Judicial Paternalism and Gender Bias in the late 20th Century American Juvenile Justice System
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In the book The Evolution of Juvenile Court, legal historian Barry C. Feld divided the development of the United States juvenile court into four eras, and he named the period of the 1980s and the 1990s the “get-tough era.” In this period, American society is characterized by a rising number of youth crimes in urban areas, such as girls’ gang violence, juvenile drug offenses, and underage prostitution. In response to the growing crimes and violence in cities, the government toughened the criminal and juvenile justice systems by implementing consolidated criminal policies, resulting in mass incarceration and sentencing. However, the intensified criminal justice system had a collateral impact on society, because the enforcement of the toughened crime policies was racially and sexually biased, contributing to disparities and broader social inequalities. The juvenile justice system’s response to female offenders reflects the inadvertent harm brought by the “get-tough” policies. Affected by backlash to the feminist movement and Ronald Reagan’s conservative presidency, the juvenile court in the get-tough era employed judicial paternalism and sex role traditionalism in their jurisdictions, assuming a parental role to regulate girls’ sexuality and emphasize domestic value. The court applied a double-standard of morality towards boys and girls, and increased harshness towards female offenders in the process of incarceration, detention, and sentencing. Illinois, which was the site of the establishment of the American juvenile justice system, exemplifies this phenomenon.
The first juvenile court in the United States was established in Illinois during the Progressive Era. In 1899, the Illinois Juvenile Court Act created a court system that separated juveniles from adult offenders and was only dedicated to cases regarding juveniles. Influenced by progressive social reforms such as the “Child Savers” Movement, which emphasized social and community programming to address juvenile delinquency, the Illinois legislation aimed to rehabilitate young offenders by designing individual treatments and programs instead of punishing them. During the early years of the juvenile court system, the gender and sexuality issue were already one of the core concerns. The rapid urbanization that came with the Second Industrial Revolution not only brought increasing numbers of middle class people, but also spawned urban sex cultures like the Flapper culture that emerged from metropolitan red-light districts. Historian Mary E. Odem, in her book Delinquent Daughter, on the plight of female delinquents in the Progressive Era, identifies the most important gender issues of the period as the clash between urban sex culture and middle class morality, whereby urbanization led many working class girls beyond family control, where their behaviors challenged the traditional gender roles based on moral codes and Christian values in the Victorian period.
Therefore, in order to regulate girls so that they lived within the “appropriate” moral values and traditional female gender role, a group of progressive reformers advocated for legislation like the Age-of-Consent Law and court jurisdictions that prevent girls from participating in sexual interactions. The reformers gained progress by appointing progressive police and judges in the juvenile courts to rehabilitate and educate girls, and the legislation protected many girls from sex trafficking and abuse. However, the rehabilitation process involved middle class young women in restrictive and sexist measures. In the book Saved from a Life of Vice and Crime, Historian Michelle Cale set forth that in many reformatories, many girls were required to perform industrial and domestic training such as laundry work and needlework to enforce domestic motherhood on the “acting-out” young women. It can be seen that the juvenile justice system’s treatment of girls was biased and sexist from the establishment of the juvenile court, when young women were regulated to live by traditional patriarchal values, however, under the influence of progressive ideas that focused on the protection and rehabilitation of juvenile delinquents, the court and police had not yet subjected them to serious punishment and physical and psychological harm.
