The American system of juvenile justice is one of those festering national scandals which occasionally attract public attention—generally after an especially odious case of injustice or brutality—and then sink back into the hidden corners of routine neglect and abuse. Since the Supreme Court decision in the Gault case (1967),1 juveniles have been given some of the rights of due process guaranteed adult defendants in criminal cases (the right to counsel and to an adversary proceeding in court); but they still fall under the shadow of a legal doctrine in which the court, the probation officer, and the correctional institution are supposed to protect and “treat” those who come under their jurisdiction and formal criminal proceedings are regarded as inappropriate.
All juvenile court proceedings are technically civil cases. As a consequence, juvenile courts routinely sentence minors to extended terms of “supervision” and “treatment” for petty offenses. If these were committed by an adult, many would result in no more than a fine or thirty days in jail. In cases of truancy, running away from home, or “incorrigibility,” they would not be regarded as offenses at all. The quid pro quo for this loss of liberty was supposed to be the treatment itself. As often as not, the treatment consists of a combination of psychoactive drugs, brutality, and neglect.
On August 30, while the national press was looking the other way, a federal judge in Tyler, Texas, handed down a decision which is likely to shake up not only the juvenile justice system but a good many other institutions, including state mental hospitals and possibly even the public schools.2 The judge, William Wayne Justice, a Johnson appointee, ordered the Texas Youth Council to close down the state’s two major training schools for boys and to collaborate in a plan for adequate treatment in other state institutions and in nonresidential settings.
Young people in the two schools, according to unrefuted testimony, had been systematically kicked, stomped, and beaten with sticks and fists. They were routinely forced to do meaningless work for as long as six hours at a time (e.g., pulling blades of grass without bending their knees, or standing in four feet of sewage in open trenches shoveling slime). Some were injected with powerful tranquilizers without medical supervision (and then beaten for falling asleep), forced to sign false “incident reports” to explain injuries inflicted by guards. Others were locked in solitary cells for as long as thirty days at the discretion of their keepers. Some of these children were under twelve years old.
Such institutions, said Judge Justice, “are places where the delivery of effective rehabilitative treatment is impossible…. The court finds specifically that no reforms or alterations can rescue these institutions from their historical excesses.” He ordered the parties in the case—lawyers for the inmates, a number of professional and civil liberties groups, and the Justice Department, which joined the case as amici, and the Texas Youth Council—to produce a plan for improved rehabilitation based on new minimum standards that would require fundamental changes in Texas institutions. These included community facilities where the children would not have to be confined, a more qualified professional staff, and the use of psychiatric and educational screening devices to diagnose personal problems and help in placing juveniles in the institution best suited to them. The State of Texas has appealed the decision, and the plan is yet to be worked out. Peter B. Sandmann of the San Francisco Youth Law Center, chief counsel for the plaintiffs, is confident that the main points of the decision will be upheld.3
The Texas decision is only the most recent in a series of “right to treatment” cases which have been litigated in the past three years. Earlier this spring, in Donaldson v. O’Connor,4 the Circuit Court of Appeals for the Fifth Circuit upheld a Florida verdict awarding $38,000 in damages to a former mental patient who claimed he had been denied treatment and who successfully sued two staff members of the hospital to which he had been committed for fifteen years.
In 1972, a federal judge in Alabama ordered the Bryce Hospital in Tuscaloosa to provide better treatment and end its abuse of patients. 5 “The purpose of involuntary hospitalization,” the court said in the Alabama case, “is treatment and not mere custodial care or punishment. This is the only justification, from a constitutional stand-point, that allows civil commitments to institutions such as Bryce.” Together, those decisions asserted the principle that juveniles and mental patients committed in civil proceedings are being deprived of due process if the state does not offer the quid pro quo of adequate treatment. Although none of these cases has yet reached the Supreme Court (the defendants in Donaldson have applied for Supreme Court review) the Court has in the past suggested some sympathy for “right to treatment.” “To the extent that the special procedures for juveniles are thought to be justified by the special consideration and treatment afforded them,” the Court said in Gault, “there is reason to doubt that juveniles always receive the benefits of such a quid pro quo.”
The implications of these decisions—and particularly of the Texas case—are enormous. People who are involuntarily committed have been given their most powerful weapon against institutional abuse. The cases seem to establish at least the principle of minimum standards of treatment. Peter Sandmann was doubtful that the precedent, if upheld, could be used against inadequate public schools because, in his view, there were no satisfactory remedies. But there is at least a possibility that parents of children subject to flagrantly bad schooling could use it to force school systems to provide their children (who are deprived of their liberty by compulsory school attendance laws) with new programs, or to issue vouchers to pay tuition in private, parochial, or community schools.
