“Stop Fearing Our Children”: Why Juvenile Incarceration Needs to Go

Nell Bernstein. (Photo: Timothy Buckwalter)Nell Bernstein. (Photo: Timothy Buckwalter)Although lawmakers and the media may decry atrocious conditions, overcrowding and rampant violence in juvenile prisons, they aren’t examining the roots of the problem. In this interview, author Nell Bernstein takes on the question: Why are we locking up children at all?

“Children, it turns out, will never thrive in storage,” Nell Bernstein writes in the recently released Burning Down the House: The End of Juvenile Prison. It’s a statement that shouldn’t seem radical. (I Googled “thrive in storage,” just to make sure, and it turns out almost nothing does.) Still, Bernstein’s statement stands in opposition to the basic principle around which state-sanctioned “discipline” still operates in the United States: It’s all about storage, even if you happen to be a child, and especially if you happen to be a child of color.

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Not everyone approves of this status quo – in fact, widespread public opinion supports a shift away from the “storage” model. And over the past 10 years, public policy has followed suit: Youth incarceration rates have been dropping significantly for more than a decade. Even mainstream publications are spotlighting the violence and degradation that thousands of youth face behind bars. However, although lawmakers and the media may decry atrocious conditions, “overcrowding” or “rampant violence,” they’re still not tugging at the root of that rampant violence. They aren’t asking the question: Why are we locking up kids at all? In this interview, Nell Bernstein takes on that question.

Maya Schenwar: You discuss the history of the juvenile court – how it was founded with a “mandate to rehabilitate, not punish wayward youth” . . . but how incarcerating youth has actually driven up the crime rate and increased recidivism. As you mention, many of the people (like Jane Addams, for example) who established the juvenile court were aiming to stop the abuse of youth that was happening in adult prisons. But as is the pattern with many “reforms,” the juvenile court yielded the establishment of another large institution that grew into its own kind of punitive monster. Why did this particular “reform” go awry?

Nell Bernstein: A central goal of the reformers who advocated for and established a separate juvenile court was to get children and youth out of adult prisons (a battle that is being waged to this day, as children are transferred to adult court and given adult sentences). While the early reformers tried to make the “Houses of Refuge” and the like more humane than their adult counterparts, they did not challenge the central premise of incarceration: that isolation from family and community – and impersonal, regimented treatment – would somehow “cure” adolescents of qualities that lead them to commit delinquent acts. But many of these qualities – an inclination toward risk, for instance, or an inability to connect an action with a likely consequence – we have since learned from the study of human brain development, are a natural part of adolescence. This reality – combined with the fact that, then as now, these institutions were reserved in great part for children seen as “other” (at the beginning, the children of Irish immigrants; today, poor youth of color) – created a Petri dish for abuse. Combine a double power imbalance (prisoner/guard and child/adult), the impunity fostered by isolation behind locked doors, and a stigmatized, devalued population, and whether you call it a House of Refuge, Training School, Juvenile Correctional Facility, or (most accurately) youth prison, you have a recipe for abuse and systemic failure.

You discuss how 80 to 90 percent of all youth do something that could qualify for time behind bars, but it’s mostly black, brown and poor kids getting locked up. Why do you think that so many people are still able to (mentally and vocally) defend a system that would’ve probably meant their own incarceration, if “justice” were served equally?

I would like to think that people defend our racially unjust system because they don’t understand it for what it is (in other words, believe it is fair). It’s not hard to see why some might be able to hold onto that belief. Even when we talk about “racial disparities” as a social problem, we are obscuring the depth of the racism that drives the juvenile justice system by implying that these “disparities” could be natural phenomena, an artifact of higher crime committed by youth of color. But that is simply not the case: Black youth are stopped, arrested, detained and incarcerated at far higher rates than their white counterparts for the same offenses. These last four words are too often left out even when we do talk about race.

