Brown Undergraduate Law Review — Vol. 2 No. 2 (Spring 2021)

The Failure of the Treatment of Low-Level Offenders in the Juvenile Justice System
early nineteenth century. The first rehabilitation home for
youth opened in 1824 with New York?s House of Refuge.
The House gave food, shelter, and education to poor,
homeless white boys. Not until 10 years later were Black
children admitted to the House of Refuge, with less care
and rehabilitation than that which was granted to white
children. The New York House of Refuge considered the
rehabilitation of Black boys a ?waste of resources and a
debasement of whites.? 18 By the time these reform ideas
spread to the South, slavery had ended, and convict leasing
was rampant. Convict leasing was legalized slavery, where
prisoners, especially Black prisoners, were lent to private
parties for labor without pay. By 1890, more than 18% of
all Black prisoners in the United States were juveniles.
Death, torture, and abhorrent conditions were common
with convict leasing, especially among youth. 19
Juvenile Courts: A Discriminatory System
Separate treatment for youth in criminal settings has its
roots in the reformatories and settlement houses of the
early nineteenth century. The first rehabilitation home for
youth opened in 1824 with New York?s House of Refuge.
The House gave food, shelter, and education to poor,
homeless white boys. Not until 10 years later were Black
children admitted to the House of Refuge, with less care
and rehabilitation than that which was granted to white
children. The New York House of Refuge considered the
rehabilitation of Black boys a ?waste of resources and a
debasement of whites.? By the time these reform ideas
spread to the South, slavery had ended, and convict leasing
was rampant. Convict leasing was legalized slavery, where
prisoners, especially Black prisoners, were lent to private
parties for labor without pay. By 1890, more than 18
percent of all Black prisoners in the United States were
juveniles. Death, torture, and abhorrent conditions were
common with convict leasing, especially among youth.
As convict leasing exploded in the postwar South,
progressive reformers in the North known as ?child-savers?
advocated for the first juvenile court system. As noted by
the Supreme Court in subsequent juvenile jurisprudence,
?They [child-savers] believed the society?s role was not to
ascertain whether the child was ?guilty? or ?innocent,? but
?What is he, how has he become what he is, and what had
best be done in his interest and the interest of the state to
save him from a downward career.? 20 Accordingly, to
facilitate rehabilitation, juvenile courts had fewer
formalities than the criminal justice system, lacking due
process procedures explicitly laid out by the Bill of Rights
for the accused. Juvenile courts have been distinct from the
regular system since the first was established in Chicago in
1899. 21 However, this conception of youth rehabilitation
only applied to poor white and European immigrant youth
at its inception. Purposefully excluded from this notion of
rehabilitation were Black and non-white youth. A North
Carolina juvenile court judge of the early 20th century
admitted there was a ?widespread feeling? that whipping
is the most effective way of handling delinquent Negro
boys.? 22 This pattern of juvenile justice continued across
the United States, where white, poor youth being afforded
rehabilitation opportunities while Black and non-white
youth were more severely punished in these informal
proceedings.
The Tough on Crime Era
While juvenile reforms continued throughout the 1960s
and 70s, the 80s and 90s brought the ?tough on crime?
18. Robin Walker Sterling ?A Broken Shield: a Plea for Formality in the Juvenile Justice System,? University of Maryland Law Journal of Race,
Religion, Gender and Class 13, (2013): 242.
19. Ibid., 243.
20. In re Gault, 387 U.S. 1, 15.
21. Sterling, ?Broken Shield,? 243.
22. Robin Walker Sterling, ?Fundamental Fairness: In re Gault and the Road Not Taken,? Maryland Law Review 72, (2013): 607.
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