Crisis at America’s Border: Remember the St. Louis

Children sleep in cramped conditions in a holding cell at a U.S. Customs and Border Protection processing facility in Brownsville, Texas Photo: ERIC GAY/AP

Children sleep in cramped conditions in a holding cell at a U.S. Customs and Border Protection processing facility in Brownsville, Texas Photo: ERIC GAY/AP


In a fine moment of American history, Elizabeth Eckford is harassed and spit at by an angry mob of upstanding women during the American Civil Rights movement.

In a fine moment of American history, Elizabeth Eckford is harassed and spit at by an angry mob of upstanding women during the American Civil Rights movement.

In the history of any great nation, there are moments of shame.  As we face the international crisis of 52, 000 children at our southern border, two moments of historical American shame come to mind: the first, was in May of 1939, when the United States turned away the St. Louis – a German, transatlantic liner filled with 938 Jewish refugees escaping from Nazi Germany. The second is the terrible, iconic image of a middle-class, white women spitting on a black school girl during the desegregation of Little Rock High School in 1957.

How pitiful that these are the images that come to mind, right now, as protesters bang American flags on buses and shout racist epithets while frightened child-refugees cry.

The desperation of parents in Central America is overwhelming.  These children come from areas where gangs control neighborhoods – extorting 80 or 90 percent of salaries as a kind of “war tax.”  They live in towns where gangs will torture, murder and rape children.  They live in places where children are routinely murdered for refusing to join gangs, in vendettas against their parents for not paying enough or quickly enough. They live in places where the bodies of those under ten pile up at morgues.

And so, much like the Kindertransport trains of the Second World War, desperate parents risk it all—their life savings, their own lives to reprisals—just for the chance that their child might live. Some in this country would have you believe that all this is a grand scheme, in which greedy parents use their children as a kind of “bait and switch” to ultimately immigrate to America themselves.  Underlying this interpretation is the idea that poor people just don’t love their children, that foreign parents can’t love their children.  That love is a commodity, like a nice car, that can and should only be owned by white, middle-class people.

We are fortunate, here, that we do not need to show our children this kind of desperate love.  The kind in which we put them in the hands of a “coyote” and hope that they make it to America.  The kind where we would rather never see them again if it means they have a chance at life.  The people who are making these choices are not playing a “long-con.”  They are desperate people making desperate choices.

Right now, America stands at a crossroads. Do we learn from the past or do we repeat it? Do we send these children back to their deaths, or do we recognize the refugee mantle they rightfully bear? Do we mindlessly teach our children “never again,” or do we actually live up to it?

Dr. Fredric Wertham: Hero or Super-Villain?

I recently had the privilege of podcasting for the fantastic website Footnoting History  concerning the oft misunderstood Dr. Fredric Wertham and his role in the Great Comic Book Scare in the 1950s.  Subscribe to Footnoting History’s podcasts here, or listen to the podcast below.

Dr. Fredric Wertham working with some children  at the LaFargue Mental Hygiene Clinic.

Dr. Fredric Wertham working with some children at the LaFargue Mental Hygiene Clinic.

Violence: An American Birthright

Gary Buss/ Getty

Gary Buss/ Getty

In the 1950s, a campaign was initiated to ‘clean up’ comic books. A coalition of worried government agencies, law enforcement officials and parents tried to initiate a censorship of obscene reading materials being sold to children in the guise of picture stories.  These so-called ‘Horror Comics’ and ‘True Crime’ tales were often little more than brutal portrayals of sadomasochistic sexuality and other forms of explicit violence with just enough of  a story to keep them from being outright pornography.

Today, we look back on what we would characterize as the naivete of these reformers, and bundle them in with McCarthy-Era ideologies of censorship and conformity.  We stand appalled at the idea of censorship and argue that it is a virtue of this nation to allow open access of materials to all of our citizens.  Finally, we applaud the lack of state intervention in what we consider to be a private prerogative of parents.

But if we stop waving the flag around for a moment, we might also notice that there’s a sad little truth lurking behind all the First Amendment brouhaha: we are, fundamentally, a society that simply accepts violence.

Just as debates surround the appropriateness of allowing children access to violent video games today, the 1950s saw a rise in debates over the type of graphic literature

The comic book "Nights of Horror" was one of the main targets of the comics crusade.