As I said, I’d like to believe we don’t understand the depth of the racial injustice that drives the juvenile justice system – that the truth might set us free – but I can’t allow myself that kind of naiveté. A recent study out of Stanford University makes pretty clear that the more white Americans believe that crime is a black phenomenon (for example, when a sample group is shown photos of black “criminals), the more likely we are to support incarceration and other punitive policies. We really believe, in other words, that prison is OK for “other people’s children”; that when a white kid breaks the law, he is “making a mistake” and will outgrow it with time and support (as George W. Bush famously put it, “when I was young and irresponsible, I was young and irresponsible”) but when a black kid does the same, he is committing a crime and we should fear and isolate him.

Bottom line: Americans defend punitive, racist policies and practices because ours is a punitive, racist culture that has always needed to designate and control an “other” in order to delineate its own cultural identity.

The book’s discussion of the myth of “super-predators” – an image of kids who are basically cold-blooded killers, always framed as “other people’s children” – was very revealing. With this concept ingrained, the court became more openly about punishment and not “child-saving.” You talk about how the super-predator myth has since been wholly discredited, but still, “there are some insults you can’t take back.” What’s the residue of the era of super-predator propaganda?

The fall-out of the fabrication of the so-called “super-predator” – soulless, vacant-eyed (and, it turned out, fictional) teens who would as soon kill you as steal your Walkman – has been twofold. First, it spawned a rash of laws mandating and/or allowing for the transfer of youth to adult court, laws that are still in effect today, creating a class of prisoners sentenced to decades or even life in prison for crimes committed at ages as young as 13 or 14. It doesn’t do much for these kids that the “wave” of teenage predators from whom these laws were intended to protect us never materialized; the laws stand, and so do the sentences.

Second, the super-predator media frenzy included ubiquitous images of glowering black teenage boys – this was quite literally the “face” of the super-predator scare. The manufacture of this racial hysteria seems to me “the insult you can’t take back.” To this day, black teens report having to navigate purse-clutchers, street-crossers and myriad other manifestations of adult fear simply to get to school and back. Not only that, the already egregious racial injustice that fuels the juvenile prison system (black youth incarcerated at nearly five times the rate of white for the same offenses) has actually gotten worse as things have, overall, gotten better. The population of youth in juvenile facilities has dropped 40 percent over the course of a decade, but disproportionate minority confinement has actually risen among juveniles even during this period of growing awareness of the failure of juvenile prisons and the abuse of juvenile prisoners.

There are some supposed safeguards in place that are supposed to prevent abuse – for example, the Prison Rape Elimination Act. As you point out, it’s pretty mind-blowing that we need a specific law that tells adults not to rape kids. How much effort should go into strengthening a law like that, and how do we balance that with the goal of dismantling the entire system?

Needless to say, I am not going to come out against PREA – any protection is better than none. But its requirements are milder than those who worked for its passage had hoped, and, as you imply, it is at best a Band-Aid on an infection that went septic long ago. As Missouri’s Tim Decker memorably said (explaining to Congress why, although his state’s humane and much-admired juvenile justice system does not have extensive training on how not to rape children, his staff don’t do it), “Culture trumps everything.” This is equally true when one looks at more “typical” prison culture. This culture of power and control, dehumanization, and near total impunity is too deeply rooted to be shifted by PREA or, I fear, any other law or regulation – certainly not shifted far enough, in any case.

I don’t think this means we should not support and work toward this kind of reform. Advocacy aimed at curbing the worst abuses inside juvenile prisons can and must happen in tandem with the effort to close these places down entirely. This latter goal will take great effort and especially time to reach. Meanwhile, we must do all we can to stop the mass sexual assault of juveniles who are living their one and only lives inside these places today.

You mention that closing juvenile prisons in some states has actually led to a drop in crime. There’s a lot of talk about what people are calling alternatives to youth incarceration, but if youth incarceration simply ended today – with nothing “replacing” it (no “reformed” institutions) – do you think that would follow the same trend as the prison closings? That is, improving everyone’s safety?

Absolutely. Here’s why: Juvenile incarceration is criminogenic. Being locked up during one’s youth – even when researchers control for multiple variables, including the offense itself – greatly increases the odds that a kid will grow up to become an adult prisoner. If all we did was follow the Hippocratic oath – “First, do no harm” – and shut these places down, it would not eliminate youth crime (unless we also offered more supportive interventions, and ameliorated root causes such as poverty, racism, substandard education and non-existent mental health care). But given the growing body of research that tells us that juvenile incarceration fosters criminality, yes – simply shutting these places down would, I believe, improve public safety significantly.

