"Justice," Contextualized: A Brief History of Crime
Crime, punishment and justice are issues as old as civilization itself. What is a society to do with its norm-breakers? The variety of answers to that question, devised over thousands of years of recorded history, is enormous. Here is an overview of some of the most important milestones of that still-evolving debate.
Even thousands of years ago, societies found themselves grappling with many of the same thorny problems we are struggling with today, especially concerning the treatment of youth, girls, women and gender non-conforming people who break social norms. To begin our journey through the progression of “justice,” as a concept, over time, we must return to the very beginnings of recorded history.
2270 B.C.
The Code of Hammurabi — among the earliest surviving legal codes in the world — observes distinctions between juvenile and adult offenders, with sentences specified for runaways, children who disown their parents and sons who curse their fathers. This is just one example of how the concept of juvenile justice as a separate system dates back to the dawn of recorded history. Additionally, the Code of Hammurabi provides evidence that women lacked financial independence and freedom and held a lower position in society than men, even those of similar social status.
Roman civil law (and, later, the canon law of the Catholic Church) distinguishes between juveniles and adults according to the age of responsibility. Meanwhile, in ancient Jewish law, the Talmud considers offenders’ maturity before dispensing punishment. Prior to puberty (age 12 for girls, 13 for boys), corporal punishment is prohibited, and capital punishment is forbidden for those under 20. Centuries later, Muslims will observe similar customs, typically exempting children under 17 years of age from the death penalty.
The mutual pledge system — the primary method of maintaining public safety employed during the Middle Ages — debuts under the rule of Alfred the Great (870-901), king of the Anglo-Saxons. Communities are divided into ten-family groups called tithings, each responsible for maintaining peace within its boundaries. If a tithing fails to apprehend a lawbreaker in its midst, all members are subject to fines by the Crown — ensuring that crime control becomes a collective responsibility.
Early Anglo-Saxon common law (likely influenced by Roman and canon law) shields most children between the ages of 7 and 14 from prosecution by presuming them incapable of forming criminal intent, unless proven otherwise. Children over 14, however, are treated much the same as adults.
England’s first jails, or gaols, are mandated under new laws from King Henry II. The new gaols, one in each shire, are intended to house people being detained before their court appearances or until punishment can take place. Conditions, including heating, ventilation and sanitation, are poor at best, and overcrowding is customary, with all detainees housed together regardless of age, sex or nature of offense.
A decree of the Fourth Lateran Council ends the church’s involvement in “trials by ordeal,” a commonly used method to “determine truth” in trials where sworn testimony has been deemed insufficient. Most ordeals rely on the belief that God will intervene to protect an innocent suspect from being harmed during a dangerous test: exposing one’s arm to boiling water, for example. Not surprisingly, conviction rates following ordeals are quite high. Perhaps the most infamous examples of trials by ordeal, popularized in later centuries, are those requiring accused witches to demonstrate supernatural abilities to save themselves from death or harm.
Chancery courts (or equity courts) are established by the king of England to consider petitions from those in need of special aid or intervention, especially women and children. Through these courts, the king exercises the right of parens patriae (“parent of the country”), allowing the courts to act in loco parentis (“in the place of parents”) for children. These two principles are still used today by governments exercising authority over juveniles, typically when making decisions concerning the perceived “best interests” of children, including removing them from parental custody.
The first bridewell, or workhouse, is created for the employment and housing of waywards and vagabonds in London, particularly those convicted of begging, prostitution or vagrancy violations. At the time, criminals convicted of more serious crimes are typically punished with execution, public corporal punishment or relocation to another country; the bridewell is one of the first examples of a separate, less-severe correctional facility. The workhouse model quickly proves popular. In 1576, Parliament instructs all British counties to construct similar workhouses, and soon they are commonly found throughout Europe.
The deep religiosity of the American Colonies has a profound effect on all aspects of society, including the conception of crime. All crime is sin, and most sins are crimes. Acts such as theft and murder are considered akin to idolatry, blasphemy and witchcraft. Drinking on the Sabbath, flirting and gossiping are criminal offenses. In fact, records show that most Colonial crimes would not be considered serious or particularly criminal by the 20th century. Fornication, lewd behavior, bastardy, neglect of duty, drunkenness, petty theft, contempt of authority and Lord’s Day violations top the list of the most prosecuted crimes of the day.
17TH & 18TH CENTURIES
Juvenile offenders in England are routinely sent to adult prisons, albeit sometimes held separately from adult offenders. The same criminal courts try both youth and adults, a practice that would continue until the late 19th century.
The first cargo ship bearing Africans to be sold as “bonded servants” arrives in Jamestown, Virginia. Slavery and race would go on to play an enormous role in the criminal justice system of the New World and of the United States. Areas with large concentrations of slaves, especially the American South, develop legal codes based on preserving racial hierarchy and maintaining power; controlling and policing slaves (and free Black people) are often the primary purposes of these laws and practices.