Starting in the 1970s, the attitude of courts towards handling female juvenile delinquents became less focused on reform and education and more focused on actual punishment, which coincided with a rise in judicial paternalism and conservatism. Judicial paternalism was originally an ideology brought on by the progressive ideas of legal realism in the early twentieth century. Supreme Court Justice Oliver Wendell Holmes Jr., in his article “The Path of Law” (1897), wrote that legal realism was a jurisprudential theory that emphasized the importance of judges’ subjective interpretations and social considerations in their decision making. This perspective encouraged the judges to intervene in individual decisions to promote what the court and the government perceived as the greater good. Therefore, the judiciary started to assume a parental role, using paternalistic authority to regulate the individual rights and morality of the public. Judicial paternalism has had a significant influence on juvenile justice because juveniles, being in a formative stage, represent a prime target for judicial intervention. Furthermore, female juvenile delinquents stood out as the subgroup most adversely affected by judicial paternalism within this system because the courts interpreted such a concept in a conservative way. In the article “Gender and status offending: Judicial paternalism in juvenile justice processing,” a group of researchers led by Andrew L. Spivak delved into the “feminist criminological concept” of judicial paternalism, saying that the juvenile court, as a gendered institution that operates under the patriarchal norm, would treat delinquent girls more severely than boys in their jurisdictions. Therefore, the patriarchal suppression of female delinquents continued and was exacerbated by the rise of judicial paternalism in the get-tough era, as the police and the court have increased harshness towards female delinquents in the process of trial and sentencing, and imposed gender discriminatory rehabilitation methods on girls on the grounds of “protection” and “education.”
Various social and political factors that shaped the get-tough era affected the conservative interpretation of judicial paternalism and the increasing severity towards female status offenders. Firstly, the political climate of the 1980s, under President Ronald Reagan’s conservative presidency, played a significant role in toughening the criminal justice system and influencing the practices of juvenile courts. Reagan’s philosophy of criminal justice was grounded in the ideology of “law and order,” which proclaimed the “failure of New Deal liberalism” and advocated for harsher measures as a deterrent against crime, particularly targeting working-class offenders. This political stance emphasized tough punishments, an unrestricted police and legal system, the implementation of the death penalty, and a rejection of social welfare programs, ultimately dominating the discourse on crime. According to data provided by the U.S. Bureau of Justice Statistics’ Census of Jails and National Prisoner Statistics Program, total incarceration rose by 214.85% in 1995 compared to 1980. Despite the United States accounting for only 4% of the world's population, it has nearly 16% of all prisoners worldwide. and even though the U.S. accounts for only 4% of the world’s population, it is indeed home to nearly 16% of all incarcerated people in the world. Legal scholar Tony Platt’s article, “U.S. Criminal Justice in the Reagan Era: An Assessment,” mentions the rapid and massive growth of the death row population between 1980 and 1987. For instance, the death row population surged to 1,900 in 1984, compared to 567 prisoners awaiting execution in 1979, before Reagan took office. Under the influence of the overall toughened criminal justice system and the belief in recidivism, the idea that status offenders would reoffend and became a social cancer after their release from detention centers. Consequently, the juvenile court gradually lost its primary purpose as a reformatory institution and shifted its focus from rehabilitation to punishment when dealing with juvenile delinquency.
Furthermore, Reagan’s administration reinforced Victorian and Christian social values, which affected the emphasis on traditional female gender roles in the juvenile justice system. His administration focused on the importance of traditional domestic family values, as evident in many of Reagan’s speeches. In Reagan’s “Address to the National Religious Broadcasters Convention” in January 1983, he stated, “Our families are the bedrock of our society” and emphasized that “the family must be preserved as the indispensable institution in America.” While ostensibly claiming the family’s significance for social stability, his speeches also underscored the importance of the most traditional patriarchal family structure: a husband with a steady job, a wife focused on domestic labor, and obedient daughters, or “brave” sons, because Reagan viewed the emergence of progressive ideas as a significant factor in social instability. Therefore, he and his government adopted a conservative approach to social issues, emphasizing traditional values and family structures that contributed to women’s disempowerment and voicelessness. For instance, the Reagan administration expressed support for the Hyde Amendment, which limited federal funding for abortion services. Through actions such as the anti-abortion campaign, which encroached upon women’s bodily autonomy, Reagan’s presidency underscored women’s secondary status. This value crucially influenced the juvenile justice system, which consistently emphasized traditional values like female’s obedience in trial and sentencing processes.
