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March|April 2003
A HAND IN THE MATTER By Cass R. Sunstein
Upholding the Law By Orin S. Kerr
Catch-21 By Nell Bernstein


California's juvenile justice system treats homeless teenagers who want to take care of themselves as children. Because of the recently passed Proposition 21, the state treats teens who commit crimes as adults. Either way, teens get locked up.

By Nell Bernstein

SEVERAL YEARS AGO, I found myself driving a 16-year-old friend, at her request, to place herself behind bars in juvenile hall. The 20-mile journey took several hours. Sayyadina and I stopped at a bookstore, and she picked out a stack of novels—Toni Morrison, Gloria Naylor, Jamaica Kincaid—which I'd keep to bring to her one at a time, since as a "ward" you're not allowed to carry anything with you when you enter juvenile hall. At a nearby mall, she chose a lunch of ice cream and candy, a child's last meal.

"Slow down," she kept saying as we crawled along the freeway. By the time we reached the exit, we were pressing the 40 m.p.h. minimum, and I could feel how much it was costing her to submit voluntarily to a system that perceived her as a menace.

I was editing a youth newspaper called YO! (Youth Outlook) at Pacific News Service in San Francisco when I met Sayyadina in 1995. A foster-care fugitive who'd been through more than 20 "placements" by the age of 14, she'd decided she was better off on her own and had walked out of her group home to sleep on friends' couches and live on the street. She'd enrolled herself in high school, lied about her age to get waitressing jobs, and managed to go undetected by child welfare workers for two years.

Then her mother, who had abandoned her as a child, came back to town, along with a new boyfriend. One night, Sayyadina and the boyfriend argued and he tried to beat her with a belt. She fought back and, in anger, threw a television through the window. Her mother called the police, and Sayyadina was carted off to juvenile hall for a few weeks, then assigned to another group home. There she got into a fight with another girl. Sayyadina ran. The group home reported the row and Sayyadina's subsequent flight to her probation officer, who issued a warrant for her arrest.

By that time, Sayyadina had been working as a writer at YO! for nearly two years, and our office was the first place she sought refuge. She showed up the following morning, having spent the night on the street, and asked me to call her probation officer to help negotiate her return. "I've discharged her from the program," the probation officer told me, her voice a door slamming shut. "She needs to turn herself in."

"Needs to" is a euphemism that juvenile authorities use to describe actions that they themselves are determined to compel. On Sayyadina's list of needs—which ranged from love and attention to a high school education to a jacket to keep her warm—going to jail was pretty low. But until she met that "need," we were told, she could forget about the rest.

And so she complied, asking me to deliver her to juvenile hall, where she was stripped of her clothes and her belongings, issued slippers and a thin cotton jumpsuit, and ushered out of sight.

The probation officer had told me that Sayyadina would be kept there until a new placement was found for her. New to the process, I figured that would take a couple of weeks. As it turned out, Sayyadina was kept behind bars for nearly six months.

As far as I could tell—and I tried my best to find out—very little effort was made during that time to find somewhere other than a cell for Sayyadina to lay her head. I tried looking for an alternative, but found myself nearly frozen out by the system. I couldn't get a phone call returned by the probation officer and had to grovel and plead even for permission to visit, since my role corresponded to none of the categories on the visitor's pass: parent, guardian, custodian.

The facilities where young people are confined in the United States operate under a variety of names that are as soothing as they are implausible: guidance center, training school, boys' ranch, camp. New arrivals test the door and know exactly where they are. Each Saturday for six months when I went to spend time with Sayyadina, I passed through a metal detector, relinquished my keys and wallet, and entered a sealed building. "This institution uses pepper spray," warned signs along the corridors of Sayyadina's hall.

My friend's greeting was always the same: "Who asked about me?" I brought messages and books and learned to play dominoes. Sometimes, when she was feeling particularly desperate, we'd decorate the apartment she hoped one day to have, stock the refrigerator, constructing with words and images a home for her. Other times I watched the clock, chafing against the boredom that's inevitable at institutions like this one.

After a couple of months, Sayyadina was expelled from the in-house school for challenging the teacher and riling up her fellow students. So she sat in her cell and read. "I lived in my books," she says now, "until I could get away. I read about heroines who were kept in towers. I read about women who survived obstacles, and reading about survivors made me feel like one."

