Criminal Justice Section  

    Criminal Justice Magazine

Criminal Justice Magazine
Summer 2000
Vol. 15, Issue 2

Book Reviews

Frank Orlando and Paul Giannelli

Bad Kids: Race and the Transformation of the Juvenile Court

By Barry C. Feld, Oxford University Press, 1999; hardcover, 392 pp., $55; paperback, 336 pp., $19.95.

Reviewed by Judge Frank Orlando (Ret.)

As Americans observe the centennial of the juvenile court created by a group of Progressive social reformers in Chicago, Barry Feld, Centennial Professor of Law at the University of Minnesota Law School, gives that creation failing grades and recommends a new policy for children.

Juvenile justice personnel and policymakers will not find in this book the kind of news they want to hear at the start of the court's second century. As to policymakers, they rarely use sound research and analysis in the development of policies relating to children. They use rhetoric and undocumented pronouncements to adopt "get tough" legislation. This book is written by a leading scholar and a committed advocate of social justice for children.

With reference to the juvenile court, Roscoe Pound, a former dean of the Harvard Law School, has been quoted as saying that "the juvenile court has become like the illegitimate issue of an illicit relationship between the legal profession and the social work profession and now no one wants to claim the little bastard."

Feld's conclusion takes this description one step further, he finds that in the last 100 years-especially in the last 30 years-no one ever found a way to nourish the "little bastards" or ways to provide true due process and rehabilitative social justice. In other words, the concept has expired. Feld writes this book from two personal perspectives: the lawyer advocate and the academic research scholar. The book is also written in two parts: the well-documented history of failures, and the proposal to implement a new way to process child offenders.

As the lawyer advocate, Feld traces the evolution of the juvenile court from its creation in 1899. Here he finds both the court of 1899 and the court of today racially biased and created for "other people's children." Today's court continues to operate for "other people's children":

Social class and racial biases shape public attitudes and policies toward children. More than a century ago, Progressive reformers used "conscience and convenience" to distinguish between their own children and "other people's children." Politicians and parents tend to make similar distinctions today. They simultaneously invest resources, affection, and high hopes in their own children and view other people's children with suspicion and as potential threats to the well-being of their own.

As for present-day practices and racial bias in the last three decades, Feld explores the social and legal changes that have transformed the juvenile court into a scaled-down, second-rate, criminal court for young offenders in which they receive the worst of both worlds: "neither the protections afforded adults nor the solicitous care and regenerative treatment postulated for children." ( In re Gault, 387 U.S. 1 (1967).) As to "other people's children" during the last three decades, Feld finds that the recent transformation of the juvenile court provides a graphic illustration of the conversion of public fear and hostility toward other people's children into harsh and punitive social control practices. . . . Politicians have manipulated and exploited these racially tinged perceptions for political advantage with demagogic pledges to "get tough" and "crack down" on youth crime, which has become a "code word" for black males.

These findings as to the continuing racial bias of the juvenile justice system present more bad news for those working in the juvenile justice arena. They should also be of major concern to the American public. Like it or not, these findings are based on sound research and analysis of credible data. They are controversial, but very difficult to disagree with.

Feld's major finding as to the juvenile court's failures are summarized as follows:

The juvenile court creators envisioned a social service agency in a judicial arena and attempted to fuse its social welfare mission with the power of state coercion. The idea that judicial clinicians can successfully combine social welfare and criminal social control in one agency constitutes the juvenile court's inherent conceptual flaw. Progressives created (and court practitioners carried out) an irreconcilable conflict by asking the juvenile court simultaneously to enhance child welfare and to control youths' violations of criminal law. One had to take priority over the other and the court inevitably subordinated social welfare considerations to crime control concerns because of their built-in penal focus.

Feld's alternative is to abolish the present-day juvenile court. His solution is to create one court in which everyone is tried, but convicted juveniles would receive a "youth discount" in sentencing. This is where Feld the academic presents his most radical position. This is also where he will find his most serious disagreement. Feld thinks the Progressives who founded the juvenile court were "naïve," but it is his solution of uncoupling social services and social control and installing a bargain basement kid's sentencing policy that is naïve. He proposes implementation by a "reasonable, responsible and humane legislature." Unfortunately, where children are concerned no such body exists and none is anywhere on the horizon.

Another reason Feld proposes to abolish the juvenile court is its lack of financial resources to implement effective social service programs. He seems to ignore the fact that the less-than-humane legislatures of today are flooding millions-maybe billions-of dollars into juvenile courts and agencies. Accountability Block Grants, Comprehensive Strategies, and the War on Drugs are just a few funding policies. The problem here is that these funds are being spent on all the retributive approaches that Feld the advocate clearly proves do not rehabilitate, prevent crime, or protect public safety. The growing supporters of drug courts will find Feld's research very frightening.

Juvenile justice in its centennial year is at a crossroads, and as Yogi Berra once said, "When you come to a fork in the road-take it." Some want to go left and take Feld's road. Some want to go right and preserve the parens patria model of the founders. Many like me are at the cross in the road and stuck.

Feld actually presents the solutions in this book and shows how the necessary separate justice system can be preserved. Start with abolishing the prosecutorial transfer policies and implement the concept first developed in New Mexico. (N.M. Stat. Ann. § 32A-2-2 (Michie 1993).) This process is discussed on page 262 of Bad Kids. Add to this the requirements of Kent v. United States (383 U.S. 541 (1966)) on pages 213-14 in Bad Kids. Find that responsible and humane legislature Feld calls for (page 315), and tell the lawmakers that if they truly want to hold adolescent offenders responsible and protect public safety they should redirect the billions they are wasting on the failed initiatives they now fund to proven preventive ideas and effective programs.

They can also start with a national implementation of the Prenatal and Early Childhood Nurse Home Visitation Program, after all they paid for the research by Dr. David Olds and his colleagues. (OJJDP Bulletin (November 1998).) Most of the rest of the civilized world found this approach many years ago to be the best method of preventing youth crime and child abuse, especially where "other people's children" are concerned.

Finally, fully ratify the U.N. Convention on Children's Rights and the long-ago-developed ABA/IJA Juvenile Justice Standards. (IJA/ABA Standards for Juvenile Justice (approved 1979); see also Barbara Danzinger Flicker, Standards for Juvenile Justice: A Summary and Analysis 22-23 (2d ed. 1982).) Both provide for the humane and responsible rights of children and for the use of effective and child-based methods of holding child offenders accountable.

These are but a few of the ways to preserve the separate system of justice for children. Feld presents these and several others in Bad Kids. He just reaches the wrong conclusions as the alternative to the mistakes we are making today.

This is a compelling and thoughtful book, controversial and radical to many. However, it is the best we have to get those of us stuck at the crossroads onto the right road into the next 100 years of the juvenile system in America.

Frank Orlando is a member of the Criminal Justice Section's Juvenile Justice Committee and director of the Center for the Study of Youth Policy at Nova Southeastern University, Fort Lauderdale, Florida. This review was first published in Federal Probation (Dec. 1999).


Actual Innocence

By Barry Scheck, Peter Neufeld, and Jim Dwyer; Doubleday, 2000; hardcover, 289 pp., $24.95.

Reviewed by Paul C. Giannelli

Actual Innocence is an engrossing book. It is well written, informative, and insightful. But most of all, it is frightening. It is an autopsy of the criminal justice process as reflected in the trials of convicts (some on death row) who were subsequently exonerated by DNA evidence. In this autopsy, the cadaver is Justice.

The book centers on the work of the Innocence Project at Cardozo Law School:

In 1999, the Innocence Project reconstructed sixty-two cases in the United States of the sixty-seven exonerations in North America to determine what factors had been prevalent in the wrongful convictions. Mistaken eyewitnesses were a factor in 84 percent of the convictions; snitches or informants in 21 percent; false confessions in 24 percent. Defense lawyers fell down on the job in 27 percent; prosecutorial misconduct played a part in 42 percent, and police misconduct in 50 percent. A third involved tainted or fraudulent science. Among the more troubling findings is that several of these factors are more pronounced in the conviction of innocent black men. These numbers provide but a glimpse of an unexplored, undocumented, and challenging world. A more commanding view awaits further study by legal scholars and journalists of all innocence cases, including ones that do not avail of DNA as a tool in the exoneration process. Every state could use an Innocence Commission. None exist. Only the criminal justice system exempts itself from self-examination. Wrongful convictions are seen not as catastrophes but topics to be avoided.

