Gendered Injustice

Uncovering the Lived Experience of Detained Girls

Anastasia Tosouni

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351210263
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Without strong proof, policy advocates along with some scholars have causally linked declines in juvenile offending and incarceration with evidence-based and rehabilitation-oriented policy reform. Such studies have called for a shift back to rehabilitative ideals augmented by innovative strategies that emphasize cultures of care, and in the cases of system-involved girls, 'gender-responsive' programs, anchored in feminist literature. These programs have also caught the attention of feminist scholars who cast doubt on both their design and implementation. Gendered Injustice offers a unique contribution to the latter line of scholarship, and critically examines claims of innovation, empowerment, and gender-responsivity in youth correction that currently dominate the field.

Drawing on rich ethnographic data, this book uncovers the reality of, and gives voice to, the experiences and continued mistreatment of marginalized girls housed in locked institutions in the US State of California. By providing detailed insight into the detention experiences and the pathways of several young women, this book draws stark comparisons between the lived experience of young women in detention with the official rhetoric of empowerment that dominates public discourse. This book reveals the ways in which institutional policies and practices are designed to neglect and, in many instances, re-victimize inmates.

This is essential reading for those engaged in corrections, juvenile justice, gender and crime, and feminist criminology.

Chapter 1

Prologue

Juvenile justice – promises made

Yolanda, 18 – A Poem

My self-esteem is broken,

My hope is Shattered

I never felt as if,

I really mattered

My Mama calls me retarded

Because I have ADD,

My teachers think I’m stupid

Cause I can’t even get a “B”

I’m always filled w/stress because my brother’s better

And I have no success

“I’m not capible” is what they say.

Will they always feel that way?

Mama says, I’m evil

Just like my Dad

Having someone believe in me is something I never had

Treated like I’m worthless like I can obtain no goal.

But their thoughts and feelings

I cannot control

Philadelphia, PA 1838

Mary Crouse had just about had enough with her juvenile daughter’s “vicious conduct.” Controlling Mary Ann at home had become impossible, and was beyond her power anymore. Someone with higher authority needed to step in and play parent, instead – the state, perhaps. To that end, Mary Crouse filed a complaint, substantiated on evidence of her daughter’s “incorrigibility.” This convinced a county court judge that detention into a juvenile correctional institution was necessary for the sake of Mary Ann’s “moral and future welfare.” Justice Morton McMichael ordered her placement in one of the country’s first juvenile offender jails, the Philadelphia House of Refuge (Ex Parte Crouse, 1838).

Whereas the wishes of the child’s mother were satisfied, the decision did not sit well with the father, who following his daughter’s incarceration filed a writ of habeas corpus, challenging the constitutionality of the confinement. Mary Ann had committed and had been convicted of no crime, she had not even received a trial before being thrown in prison; her Sixth Amendment rights had been violated, he claimed. The Supreme Court begged to differ: the father had grossly misunderstood children rights, parental rights, and most importantly, the function and purposes of the institution inside which his daughter was held. First, government had the right to intervene in families where child welfare was at stake. Some parents are not capable of being good parents and keeping their children safe and well adjusted. Like a good father, the state had the moral and legal authority to take responsibility for rearing these very children. If the state had evidence suggesting that parents were doing a poor job parenting, which Mary Ann Crouse’s vicious behavior suggested, then government officials were allowed to step in and take charge. Second, the father’s complaint was ill-informed: his daughter was not sent to a prison, but to a House of Refuge – a school. She was sent there, not to be punished, but to be helped, educated, and reformed. If it had been punishment that Justice McMichael and the House of Refuge managers were aiming to administer, then the father would have been right. But, it was not punishment at all. Everything that was done to Mary Ann was done with her best interest in mind. From the looks of it, the young woman was heading down the wrong path, a path that without doubt would end in self-destruction. The parents could not protect her, so the state had to. It was for her own good.

Her own good. Was penal control an effective way to advance a child’s best interest? Was this self-contradictory concept of coercive welfare a good idea? And most importantly, was it a feasible one? In other words, benevolent intentions notwithstanding, was the idea truly implemented on the ground, or was it all just make-believe? These all-time classic questions with which Juvenile Justice scholars and field experts have grappled since the early 1800s, are of particular significance to the current study, especially with respect to system-involved girls, like Mary Ann Crouse. As history has shown, theory and practice did not always overlap inside juvenile corrections. As Bernard and Kurlychek, for example, characteristically (2010) note while reviewing the House of Refuge history:

The comparison between good intentions and actual performance is the one that will be made several times in the legal history of the juvenile justice system.

