Edition: U.S. / Global

The Maximum Security Adolescent

Published: September 10, 2000
(Page 3 of 9)

I didn't meet Marco that day, but I talked to his lawyer, an energetic, no-nonsense woman named Frances Gray, who is 47 and came to the law after a career as a software programmer for Bell Atlantic. Gray liked Marco and was worried about his fate. ''Charged in the adult system,'' she wrote me in an e-mail message after our meeting, ''his offenses mandate adult prison -- five years minimum'' in the one adult facility in Arizona that takes juveniles. But, Gray wrote, the prison has ''no counseling programs for juvenile sex offenders like my client. All of the research on juvenile sex offenders emphasizes the importance of, and amenability to, treatment for this vulnerable age group.'' In fact, the only thing prison could do for kids like Marco was to ''segregate them so they don't get beaten up by the general population (all sex offenders are preyed upon in jails and prisons) until they turn 18 and are thrown to the 'wolves' in the adult sex offender treatment program.''

When I talked to Gray, she had been assembling evidence about juvenile sex offenders in general and Marco in particular, and what she had found made her only more determined to get him into treatment in the juvenile system. In the first place, Marco admitted what he had done and showed remorse. ''Please tell Mom and Dad that I'm sorry,'' he wrote to the victim, his sister Helena, on the night he was arrested. ''I can't imagine the pain and hurt this is causing them. I hope that someday they will forgive me as well. Helena, I'm sorry I ever did this to you, especially for your being my sister. . . . You can't even imagine how bad and guilty I feel about what I did.'' In the second place, he had not fondled any other children, nor had he tried to lure any others to him with candy or other bribes. ''He is a young man who is in need of therapeutic assistance,'' concluded a psychologist and sexual-abuse expert who evaluated him. ''However, I do not see him as an individual who represents a high risk for subsequent victimization of others around him.''

At home in the evenings, Gray couldn't get the case out of her mind. She feared that if Marco went to prison as a boy, he would emerge as a man beyond reach. ''You tell kids, If you don't shape up, you go to prison. And then you have a first offense and you're sent to prison. What more can society hold over you?'' She thought she had some good evidence about Marco's prospects for rehabilitation, and her research had convinced her that the majority of sexual offenses committed by adolescents were one-time events -- especially if the kids got help. But she also knew that lawyers trying to keep juveniles out of adult prison were playing a much harder game now.

One hundred years ago, when progressive-era reformers first invented the idea of a separate justice system for juveniles, it was boys like Jeff and Marco they had in mind. Nearly everything about the newly created juvenile court, from its paternalistic ethos to its central tenet that juveniles were not to be confused with hardened criminals to its goal of sentencing ''in the best interest of the child,'' represented a radical break with the past and a pledge of faith in the malleability of youth. Until then, children had been tried, sentenced, imprisoned and sometimes executed alongside adults.


The common-law tradition did offer some recognition that young children were different from adults. Children under 7 who committed crimes were presumed not to be responsible for them and could not be punished. But after that, the question of culpability got murkier. Those between the ages of 7 and 14 were generally thought to lack responsibility for their actions. Those between 14 and 21 were presumed capable of forming criminal intent and were therefore punishable. Yet as early as the 1820's, judges who had to sentence juveniles in criminal court worried openly about the implications of putting young people behind bars. Letting them off scot-free was neither morally nor socially acceptable, but sending them to jail or prison with adults was like consigning them, in the words of one judge, to a ''nursery of vices and crimes, a college for the perfection of adepts in guilt.''

By the turn of the century, these qualms had spread widely enough to make jury nullification a problem: jurors were acquitting young lawbreakers rather than imposing sentences that would lock them up with adults. At the same time, the emerging child-study movement and the new specialty of pediatrics helped popularize the idea that childhood was a distinct phase of life and that adolescents, in particular, moved through discrete developmental stages, which adults had a duty to try and understand. Like compulsory school-attendance laws and bans on child labor, the juvenile court was a product of this new approach to childhood. It was to be presided over by a judge in street clothes, not a black robe, seated at a desk, where he could easily put a reassuring arm around a troubled lad.

In 1899, Illinois established the first juvenile court; by 1925, 46 states had done the same. The idea of a justice system tailored for children sank deep roots in American culture. In fact, it was not until the late 1960's that the system came under any real questioning. Paradoxically, the assault was launched by the civil liberties left. Because the juvenile court was supposed to be helping the accused child and because it shielded his identity in a way the criminal court did not, it was liberated from the necessity for due process protections -- the right to counsel, the right to confront witnesses, the privilege against self-incrimination and so forth. The trouble with this arrangement was that it offered the court nearly unlimited authority to confine youths while it devised cures for their antisocial behavior.