A Child Perspective on the Juvenile Justice System

Author:Maria Grahn-Farley
Position:University of California Humanities Research Institute´s Saw- yer Seminar Program Redress in Social Thought

I. Introduction II. The Master Norm III. The Move Away From The Master Norm IV. An Anti-Essentialist Method V. What Makes It A "Child" Perspective? VI. The Juvenile Justice System VII. The Child In Adult Confinement A. Rape B. Slavery VIII. Protection Against Torture IX. The Right To Rehabilitation And Reintegration X. Race As A Factor XI. A Child Perspective XII. Conclusion


    Maria Grahn-Farley, Andrew W. Mellon Fellow, University of California Humanities Research Institute¥s Saw- yer Seminar Program Redress in Social Thought, Law, and Literature (2002-2003). Visiting Adjunct Professor, Golden Gate University School of Law (2001-2002); Co-Facilitator, Harvard Child Rights Working Group (1999-2001); former Member of the National Board of R‰dda Barnen (Save the Children, Sweden). LL.M. Gothenburg University, School of Economics and Commercial Law, Sweden. I thank The Journal of Gender, Race & Justice and the University of Iowa College of Law for inviting me to participate in this symposium. I thank Phyllis Goldfarb, Eva Nilsen, and Eric Blumenson for their insightful contributions to the symposium panel of which this article was part. I also thank the organizers of the 2002 Western Law Professor of Color Conference for providing me with the opportunity to share an earlier version of this article. I thank Ruth Arlene W. Howe for all her support. I thank Marc Gaudette, Susan M. Nadeau and Gigi M. Grady for their research assis- tance. I thank Karin Grahn, Anders Olsson, David Lega and Anna Modin. Finally, I thank my won- derful husband, Anthony Paul Farley, for always having and taking time for my projects and inter- ests.

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I Introduction

C.O.¥s [correction officers] came, took everything we had. Sheets, everything. They left us in the cells for two days with no clothing except for our boxers. All the windows were open. I got sick real bad. This was when it was snowing, and we didn¥t have no heat. We didn¥t have no t-shirts or blankets or nothing. It was freezing cold.1

A seventeen-year-old child

According to the United Nations Convention on the Rights of the Child, a child is a person under the age of eighteen.2 This article focuses on the juvenile justice system in the United States, specifically, on the child3 deprived of its liberty. It is a widely-held belief that children arePage 298 shielded from the injustice and cruelty that adults are often forced to endure in the forms of racism, sexism, and poverty. The reality is, unfortunately, often the opposite.

Children suffer triple jeopardy: First, injustice in the society affects children indirectly through its direct effects on their caretakers and adult support systems. Second, children not only have to endure the effects of discrimination and disadvantage upon their adults, the structures of discrimination and disadvantage reach beyond adulthood and into childhood in the form of unequal access to the educational system, segregated housing, disproportional arrests and confinements (of children of color), and sexism (abuse transferred from the bodies of women to the bodies of children in the form of sexual exploitation and rape in jails and prisons).4 Third, children are often cruelly and unjustly mis- treated because they are children. This third form of jeopardy can be seen in the age-based status offences: a child can be deprived of its liberty for truancy even though the state refuses to recognize that child¥s right to an education.5 Children Page 299 are punished for being children through the law and social practice: corporal punishment shows the convergence of law and social practice (it allows a harsher treatment for children than would be allowed for adults).6 The social practice of exploiting the weakest in the society affects the child, especially the child in adult confinement.

The child is put in a weaker position in relationship to the adult through various legal and social practices. This is why the situation of the child is both unique to being a child and, at the same time, inseparable from the situation of the adult. A society that does not protect its adults cannot protect its children. The situation of the child is inevitably linked to the situation of the woman, the person of color, the poor, and the powerless. The child is different from the woman, the person of color, the poor, and the powerless because it is often in a vulnerable position, socially and legally, in its relationship to those groups. It is tempting for a society to take out its worst frustrations on its children. It is also tempting for society¥s most frustrated to take out their worst frustrations on their children.

International child rights is an emerging field within human rights, both nationally and internationally. The United Nations General Assembly adopted the United Nations Convention on the Rights of the Child in 1989 (CRC).7 The CRC8 is the most-ratified international human rights treaty in the world and it plays a crucial role in child rights advocacy, both internationally and nationally. The CRC has become a common language, a language spoken by people in most of the world¥s nation states. It is a human rights tool used by a variety of actors, from grassroots organizations to international Non-Governmental Organizations (NGOs), Inter-Governmental Organizations (IGOs), and Nation States. The CRC, as its drafting history shows, is in many ways more the document of the child rights activists than of the lawyers.9

Every national state in the world is a party to this treaty except Somalia and the United States of America.10 The United States, however, has signed the CRC ad referendum and, therefore, has an obligation to refrain from actions that Page 300 would defeat the purpose and object of the CRC.11

This article will take a child perspective on people under the age of eighteen who have been deprived of their liberty by the juvenile justice system of the United States. According to the CRC, every person under the age of eighteen is a child unless the person has reached majority12 before the age of eighteen.13 The child perspective in this article is an outgrowth of international child rights.14This article is an international child rights¥ examination of the treatment of children that are deprived of their liberty in the juvenile justice system of the United States. 15

To take a child perspective is to look from a position away from the master norm, with a focus on the people that are under the age of eighteen and on the ways in which their experiences and situations differ from the experiences and situations of other groups because they are seen as children.

II The Master Norm

The master norm is the structural representation of hegemony.16 When one takes a structural approach and asks which of the many labeled groups possesses Page 301 a disproportionate amount of resources, the group "white adult men" stands out as over represented in all resource categories: human, organizational, and economic.17 This is why the master norm is the structural representation of white adult male hegemony. On an individual basis, any person, regardless of which group label has been assigned to that person (man or woman, white or of color, adult or child, rich or poor or any combination), can look at the world and at himself or herself from the perspective of the master norm. It is also the case that on an individual basis any person (man or woman, white or of color, adult or child, rich or poor or any combination) can move away from the master norm. The ability or inability to move away from the master norm is not essentially white, essentially male, or essentially adult.

Critical analysis that does not move away from the master norm does not constitute an alternative perspective; rather, it is only a 360 degree turn within the original position. It is not an alternative perspective; it is only a survey of the alternative choices that might be made from the same original perspective. In this article, the original position or perspective is referred to as the "master norm." The master norm is the norm against which everything and everyone is measured.

Just because something is critical in the sense that it gives another view of things does not mean that it changes the perspective from which we look at those things. To stand in the same place and turn in a circle is not to take an alternative perspective on the world; it is only to look at the world from different angles. As long as the observer remains in the same place the observer will only see different choices from the same original perspective, from the master norm. Some angles might benefit one group more, or aim more at one group, but the 360 degree tour is not a change of perspective. To explore different choices and alternatives can be both good and enlightening, but such explorations do not change the standard against which everything is measured, the master norm. The outcomes of the different choices and alternatives continue to be measured against the master norm so long as the observer remains in the same place and only turns in circles.

III The Move Away From The Master Norm

To move away from the master norm is to change the standard against which everything is measured. The reallocation of resources is the move away from the master norm. A stable allocation of resources is partly what prevents a hierarchy from shifting or falling apart. An increase of resources alone cannot change the standard against which everything is measured. An increase without a reallocation of resources cannot change the way in which the master norm Page 302 continues to define which choices and alternatives are within reach of the possible...

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