Chapter 6 ‘They’re not children anymore’: Juveniles as adult defendants in US criminal justice, 1786–2000

Children and the death penalty

From the colonial era through to the early nineteenth century, US criminal codes were written to apply to everyone, irrespective of age. For example, during the famous Salem Massachusetts 1692 witch trials, Sarah and Thomas Carrier were accused of witchcraft alongside their mother, Martha. They were aged seven and nine. Thomas’s likely coerced confession that his mother had taught him witchcraft but that he had only practised it for one week helped to secure his reprieve.³ The Carrier children’s involvement demonstrates how in Puritan New England children alongside adults were deemed capable of the evil occult. In that heightened religious environment there were not separate categories of juvenile delinquency and adult criminality but one type of wrongdoer: the sinner. Nevertheless, the public and authorities recognised that young children were different to adults. This was uncodified, so some youths were afforded more leniency than others. Some were treated as if they were miniature adults – receiving the same severe punishments as adult offenders including public whippings, imprisonment and even death, whereas in other cases youthfulness was recognised as a mitigating factor.

On 20 December 1786, twelve-year-old Hannah Ocuish, a mixed-race Pequot Native with a Black father, was hanged in New London, Connecticut, after being convicted of murdering six-year-old Eunice Bolles. Crystal Webster and Holly N.S. White disagree over the strength of evidence implicating Ocuish.⁴ One alleged motive was a quarrel between the two girls over strawberries several months prior. Prosecutors’ case included conjecture and blatantly racialised testimony where Ocuish’s Native mother was described as an alcoholic ‘creature’. The 1752 Murder Act mandated punishment by death by hanging. The judge refused to consider Ocuish’s age in mitigation, stating ‘the sparing of you on account of your age would … be of dangerous consequence to the public, by holding up an idea, that children might commit such atrocious crimes with impunity’.⁵ White analyses numerous cases where predominantly Black youths were executed having faced near-impossible battles to prove criminal innocence or diminished responsibility and contrasts these against cases involving white children where early American courts carefully considered age, maturity and innocence. Gender, race and class were decisive in adjudicating children’s criminal responsibility – themes that continue to arise in the early twentieth-century cases analysed later.

Rather than operate as impartial authorities, courts were oppressive tools leveraged against colonised people. The court endorsed a racialised view that Ocuish was inherently savage and sanctioned the state’s desire to kill her. It is no coincidence that Ocuish remains the youngest-known executed convict in US history and that James Arcene, a ten-year-old Cherokee convicted of assisting an 1872 murder-robbery, remains the youngest-known child sentenced to die. He escaped post-sentencing but was executed after recapture in 1885.⁶ Both cases were frequently invoked by opponents of the juvenile death penalty and speak to the harsh treatment of Native Americans by courts and a federal government which did not consider them citizens until 1924. Aged ten and twelve respectively, authorities deemed them ‘adult’ enough to die at an executioner’s hand.

Between 1642 and 1959 colonies, states and the federal government executed at least 394 juveniles. One of the starkest indications that American juvenile justice was never designed to cater for all youths is that this continued long after reforms established differentiated juvenile justice systems. The last minor executed in the US was seventeen-year-old African American Leonard Shockley who died in a Maryland gas chamber in 1959.⁷ The twentieth-century history of youths and capital punishment is one of discrimination against Black boys. George Stinney Jr was fourteen when South Carolina electrocuted him in 1944. His trial spanned two hours. The all-white jury deliberated for ten minutes. Carl Suddler’s analysis of postwar New York reveals how Black youths were condemned with a stigma of assumed criminality at odds with a justice system purporting to presume defendants’ innocence, showing that this was not a purely Southern issue.⁸ Stinney’s conviction for murdering two younger white girls was posthumously vacated in 2014 when a South Carolina court ruled that his trial was unfair.⁹ Habiba Ibrahim’s work demonstrates how Black age was seen as malleable and contingent in a way which has affected youths accused of crimes like Stinney but also Black youths when they are victims of adult violence. Ibrahim points to the killings of Emmett Till and Trayvon Martin as examples of the adultification of Black youths in victimhood. These twentieth- and twenty-first-century cases are linked to the longer history of Black subjugation by Ibrahim, including the longer history of manipulating Black age for the purpose of enslavement.¹⁰ In this sense, Black age has historically been linked to white perceptions of appearance and presumed capacities rather than biological age, something which remained evident in the treatment of Black youths within criminal justice.