The comic book “Nights of Horror” was one of the main targets of the comics crusade.

children were reading. While some historians and cultural critics condemn the campaigns as little  more than a form of oppressive censorship, they serve as a historical barometer for the optimism or pessimism pervading American society.  This is because what ended the  desire to limit children’s access to violent materials in the mid-twentieth-century was not a sudden awakening but a deadening: the pessimistic turn towards a belief that violence was inevitable, innate, and unstoppable.

The end of reforming comic books came at a time when Robert Ardrey was arguing that aggression was an innate factor in biology, and Konrad Lorenz contended that human violence was natural and therefore ineradicable.  Their work, and the work of others like them, rose to popularity in the second half of the 1960s reflecting a public mood of disenchantment and fear.  With an assassinated president, the escalation of the Vietnam War, and the increasing turbulence of the Civil Rights Movement, it was easier to believe that nothing could be done to stop violence than continuing to believe in a societal progress marching steadily away from it.

Today, little has changed.  Three years ago, the same movie theaters which ‘took a stance’ banning Zack and Miri Make a Porno sold out on showings of the ultra-violent Saw V.   As discussed earlier in this blog the Supreme Court struck down California’s attempt to restrict the sale of violent video games to minors, claiming it to be a First Amendment prerogative.  According to Justice Scalia, video games  “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” were not considered obscene speech — unlike an image of a naked man or woman.  This apparently included the game RapeLay, submitted into evidence, in which the entire game’s goal is to rape a mother and her two daughters, while the player chooses from a variety of sexual positions.  Not surprisingly,  this is the same court which voted 8 to 1  striking down a federal law making it illegal to sell videos featuring acts of animal cruelty.

Many who support children’s access to violent mass media materials (or to what they call ‘parental choice’ concerning violent mass media materials) argue that depicted violence does not turn kids violent – and this is probably true.  A normal, well-adjusted child who sees a horror movie is likely not going to suddenly become a serial killer.  The problem, however, is for the children who already have violent tendencies, troubled homes, or live, play or attend school in unsafe environments.  The truth is that children’s imaginations are limited and, left without outside influence, their exertion of rebellious or violent behavior will typically go down a limited number of paths.  What violent materials do, however, is expand the repertoire of children, giving them new and exciting ways to act out their frustrations.  That we know this to be true is based on history.  While juvenile delinquency has always been, and there have always been children acting in violent ways, the manner in which children are acting out violence has shifted over the last century.

Image of the Columbine shooters, Eric Harris and Dylan Klebod, as seen from a cafeteria surveillance camera at the time of the massacre.

Image of the Columbine shooters, Eric Harris and Dylan Klebod, as seen from a cafeteria surveillance camera at the time of the massacre.

Take, for example, the relatively new crime of mass school shootings.  Certainly, teens in the last 150 years had access to firearms in their homes — in fact, gun ownership was more prevalent in the 19th century than it is even today.  And teens throughout the twentieth century- since the inception of compulsory high school attendance in the 1930s – have been the victims of bullying and neglect.  Yet historically, we have no records of teens going on violent rampages in their schools prior to the end of the 20th century.  Certainly, bullied teens committed crimes – many knifed or shot the person bullying them, even – but it’s hardly surprising that the teens who committed the Columbine Massacre stole their ideas from violent films they had watched.  While the mass media may not necessarily make children more violent, it certainly hones their ideas on how to commit acts of violence.  (And for those kids for whom extrapolating from first-person shooters is not enough, they have actually created a ‘school shooter’ video game in which the player can reenact the tragedies at Columbine, Virginia Tech, and Northern Illinois University.  According to the developers, the game cheerily promises to be the “most realistic student slaughtering modification (game) ever made.”)

The problem is that we have been taught to simply accept that violence is everywhere, that it is pervasive, and that it is unstoppable.  Violence served as the backbone of the American economy for the last half a century, with millions of Americans reliant on the defense industry or the prison-industrial complex for employment.  The reality is that violence makes a lot of money and that we fundamentally live in a violence economy.  Necessarily, the rejection of violence is considered by many to be inherently un-American and uncapitalistic.  So it is that audience members cheer for how many people Rick Perry has executed, instead of understanding state executions as something which is both tragic and grave.

Ultimately, it is a question of optimism, of priorities.  Can we choose to change, or must we simply accept that violence is inevitable,  allowing our children to wash away in the sea of it?  Do we have the right to expect our children to choose to not act violently when we have done everything to immerse them in what we pessimistically see as their birthright — an all-access pass to violence, protected by the First Amendment?

