The year is 1966 and the place is Woodlawn High School in Baltimore County, Maryland. The student body is 95% or more White, as is the faculty and administrative staff. There are no school resource officers or police presence of any kind in the school. I am in a 10th grade world history class that is about to begin, just after lunch period. Before the teacher comes into the second-floor classroom, one of the students throws a dish of stewed tomatoes out the open window. In the parking lot below sits a late model shiny silver Cadillac. Splat onto the hood of the car.
Midway through the class, someone from the principal’s office comes into the room, tells the teacher about stewed tomatoes having been found on the car, and inquires whether it came from one of the students in the class. The teacher is incredulous and says, “No, it could not have come from anyone in this Honor’s World History class…none of my students would do such a thing!” Class ends and the scofflaw and his friends who witnessed the projectile incident breathe more easily. On to the next class for most everyone, which is Honor’s English.
During the English class comes another knock on the door. This time it is the same person from the principal’s office and a now highly incensed honor’s history teacher. “So, which one of you boys threw the stewed tomatoes on the guidance counselor’s car? Was it you Phil?” Phil (considered to be the prime suspect) said no and no one else confessed either. All the boys (apparently none of the girls could have done this nefarious deed) were marched out of class and down to the principal’s office. They were told that all would be suspended if the culprit did not confess. After some short period of time, Phil confessed. I don’t recall anything happening to him, other than having to go outside and clean up the mess made by the stewed tomatoes. Perhaps he had to serve a couple of days of detention.
Today the racial makeup of students at Woodlawn High School (the same school attended by Adnan Syed three decades after I graduated) is 90% Black and Hispanic. There are security officers and armed police no doubt patrolling the school. I wonder what would happen to the student who throws something out a window and onto a car below now? Would he (or she) be disciplined differently? Would the student be arrested? Would there be a juvenile delinquency case petitioned by the Department of Juvenile Services? I would not be surprised by anything these days.
Look at some of the stories involving police and children much younger than a high school student that have made the news lately. Two cases illustrate, if nothing else, how police and others tend to treat even young children not as children who are not fully mature physically, emotionally or mentally, but rather as “miniature adults.” And the increased criminalization of both juvenile and adult behavior is startling over the past 55 years. Have we forgotten what it means to be a child or an adolescent? It may not matter quite so much if you are White, go to a private school, live in an affluent neighborhood, have lots of money, and have parents who pave the way for you. If, however, you have none of these advantages, you are much more likely to have encounters with the police both in school and on the street. Your world is vastly different depending on these and other factors.
Back to the two extreme cases. In Rochester, New York, police pepper-sprayed a nine-year-old girl. Her offense? She wouldn’t stop “acting like a child.” The girl was Black. Locally, it was reported recently that two Montgomery County police officers in January 2020 had viciously screamed at and berated a five-year-old boy. All of this was captured on one of the officer’s bodycam and it is deeply disturbing to watch. The two officers shout at the boy, inches from his face, as he sobs uncontrollably. His offense? He left school and was walking along Silver Spring Avenue when stopped by the police. The officers called the Black boy a “little beast” and told him he should be beaten.
Hopefully, these two cases are aberrations. Nevertheless, does anyone doubt that the police who encounter juveniles in the schools and on the streets of Bethesda, Chevy Chase, and Potomac (if they ever do encounter them) treat them the same as they would in Silver Spring, Germantown/Gaithersburg, and Burtonsville? Study after study shows that adults perceive Black juveniles as older and more aggressive/dangerous than White juveniles of the same age. In addition to the police, the same perceptions hold true for school personnel, prosecutors, and others involved in the juvenile justice system.
Moreover, as discussed in a prior blog, the law provides that even if the DJS intake officer denies authorization to file a delinquency petition, the victim or the arresting police officer may appeal that denial to the State’s Attorney. If the prosecutor concludes “that judicial action is in the best interests of the public or the child,” a delinquency petition can be filed by the prosecutor. This permits a prosecutor to effectively overrule the considered judgment of the juvenile authorities, i.e., the Department of Juvenile Services.
Here, again, we see the structural part played by the juvenile law itself that permits subtle and not so subtle racial discrimination to exist. The delinquency system uses criminal prosecutors. Prosecutors exercise discretion to go forward with some but not other cases and generally err on the side of the victim and protecting the public. Is it not natural that a prosecutor would determine that it is in the interest of the public to see that juveniles are brought to court to account for their actions? And this courtroom they are brought into is very much like an adult criminal court, where the juveniles are treated like miniature adult criminal defendants. If they are detained, they are held in lockups by uniformed sheriffs who wear guns. They are brought into the courtroom shackled. Whether or not they are detained, they go through a criminal-like trial called an adjudicatory hearing, they generally enter a guilty-like plea called a plea of involved, and they are sentenced like a criminal in what is called a disposition hearing. Like adult criminals, they are put on probation or are committed to the custody of DJS for placement in a facility much like a jail or prison for adults.
Prosecutors in Montgomery County who handle juvenile cases are the same prosecutors who handle adult criminal matters in District Court and Circuit Court. Indeed, juvenile court assignments are a kind of training ground for newly hired assistant state’s attorneys after they have been in District Court. Many if not most of these prosecutors have an adversarial mindset, which is understandable. Their main concern is satisfying the victim and protecting the public, not looking out for the welfare of children who happen to be juvenile respondents in a particular case.
Finally, the system prosecutors and the rest of the players engage in is antiquated and far behind what many other states use for their juvenile justice system. In Maryland, there is no minimum age of jurisdiction, so children of any age can be brought before the juvenile court. Some children as young as 10 or so are brought into court. Nothing stops this from happening other than the good judgment of the juvenile prosecutor. Further, there is no presumption one way or the other as to the criminal capacity of a juvenile of any age. When you have a system that gives so much discretion to DJS, police, and prosecutors, with so little guidance on how to exercise that discretion, small wonder that implicit and explicit biases have such a huge impact on the Black children, other minorities, and economically disadvantaged youth.
But what about the role of judges in juvenile delinquency cases? Are they not the final arbiters of what happens to the juvenile? Yes, but by the time the case comes to them, much of the damage has already been done. And yes judges, too, sometimes add to that damage. Judges in circuit court come from many backgrounds and they exercise their discretion in a range of ways. Next time, I will look at the role of the judge and juvenile magistrate and the ways in which they decide juvenile matters that can have disparate impacts on juveniles.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC