchised group, that group’s interests could outweigh a group not historically slighted. Charles Black agreed with this point of view in saying, “When the directive of equality cannot be followed without displeasing the white, then something that can be called a ‘freedom’ of the white must be impaired.”
THE EMERGENCE OF ANTICLASSIFICATION
The 1960s ushered in new ways of thinking. The idea of anticlassification emerged with the Fifth Circuit’s Jefferson County opinion. Here, Judge Wisdom upheld the Department of Health, Education and Welfare’s enforcement of Title VI of the Civil Rights Act of 1964. In his opinion, Judge Wisdom obviated the need to follow the controversial practice of balancing harms and choosing between groups. Instead, the Court condemned state-imposed separation by race as an invidious classification and for that reason alone unconstitutional. It said, The Brown I finding that segregated schooling causes psychological harm and denies equal educational opportunities should not be construed as the sole basis for the decision. So construed, the way would be open for proponents of the status quo to attempt to show, on the facts, that integration may be harmful or the greater of two evils. Indeed that narrow view of Brown I has led several district courts into error. We think that the judgment “must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed.” The relief Brown II requires rests on recognition of the principle that state-imposed separation by race is an invidious classification and for that reason alone is unconstitutional. Classifications based upon race are especially suspect, since they are odious to a free people. In short, compulsory separation, apartheid, is per se discriminatory against Negroes.
This was an interesting opinion because it appeared to directly address the Southern opponents of the Brown decision. One interpretation is the Court devised this anticlassification framework as a way to combat the Southern argument that segregation is allowable if they can show whites are just as harmed as blacks. No matter the interpretation or reasons behind the Court’s actions, this decision, along with McLaughlin v. Florida and Loving v. Virginia, established a strict scrutiny framework for classifications based on race.
This new way of approaching equal protection shifted the lens from the harms of racial segregation to the wrongs of legislative classification. The McLaughlin Court evidenced this in its reasoning dealing with antimiscegenation laws. There, the Court did not talk about how prohibiting interracial cohabitation harmed a certain race. It did not connect the prohibition of whites and blacks being together with the history of black subjugation. Perhaps this was because the Court was used to the Southern objection to the comparison of harms approach. Instead, the Court based their decision on a presumption against racial classification. The Court followed this with its decision in Loving striking down laws against interracial marriage. Again, the Court did not address the harms on particular racial classes. It did, however, provide another layer of analysis by saying the law was unconstitutional based on failing the strict scrutiny analysis as well as because it enforced a system of racial hierarchy. This analysis of events shows a progression in the 1960s from looking at group harm to a presumption against racial classification and a demand for legislative rationality. However, Courts still understood equal protection as a race-asymmetric constraint on governmental action; they understood that the purpose of equal protection doctrine was to prevent the state from inflicting certain forms of status harm on minorities.
Questions arose regarding the constitutionality of states voluntarily acting in order to integrate. In the 1960s, Courts repeatedly held that governments could use race-specific measures to break down de facto segregation (racial imbalance) in the nation's public schools even when there was no finding of a constitutional violation. In Swann v. Charlotte-Mecklenburg Board of Education the Court said, “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.” This shows Courts viewed the Equal Protection Clause as a tool to protect blacks from harms caused by hierarchal and status-cementing measures by the government. The Clause was not violated when governments used race-based measures to combat segregation.
THE EXPANSION OF BROWN
The 1970s further developed the anticlassification doctrine and brought in new ideas of colorblindness. More questions arose regarding race-conscious efforts to enforce integration. The Court again addressed education in 1976, this time striking down race-conscious admissions at the U.C. Davis School of Medicine. In its decision, the Court brought back the notions of addressing harms to minorities. This was a landmark decision because it effectively expanded Brown to protect whites from discrimination – reverse discrimination. Powell’s opinion was also a rejection of the race-asymmetric and antisubordination frameworks set forth in prior decisions. He even changed the perceived purposes of the Fourteenth Amendment by saying it is “no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority.” He continued, “During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities. Each had to struggle – and to some extent struggles still – to overcome the prejudices not of a monolithic majority, but of a “majority” composed of various minority groups of whom it was said – perhaps unfairly in many cases – that a shared characteristic was a willingness to disadvantage other groups. As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination.” These abrupt shifts in the purpose of the Fourteenth Amendment and the application of the Equal Protection Clause carry many implications. The Fourteenth Amendment was no longer a device to address the inequalities felt by blacks in America. State action was now “neutral” and “equal,” however disproportionately it harmed minorities, unless it employed a suspect classification or reflected discriminatory purpose, a concept the Court related back to forms of racial animus or “antipathy” that the presumption against classification was intended to constrain.
Bakke did much more than clarify the anticlassification principle; it completely changed the way the Court looks at race. Powell did this by looking at ethnicity as opposed to race in his opinion. He disaggregated the white “majority” into “various minority groups” who “struggle” against “prejudice,” while converting racial minorities into groups that shared an identical American experience with white ethnics. The color-line erased, the United States now progressed harmoniously as a “Nation filled with the stock of many lands,” and the Constitution gave equal concern to “all ethnic groups seeking protection from official discrimination.” “Ethnic groups” in Powell's usage constituted no casual synonym for race, but instead a heavily laden term signifying a conception of group dynamics in the United States in which racial hierarchy had ceased to operate. He did this by looking at history through an ethnic lens. He defined this as a nation of minorities and referred to Celtic Irishmen, Chinese, Austrian resident aliens, Japanese and Mexicans as groups protected at one point. Saying all of these groups went through some sort of adversity made it seem like race operated similarly across the board. The logic stated if the Irish and Japanese went through similar hardships, they should be treated equally. The Constitution should therefore be concerned with all ethnic groups seeking protection from discrimination. Powell destroyed the traditional views of majorities and minorities. Instead of whites being the traditional majority and blacks the minority, everyone was a minority at some point. His statement, “The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments,” confirms. He transformed society from a system of dominant and subordinate races to an amorphous plurality of ethnicities. Because this dominant/subordinate framework no longer existed, the Constitution could not choose between ethnicities. If multitudinous ethnic groups stood in relations of shifting competition forming only temporary majorities, no special solicitude for racial groups seemed required. Black was now white.
Powell did this by casting whites as just another subordinated group. He did this by disaggregating whites into discrete ethnicities, insisting these groups faced discrimination in the past, and implying the rights and remedies reserved for preferred minorities threatened white ethnic subgroups. In effect, this elite group behind hundreds of years of subjugation became just as much of a minority as blacks. In fact, these whites were being discriminated against because they were classified as such. Whites then became the victims of affirmative action.
The Bakke Court went on to change the way it thought about integration. Efforts to introduce blacks to exclusively white institutions were not referred to as integration. Powell never even mentioned the word. Instead, he said these efforts were pursuing some specified percentage of a particular group merely because of its race or ethnic origin. He continued by saying, “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” This way of thinking meant the Court looked at integration not as a practice of achieving equality, but as a discriminatory preference of blacks over whites. Breaking race down to competing ethnic minorities enabled this reasoning.
THE END OF SOCIETAL DISCRIMINATION
Bakke displayed a solidification of anticlassification principles and used them to limit antisubordination values. But a large question remained unanswered – is a government allowed to remedy societal discrimination against a race by using racial classifications? Consider the City of Richmond in the 1970s. Its population was fifty percent black, but only two-thirds of one percent of its construction projects went to minority owned businesses over a five-year span. A federal government study found racial nepotism virtually defined the construction sector, and a near total exclusion of minorities receiving dollars from local trade associations. The mayor even said, “I can say without equivocation, that the general conduct in the construction industry in this area . . . is one in which race discrimination and exclusion on the basis of race is widespread.” The City felt it should do something so it, noting this historical pattern of discrimination, created a program setting aside contracting money for minority owned businesses.
Could a city employ race-conscious measures to combat societal discrimination? The Court found in the absence of proof of a particular act, racism could no longer be used as an explanation for societal action. Societal discrimination is an amorphous concept of injury that may be ageless in its reach into the past. This is a threshold moment – taking action to alleviate societal discrimination suffered over hundreds of years is no longer allowable. This is effectively a pronouncement that racism is over in our society. To suspect whites of discrimination without specific proof is now stereotyping whites. Without this specific proof, the Court presumes racial neutrality governs social and economic life. The Court came to this conclusion by again disaggregating race into small ethnic groups and looking at them through a colorblind lens. It said, “To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Because the City was classifying whom to give money based on race, the Court found strict scrutiny applied in order to protect minorities. Which minorities though? Taking the new ethnic as opposed to race viewpoint, the Court again found it necessary to protect the white minority.
Bakke and Richmond show the Court now views whites and blacks as the same. This tabula rasa for racial attitudes in American society dictates we forget all of the societal and institutional racism from the beginning of America. Slavery, Jim Crow, poll taxes, redlining antimiscegenation laws and lynching simply no longer matter. Even with a government study and quotes from the mayor confirming racial discrimination in the area, the Court will not find discrimination unless there is specific proof of intent.
IMPLICATIONS OF THE COLORBLIND, ANTICLASSIFICATION PRECEDENT
Suppose a fire department in the South creates a new position. This new position requires education at a high school equivalency so the company decides it needs to administer a test to any applicant. After administering the test, a manager notices something does not seem right. More whites seem to be passing than blacks. The manager thinks to herself and realizes one experiment does not prove anything. The company hires new people to replace the ones who failed. They take the test too. Again, whites seem to outperform blacks. A few months later the manager tests another round of employees. The same thing happens again; blacks fail much more often than whites do. Eventually the manager realizes out of the twenty positions that require a passing score, whites occupy nineteen. A reasonable third person would look at this scenario and think something was up. This is a fire department in the South, long known for its problems with race relations. The position only requires a high school education, so the pool of applicants is not significantly limited. Why is it that so many whites are passing and blacks failing? How can we fix the problem? Anticlassification and colorblind principles limit the options available. It seems logical to take note of the historical practice of limiting minority employment and enact measures aimed at evening out the racial makeup. But these principles say it would be discriminatory to help the blacks failing the test in any way. Confirmation of this criticism came when the Court saw a case similar to this scenario. It involved a challenge to an employment exam that excluded four times as many blacks as whites applying for a position on the District of Columbia police force. The Court made clear that proving discriminatory purpose was now not only permitted, but required in all cases challenging facially neutral state action having a disparate impact on protected classes.
Now imagine a state passes strong new drug laws. It feels one drug is more caustic to the community than others, so it enacts harsher penalties for possessing this drug. The state then does a study and finds 98.2 percent of defendants convicted of possessing this drug are black. A reasonable person would probably look at a law that is virtually only enforced against black people and think something was amiss. Following the anticlassification doctrine, only a showing of discriminatory intent by the legislature would violate the Equal Protection Clause. Again, a real world example confirms this. The Eighth Circuit argued that Congress did not adopt the sentencing differential “because of” its impact on African-Americans; rather, Congress had reasons for determining that crack cocaine posed a greater societal threat than powder cocaine, and this judgment in turn supplied justification for adopting the 100 to one sentencing ratio despite its foreseeable adverse impact on African-Americans. The Eighth Circuit's opinion in Clary is especially striking because it overturned a lengthy lower court decision that explored the history of racial bias in the criminal justice system and the sociology of the recent war on drugs, striking down the sentencing guidelines on the grounds that they manifested unconscious racial bias.
PROBLEMS WITH THE ANTICLASSIFICATION, COLORBLIND PRECEDENT
In the author’s opinion, a legal position dictating no classification based on race along with looking at the world through colorblind glasses leads to disastrous results. Furthermore, these legal principles are inimical to the goals of the post Civil War Amendments. After the Civil War, America realized it needed to take action in order to ensure blacks achieved equal footing with their white counterparts. The way the Court has interpreted the Brown line of cases has led to policies that directly contradict the goals of the post Civil War Amendments. Instead of allowing practices aimed at achieving racial equality by helping a historically subjugated group of people, the Court has made these measures unconstitutional. This precedent equates laws designed to subjugate with laws designed to end subjugation. Integration of racially homogeneous areas is now discrimination. This is clearly an absurd result. The present line of thinking appears to directly contradict the goals of Congress shortly after the Civil War.
The author contends this is such a disastrous result because colorblind thinking presumes blacks and whites are now on equal footing. This is far from accurate. The percentage of blacks under the poverty line in 2006 was 24.2 percent. That number is 8.2 percent among whites. That is even with thirty years of economic development in the black community since the solidification of anticlassification principles. No one can doubt this country has a history of institutional and societal racism that has led to discrimination en masse. Hugely disparate poverty statistics are prima facie evidence of this. To use the discriminatory intent logic, because this country took intentional discriminatory measures such as slavery and Jim Crow laws to retard the economic progress of blacks in this county, this country is presumed to continue this practice until a showing otherwise. The difference in the poverty level percentages above implies this country has not taken this affirmative action and is direct evidence against the colorblind principle claiming we are all equal.
This way of thinking not only says race is no longer a problem, it effectively destroys race. As the Bakke and Richmond cases showed, the Court now views America as a nation of ethnic groups all in competition with one another. This ideology often results in whites becoming the “minority” in areas where there is direct evidence of past white economic hegemony. It seems absurd to say whites are being discriminated against when a state acts to remedy hundreds of years of white discrimination against blacks. This new ethnic way of looking at people will only further harm blacks. A court will now always be able to find an ethnic group in competition with blacks and claim it should not pick between the interests of either group. This puts minority groups against each other even more so than the present fight for limited economic resources between the groups.
Colorblindness also does not address the externalities of race problems. There is much ongoing scientific research attempting to figure out the reasons behind such differences in racial economics. Blacks might not be getting the same jobs as whites because they do not have the same education. A black school could be lagging behind because the kids do not pay attention. The kids could not be paying attention because they do not have father figures at home. The father figures could not be at home because of selective enforcement of laws by police. The police might have myriad laws to enforce because of discriminating legislative bodies. The point here is there are countless inputs going into the equation to figure out a problem. Anticlassification rules are so pernicious to the black community because when a body figures out the reasons behind one of these problems, they are not able to efficiently assist the group most in need by helping them specifically. Any measures doing that would be classifying based on race and therefore unconstitutional.
Anticlassification ideology also does not address inherent racial bias. Requiring discriminatory intent severely limits the ability to investigate racial bias. Emerging studies in the medical world show racial bias in the medical community. A recent study found white medical students were less empathetic toward black patients in one-on-one interviews. Another study showed 79 or 80 percent of white Americans show a preference for white over black. One more tested implicit bias by having participants identify the race of racially ambiguous faces. When faces were seen to display relatively hostile expressions, individuals were more likely to categorize them as black. When identical facial expressions of African Americans and European Americans changed from hostile to positive expressions, white viewers often perceived the hostility to linger longer in black faces. These studies show racial bias is alive and well in America. This is significant because anticlassification and colorblind ideology presumes neutrality until a showing of discriminatory intent. This is problematic because racial biases might be influencing actors much more than they realize. A law can pass that is considered facially neutral even though it was subconscious racial bias that was really behind the action. Since the Court demands conscious discriminatory intent, this effectively eliminates any investigation into what was really behind the policy.
This paper has shown how the Court has interpreted the Civil War Amendments to go completely against what they were tasked to do. Through its rulings, the Court has made several dangerous claims, proclaiming racial inequality is all but dead. Today, doctrines of heightened scrutiny function primarily to constrain legislatures from adopting policies designed to reduce race and gender stratification, while doctrines of discriminatory purpose offer only weak constraints on the forms of facially neutral state action that continue to perpetuate the racial and gender stratification of American society. We see cases such as Richmond where a city was not allowed to take action to correct hundreds of years of obvious and known discrimination because it discriminated against white people. The anticlassification principle is not tied to a utopian ideal in which the visibility of racial difference disappears. Rather, it is a tool for dismantling white supremacy and eradicating social practices that disadvantage historically subordinated groups. However, in application we see it is doing anything but.
The author suggests a system that takes race into account on a case by case basis and eschews the present competing ethnic groups worldview. Race is not something to run away from. It is naive to think we have achieved racial equality and therefore we can no longer assist certain racial groups because of past transgressions against them. Present disparate poverty statistics are directly connected to hundreds of years of discrimination and racial bias studies show this discrimination has not stopped. Because of this, disparate impact should be considered a violation of equal protection principles. Requiring discriminatory intent makes it far too easy for bodies to circumvent the true spirit of equal protection. A law against crack resulting in blacks comprising 98.2 percent of convictions confirms this. Furthermore, violation of equal protection in matters of race should also carry criminal sanctions. This would immediately make people think twice about enacting policies they know will disparately impact a certain race.
Much has changed in the fifty years since Brown. Unfortunately, the Court believes much more has changed than really has. In its attempt to look at everyone the same, the Court has failed to realize many problems subsist making us not the same. Hopefully the Court will realize its actions might potentially lead the march of civil rights in the opposite direction.
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According to its proponents, the colorblind ideal is genuinely egalitarian. By disavowing classifications drawn on the basis of race, we affirm the moral irrelevance of race and honor equal opportunity. If race is truly irrelevant, why do blacks continue to stay at the bottom of nearly any economic measuring device? The post Civil War Amendments were passed in an effort to attempt to put blacks in this country on equal footing with their white counterparts. The Supreme Court since then has changed the way we look at these Amendments and equal protection in general. Have we progressed as a society enough to where race does not matter? The Court thinks so. In reality, this supposed neutrality by the Court ends up harming blacks in many ways. This paper will trace the roots of the anticlassification principle and discuss how it is inimical to the true goals of equal protection.
THE BROWN LINE OF CASES
Like many legal principles, a healthy understanding of the law from its nascent stages is vital. In taking this approach, one can begin to understand the core principles and legal justifications behind the law as well as how it has changed over time. Perhaps arguments supporting the victorious side have fallen on deaf ears or have been manipulated over time to mean something else. Either way, a sound understanding of the early law will enable one to see where the law is heading and potential implications of following the status quo.
In 1951, thirteen parents on behalf of twenty students filed a class action suit against the Board of Education of Topeka, Kansas. These parents were concerned with the law set forth in Plessy v. Ferguson in 1896, which stated separate but equal treatment of races did not violate the Fourteenth Amendment. The parents asserted this system of racial separation, while masquerading as providing separate but relatively equal treatment of both white and black Americans, instead perpetuated inferior accommodations, services, and treatment for black Americans. The Plessy Court said segregation did not violate the Equal Protection Clause because it inflicted no legally cognizable harm on blacks. The Brown Court considered that argument and, after remarking on the significance of educational opportunity in modern life, said, “To separate children from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” This language seems to support the idea that the Court was interested in the harm done to black schoolchildren. The Court went on to say, Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.
This Court presently interprets this to mean the Fourteenth Amendment prohibits any classification based on race, but there is no language from the opinion stating this contention. In fact, a look at the era surrounding Brown suggests leaving this language out was intentional. Contemporaneous with Brown, Fifth Amendment case law dictated close scrutiny of government policies classifying on the basis of race. Bolling v. Sharpe, a case decided along with Brown, said segregation in District of Columbia school systems violated the Fifth Amendment’s Due Process Clause. The Court, in mentioning racial classification in Korematsu and Bolling but not Brown, appears to have done that purposely. The Brown opinion, therefore, can properly be read not as condemning racial classification, but as addressing the consequences of separating schoolchildren in a specific institutional context. Other evidence of this comes from the Court refusing to hear a challenge to Virginia’s anti-miscegenation law in Naim v. Naim. If the Court really did announce classification based on race is presumptively invalid in Brown, surely it would have decided to hear a case dealing with the prohibition of marriage on the basis of racial classification. It is difficult to reconcile the present view that Brown eliminated any classification based on race with the circumstances at the time of the case showing the Court did no such thing. Perhaps the Brown Court meant racial classifications should be looked at on an individual basis to determine if they are appropriate. No matter what one thinks, there is no language from the opinion saying classifications based on race are presumptively invalid. Continuing this analysis of history will help show what Brown has come to mean today.
An incredible amount of controversy arose from the Brown decision. This controversy centered around the rationale adopted by the Court in its decision. As stated above, the Court overturned Plessy v. Ferguson on the idea that there was recognizable harm to black children. Separating black children created a sense of inferiority, which caused harm; ultimately meaning the practice was unconstitutional. The Opponents of Brown focused on this harm aspect in their criticism. In finding this separation harmed black children, the Court cited several studies in what is famously known as Footnote Eleven. Harm then became the axis on what Brown turned. If critics could diminish the claims of harm, they felt they could diminish Brown. They did just this by providing scientific research showing it was not segregation that harmed black children, but integration. By turning the debate to harms, critics asked what and whose harms are to be protected. One can think of many harms, so multiplying the harms to which the law might attend was a way of putting in issue the question whether those interpreting the Constitution ought to treat the dignitary injuries associated with group subordination as constitutionally cognizable harms at all. Courts in the South then decided several cases either directly conflicting with Brown or severely limiting it. The Naim Court in Virginia said laws prohibiting interracial marriage actually prevented harm. The Louisiana Court followed suit by saying interracial children are so harmed by societal pressures that anti-miscegenation laws are necessary under Brown. Maryland said public beaches and bathhouses could be segregated because members of each race were more comfortable with each other.
A school of thought emerged from the South described as “Neutral Principles”. This way of thinking said constitutional decisions should rest on reasons other than a judge’s sympathy for the claims of contending social groups. Herbert Wechsler’s writings paved the way for this thinking. He offered his own interpretation of Brown - racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved. To Wechsler, Brown was a case about the subordination of one race to another. To him, antisubordination was not constitutionally neutral and Brown was incorrectly decided. The issue was about choosing between two groups; something the Court should not be allowed to do. The Court should look at groups based on neutral principles and not choose one over the other. Competing views arose. Louis Pollack argued Brown created a legal presumption against all legal restrictions which curtail the civil rights of a single racial group. The Equal Protection Clause therefore prohibited state policies that inflicted the kinds of status harm that whites had historically inflicted on blacks. Pollack disagreed with Wechsler’s idea of neutral principles. He said the three post-Civil War Amendments were fashioned to one major end – an end to which we are only now making substantial strides – the full emancipation of the Negro. Looking at the post-Civil War Amendments in context, they were established to combat the long history of slavery. Therefore, in order to fully restore one historically disenfranchised group, that group’s interests could outweigh a group not historically slighted. Charles Black agreed with this point of view in saying, “When the directive of equality cannot be followed without displeasing the white, then something that can be called a ‘freedom’ of the white must be impaired.”
THE EMERGENCE OF ANTICLASSIFICATION
The 1960s ushered in new ways of thinking. The idea of anticlassification emerged with the Fifth Circuit’s Jefferson County opinion. Here, Judge Wisdom upheld the Department of Health, Education and Welfare’s enforcement of Title VI of the Civil Rights Act of 1964. In his opinion, Judge Wisdom obviated the need to follow the controversial practice of balancing harms and choosing between groups. Instead, the Court condemned state-imposed separation by race as an invidious classification and for that reason alone unconstitutional. It said, The Brown I finding that segregated schooling causes psychological harm and denies equal educational opportunities should not be construed as the sole basis for the decision. So construed, the way would be open for proponents of the status quo to attempt to show, on the facts, that integration may be harmful or the greater of two evils. Indeed that narrow view of Brown I has led several district courts into error. We think that the judgment “must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed.” The relief Brown II requires rests on recognition of the principle that state-imposed separation by race is an invidious classification and for that reason alone is unconstitutional. Classifications based upon race are especially suspect, since they are odious to a free people. In short, compulsory separation, apartheid, is per se discriminatory against Negroes.
This was an interesting opinion because it appeared to directly address the Southern opponents of the Brown decision. One interpretation is the Court devised this anticlassification framework as a way to combat the Southern argument that segregation is allowable if they can show whites are just as harmed as blacks. No matter the interpretation or reasons behind the Court’s actions, this decision, along with McLaughlin v. Florida and Loving v. Virginia, established a strict scrutiny framework for classifications based on race.
This new way of approaching equal protection shifted the lens from the harms of racial segregation to the wrongs of legislative classification. The McLaughlin Court evidenced this in its reasoning dealing with antimiscegenation laws. There, the Court did not talk about how prohibiting interracial cohabitation harmed a certain race. It did not connect the prohibition of whites and blacks being together with the history of black subjugation. Perhaps this was because the Court was used to the Southern objection to the comparison of harms approach. Instead, the Court based their decision on a presumption against racial classification. The Court followed this with its decision in Loving striking down laws against interracial marriage. Again, the Court did not address the harms on particular racial classes. It did, however, provide another layer of analysis by saying the law was unconstitutional based on failing the strict scrutiny analysis as well as because it enforced a system of racial hierarchy. This analysis of events shows a progression in the 1960s from looking at group harm to a presumption against racial classification and a demand for legislative rationality. However, Courts still understood equal protection as a race-asymmetric constraint on governmental action; they understood that the purpose of equal protection doctrine was to prevent the state from inflicting certain forms of status harm on minorities.
Questions arose regarding the constitutionality of states voluntarily acting in order to integrate. In the 1960s, Courts repeatedly held that governments could use race-specific measures to break down de facto segregation (racial imbalance) in the nation's public schools even when there was no finding of a constitutional violation. In Swann v. Charlotte-Mecklenburg Board of Education the Court said, “School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.” This shows Courts viewed the Equal Protection Clause as a tool to protect blacks from harms caused by hierarchal and status-cementing measures by the government. The Clause was not violated when governments used race-based measures to combat segregation.
THE EXPANSION OF BROWN
The 1970s further developed the anticlassification doctrine and brought in new ideas of colorblindness. More questions arose regarding race-conscious efforts to enforce integration. The Court again addressed education in 1976, this time striking down race-conscious admissions at the U.C. Davis School of Medicine. In its decision, the Court brought back the notions of addressing harms to minorities. This was a landmark decision because it effectively expanded Brown to protect whites from discrimination – reverse discrimination. Powell’s opinion was also a rejection of the race-asymmetric and antisubordination frameworks set forth in prior decisions. He even changed the perceived purposes of the Fourteenth Amendment by saying it is “no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority.” He continued, “During the dormancy of the Equal Protection Clause, the United States had become a Nation of minorities. Each had to struggle – and to some extent struggles still – to overcome the prejudices not of a monolithic majority, but of a “majority” composed of various minority groups of whom it was said – perhaps unfairly in many cases – that a shared characteristic was a willingness to disadvantage other groups. As the Nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection from official discrimination.” These abrupt shifts in the purpose of the Fourteenth Amendment and the application of the Equal Protection Clause carry many implications. The Fourteenth Amendment was no longer a device to address the inequalities felt by blacks in America. State action was now “neutral” and “equal,” however disproportionately it harmed minorities, unless it employed a suspect classification or reflected discriminatory purpose, a concept the Court related back to forms of racial animus or “antipathy” that the presumption against classification was intended to constrain.
Bakke did much more than clarify the anticlassification principle; it completely changed the way the Court looks at race. Powell did this by looking at ethnicity as opposed to race in his opinion. He disaggregated the white “majority” into “various minority groups” who “struggle” against “prejudice,” while converting racial minorities into groups that shared an identical American experience with white ethnics. The color-line erased, the United States now progressed harmoniously as a “Nation filled with the stock of many lands,” and the Constitution gave equal concern to “all ethnic groups seeking protection from official discrimination.” “Ethnic groups” in Powell's usage constituted no casual synonym for race, but instead a heavily laden term signifying a conception of group dynamics in the United States in which racial hierarchy had ceased to operate. He did this by looking at history through an ethnic lens. He defined this as a nation of minorities and referred to Celtic Irishmen, Chinese, Austrian resident aliens, Japanese and Mexicans as groups protected at one point. Saying all of these groups went through some sort of adversity made it seem like race operated similarly across the board. The logic stated if the Irish and Japanese went through similar hardships, they should be treated equally. The Constitution should therefore be concerned with all ethnic groups seeking protection from discrimination. Powell destroyed the traditional views of majorities and minorities. Instead of whites being the traditional majority and blacks the minority, everyone was a minority at some point. His statement, “The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments,” confirms. He transformed society from a system of dominant and subordinate races to an amorphous plurality of ethnicities. Because this dominant/subordinate framework no longer existed, the Constitution could not choose between ethnicities. If multitudinous ethnic groups stood in relations of shifting competition forming only temporary majorities, no special solicitude for racial groups seemed required. Black was now white.
Powell did this by casting whites as just another subordinated group. He did this by disaggregating whites into discrete ethnicities, insisting these groups faced discrimination in the past, and implying the rights and remedies reserved for preferred minorities threatened white ethnic subgroups. In effect, this elite group behind hundreds of years of subjugation became just as much of a minority as blacks. In fact, these whites were being discriminated against because they were classified as such. Whites then became the victims of affirmative action.
The Bakke Court went on to change the way it thought about integration. Efforts to introduce blacks to exclusively white institutions were not referred to as integration. Powell never even mentioned the word. Instead, he said these efforts were pursuing some specified percentage of a particular group merely because of its race or ethnic origin. He continued by saying, “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.” This way of thinking meant the Court looked at integration not as a practice of achieving equality, but as a discriminatory preference of blacks over whites. Breaking race down to competing ethnic minorities enabled this reasoning.
THE END OF SOCIETAL DISCRIMINATION
Bakke displayed a solidification of anticlassification principles and used them to limit antisubordination values. But a large question remained unanswered – is a government allowed to remedy societal discrimination against a race by using racial classifications? Consider the City of Richmond in the 1970s. Its population was fifty percent black, but only two-thirds of one percent of its construction projects went to minority owned businesses over a five-year span. A federal government study found racial nepotism virtually defined the construction sector, and a near total exclusion of minorities receiving dollars from local trade associations. The mayor even said, “I can say without equivocation, that the general conduct in the construction industry in this area . . . is one in which race discrimination and exclusion on the basis of race is widespread.” The City felt it should do something so it, noting this historical pattern of discrimination, created a program setting aside contracting money for minority owned businesses.
Could a city employ race-conscious measures to combat societal discrimination? The Court found in the absence of proof of a particular act, racism could no longer be used as an explanation for societal action. Societal discrimination is an amorphous concept of injury that may be ageless in its reach into the past. This is a threshold moment – taking action to alleviate societal discrimination suffered over hundreds of years is no longer allowable. This is effectively a pronouncement that racism is over in our society. To suspect whites of discrimination without specific proof is now stereotyping whites. Without this specific proof, the Court presumes racial neutrality governs social and economic life. The Court came to this conclusion by again disaggregating race into small ethnic groups and looking at them through a colorblind lens. It said, “To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Because the City was classifying whom to give money based on race, the Court found strict scrutiny applied in order to protect minorities. Which minorities though? Taking the new ethnic as opposed to race viewpoint, the Court again found it necessary to protect the white minority.
Bakke and Richmond show the Court now views whites and blacks as the same. This tabula rasa for racial attitudes in American society dictates we forget all of the societal and institutional racism from the beginning of America. Slavery, Jim Crow, poll taxes, redlining antimiscegenation laws and lynching simply no longer matter. Even with a government study and quotes from the mayor confirming racial discrimination in the area, the Court will not find discrimination unless there is specific proof of intent.
IMPLICATIONS OF THE COLORBLIND, ANTICLASSIFICATION PRECEDENT
Suppose a fire department in the South creates a new position. This new position requires education at a high school equivalency so the company decides it needs to administer a test to any applicant. After administering the test, a manager notices something does not seem right. More whites seem to be passing than blacks. The manager thinks to herself and realizes one experiment does not prove anything. The company hires new people to replace the ones who failed. They take the test too. Again, whites seem to outperform blacks. A few months later the manager tests another round of employees. The same thing happens again; blacks fail much more often than whites do. Eventually the manager realizes out of the twenty positions that require a passing score, whites occupy nineteen. A reasonable third person would look at this scenario and think something was up. This is a fire department in the South, long known for its problems with race relations. The position only requires a high school education, so the pool of applicants is not significantly limited. Why is it that so many whites are passing and blacks failing? How can we fix the problem? Anticlassification and colorblind principles limit the options available. It seems logical to take note of the historical practice of limiting minority employment and enact measures aimed at evening out the racial makeup. But these principles say it would be discriminatory to help the blacks failing the test in any way. Confirmation of this criticism came when the Court saw a case similar to this scenario. It involved a challenge to an employment exam that excluded four times as many blacks as whites applying for a position on the District of Columbia police force. The Court made clear that proving discriminatory purpose was now not only permitted, but required in all cases challenging facially neutral state action having a disparate impact on protected classes.
Now imagine a state passes strong new drug laws. It feels one drug is more caustic to the community than others, so it enacts harsher penalties for possessing this drug. The state then does a study and finds 98.2 percent of defendants convicted of possessing this drug are black. A reasonable person would probably look at a law that is virtually only enforced against black people and think something was amiss. Following the anticlassification doctrine, only a showing of discriminatory intent by the legislature would violate the Equal Protection Clause. Again, a real world example confirms this. The Eighth Circuit argued that Congress did not adopt the sentencing differential “because of” its impact on African-Americans; rather, Congress had reasons for determining that crack cocaine posed a greater societal threat than powder cocaine, and this judgment in turn supplied justification for adopting the 100 to one sentencing ratio despite its foreseeable adverse impact on African-Americans. The Eighth Circuit's opinion in Clary is especially striking because it overturned a lengthy lower court decision that explored the history of racial bias in the criminal justice system and the sociology of the recent war on drugs, striking down the sentencing guidelines on the grounds that they manifested unconscious racial bias.
PROBLEMS WITH THE ANTICLASSIFICATION, COLORBLIND PRECEDENT
In the author’s opinion, a legal position dictating no classification based on race along with looking at the world through colorblind glasses leads to disastrous results. Furthermore, these legal principles are inimical to the goals of the post Civil War Amendments. After the Civil War, America realized it needed to take action in order to ensure blacks achieved equal footing with their white counterparts. The way the Court has interpreted the Brown line of cases has led to policies that directly contradict the goals of the post Civil War Amendments. Instead of allowing practices aimed at achieving racial equality by helping a historically subjugated group of people, the Court has made these measures unconstitutional. This precedent equates laws designed to subjugate with laws designed to end subjugation. Integration of racially homogeneous areas is now discrimination. This is clearly an absurd result. The present line of thinking appears to directly contradict the goals of Congress shortly after the Civil War.
The author contends this is such a disastrous result because colorblind thinking presumes blacks and whites are now on equal footing. This is far from accurate. The percentage of blacks under the poverty line in 2006 was 24.2 percent. That number is 8.2 percent among whites. That is even with thirty years of economic development in the black community since the solidification of anticlassification principles. No one can doubt this country has a history of institutional and societal racism that has led to discrimination en masse. Hugely disparate poverty statistics are prima facie evidence of this. To use the discriminatory intent logic, because this country took intentional discriminatory measures such as slavery and Jim Crow laws to retard the economic progress of blacks in this county, this country is presumed to continue this practice until a showing otherwise. The difference in the poverty level percentages above implies this country has not taken this affirmative action and is direct evidence against the colorblind principle claiming we are all equal.
This way of thinking not only says race is no longer a problem, it effectively destroys race. As the Bakke and Richmond cases showed, the Court now views America as a nation of ethnic groups all in competition with one another. This ideology often results in whites becoming the “minority” in areas where there is direct evidence of past white economic hegemony. It seems absurd to say whites are being discriminated against when a state acts to remedy hundreds of years of white discrimination against blacks. This new ethnic way of looking at people will only further harm blacks. A court will now always be able to find an ethnic group in competition with blacks and claim it should not pick between the interests of either group. This puts minority groups against each other even more so than the present fight for limited economic resources between the groups.
Colorblindness also does not address the externalities of race problems. There is much ongoing scientific research attempting to figure out the reasons behind such differences in racial economics. Blacks might not be getting the same jobs as whites because they do not have the same education. A black school could be lagging behind because the kids do not pay attention. The kids could not be paying attention because they do not have father figures at home. The father figures could not be at home because of selective enforcement of laws by police. The police might have myriad laws to enforce because of discriminating legislative bodies. The point here is there are countless inputs going into the equation to figure out a problem. Anticlassification rules are so pernicious to the black community because when a body figures out the reasons behind one of these problems, they are not able to efficiently assist the group most in need by helping them specifically. Any measures doing that would be classifying based on race and therefore unconstitutional.
Anticlassification ideology also does not address inherent racial bias. Requiring discriminatory intent severely limits the ability to investigate racial bias. Emerging studies in the medical world show racial bias in the medical community. A recent study found white medical students were less empathetic toward black patients in one-on-one interviews. Another study showed 79 or 80 percent of white Americans show a preference for white over black. One more tested implicit bias by having participants identify the race of racially ambiguous faces. When faces were seen to display relatively hostile expressions, individuals were more likely to categorize them as black. When identical facial expressions of African Americans and European Americans changed from hostile to positive expressions, white viewers often perceived the hostility to linger longer in black faces. These studies show racial bias is alive and well in America. This is significant because anticlassification and colorblind ideology presumes neutrality until a showing of discriminatory intent. This is problematic because racial biases might be influencing actors much more than they realize. A law can pass that is considered facially neutral even though it was subconscious racial bias that was really behind the action. Since the Court demands conscious discriminatory intent, this effectively eliminates any investigation into what was really behind the policy.
This paper has shown how the Court has interpreted the Civil War Amendments to go completely against what they were tasked to do. Through its rulings, the Court has made several dangerous claims, proclaiming racial inequality is all but dead. Today, doctrines of heightened scrutiny function primarily to constrain legislatures from adopting policies designed to reduce race and gender stratification, while doctrines of discriminatory purpose offer only weak constraints on the forms of facially neutral state action that continue to perpetuate the racial and gender stratification of American society. We see cases such as Richmond where a city was not allowed to take action to correct hundreds of years of obvious and known discrimination because it discriminated against white people. The anticlassification principle is not tied to a utopian ideal in which the visibility of racial difference disappears. Rather, it is a tool for dismantling white supremacy and eradicating social practices that disadvantage historically subordinated groups. However, in application we see it is doing anything but.