In the American Colonies, hierarchy, responsibility and duty are the prevailing organizing principles in life — a moral framework affirmed by the church and its teachings. God is the highest authority, followed by ministers, hubands, wives, children, servants and slaves, and attempts to breach this hierarchy are considered akin to disobeying God’s preordained order. This strict order is reflected in Colonial laws, and questioning one’s place in the community is understood as a violation, a crime that must be punished.
William Penn, a Quaker and leader of the Pennsylvania Colony, enacts the Great Law, which restricts the use of the death penalty to cases of homicide and replaces corporal punishments with imprisonment, hard labor and fines. (The law is repealed immediately after Penn’s death in 1718.) In general, the death penalty is used far less often in the New World than in England — possibly due to labor shortages, which make it difficult to justify the execution of any able-bodied person. Slaves and Black Americans, however, routinely suffer different, more severe punishments than white colonists, in both Northern and Southern Colonies.
The Hospital of St. Michael’s — the first institution for the treatment of juvenile offenders — is established in Rome by Pope Clement XI. St. Michael’s aims to correct unruly juveniles and mold them into useful citizens.
The first state prison in early America — New-Gate Prison — opens in an abandoned copper mine in central Connecticut, with room for more than 100 prisoners at a time. The site operates as a prison until 1827.
Compared to the breakneck progress of the second half of the 19th century, the first decades of the United States’ history as an independent nation are marked by slow but steady development and a relatively modest rate of change. However, many of the forces that would go on to powerfully mold American society in later eras trace their origins to this period, including a growing moral panic about urban disorder and ethnic tension in large cities and a backlash to sky-high rates of alcohol consumption. Meanwhile, some of the first scientific (or pseudo-scientific) inquiries into the origins of crime and criminal behavior are being conducted, and this search for answers and evidence-based reforms will dramatically shape the nation’s criminal justice system over the next two centuries.
1788
The first separate, private institution for youthful offenders in England is established by Robert Young, with a mission “to educate and instruct in some useful trade or occupation” children who were “engaged in a vagrant and criminal course of life.” Although the U.S. often adopted social and legal innovations pioneered in Britain, it would be several decades before similar institutions would take hold in America. In the meantime, American children as young as 7 years old could be tried in criminal court and sentenced to prison or even death.
The term “juvenile delinquency” becomes popularized for the first time after a New York City committee cites it as a major cause of pauperism. Between 1824 and 1828, several institutions for juveniles are established, emphasizing education and treatment rather than punishment (although whippings, isolation and deprivation remain commonly used as disincentives).
Phrenology — the belief that the shape of one’s skull makes it possible to read one’s personality traits and behavioral tendencies — has become the 19th century’s dominant theoretical approach to crime, with 29 journals of phrenology circulating in America and Britain. While the theory has no factual basis and is often used to justify scientific racism, phrenology marks an early example of what will become known as biological determinism, a theoretical model citing physical characteristics and features as the causes of criminal behavior. Prisons will continue to map and “classify” prisoners’ skulls until the 20th century.
The New York House of Refuge, the first custodial institution for juveniles, opens in New York City, thanks in part to advocacy by the Society for the Prevention of Juvenile Delinquency. This is an early milestone in what will become known as the child-saving movement, which called for the separation of juvenile and adult offenders, fearing brutality and the transmission of criminal attitudes from adults to juveniles.
The average American family consumes an estimated 9.5 gallons of alcohol per year — an amount considered far too high by many religious reformers. Thus, the temperance movement is born, with some early success: Personal alcohol consumption drops by an estimated 75% by 1845. The temperance movement wanes in the latter half of the century but resurges, famously, later.
Disorder and ethnic and religious tension reign in America’s big cities. Politically affiliated gangs foment street violence and assist in election stealing. Disputes between Catholics and Protestants often spill into mayhem. The first wave of organized crime syndicates rises to power. Gambling, prostitution and public drunkenness are growing problems. However, these urban ills are unequally distributed: Trouble is largely restricted to poorer neighborhoods, and crime becomes associated with immigrants and lower economic classes. (The wealthy have more discreet avenues for pursuing illicit activities.)
The Providence Reform School of Rhode Island opens, the first school to accept both boys and girls together with “colored” inmates. Over its first decade, the school’s population grows to more than 160 inmates; roughly 20% are girls and 9% are children of color. The school is one of 51 reform homes established in the U.S. between 1825 and 1876.
The Lancaster Industrial School for Girls — the nation’s first state reform school for girls — opens in Massachusetts, providing job training for the young women in its care as well as a rewards system. According to the school’s case histories, many students were girls from families in poverty, who could neither provide for nor govern their children. The school, in keeping with 19th century attitudes, sought to train the girls to be respectable, morally upright and industrious — because later, as wives and mothers, they would be expected to maintain the social order.