The backlash to the second wave feminist movement in the get-tough era also contributed to a conservative and toughened juvenile justice system. In the 1960s, led by influential figures such as Betty Friedan and Gloria Steinem, feminists advocated for gender equality in all aspects of society and for women’s legal rights in society. The movement challenged traditional gender roles, encouraged many women to leave the confines of the families, and empowered many women in education, life, and the workplace. However, by the end of the twentieth century, there was a widespread identity crisis among women about the status of “independent women.” In the book Backlash: The Undeclared War Against American Women, feminist author Susan Faludi explains that a prevailing theory in society to justify this identity anxiety is that “women were enslaved by their own liberation.” The idea suggests that while the feminist movement granted women significant socioeconomic power, it simultaneously stripped away “the greatest female adventure” – the ability to serve a husband and lead a fulfilling family life. The identity anxiety and the theory triggered a long-standing resentment of the feminist movement by vested interests in patriarchy and traditional family structures, who took the opportunity to subconsciously enforce this idea in people’s daily lives. For example, in the famous television show about baby boom, Thirtysomething, all the single, employed and feminist-minded women were blushed in public and were severely harmed by mental breakdown. In Freda Bright’s book Singular Women, the author herself, and her sister, both working women, are condemned as “childless forever.” The Reagan administration also reacted to such backlash. Faith Wittlesey, Reagan’s spokeswoman, in her White House speech, “Radical feminism in Retreat” spoke of feminism as a “straitjacket” for women. The backlash to the feminist movement and the conservative family values affected the juvenile justice system, that the seriousness of the matter of being out of the family’s control has increased. As a result, within the juvenile court, which was already a deeply gendered institution, law enforcement officers and judges increasingly condemned independent, “wayward” female juvenile delinquents.
The conservative administration of Reagan, which upheld traditional gender roles and strengthened the criminal justice system, along with the backlash to the feminist movement, resulted to the juvenile justice system’s paternalistic judgments and increasing severity toward female status offenders. This shift is evident in proactive policing in domestic family conflicts, initially aimed at addressing aggressive behavior among boys victimizing their parents. However, during the get-tough era, this policing evolved into a means for both law enforcement and parents to exert control over their unruly daughters. An analysis of victim-offender relationships provided by the National Incident-Based Reporting System from 1990 to 2000 revealed that girls committed simple assaults, intended to induce fear in the victim without involving physical violence, in 37% of cases, compared to only 18% for boys. Furthermore, data on Illinois’ mandatory and discretionary domestic violence arrest laws indicate a higher rate of mandatory arrests for girls involved in simple assaults, while boys typically fall under discretionary arrest. This suggests that police often arrest girls for nonserious aggression based on subjective judgments of probable cause, rather than factual evidence of harm to the parents. This phenomenon is controversial because the police was alerted and intervened in domestic conflict, which is within the domain of privacy. In the article “Policing Juveniles: Domestic Violence Arrest Policies, Gender, and Police Response to Child–Parent Violence,” criminologist Kevin J. Strom attribute this trend largely to parents’ different expectations for their sons’ and daughters’ behavior, which influence policing attitudes toward girls when they acted out at home. Affected by prevalent sex role traditionalism, parents seek to control their daughters within an obedient gender role. Girls displaying aggression or violence, behaviors contrary to stereotypical gender roles, are often deemed in greater need of control than boys showing the same conducts. Therefore, even when a girl causes a family conflict that does not result in serious injury or death, parents would still join forces with the police, using mandatory arrest laws to bring the girls to juvenile court.