After an introductory chapter on DNA evidence, each chapter focuses on a different problem: eyewitness identifications, false confessions, jailhouse snitches, prosecutorial misconduct, laboratory fraud, and ineffective defense counsel. As the above passage indicates, eyewitness identifications were the most common cause for miscarriages of justice. No surprise here. Many misidentifications do not "just happen." Witnesses are often led, sometimes subtly, to confirm a detective's opinion. Identifications are made in the presence of other witnesses, thereby tainting that witness. Witnesses are told that the suspect has committed other similar crimes, thereby turning a qualified identification into a positive one. Walter Snyder's case (chapter 3) tracks the creation of a misidentification. When the rape victim first viewed the suspect's photograph, she passed it by. For "some reason" (perhaps the detective?), she eventually went back to it. She's told that the suspect lives in her neighborhood. When called to the station house, her mindset is ready. In her own words: "When Investigator Shiftic called me, he represented authority and I assumed-I assumed they wanted me to come down for something like that. . . . I did not give him an opportunity to tell me. When he called, I jumped. I wanted to go and do whatever I needed to do." She was not on her way to a lineup; Snyder was sitting by himself in the lobby of the police station when she made her mistaken identification.

The chapter on jailhouse snitches is perhaps the most fascinating. We get to meet Sydney Storch, a.k.a. the "Snitch Professor," who claims to have heard 20 inmate confessions. We also meet Leslie Vernon White, a full-time criminal who has testified against at least a dozen inmates, claiming that they all told him the details of their crimes. He once demonstrated his technique to a deputy sheriff:

[The] deputy provided White with the name of another inmate, the fact that he was a murder suspect, and a telephone. In twenty minutes, White showed his stuff. He made five phone calls and collected enough inside information about the other inmate to claim with credibility that the man had confessed. Posing as a bail bondsman, White called the inmate reception center; as an assistant district attorney, he called the D.A.'s record room, then the D.A.'s witness coordinator, the sheriff's homicide office, and the actual D.A. handling the case. He rang the coroner's office, in the guise of a cop, and learned about the mortal injuries to the victim.

Laboratory fraud and bad science are addressed in several chapters. There is, of course, Fred Zain, chief serologist in West Virginia, who reported the results of phantom tests for a decade-all favoring the prosecution. Even after he left the state, West Virginia prosecutors sent him evidence to examine because they could no longer get the "right" results from their own crime lab. Zain is not an isolated case. In the prosecution of John Willis the lab notes of the government expert excluded Willis as a suspect--based on ABO blood typing. At trial, however, the expert testified that the tests were "inconclusive." Willis was subsequently exonerated by DNA evidence; the expert got a promotion. Another expert was told not to write a report recording his opinion that a footprint did not match the suspect's shoes; on the third try, the prosecutor found an expert who could find such a "match."

The misuse of a prosecutor's authority to plea bargain often surfaces. In one case, a prosecutor sought to reinforce his case by negotiating with a convict who was serving 40 years for two other rapes:

Lott was likely to face the death penalty based on his semen being found at both murders. Lott was presented with the following offer. If he could implicate Robert Miller in the crimes-as a lookout or participant-Lott would not have to face any additional time. The prosecutors would agree that any sentence for the two [rape] murders could run concurrently. It was a tremendous deal, basically, a chance to be given a free pass for two murders that would ordinarily send him off for a lethal injection.

There is no question that prosecutors, of necessity, must often make deals with criminals. Some deals, however, are so outrageous that they violate due process. This is one. Robert Miller, the death row inmate, was exonerated by DNA evidence. In another case, we learn that the "D.A. told me he'd go after me if I didn't stick it to Ron and Dennis."

Defense attorneys fare no better than prosecutors. The trial of Edward Honaker is illustrative. He was convicted of rape even though a vasectomy precluded him from being the donor of crime-scene sperm. This defense was not pursued by his counsel.

There are, however, many heroes in these stories: Prosecutors open-minded enough to go forward with post-trial DNA testing, even in the absence of a legal duty to do so. Prosecutors who join defense counsel in seeking pardons for the wrongly incarcerated. A police officer who resigned rather than go forward with a prosecution of a person he believed to be innocent. An assistant state's attorney who did the same thing-in the same case. There are also defense attorneys who never abandon their clients, and forensic scientists who insist on doing the right thing.

The authors provide a series of recommendations to avoid repeating the mistakes they bring to light. Most of them would be acceptable to fair-minded prosecutors and police officers who care about professionalism. When an innocent person is convicted, there are always at least two "injustices"-the incarceration (or death) of the wrongly accused and the escape of the real culprit. Moreover, that guilty person often goes on to rape or murder other victims. As one of the wrongly convicted told the sentencing judge, "You can't send an innocent man to jail, it's not right, it's not right." n

Paul Giannelli is the Weatherhead Professor of Law, Case Western Reserve University and a member of the Criminal Justice editorial board.