The US Supreme Court (SCOTUS) temporarily halted the death penalty in 1972’s Furman v. Georgia but it was reinstated in 1976. Post-1976, twenty-two males were executed for crimes committed as juveniles. In Thompson v. Oklahoma (1988) SCOTUS prohibited capital punishment where the defendant was under sixteen when committing the crime, overturning the death penalty imposed upon fifteen-year-old William Thompson for the revenge killing of his former brother-in-law over abuse perpetrated against Thompson and his sister.¹¹ SCOTUS expanded its ruling from Thompson in Roper v. Simmons (2005). The majority cited adolescent brain development science and prohibited the death penalty in cases where the defendant was under eighteen at the time of the crime. After Roper, ‘evolving standards of decency’ meant juvenile capital punishment amounted to unconstitutional cruel and unusual punishment.¹²

The rise of juvenile courts

Despite allowing executions for juvenile-committed crimes until 2005, the US had long differentiated children from adults in other aspects of criminal justice. Prior to nineteenth-century reforms, this was discretionary, but the longstanding recognition that children were different to adults and needed different treatment eventually informed separate juvenile justice infrastructure. But children continued to be charged, tried and incarcerated as adults. Officials sorted youths into two discrete categories: those deemed worthy of protection from the vices of the adult criminal justice system and those deemed ‘adult’ enough to be exposed to them. This ‘adulthood’ was not about biological age or physical and mental maturity but a value judgement on potential to reform. Children deemed to have flawed characters or whose alleged crimes were too severe were stripped of their child status by authorities pursuing harsher punishment.

During the Progressive era, loose coalitions of ‘child-saving’ activists, often upper- and middle-class white women, achieved various piecemeal child-focused reforms. Janet Wilson details how historical appraisals of their motivations vary: child-savers are regarded as humanitarians who extended their domestic care-giving roles into the public sphere; meanwhile, critical accounts highlight attempts to impose values on impoverished and immigrant families, using the state to enforce order on their terms to control youthful behaviours. Furthermore, even some of the staunchest advocates for a separate juvenile system raised comparatively little opposition to Black children’s experiences of Jim Crow justice.¹³ Geoff Ward details how Black Americans mounted their own child-saving campaigns while Black youths continued to encounter a parallel Jim Crow justice system after a Progressive rehabilitative approach had begun shaping white children’s experience of justice.¹⁴ Child-savers disagreed on issues but agreed on foundational principles that children were innocent, uniquely vulnerable and deserved more compassionate treatment. Children whose actions betrayed notions of innocence and vulnerability were frequently denied access to the separate juvenile justice system these reformers helped to shape.

From 1863, Massachusetts law meant that ‘children of tender years’ were not criminally responsible for their actions and in 1878 the Bay State passed the first American probation law. By 1910, thirty-eight states and the District of Columbia had similar laws. The 1898 Illinois Juvenile Court Act reflected child-saving reformers’ attitudes in establishing the country’s first juvenile court. Its primary mandate was to save predelinquent children from lives of adult criminality, though it did hear serious cases including murders. Protestant minister and Children’s Aid Society founder Charles Loring Brace described the type of children juvenile courts routinely served as enfants perdus (lost children).¹⁵ Juvenile justice architects envisioned it as prescribable treatment for predelinquent youths. In 1905, Pennsylvania’s Supreme Court ruled that authorities could commit children to reformatories to ‘save a child from becoming a criminal, or from continuing a life of crime’.¹⁶ Children who displayed too much criminality to be ‘saved’ were still processed as ‘adults’. The historic attitude that children can reach a point of no return regarding ‘adult’ criminality long remained in legislation; in 2023, thirty-five states had so-called once/always laws, meaning that once a youth faces adult charges, all subsequent charges are filed in adult court, even in non-violent minor cases.¹⁷

Juvenile courts did not evenly spread across America’s complex myriad of legal jurisdictions. In 1923, the US Children’s Bureau’s Katherine Lenroot observed that urban youths were likely to have their cases heard in youth courts but juveniles in smaller towns and rural areas frequently lived in jurisdictions without a children’s court. Lenroot also noted a concerning lack of minimum national standards for juvenile courts which increased the risk of unfairness. That persisted. In 1967’s In re: Gault, SCOTUS asserted that juveniles had the constitutional right to due process; 1970’s In re: Winship raised the burden of proof in juvenile proceedings to ‘beyond reasonable doubt’, mirroring adult criminal justice. Previously juvenile court defendants had no guarantee of due process and could lose their liberty based on a mere balance of probabilities.¹⁸

The charging, trying and incarceration of juveniles as adults is mainly a state-by-state issue as youths usually face state charges but federal courts do try children’s cases; there is no federal juvenile court. US attorneys have the power to charge children as adults. The federal system resisted Progressive-era reforms and continued to process all children as if they were adults. For example, Ex Parte Beaver (1921) considered a writ of habeas corpus over custody of a youth who had lied about his age to join the army before deserting. His lawyers pleaded for his case to be treated differently but he was prosecuted for desertion in federal court despite being too young to legally serve. Despite more recent SCOTUS case law, the federal prosecutors’ manual continued favouring a 1989 case asserting that older youths should be charged as adults because the ‘more mature a juvenile becomes, the harder it is to reform the juvenile’s values and behaviour’. Similarly, it states that youth with ‘streetwise intellect or precociousness’ should similarly be candidates for trial as an adult.¹⁹ A ‘streetwise intellect’ is a subjective judgement that invites class-based and racialised prejudice against specific youths previously exposed to violent crime who adapted their behaviour because of traumatic experiences. Appearing ‘streetwise’ does not mean that a child can follow federal criminal proceedings.