(p. 58)

The current study’s qualitative data focus on actual performance, exposing the lived reality inside a juvenile jail for female offenders, for those contemporary Mary Anns. The findings are discussed in light of a rhetoric that shields this reality from the public eye, deflects attention from criminogenic structural conditions that include a stigmatizing justice system, and draws it to the moral deficiencies of “fallen girls.” This rhetoric differs very little from the one the Supreme Court uncritically parroted in its 1838 decision about Mary Ann Crouse: What happens inside juvenile detention has girls’ best interest in mind. These are our children, and when our children are out of control, we put them back on track. We do what parents would do, if they could, or knew how to. Almost 200 years later, these ideological roots have lost little integrity. In fact, thanks to professional literature, legislative developments, and experience, the goals of state intervention into minor children’s lives have been both expanded and specified: these goals now involve rehabilitative punishment; de-institutionalization of status offenders; restorative/reintegrative justice; and lately, responsivity (in our case, gender-responsivity), and empowerment. With few exceptions (Feld, 1997), the conceptualization of juvenile justice as a system within which all these goals could be effectively met is not problematized. Most doubts have been cast toward the implementation of these goals on the ground, and whether practice reflects intentions. When it is shown that no, we are not actually doing what we say we are doing, then top-down reform, change in the law or change in management is the proposed remedy. The systemic framework is kept in place. New methods about how the original idea ought to be realized in practice arise, are theorized, adopted, and celebrated.

One of these new ideas that has gained significant popularity and garnered enthusiastic legal and academic support in the US, Canada, the UK and elsewhere is that system-involved women’s welfare is best served through gendered justice – a kind of justice that employs and effects empowerment. Gender empowerment inside a carceral context, and one that was put in place primarily to define, control, and shape poor and immigrant girls’ attitudes and behaviors in the first place is clearly a contradiction. But, this is nothing new; contradiction has encapsulated the Juvenile Justice system since its inception: benevolence and contempt; welfare and coercion; court yet little due process; civil procedure and criminal punishment; the child’s environment is the problem, but let’s fix the child only; parens patriae and otherizing offenders; rhetoric and practice; promise and delivery. All these are contradictions in which juvenile justice perpetually traffics.

This chapter will briefly examine these inherent contradictions of the Juvenile Justice foundation by discussing what its promises are, how they are articulated in speech, and how well they have been implemented in practice. Special emphasis will be placed on the promises that pertain to young women who find themselves caught up in the system by way of either victimhood or delinquency, but usually both. We will talk about a newfound interest in the plight of system-involved girls, one that is grounded in feminist research, and has been translated into well-funded programming. I will summarize what research says we should do about female delinquency, what justice officials and program administrators say we are doing to female delinquents, and will explain how the current study will contrast theory and rhetoric with the lived experiences of detained girls. This, I hope, will set the stage for the concluding discussion which will challenge not only whether juvenile justice philosophy is reflected in current practices, but whether the philosophy in and of itself is deficient and thus, unrealizable in the existing system. But first, how did this philosophy emerge, how was it institutionalized, which treatment goals reflect it, and how do girls fit in it? Let’s go back to Mary Ann Crouse.

Parens Patriae

Ex Parte Crouse (1838), the Supreme Court case whose facts are related above, established Parens Patriae as the philosophical doctrine on which state governance of minor children is grounded in the US. Parens Patriae derived from English Common Law. The King, Patriarch of his country, was to care for the life and property of children whose parents were absent or otherwise incapacitated. Such cases were processed in medieval England’s Chancery Courts (Rendleman, 1971). In the US, the King’s patriarchal authority is embodied in government officials. Until 1838, however, the cases of incorrigible children were dealt by criminal courts. Whereas Mary Ann Crouse had received neither a trial, nor a conviction, her case was reviewed by a judge who sent her to secure confinement, presumably without her will.