During trials, female juvenile offenders often faced unfair charges and sentencing by prosecutors and judges who based their decisions on subjective perceptions of traditional women’s roles, leading to exaggerated convictions that lack of rational basis. In 1974, the Juvenile Justice and Delinquency Prevention Act introduced the “Deinstitutionalization of Status Offenders (DSO),” decriminalizing status offenses and incorporating noncriminal misbehaviors into the juvenile justice system. This provision contributed to the increased detention and delinquency charges against girls, as court officials were granted discretion to treat girls’ misbehaviors as criminal offenses. The typical offense that exemplifies the influence of judicial paternalism is “expressing contempt and displeasure with the court and officials.” The Illinois Juvenile Court Act of 1987 further empowered the court with the “Law of Contempt” and the authority to detain juveniles for being “disobedient” to court orders. Furthermore, Criminologist Meda Chesney-Lind, in her renowned article “Judicial Paternalism and the Female Status Offender: Training Women to Know Their Place (1977),” notes that in Illinois, the court applied the “contempt power” more harshly to female status offenders compared to males. The government reports from the Office of Juvenile Justice and Delinquency Prevention provided data that the number of female status offenders charged with violating court orders has tripled from 1980 to 1990, with more girls perceived as being contemptuous towards court officials. Young women expressing resentment towards the court were disproportionately seen as wayward, contrasting with boys disobeying court orders, as females were traditionally expected to be incapable of discontent. Additionally, Chesney-Lind highlighted that the DSO lacked clear legal standards for measuring delinquency, allowing judges to act as surrogate parents, attempting to curb girls’ misbehaviors and instill submission to authority figures by charging them as delinquents and sentencing them to detention facilities.
Female delinquents not only face a higher likelihood of being sent to detention facilities for defying traditional gender roles, but also endure degrading and depersonalizing treatments within these reformatories. While the progressive era notion of juvenile justice aimed to educate and rehabilitate young individuals, these institutions often justified their actions under the guise of “protecting girls.” Among the physically and mentally harmful punishments inflicted upon girls, one of the most traumatic is the “pelvic examination.” In 1972, journalist Jean Strouse published an article titled “To Be Minor and Female: The Legal Rights of Women Under 21” in Ms. Magazine, revealing the widespread use of pelvic examinations to determine whether girls had engaged in “licentious” sexual activities. She wrote that in Illinois, each girl who enters the detention centers, regardless of age, must submit to vaginal smears, wherein court officials would collect cells from the cervix and vagina using a small spatula or brush without the girls’ consent. The court justifies these examinations on medical grounds, claiming that female delinquents are potential “carriers” of venereal diseases that could spread among other juveniles in detention, thus framing them as a protective measure against harmful viruses. However, the forced pelvic examination and the medical justification provide the court with a legal pretext to assert paternalistic control over female sexuality, equating female delinquency with sexual misbehavior. The court assumes that girls end up in juvenile court due to alleged involvement in “promiscuous” sexual activities, a judgment largely based on subjective perceptions and malicious speculation by detention center administrators rather than factual evidence. Furthermore, the non-consensual administration of pelvic examinations violates the girls’ rights to privacy and dignity. These harsh measures, masquerading as protective measures and medical examinations, underscore the systemic disregard for female identity and well-being within the juvenile justice system. They also reveal an intrusive male gaze on the sexuality of female delinquents and highlight the enforcement of sexual norms as a primary concern for juvenile females during the get-tough era.
Under Reagan’s “law and order” ideology, the juvenile court in the late 20th century, as an institution designed to protect the rights of juveniles and help them reintegrate into society, replaced the former mild rehabilitation with severe punishment. The backlash against the feminist movement and the resurgence of sex role traditionalism bound girls to a submissive and docile personality, and they paid a heavy price in the juvenile justice system for breaking expected gender roles. Moreover, the rise of judicial paternalism allowed court officials to act as parents on courts, enforcing patriarchal values and domestic motherhood on female delinquents. Nowadays, juvenile justice remains an important social issue. The juvenile justice system has improved its internal justice processes, protecting the dignity of girls through consent laws and establishing legal standards to classify status offenses and delinquency. However, because of the rapid social change in the 21st century, the environment and mental development of each generation are constantly evolving, and those in charge of the juvenile justice legislative process may not be able to understand the perception of a group of juvenile delinquents in a timely manner, nor can they anticipate their ability to carry out malicious acts. Therefore, creating a healthier juvenile justice system requires a collaborative effort from all sectors of society. The real answer can be found in promoting better education and economics from a social progress perspective to reduce the chances of juvenile delinquency at its source, increasing sociological observation of each generation of growing children, and continually iterating and refining the judicial process and laws to adapt to society’s development.
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