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Century of Juvenile Justice / Edition 1

Century of Juvenile Justice / Edition 1

by Margaret K. Rosenheim


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Product Details

ISBN-13: 2900226727836
Publisher: University of Chicago Press
Publication date: 03/28/2002
Edition description: 1
Pages: 554
Product dimensions: 7.00(w) x 10.00(h) x 1.50(d)

About the Author

Margaret K. Rosenheim is the Helen Ross Professor Emerita in the School of Social Service Administration of the University of Chicago.

Franklin E. Zimring is a professor of law and director of the Earl Warren Legal Institute at the University of California, Berkeley.

David S. Tanenhaus is an assistant professor of history and law at the University of Nevada, Las Vegas.

Bernardine Dohrn is an associate clinical professor and director of the Children and Family Justice Center of Northwestern University School of Law.

Read an Excerpt

A Century of Juvenile Justice

By Margaret K. Rosenheim

University of Chicago Press

Copyright © 2002 Margaret K. Rosenheim
All right reserved.

ISBN: 0226727831

1 - Changing Conceptions of Child Welfare in the United States, 1820-1935

Michael Grossberg

"What the best and wisest parent wants for his own child," John Dewey declared in 1899, "that must the community want for all its children" (Dewey 1899, 3). The educational reformer's declaration echoed the sentiments of countless generations of Americans who have felt an innate responsibility for the nation's youth. Yet attempts to realize those enduring expressions of concern for children have revealed the complications of translating widely shared convictions into action. Most significantly, they have exposed a fundamental tension in American beliefs and policies toward the young. Americans have been torn between a fear for children and a fear of children. Historian Robert Bremner has laid bare this contradictory reality. He explains that, on the one hand, "Positively stated, the argument is that in a democracy, children, as future citizens, are the state's most valuable resource; for its own security the state must enforce the children's right to the nurture that will equip them for positive citizenship." Yet, he cautions, on the other hand, "Negatively stated, the argument is that the state must protect itself against the menace ofhordes of young people allowed to grow up in ignorance and without discipline or respect for others" (Bremner 1983, 84). The basic tension between these two sentiments has pervaded American attitudes toward the young, though at particular moments in the past either hope or fear has been dominant. Nowhere is that tension more visible and consequential than in child welfare. United States welfare policies demonstrate that despite a consistent American rhetoric of child-centeredness, the reality has been a good deal more complex. And that reality is critical to understanding the construction and implementation of all American policies toward the young, including juvenile justice, the primary subject of this volume.

Since the founding of the republic, American child welfare policy has been a changing and yet a time-specific set of beliefs and practices. It has focused on children in need, primarily those deemed disorderly or dependent, but the nature of those needs and thus the children included in welfare policies have changed significantly over time. Indeed, the notion of children in need--or "dependent children" in the language of the nineteenth century, and "children at risk" in the words of the late twentieth--has itself been a changing and expansive set of ideas about the moral, physical, and social wellbeing of the young and how they should be reared. There has also been a changing cast of actors involved in child welfare. In addition to children, parents, and other caretakers, child welfare has involved a wide variety of individuals as well as public and private agencies.

Nevertheless, American debates over child welfare have been framed by a consistent set of concerns that emerge every time it becomes a subject of public debate. Prime among these are disagreements about the place of children in American society and the nature of legitimate parental, community, and state interests in children. These disagreements are fueled by the assumption that children are relatively powerless and have fundamentally different needs from adults, as well as the reality that the young are in many ways doubly dependent: on their parents and on the state. And, of course, children in need are always considered the most dependent of the young. At the same time, child welfare policies are the products of generational solutions to the persistent problem of determining the needs of the young. That is, particular policies have emerged at particular moments in time and produced time-bound welfare practices. These in turn have created a layered system of child welfare in which the past continues to influence the present in many critical ways. Consequently, the implications of changing forms of American child welfare for juvenile justice are best understood by examining their historical development.