A chapter of your book specifically discusses the things kids carry with them after incarceration – that is, the terrible burdens, both external and internal, that linger long after they’re released. It seems that in certain ways, the after-effects of prison can be horrible in ways that might not be quite as true or quite as acute for people who go in as adults. Can you discuss some of the ways in which kids in particular are impacted by incarceration, post-release?

Incarceration is in fact more damaging to adolescents, whose brains are still developing, than it is to adults. Think about the key developmental tasks of the adolescent years: learning to make decisions (including learning by making mistakes), forming close relationships with others, discovering one’s identity, and developing a moral compass to guide one’s adult life. None of these tasks can be achieved in an environment of isolation where relationships are limited and/or hostile and trust is a liability, where every decision – from how long to brush one’s teeth to how quickly to eat a meal, from when one can speak to where one can walk – is made for by an unrelated authority figure. This is so even before accounting for the tremendous trauma young people experience behind bars, which leaves a lasting psychological legacy in many cases.

We lock a kid up at 13, 14, 15, 16 and, depending on the state, release him at 21 or even 24. Now he is a legal adult, and must fulfill all the responsibilities that come with that milestone. But he is burdened not only by a curtailed and/or sub-par education and the employment obstacles that come with having a record, but also by an array of learned behaviors – from trusting no one to depending on others to make each decision – that are adaptive, even necessary, in prison but maladaptive “on the outs.”

You include a chapter where you visit “therapeutic prisons,” and say you emerge ambivalent. They’re the lesser of two evils, but they still involve confinement, antithetical to healing. When does something stop being a prison and start being “treatment”? (What might be the bright line there?)

The bright line is impossible to miss: a double coil of razor wire. Less visible but also unmistakable is any door that locks from the outside only. Once you have forcibly removed a child from home and family and placed that child against his will inside a locked building – large or small, “homelike” or dungeonesque – that child is incarcerated, and likely to suffer the wide range of ills that isolation brings. The better prisons I visited were just that: better prisons. Some were much, much better than others: I don’t mean to downplay, for example, the achievements of Missouri, which has closed all its large-scale juvenile prisons and replaced them with far warmer, smaller facilities that are also generally closer to kids’ homes. But if I had to summarize in two words what I learned from the many young people I interviewed, it would be this: relationship rehabilitates. Children will never thrive in cages, however well-appointed those cages may be, and however kind their keepers.

One of the big factors you emphasize, in terms of kids healing and moving toward a better future, is establishing a trusting relationship with an adult. I’m thinking about kids who’ve been really traumatized and isolated by their life circumstances – who feel trapped and confined even before entering prison. What kinds of ways can we (as a society) foster bond-formation and trust-building relationships with adults that aren’t based on hierarchical power or fear?

One thing we can do – all of us – is to make a conscious effort to stop fearing our children. We can pay attention to, and change, the way we react when a group of young people of color approaches on the street. Adolescents are exquisitely attuned to the reactions of others, and can spot a “purse-clutcher” from a mile away (not to mention a street-crosser, car door-locker, elevator-shrinker, etc.). What they learn from our fear is that whatever they do (or don’t) they carry the stigma of criminal danger; that who they are is intrinsically criminal. It’s a tremendously insidious message: “Your skin is your sin,” as one young man I interviewed was told behind bars. The next step, after learning not to shrink back in fear, is to reach out to young people who face or have survived juvenile incarceration. Do you have the capacity to offer a job to a kid coming out, or ask a friend to do so? These gestures make a difference.

What kids need most, however, is something more primal than the kindness of strangers: They need their families. Often (though not always, an important distinction) the kids who land behind bars come from families made vulnerable by poverty – sometimes also by addiction, and by our devastating tendency to “treat” addiction with incarceration when poor people are involved. If we want kids to have the kind of relationships to which you refer – the kind of bonds that form the foundation for a happy, successful adulthood – we need, again, to “first do no harm,” and then to address the rising economic inequality and deep-seated, systemic racism that place tremendous pressures on families as well as individuals.