In January, Margaret Garner and her family escape from slavery by traveling across the frozen Ohio River from Kentucky to Cincinnati, Ohio — but they are later apprehended by U.S. Marshals under the Fugitive Slave Act of 1850. In the moments before her capture, Garner slays her own daughter and attempts to kill two of her other children and herself in a desperate attempt to avoid returning to enslavement. Garner’s defense attorney moves to have her tried for murder in Ohio, a free state, but a judge rules that the Fugitive Slave Act takes precedence, and Garner is forced to return to bondage in the slave state of Kentucky.
More than 20,000 youths are housed in the United States’ 17 juvenile institutions, according to an estimate conducted during a national convention of refuge house superintendents. These wards contain not just juvenile offenders but also poor children, vagrants and disobedient children turned over by parents. Unlike prisons, these houses of refuge are not officially considered places of punishment — but inside, conditions are often remarkably similar, due to military exercises, severe discipline and long hours of labor.
The San Francisco Industrial School opens in May to great acclaim and high hopes. In its first year, the school takes in 60 boys and 5 girls — only 12 of whom had been accused of an actual crime, most often petty larceny. The others are committed on the grounds of “leading an idle and dissolute life.”
Charles Darwin publishes On the Origin of Species, introducing the theory of evolution to the world. Inspired by Darwin’s work, Cesare Lombroso, an Italian doctor, begins studying the bodies of renowned criminals, searching for biological traits that may have determined their behavior (also known as biological determinism — a theory Darwin rejected). Lombroso asserts that certain people, which he calls “atavists,” are throwbacks to primitive man, and this accounts for their destructive behavior. Lombroso’s line of inquiry, measurement and observation becomes known as the positivist school.
In Britain, two alternative views of the nature of juvenile offenders have developed, but by far the more influential view holds that juvenile criminals are exclusively male. The female role in juvenile delinquency and crime is considered peripheral and often tied to sexual corruption. Writers like Henry Mayhew and John Binny help to popularize this theory nationwide.
This era of criminology is marked by the rapid development of the positivist school, which posits that the causes of crime are biological and therefore beyond an individual’s control. Thinkers of the positivist school attempt to back up their theories with study and measurement, and the scientific methodology of the movement is hailed as groundbreaking. Unfortunately, it is also flawed, tainted by race, class and gender bias, and it is increasingly used as justification for intrusive interventions to combat crime and create social harmony.
Meanwhile, a number of social reform movements begin to gather speed after the Civil War, largely due to the sudden proliferation of newly educated, and idle, upper-class women seeking an outlet for their benevolence. The juvenile reformatory becomes a popular alternative to the penitentiary in this era, cheered on by the ladies of the “child-saving” movement. Asylums to house the mentally ill also spread rapidly during this period — another grand institution (like the prison, house of refuge and orphanage) that is intended to reform or cure those entrusted to its care.
Racism and prejudice continue to powerfully shape the country, even after the Civil War. In the South, newly freed Black Americans are targeted by Black codes and Jim Crow laws. Native Americans bear the brunt of a national “assimilation” campaign that threatens to eradicate their culture. And on the West Coast, anti-Chinese sentiment simmers and leads to an array of laws targeting Asians.
1860
The urban population soars to the point where city dwellers make up 30% of the country. City housing is in short supply, and urban infrastructure is unable to keep up with the surging demand. A profound fear of growing social disorder begins to sweep much of the country.
In December, seven months after the official end of the Civil War, the 13th Amendment is ratified, abolishing slavery. But a backlash soon surges across the states of the former Confederacy. “Black codes” are widely adopted in Southern states: criminal laws that, in effect, attempt to reinstate the economic and social conditions of slavery. Black Americans can be arrested for ambiguous offenses such as “rebelliousness,” and anti-vagrancy laws are used to detain unemployed or homeless Black citizens. Those who are unable to pay the resulting fines can be bound out to labor for local whites.
A new class of “status offenses” — such as incorrigibility, loitering, disobedience and disorderly conduct — is created to target minors in the name of moral uplift, a consequence of the burgeoning child-saving movement. Amid the abundance of a booming post-Civil War economy, a generation of wealthy, educated, predominantly white and Protestant women turns its attention to the plight of delinquent and indigent youth. Their proposed solutions rely heavily on discipline and reform administered by the state, resulting in a host of systemic problems: Black youth are sent to segregated reformatories with inferior resources; American Indian children are forced into boarding schools and stripped of their cultural heritages. Meanwhile, delinquent youth from the middle and upper classes are largely exempt from court referrals and confinement.
The census of 1870 finds that one out of every eight children is employed, a rate that would soar to one in five by 1900. Child labor in sweat shops, coal mines, factories and elsewhere becomes a rallying cause for reformist “child-savers.” These child workers, along with others who are abandoned, orphaned or viewed as delinquent, are seen as an urgent problem of industrial society, particularly in cities. Numerous new measures to address the problem are introduced during this period, including cottage institutions, out-of-home placement and probation.
Congress enacts the Comstock Law, making it illegal to send obscene material through the mail (including information about contraception or abortion). This is the first big success of a growing movement in favor of the “suppression of vice,” whether that vice be obscenity, sexual activity, gambling or drug use, among many others. These moral crusaders quickly become one of the country’s dominant social forces — and have a profound effect on the next century of American history.