Between 1820 and 1935, there were two distinct periods of American child welfare. Despite inevitable overlaps, the first era began early in the nineteenth century and lasted until the Civil War; the second started in the 1870s and ended in the 1930s. Reconstructing the periodized past of American child welfare is critical because, as historian Peter Stearns has argued, periodization is "the essential contribution of historians to the understanding of change" (Stearns 1982, 14). Providing examples of chronologically related changes demonstrates the power of the moment to influence policies and practices as well as the relative impact of change and continuity. Dividing the history of American child welfare into distinct periods reveals the centrality in each era of conceptions of children and of family and civic responsibility for them. Equally important, the shifting periods of child welfare illuminate the development of American juvenile justice.

Historians trying to determine the place of children in American society have stressed the difference between childhood as a shifting set of ideas and the actual experiences of children at any particular time. Time-bound notions of childhood dominated American child welfare policies in each era. Ideas of innate child innocence or depravity were embedded in welfare policies, and these cultural constructions had very real consequences for children's lives. Nevertheless, the connections between public policies and the actual experiences of children reveal that the young have been more than simply the objects of policy. The age, gender, racial, and class diversity of American children, and the actions of individual parents and children, have consistently challenged the implementation of welfare policies. Though many past clashes over child welfare are difficult to document because children and most adults do not leave diaries, published declarations, and the other sources used to chronicle famous lives, enough evidence remains to demonstrate anew that all human relationships are in some way reciprocal and dynamic, and that no one, even in the most powerless position, lacks the ability to influence others. Thus any attempt to probe the history of changing conceptions of American child welfare must recognize the interactive relationship between ideas of childhood and the realities of children's lives.

At the same time, child welfare in these two eras was also linked to expressions of concern for the dependent young that sprang from changing relationships among children, parents, the state, and philanthropic organizations. Throughout the years under study, the family remained the primary welfare institution in the United States, as it does today. But the roles of American families as welfare institutions have changed considerably since the founding of the republic, and concern about the failure of some families made child welfare a continuous object of state policy and social action. Equally important, the state has been the major external source of assistance to children. Nevertheless, philanthropy has also been central to child welfare in the United States. Private voluntary associations have often taken the lead in the construction and application of policies for the young. Their actions reveal that at critical points in the past the public and private ordering of American child welfare has been linked to larger reconceptualizations of the relationship between strangers that expanded the boundaries of individual and collective moral responsibility and led to waves of American humanitarian reform that altered child welfare policies in each era.

Changing conceptions of children and changing notions of public and community responsibility for the young encouraged instrumental conceptions of child welfare policy. Welfare policies were not simply means to care for particular children in need, they were also tools to address larger policy objectives, from economic development to moral policing. As a result, each era produced dominant forms of child welfare policy that illuminate not only policies and attitudes toward disorderly and dependent children during a particular time but also broader social policies toward the young such as those examined in this volume.


A distinctive American approach to child welfare emerged in the first part of the nineteenth century. Although policies were constructed on an English and colonial foundation, change overwhelmed continuity during what might be called the formative era of American child welfare. The changes were rooted in new ideas of children, families, and public responsibility for the disorderly and dependent young. The result was the creation of an approach to child welfare that was in many ways tied to its time and yet also established practices that would dominate American policy into the twenty-first century.

