Does Age Matter When Committing a Crime?

Chapter 3 The Historical Legacy of Juvenile
Justice

The first institution for the control of juvenile delinquency in the United States was the
New York House of Refuge, founded in 1825, but specialized treatment of wayward
youth has a much longer history—one tied to changes in the social structure of medieval
Europe. These same changes prompted the colonization of the New World and led to
attempts to control and exploit the labor of African, European, and Native American
children.

Virtually all aspects of life were in a state of flux for the people of Europe in the later
Middle Ages (16th and 17th centuries). The economy was being transformed from a
feudal system based on sustenance agriculture to a capitalistic, trade-oriented system
focusing on cash crops and the consolidation of large tracts of land. In religious matters,
the turmoil could be amply witnessed in the intense struggles of the Reformation.
Politically, power was increasingly concentrated in the hands of a few monarchs, who
were fashioning strong centralized states. The growth of trade and exploration exposed
Europeans to a variety of world cultures and peoples.

For the lower classes of European society, these were “the worst of times.” The rising
population density as well as primitive agricultural methods led to a virtual exhaustion
of the land. Increasing urban populations created new demands for cheap grain, and
landlords responded by increasing the fees paid by peasants who worked the land. Large
numbers of peasants were displaced from the land to permit the growth of a capitalist
pasturage system. The standard of living of the European peasantry dropped sharply, and
this new, displaced class streamed into the cities and towns in search of means of
survival. The workers and artisans of the cities were deeply threatened by the prospect
that this pauper class would drive down the general wage level. Most European towns
experienced sharp rises in crime, rioting, and public disorder.

To control and defuse the threat of this new “dangerous class,” the leaders of the towns
enacted laws and other restrictions to discourage immigration and contain the movement
of the impoverished peasantry. “Poor laws” were passed, preventing the new migrants
from obtaining citizenship, restricting their membership in guilds, and often closing the
city gates to them. Vagrancy laws were instituted to control and punish those who
seemed a threat to the social order. Certain legislation, such as the Elizabethan Statute of
Artificers (1562), restricted access into certain trades, forcing the rural young to remain

in the countryside.

Urban migration continued despite most attempts to curtail it. The collective units of
urban life, the guild and the family, began to weaken under the pressure of social
change. Children often were abandoned or released from traditional community
restraints. Countless observers from the period tell of bands of youths roaming the cities
at night, engaging in thievery, begging, and other forms of misbehavior (Sanders, 1970).

At this time, family control of children was the dominant model for disciplining
wayward youth. The model of family government, with the father in the role of
sovereign, was extended to those without families through a system of binding out the
young to other families. Poor children, or those beyond parental control, were
apprenticed to householders for a specified period of time. Unlike the apprenticeship
system for the privileged classes, the binding-out system did not oblige the master to
teach his ward a trade. Boys generally were assigned to farming tasks and girls were
brought into domestic service.

As the problem of urban poverty increased, the traditional modes of dealing with
delinquent or destitute children became strained. Some localities constructed institutions
to control wayward youth. The Bridewell (1555) in London is generally considered the
first institution specifically designed to control youthful beggars and vagrants. In 1576,
the English Parliament passed a law establishing a similar institution in every English
county. The most celebrated of these early institutions was the Amsterdam House of
Corrections (1595), which was viewed as an innovative solution to the crime problem of
the day.1 The houses of correction combined the principles of the poorhouse, the
workhouse, and the penal institution. The youthful inmates were forced to work within
the institution and thus develop habits of industriousness. Upon release, they were
expected to enter the labor force, so house of correction inmates often were hired out to
private contractors. Males rasped hardwoods used in the dyeing industry, and when
textile manufacturing was introduced to the houses of correction, this became the special
task of young woman inmates.

The early houses of correction, or so-called “Bridewells,” accepted all types of children
including the destitute, the infirm, and the needy. In some cases, parents placed their
children in these institutions because they believed the regimen of work would have a
reformative effect. Although it is debatable whether the houses of correction were
economically efficient, the founders of such institutions clearly hoped to provide a cheap
source of labor to local industries. The French institutions, called hospitaux generaux,
experimented with technological improvements and different labor arrangements. This
often brought charges of unfair competition from guilds, who feared the demise of their

epub://vlmekzam4p733vux5hi8.vbk/OEBPS/s9781506329215.i324-print-1541448256.xhtml#s9781506329215.i479

monopoly on labor, and businessmen, who felt threatened by price competition at the
marketplace. Some authors stress the economic motive of these early penal institutions:
“The institution of the houses of correction in such a society was not the result of
brotherly love or of an official sense of obligation to the distressed. It was part of the
development of capitalism” (Rusche & Kirchheimer, 1939, p. 50).

The enormous social, political, and economic dislocations taking place in Europe
provided a major push toward colonization of the Americas. People emigrated for many
reasons—some to get rich, some to escape political or religious oppression, and some
because they simply had nothing to lose. Settlement patterns and the resulting forms of
community life varied considerably. In the Massachusetts Bay Colony, for example, the
Puritans attempted to establish a deeply religious community to serve God’s will in the
New World. The Puritans brought families with them and from the outset made
provisions for the care and control of youths.

In contrast, the settlement of Virginia was more directly tied to economic considerations.
There were persistent labor shortages, and the need for labor prompted orders for young
people to be sent over from Europe. Some youths were sent over by “spirits,” who were
agents of merchants or ship owners. The spirits attempted to persuade young people to
immigrate to America. They often promised that the New World would bring
tremendous wealth and happiness to the youthful immigrants. The children typically
agreed to work a specific term (usually 4 years) in compensation for passage across the
Atlantic and for services rendered during the trip. These agreements of service were then
sold to inhabitants of the new colonies, particularly in the South. One can imagine that
this labor source must have been quite profitable for the plantations of the New World.
Spirits were often accused of kidnapping, contractual fraud, and deception of a generally
illiterate, destitute, and young clientele.

Other children coming to the New World were even more clearly coerced. For example,
it became an integral part of penal practice in the early part of the 18th century to
transport prisoners to colonial areas. Children held in the overcrowded Bridewells and
poorhouses of England were brought to the Americas as indentured servants. After
working a specified number of years as servants or laborers, the children were able to
win their freedom. In 1619, the colony of Virginia regularized an agreement for the
shipment of orphans and destitute children from England.

That same year, Africans, another group of coerced immigrants, made their first
appearance in the Virginia Colony. The importation of African slaves eventually
displaced the labor of youthful poor because of greater economic feasibility. The black
chattels were physically able to perform strenuous labor under extreme weather
conditions without adequate nutrition. These abilities would finally be used to describe

them as beasts. Also, the high death rates experienced under these conditions did not
have to be accounted for. The bondage of Africans was soon converted into lifetime
enslavement, which passed on through generations. The southern plantation system,
dependent on the labor of African slaves, produced tremendous wealth, further
entrenching this inhuman system (Stamp, 1956; Yetman, 1970). Racism, deeply lodged
in the English psyche, provided the rationale and excuse for daily atrocities and
cruelties.2

Studies of slavery often overlook the fact that most slaves were children (Ward, 2012).
Slave traders thought children would bring higher prices. Accounts of the slave trade
emphasize the economic utility of small children, who could be jammed into the limited
cargo space available on slave ships. Children were always a high proportion of the total
slave population because slave owners encouraged the birth of children to increase their
capital. Little regard was paid by slave owners to keeping families together. African
babies were a commodity to be exploited just as one might exploit the land or the natural
resources of a plantation, and young slave women often were used strictly for breeding.
A complete understanding of the social control of children must include a comparison of
the institution of slavery to the conditions faced by children in other sections of the
country.3