Herbert Niccolls Jr

Aside from federal courts and rural areas lacking youth-specific provision, a separate juvenile justice system of juvenile courts and reformatory schools had spread across the US by the Depression era. Children accused of serious crimes like murder were still tried in adult courts and accommodated in adult jails. Authorities recognised that young children could not practically live in adult jails. In 1929, six-year-old Carl Newton Mahan of Paintsville, Kentucky, became the youngest murder defendant in American history. Mahan, a middle-class white boy, shot eight-year-old playmate Cecil van Hoose following an argument over scrap metal. Days after the killing, Mahan described to the court how he had killed his friend during a day-long trial which continued even as the tired defendant napped on a courtroom desk. After half an hour of deliberations, the jury convicted him of an alternative manslaughter charge. A county judge sentenced Mahan to fifteen years’ imprisonment to be served in a reformatory rather than county jail, prompting public outcry and legal appeals. To some a manslaughter conviction was not enough. Others thought it excessive. Newspapers ran photographs of the skinny Mahan in a suit, clutching his toy doll. Kentucky attorney general James Cammack reviewed the case and upheld a circuit judge’s writ of prohibition preventing Mahan serving his custodial sentence. He was ‘bailed’ to the custody of his parents.²⁰

Mahan was unusually young but homicides involving older children have proven semi-frequent. These defendants’ race shaped their treatment, as did press coverage, judicial assignments and accessibility of quality legal counsel. In 1931, Asotin, Washington, was rocked by the fatal shooting of the small town’s long-serving sheriff John Wormell as he investigated a late-night shop burglary. The killer was eleven-year-old Herbert Niccolls Jr, a local white boy with a reputation as ‘Mary Addington’s delinquent grandson’. Before living with Addington, Niccolls had spent time in reformatories for offences including tricycle theft, joyriding and setting fire to a church. Within hours an angry mob formed outside the courthouse where Niccolls was held and began shouting for him to be hanged. Outnumbered, and fearing for his and their safety in a town with a history of lynching, officers hastily transferred him across county lines. At first the case appeared uncontroversial; public opinion seemed set against Niccolls.²¹

Before his trial Niccolls was held in an adult jail, segregated from other prisoners. Without counsel, he gave prosecutors a confession which quickly appeared in the Lewiston Morning Tribune. When the case came to trial, it proved impossible to find jurors who had not read it. Two potential jurors were discharged for stating opposition to the ‘drastic penalties’ prescribed by law, given Niccolls’s age.²² Again without accompaniment, Niccolls was evaluated at Eastern State Hospital and underwent psychological questioning and invasive medical procedures, including having spinal fluid drawn for analysis. This lack of regard for juvenile defendants’ constitutional rights was commonplace prior to 1960s SCOTUS cases but Niccolls’s rights were repeatedly violated before an ‘adult’ trial. Defending Niccolls was a necessary but unpopular task; the court appointed him out-of-town attorneys. The trial hinged on whether Niccolls was sane and responsible for his actions as the facts were agreed. Niccolls testified: ‘I was so scared I just fired my pistol to scare him. I didn’t know which way I pointed it, but I shot Mr Wormell.’²³

The case drew national publicity and crowds gathered in Asotin ahead of State v. Niccolls. An enterprising Methodist Church sold fried chicken lunches to people keen to catch a glimpse of the boy dubbed ‘the barefoot killer’, a reference to his owning no shoes. Public opinion had shifted. Rather than baying for blood like the crowd that had gathered on the night of the killing, this crowd included well-wishers. One woman gave Niccolls homemade gingersnaps. Local farmer J.B. Tucker paid to outfit him in a tailored suit and sporty red bowtie. Niccolls did not resemble the monstrous descriptions that had saturated the press immediately after the murder. He looked ‘more like eight than twelve, with his long delicate face, long eyelashes, and a very thin frame’. A Seattle Post-Intelligencer journalist commented that Niccolls could have stepped straight from the pages of Booth Tarkington’s Penrod tales. In doing so they compared him to a popular representation of rugged American boyhood which followed the fictional pre-World War I adventures of eleven-year-old Midwesterner Penrod Schofield, a character frequently likened to Mark Twain’s Tom Sawyer.²⁴

Judge Elgin Kuykendahl opened the trial by asking if ‘Mr Niccolls’ was present. The defendant answered as he would for morning roll at school, prompting laughter from the public gallery. His actions and appearance gave the impression of a lost little boy who did not understand the proceedings around him. Nobody denied that he had killed Wormell. The uncertainty regarded prosecutors’ abilities to convince Kuykendahl that he should die. Colonel Fulton, from whom Niccolls had stolen the murder weapon, testified to that effect, saying, ‘He’s a murdering little thief. He should be hanged.’ At this Niccolls urgently tugged on his attorney’s shirt and as the judge called recess the boy ran to the lavatory and vomited. Fulton was in the minority. Niccolls’s growing number of sympathisers pointed to traumatic childhood experiences to argue that the state owed him protection, not punishment.²⁵