The Indiana Women’s Prison, the first adult female correctional facility in the country, opens. The prison is both the nation’s first separate institution for female prisoners and the first maximum-security female correctional facility.
Elmira Reformatory opens in New York, galvanizing the nation’s reformatory movement. Led by born-again Christian Zebulon Brockway, Elmira aims to reform young first-time offenders through academic and religious instruction, vocational training, and military regimens. Instead of receiving a fixed sentence, offenders are given a range of time they may potentially serve; Elmira staff determines when they are fully reformed and can be released on parole. Elmira becomes an important model, and between 1876 and 1913, 18 states build similar facilities.
Researcher Richard Rugdale spends time observing several inmates from the same family incarcerated in the same jail. His study of “The Jukes” (name changed for publication) argues that a notable amount of criminality, drunkenness and promiscuity runs in the family, and that this is evidence that criminal traits are passed down by inheritance through the generations — a key tenet of the positivist school of criminology.
For the first time in the U.S., an anti-abortion movement begins to gather steam. The two driving concerns are Anglo-Saxon anxiety about preserving their majority position and their “race” (white, married, Protestant women are the recipients of most abortions at the time) and the American Medical Association’s push to professionalize and standardize medicine (most abortionists were local providers who did not attend medical school). Interestingly, religious objections to abortion do not play a significant role in this debate until much later. By 1900, abortion becomes a crime.
The House of Refuge for Women is built in Hudson, New York, 30 miles south of the state capital, Albany. The institution is the second reformatory for women established by law in the U.S. and, at the time, the only prison in New York for women sentenced by the state. Guided by the belief that older women were unredeemable, the House of Refuge accepts only young women, ages 15 to 30 (later 15 to 25), convicted of petty larceny, habitual drunkenness and prostitution and holds them in custody for up to five years — a period considered long enough to break “pernicious habits.” Notably, the House of Refuge is also the first adult prison in the U.S. to adopt the “cottage plan” more common in Europe, in which prisons consist of complexes of cottages in rural areas, intended to provide a more home-like atmosphere.
It is a period of great change in American history — and of great anxiety. Cities are bursting at the seams and widely viewed as places of depravity and chaos. Massive immigration is well underway, but newcomers are becoming less and less welcome. Monopolies like General Electric and Standard Oil have unprecedented control over the landscape of American industry.
All this anxiety produces a tremendous push in this era for greater regulation and reform. The list of changes and new developments pioneered in this relatively short period is lengthy: income tax, compulsory school laws, public health agencies, the settlement house movement, civil service examinations, the concept of probation and much more.
The beginning of “the era of socialized juvenile justice” overlaps with this period, starting with the creation of juvenile and family courts. This is a major shift in the nation’s approach to underage offenders, who come to be considered not as miniature adults but as persons with less-than-fully-developed morality and cognition. Juveniles who enter the justice system during this period are often made guinea pigs for experimental treatment and rehabilitation programs, frequently based on inadequately tested sociological and psychological theories.
CIRCA 1890–1920
The social hygiene movement of the Progressive Era — essentially a more scientific version of earlier “social purity” movements, repackaged as public health — places a disproportionate emphasis on the sexual behavior of women, allegedly in the name of controlling the spread of prostitution, veneral disease and “social immorality.” Many young women, allegedly carriers of VD, are locked up, and girls who refuse VD tests, quarantines and hospitalization are threatened with detention in juvenile facilities. Young unmarried women who have children “too early” are sometimes even sterilized.
The first school of sociology is established at the University of Chicago, attracting a remarkable number of professors and students who are interested in urban social work and the study of slums and crime. Many of these scholars become leading criminologists and proponents of sociological determinism, or the theory that criminal behavior is determined by sociological factors beyond an individual’s control: family, friends, unemployment, poverty, poor schools, etc. This new framework is widely embraced and becomes the dominant theoretical paradigm of the 20th century.
The Illinois Juvenile Court Act establishes the country’s first juvenile or family court, a culmination of the child-saving movement that developed over the previous century. This newly created system is a civil court, designed, in the liberal spirit of the age, so that “the care, custody and discipline of a child shall approximate as nearly as may be that which should be given by its parents.” However, this system does not confer any of the due process requirements and rights associated with criminal law, and the government is given an extraordinary level of dominion over juveniles in the system. By 1928, 29 states in total will have adopted juvenile court statutes.
In juvenile courts of the era, defendants are overwhelmingly youths from lower-class or immigrant families, and boys and girls tend to appear in court for different reasons, typically with different outcomes. A majority of girls (but only a very small number of boys) are charged under the loose heading of “immorality,” but a greater percentage of girls than boys are sent to reformatories, rather than placed on probation.