Another group of children who often are ignored in discussions of the history of
treatment of youth in North America are Native Americans. In 1609, officials of the
Virginia Company were authorized to kidnap Native American children and raise them
as Christians. The stolen youths were to be trained in the religion, language, and
customs of the colonists. The early European colonists spread the word of the Gospel to
help rationalize their conquests of lands and peoples. But an equally important
motivation was their interest in recruiting a group of friendly natives to assist in trade
negotiations and pacification programs among the native peoples. The early Indian
schools resembled penal institutions, with heavy emphasis on useful work, Bible study,
and religious worship. Although a substantial amount of effort and money was invested
in Indian schools, the results were considerably less than had been originally hoped:

Missionaries could rarely bridge the chasm of mistrust and hostility that
resulted from wars, massacres and broken promises. With so many colonists
regarding the Indian as the chief threat to their security and the Indians
looking upon the colonists as hypocrites, it is little wonder that attempts to win
converts and to educate should fail. (Bremner, Barnard, Hareven, & Mennel,
1970, p. 72)

epub://vlmekzam4p733vux5hi8.vbk/OEBPS/s9781506329215.i324-print-1541448256.xhtml#s9781506329215.i481

epub://vlmekzam4p733vux5hi8.vbk/OEBPS/s9781506329215.i324-print-1541448256.xhtml#s9781506329215.i483

Unlike attempts to enslave children of African descent, early efforts with Native
Americans were not successful. Relations between European colonists and Native
Americans during this period centered on trading and the securing of land rights
(Chavez-Garcia, 2012). These contrasting economic relationships resulted in divergent
practices in areas such as education. Although there was general support for bringing
“the blessings of Christian education” to the Native American children, there was
intense disagreement about the merits of educating African slaves. Whereas some
groups, such as the Society for the Propagation of the Gospel, argued that all “heathens”
should be educated and converted, others feared that slaves who were baptized would
claim the status of free men. There was concern among whites that education of slaves
would lead to insurrection and revolt. As a result, South Carolina and several other
colonies proclaimed that conversion to Christianity would not affect the status of slaves
(Bremner et al., 1970). Many southern colonies made it a crime to teach reading and
writing to slaves. A middle-ground position evolved, calling for religious indoctrination
without the more dangerous education in literacy (Bremner et al., 1970; Gossett, 1963).

In the early years of colonization, the family was the fundamental mode of juvenile
social control, as well as the central unit of economic production. Even in situations
where children were apprenticed or indentured, the family still served as the model for
discipline and order (Mintz, 2004). Several of the early colonies passed laws requiring
single persons to live with families. The dominant form of poor relief at this time was
placing the needy with other families in the community (Rothman, 1971). A tradition of
family government evolved in which the father was empowered with absolute authority
over all affairs of the family. Wives and children were expected to give complete and
utter obedience to the father’s wishes. This model complemented practices in political
life, where absolute authority was thought to be crucial to the preservation of
civilization.

Colonial laws supported and defended the primacy of family government. The earliest
laws concerning youthful misbehavior prescribed the death penalty for children who
disobeyed their parents. For example, part of the 1641 Massachusetts Body of Liberties
reads as follows:

If any child, or children, above sixteen years of age, and of sufficient
understanding, shall CURSE or SMITE their natural FATHER or MOTHER,
he or they shall be putt to death, unless it can be sufficiently testified that the
Parents have been very unchristianly negligent in the education of such
children: so provoked them by extreme and cruel correction, that they have
been forced thereunto, to preserve themselves from death or maiming: Exod
21:17, Lev 20:9, Exod 21:15. (Hawes, 1971, p. 13)

Although there is little evidence that children were actually put to death for disobeying
their parents, this same legal principle was used to justify the punishment of rebellious
slave children in the southern colonies. Family discipline typically was maintained by
corporal punishment. Not only were parents held legally responsible for providing moral
education for their children, but a Massachusetts law of 1642 also mandated that parents
should teach their children reading and writing. Later, in 1670, public officials called
tithing men were assigned to assist the selectmen (town councilmen) and constables in
supervising family government. The tithing men visited families who allegedly were
ignoring the education and socialization of their children. Although there are records of
parents brought to trial due to their neglect of parental duties, this manner of supervising
family government was not very successful.

