Although almost all existing scholarship considers the Supreme Court’s 1967 decision in In re Gault, which provided certain procedural rights to juveniles, to be the start of juvenile justice reform, that view ignores substantive discussion and legislative change preceding the Court’s ruling. This paper relies heavily on previously untapped archival sources to examine the beliefs and accomplishments of lawyers, judges, probation officers, and professors who led and resisted change in the administration of juvenile justice before and after Gault. These sources show that reformers advocated for a reduction in the court’s jurisdictional scope, a restriction on institutional dispositions, and an increase in procedural formalities (including an increase of the burden of proof, the rights to counsel, notice, and confrontation of witnesses, and the right to remain silent) concurrently and consistently throughout the period from 1957 to 1972. These reforms should be understood together, as means to limit the scope of courts’ authority over children whose non-criminal behavior deviated from middle-class social norms. This limitation of social control is consistent with contemporary limitations in adult criminal law, which sought to restrict judges’ discretion and increase rehabilitative services for adult offenders. Through both revision of substantive law and procedural formalization, reformers sought to transform the juvenile court into an institution that treated young law violators with dignity and allowed non-law violators to live their lives free from the social controls of others. In an age of incarceration, this paper demands a reconsideration of the juvenile court’s purpose.
Volume 98
Restoring the Original Meaning of the Speech or Debate Clause
A proper analysis of the original meaning of the Speech or Debate Clause identifies two, and only two, protections it affords a federal legislator: an immunity from punishment for legislative acts, and a privilege from testifying about those acts. Yet, the U.S. Supreme Court has interpreted the clause as prohibiting even the mention of legislative acts during a bribery prosecution. This evidentiary privilege lacks basis in text and prior precedent; what produced it was a deeply flawed understanding of the clause’s implications as a matter of constitutional structure. These flaws did not stop the D.C. Circuit from applying this unsound structural reasoning and thereby broadening the testimonial privilege well beyond its proper boundaries. These erroneous decisions needlessly frustrate the enforcement of anti-bribery laws which are necessary to punish and deter abuse of the public trust. Seeking to unsettle the foundations of nearly fifty years of precedent, this Note argues that the Court should remove the evidentiary privilege from the Speech or Debate Clause and return the testimonial privilege to its proper narrow scope. The Ninth Circuit’s recent disagreement with the D.C. Circuit’s interpretation of the clause gives the Supreme Court a prime opportunity to restore its original meaning this term.
Law and Grace
Two metaphorical wars have defined American politics and American law over the last generation: the culture war and the war on crime—especially, drug crime. Aside from the fact that these two non-wars have been misnamed, they seem to have little in common. One is about abortion and gay rights, the other is about crack and crystal meth. The key actors in the first are Supreme Court Justices and religious right politicians; the key actors in the second are big-city prosecutors and the members of urban gangs. There doesn’t seem to be much overlap here.
Actually, I think there is a lot of overlap. Twice in American history, theologically conservative Protestants have been a stable voting bloc—meaning, we’ve seen two historical periods when the most Protestant parts of the country voted together, and voted differently than the rest of the country. The first of those periods began in the 1890s and lasted until the 1930s. The second began in the 1970s and lasted at least until George W. Bush’s reelection in 2004. Twice in American history, this country’s prison population has exploded. Between the early 1890s and the late 1930s, the imprisonment rate—meaning the percentage of the population behind bars—rose by 130%. Between the mid-1970s and today, the imprisonment rate multiplied seven-fold.
Seems like an interesting coincidence. But there’s more. In the hundred-forty years since the Civil War, the United States has seen two legal crusades against vice. The first began in 1890, with the passage of the federal law banning the mailing of lottery tickets. Federal and state laws targeting gambling, prostitution, drugs, and alcohol followed over the next few decades; this long crusade ended when Prohibition ended, in 1933. The second of these anti-vice crusades began in 1973—which was the year Roe v. Wade was decided; it was also the year Nelson Rockefeller signed New York’s new drug statute, which inaugurated the drug war. The pro-life movement took off a few years later. Two generation-long culture wars and two generation-long battles against vice coincided with two generation-long explosions in the nation’s prison population.
The common thread in all the trends I’ve just mentioned is the political power of a religious community: my religious community. I’m an evangelical Christian; I belong to a theologically conservative Protestant church. People who belong to churches like mine—meaning, mostly white, theologically orthodox Protestants—have been a powerful voting bloc for the last generation, as was the case for the first generation of the twentieth century. In between, not so much. America’s criminal justice system has become vastly more punitive during the last generation—as it did during the first generation of the twentieth century. In between, not so much. I want to ask, and take a stab at answering, four questions about those two sets of trends: First, what is the relationship between them? Second, why should that relationship seem surprising? Third, why does this surprising relationship exist; why did things happen this way? And fourth, how might things have happened differently?
Those are the questions; here is a quick tour of the answers: America’s justice system is more punitive in large part because voters in church communities like mine supported policies and politicians who made it so. That relationship should seem strange, because my faith—and the faith of the large majority of evangelical Protestants, in the United States and elsewhere—emphasizes grace and mercy, not rules and punishments. Christians of my generation and of some past generations embraced punitive policies because those policies did not seem that punitive. We didn’t mean to be unfaithful to our faith; it didn’t seem that way at the time. Nothing turned out the way anyone thought it would. Last question: how might it all have been different? The short answer is, we might have fought a different kind of culture war, and a different kind of crime war—wars that were less warlike, with many fewer casualties. Here’s the surprising part: that other, less warlike kind of war would have been a lot more successful than the wars we actually fought.