A commission is established to examine immigration’s role in vice and crime, and its report confirms mainstream beliefs that “sexual depravity” is coming from outside the nation’s borders. Three years later, the Mann Act, or the “White Slave Traffic Act,” is passed, a reaction to the moral panic that innocent young white women are being tricked into a life of wickedness by foreign invaders. The act targets people who shelter prostitutes and criminalizes interstate traffic of women for “immoral purposes.” It also targets nonmarital sex — not coincidentally at a time when women are starting to become more independent.
Alice Stebbins Wells becomes the nation’s first policewoman when she joins the Los Angeles Police Department. By 1915, when Wells helps to establish the International Association of Policewomen, policewomen are employed in 25 cities. However, for decades, these women are expected to limit their dealings to children and female offenders; not until 1968 are the first female officers (two women in Indianapolis) assigned to regular patrol duty.
Just a decade after the birth of juvenile court, critics begin to question the system’s informality, discrimination and lack of attention to due process. Unlike adults, juveniles can be detained and incarcerated without a trial, a lawyer or even a notification of the charges against them.
The rapid change of the Progressive Era slows with the entry of the U.S. into World War I in 1917 (although women finally win the right to vote two years later). The following decades are some of the most momentous in American history, from the Great Depression in 1929 to the country’s entry into World War II in 1941. The subsequent post-war boom sees the U.S. elevated to the position of most powerful nation on the globe.
On the criminology front, this period is often referred to as the reform era of policing, in which the first crime laboratory, the polygraph test, the patrol car and other profound changes are introduced. Technology and science play a larger and larger role in criminal justice: In 1924, Nevada becomes the first state to use cyanide gas to execute an offender. Meanwhile, Prohibition allows for organized crime syndicates to seize power — and the size and scope of the federal criminal justice system grows rapidly to keep up.
1925–1945
In the decades after the Illinois Juvenile Court Act of 1899, the idea of a separate juvenile court system spreads rapidly. By 1925, a functioning juvenile court exists in every state except Maine and Wyoming. By 1932, there are more than 600 independent juvenile courts in the U.S. By 1945, all states have passed legislation creating separate juvenile courts.
The Supreme Court rules in Buck v. Bell that the state has the right to sterilize “probable potential parent[s] of socially inadequate offspring” — in this case, Carrie Buck, a young woman who became pregnant at age 17 after being raped by her foster parent’s nephew and was subsequently committed to a mental institution on grounds of “immorality.” By 1932, 30 states have mandatory sterilization bills on the books, and 67% of sterilization procedures are being performed on women and girls. Between 1907 and World War II, at least 70,000 people are sterilized in the U.S.
Dr. M.E. Ross visits the Hudson Girls’ Training School and is shocked to find that the institution’s cottages are segregated by race. While in the early days of juvenile institutions, Black youths were simply excluded, by the 1930s, segregation had become customary. Historical records from this period that reference “children” often exclude children of color entirely from their reporting, “because they were considered the ‘other’ and therefore inferior, or not even people.”
Public concern grows about disparities in treatment in the juvenile court system, a result of the absolute discretion given to juvenile court judges. Often, similarly situated youths receive vastly different sentences based on the mood, temperament or personal philosophy of individual judges. The scope of the problem is difficult to determine, as court proceedings are closed to the public and juvenile records remain confidential so as not to interfere with offenders’ rehabilitation and reintegration into society.
“Separate but equal” is cast down by the Supreme Court in the landmark Brown v. Board of Education decision, which renders racial segregation and Jim Crow laws unconstitutional. Resistance to the decision is widespread, and the federal government begins to use might to enforce the ruling. Meanwhile, the civil rights movement begins in earnest.
The civil rights and antiwar movements set the tone of the 1960s by challenging established authority, and many other groups — from Native Americans to LGBTQ people — follow their lead. The role of the criminal justice system in this time of change is complicated: an agent of both oppression and liberation. On the one hand, police beatings (and worse) of protesters are commonplace; on the other, the court system emerges as a surprisingly robust defender of human and civil rights in many areas.
By the time the 1970s arrive, the rising crime rate has become a substantial public concern, and local and state police begin incorporating state-of-the-art technology to assist in their enforcement efforts (with the support of federal funds). Radical criminology — a theoretical model born amid the social and political changes of the 1960s — flourishes in this decade, importing Marxist ideas into analyses of conflict theory. Adherents of this school of thought consider crime a product of the unequal distribution of resources that characterizes capitalism. Scholars of radical criminology, including William Chambliss and Richard Quinney, argue that traditional law enforcement serves to reinforce the economic and social status quo and that a more effective strategy to combat crime is to redistribute money, power and status in society.
1963
One of the most turbulent years of the civil rights movement kicks off with a campaign of marches and sit-ins to desegregate Birmingham, Alabama. The protests make international news in May after police, led by commissioner Eugene “Bull” Connor, unleash fire hoses and dogs on the demonstrators. In August, more than 250,000 people attend the March on Washington led by Dr. Martin Luther King Jr. In September, four girls are killed when the Sixteenth Street Baptist Church is bombed. By January, when President Lyndon Johnson gives his first State of the Union address (his predecessor, President John F. Kennedy, had been assassinated in November), the need for federal legislation is clear — and Johnson calls for legislative action in his speech. The Civil Rights Act is passed in July.