London’s Youth Are Falling Down

Hooded youths loot a Carhartt store in Hackney (Courtesy Getty Images)

Hooded youths loot a Carhartt store in Hackney (Courtesy Getty Images)

This post was reprinted in the online magazine L.A. Progressive 

For the last three days, London has been burning.  With over 700 arrests, millions of dollars in looting and property damage, and 16,000 police patrolling the streets, the insurrection has now spread to nearby cities.

Yet few understand what these riots are about.

As pundits and comedians mock greedy youth, London papers try to blame video games,  and the New York Times chose to focus its report on a shrugging young man, there are real grievances at the heart of these riots — uncomfortable grievances, tragedies of race and class which have been playing out over the last decades in British cities.

Camila Batmanghelidjh, director of Kids Company – an organization which helps abused and neglected children throughout the United Kingdom, calls these young rioters the “ignored underclass.”  Describing the horrific poverty often found in the homes in these specific neighborhoods, Batmanghelidjh creates a more tragic picture than simple greed:

…I walk into these kids homes, and they’re sleeping on the floor, on mattresses that are urine stenched, they don’t even have bedding…And what I really object to, is that the people in civil society who have power, continuously set the agenda, they continuously describe these kids as ‘animals’ and ‘feral,’ but nowhere do these kids get the chance to come back at civil society, and explain from their perspective what’s happening to them day in and day out.   And that’s the point, what you’re seeing now is a kind of sick revenge on their part…you know if you’re selling trainers [sneakers] at 150 pounds a go, when the kid is surviving on a benefit of 42 pound 50 a week, and with that they need to pay for everything, it’s hardly surprising that then these kids go to steal this material stuff.


Courtesy of Getty Images

Courtesy of Getty Images

Another commentator points out a second, crucial trigger for the riots: recurrent police brutality coupled with racial and class tensions between the police and the residents of these neighborhoods.  Darcus Howe, a political writer and activist, argued in an interview with the BBC that the riots were only surprising because few cared or listened to the grievances:

Our political leaders have no idea. The police have no idea.  But if you looked at young blacks and young whites with a discerning eye,  and a careful hearing, they have been telling us and we would not listen to what is happening in this country to them…They have been stopping and searching young blacks for no reason at all…

What is currently happening in London reminds me of similar riots which have occurred in the United States, particularly the Watts Riots, which lasted 6 days in August of 1965.  Much like the riots happening in London, contemporaries could not understand why residents would damage stores in their own neighborhoods, openly loot, and what any of it had to do with the arrest of a black youth for intoxicated driving.

Demonstrators push against a police car after rioting erupted in a crowd of 1,500 in the Los Angeles area of Watts in this file photo taken August 12, 1965. (AP Photo/File)

Demonstrators push against a police car after rioting erupted in a crowd of 1,500 in the Los Angeles area of Watts in this file photo taken August 12, 1965. (AP Photo/File)

Only in retrospect could the riots be understood to be the culmination of a frustration over lack of jobs, inadequate schools, and substandard housing. Education about race in America was needed before we could begin to comprehend, decades later, that looting stores in one’s own neighborhood – the same stores who price gouged you on a daily basis, who had refused to give you a job, who represented all the banks who refused to give you a small business loan because of your skin color or lack of an education — was about more than just wanting an item.  It was, fundamentally, about revenge on the entire capitalist system, hitting it in the pocketbook where it would hurt the most.

It would be too easy to pawn off the riots today as a bunch of greedy kids, choosing to take advantage of lawlessness to get a new Xbox. These disaffected youth are trying to scream in the same language the system speaks – a cultivated syntax where objects are worth more than people, where young people are seeing their opportunities vanish, all in a country which will spend $34 million on a royal wedding, but only $69 on a family’s survival.  As two young women told a BBC reporter: “That’s what it’s all about about, showing the police we can do what we want, showing the rich people we can do what we want.”

Let this serve as a warning: of the danger of creating a class of young people who have no stake in society, and thereby have nothing to lose by destroying it.  Right now, as the United States struggles to deal with our own economic future, we need this reminder as to why we cannot continue to gut educational spending or ignore the growing income disparities.  Otherwise, it will soon be America’s cities which are burning.

‘Let Them Eat Cake’ 2011 -Style



This post was reprinted in the online magazine L.A. Progressive.

Last week, the Heritage Foundation, a conservative think-tank located in Washington D.C., published this report claiming poverty in the United States was mostly a myth.  Entitled “Air Conditioning, Cable TV and an XBox: What is Poverty in the United States Today?” the report argued that poverty largely did not exist in America because most who live below the poverty line own such basic items as refrigerators, microwaves, television sets, and kitchen stoves.

Tellingly,  the report does not consider that refrigerators and stoves are standard appliances in rental housing (which, according to the report’s own statistics, 53% of those below the poverty line live in), or that although 27.5% of poor households own more than one VCR, it doesn’t mean that both were not hand-me downs, or that neither one of them works.  In fact, conspicuously missing from the report is how poverty-stricken households obtained these items, whether they are even functioning, or the items’ age.

Of course, the argument that the poor have no right to dignity is as old as America. Post-Enlightenment understandings of poverty focused on the individual and the understanding of poverty as being both natural and incapable of being eradicated.   With this shift, the solution to poverty was no longer to raise taxes and feed and house the poor in the homes of fellow community members or to give them tax breaks. Instead, the solution was to either act as though it would all simply go away or to understand that the poor person was both at fault and in dire need of a spiritual or moral remedy.

At the same time,  capitalist economics hailed the accumulation of wealth as a “natural right,” making it immoral to expect communities to tax the wealthy to pay for the poorer members as they had done in the early colonial period.  Rather than understanding the poor as neighbors in need of assistance, by the 19th century the poor were understood as lazy, morally corrupt, and in need of shaming.  This shift is fundamental in understanding subsequent, modern welfare policies in which a “hand up” is grudgingly allowed, but never a “hand out,” and in which the poor were no longer understood as neighbors but a class of society.

This current report, ultimately,  is nothing more than the same-old attempt to downplay the realities of poverty in America and US Povertywhat it means for our children.  As a record number of Americans live below the poverty line  to claim that poor children are doing well because they grow up to be “one inch taller and 10 pounds heavier than the GIs… in World War II” or that “the poorest Americans today live a better life than all but the richest persons a hundred years ago” only serves to show how awful it was one hundred years ago, not how wonderful it is today.  Personally, I want to know that a child, born in the South Bronx today, has as much nutrition, education, and opportunity as one of the Kardashians – not that their life is comparably better to a Mongolian during the age of Ghengis Khan.

The reality is that one in five children live in poverty in America – and in our rural areas, the numbers are one in four.  That’s more than 28 million children  who by the age of four are typically 18 months behind developmentally compared to their peers, are statistically more likely to be obese due to lack of access to fresh fruits and vegetables, and who will cost the nation billions of dollars as they age and are fed into the school-to-prison pipeline.

Ultimately, living in poverty doesn’t mean having nothing – it means not having the things that really matter. It means inadequate schools, inadequate foods, and inadequate choices.  Having a $20 DVD player and a ceiling fan isn’t going to change that. Nor is finding a coffee pot for a dollar at a yard sale or Grandma buying their grandkid an Xbox for Christmas. The only thing that can change these numbers, and what they really mean, is for people like researchers at the Heritage Foundation to stop distracting us from the reality of poverty in America.

8 years in Prison for a Sex Doll Prank? What Lessons are Zero-Tolerance Policies Really Teaching


In this photo provided July 5, 2011, by the Rush County Sheriff, Indiana, is Tyell Morton, 18. The Indianapolis Star reports that Morton faces eight years in prison for leaving a blow-up sex doll in a bathroom at Rushville Consolidated High School on the last day of school. The case is raising questions about the fairness of criminal charges against him. (AP Photo/Rush County Sheriff)

In this photo provided July 5, 2011, by the Rush County Sheriff, Indiana, is Tyell Morton, 18. The Indianapolis Star reports that Morton faces eight years in prison for leaving a blow-up sex doll in a bathroom at Rushville Consolidated High School on the last day of school. The case is raising questions about the fairness of criminal charges against him. (AP Photo/Rush County Sheriff)

Last month, 18-year-old Tyell Morton decided to do something ‘hilarious’ the night before graduation: leave a multi-gendered sex doll in the girls’ room.  Now he faces up to eight years in prison for Institutional Criminal Mischief – a charge that could simply be a misdemeanor, but has turned into a Class C felony as the school claims nearly $8,000 in losses of staff time.  While Prosecutors are not seeking to lower the charges, they did tell the Rushville, IN Republican newspaper that they would not be seeking prison for the youth as there “was no intent to hurt anybody and…I think that would be a little excessive in this case.”  But in the meantime, Morton is out on a $30,000 bond, and his family is raising money for his legal defense.