The author suggests a system that takes race into account on a case by case basis and eschews the present competing ethnic groups worldview. Race is not something to run away from. It is naive to think we have achieved racial equality and therefore we can no longer assist certain racial groups because of past transgressions against them. Present disparate poverty statistics are directly connected to hundreds of years of discrimination and racial bias studies show this discrimination has not stopped. Because of this, disparate impact should be considered a violation of equal protection principles. Requiring discriminatory intent makes it far too easy for bodies to circumvent the true spirit of equal protection. A law against crack resulting in blacks comprising 98.2 percent of convictions confirms this. Furthermore, violation of equal protection in matters of race should also carry criminal sanctions. This would immediately make people think twice about enacting policies they know will disparately impact a certain race.
Much has changed in the fifty years since Brown. Unfortunately, the Court believes much more has changed than really has. In its attempt to look at everyone the same, the Court has failed to realize many problems subsist making us not the same. Hopefully the Court will realize its actions might potentially lead the march of civil rights in the opposite direction.
Thursday, May 14, 2009
In case you are really, really, really, really bored
Here is a paper I wrote yesterday about how juveniles are treated by the criminal justice system, sans footnotes.
If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and thought they chasten him, will not hearken unto them; then shall his father and his mother lay hold on him, and bring him unto the elders of his city, and unto the gate of his place; and they say unto the elders of his city: “This our son is stubborn and rebellious, he doth not hearken to our voice; he is a glutton, and a drunkard.” And all the men of his city shall stone him with stones, that he may die; so shalt thou put away the evil from the midst of thee; and all Israel shall hear, and fear. From the beginning of modern times, man has struggled with the question of what to do with juveniles when they do something society deems punishable if an adult were to act similarly. Are children the same as adults? Is there something endemic to the juvenile mind that suggests they are not as accountable for their actions as adults are? Our society deems juveniles unable to make many ‘adult’ decisions – smoking, drinking, voting, sexual activity, marriage and gambling to name a few. In the criminal justice context, however, we often consider juveniles able to make rational adult decisions. The present criminal justice system is in an anomalous situation of treating children with a combination of more severe punishment and less due process than at any other time in the history of our laws. This paper will examine the juvenile criminal justice system, explore how juveniles end up in adult prisons, and finally discuss the consequences of locking up our youth.
Anthony Laster was a fifteen-year-old eighth-grader with an IQ of fifty-eight who was described by relatives as having the mind of a five-year-old. One day in 1998, shortly after his mother died, Anthony was hungry, so he reached into the pocket of another student in his Florida middle school and took $2 in lunch money. The boy's family reported the crime to the authorities, and the local prosecutor, Barry Kirscher, decided to prosecute Anthony as an adult. He spent the next seven weeks in an adult jail waiting for his court date. Lionel Tate was a twelve year old boy and very interested in professional wrestling. He imitated one of his favorite wrestlers and caused life-ending injuries to a six-year-old girl. The state tried him as an adult and returned a verdict of life in prison without the possibility of parole. Nathaniel Brazill was thirteen years old when he shot and killed his teacher at a middle school in 2000. His teacher refused to let Nathaniel talk with two girls in the classroom and he claimed his gun accidentally went off. He received a twenty-eight year sentence after a conviction for second-degree murder. Cases like these are becoming more common around the United States due to the ‘tough on crime’ mantra repeated over the last several decades. The U.S. got much tougher on juvenile crime largely because of the surge of juvenile violence during the crack epidemic of the late 1980s and early 1990s. Lawmakers panicked and made juvenile justice far more punitive as an attempt to halt crime. But these new measures came after teenage violent crime rates began to fall dramatically, casting doubt on their legitimacy and effectiveness. This poor response to the problem from lawmakers now has the effect of punishing juvenile offenders more harshly, while the rate of juvenile violence is going down anyway. We therefore are now treating more juveniles as adults even though juvenile crime rates are dropping. But has it always been like this? An examination of the history of the juvenile justice system is necessary to better comprehend where we are today.
As shown in the opening, ideas of juvenile justice go back to biblical times. Jewish law at the time had very strict requirements concerning the adjudication and punishment of juveniles. Confessions, circumstantial evidence and hearsay were inadmissible in criminal cases. Convictions were difficult to obtain, and courts would acquit some factually guilty persons to assure no innocent juvenile would be convicted. America adopted its juvenile justice law in 1646 almost entirely from Deuteronomy. Colonial America was sometimes quite severe with juveniles, sometimes convicting and executing them. Courts frequently showed mercy, though. For example, a court acquitted a twelve-year-old boy from the capital offense of arson in 1792 even though he confessed to the crime. As the nineteenth century arrived, England and America began to mitigate the severity of the punishment for juveniles. The severity of the law was limited by: 1) bringing minor charges against children; 2) refusing to prosecute children; and 3) refusing to convict children. For example, between 1801 and 1836, one hundred three children received death sentences for theft crimes in England, but never for murder. None of the children were executed. America saw a similar practice. Courts rarely convicted juveniles for serious crimes. If they did, the conviction was usually reversed. Only two children were executed in America during the 19th century, and they were both sons of slaves.
The laws themselves protected children in the 19th century. Laws incorporated William Blackstone’s ideas of criminal incapacity of children dating back to 1796. Under these laws, children under seven could never be guilty of a felony; while a child between seven and fourteen was presumed to be incapable, but the presumption could be overcome by the prosecution. Juveniles also had procedural and substantive protections. For example, courts would not admit confessions from juvenile offenders because of their lack of capacity and sophistication. In one case, the New Jersey Supreme Court reversed the conviction of an eleven-year-old slave child for murder. The court noted, “With respect to confessions in general, and especially with respect to infants, it is necessary to be exceedingly guarded.” This look at history shows courts were lenient to juveniles in the 19th century. Courts often considered the fragility of youth and consistently threw out juvenile convictions.
The earliest effort to change the common law treatment of youths came from the House of Refuge movement of the 1820s. The Quakers were the primary proponents of this movement and their motivation came from their discomfort with the prevailing circumstances of poor children in the court system. They felt the legal system trapped juveniles. If a court acquitted them, they would just return to the poor conditions they came from. If not, they would go to jail and live among the adult criminals. While in these adult prisons, children would face horrible conditions. They would face unspeakable atrocities and return to society as hardened criminals. As the system developed, it became clear that housing young offenders and adult prisoners together was self-destructive and self-defeating. Enter the House of Refuge. The Quakers intended it to be a place where juveniles could go in order to prevent future crimes. They did this by separating the children they thought were capable of reformation. The children thought incapable of ‘being saved’ still went to adult prison. This marks the beginning of the practice of separating the ‘good’ and ‘bad’ children that a cursory look shows continues today. This House of Refuge was no vacation for juvenile offenders – they were subject to frequent and severe physical punishment.
Reformatories then emerged to replace Houses of Refuge. The goals of this movement were to segregate young offenders from adult criminals; imprison them for their own good and removing them from bad homes; minimize court proceedings and avoiding due process because incarceration was benevolent; provide indefinite sentences to last until the youth was reformed; and to use punishment only when other alternatives were unsuccessful. They used ideas of military exercise and supervision; used a cottage approach located in rural areas; focused on education with an emphasis on vocational training; and taught sobriety, thrift and industry. Although ostensibly a sound plan, real life application showed no improvement over the Houses of Refuge.
Due in part to the rising practice of jury nullification in trials dealing with juvenile offenders, Illinois passed the nation’s first Juvenile Court Act, leading to forty-six states, the District of Columbia and three territories following suit by 1925. Legislatures intended these courts to have sole jurisdiction over delinquent or neglected youth. The court had jurisdiction over boys until they were sixteen and girls until they turn seventeen. The acts defined a rehabilitative purpose to the system and emphasized the separation of children from adults when incarcerated. Following World War I, the increased training of social workers and development of the social work case-method shifted the focus from the treatment of delinquent children as a ‘group’ to the treatment of each delinquent as an ‘individual’. The development of government welfare agencies after World War II broadened the scope of services available to each child, resulting in a significant systemic shift to include both the prevention of juvenile delinquency and the rehabilitation of juvenile delinquents in detention facilities. The Supreme Court dealt with the juvenile court system by holding a youth’s due process rights were violated when he was waived to an adult court without a hearing, without giving the youth access to a lawyer for important social information, and without a reason for the lower court’s decision. In the decision the Court said, “While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults. There is evidence, in fact that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults, nor the solicitous care and regenerative treatment postulated for children.”
The Court first applied the 14th Amendment due process clause to juvenile proceedings in 1967. Children and their parents finally had the right to notice of the charges against the child. Children also had the right to counsel, to be advised of the right, and to be appointed an attorney if indigent. The Court also granted the right of cross-examination of any witnesses against the child. Finally, children must be informed of their right of the privilege against self-incrimination. The Court finally recognized juvenile courts are criminal in nature. In 1989, the United Nations adopted the United Nations Convention on the Rights of the Child in order to establish internationally recognized minimum standards for a governments’ treatment of their children. The U.S. was a leader in developing this convention but never ratified it. Therefore it is not binding on American courts.
HOW JUVENILES END UP IN ADULT PRISONS
Juveniles become part of the federal adult criminal justice system through the process of transfer. Transfer hearings in federal courts are governed by the Federal Juvenile Delinquency Act. The Act’s transfer provisions apply to juveniles over the age of fifteen who are charged with either committing a violent crime that would be a felony if committed by an adult, or violating certain narcotics laws. This age lowers to thirteen if the juvenile is charged with a designated crime of violence or was in the possession of a firearm during the commission of the offense. The Act states the government must petition for a transfer hearing and convince a federal judge that transferring a juvenile is in the interest of justice. The interest of justice is when the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant’s chance for rehabilitation. The Act requires judges to consider these factors as indicia of rehabilitative potential:
1) Age and social background of the youth; 2) Nature of the alleged offense; 3) The extent and nature of the juvenile’s prior delinquency record; 4) The juvenile’s present intellectual development and psychological maturity; 5) The nature of past treatment efforts and the juvenile’s response to such efforts; and 6) The availability of programs designed to treat the juvenile’s behavioral problems.
The government must introduce evidence regarding all six factors , meaning a prosecutor is not able to simply eschew the factors not favoring transfer. However, Congress did not codify how Courts are to interpret and balance these factors. This has led to broad interpretation, from a court deciding it did not need to find that each factor weights in favor of transfer , to a court weighing each factor equally. Problems of judicial discretion amplify due to an abuse of discretion standard of review for judicial transfer decisions. An appeal claiming abuse of discretion is difficult because the decision, by law, was left to the judge in the first place. It is very unlikely that a court will not apply the correct law or rest its decision on a clearly erroneous finding of a material fact in order to satisfy the abuse of discretion standard.
The Act has a presumption in favor of state jurisdiction over juveniles committing federal offenses. Therefore it is much more common to see juveniles in state, rather than federal courts. Every state has unique criminal laws, so this paper will choose Michigan as a case study. In Michigan, there are two ways to try a youthful offender as an adult. The first is waiver. Traditional judicial waiver applies to children at least fourteen years old and charged with a felony. This provision is rarely used. The prosecution files a petition in the family division of the circuit court and then files a motion requesting the court to waive its jurisdiction to the adult division of circuit court. Next is a two-step process. The court first determines whether there is probable cause to believe that a felony has been committed. Next, the court must determine whether there is probable cause to believe the juvenile charged with that crime committed that crime. After this determination, the court decides if the best interest of the juvenile and the public would be served by granting a waiver of jurisdiction to the court of general criminal jurisdiction. The court must give greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency. It also considers aggravating factors recognized by the sentencing guidelines. Looking at the evolution of juvenile law in Michigan, the law increasingly applies adult legal standards that seek only to punish offenders as opposed to rehabilitate them. The laws themselves have taken much of the ability away from judges to decide cases based on individual circumstances.
A second form of waiver is prosecutorial waiver. Also known as direct file, the prosecutor can file charges with the adult criminal court instead of the juvenile division for anyone over fourteen. The prosecutor has seventeen offenses she can choose from to use this waiver. She can also automatically waive for attempt, conspiracy, solicitation, lesser-included offenses and any violation arising out of the same transaction. The legislature did not codify any guidelines for how a prosecutor is to use her discretion. The prosecutor therefore has complete discretion to charge in any way she wants. Courts have made it clear that they will not seriously examine charging decisions. Regardless of which waiver used, if a child is convicted post waiver, he must serve an adult sentence for most offenses. If the child’s conviction is for possessing a controlled substance, the court must sentence that child to no less than twenty-five years.