The family was the central economic unit of colonial North America. Home-based
industry, in which labor took place on the family farm or in a home workshop, continued
until the end of the 18th century. Children were an important component of family
production, and their labor was considered valuable and desirable. A major determinant
of a child’s future during this time was the father’s choice of apprenticeship for his child.
Ideally, the apprenticeship system was to be the stepping stone into a skilled craft, but
this happy result was certain only for children of the privileged classes. As a
consequence, children of poor families might actually be bound out as indentured
servants. The term of apprenticeship was generally 7 years, and the child was expected
to regard his master with the same obedience due natural parents. The master was
responsible for the education and training of the young apprentice, and he acted in loco
parentis, assuming complete responsibility for the child’s material and spiritual welfare.
Although apprenticeships were voluntary for the wealthier citizens, for the wayward or
destitute child they were unavoidable. The use of compulsory apprenticeships was an
important form of social control exercised by town and religious officials upon youths
perceived as troublesome (Bremner et al., 1970).

The industrial revolution in North America, beginning at the end of the 18th century,
brought about the gradual transformation of the labor system of youth. The family-based
productive unit gave way to an early factory system. Child labor in industrial settings
supplanted the apprenticeship system. As early as the 1760s, there were signs that the
cotton industry in New England would transform the system of production, and by 1791,
all stages in the manufacture of raw cotton into cloth were performed by factory
machinery. The Samuel Slater factory in Providence, Rhode Island, employed 100
children aged 4 to 10 years in cotton manufacture. Here is a description of the workplace
environment:

They worked in one room where all the machinery was concentrated under the
supervision of a foreman, spreading the cleaned cotton on the carding machine
to be combed and passing it though the roving machine, which turned the
cotton into loose rolls ready to be spun. Some of the children tended the
spindles, removing and attaching bobbins. Small, quick fingers were
admirably suited for picking up and knotting broken threads. To the delight of
Tench Coxe, a champion of American industry, the children became “the little
fingers … of the gigantic automatons of labor-saving machinery.” (Bremner et
al., 1970, p. 146)

During the next two decades, the use of children in New England industrial factories
increased, and children comprised 47% to 55% of the labor force in the cotton mills.
The proliferation of the factory system transformed the lives of many Americans. On
one hand, enormous wealth began to accumulate in the hands of a few individuals. At
the same time, the switch from a family-based economy to a factory system where
workers sold their labor meant that many families were displaced from the land. A large
class of permanently impoverished Americans evolved. The use of child labor permitted
early industrialists to depress the general wage level. Moreover, companies provided
temporary housing and supplies to workers at high prices, so that workers often incurred
substantial debts rather than financial rewards.

Increased child labor also contributed to the weakening of family ties because work days
were long and often competed with family chores. Children were now responsible to
two masters—their fathers and their factory supervisors. Work instruction became
distinct from general education and spiritual guidance as the family ceased to be an
independent economic unit. Conditions of poverty continued to spread, and the social
control system predicated upon strong family government began to deteriorate. During
the first decades of the 19th century, one could begin to observe a flow of Americans
from rural areas to the urban centers. As increasing economic misery combined with a
decline in traditional forms of social control, an ominous stage was being set. Some
Americans began to fear deeply the growth of a “dangerous class” and attempted to
develop new measures to control the wayward youth who epitomized this threat to
social stability.