Not to get all nostalgic, but I can’t help but feel that in my own high school days nearly 20 years ago this would have been a disciplinary matter dealt with by the school principal and involving some kind of detention.  Or, for a high school senior about to graduate like Tyell, a refusal to allow the student to walk at graduation.  And even this punishment would have potentially been mitigated by the tearful pleas of the kid’s mom, who would likely promise to ground the errant youth from any after-graduation parties if only the principal would allow her to see her baby graduate.

In the 1980s and 1990s teens(and their problems) were taken less seriously, as demonstrated in popular culture such as the hit movie "The Breakfast Club."

In the 1980s and 1990s teens(and their problems) were taken less seriously, as demonstrated in popular culture such as the hit movie “The Breakfast Club.”

And this is because in the 1980s and early 1990s, a show of power to save face was all that was warranted.  The principal would have ‘laid down the law’ to demonstrate the inappropriateness of the students’ actions, but then could also choose to display mercy.  The parent could step in and reaffirm their role as primary disciplinarian.  And the youth could feel empowered for having gotten ‘one last prank’ over on the grown-ups before he/she walked in a ceremony that conferred adult status and ended their youth.

The reality is that for better or worse we took kids less seriously twenty years ago.  On the one hand, this meant seeing bullying as ‘kids being kids,’ and allowing rampant sexual harassment and assault in our high schools.  On the other hand, it meant that putting a blow up doll in the girls’ room wouldn’t land you a Class C felony charge.  The problem is that, as always, our society has difficulty finding a happy medium.  Either we take kids extremely seriously: we acknowledge that a boy grabbing a girl’s breasts without permission is assault, but then we also charge a kid who gives their friends ex-lax brownies as a joke with assault, too; or we don’t take them seriously at all, and see their behavior as children playing.  But these extremist attitudes on the part of adults means that we’re teaching our teens to fear a government who may make arbitrary criminal charges against them, and it’s not teaching them the difference between play and criminality.

When cases like this arise it becomes patently obvious that adults in America are the ones who need to re-calibrate their understanding of teenage behavior.  America has a long history of being frightened of teens, and ever since mass enrollment in high schools created a distinct teenage culture in the 1930s, adults have tended to view all teenage behavior as suspect, problematic, and likely dangerous.  Even more interesting is that the behavior of teens themselves has not varied substantially in the last half-century.  Yet the exact same action which might have landed a kid in detention 20 or 30 years ago is now being addressed by the District Attorney’s office.  It’s not that teens have gotten worse, it’s that the adults around them have become more polarized in their responses.


Puritan Parenting: Can the Supreme Court, Children's Rights, and History Lessons Mix?

Last week, the U.S. Supreme Court decided Brown v. Entertainment Merchants Association, in which it overturned California’s restrictions on selling video games to minors based on the First Amendment right to free speech.  But the talk of the (legal) town was not the seven justices who voted in favor of lifting the ban, but the two dissenting opinions — particularly that of Justice Clarence Thomas, who used an array of historical authors to support an originalist interpretation: that it was not the intention of the founding fathers to extend first amendment rights to minors.

Thomas’s dissent was received with scathing reviews — from Slate Magazine to the more conservative-leaning Washington Post.  It was mocked as “one of the oddest, most discursive examinations of the Joys of Puritanical Parenting” (Slate); “the most egregious example of this voices-in-my-head originalism” (The Atlantic); and legal blog  Above the Law succinctly noted that: “It seems [Thomas’s] argument can be summarized as ‘f*** kids.'”

Well, this blogger is about to do something completely out of character, and that’s to actually (and I do hope you’re sitting down for this) agree with Justice Clarence Thomas.  Historically speaking, the framers of the constitution understood free speech as a right limited to only specific groups of society: white, male, and — especially — adult.  The idea that the U.S. Constitution would have intended for minors to have the right to free speech (or, for that matter, to have any of the rights as outlined in the Constitution prior to the age of majority) would have been unthinkable in the 18th century.

In fact, as historian Holly Brewer demonstrates in her excellent work By Birth or Consent: Children, Law and the Anglo-American Revolution in Authority (Chapel Hill: University of North Carolina Press, 2005), the constitutional framers did not leave children out accidentally, but rather purposefully curtailed their rights from earlier time periods, emphasizing that only those who were financially independent should have the right to consent (a right which meant citizenship, the right to contract oneself, etc.) According to Brewer, curtailing the rights of children was considered necessary at the time to ensure that the newly formed United States did not fall back into hereditary power relationships — i.e., that what would separate America from Great Britain would be whether a twelve-year-old could sit in the House of Lords simply because they had inherited a title.  Rather, in the United States, a man would earn the right to vote because he had been educated and proven his mettle through land ownership.  Further, the idea that children lacked reason and the ability to make sound, rational decisions for themselves became the push for public education, the eradication of children being equally culpable as adults for criminal acts, and was the founding ideology in societies such as the SPCC (Society for the Prevention of Cruelty to Children.)