Others in juvenile hall have more trouble finding solace. Some write letters to anyone they can think of, asking for forgiveness, complaining about the food, begging for a reply and money for stamps. Some slash their wrists and arms with contraband paper clips or ballpoint pens, hoping for a glimpse of their own blood and proof they're alive.

Katrina, who was arrested for auto theft after taking a friend's car without permission, lifted weights in an effort to, as she explained, "get all my anger out." "I like to feel the pain because I've been through it all and I'm used to it," she said. "It don't scare me. You know how some people get a rush out of doing drugs? I get a rush out of feeling pain."

INSIDE THE GIRLS' UNIT WHERE I VISITED SAYYADINA, I got to know other wards, their parents, their grandmothers, their children. Like Sayyadina—like the great majority of juvenile offenders—most were not there for committing violent crimes. And many had themselves been the victims of violence: abused by parents, raped by boyfriends, assaulted on the street.

On my first visit, inside the receiving unit where new detainees are processed, I watched a skinny preadolescent boy rest his arm on his mother's knee as she told him in elaborate detail about the family dinner he'd missed the night before. When they'd brought him in that night, it had taken three guards to restrain him.

Later, inside the girls' unit, I watched three generations struggle with the impact of incarceration. A little girl in overalls scampered across the scuffed linoleum floor. From time to time she cast shy glances at her mother, a teenager who slouched in a plastic chair playing gin rummy with her own mother, a tired-looking woman in her forties. A guard with a ring of keys at his belt joked to the child that he'd lock her up if she didn't settle down, and she ran back to huddle beside her grandmother.

THE AMERICAN JUVENILE COURT WAS INVENTED IN ILLINOIS in 1899, with the mission of rescuing, rather than punishing, America's wayward youth. Under the doctrine of parens patriae, or "the state as parent," juvenile court judges had wide latitude to address everything from robbery and assault to truancy and playing ball in the street. One judge, speaking 100 years ago to the National Prison Association, explained that he "endeavored to act in each case as I would were it my own son who was before me in the library at home charged with some misconduct."

Because the court was presumed to be benevolent, arrested juveniles didn't get many of the standard elements of due process. In the 1960s and ' 70s, a series of Supreme Court decisions extended them some protections, including the right to counsel and the right to confront witnesses. But others, like the right to a trial by jury, were left out.

A century after the juvenile court's inception, the goal of "child saving" has given way to a powerful movement to recriminalize juvenile wrongdoing—to return the court's focus to a child's bad acts rather than his tender years. During the 1990s, most states made increasing numbers of juveniles eligible for trial in adult criminal court. Even as current law tells runaways like Sayyadina that they can't live freely, it deems teenagers her age and younger "criminally sophisticated" and punishes them as adults.

All 50 states now have provisions for trying juveniles as adults for a variety of crimes—including drug, property, and public-order offenses as well as acts of violence—and sending them to prisons for adults, where they are much more likely to be raped and abused than in juvenile facilities and much more likely to return to crime and be rearrested after they get out.

In 2000, voters in California, which already had one of the highest youth incarceration rates in the nation, approved Proposition 21, the Gang Violence and Juvenile Crime Prevention Act. The law made transfer to adult court mandatory for certain violent crimes and left the decision about where to try a case in the hands of prosecutors, rather than judges, for many other "serious" offenses, like unarmed robbery. It also lowered the minimum age for transfer to adult court from 16 to 14. The law's impact on the number of teens going to adult prison isn't clear yet, but experts expect a substantial increase.

Today, there are over 100,000 young people behind bars in the United States, 8,500 of them in adult prisons. Two-thirds are young people of color, though minority youth represent just one-third of the teenage population. Most of the young people behind bars are boys, but more and more are girls: Between 1989 and 1998, the number of girls behind bars increased by 56 percent, compared to a 20 percent increase among boys. Overall, the number of juvenile detainees went up 25 percent, even though, during roughly the same period, the violent crime index—which measures arrest rates for that kind of crime—dropped for juveniles.

NOT LONG AFTER PROPOSITION 21 BECAME LAW, I helped teach a writing workshop inside a juvenile hall in Santa Cruz, Calif. The leader, Lance Bon, was a 21-year-old ex-offender. The unit where we met held young men and women, and before Lance could begin that day he had to settle a conflict over something a girl had said about someone else's man. After a few moments, he'd deflected the fight and the group had begun to focus on the essays he wanted them to write during the 45-minute session.