In her book Society of Women: A Study of a Women’s Prison, sociologist Rose Giallombardo theorizes that women’s experiences outside a prison inform the subculture found within. Giallombardo’s analysis is an extension of the “importation model” developed earlier by John Irwin and Donald Cressey. These researchers and others are part of a burgeoning field of prison studies, a subfield of sociology focused on the study of life inside correctional institutions and its effects on people who are incarcerated.
In the case of In re Gault, the Supreme Court rules that juveniles have the right to some due process safeguards and that there are limits to the state’s power to act in a parental role — one of the most influential juvenile justice rulings in U.S. history. The case concerns Gerald Gault, who at 15 was accused of making a lewd phone call to a neighbor with a friend. Gault was taken into custody and ultimately committed by a judge to the Arizona State Industrial School — all without his parents being notified of his detainment, his rights or the charges against him.
On June 27, police attempt to raid the Stonewall Inn, a gay bar in New York City’s Greenwich Village. The bar has been raided many times before — part of the decades-long campaign of harassment police have waged on LGBTQ people — but this time, its patrons fight back and refuse to allow the police inside. Unrest spreads to the streets and continues for two more nights — and a new, more visible and defiant gay liberation movement is born.
The term “reproductive politics” is coined by the feminist movement as way to signal that the ongoing cultural battles over abortion and contraception are not just about women’s right to avoid unwanted pregnancies. Women’s rights activists argue that patriarchal control over the behavior of girls and women is at the heart of efforts to criminalize family planning and abortion, invoking the criminal justice system in order to assert authority over matters of women’s sexual and reproductive health.
Geraldo Rivera’s televised Willowbrook exposé on the abuses in institutions housing the mentally ill shocks the nation, beginning a decade-long effort to deinstitutionalize this population. Despite efforts to create alternative treatment programs, the criminal justice system absorbs many of these people.
The Supreme Court rules in Roe v. Wade that terminating a pregnancy is a private decision between a woman and her doctor — a watershed ruling that reverses nearly a century of laws restricting access to abortion. The decision is instantly controversial and continues to face legal challenges to this day.
A child welfare case filed in New York, Wilder v. Bernstein, alleges that adoption agencies run by religious organizations (whether Catholic, Jewish or Protestant) discriminate against non-white children, who end up being placed in foster and adoptive homes later than white children and receive fewer placements overall. Many of these children become “persons in need of supervision,” or PINS, and are placed in juvenile facilities even when they have no record of misconduct. The case’s namesake, Shirley Wilder, is a victim of sexual abuse who had a son at 14; she is considered “unadoptable” and sent to New York State Training School for Girls in Hudson, New York, for “correction.” By the time the case is decided after 14 years in litigation, Wilder has died and her son, raised in the foster care system, has had a child of his own.
President Richard Nixon supports a large-scale treatment approach to confront the country’s fast-growing drug problem — at first. But Nixon changes tactics when “tough on drugs” proves to be a more politically effective message, and interdiction and incarceration become the administration’s preferred methods of reducing drug abuse. Nixon resigns from the presidency in August in the wake of the Watergate scandal, but the war on drugs later resurfaces as a top priority a decade later under President Ronald Reagan.
Freda Adler and Rita James Simon become the founding mothers of feminist criminology after the publication of their two books: Adler’s Sisters in Crime and Simon’s Women and Crime. For the first time, criminology begins to grapple with the unique circumstances of women in the criminal justice system, after decades of being shoehorned into male-centric theories of criminality. Adler and Simon’s new theoretical school incorporates gender and social constructs into discussions of crime and criminality, noting how female behavior that challenges traditional gender roles has often been historically criminalized.
In Taylor v. Louisiana, the Supreme Court rules that jury service cannot be restricted to men — ending a practice in many states that commonly “exempted” women from serving on juries. The court’s decision argues that special exemptions for women deprive a defendant of a fair and impartial jury; in other words, the court’s decision hinged on concerns about due process, not about discrimination against women.
In 1980, Ronald Reagan wins a landslide victory over Jimmy Carter to become president, signaling a national political shift toward conservatism. But although Reagan’s platform calls for smaller government, the criminal justice system expands as never before. Money pours into agencies large and small, paying for increasingly advanced equipment and more personnel. The war on drugs escalates while crack devastates inner cities. A rash of get-tough legislation results in longer sentences and reduced use of probation and parole. The death penalty enjoys a resurgence in many states.
The fever for retribution continues into the 1990s. Statutes continue to mandate harsh sentencing, including a wave of strict “three strikes and you’re out!” laws. The country’s rate of incarceration rivals that of Russia and South Africa. Supermax institutions become popular, and private prison corporations are booming. Juveniles, women and mentally ill people end up in custody at increasing rates. By the end of the decade, crime is on the decline across the country — but are these tough policies responsible for the drop, as some politicians suggest? If so, are they worth it?
