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The Warren Court and the Conservative "Backlash"

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The Warren Court and the Conservative Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2003 Race, Politics, and Juvenile Justice: The Warren Court and the Conservative "Backlash" Barry C. Feld University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Barry C. Feld, Race, Politics, and Juvenile Justice: The Warren Court and the Conservative "Backlash", 87 MINN. L. REV. 1447 (2003), available at https://scholarship.law.umn.edu/faculty_articles/289. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Race, Politics, and Juvenile Justice: The Warren Court and the Conservative "Backlash" Barry C. Feldt [Clonsiderations of race are now deeply imbedded in the strategy and tactics of politics, in competing concepts of the function and responsibility of government, and in each voter's conceptual structure of moral and partisan identity. Race helps define liberal and conservative ideologies, shapes the presidential coalitions of the Democratic and Republican parties, provides a harsh new dimension to concern over taxes and crime .... In terms of policy, race has played a critical role in the creation of a political system that has tolerated, if not supported, the growth of the disparity between rich and poor over the past fifteen years. Race-coded images and language changed the course of the 1980, 1984, and 1988 presidential elections .... - Thomas Byrne Edsall & Mary D. Edsall' INTRODUCTION A century ago, the Progressive reformers who created the juvenile court embraced a particular ideological construction of childhood as one of innocence and vulnerability. They also adopted a scientific conception of social control-positive criminology-that attempted to identify the causes of criminality and purported to treat, rather than to punish, offenders. The juvenile court combined the new conception of childhood with the new strategies of positive criminology to create a judicial-welfare alternative to the adult criminal process for juveniles. The juvenile court affirmed the responsibility of families to raise their children while expanding the state's prerogative to act as parens patriae, or "super-parent," and to exercise flexible social control in the t Centennial Professor of Law, University of Minnesota. B.A., University of Pennsylvania, 1966; J.D., University of Minnesota Law School, 1969; Ph.D. Harvard University (Sociology), 1973. 1. Thomas Byrne Edsall & Mary D. Edsall, Race, THE ATLANTIC MONTHLY, May 1991, at 53. 1447 1448 MINNESOTA LAW REVIEW [Vol 87:1447 "best interests" of young people. Because of some parents' perceived limitations, the social control of ethnic and racial minority offenders was one of the juvenile court's most important functions. 2 From its inception, the juvenile court sought to assimilate, integrate, "Americanize," and control the children of the southern and eastern European immigrants pouring into the cities of the East and Midwest.3 A century later, the social control of young black males in the devastated cores of America's post-industrial cities has emerged as one of the juvenile court's primary functions. Despite the juvenile court's enormous powers, for the first two-thirds of the twentieth century, few people questioned the idea of an informal, therapeutic agency of social control or its discriminatory implementation. Systematic and critical re- examination of the juvenile court's cultural and legal premises emerged only in the 1960s, and culminated in the Supreme Court's In re Gault4 decision in 1967. By the time of Gault and the Warren Court's "Due Process Revolution," the Progressive Era consensus about state benevolence, the legitimacy of imposing certain values on others, and what rehabilitation entailed had become matters of intense dispute. Pluralism, racial diversity, and cultural conflicts challenged the consensus about the goals of rehabilitation. Empirical evaluations of rehabilitation programs undermined Progressives' assumptions that correctional personnel possessed the technical ability to treat offenders effectively. Civil rights advocates questioned the benevolence of justice system officials and objected to the invidious and discriminatory consequences of discretionary decision making. In the face of these criticisms, the Supreme Court increasingly emphasized procedural formality and the rule of law to regulate administrative decision making. In the ensuing decades, the Court's procedural decisions provided the 2. See, e.g., BARRY C. FELD, BAD KIDS: RACE AND THE TRANSFORMATION OF THE JUVENILE COURT 55-60 (1999); W. NORTON GRUBB & MARVIN LAZERSON, BROKEN PROMISES: How AMERICANS FAIL THEIR CHILDREN 173-82 (1982). 3. See, e.g., ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 75-83 (2d ed. 1977); DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVE IN PROGRESSIVE AMERICA 221-22 (1980); STEVEN L. SCHLOSSMAN, LOVE AND THE AMERICAN DELINQUENT: THE THEORY AND PRACTICE OF PROGRESSIVE JUVENILE JUSTICE, 1825-1920, at 57-58 (1977); JOHN R. SUTTON, STUBBORN CHILDREN: CONTROLLING DELINQUENCY IN THE UNITED STATES, 1640-1981, at 122 (1988). 4. 387 U.S. 1, 12-59 (1967). 2003] RACE, POLITICS, AND JUVENILE JUSTICE 1449 political and legislative impetus to transform the juvenile court from a nominally rehabilitative social welfare agency into a formal legal institution and fostered a convergence between the juvenile and criminal justice systems.5 This Article analyzes the social context and changing jurisprudence of juvenile justice over the past half-century through the prism of race to provide a "history of the present"- a historical examination of the recent past to illuminate contemporary social policies and institutional arrangements. 6 Race and race relations are socially constructed in a dynamic legal and socio-historical context. They are shaped through political processes that interpret and explain variations associated with race and allocate power and resources along racial lines. 7 The changing role of race in law and politics is 5. See, e.g., Barry C. Feld, The Transformation of the Juvenile Court, 75 MINN. L. REV. 691, 718-22 (1991) [hereinafter Feld, Transformation-Part1] (summarizing the procedural and substantive convergence between juvenile and criminal courts); Barry C. Feld, The Transformation of the Juvenile Court-PartII: Race and the "Crack Down" on Youth Crime, 84 MINN. L. REV. 327, 357-69 (1999) [hereinafter Feld, Transformation-PartII] (arguing that social structural changes and race account for adoption of more punitive juvenile justice policies). 6. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 2 (2001). Garland describes a "history of the present" as an historical, sociological, and penological effort to understand how contemporary practices acquired their current characteristics. It is a genealogical account that aims to trace the forces that gave birth to our present-day practices and to identify the historical and social conditions upon which they still depend. The point is not to think historically about the past but rather to use that history to rethink the present. Id. 7. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1980S, at 55-56 (1994). Omi and Winant argue that gender represents a distinction with an objective biological basis, whereas race is a social construct "which signifies and symbolizes social conflicts and interests by referring to different types of human bodies." Id. at 55-56. Because racial identity is a social construct designed to differentiate among human groups based on certain characteristics, the formation of racial identity is a "sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed." Id. at 55. The construction of racial identity is implicated both in social structure and in cultural representation. Id. at 56. Historically and presently, the state and individuals have treated people differently and structured social inequality in the distribution of wealth, power, status, and resources, based on ascriptions of race. See id. at 57. At the same time, culture provides an interpretation and explanation of the social inequalities that exist around the dimensions of race. "[A] racialized social structure shapes racial experience and conditions meaning." Id. at 59. "Analysis of such stereotypes reveals the always present already active link 1450 MINNESOTA LAW REVIEW [Vol 87:1447 the organizing principle for this analysis of the changes in juvenile justice policies. This Article argues that during the second half of the twentieth century the issue of race had two distinct and contradictory influences on juvenile justice policy in particular and on criminal justice policy in general. The Article's thesis can be summarized succinctly-first the North went south, and then the South went north. During the 1950s and 1960s, the Supreme Court imposed national legal and equality norms on the recalcitrant Southern states that still adhered to a "separate but equal" Jim Crow legal regime.8 The social- structural changes that began several decades earlier between our view of the social structure-its demography, its laws, its customs,
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