The confinement institution where Mary Ann was sent, the House of Refuge, first established by the Refuge Act in 1825, housed vagrant and delinquent children who were previously at risk of being thrown in adult prisons. Before Houses of Refuge opened, most minor juvenile offenders received either severe punishment by being sentenced to adult prison, or no punishment at all when juries felt prison would be inappropriate for them (Fox, 1970). The House of Refuge, guised as a charitable rather than carceral institution, fixed the problem by expanding state control over bothersome, that is, poor and immigrant, yet not seriously criminal children (Rendleman, 1971). Headed by religious leaders of the time, Houses of Refuge offered parental discipline, labor, religious instruction, education, and apprenticeships. In 1836, 60+ years before the formation of first Juvenile Court, state Assembly amended the Refuge Act, to legally permit in the House of Refuge the confinement of children who were not even criminal. The law expanded coercive confinement of other people’s kids to non-delinquent minors who nevertheless exhibited troublesome behavior that parents were “incapable or unwilling” to effectively discipline (Packel, 1976). Mary Ann’s behavior warranted state intervention, not because it was criminal, but because she was a minor. Justice McMichael saw in Mary Anne Crouse the type of child for whom the 1835 amendment to the Refuge Act was written, and consequently had her committed.

The parens patriae doctrine justified the criminal punishment of individuals who would have received either none, or very little, had they been adults. The parens patriae philosophy allowed judges to argue that Houses of Refuge were not in the business of retribution, because that is not what parents do. As it turned out, subsequent to Crouse, the majority of minors detained in them had not violated the law; they were, in other words, status offenders (Fox, 1970). The Supreme Court was fine with that, because it believed the rhetoric advanced by the institution’s managers. Several years after Mary Ann Crouse’s detention, however, the Supreme Court became more realistic about conditions of confinement in Houses of Refuge.

By 1870, the Court had been aware of these so-called reform schools’ performance in dealing with children. Several testimonies of abusive treatment and violence inside them had been brought to light. It turned out that there was a gap between speech and practice here. Justices’ views were no longer swayed by rhetoric but by reality: the House of Refuge punished its detainees and could no longer claim that it acted like a good father (Pisciotta, 1982). If it was not acting like a father, then the parens patriae doctrine did not apply. In People v. Turner (1870), the Supreme Court found that the confinement of juveniles who had committed no criminal offenses was violative of the constitution and effectively put an end to the practice of incarcerating children without crime or conviction.

The State was no longer legally allowed to control “undesirable” children by removing them from their homes or from the streets. Yet many believed that this was exactly what ought to happen in order for these children to be “saved”: saved from their own moral deficiencies, their parents’ inadequacies, social disorganization, and a future fraught with poverty, victimization, corruption, and violence. Among these believers was a group of well-educated, well-connected, wealthy, and “progressive” women who took the saving upon themselves. They would eventually be known as the Child Savers, the movement that successfully lobbied for a new, separate, perfectly legal justice system to deal with street kids. Neglected, abused, unruly, or criminal: to them there was no difference. Children’s crime is a result of child neglect, anyway, they asserted; one reinforces the other. Both needed to be dealt with by the justice system, by a court that is not criminal (because remember, only adults can be criminal), but nevertheless possesses coercive power over citizens. That court would be organized in a similar way to the Chancery court, the court that was founded on and practiced parens patriae. That court was the Juvenile Court, with the establishment of which parens patriae re-emerged as the legal and philosophical foundation of a justice system for persons under the age of 18: the Juvenile Justice System.

Rehabilitation: the goal

The Child Savers’ efforts culminated in the establishment of the first juvenile court in 1899. The juvenile court centralized a network of separate child-saving practices and institutions that delivered a welfare-based response to youth offending (Platt, 1969). Whereas Platt is rightfully critical of the Child Savers’ motivations as self-serving, and the material effects of their efforts as ultimately oppressive to poor urban children, the persons running the court, juvenile judges, showed sincere empathy and willingness to supervise the children’s care. In 1909, Julian Mack, who presided in the first juvenile court in Cook County, Illinois outlined the objectives of the juvenile court as both “palliative” and “curative” (p. 122); focused on the root causes of delinquency and the particular needs of each child. The court’s aim would be to involve community, probation officers, and parents in assisting the child’s reintegration. Judge Mack placed emphasis on the Juvenile Court Judge’s personality, as much as on his/her legal training and reasoning abilities. He envisioned the Juvenile Court Judge as a cross between a judicial authority and a benevolent social worker:

He must be a student of and deeply interested in the problems of philanthropy and child life, as well as a lover of children. He must be able to understand the boys’ point of view and ideas of justice; he must be willing and patient enough to search out the underlying causes of the trouble, and to formulate the plan by which, through coopera...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Foreword
• Acknowledgments
• 1 Prologue: juvenile justice – promises made
• 2 This study
• PART I Deprivation as intervention
• PART II Programming as if girls do not matter
• Appendix A: list of participants
• Appendix B: subject #29 – Anastasia
• Appendix C: copy letter of detained girl
• Index