English policies laid the basis for a colonial and then a post-revolutionary approach to child welfare. The Elizabethan Poor Law of 1601 was the most influential source. It established three fundamental features of Anglo-American welfare policy: local control; family responsibility; and a distinction between deserving and undeserving poor, tied to notions of work, gender, and age. The poor laws made parents legally liable for the support of their children and grandchildren, and children responsible for the care of their needy parents and grandparents. Embedded in the Elizabethan acts as well was a determination to limit demands on taxpayers' purses and to find alternative means of supporting the poor than public funding. These commitments expressed the continuing welfare reality that while parents might be willing to make fiancial sacrifices to give their own children an advantageous start in life, providing generously for children in need has never been a popular public policy. That reality was buttressed by a primal belief in parental responsibility, especially that fathers should support their children, and the collateral conviction that child poverty resulted from the moral failings of parents. As a result, English public welfare sought the best deal at the lowest price, which led to competition for public aid, in which children were consistently the least organized and had fewest advocates. The poor laws also promoted what legal scholar Jacobus Ten Broek has called a dual system of American family law. That system encouraged repressive policies for the lower classes and liberationist ones for the middle and upper classes (Ten Broek 1974). It is through this dual system that the question of class directly entered the discourse of child welfare. The result has been a class system in a society that thinks itself classless and a tendency to speak about what other Europeans call class with words like dependent and deviant. Even so, the poor laws established a state responsibility to relieve want and suffering among those in need, including children. And it created a legal right to public assistance for helpless or needy people. Significantly, as historian Clarke Chambers has chronicled, the basic provisions of the Elizabethan poor laws "remained in place [in the United States] down to the federalization of assistance during the New Deal. Few legal arrangements in history have lasted over so many generations; that they did so in this instance indicates that they rested on social norms of unquestioned authority and on pragmatic realities of family behavior" (Chambers 1986, 421).

Colonial legislatures transferred the English system and its fundamental assumptions and policies to the new world with relatively few changes. Consequently, children also fell under the long-standing European doctrine of parens patriae, which established the state's responsibility for all dependents, especially the young. The doctrine made the state the ultimate parent. Central to those policies was the practice of lumping children with other dependents. Despite a few exceptions, the colonists did not create separate welfare policies for the young. Like the English, local poor-law officials continued to rely on apprenticeship and various forms of direct aid (outdoor relief ) and institutions (indoor relief) to aid poor, neglected, and orphaned children, and they sanctioned placing children in almshouses and auctioning them off to the lowest bidder as it did other dependents. Slave children had the fewest protections against mistreatment of any American youngsters, and slave owners provided a minimal level of welfare in terms of food, shelter, and clothing. And, as Andrew Billingsley and Jeanne Giovannoni have argued, slavery had a powerful impact on the development of American child welfare: "The very existence of slavery meant that child welfare institutions could develop in this country without concern for the majority of Black children." At the same time, limited assistance to white children "could be rationalized by the notion that they were treated better than Black slaves" (Billingsley and Giovannoni 1972, 23-24).

Though the American Revolution had relatively little immediate impact on child welfare policies, significant changes began to occur in the early decades of the nineteenth century. New conceptions of childhood and new concerns about the disorderly and dependent young helped spur a reexamination of child welfare. As family historians have described in detail, new family beliefs and practices treated children more than ever before as distinct individuals with special needs and began to separate childhood out as a distinct phase of life. These beliefs also elevated the importance of the mother-child bond, made child nurture more directly a fundamental maternal responsibility, and enhanced the importance of the home as a nursery for future citizens and workers. An individualization of the household implicit in the new view of the family affected all aspects of children's lives from clothing to schooling, including welfare policies. In particular, the rise of a new set of ideas that have come to be called romanticism gave Americans an entirely new image of children's inner natures. Unlike many colonials, under the sway of romanticism more and more antebellum Americans came to regard children as innately good rather than depraved. Indeed, children were now thought to be morally superior to adults. This notion of youthful innocence coincided with a new sense of the importance of the environment in the development of individuals. The romantic view of children had important consequences for the growth and development of child welfare. It encouraged the development of particular policies for children and the need to arouse public opinion on their behalf. Even though many continued to fear poor children, particularly youths who lived by their wits as "street Arabs," as a threat to order and stability in the present and the future, hope not fear dominated this first era of American child welfare.