1980s
Alternatives to incarceration spring up in response to extreme overcrowding and budgetary crises in prisons across the country. Shock incarceration, a boot-camp-style, shorter-term prison program, becomes popular, especially for juveniles. Two other commonly used alternatives are intensive supervisory probation — which requires released offenders to commit to increased contact with a probation officer and other strict requirements —and home confinement — which restricts released offenders to their residences (and, sometimes, workplaces) and monitors them with electronic equipment. Despite these adaptations, the number of people under any type of correctional supervision skyrockets; by the end of the decade, the prison population has ballooned from 2 million to 5 million.
As the war on drugs rages, a prison-abolition movement begins to emerge. Too many nonviolent offenders are being sent to prison, argue leaders of the movement, and the answer is not just “alternatives to incarceration” but the dismantling of the system wholesale. The movement urges the adoption of rehabilitation methods that could reform offenders more efficiently than the prison system.
Howard Zehr coins the terms “restorative justice” in his book Changing Lenses, challenging the longstanding precedent of understanding crime as a violation against the state or its laws. In Zehr’s alternative model, crime is viewed as an offense against relationships — the primary victim is the one most harmed, followed by communities, families, loved ones and other secondary victims. The new philosophy calls for resolving criminal events with practices that are non-retributive and operate outside the punitive paradigm.
Over the course of the decade, institutional confinement of youth rises significantly and then begins to recede. In the mid-1990s, after years of tough sentences for even minor offenses, youth correctional facilities across the country suffer from overcrowding and deplorable conditions. Over the next few years, led by California, many states begin to take steps to reduce the number of youths committed to correctional institutions, borrowing from lessons learned during the closing of many “training schools” (such as the New York State Training School for Girls) in the early 1970s.
Across the country, 87,000 women are incarcerated — up from 40,000 in 1989 and 12,000 in 1980. This growth rate is higher than that of the (much larger) male prison population and is a result of “get tough” legislation popularized in the 1980s. Most women are arrested for nonviolent offenses, usually drug or property crimes. They are disproportionately women of color, and more than half haven’t finished high school. The majority are mothers. Numerous studies show women are often subject to stricter discipline in prison than men, punished for infractions that would barely register in male facilities.
During televised confirmation hearings for Supreme Court nominee Clarence Thomas, Anita Hill testifies that Thomas had sexually harassed her while he was her supervisor at the Department of Education and the Equal Employment Opportunity Commission. Thomas is nonetheless confirmed by a Senate vote of 52-48. In April 2019, then-presidential-hopeful Joe Biden discloses that he had called Hill to express “his regret for what she endured” in his role as the chairman of the Senate Judiciary Committee, presiding over the Thomas confirmation hearings.
President Bill Clinton signs the Violence Against Women Act of 1994 (VAWA) into law in September. The act provides $1.6 billion toward investigation and prosecution of violent crimes against women, imposes automatic and mandatory restitution on those convicted, and allows civil redress when prosecutors choose to not prosecute cases. The act also establishes the Office on Violence Against Women within the Department of Justice.
Criminologist John Dilulio publishes an article called “The Coming of the Super-Predators” in the Weekly Standard, falsely predicting a forthcoming violent crime wave perpetrated by Black children and other children of color. Despite the article’s inaccuracy, it is used to rationalize policies that make it easier to try children as adults and even sentence them to life without parole.
The CDC-Kaiser Permanente adverse childhood experiences (ACEs) study is published, one of the largest investigations ever conducted on the effects of childhood abuse, neglect and household challenges on later-life health and well-being. A relationship is found between ACEs (and the toxic stress that accompanies them) and a number of neurological changes in the structure of the brain and its function, increasing the incidence of mental disorders. Subsequent research attempts to identify specific biomarkers associated with different kinds of ACEs.
Human Rights Watch reports that Immigration and Naturalization Service is detaining about 15,000 people, a 70% increase from 1996. That year, the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act mandated detention for certain categories of immigrants and expanded the list of crimes for which noncitizens could be deported. Previously, a serious felony conviction was required to warrant deportation; now shoplifting can be justification enough, even if the offender has lived, worked and paid taxes in the U.S. for years.
The new millennium dawns with record-breaking numbers of people incarcerated in the U.S. Almost 6 million people are under some type of correctional supervision. The war on drugs is still a primary factor driving the high incarceration rate — and is the primary driver of racial disparities in incarceration — but public support is beginning to wane and concern is growing over the consequences of “lock-’em-up” strategies.
Multiple factors contribute to the change in public sentiment. The rise of activist groups challenging the prison-industrial complex (such as Critical Resistance, formed in 1997) helps bring issues associated with mass incarceration to greater prominence. A number of high-profile errors resulting in wrongful convictions in death penalty cases are widely reported in the media, souring public opinion on capital punishment. A consensus grows that harsh punishment will never be enough to stop drug use outright, and California, among other states, shifts to making treatment a central focus for drug offenders. Racial profiling and harsh mandatory minimum sentences — two pillars of the “tough-on-crime” approach — are increasingly called into question.