Beyond curtailing the rights of children, the Supreme Court has also long held that parents have a fundamental right to control the upbringing of their children.  Rooted in the 14th amendment, this right — often referred to as the Meyer-Pierce right, stems from two court cases in the 1920’s which have been continuously upheld by the Supreme Court throughout the 20th and 21st centuries.  In the 2000 Troxel v. Granville decision, for example, the plurality opinion argued:

It cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children… [it is] perhaps the oldest of the fundamental liberty interests recognized by [the] Court.

Further, this view of children as possessing only restricted rights to privacy, free speech,  and other constitutional filters outside of the home has extensive precedent in the last fifty years, to name but a few examples:

  • In the 1992 Planned Parenthood v. Casey, the Supreme Court held that minors do not have the right to make the medical decision to have an abortion without parental consent.
  • In 1986, the Supreme Court restricted the speech of minors in school in the Bethel School District v.Fraser decision, which was reaffirmed in the 2007 Frederick v. Morse case restricting speech which was considered to uphold illegal drug use.
  •  In 1985, New Jersey v. T.L.O. gave the go-ahead on search-and-seizures, and maintained that teens did not have the right to the same expectations of privacy that adults did when it came to their possessions.
  • In 1977, the Supreme Court upheld the right to corporeally discipline children in schools (a right which would be considered an assault if done to an adult) in Ingraham v. Wright 
  • Hazelwood School District v. Kuhlmeier (1988) argued that minors did not have the right to uncensored free speech in school newspapers, or other school-related activities, events, or publications.
  • And DeShaney v. Winnebago County Social Services (1989) argued that the constitution does not protect kids from their parents, nor should it come between children and their parents.

Further, the snide remarks of Justice Antonin Scalia in which he argues that Thomas’s narrow understanding “that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent” would mean that:

It does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent.

makes little sense as (excepting the criminalization part) it is within the rights of parents to restrict where their children go and what they do, and that laws which restrict minors’ access to purchasing goods and services at locations such as bars, nightclubs, and strip joints have NOT routinely been follows by bans on minors being able to attend churches.

While I personally understand the constutition as a ‘living’ document, and do not subscribe to the originalist modes of interpretation, I disagree with many of the blogs and articles which saw Thomas’s argument as being unfounded in modern-day precedent and nothing more than a joyful historical romp with little legal bearing.  I would argue his mistake was in not including the myriad citations in which parental rights have been upheld, minors’ rights have been restricted and the Supreme Court has time and again placed limitations on minors’ access to free speech and privacy.  And for those who desire a strict or narrow interpretation of the constitution, Thomas was entirely correct in his understanding of whether the constitutional framers intended minors to have the same access to the First Amendment as adults.

Update: Benjamin Hilburn, Age 12, Declared Competent to Stand Trial for Murder 1

The now 12-year-old Hilburn listening to testimony from a defense psychologist at his competency hearing.

The now 12-year-old Hilburn listening to testimony from a defense psychologist at his competency hearing.

Earlier in this blog, I wrote an article concerning the sad fate of Benjamin Hilburn, age 10, who shot his abusive father in the back of the head with one of the family’s many shotguns.  Last Thursday, 13th District court Judge John Pope ruled that the now 12-year-old child is competent to stand trial.  Although the judge was willing to acknowledge that the boy met “some of the criteria of incompetency” it was ultimately decided that Hilburn was sufficiently competent to stand trial for first-degree-murder.

In the meantime, the Valencia County District Attorney’s office which had previously decided that Benjamin Hilburn should be a poster-child for trying children as adults (arguing it would ‘set a precedent’ for child murder cases across the country) is toning down its bloodlust a notch.  According to Valencia County District Attorney Lemuel Martinez (as reported by KOAT News):

“The idea in this case is more behavioral change and treatment and prevention to make sure it doesn’t happen again than it is about punishment.  Hopefully, through this period of time, we can turn Hilburn into a productive contributing member of society who doesn’t act out in a violent manner.”

Martinez has also stated that his office would be seeking one to two years in a juvenile detention facility and the maximum amount of post-release supervision.