The second way to try a child as an adult in Michigan is through a process called designation. According to the designation provision, any child charged with an offense may be tried in the same manner as an adult. Similar to waiver, there are two types of designation. Prosecutorial designation gives a prosecutor the power to try a child under the same procedures and penalties afforded to adults. This literally means the prosecution can try a child of any age for any of the seventeen offenses provided by statute. The only thing the prosecutor must do in order to use this discretion is charge the youth with a specified juvenile violation. There are no guidelines for how a prosecutor is to use this discretion. The second type of designation is judicial designation. For all charges other than ‘specified juvenile violations,’ the court may designate a case to be handled like an adult proceeding. In order for this to happen, the prosecution must request designation. The court will then hold a hearing. This hearing is the same as a hearing for waiver, and the court again weighs the seriousness of the alleged offense and the juvenile’s poor delinquency record. After designation, the proceedings are exactly the same as adult proceedings until sentencing. The court has three sentencing options if the child is tried and convicted as an adult. First, the court may enter a disposition, treating the case as a delinquency matter. The law presumes that this is the appropriate sanction unless the court determines that the best interests of the public would be served by sentencing the juvenile as an adult. In the second option, the court can simply enter an adult sentence. Finally, the court may delay the imposition of the adult sentence and enter a disposition pursuant to the juvenile code. The court must then periodically review that decision. If the child violates the terms and conditions of the disposition, the court may impose an adult sentence at any time. If such a violation is based upon the commission of a felony or a misdemeanor punishable by more than a year in prison, the court must impose an adult sentence. Finally, Michigan has mandatory sentencing. Any young person who falls under the family court’s jurisdiction for an offense where he used a firearm must be committed to a detention facility for a specified period of time. This law appears to go against the initial aims of the juvenile system, where a child’s individual circumstances are taken into account in each case. Now there is no room in the process for considering why a child might have had a gun. There are no mitigating factors. He simply faces a mandatory sentence.
Michigan’s practice of giving prosecutors and judges almost full discretion to charge juveniles with adult crimes is not unique. Almost every state has some form of judicial waiver. This process has no doubt led to many children serving long adult sentences. Statistics are startling. There are at least 2,225 child offenders serving life without parole sentences in U.S prisons for crimes committed before they were age 18. While many of the child offenders are now adults, sixteen percent were between thirteen and fifteen years old at the time they committed their crimes. An estimated fifty-nine percent were sentenced to life without parole for their first criminal conviction. Forty-two states currently have laws allowing children to receive life without parole sentences.
This paper has not yet addressed this topic, but African American youth are disproportionately affected in this area. Youths waived to criminal court are disproportionately older, male and nonwhite. In 1995, whites made up approximately eighty percent of the population at risk for delinquency and accounted for sixty-six percent of the delinquency cases formally disposed by the juvenile courts. However, only forty-six percent of those waived were white offenders. Racial disparities in waiver are only increasing over time. In 1978, thirty-nine percent of waived youths were nonwhite. By 1985, that number was forty-four percent, and rose to fifty-four percent a decade after that. Blacks are waived at higher rates than whites in all offense categories. A study looking at data found for all offense types, all age categories, and all years, black youths were more likely to be waived to criminal court than their white counterparts. The numbers are greatest for youths charged with person and drug offenses. Since drug arrests disproportionately harm African Americans , simple mathematics and logic suggest the more drug arrests we have, the more black youths will go to prison.
TREATMENT OF JUVENILES IN PRISON
Now that it has been shown how easy it is for youths to end up in the criminal justice system, it seems necessary to discuss their treatment in these confines. Juvenile detention centers do not appear to be much different from their adult counterparts. Take, for example, Arkansas facilities in the 1970s where juveniles were forced to kill dogs as discipline, forced to wear a dog's tail, chained to a bed as punishment, forced to eat feces and vomit, and made to get on their hands and knees and oink like pigs. When asked about this officials responded, “The program is good and should be continued.” Because of such inhumane, punitive treatment, Congress passed the Juvenile Justice and Delinquency Prevention Act in 1974. This act focused on the rehabilitative aspect of the system as opposed to punitive treatment. The Act gave grants to states if they separated juvenile from adult offenders and promoted other advanced juvenile justice practices. It set forth rehabilitation as the goal of detaining juveniles. The National Juvenile Detention Association defined juvenile detention as the “Temporary and safe custody of juveniles who are accused of conduct subject to the jurisdiction of the court and require a restricted environment for their own community’s safety while pending legal action. Further, juvenile detention provides a wide range of helpful services that support the juvenile’s physical, emotional, and social development. Helpful services minimally include: education, recreation, counseling, nutrition, medical and health care services, reading, visitation, communication, and continuous supervision.” An analysis of the conditions juveniles face will show if the system is living up to its description.
Overcrowding is a huge problem. A study showed as far back as 1993, more than seventy-five percent of juvenile facilities were overcrowded. Thirty percent of juveniles slept in undersized rooms. The ACLU intervened in Maryland in 1996 because juvenile centers were operating at forty percent above capacity. Overcrowding is not just a problem because it inconveniences those in the detention center. It leads to more incidents of institutional violence, suicidal behavior and an increased use of short-term isolation. Centers often rely on solitary confinement as punishment. Because of the fragile psychological makeup of children, there is no telling what effects this has. An Office of Juvenile Justice and Delinquency Protection study found facilities housing fifteen percent of all incarcerated juveniles had no limit on solitary confinement. Another study found more than 435,800 juveniles were subject to solitary confinement over a year and 84,000 juveniles were subject to solitary confinement for over twenty-four hours at a time. Suicide attempts become common. In one year 11,000 juveniles committed 17,600 acts of suicidal behavior.
Because juveniles are often sent to adult prison, we must look at their conditions while in adult prison. Children in adult prison are five times more likely to suffer sexual assault than in juvenile detention. In adult prison, children are two times more likely to suffer physical abuse from prison guards and fifty percent more likely to be attacked with a weapon than juvenile facilities.
CONSEQUENCES OF IMPRISONING JUVENILES
Adult prison exposes children to many things they would not see in juvenile prison. The number of people within prison itself causes significant problems. In large institutions, even in settings where the avowed purpose is to treat rather than punish, security concerns tend to become all-consuming. To insure the safety of inmates and staff and to guard against escape, regulations governing nearly every aspect of inmate life, and searches, segregation, counts, and restrictions on movement are routine. The stated aims behind juvenile detention center on rehabilitation. Placing juveniles in adult prison is completely antithetical to these stated aims because there is virtually no rehabilitation. Because prisons are primarily custodial facilities, most inmates do not engage in programs aimed at their personal or social development. In one survey of juvenile offenders in adult prison, many expressed a desire to participate in rehabilitative programming, but fewer than 10 percent were engaged in any sort of counseling or treatment program.
The physical setting of adult prison provides many more opportunities for private interaction among inmates than in juvenile facilities. In juvenile programs, staff participate in activities with small groups of youths throughout the day and, at night, remain proximate to them in their dormitories. In the prisons, for much of the day large groups of inmates congregate in the yard while correctional officers watch at a distance from the perimeter. During the evenings, inmates remain in their cells or dormitories supervised by correctional officers separated from them in glass-enclosed control rooms. Youths in prison spend much of their time talking to more skilled and experienced offenders who teach them new techniques of committing crime and methods of avoiding detection. Strained relations between inmates and staff provide additional incentive to plan unlawful behaviors surreptitiously.
Prisons are dangerous places where inmate norms frequently support violent behavior. There are very few ways to earn status in prison, so many inmates must display physical and verbal aggression to prove ones’ status. This verbal and physical aggression is also a way prison gangs band together and establish position within the prison. Because adolescents as a group tend to be highly sensitive to peer pressure, young offenders are especially likely to engage in violent behavior and to develop identities linked to domination and control.
Juveniles in prison are more likely to experience sexual assault. They feel most vulnerable to physical and sexual predation, which contributes to their exploitation; fear is often interpreted as a sign of weakness. Because of their vulnerability, adolescent inmates are more likely to be placed in protective or ‘safe-keep’ custody than are older inmates. Even though it seems separating kids from the adults is a good idea, it also has negative repercussions. Generally, inmates in protective custody are isolated from others around the clock, do not participate in educational or other programming, and have little recreation. This again shows the lack of rehabilitation children receive while in adult prison. Fear of victimization has connections to psychological well-being, especially among those who are unwilling or unable to retaliate against predators. Because they face such horrible conditions, youthful inmates face frequent anxiety and depression. Thus not only are young inmates more likely to be placed in protective custody because of their vulnerability to attack, but they are also more likely to be placed in specialized units for treatment of mental health problems.
To study the consequences of placing juveniles in adult prison, researchers interviewed juveniles from both types of detention centers. For most, adult prison was at best a test of will and endurance from which they hoped to emerge intact. At worst, it was a painful and denigrating experience that they pointed to as reason or justification for becoming more angry, embittered, cynical, or defeated or more skilled at committing crime.
More than half of the respondents currently incarcerated in juvenile facilities expressed confidence that they would remain law-abiding following release. The most common reason expressed for optimism was a shift in attitude about themselves brought on by relationships with program staff or skills learned from programs. Forty-two percent were uncertain about their futures, but only three percent anticipated they would commit further crimes. Only one-third of juveniles in the adult system expected to remain law abiding. Those who did say they expected to remain law abiding attributed the reason to time served or maturation during their stay. This is in contrast to the youths in the juvenile facilities who pointed to the rehabilitative aspects of the program. Forty-six percent of those in the adult system were uncertain that they would remain law abiding, and eighteen percent expected to reoffend.
The consequences of attending adult prison do not cease when the offender exits. In many ways, the consequences are just beginning. A felony record will follow someone forever. Depending on the state, a felony record can limit ones ability to vote, serve in the military, hold public office, or serve on jury duty. Obviously these rights only matter if the ex-con is not too disillusioned with society to want to participate. A past conviction can also limit an ex offender’s ability to receive certain professional licenses. Furthermore, as a result of a criminal conviction, offenders who are motivated to remove themselves from the criminal influence of former friends and associates may encounter obstacles that make it difficult to become integrated into conventional groups and activities. Development of significant bonds to ‘productive members of society’ has the potential to alter criminal trajectories. One example is marriage, where research shows bonds of affection and commitment interrupt criminal careers. A criminal past might limit the personal and social groups available to an ex-con. This could very much include potential dating partners.
Even greater consequences emerge when a person with a criminal record is looking for a job. Depending on the state, many youthful indiscretions are expunged when the offender turns eighteen. Transferring from juvenile detention to adult prison destroys that ability to hide acts committed while young from employers. Racial factors again emerge. A black man with a felony has almost zero legitimate job prospects. It is bad enough for black men without criminal records. A study by Princeton professor Devah Pager found that among those with no criminal record, white applicants were more than twice as likely to receive a callback relative to equally qualified black applicants. Whites with a felony conviction fared just as well, if not better than a black applicant with a clean background. What does this say for black job applicants with felony records? Since poverty and crime are so interrelated, crime will necessarily increase in the black community if one cannot find a job because one was previously convicted of a crime. This is a disastrous feedback loop. The ‘tough on crime’ policy of sending kids to adult prison with mandatory minimum sentences directly relates to this outcome.
SHOULD COURTS EVEN CONSIDER JUVENILES ADULTS?
A look at history shows much of the policy regarding children in the criminal justice system comes from common law and gut feelings. This policy, like many other criminal justice policies, is laughably devoid of scientific backing. Because of our needs for efficiency and to follow bright-line rules, the U.S. legal system has developed arbitrary ages to classify people. While seemingly absurd from an outside perspective, our legal system accepts treating two people born one day apart differently for committing the same crime in the name of predictability and efficiency. Unfortunately, this old way of doing things exists today, likely because of inertia and an unwillingness to change tradition. This paper showed lawmakers throughout history have been cognizant of juveniles’ inability to fully comprehend their criminal activities. Recent ‘tough on crime’ initiatives appear to throw all of that empathy out of the window. Because due process requires a mens rea element to crime, policy-makers behind initiatives sending juveniles to adult prisons must be assuming these youth have the necessary mens rea. Emerging science shows this might not be physically possible. This new science reliably shows that adolescents think and behave differently from adults, and that the deficits of teenagers in judgment and reasoning are the result of biological immaturity in brain development. MRI scans of the brain show not only is the brain of the adolescent far from mature, but both gray and white matter undergo extensive structural changes well past puberty.
In the past, society blamed typical teenage activities on raging hormones. Recent research shows hormones are a factor, but another large factor is the lack of physical cognitive controls needed for mature behavior. The brain develops in stages from back to front. Some of the brain regions that reach maturity earliest are those in the back that deal with direct contact with the environment by controlling vision, hearing, touch and spatial processing. The next stage of development happens when the brain learns to coordinate these functions. The final stage of development occurs in the prefrontal cortex. This part of the brain is responsible for planning, setting priorities, organizing thoughts, suppressing impulses and weighing the consequences of one’s actions. Recent research shows the combination of hormones and undeveloped teenage brains can lead to disastrous results. Sex hormones have a tremendous impact during the teen years. Not only do feelings reach a flash point more easily, but adolescents tend to seek out situations where they can allow their emotions and passions to run wild. Adolescents actively look for situations and experiences that will create intense feelings. This research shows there is a hormone-brain relationship contributing to the appetite for thrills, strong sensations and excitement. Temple psychologist Laurence Steinberg says the parts for exercising judgment are still maturing throughout the course of adolescence. So there is a time gap between when the brain impels kids toward taking risks early in adolescence and when the brain allows people to think before they act come online. “It’s like turning on the engine of a car without a skilled driver at the wheel.”