Perhaps most importantly, crime rates have fallen precipitously across the country, making it harder to justify wildly inflated correctional budgets that spend more on prisons than schools. Change is in the air, though it remains to be seen whether these shifts will endure — and how far the reform movement will be able to go.
2004
In September, a Girls Court — one of the first in the nation — debuts on the island of Oahu in Hawaii. Recognizing the special needs of girls in the juvenile justice system, which was traditionally designed for boys, the gender-specific program intends to prevent or reduce female juvenile delinquency by encouraging healthy attitudes, behaviors and lifestyles. Female juvenile offenders are often victims of physical, sexual or emotional abuse, the effects of which can be exacerbated when navigating a justice system unresponsive to girls’ specific needs. The Girls Court approach also catches on in parts of California, Florida, Michigan and a handful of other states.
The Supreme Court strikes down the death penalty for crimes committed by people under 18 in Roper v. Simmons, reversing a 1989 precedent. In its ruling, the court notes that only seven other countries in the world have executed juveniles since 1990, and even those countries now disallow the juvenile death penalty. The U.S. was the last remaining outlier.
The phrase “Me Too” is first used as a response to sexual abuse and harassment on social media, by sexual assault survivor and activist Tarana Burke. More than a decade later, the #MeToo movement leaps to national prominence in October 2017 after film producer Harvey Weinstein is accused of years of serial sexual abuse and harassment, setting off a public reckoning over the often-ignored sexual misconduct of powerful figures in media and other industries. Survivors use the #MeToo hashtag to emphasize the widespread nature of sexual abuse and harassment in society.
The National Survey of Children’s Exposure to Violence is the first comprehensive national survey studying the entire spectrum of children’s exposure to violence, crime and abuse across all ages, settings and timeframes. The survey measures recent and lifetime exposure to violence among children under age 18 across several major categories: conventional crime, child maltreatment, victimization by peers and siblings, sexual victimization, witnessing and indirect victimization (including exposure to community violence and family violence), school violence and threats, and internet victimization. According to the Office of Juvenile Justice and Delinquency Prevention, at least 75% of youth in the juvenile justice system have experienced traumatic victimization.
The Obama administration bans federal prisons from placing juvenile offenders in solitary confinement, a draconian and psychologically damaging punishment that has a long history in juvenile institutions (along with deprivation of clothing, reductions in food rations and even beatings). Many individual states have passed laws prohibiting punishments that resemble torture techniques, but supervision of institutional codes of conduct is often lax.
Immigration policies in the U.S. grow increasingly harsh, a trend that will accelerate dramatically under the Trump administration. Immigrants are routinely denied their right to claim political asylum, and a growing number of people are placed in detention over the misdemeanor offense of border crossing.
Adults view Black girls as less innocent and more adult-like than their white peers, according to a groundbreaking study released by the Georgetown Law Center on Poverty and Inequality. The study, “The Erasure of Black Girls’ Childhood,” further showed that even in the age bracket of 5 to 9 years old, adults perceive Black girls differently than white girls of the same age — namely that they need less nurturing, protection and comforting. The study found that the difference in adults’ perception of innocence peaks from ages 10 to 14.
Nearly 5% of girls who entered Los Angeles County juvenile detention facilities had positive pregnancy tests upon arrest, according to the results of a year-long study. While only one of those girls gives birth during her time in detention, pregnant girls and women who end up serving longer sentences have few options. Children born to incarcerated mothers are typically taken away, often using coercion, and placed in foster care or put up for adoption, and the resulting breach between mother and child has been documented to have negative lifelong effects.
“Incorrigible” — long a legal term used by New York state law to define “persons in need of supervision” — is officially retired in April with the adoption of Senate Bill S7930. The bill’s sponsor, Sen. Julia Salazar of Brooklyn, writes in the bill, “[Incorrigible] is a term that, at least, implicitly and in practice singles out girls of color for not matching expectations of stereotypical ‘feminine’ behavior and labels them as ‘uncorrectable’ or ‘unreformable.’”
The bipartisan Equality Act is introduced in the U.S. House of Representatives, prohibiting discrimination based on sexual orientation or gender identity in employment, housing, credit, education, jury service, federally funded programs (including health care) and public spaces. For the first time in federal law, the act would also prohibit discrimination against women and girls in public accommodations. The bill is prompted in part by a horrific disparity in abuse rates faced by transgender people in prison: They face physical and sexual assault at much higher rates than their cisgender counterparts, at the hands of both staff and fellow prisoners.
Criminal justice systems do not develop in a vacuum. They are ultimately a reflection of the values of the society that implements them — and they can change when the values of a society are perceived to change as well. Thus, we all play a small but inherent role in determining how the future of this timeline will be written. Which values will shape our conception of “justice” in the coming decades? That depends in large part on which values we champion, cultivate and encourage today.
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