If Proposition 21 had passed a few years earlier, these young people would likely never have met Lance, and I probably wouldn't have either. He'd have been locked up for decades, not to emerge until he was middle-aged. When Lance was 13 and already a veteran of group homes and residential treatment centers, he moved to San Francisco's Fillmore District. He was a white kid in a mostly black neighborhood. He was fat. He had a lot to prove.

He started out smoking weed and shoplifting. Then one of the "big dogs" in the neighborhood took him on as a protégé, and Lance moved on to selling crack and robbing other drug dealers. He slimmed down. His friend taught him to fight.

The first time Lance went to juvenile hall, it was for stealing a leather jacket. He was released the following morning. The second time, he assaulted the owner of a corner store. He spent a weekend behind bars and was released on probation.

His third and final arrest was for a crime that so troubles him he was not willing to give me the details. He was charged with seven felony counts, including kidnapping, armed robbery, and false imprisonment. At the time, the minimum age to be tried as an adult in California was 16. Lance was 15. A 17-year-old friend of his who was charged with the same crime is serving 20 years. Lance was tried and convicted as a juvenile and was released after four years, when he was 19.

In juvenile hall, a youth worker got Lance reading novels, prison autobiographies, and books about religion. He started writing, mailing his poems and stories to The Beat Within, Pacific News Service's magazine for incarcerated youth. When he got out, he showed up at the office in San Francisco and got hired to lead workshops.

When the city became too much for him—a friend was shot, another stabbed—Lance moved to San Andreas, a quiet town in the dry hills three hours east of San Francisco where his mother lived, and got a job as a stonemason. He fell in love with a "beautiful, excellent, great, intelligent" girl he had tried and failed to pick up a few years earlier, and this time she loved him back. A boot camp for juvenile offenders opened up nearby and Lance was hired as a counselor; the kids started calling him "Coach."

Few of Lance's former hallmates will fare as well. Only 11.5 percent of those in California Youth Authority facilities, which house the state's most serious underage offenders, can pass the California High School Exit Exam. More than 65 percent are substance abusers. More than half have mental health problems. Of the 2,000 young offenders released each year from California Youth Authority facilities, more than 90 percent will be arrested again.

SAYYADINA WAS LUCKIER AND SMARTER THAN MOST. After six months behind bars, she was shipped off to another group home. When the staff there told her she'd have to quit her early-morning job at a bagel store—the one she'd taken in order to save money for college—because it "interfered with the program," she ran again. She was a minor who had turned her back on her only legal guardian, the state, so it was illegal for her to work, to go to school, to take care of herself. But she did these things anyway, staying with various friends and holding jobs as everything from a receptionist to a telephone psychic. She managed to avoid getting noticed by the system until she turned 18, when legal adulthood liberated her from its scrutiny.

Sayyadina called me on a recent morning, as she does every couple of months, to tell me how she's doing and to ask about my life. She's 21 now and bursting with news. She's enrolled in community college in Oakland, taking courses in music and communications. Eventually, she hopes to transfer to Juilliard, because she's heard that Samuel L. Jackson and Robert De Niro went there.

Sayyadina performs as a rapper and a poet at local clubs and was just promoted from cashier to waitress at an upscale hamburger joint popular with students and families. On a good night, she brings home $100. She's renting a room in a friend's apartment while she saves up to buy a sailboat which she wants to live on. "I'm looking for a harbor," she says, and it takes me a moment to understand that she means it literally.

On the day her probation officer told her she "needed" to go to jail, Sayyadina screamed at her over the phone: "You've met me once. You don't know what I need." Now she says that her distrust for authority saved her. "Whether I was in jail or not, I was always free because I never thought I belonged there," she said. "I never let anyone convince me I did."

If someone asked me what "saved" Sayyadina, or any of the young offenders I've met who've defied expectations by growing into their better selves, I would pick a different term to express the same idea. I would say it was imagination: the capacity to see a future for themselves other than the one that the system predicted.

Nell Bernstein is a journalism fellow in child and family policy at the University of Maryland. Her work has appeared in Salon, Mother Jones, and Newsday.

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