Niccolls spent his early childhood on the family ranch in Star, Idaho. His mother Hazel was ‘neglectful’ to her children amid her violent and dysfunctional marriage to Herbert Sr. Herbert Jr recalled ‘Papa hitting Mama’ and how his father’s fists ‘split flesh’. Idaho removed the children after their father was committed to an asylum for killing a neighbour. Herbert Jr found the body and suffered regular night terrors where he saw a woman’s corpse lying ‘like a broken toy’. Life with his grandmother was also difficult. After his arrest, jailers summoned doctors to treat him for ‘trench mouth’, signifying longstanding malnutrition and neglect. His playmate Murphy Watkins described how Addington locked her grandson in a room without food or water. Watkins’s mother Jean recalled that if Herbert was late, Addington beat him with a club. In an era where white children were seen as having a right to a childhood, Niccolls’s experience of neglect and violence went against ideals of what childhood should be.²⁶ His sympathisers argued that the failings of his guardians, society and the authorities who were expected to intervene in matters of child welfare made the prospect of the death penalty unfair.²⁷

The jury deliberated for three hours to convict Niccolls of murder but did not recommend the death penalty. Kuykendahl drew criticism from all sides for sentencing Niccolls to life imprisonment at Washington’s Walla Walla state penitentiary. Washington State Supreme Court justice Kenneth Mackintosh commented that Niccolls ‘should have hung’ and that he would always be a ‘menace’ to society.²⁸ New York’s Sing Sing prison’s warden disagreed, arguing that he could be rehabilitated into a productive citizen. Newspaper opinion sections were vitriolic. One letter-writer described a child receiving a life sentence as ‘an ungodly, rotten stain’ on the judiciary’s intelligence and a ‘rank foul miscarriage of justice’. Another called the jury which convicted him ‘uncivilized barbarians’. Oakland’s St Celia Society even prayed that ‘every bad fortune’ be visited on Kuykendahl and his family.²⁹ Guards at Walla Walla described Niccolls as a ‘problem’, explaining ‘we can’t treat him as we would a man’. Niccolls liked checkers and dominoes, frequently asking, ‘Maybe you could play with me?’ He also enjoyed performing tunes like ‘Home on the Range’ on his harmonica.³⁰ His behaviour, perhaps deliberately, conformed to expectations of childishness and influenced how jailers and inmates treated him. When deadly riots engulfed the prison, concerned inmates sheltered him from violence.

Seattle socialite and child welfare campaigner Armene Lamson petitioned for Niccolls’s release and invited father Edward Flanagan of Boys Town, Nebraska fame to join her campaign. Flanagan argued that Niccolls had ‘never been given a chance’ in life and used the airwaves to criticise Governor Roland Hartley’s non-intervention. Hartley retaliated, attacking Flanagan in the press.³¹ Taking the principle that one who does not prevent a crime is also guilty to an extreme, Flanagan contended that a preadolescent boy can only be as guilty as the community around him. The Seattle Star published readers’ letters condemning Hartley’s stance. One wrote that ‘pest houses never cured diseases’. Another declared, ‘Governor Hartley will not be so inhuman as to deny that poor boy a chance in life. If he does, he will lose the respect of all Seattle people.’³² In 1932 Hartley suffered a heavy defeat to his lieutenant governor John Gellatly in the Republican primary.³³ Democrat Clarence Martin defeated Gellatly as Roosevelt-led Democrats dominated nationally. Martin shared a birthday with Niccolls and took an interest in his case. Niccolls was moved from a cell to a hut by a guard tower, ate his meals with the guards and graduated from high school after being supplied with schoolwork. Martin conditionally pardoned him in 1941 and after his release he lived a crime-free life working as an accountant for Twentieth Century-Fox in Hollywood.

The babes of San Quentin

The same year that Herbert Niccolls Jr arrived at Walla Walla, fourteen-year-old Jesus Borja arrived at California’s notorious San Quentin prison. Borja had fatally stabbed twenty-two-year-old Pedro Garcia at Garcia’s wedding reception. Ethnicity will have shaped how Borja’s case progressed through the justice system. Miroslava Chavez-Garcia’s States of Delinquency exposes how racist ideas and pseudoscience shaped juvenile experiences of criminal justice in California. This involved categorising youths as either reformable or dismissing them as feebleminded or criminally degenerate. Mexican American, Black and ethnic Euro-American youths resisted and endured state-sanctioned abuses and harsh punishments including involuntary sterilisation as the state appropriated the disciplinarian role from families and communities.³⁴