The Houses of Refuge (1825–1860)4

Severe economic downturns in the first two decades of the 19th century forced many
Americans out of work. At the same time, increasing numbers of Irish immigrants
arrived in the United States. These changes in the social structure, combined with the

epub://vlmekzam4p733vux5hi8.vbk/OEBPS/s9781506329215.i324-print-1541448256.xhtml#s9781506329215.i485

growth of the factory system, contributed to the founding of specialized institutions for
the control and prevention of juvenile delinquency in the United States (Hawes, 1971;
Mennel, 1973; Pickett, 1969).

As early as 1817, the more privileged Americans became concerned about the apparent
connection between increased pauperism and the rise of delinquency. The Society for
the Prevention of Pauperism was an early attempt to evaluate contemporary methods of
dealing with the poor and to suggest policy changes. This group also led campaigns
against taverns and theaters, which they felt contributed to the problem of poverty. The
efforts of several members of this group led to the founding in New York City of the
first House of Refuge in 1825. The group conducted investigations, drew up plans and
legislation, and lobbied actively to gain acceptance of their ideas. In other northeastern
cities, such as Boston and Philadelphia, similar efforts were under way.

A number of historians have described these early 19th-century philanthropists as
“conservative reformers” (Coben & Ratner, 1970; Mennel, 1973). These men were
primarily from wealthy, established families and often were prosperous merchants or
professionals. Ideologically, they were close to the thinking of the colonial elite, and
later, to the Federalists. Popular democracy was anathema to them because they viewed
themselves as God’s elect and felt bound to accomplish his charitable objectives in the
secular world. Leaders of the movement to establish the houses of refuge, such as John
Griscom, Thomas Eddy, and John Pintard, viewed themselves as responsible for the
moral health of the community, and they intended to regulate community morality
through the example of their own proper behavior as well as through benevolent
activities. The poor and the deviant were the objects of their concern and their moral
stewardship.

Although early 19th-century philanthropists relied on religion to justify their good
works, their primary motivation was the protection of their class privileges. Fear of
social unrest and chaos dominated their thinking (Mennel, 1973). The rapid growth of a
visible impoverished class, coupled with apparent increases in crime, disease, and
immorality, worried those in power. The bitter class struggles of the French Revolution
and periodic riots in urban areas of the United States signaled danger to the status quo.
The philanthropy of this group was aimed at reestablishing social order, while
preserving the existing property and status relationships. They were responsible for
founding such organizations as the American Sunday School Union, the American Bible
Society, the African Free School Society, and the Society for Alleviating the Miseries of
Public Prisons. They often were appointed to positions on boards of managers for
lunatic asylums, public hospitals, workhouses for the poor, and prisons.

The idea for houses of refuge was part of a series of reform concepts designed to reduce

juvenile delinquency. Members of the Society for the Prevention of Pauperism were
dissatisfied with the prevailing practice of placing children in adult jails and
workhouses. Some reformers felt that exposing children to more seasoned offenders
would increase the chances of such children becoming adult criminals. Another issue
was the terrible condition of local jails. Others worried that, due to these abominable
conditions, judges and juries would lean toward acquittal of youthful criminals to avoid
sending them to such places. Reformers also objected that the punitive character of
available penal institutions would not solve the basic problem of pauperism. The
reformers envisioned an institution with educational facilities, set in the context of a
prison. John Griscom called for “the erection of new prisons for juvenile offenders”
(Mennel, 1973). A report of the Society for the Prevention of Pauperism suggested the
following principles for such new prisons:

These prisons should be rather schools for instruction, than places of
punishment, like our present state prisons where the young and the old are
confined indiscriminately. The youth confined there should be placed under a
course of discipline, severe and unchanging, but alike calculated to subdue
and conciliate. A system should be adopted that would provide a mental and
moral regimen. (Mennel, 1973, p. 11)

By 1824, the society had adopted a state charter in New York under the name of the
Society for the Reformation of Juvenile Delinquents and had begun a search for a
location for the House of Refuge.