As a result of these new views of children and their place in society, policymakers struggled to find a way to talk about children as somehow distinct individuals and yet not adults in a system that tied power to individual autonomy. The result was to emphasize needs. This approach found its most revealing expression in a legal phrase that would dominant the welfare debates about children well into the twentieth century: the best interests of the child. Though the exact origins of the phrase are not clear, judges and other policy-makers early in the nineteenth century translated the traditional power of parens patriae to include the newfound sense of children as having distinct interests in the new expression. As a Georgia superior court judge declared in an 1836 child custody case, "All legal rights, even those of personal security and liberty, may be forfeited by improper conduct, and so this legal right of the father to the possession of his child must be made subservient to the true interests and safety of the child, and the duty of the State to protect its citizens of whatever age" (In the Matter of Mitchell, 1 Charlton 489-95 [Georgia 1836]). The ambiguous phrase assumed separate children's needs yet expressed the conviction that others--most appropriately parents and, when they failed, judges or other suitable public or private officials, such as the overseers of the poor--must determine them. It sanctioned broad discretionary authority to determine the interests of children when family conflicts or failures made them disorderly or dependent, a power that would be central to the authority and jurisdiction of the juvenile court.

Concurrently, there also arose what historian Elizabeth Pleck has called "the Family Ideal": a set of ideological commitments that deified family privacy, made conjugal and parental rights sacrosanct, and promoted family preservation. The family ideal assumed a fundamental division between public and private realms of society, assigning the family to the private realm (Pleck 1987). This division proved critical because it helped ensure that children's problems would largely be considered private matters, not public ones. According to the family ideal, public and community intervention only became relevant when parents failed. And even in these circumstances such intervention remained suspect in the fundamentally anti-statist republic, that is, a polity in which citizens have been reluctant to entrust state bureaucracies with significant power and authority over their social and economic lives. A changing but resilient set of beliefs and practices, the family ideal has been a powerful influence on all attempts to devise children's policies, particularly child welfare. The "best interest of the child" rule and the "Family Ideal" institutionalized, without ever resolving, a fundamental tension in child welfare and juvenile justice between preserving the sanctity of the family and upholding the interventionist authority of the state.

New ideas about children, families, and the state were intertwined with the emergence of a massive humanitarian reform movement in the 1820s and 1830s that became a major source of child welfare innovation. Reformers tended to see social problems as dire threats to the larger society. They acted as well on the new belief that individual failings caused social ills and shared a new, optimistic faith in the possibilities of individual reformation. Unlike most colonials, who had assumed poverty and other human ills were natural and unchanging parts of human existence, antebellum Americans and particularly humanitarian reformers believed that individuals were largely responsible for their own fate. That idea encouraged the conviction that poverty and other human miseries were the results of individual failings that could be cured and thus spurred a greater sense of responsibility for the fate of strangers. Imbued with faith in the possibility of individual change, reformers relied on moral suasion as their primary tool of change and resisted direct state action whenever possible.

Humanitarian reform led to a vast expansion of civil society in the new republic. Civil society describes the social space between the family and state--a space of public discourse and action carried on by individuals who band together in nongovernmental or quasi-governmental organizations, institutions, and movements. Ideas and policies developed by these groups were broadcast through newspapers, magazines, journals, books, conferences, professional associations, and other mediums of the public sphere. The United States, with its relatively weak state and decentralized and underdeveloped bureaucracy, became a fertile host for an expansive and expanding civil society in the nineteenth century. In it, democratization, popular sovereignty, and individualism combined to promote the idea that individuals were responsible for themselves and their society; they had to act and not wait for government to act. The result was the rise to dominance of the voluntary association as a means of addressing the problems of the nation. As historian Kathleen McCarthy explains, "Voluntarism was the social currency which bound antebellum communities together, nurturing a sense of communal spirit and constantly renewing public commitment to community well-being" (McCarthy 1982, 4).


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Table of Contents

I Juvenile Justice in Historical Perspective
II Juvenile Justice and Legal Theory
III Juvenile Justice and Social Science
IV Juvenile Justice and Child Welfare
V Juvenile Justice in Comparative Perspective

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