In laboratory experiments and studies across a wide range of adolescent populations, developmental psychologists show that adolescents are risk-takers who inflate the benefits of crime and sharply discount its consequences, even when they know the law. Adolescents take more risks with health and safety than do older adults, such as having unprotected sex, driving drunk, and engaging in other illegal behaviors. Adolescents are more impulsive than adults and insensitive to contextual cues that might temper their decisions. They lack the capacity for self-regulation of either impulses or emotions, and their tendency toward sensation seeking often trumps both self-regulation and social judgments or risks and consequences. Peer pressure greatly affects teens. A study looked at the willingness of teens and adults to run red lights. When alone, both groups make safe choices. But when in the presence of peers, teenagers were much more likely to take risks compared to those over the age of twenty.
The Supreme Court took this into consideration when it ruled the execution of defendants for crimes committed before eighteen violates the Eighth and Fourteenth Amendments. The Court noted juveniles' susceptibility to immature and irresponsible behavior means, “Their irresponsible conduct is not as morally reprehensible as that of an adult.” Further, “Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.” And finally, “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” This author urges the Court to continue this line of reasoning and strike down life sentences without the possibility of parole for juveniles as cruel and unusual punishment.
This author sees many problems with treating juveniles as adults. The most glaring problem is mandatory sentencing for young offenders for certain crimes. This is simply the system completely giving up on a child. This section explored the physical inability of juveniles to make what the system considers ‘adult’ decisions. There are many sociological and biological factors involved in the daily decision-making of juveniles. Mandatory sentencing throws all of these considerations away. The policy-makers behind the tough on crime initiatives over the last several decades are either political miscreants or callously indifferent to the youth disproportionately affected by such overbroad and over-inclusive laws. The fact that mostly black youth find themselves caught in this thunderstorm of indifference is even more infuriating. In an attempt to get a quick fix of the nonexistent problem of rampant youthful violence, these policy-makers are only going to create the problem they used as a boogeyman for more draconian laws. In an attempt to stop crime, they are only creating more. These mandatory laws will put more immature youth in jail, causing them to become actual, hardened criminals. They will get out and have no prospects for a job, leading them to commit the crimes they learned all about while in jail.
A second problem with the present system is the discretion given to courts and prosecutors to try juveniles as adults. Since its nascent state, the juvenile system has broken up the ‘good’ and ‘bad’ kids. The good kids go to juvenile detention and the bad go to jail. In deciding between good and bad, prosecutors and judges must decide what is in the best interest of justice. Again, the interest of justice is when the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant’s chance for rehabilitation. How can we expect these institutions to make the right decision on whether a child has a chance for rehabilitation if it cannot look at the long-term effects of jailing tens of thousands of juveniles and see that this practice has far greater harms to society than being lenient with an individual child and keeping him in juvenile detention? Furthermore, this interest of justice exploration sets up a false dichotomy of prison versus rehabilitation. A look at the conditions of many juvenile detention centers shows these places are not operating to rehabilitate its occupants. Many of these centers are ostensibly no different from adult jails. A final problem with unfettered discretion to judges and prosecutors is the unconscious racial bias that is pervasive throughout the criminal justice system. Often, a judge or prosecutor looks at the juvenile in question while considering whether he has any chance of rehabilitation. Suppose a judge sees only black offenders coming in for drug possession crimes over a week. Are we really supposed to think this will not affect his decision when the next black youth steps in front of the judge? In the determination of rehabilitative potential, two of the factors judges and prosecutors take into account are particularly prone to unconscious bias. The first is social background of the youth. If the offender is black, what will the judge think about the youth’s social background? What if the kid’s clothes are a little too baggy or he looks like an adult criminal the judge just sentenced last week to twenty years? Surely unconscious biases will creep into his decision. Like this section showed, we are not completely in control of our brains. The second factor prone to unconscious bias is the juvenile’s present intellectual development and psychological maturity. Since judges and prosecutors come from a strict legal background, we can probably assume they have certain ideas as to what makes up intelligence. The command of language is likely one of those aspects of intelligence. If a black youth comes from a different part of the city and speaks differently, are we to assume the judge will take the reasons for the youth’s different vernacular into account? The idea of development itself has cultural and socioeconomic bias underpinnings. Black and white kids might have different interests simply because of the areas of town they live in. Each group might have different access to certain opportunities. If a white kid is involved in school plays and the boy scouts when he commits a crime, a judge is probably going to be more lenient to him than a black kid who hangs out with his friends because his school district cut all after-school funding.
This paper has explored the history of the juvenile criminal justice system and found it has a tradition of leniency for youthful offenders. Only in recent history have our legislatures gotten ‘tough on crime’ and started charging and sentencing youthful offenders to adult sentences and prison stays. Unfortunately, many states have gone as far as allowing judges and prosecutors the full discretion to charge a person of any age for an adult crime. Mandatory sentencing and unfettered discretion combined with stereotypes and racial biases have created a system where over sixty percent of juveniles in adult prisons are black, compared to under twenty percent for white juveniles. A long-term look at this policy shows these kids going to adult prison for petty drug or property crimes will come out with an encyclopedic knowledge of crime. In many cases, their treatment while inside prison is unspeakable. How can we expect these children to become participants in our society if we tell them from a young age that they have no chance of rehabilitation? Our society is telling kids to become criminals by treating them this way. The teenage years are perhaps the most crucial time in a person’s life. It is a time where one learns to test boundaries without fear of drastic future repercussions. Imaging science tells us teenagers might not even be capable of understanding future consequences at this time. Other studies show how much teens are influenced by their hormones and other teens. In some ways, they are not even in control of many of their actions. It is wrong and immoral to take a child out of this developmental stage of life and throw him in prison for 25 years because one person thinks he has no chance of rehabilitation.
If a man have a stubborn and rebellious son, that will not hearken to the voice of his father, or the voice of his mother, and thought they chasten him, will not hearken unto them; then shall his father and his mother lay hold on him, and bring him unto the elders of his city, and unto the gate of his place; and they say unto the elders of his city: “This our son is stubborn and rebellious, he doth not hearken to our voice; he is a glutton, and a drunkard.” And all the men of his city shall stone him with stones, that he may die; so shalt thou put away the evil from the midst of thee; and all Israel shall hear, and fear. From the beginning of modern times, man has struggled with the question of what to do with juveniles when they do something society deems punishable if an adult were to act similarly. Are children the same as adults? Is there something endemic to the juvenile mind that suggests they are not as accountable for their actions as adults are? Our society deems juveniles unable to make many ‘adult’ decisions – smoking, drinking, voting, sexual activity, marriage and gambling to name a few. In the criminal justice context, however, we often consider juveniles able to make rational adult decisions. The present criminal justice system is in an anomalous situation of treating children with a combination of more severe punishment and less due process than at any other time in the history of our laws. This paper will examine the juvenile criminal justice system, explore how juveniles end up in adult prisons, and finally discuss the consequences of locking up our youth.
Anthony Laster was a fifteen-year-old eighth-grader with an IQ of fifty-eight who was described by relatives as having the mind of a five-year-old. One day in 1998, shortly after his mother died, Anthony was hungry, so he reached into the pocket of another student in his Florida middle school and took $2 in lunch money. The boy's family reported the crime to the authorities, and the local prosecutor, Barry Kirscher, decided to prosecute Anthony as an adult. He spent the next seven weeks in an adult jail waiting for his court date. Lionel Tate was a twelve year old boy and very interested in professional wrestling. He imitated one of his favorite wrestlers and caused life-ending injuries to a six-year-old girl. The state tried him as an adult and returned a verdict of life in prison without the possibility of parole. Nathaniel Brazill was thirteen years old when he shot and killed his teacher at a middle school in 2000. His teacher refused to let Nathaniel talk with two girls in the classroom and he claimed his gun accidentally went off. He received a twenty-eight year sentence after a conviction for second-degree murder. Cases like these are becoming more common around the United States due to the ‘tough on crime’ mantra repeated over the last several decades. The U.S. got much tougher on juvenile crime largely because of the surge of juvenile violence during the crack epidemic of the late 1980s and early 1990s. Lawmakers panicked and made juvenile justice far more punitive as an attempt to halt crime. But these new measures came after teenage violent crime rates began to fall dramatically, casting doubt on their legitimacy and effectiveness. This poor response to the problem from lawmakers now has the effect of punishing juvenile offenders more harshly, while the rate of juvenile violence is going down anyway. We therefore are now treating more juveniles as adults even though juvenile crime rates are dropping. But has it always been like this? An examination of the history of the juvenile justice system is necessary to better comprehend where we are today.
As shown in the opening, ideas of juvenile justice go back to biblical times. Jewish law at the time had very strict requirements concerning the adjudication and punishment of juveniles. Confessions, circumstantial evidence and hearsay were inadmissible in criminal cases. Convictions were difficult to obtain, and courts would acquit some factually guilty persons to assure no innocent juvenile would be convicted. America adopted its juvenile justice law in 1646 almost entirely from Deuteronomy. Colonial America was sometimes quite severe with juveniles, sometimes convicting and executing them. Courts frequently showed mercy, though. For example, a court acquitted a twelve-year-old boy from the capital offense of arson in 1792 even though he confessed to the crime. As the nineteenth century arrived, England and America began to mitigate the severity of the punishment for juveniles. The severity of the law was limited by: 1) bringing minor charges against children; 2) refusing to prosecute children; and 3) refusing to convict children. For example, between 1801 and 1836, one hundred three children received death sentences for theft crimes in England, but never for murder. None of the children were executed. America saw a similar practice. Courts rarely convicted juveniles for serious crimes. If they did, the conviction was usually reversed. Only two children were executed in America during the 19th century, and they were both sons of slaves.
The laws themselves protected children in the 19th century. Laws incorporated William Blackstone’s ideas of criminal incapacity of children dating back to 1796. Under these laws, children under seven could never be guilty of a felony; while a child between seven and fourteen was presumed to be incapable, but the presumption could be overcome by the prosecution. Juveniles also had procedural and substantive protections. For example, courts would not admit confessions from juvenile offenders because of their lack of capacity and sophistication. In one case, the New Jersey Supreme Court reversed the conviction of an eleven-year-old slave child for murder. The court noted, “With respect to confessions in general, and especially with respect to infants, it is necessary to be exceedingly guarded.” This look at history shows courts were lenient to juveniles in the 19th century. Courts often considered the fragility of youth and consistently threw out juvenile convictions.
The earliest effort to change the common law treatment of youths came from the House of Refuge movement of the 1820s. The Quakers were the primary proponents of this movement and their motivation came from their discomfort with the prevailing circumstances of poor children in the court system. They felt the legal system trapped juveniles. If a court acquitted them, they would just return to the poor conditions they came from. If not, they would go to jail and live among the adult criminals. While in these adult prisons, children would face horrible conditions. They would face unspeakable atrocities and return to society as hardened criminals. As the system developed, it became clear that housing young offenders and adult prisoners together was self-destructive and self-defeating. Enter the House of Refuge. The Quakers intended it to be a place where juveniles could go in order to prevent future crimes. They did this by separating the children they thought were capable of reformation. The children thought incapable of ‘being saved’ still went to adult prison. This marks the beginning of the practice of separating the ‘good’ and ‘bad’ children that a cursory look shows continues today. This House of Refuge was no vacation for juvenile offenders – they were subject to frequent and severe physical punishment.
Reformatories then emerged to replace Houses of Refuge. The goals of this movement were to segregate young offenders from adult criminals; imprison them for their own good and removing them from bad homes; minimize court proceedings and avoiding due process because incarceration was benevolent; provide indefinite sentences to last until the youth was reformed; and to use punishment only when other alternatives were unsuccessful. They used ideas of military exercise and supervision; used a cottage approach located in rural areas; focused on education with an emphasis on vocational training; and taught sobriety, thrift and industry. Although ostensibly a sound plan, real life application showed no improvement over the Houses of Refuge.