While I commend the District Attorney for at least not seeking to mete out ‘justice’ in the form of a 25-to-life sentence, I still cannot help but feel that the ‘lesson’ they’re inflicting on this child has little point outside of making a bunch of adults feel like they ‘learned ‘im good.’  In response to Martinez’s comment that “we can turn Hilburn into a productive contributing member of society who doesn’t act out in a violent manner,” I have a significant amount of difficulty in believing that, based on the facts of the case, this child needs the kind of ‘reformation’ the District Attorney is offering.  This is not a child who “acted out in a violent manner” randomly, unprovoked, or even as a first choice.  Rather, the child’s first choice was to tell the adults around him.   He told his mother about the abuse as well as the  Children, Youth and Family Department — at least seven times, in fact.  After years of further abuse, in which the adult world repeatedly refused to assist the child, he shot his abuser.  Within seconds, he was so remorseful  he called for a doctor.  I’m still waiting for the asterisk in the story when we learn that he’s a bloodthirsty-monster who needs to be removed from society for two years in the “hope” that he may eventually be converted into a productive member.  Instead, it sounds suspiciously like he was a ten-year-old boy who had done the right thing for years, been let down by the adults around him, and felt terrible about doing the one option left open to him.

It would be nice if District Attorney Martinez could just call a spade a spade.  The adults of Valencia County let this kid down, and now we owe him some treatment so he can heal from his past and move on with his life.  Why is there still an insistence on this posturing, as if society needs to be protected from a child who committed a desperate act in a desperate situation that will never be replicated?

Equally as disappointing, however, is that Judge Pope would believe that this child — who is not only a child, but also suffers from ADHD indicating that his brain is even more immature than that of a normal 12-year-old  — is competent to understand the nature and significance of the criminal proceeding against him, has a factual understanding of the criminal charges, and is able to adequately assist his attorney in his defense.  The judge’s decision to ignore the implications of the ADHD was based on the testimony of Dr. Samuel Roll, who claimed in his professional opinion that ADHD:

“…is a cheap garbage-can term for what he is suffering. This makes his life difficult, but it does not make him incompetent to stand trial.”

According to Judge Pope, while the child displayed “some characteristics of ADHD,” critical to his decision was that “Dr. Roll contests whether this is a full-blown case.” Unfortunately, my research on Dr. Roll indicates that his professional background, while extremely distinguished,  primarily concerns prejudice towards Latino/a and Chicano/Chicana Americans; the adjustment of Latino/a immigrants to American culture, and similarly related topics centering at the intersection of ethnic minority culture and psychology.  Dr. Roll has never, to my knowledge, written on ADHD, nor is he known as a specialist in child psychology.  Further, Roll’s assessment of the child occurred well over a year after the commission of the crime, as opposed to the three separate evaluations by the defense psychologist, Dr. Maxann Schwartz,  which were compiled only a month after the shooting.  That Roll’s overly simplistic analysis that the child was “average, superior, or gifted” for his age and therefore competent (buttressed by his use of such outdated and discredited tests as the Rorschach) was relied on so heavily by Judge Pope in this decision means that either the Judge is not competent to analyze forensic psychiatric testimony, or that he was using whatever evidence was available to fortify a position he had come to previously: that the child will stand trial for murder in the first degree.  Once again, a kid will not be getting a fair shake in the American legal system.


How Young is Too Young to 'Know Better'?

When I was very little, my parents had very large fish tanks filled with cichlids.  When one of the cichlids would pass away (typically having been murdered by other, larger, more vicious cichlids in the tank) we did what most families do with dead fish — we said a few brief words, and flushed them unceremoniously down the bathroom toilet.  It therefore made a great deal of sense, in my three-year-old mind, to do the same to my infant brother.  After all, that was what we did with the fish we didn’t want anymore (at three, my understanding of death was fairly fluid) so it appeared as an appropriate means of ridding oneself of a crying baby.

Like most childhood plots, this one was foiled by my wily mother, who became suspicious when she caught me trying to extract my brother from the crib.  Obtaining a confession was easy – at three, I didn’t understand even remotely that my idea was ‘bad.’  Nor was I a ‘bad’ child.  I was simply a normal three-year-old trying to deal with a problem in a way that makes a heck of a lot of sense to three -year-olds.