But there also exists a more ominous possibility. The Texas decision might help to produce more subtle and insidious techniques of control by the state. The less obviously brutal the “treatment” offered, the less reluctant judges and probation officers will be in assigning the system new clients, and the less likely that juveniles will ever be accorded full due process rights. Long before the Texas decision was rendered, but after the case had been filed, the Texas Youth Council hired consultants to develop “behavior modification” programs and other psychological techniques that would produce conformity, maintain order, and rehabilitate the juveniles entrusted to its care. Partly in recognition of those dangers, Sandmann and his colleagues have asked that groups of monitors be set up to oversee the Texas system. Even before the case ended one of the institutions had organized a “positive peer group culture” program which has already led to complaints that beating by guards has been replaced by beatings by other inmates.
When the juvenile justice system was first established at the turn of the century, it was regarded as a splendid reform; since that time it has often resulted in the worst of all possible worlds, both depriving its subjects of due process and locking them up for indefinite terms without providing any treatment whatever. The latest round of reforms may represent more of the same. Psychological “conditioning” and related forms of treatment leave fewer physical scars but they may be no less pernicious or intrusive, particularly when used by the state. They may well increase the temptation to “treat” more people—in community centers, mental health clinics, “predelinquency” programs and schools.
During the last five years, partly in response to the Gault case, the federal government, through the Law Enforcement Assistance Administration, has paid for scores of programs designed to “treat” juveniles before they have had any contact with the law or committed any offense. In Southern California, for example, second-grade children identified by their teachers as “disruptive” have been enrolled in LEAA-funded “predelinquency” projects. The resulting treatment may amount to nothing more than “counseling,” but the process has a tendency to single out certain children, and to condition them to think of themselves as deviants, a process that has often been shown to have a self-fulfilling effect.6 “The corrections people are going to stand in line for behavior modification,” said Jerome Miller, who, as commissioner of the Department of Youth Services in Massachusetts, managed to close several of that state’s “maximum security” training schools.7 “Behavior modification will help them maintain the system; they’ll have a whole new generation of professionals to front for them.” The same has been said for psychiatrists and social workers.
Miller also believes, however, that closing the most repressive institutions might work to force reforms in many state-run institutions. The “maximum security” reformatories, where the most brutal practices generally take place, now provide a raison d’être for the entire system of juvenile treatment. They supply the harsh physical threat that serves to intimidate those who don’t “adapt” to less severe treatment; their existence helps to make milder punishment, and threats and inducements to “treatment,” more credible and legitimate. Underlying almost every argument for “prevention” are the places where the most “difficult” young people are dealt with most brutally. “To the degree that you can penetrate the deep end,” Miller said, “the rest will take care of itself.” This is far from sure but the inmates may have a stronger chance to assert some rights against their keepers.
October 31, 1974
In re Gault, 387 US 1. The opinion was written by Abe Fortas. “Under our Constitution,” he said, “the condition of being a boy does not justify a kangaroo court.” The decision, however, did not mandate all the guarantees of criminal due process. Trial by jury, for example, is not required in juvenile courts, although some states provide for it. ↩
Alicia Morales, et al. v. James Turman, et al., Civ. Action 1948 (E. D. Tex., Sherman Div. 1974). ↩
The case was originally filed by Steven Bercu in 1971. Bercu, at that time an attorney with the El Paso Legal Assistance Society, was representing one of many juveniles who, despite the Gault decision, had been sentenced to Texas juvenile institutions without representation by counsel and without even a rudimentary court hearing. Although Bercu was originally interested primarily in his client’s due process rights, the case was soon amended to attack the “treatment” within the institutions. The resulting litigation produced, among other things, an order to all Texas juvenile judges to follow the Gault standard and the broader due process standards required under Texas law. There were some 2,500 inmates in Texas Youth Council institutions when the suit was filed; there are now fewer than 900. ↩
Donaldson v. O’Connor, 493 F. 2d 507 (1974). ↩
Wyatt v. Stickney, 325 F. Supp. 781 (M. D. Ala. 1971), 334 F. Supp. 1341 (M. D. Ala. 1971), 344 F. Supp. 373 (M. D. Ala. 1972), 344 F. Supp. 387 (M. D. Ala. 1972). The case is now before the Fifth Circuit on Appeal. The “right to treatment” concept was first developed by Morton Birnbaum in “The Right to Treatment,” American Bar Association Journal, Vol. 46 (1960) p. 499. The Morales decision was based both on “right to treatment” (due process) and on the Eighth Amendment (cruel and unusual punishment). ↩
The program, called VISA (Volunteers to Influence Student Achievement), was operated by the Orange County Probation Department with federal funds allocated through the California Council on Criminal Justice, recently renamed the Council for Criminal Justice Planning. Similar projects have operated elsewhere in California, Maryland, and other states. ↩
Miller, now director of Family and Children’s Services in Illinois, was one of the expert witnesses in the Morales case. The court cited the Massachusetts reforms, which emphasized treatment in community-based facilities, most of them nonresidential, as an example of what could be done. Miller is certain that the vast majority of institutionalized juveniles do not belong in institutions and, in many cases, should not be treated at all. There is a discussion of the Miller reforms in Lloyd E. Ohlin, et al., “Radical Correctional Reform: A Case Study of the Massachusetts Youth Correctional System,” Harvard Educational Review, Vol. 44, No. 1 (1974), pp. 74-111. ↩