Garcia married thirteen-year-old Rose Guerrero, a girl who Borja considered his ‘sweetheart’; the two children had formed a playground pact to marry when grown up. Police originally arrested Garcia for ‘child-stealing’ after he drove Guerrero from Fresno to Bakersfield. Once lodged in the county jail, Garcia began negotiating with Guerrero’s father who gave him permission to marry her and dropped the charges. Press coverage worked to legitimise Garcia’s romantic interest in a child with the Selma Enterprise telling readers Guerrero ‘looked at least sixteen’ and to vilify Borja by describing his ‘uncanny and deadly aim’.³⁵

This capacity for calculated violent criminality was presented as ‘adult’ to support Borja’s arraignment in adult court. State law meant he would not receive the death penalty. Prosecutors sought permission to try Borja as an adult to pursue life imprisonment. As a juvenile, Borja faced a maximum of six years in a reformatory, which Judge T.R. Thompson described as ‘clearly insufficient’. Trying Borja as an adult came from a desire to punish him more severely rather than any judgement of his personal qualities. His attorney Tom Okawara entered a not guilty plea at the Superior Court, withdrawing a confession Borja had given to police without counsel present. Borja stated, ‘I was feeling so bad my mind was blank. Right now, I remember making only one or two of the statements you have there. If I made all those statements, I didn’t know what I was talking about.’ When the trial opened, he ‘appeared frightened and cried often during the first hour he was in court’.³⁶

Okawara commissioned Stockton State Hospital’s assistant superintendent to assess Borja. He concluded that Borja had the mental age of a ten-year-old. Judge H.Z. Austin dealt a significant blow to the defence by barring the physician from testifying, opining it ‘not relevant’. To Austin, the severity of Borja’s ‘adult’ crime outweighed considering his mental capacity. After unsuccessful appeals, Borja focused on his education at San Quentin, hoping to be released and able to pursue a career. He became ill with appendicitis and tuberculosis. Governor James Rolph denied Borja’s estranged father’s plea for a pardon to allow the terminally ill boy to spend his final days with family. Jesus Borja died at San Quentin in May 1933, aged sixteen.³⁷ While Washington’s executive showed Herbert Niccolls Jr leniency, California’s denied that to Borja, even when approaching death.

San Quentin’s juveniles received intense press interest. Journalists referred to the youngest inmate as the ‘babe of San Quentin’. In 1941 that title belonged to fifteen-year-old Achomawi Native Lee Vernon Gibson who had confessed to the murder-arson of sixty-eight-year-old Robert Burke, a disabled mill caretaker in Modoc County. Gibson’s confession came after two weeks of unsupervised questioning from police and the district attorney. He arrived at San Quentin days after his fifteenth birthday where jailers described him as acting like a younger boy typically would, exemplified by him bringing his precious bag of marbles to jail.³⁸

Journalists and officials involved in Gibson’s case moved quickly to justify his treatment. Sheriff John Sharp described a ‘plenty tough boy’. The Sacramento Bee emphasised Gibson’s physical strength as an adultifying quality: ‘Lee is large for his age’, it explained, describing how ‘his black eyes took in every detail of the prison yard’ and how he had a ‘deep knife scar across his neck’. Gibson’s injuries were used to portray him as someone well acquainted with criminal violence, far from childish or naive. He was in fact a victim of violence that had left him permanently disfigured with debilitating stiffness in his neck. Gibson understood his situation enough to tell reporters that he would ‘rather be dead’ than serve life at San Quentin, but other comments suggest he did not understand the prison environment. He told one reporter, ‘I plan to learn how to play the Hawai’ian guitar; that’s one of my ambitions.’ Beyond that, ‘Well, I’d like to be able to read a little better, write more handedly, and maybe learn arithmetic.’³⁹

Did a boy attached to his marbles and preoccupied with the Hawai’ian guitar belong in San Quentin? Similar to how Washington jailers felt they could not treat Herbert Niccolls Jr as a man, San Quentin’s progressive governor Clinton Duffy felt uneasy with Gibson’s presence. Duffy could not change Superior Court Judge A.K. Wylie’s mind but ordered that Gibson be separated from the institution’s ‘hardened’ criminals. Duffy considered Gibson a boy in a man’s prison despite California considering him ‘adult’ enough. Duffy responded to authorities placing small numbers of juveniles at San Quentin by attempting to replicate the reformatory within the prison complex, opening a schoolhouse and permitting Gibson and other youths to eat with the guards and their families.

Assessing Gibson’s case retrospectively is difficult because of the prejudices he encountered. The circumstances of the confession render it meaningless. Journalists and law enforcement assumed him to be inherently ‘savage’ as an Achomawi and manipulated his injuries and disability to exploit such assumptions. Police and the press emphasised Gibson’s prior police records. Initial reports that he had committed bicycle and automobile thefts proved erroneous. Gibson’s criminal record stemmed from his numerous escapes from Nevada’s Stewart Residential Indian School. Evidence of the worst psychological, physical and sexual abuses which have emerged from similar institutions have not yet emerged from Stewart, but some former residents describe hating their time there. Stewart still played a role in systematically removing Native youths from their families to strip them of their cultural identities. Historian David Adams describes boarding schools as ‘education for extinction’.⁴⁰ Gibson’s running away from Stewart was an act of resistance against colonial oppression which authorities leveraged against him to construe a pattern of criminality. This contributed to him receiving an adult life sentence as a minor.