Due in part to the rising practice of jury nullification in trials dealing with juvenile offenders, Illinois passed the nation’s first Juvenile Court Act, leading to forty-six states, the District of Columbia and three territories following suit by 1925. Legislatures intended these courts to have sole jurisdiction over delinquent or neglected youth. The court had jurisdiction over boys until they were sixteen and girls until they turn seventeen. The acts defined a rehabilitative purpose to the system and emphasized the separation of children from adults when incarcerated. Following World War I, the increased training of social workers and development of the social work case-method shifted the focus from the treatment of delinquent children as a ‘group’ to the treatment of each delinquent as an ‘individual’. The development of government welfare agencies after World War II broadened the scope of services available to each child, resulting in a significant systemic shift to include both the prevention of juvenile delinquency and the rehabilitation of juvenile delinquents in detention facilities. The Supreme Court dealt with the juvenile court system by holding a youth’s due process rights were violated when he was waived to an adult court without a hearing, without giving the youth access to a lawyer for important social information, and without a reason for the lower court’s decision. In the decision the Court said, “While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guarantees applicable to adults. There is evidence, in fact that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults, nor the solicitous care and regenerative treatment postulated for children.”
The Court first applied the 14th Amendment due process clause to juvenile proceedings in 1967. Children and their parents finally had the right to notice of the charges against the child. Children also had the right to counsel, to be advised of the right, and to be appointed an attorney if indigent. The Court also granted the right of cross-examination of any witnesses against the child. Finally, children must be informed of their right of the privilege against self-incrimination. The Court finally recognized juvenile courts are criminal in nature. In 1989, the United Nations adopted the United Nations Convention on the Rights of the Child in order to establish internationally recognized minimum standards for a governments’ treatment of their children. The U.S. was a leader in developing this convention but never ratified it. Therefore it is not binding on American courts.
HOW JUVENILES END UP IN ADULT PRISONS
Juveniles become part of the federal adult criminal justice system through the process of transfer. Transfer hearings in federal courts are governed by the Federal Juvenile Delinquency Act. The Act’s transfer provisions apply to juveniles over the age of fifteen who are charged with either committing a violent crime that would be a felony if committed by an adult, or violating certain narcotics laws. This age lowers to thirteen if the juvenile is charged with a designated crime of violence or was in the possession of a firearm during the commission of the offense. The Act states the government must petition for a transfer hearing and convince a federal judge that transferring a juvenile is in the interest of justice. The interest of justice is when the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant’s chance for rehabilitation. The Act requires judges to consider these factors as indicia of rehabilitative potential:
1) Age and social background of the youth; 2) Nature of the alleged offense; 3) The extent and nature of the juvenile’s prior delinquency record; 4) The juvenile’s present intellectual development and psychological maturity; 5) The nature of past treatment efforts and the juvenile’s response to such efforts; and 6) The availability of programs designed to treat the juvenile’s behavioral problems.
The government must introduce evidence regarding all six factors , meaning a prosecutor is not able to simply eschew the factors not favoring transfer. However, Congress did not codify how Courts are to interpret and balance these factors. This has led to broad interpretation, from a court deciding it did not need to find that each factor weights in favor of transfer , to a court weighing each factor equally. Problems of judicial discretion amplify due to an abuse of discretion standard of review for judicial transfer decisions. An appeal claiming abuse of discretion is difficult because the decision, by law, was left to the judge in the first place. It is very unlikely that a court will not apply the correct law or rest its decision on a clearly erroneous finding of a material fact in order to satisfy the abuse of discretion standard.
The Act has a presumption in favor of state jurisdiction over juveniles committing federal offenses. Therefore it is much more common to see juveniles in state, rather than federal courts. Every state has unique criminal laws, so this paper will choose Michigan as a case study. In Michigan, there are two ways to try a youthful offender as an adult. The first is waiver. Traditional judicial waiver applies to children at least fourteen years old and charged with a felony. This provision is rarely used. The prosecution files a petition in the family division of the circuit court and then files a motion requesting the court to waive its jurisdiction to the adult division of circuit court. Next is a two-step process. The court first determines whether there is probable cause to believe that a felony has been committed. Next, the court must determine whether there is probable cause to believe the juvenile charged with that crime committed that crime. After this determination, the court decides if the best interest of the juvenile and the public would be served by granting a waiver of jurisdiction to the court of general criminal jurisdiction. The court must give greater weight to the seriousness of the alleged offense and the juvenile’s prior record of delinquency. It also considers aggravating factors recognized by the sentencing guidelines. Looking at the evolution of juvenile law in Michigan, the law increasingly applies adult legal standards that seek only to punish offenders as opposed to rehabilitate them. The laws themselves have taken much of the ability away from judges to decide cases based on individual circumstances.
A second form of waiver is prosecutorial waiver. Also known as direct file, the prosecutor can file charges with the adult criminal court instead of the juvenile division for anyone over fourteen. The prosecutor has seventeen offenses she can choose from to use this waiver. She can also automatically waive for attempt, conspiracy, solicitation, lesser-included offenses and any violation arising out of the same transaction. The legislature did not codify any guidelines for how a prosecutor is to use her discretion. The prosecutor therefore has complete discretion to charge in any way she wants. Courts have made it clear that they will not seriously examine charging decisions. Regardless of which waiver used, if a child is convicted post waiver, he must serve an adult sentence for most offenses. If the child’s conviction is for possessing a controlled substance, the court must sentence that child to no less than twenty-five years.
The second way to try a child as an adult in Michigan is through a process called designation. According to the designation provision, any child charged with an offense may be tried in the same manner as an adult. Similar to waiver, there are two types of designation. Prosecutorial designation gives a prosecutor the power to try a child under the same procedures and penalties afforded to adults. This literally means the prosecution can try a child of any age for any of the seventeen offenses provided by statute. The only thing the prosecutor must do in order to use this discretion is charge the youth with a specified juvenile violation. There are no guidelines for how a prosecutor is to use this discretion. The second type of designation is judicial designation. For all charges other than ‘specified juvenile violations,’ the court may designate a case to be handled like an adult proceeding. In order for this to happen, the prosecution must request designation. The court will then hold a hearing. This hearing is the same as a hearing for waiver, and the court again weighs the seriousness of the alleged offense and the juvenile’s poor delinquency record. After designation, the proceedings are exactly the same as adult proceedings until sentencing. The court has three sentencing options if the child is tried and convicted as an adult. First, the court may enter a disposition, treating the case as a delinquency matter. The law presumes that this is the appropriate sanction unless the court determines that the best interests of the public would be served by sentencing the juvenile as an adult. In the second option, the court can simply enter an adult sentence. Finally, the court may delay the imposition of the adult sentence and enter a disposition pursuant to the juvenile code. The court must then periodically review that decision. If the child violates the terms and conditions of the disposition, the court may impose an adult sentence at any time. If such a violation is based upon the commission of a felony or a misdemeanor punishable by more than a year in prison, the court must impose an adult sentence. Finally, Michigan has mandatory sentencing. Any young person who falls under the family court’s jurisdiction for an offense where he used a firearm must be committed to a detention facility for a specified period of time. This law appears to go against the initial aims of the juvenile system, where a child’s individual circumstances are taken into account in each case. Now there is no room in the process for considering why a child might have had a gun. There are no mitigating factors. He simply faces a mandatory sentence.
Michigan’s practice of giving prosecutors and judges almost full discretion to charge juveniles with adult crimes is not unique. Almost every state has some form of judicial waiver. This process has no doubt led to many children serving long adult sentences. Statistics are startling. There are at least 2,225 child offenders serving life without parole sentences in U.S prisons for crimes committed before they were age 18. While many of the child offenders are now adults, sixteen percent were between thirteen and fifteen years old at the time they committed their crimes. An estimated fifty-nine percent were sentenced to life without parole for their first criminal conviction. Forty-two states currently have laws allowing children to receive life without parole sentences.
This paper has not yet addressed this topic, but African American youth are disproportionately affected in this area. Youths waived to criminal court are disproportionately older, male and nonwhite. In 1995, whites made up approximately eighty percent of the population at risk for delinquency and accounted for sixty-six percent of the delinquency cases formally disposed by the juvenile courts. However, only forty-six percent of those waived were white offenders. Racial disparities in waiver are only increasing over time. In 1978, thirty-nine percent of waived youths were nonwhite. By 1985, that number was forty-four percent, and rose to fifty-four percent a decade after that. Blacks are waived at higher rates than whites in all offense categories. A study looking at data found for all offense types, all age categories, and all years, black youths were more likely to be waived to criminal court than their white counterparts. The numbers are greatest for youths charged with person and drug offenses. Since drug arrests disproportionately harm African Americans , simple mathematics and logic suggest the more drug arrests we have, the more black youths will go to prison.
TREATMENT OF JUVENILES IN PRISON
Now that it has been shown how easy it is for youths to end up in the criminal justice system, it seems necessary to discuss their treatment in these confines. Juvenile detention centers do not appear to be much different from their adult counterparts. Take, for example, Arkansas facilities in the 1970s where juveniles were forced to kill dogs as discipline, forced to wear a dog's tail, chained to a bed as punishment, forced to eat feces and vomit, and made to get on their hands and knees and oink like pigs. When asked about this officials responded, “The program is good and should be continued.” Because of such inhumane, punitive treatment, Congress passed the Juvenile Justice and Delinquency Prevention Act in 1974. This act focused on the rehabilitative aspect of the system as opposed to punitive treatment. The Act gave grants to states if they separated juvenile from adult offenders and promoted other advanced juvenile justice practices. It set forth rehabilitation as the goal of detaining juveniles. The National Juvenile Detention Association defined juvenile detention as the “Temporary and safe custody of juveniles who are accused of conduct subject to the jurisdiction of the court and require a restricted environment for their own community’s safety while pending legal action. Further, juvenile detention provides a wide range of helpful services that support the juvenile’s physical, emotional, and social development. Helpful services minimally include: education, recreation, counseling, nutrition, medical and health care services, reading, visitation, communication, and continuous supervision.” An analysis of the conditions juveniles face will show if the system is living up to its description.
Overcrowding is a huge problem. A study showed as far back as 1993, more than seventy-five percent of juvenile facilities were overcrowded. Thirty percent of juveniles slept in undersized rooms. The ACLU intervened in Maryland in 1996 because juvenile centers were operating at forty percent above capacity. Overcrowding is not just a problem because it inconveniences those in the detention center. It leads to more incidents of institutional violence, suicidal behavior and an increased use of short-term isolation. Centers often rely on solitary confinement as punishment. Because of the fragile psychological makeup of children, there is no telling what effects this has. An Office of Juvenile Justice and Delinquency Protection study found facilities housing fifteen percent of all incarcerated juveniles had no limit on solitary confinement. Another study found more than 435,800 juveniles were subject to solitary confinement over a year and 84,000 juveniles were subject to solitary confinement for over twenty-four hours at a time. Suicide attempts become common. In one year 11,000 juveniles committed 17,600 acts of suicidal behavior.
Because juveniles are often sent to adult prison, we must look at their conditions while in adult prison. Children in adult prison are five times more likely to suffer sexual assault than in juvenile detention. In adult prison, children are two times more likely to suffer physical abuse from prison guards and fifty percent more likely to be attacked with a weapon than juvenile facilities.
CONSEQUENCES OF IMPRISONING JUVENILES
Adult prison exposes children to many things they would not see in juvenile prison. The number of people within prison itself causes significant problems. In large institutions, even in settings where the avowed purpose is to treat rather than punish, security concerns tend to become all-consuming. To insure the safety of inmates and staff and to guard against escape, regulations governing nearly every aspect of inmate life, and searches, segregation, counts, and restrictions on movement are routine. The stated aims behind juvenile detention center on rehabilitation. Placing juveniles in adult prison is completely antithetical to these stated aims because there is virtually no rehabilitation. Because prisons are primarily custodial facilities, most inmates do not engage in programs aimed at their personal or social development. In one survey of juvenile offenders in adult prison, many expressed a desire to participate in rehabilitative programming, but fewer than 10 percent were engaged in any sort of counseling or treatment program.
The physical setting of adult prison provides many more opportunities for private interaction among inmates than in juvenile facilities. In juvenile programs, staff participate in activities with small groups of youths throughout the day and, at night, remain proximate to them in their dormitories. In the prisons, for much of the day large groups of inmates congregate in the yard while correctional officers watch at a distance from the perimeter. During the evenings, inmates remain in their cells or dormitories supervised by correctional officers separated from them in glass-enclosed control rooms. Youths in prison spend much of their time talking to more skilled and experienced offenders who teach them new techniques of committing crime and methods of avoiding detection. Strained relations between inmates and staff provide additional incentive to plan unlawful behaviors surreptitiously.
Prisons are dangerous places where inmate norms frequently support violent behavior. There are very few ways to earn status in prison, so many inmates must display physical and verbal aggression to prove ones’ status. This verbal and physical aggression is also a way prison gangs band together and establish position within the prison. Because adolescents as a group tend to be highly sensitive to peer pressure, young offenders are especially likely to engage in violent behavior and to develop identities linked to domination and control.