On New Year’s Day 1825, the New York House of Refuge opened with solemn pomp
and circumstance. A year later, the Boston House of Reformation was started, and in
1828, the Philadelphia House of Refuge began to admit wayward youth. These new
institutions accepted both children convicted of crimes and destitute children. Because
they were founded as preventive institutions, the early houses of refuge could accept
children who “live an idle or dissolute life, whose parents are dead or if living, from
drunkenness, or other vices, neglect to provide any suitable employment or exercise any
salutary control over said children” (Bremner et al., 1970, p. 681). Thus, from the outset,
the first special institutions for juveniles housed together delinquent, dependent, and
neglected children—a practice still observed in most juvenile detention facilities
today.5

The development of this new institution of social control necessitated changes in legal
doctrines to justify the exercise of power by refuge officials. In Commonwealth v.
M’Keagy (1831), the Pennsylvania courts had to rule on the legality of a proceeding

epub://vlmekzam4p733vux5hi8.vbk/OEBPS/s9781506329215.i324-print-1541448256.xhtml#s9781506329215.i487

whereby a child was committed to the Philadelphia House of Refuge on the weight of
his father’s evidence that the child was “an idle and disorderly person.” The court
affirmed the right of the state to take a child away from a parent in cases of vagrancy or
crime, but because this child was not a vagrant, and the father was not poor, the court
ruled that the child should not be committed. Judicial officials did not wish to confuse
protection of children with punishment because this might engender constitutional
questions as to whether children committed to houses of refuge had received the
protection of due process of law.

The related question of whether parental rights were violated by involuntary refuge
commitments was put to a legal test in Ex parte Crouse (1838). The father of a child
committed to the Philadelphia House of Refuge attempted to obtain her release through
a writ of habeas corpus. The state supreme court denied the motion, holding that the
right of parental control is a natural but not inalienable right:

The object of the charity is reformation, by training the inmates to industry; by
imbuing their minds with principles of morality and religion; by furnishing
them with means to earn a living; and, above all, by separating them from the
corrupting influence of improper associates. To this end, may not the natural
parents, when unequal to the task of education, or unworthy of it, be
superseded by the parens patriaeparens patriae, or common guardian of the community?
The infant has been snatched from a course which must have ended in
confirmed depravity; and, not only is the restraint of her person lawful, but it
would have been an act of extreme cruelty to release her from it. (Ex parte
Crouse, 1838)

The elaboration of the doctrine of parens patriaeparens patriae in the Crouse case was an important
legal principle used to support the expanded legal powers of the juvenile court. It is
important to recognize the significance of both social class and hostility toward Irish
immigrants in the legal determination of the Crouse case.6 Because Irish immigrants
were viewed at this time as corrupt and unsuitable as parents, it is easy to see how anti-
immigrant feelings could color judgments about the suitability of parental control. As a
result, children of immigrants made up the majority of inmates of the houses of refuge.

The early houses of refuge either excluded blacks or housed them in segregated
facilities. In 1849, the city of Philadelphia opened the House of Refuge for Colored
Juvenile Delinquents. Racially segregated refuges were maintained in New York City
and Boston only through the limited funds donated by antislavery societies. Because
refuge managers viewed all young women delinquents as sexually promiscuous with

epub://vlmekzam4p733vux5hi8.vbk/OEBPS/s9781506329215.i324-print-1541448256.xhtml#s9781506329215.i489

little hope for eventual reform, young women also received discriminatory treatment.7

The managers of houses of refuge concentrated on perfecting institutional regimens that
would result in reformation of juveniles. Descriptions of daily activities stress
regimentation, absolute subordination to authority, and monotonous repetition:

At sunrise, the children are warned, by the ringing of a bell, to rise from their
beds. Each child makes his own bed, and steps forth, on a signal, into the Hall.
They then proceed, in perfect order, to the Wash Room. Thence they are
marched to parade in the yard, and undergo an examination as to their dress
and cleanliness; after which they attend morning prayer. The morning school
then …