The tough-on-crime era

For decades after Progressive-era reforms, juvenile courts dealt with most juvenile criminal cases. Only exceptionally serious cases like homicides were routinely transferred to adult courts. There were differing degrees of leniency for youths within the adult system, seemingly dependent on race, which is exemplified by the contrasting treatment of Herbert Niccolls Jr and Jesus Borja. By the 1950s, the US was experiencing a panic over juvenile crime and youthful violence. Withstanding pressure, the federal government initially responded with rehabilitation-focused policies, prioritising prevention over punishment. The Senate Judiciary committee’s subcommittee investigating juvenile delinquency remained friendly to progressive ideas promoted by the US Children’s Bureau and the National Institute of Mental Health.⁴¹ But by the 1980s, a ‘tough on crime’ approach to juvenile justice garnered support and the Reagan presidency saw what Russell van Vleet describes as an outright ‘attack on juvenile justice’.⁴²

Between the mid-1980s and the mid-1990s, there was a 70 per cent increase in the number of juveniles being transferred to adult court. Legislators made ‘get tough’ reforms, reacting to concerns over increasing juvenile homicide rates. They re-wrote state laws which previously stressed ‘rehabilitation’ and ‘the best interests of the child’ to prioritise ‘punishment’ and ‘protection of the public’. In 1994 Brooklyn District Attorney Cardea Goldfarb explained, ‘These [juvenile] laws were drafted at a time when kids were throwing spitballs … now they’re committing murders.’ Similarly, Cook County Attorney Eileen O’Neil remarked, ‘Our juvenile criminal act was written at a time kids were knocking over outhouses, not killing people. We’re looking at a whole new breed now.’ Republican Florida Congressman Bill McCollum introduced a 1996 bill to allow police and jails to place thirteen-year-olds in cells with adult convicts, stating, ‘They’re not children anymore. They’re the predators out there. They’re the most violent criminals on the face of the Earth.’⁴³ To these officials the assumed threat posed by youths determined if the law should treat them as an adult. Their justifications were demonstrably false. Children have, as this chapter details, been implicated in murders throughout US history.

‘Tough on crime’ reforms gave officials significant discretion over whether juveniles are tried as children or adults with the intention of weighting unique case facts and judgements on defendants’ characters. Jason Carmichael’s research suggests that other factors influence decisions. Judges in counties with Republican-leaning electorates are more likely to send juveniles to adult prison, as are those who are elected to the bench. States with larger non-white populations admit greater proportions of juveniles to adult prisons. Rather than any quality or characteristic of the accused, local politics and judicial elections influence the chances of juveniles being tried or jailed as adults.⁴⁴ As it was in the era of the early Republic, race remains crucial in determining children’s experiences of criminal justice. In the early 2000s, despite using drugs at a lower rate than white youths, Black youths constituted 75 per cent of children charged as adults over drug offences. In Florida between 2020 and 2021, 46 per cent of the 19,086 juveniles arrested were Black but Black juveniles accounted for 61 per cent of children transferred to adult court. From a Critical Race Theory perspective, laws allowing discretionary transfer of juveniles to adult courts are discriminatory in practice. Black and Hispanic youth are more likely to be treated harshly by having a disadvantageous form of adulthood imposed upon them.⁴⁵

Conclusion

The long history of American juvenile justice has not ended the practice of children being tried as adults because American juvenile justice systems were only ever intended to serve the select children who adults deemed worthy of differentiated treatment. The juvenile system was idealised as a treatment for predelinquent youths who still exhibited the vulnerability and innocence commonly associated with childhood. Since the colonial era, only some children have been able to reliably rely on their youthfulness in defence or mitigation. There have been fluctuations, with the Progressive era and subsequently a ‘tough on crime’ era, the latter of which has culminated in growing numbers of youths being incarcerated in adult prisons for non-violent offences. Historically it is evident that there has never been a neat dividing line between ‘adult’ and ‘child’ within American criminal justice. Children’s treatment in American adult jails and their large-scale processing as adult defendants is a major contemporary human rights and safeguarding concern. Society perceives adults as capable of evil and extreme criminality and perceives children as innocent. Where children’s alleged behaviour violates this ideal, they are deemed overmature and are treated as adults to reflect the ‘adult’ nature of their behaviour. White children’s behaviour in those cases has been more likely to be judged sympathetically. For historians examining the concept of adulthood, this history is particularly important. This unwanted disadvantageous form of adulthood does not come with power. It has no definite biological or legal boundary. It is a subjective character appraisal which is often unchallengeable, with far-reaching consequences, and is wielded against specific children of whom the state disapproves.

Notes

1. 1. Lisa Armstrong, ‘Texas Imprisoned Joshua Keith Beasley Jr. When He Was 11, Purportedly for His Own Good. Five Years Later, He Returned Home in a Casket’, Texas Tribune, 25 April 2023; Jolie McCullogh, ‘ “A Way to Throw Kids Away”: Texas’ Troubled Juvenile Justice Department Is Sending More Children to Adult Prisons’, Texas Tribune, 1 May 2023.

2. 2. Winthrop D. Jordan, ‘Searching for Adulthood in America’, Daedalus 105, no. 4 (1976), 1–11.

3. 3. ‘Examination of Thomas Carrier Jr Taken before Dudly Broadstret Esq’r’, 10 August 1692. Essex Institute Collection, no. 24–5v, Peabody Museum, James Duncan Philips Library, Rowley, MA.

4. 4. Crystal Webster, ‘ “Hanging Pretty Girls”: The Criminalization of African American Children in Early America’, Journal of the Early Republic 42, no. 2 (2022), 253–76; Holly N.S. White, Negotiating American Childhood: Age-Based Laws and the Illusion of Protection in the Early United States (Charlottesville, VA: University of Virginia Press, Forthcoming).

5. 5. Henry Channing, God Admonishing His People of Their Duty, as Parents and Masters. A Sermon, Preached at New-London, December 20th, 1786 Occasioned by the Execution of Hannah Ocuish, a Mulatto Girl (New London, 1786).

6. 6. ‘Hanged on the Gallows’, New York Times, 27 June 1885; Victor L. Streib, Death Penalty for Juveniles (Bloomington, IN: University of Indiana Press, 1987): 72; James Joy, States of Confinement: Policing, Detentions, and Prisons (New York: Palgrave Macmillan, 2000), 23.

7. 7. Shockley’s sentence was upheld by Maryland’s Court of Appeals. See Shockley v. State, 218 Md. 491, 148 A.2d 371 (1959).

8. 8. Carl Suddler, Presumed Criminal: Black Youth and the Justice System in Postwar New York (New York: New York University Press, 2019).

9. 9. Eli Faber, The Child in the Electric Chair: The Execution of George Junius Stinney Jr. and the Making of a Tragedy in the American South (Columbia, SC: University of South Carolina Press, 2021).

10. 10. Habiba Ibrahim, Black Age: Oceanic Lifespans and the Time of Black Life (New York: New York University Press, 2021).

11. 11. Furman v. Georgia, 408 U.S. 238 (1972); Thompson v. Oklahoma, 487 U.S. 815 (1988).

12. 12. Roper v. Simmons, 543 U.S. 551 (2005). This case over-ruled Stanford v. Kentucky, 492 U.S. 361 (1989) where SCOTUS ruled that Kentucky could execute Stanford for a murder he committed as a seventeen-year-old. Stanford’s sentence was commuted by Governor Paul Patton.

13. 13. Janet K. Wilson, ‘Child Savers Movement’ in F.P. Bernat and K. Frailing, eds., The Encyclopaedia of Women and Crime (Hoboken, NJ: Wiley, 2019), n.p.

14. 14. Geoff K. Ward, The Black Child-Savers: Racial Democracy and Juvenile Justice (Chicago, IL: University of Chicago Press, 2012).

15. 15. Charles Loring Brace, The Dangerous Classes of New York, and Twenty Years’ Work Among Them (New York, 1872), 26–8, 90–93. Appears in James Marten, ed., Childhood and Child Welfare in the Progressive Era: A Brief History with Documents (Boston, MA: Bedford St Martins, 2005), 29–33.

16. 16. Joseph B. Sanborn Jr, ‘Ex parte Crouse’ in C.J. Schreck, M.J. Leiber, H.V. Miller and K. Welch, eds., The Encyclopaedia of Juvenile Delinquency and Justice (Hoboken, NJ: Wiley, 2017), n.p.

17. 17. Ayra Neelum, Getting to Zero: A 50-State Study of Strategies to Remove Youth from Adult Jails. (Los Angeles, CA: UCLA School of Law, 2018).

18. 18. Katherine F. Lenroot, ‘The Evolution of the Juvenile Court’, Annals of the American Academy of Political and Social Science 105 (1923), 213–22; In re Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970).

19. 19. Esther K. Hong, ‘The Federal Juvenile System’, Boston University Law Review 102 (2022), 2025–87; Emily Buss, ‘Response: What Can We Learn from the Federal Approach to Prosecuting Juvenile Crime?’, Boston University Law Review 102 (2022), 2089–100.

20. 20. ‘Mahan Case Finished in Kentucky, Is Belief; Boy Apparently Free’, Cincinnati Enquirer, 27 June 1929, 1.

21. 21. Nancy Bartley, The Boy Who Shot The Sheriff: The Redemption of Herbert Niccolls Jr (Seattle, WA: University of Washington Press, 2013); ‘Sheriff of Asotin Slain by Boy Burglar in Store’, Seattle Times, 5 August 1931.

22. 22. ‘Boy, 12, Unmoved in Murder Trial’, San Francisco Examiner, 27 October 1931, 5; ‘Young Murderer Shows No Sign of Remorse; Sleeps after Tragedy’, Lewiston Morning Tribune, 5 August 1931.