Juveniles in prison are more likely to experience sexual assault. They feel most vulnerable to physical and sexual predation, which contributes to their exploitation; fear is often interpreted as a sign of weakness. Because of their vulnerability, adolescent inmates are more likely to be placed in protective or ‘safe-keep’ custody than are older inmates. Even though it seems separating kids from the adults is a good idea, it also has negative repercussions. Generally, inmates in protective custody are isolated from others around the clock, do not participate in educational or other programming, and have little recreation. This again shows the lack of rehabilitation children receive while in adult prison. Fear of victimization has connections to psychological well-being, especially among those who are unwilling or unable to retaliate against predators. Because they face such horrible conditions, youthful inmates face frequent anxiety and depression. Thus not only are young inmates more likely to be placed in protective custody because of their vulnerability to attack, but they are also more likely to be placed in specialized units for treatment of mental health problems.
To study the consequences of placing juveniles in adult prison, researchers interviewed juveniles from both types of detention centers. For most, adult prison was at best a test of will and endurance from which they hoped to emerge intact. At worst, it was a painful and denigrating experience that they pointed to as reason or justification for becoming more angry, embittered, cynical, or defeated or more skilled at committing crime.
More than half of the respondents currently incarcerated in juvenile facilities expressed confidence that they would remain law-abiding following release. The most common reason expressed for optimism was a shift in attitude about themselves brought on by relationships with program staff or skills learned from programs. Forty-two percent were uncertain about their futures, but only three percent anticipated they would commit further crimes. Only one-third of juveniles in the adult system expected to remain law abiding. Those who did say they expected to remain law abiding attributed the reason to time served or maturation during their stay. This is in contrast to the youths in the juvenile facilities who pointed to the rehabilitative aspects of the program. Forty-six percent of those in the adult system were uncertain that they would remain law abiding, and eighteen percent expected to reoffend.
The consequences of attending adult prison do not cease when the offender exits. In many ways, the consequences are just beginning. A felony record will follow someone forever. Depending on the state, a felony record can limit ones ability to vote, serve in the military, hold public office, or serve on jury duty. Obviously these rights only matter if the ex-con is not too disillusioned with society to want to participate. A past conviction can also limit an ex offender’s ability to receive certain professional licenses. Furthermore, as a result of a criminal conviction, offenders who are motivated to remove themselves from the criminal influence of former friends and associates may encounter obstacles that make it difficult to become integrated into conventional groups and activities. Development of significant bonds to ‘productive members of society’ has the potential to alter criminal trajectories. One example is marriage, where research shows bonds of affection and commitment interrupt criminal careers. A criminal past might limit the personal and social groups available to an ex-con. This could very much include potential dating partners.
Even greater consequences emerge when a person with a criminal record is looking for a job. Depending on the state, many youthful indiscretions are expunged when the offender turns eighteen. Transferring from juvenile detention to adult prison destroys that ability to hide acts committed while young from employers. Racial factors again emerge. A black man with a felony has almost zero legitimate job prospects. It is bad enough for black men without criminal records. A study by Princeton professor Devah Pager found that among those with no criminal record, white applicants were more than twice as likely to receive a callback relative to equally qualified black applicants. Whites with a felony conviction fared just as well, if not better than a black applicant with a clean background. What does this say for black job applicants with felony records? Since poverty and crime are so interrelated, crime will necessarily increase in the black community if one cannot find a job because one was previously convicted of a crime. This is a disastrous feedback loop. The ‘tough on crime’ policy of sending kids to adult prison with mandatory minimum sentences directly relates to this outcome.
SHOULD COURTS EVEN CONSIDER JUVENILES ADULTS?
A look at history shows much of the policy regarding children in the criminal justice system comes from common law and gut feelings. This policy, like many other criminal justice policies, is laughably devoid of scientific backing. Because of our needs for efficiency and to follow bright-line rules, the U.S. legal system has developed arbitrary ages to classify people. While seemingly absurd from an outside perspective, our legal system accepts treating two people born one day apart differently for committing the same crime in the name of predictability and efficiency. Unfortunately, this old way of doing things exists today, likely because of inertia and an unwillingness to change tradition. This paper showed lawmakers throughout history have been cognizant of juveniles’ inability to fully comprehend their criminal activities. Recent ‘tough on crime’ initiatives appear to throw all of that empathy out of the window. Because due process requires a mens rea element to crime, policy-makers behind initiatives sending juveniles to adult prisons must be assuming these youth have the necessary mens rea. Emerging science shows this might not be physically possible. This new science reliably shows that adolescents think and behave differently from adults, and that the deficits of teenagers in judgment and reasoning are the result of biological immaturity in brain development. MRI scans of the brain show not only is the brain of the adolescent far from mature, but both gray and white matter undergo extensive structural changes well past puberty.
In the past, society blamed typical teenage activities on raging hormones. Recent research shows hormones are a factor, but another large factor is the lack of physical cognitive controls needed for mature behavior. The brain develops in stages from back to front. Some of the brain regions that reach maturity earliest are those in the back that deal with direct contact with the environment by controlling vision, hearing, touch and spatial processing. The next stage of development happens when the brain learns to coordinate these functions. The final stage of development occurs in the prefrontal cortex. This part of the brain is responsible for planning, setting priorities, organizing thoughts, suppressing impulses and weighing the consequences of one’s actions. Recent research shows the combination of hormones and undeveloped teenage brains can lead to disastrous results. Sex hormones have a tremendous impact during the teen years. Not only do feelings reach a flash point more easily, but adolescents tend to seek out situations where they can allow their emotions and passions to run wild. Adolescents actively look for situations and experiences that will create intense feelings. This research shows there is a hormone-brain relationship contributing to the appetite for thrills, strong sensations and excitement. Temple psychologist Laurence Steinberg says the parts for exercising judgment are still maturing throughout the course of adolescence. So there is a time gap between when the brain impels kids toward taking risks early in adolescence and when the brain allows people to think before they act come online. “It’s like turning on the engine of a car without a skilled driver at the wheel.”
In laboratory experiments and studies across a wide range of adolescent populations, developmental psychologists show that adolescents are risk-takers who inflate the benefits of crime and sharply discount its consequences, even when they know the law. Adolescents take more risks with health and safety than do older adults, such as having unprotected sex, driving drunk, and engaging in other illegal behaviors. Adolescents are more impulsive than adults and insensitive to contextual cues that might temper their decisions. They lack the capacity for self-regulation of either impulses or emotions, and their tendency toward sensation seeking often trumps both self-regulation and social judgments or risks and consequences. Peer pressure greatly affects teens. A study looked at the willingness of teens and adults to run red lights. When alone, both groups make safe choices. But when in the presence of peers, teenagers were much more likely to take risks compared to those over the age of twenty.
The Supreme Court took this into consideration when it ruled the execution of defendants for crimes committed before eighteen violates the Eighth and Fourteenth Amendments. The Court noted juveniles' susceptibility to immature and irresponsible behavior means, “Their irresponsible conduct is not as morally reprehensible as that of an adult.” Further, “Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.” And finally, “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.” This author urges the Court to continue this line of reasoning and strike down life sentences without the possibility of parole for juveniles as cruel and unusual punishment.
This author sees many problems with treating juveniles as adults. The most glaring problem is mandatory sentencing for young offenders for certain crimes. This is simply the system completely giving up on a child. This section explored the physical inability of juveniles to make what the system considers ‘adult’ decisions. There are many sociological and biological factors involved in the daily decision-making of juveniles. Mandatory sentencing throws all of these considerations away. The policy-makers behind the tough on crime initiatives over the last several decades are either political miscreants or callously indifferent to the youth disproportionately affected by such overbroad and over-inclusive laws. The fact that mostly black youth find themselves caught in this thunderstorm of indifference is even more infuriating. In an attempt to get a quick fix of the nonexistent problem of rampant youthful violence, these policy-makers are only going to create the problem they used as a boogeyman for more draconian laws. In an attempt to stop crime, they are only creating more. These mandatory laws will put more immature youth in jail, causing them to become actual, hardened criminals. They will get out and have no prospects for a job, leading them to commit the crimes they learned all about while in jail.
A second problem with the present system is the discretion given to courts and prosecutors to try juveniles as adults. Since its nascent state, the juvenile system has broken up the ‘good’ and ‘bad’ kids. The good kids go to juvenile detention and the bad go to jail. In deciding between good and bad, prosecutors and judges must decide what is in the best interest of justice. Again, the interest of justice is when the risk of harm to society posed by affording the defendant more lenient treatment within the juvenile justice system outweighs the defendant’s chance for rehabilitation. How can we expect these institutions to make the right decision on whether a child has a chance for rehabilitation if it cannot look at the long-term effects of jailing tens of thousands of juveniles and see that this practice has far greater harms to society than being lenient with an individual child and keeping him in juvenile detention? Furthermore, this interest of justice exploration sets up a false dichotomy of prison versus rehabilitation. A look at the conditions of many juvenile detention centers shows these places are not operating to rehabilitate its occupants. Many of these centers are ostensibly no different from adult jails. A final problem with unfettered discretion to judges and prosecutors is the unconscious racial bias that is pervasive throughout the criminal justice system. Often, a judge or prosecutor looks at the juvenile in question while considering whether he has any chance of rehabilitation. Suppose a judge sees only black offenders coming in for drug possession crimes over a week. Are we really supposed to think this will not affect his decision when the next black youth steps in front of the judge? In the determination of rehabilitative potential, two of the factors judges and prosecutors take into account are particularly prone to unconscious bias. The first is social background of the youth. If the offender is black, what will the judge think about the youth’s social background? What if the kid’s clothes are a little too baggy or he looks like an adult criminal the judge just sentenced last week to twenty years? Surely unconscious biases will creep into his decision. Like this section showed, we are not completely in control of our brains. The second factor prone to unconscious bias is the juvenile’s present intellectual development and psychological maturity. Since judges and prosecutors come from a strict legal background, we can probably assume they have certain ideas as to what makes up intelligence. The command of language is likely one of those aspects of intelligence. If a black youth comes from a different part of the city and speaks differently, are we to assume the judge will take the reasons for the youth’s different vernacular into account? The idea of development itself has cultural and socioeconomic bias underpinnings. Black and white kids might have different interests simply because of the areas of town they live in. Each group might have different access to certain opportunities. If a white kid is involved in school plays and the boy scouts when he commits a crime, a judge is probably going to be more lenient to him than a black kid who hangs out with his friends because his school district cut all after-school funding.
This paper has explored the history of the juvenile criminal justice system and found it has a tradition of leniency for youthful offenders. Only in recent history have our legislatures gotten ‘tough on crime’ and started charging and sentencing youthful offenders to adult sentences and prison stays. Unfortunately, many states have gone as far as allowing judges and prosecutors the full discretion to charge a person of any age for an adult crime. Mandatory sentencing and unfettered discretion combined with stereotypes and racial biases have created a system where over sixty percent of juveniles in adult prisons are black, compared to under twenty percent for white juveniles. A long-term look at this policy shows these kids going to adult prison for petty drug or property crimes will come out with an encyclopedic knowledge of crime. In many cases, their treatment while inside prison is unspeakable. How can we expect these children to become participants in our society if we tell them from a young age that they have no chance of rehabilitation? Our society is telling kids to become criminals by treating them this way. The teenage years are perhaps the most crucial time in a person’s life. It is a time where one learns to test boundaries without fear of drastic future repercussions. Imaging science tells us teenagers might not even be capable of understanding future consequences at this time. Other studies show how much teens are influenced by their hormones and other teens. In some ways, they are not even in control of many of their actions. It is wrong and immoral to take a child out of this developmental stage of life and throw him in prison for 25 years because one person thinks he has no chance of rehabilitation.
Thursday, May 7, 2009
Free Manny
For so long fans willfully shielded our eyes from what it takes to perform at such a high level. We expect the best out of these players and boo them mercilessly when they do not perform to our lofty expectations. We are just as much to blame and fans can swallow their righteous indignation. If everyone else is taking performance enhancing drugs, you HAVE to in order to remain in the league unless you are a natural superstar. Nearly everyone would do the same if it meant a paycheck for the only thing you know how to do in life.
Who cares if players use PEDs? If they are able to play head and shoulders above everyone else, they are still better than everyone else regardless of PEDs used. They are the ones facing health repercussions in the future, and they are adults who can make that decision.
Do you want your number 3 hitter batting .240? Would you watch your team if everyone had warning track power? I doubt it. And don't think PEDs came around a few years ago. Your favorite player from years past was probably doing something he shouldn't have as well.
Fans created this environment. Now deal with it.
Who cares if players use PEDs? If they are able to play head and shoulders above everyone else, they are still better than everyone else regardless of PEDs used. They are the ones facing health repercussions in the future, and they are adults who can make that decision.
Do you want your number 3 hitter batting .240? Would you watch your team if everyone had warning track power? I doubt it. And don't think PEDs came around a few years ago. Your favorite player from years past was probably doing something he shouldn't have as well.
Fans created this environment. Now deal with it.
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