23. 23. ‘Boy, 12, Tells Court How He Killed Sheriff’, San Francisco Examiner, 28 October 1931, 6.

24. 24. Bartley, The Boy Who Shot the Sheriff, 36. For Penrod, see Frederic I. Carpenter, ‘The Adolescent in American Fiction’, The English Journal 46, no. 6 (1957), 313–19.

25. 25. Bartley, The Boy Who Shot the Sheriff, 47–8.

26. 26. Bartley, The Boy Who Shot the Sheriff, 42–5, 49–55. For the concept of a right to a childhood, see Kriste Lindenmeyer, ‘A Right to Childhood’: The U.S. Children’s Bureau and Child Welfare (Urbana, IL: University of Illinois Press, 1997).

27. 27. ‘Tragic Side to Case Is Bared’, Walla Walla Daily Bulletin, 30 October 1931, 1; ‘Home Life of Boy Enters Trial’, Daily Northwestern, 28 October 1931.

28. 28. ‘Boy Guilty of Murder’, Los Angeles Times, 29 October 1931, 1; ‘Jurist Would Hang Boy Given Life for Murder’, Sheboygan Press, 5 November 1931.

29. 29. Bartley, The Boy Who Shot the Sheriff, 42–5, 49–55.

30. 30. Bartley, The Boy Who Shot the Sheriff, 93; ‘Slayer, 12, Plays Harmonica, Waits Decision by Jury’, Seattle Times, 23 October 1931.

31. 31. ‘Noted Priest to Try to Help Boy Slayer’, Helena Independent, 22 November 1931.

32. 32. ‘Governor Refuses Parole for Herbert Niccolls and Assails Father Flanagan for Sensational Campaign’, Bellingham Herald, 21 December 1931, 1; ‘Readers Urge Lad’s Parole’, Seattle Star, 26 November 1931, 7.

33. 33. Washington Secretary of State, ‘September 1932 Primary Election Results’.

34. 34. Miroslava Chavez-Garcia, States of Delinquency: Race and Science in the Making of California’s Juvenile Justice System (Berkeley, CA: University of California Press, 2012).

35. 35. ‘Bridegroom Dies at Hand of Rival after Wedding’, Selma Enterprise, 3 September 1931, 1.

36. 36. ‘Fresno Killer in Court Today’, Los Angeles Post-Record, 1 September 1931, 2; ‘Trial of Youthful Slayer Is Up to Juvenile Court’, The Hanford Sentinel, 1 September 1931, 3; ‘Court Bars Low Mental Age as Murder Defence’, The Fresno Bee, 31 October 1931, 15.

37. 37. ‘Boy Prisoner from Fresno Has Operation’, Fresno Bee, 13 January 1933, 14; ‘Killer’s Ambitions Balked by Disease’, San Bernardino County Sun, 13 May 1933, 17, ‘Boy’s Dream to Atone for Killing Blasted by Death’, Fresno Bee, 16 May 1933, 15.

38. 38. ‘Indian Boy Life Termer Says He Will Not Worry’, Sacramento Bee, 10 October 1941, 10.

39. 39. ‘Indian Boy Life Termer Says He Will Not Worry’, 10; ‘Young Lifer Brings No Worries to Pen’, Spokane Chronicle, 10 October 1941, 13; ‘San Quentin’s “Baby” Glum: No Whiskey!’, San Francisco Examiner, 10 October 1941, 10.

40. 40. David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875–1928 (Lawrence, KS: University of Kansas Press, 1997).

41. 41. Jason Barnosky, ‘The Violent Years: Responses to Juvenile Crime in the 1950s’, Polity 38, no. 3 (2006), 314–44.

42. 42. Russell K. van Vleet, ‘The Attack on Juvenile Justice’, The Annals of the American Academy of Political and Social Science 564 (1999), 203–14.

43. 43. David S. Tanehous and Steven A. Drizin, ‘ “Owing to the Extreme Youth of the Accused”: The Changing Legal Response to Juvenile Homicide’, Journal of Law and Criminology 92, no. 3 (2002), 641.

44. 44. Jason T. Carmichael, ‘Punishing Juvenile Offenders as Adults: An Analysis of the Social and Political Determinants of Juvenile Prison Admissions across the United States’, Sociological Focus 44 no. 2 (2011), 116.

45. 45. Florida statistics: Dwayne Fatherree, ‘Criminal Injustice: States Unfairly Prosecute Children as Adults’, Southern Poverty Law Centre, 21 January 2022, www.splcenter.org/news/2022/01/21/criminal-injustice-states-unfairly-prosecute-children-adults (accessed 7 June 2023); Rodney K. Hopson and Jennifer E. Obidah, ‘When Getting Tough Means Getting Tougher: Historical and Conceptual Understandings of Juveniles of Color Sentenced as Adults in the United States’, Journal of Negro Education 71, no. 3 (2002), 171–2.

References