Which is why it is hardly surprising that a five-year-old girl drowned her cousin in the bathtub because he wouldn’t stop crying.  To a five year old, this seems like a reasonable solution: baby is crying; putting the baby under water means you don’t have to hear the baby crying; baby stops crying.  End of problem.  As stated by Bart Lubow, the director of the Juvenile Justice Strategy Group at the Annie E. Casey Foundation, a national child advocacy organization based in Baltimore, a 5-year-old is incapable of forming intent, and likely wouldn’t even understand what drowning means.  As Ludbow told MSNBC:

“You can imagine a child responding to other children’s crying by saying, ‘I know how to stop that.’ But the notion that there was intent there is silly. For a 5-year-old, this is well beyond the pale of what our criminal or delinquency laws are intended to address.”

This view was echoed by Melissa Sickmund, chief of systems research at the National Center for Juvenile Justice, in an interview with the Kansas City Star: “The mind of a 5-year-old is not really capable of formalizing intent for homicide.  There’s research that would have you question if a 14-year-old should be fully responsible.”

Which of course, begs the question: why are police choosing to call this a homicide instead of continuing to see it as an accident? At best, this case is a sad conflation of circumstances: adult needs to pick someone up at bus station, so leaves kids with babysitter (nothing wrong with that); 16-year-old babysitter accidentally falls asleep (it happens, and is hardly criminal); five-year-old acts like a five-year-old (unfortunate, but not abnormal).  In fact, everything about this case sounds a lot like a a sad tragedy, and nothing like a murder.

In the meantime, the supreme court ruled yesterday that children do not have the capability to understand whether they are or are not in custody.   The case before the court centered on J.D.B., a 13-year-old special education student, and whether he had the right to a Miranda warning when he was pulled from his middle school classroom and questioned by a police officer.  Without contacting the child’s guardian, the police removed J.D.B. from his social studies class, and brought him into a school conference room.  Surrounded by the uniformed policeman, detective, assistant school principal, and administrative intern, the boy was questioned with the door closed regarding a break-in.  At no point was he informed that he was allowed to leave the room or to remain silent, nor was he allowed to call his legal guardian.  Only after the child had confessed was he informed that he could refuse to answer any further questions and that he was free to leave.  Originally, the North Carolina Supreme Court had ruled the teen was not in custody when he was questioned, so a Miranda warning was not required.  But Justice Sonia Sotomayor, writing the majority opinion, argued that:

It is beyond dispute that  children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave.   Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.

Sotomayor goes on to state that just as the age of children creates limitations on their legal rights (such as driving a car, owning a home, etc) it also affords them special protections, and that the common law has historically understood children as being distinctly different than adults.  Further, Sotomayor argues for the necessity of taking age into account when upholding the reasonable person standard (an idea which has come up several times in this blog) arguing that is simply impossible to extract a child from their distinct reality and adjudicate them based on adult sensibilities.   Putting it bluntly, she states:

Were the court precluded from taking J. D. B.’s youth into account, it would be forced to evaluate the circumstances present here through the eyes of a reasonable person of average years.   In other words, how would a reasonable adult understand his situation, after being removed from a seventh-grade social studies class by  a uniformed school resource officer; being encouraged by his assistant principal to “do the right thing”; and beingwarned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker?  To describe such an inquiry is to demonstrate its absurdity.  Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances.

Let’s hope the district attorney’s office in Kansas City shares the same ability to recognize the limitations of children’s understanding when they look at the actions of that five-year-old child.  At the very least, that we are starting to gain recognition of the differences in children’s understanding at the federal level will hopefully start to trickle down to the states and local courts.

Abused 10-Year-Old May Be Tried As Adult

Two years ago, Benjamin Hilburn, age 10, shot his abusive father in the back of a head with one of the family’s many shotguns.  This week, a judge in New Mexico will determine if the child can be tried as an adult for murder.

The now 12-year-old Hilburn listening to testimony from a defense psychologist at his competency hearing.

The now 12-year-old Hilburn listening to testimony from a defense psychologist at his competency hearing.

Benjamin, his sister (age 6 at the time of the shooting), and a younger brother were given in custody to their father, Byron Hilburn, after their parents’ divorce.  But according to an interview with Romaine Serna of the Children, Youth and Families Department (CYFD), the family was reported to the agency more than seven times between 2003 and 2009 for child abuse and neglect.  Serna claimed that CYFD “…had concerns about this family.  There were red flags,” but that no one close to the family was willing to make allegations of abuse.  Interviews with family members, close friends, doctors and school officials came up empty-handed, and without any obvious bruises or marks, CYFD did not have enough evidence to do much more than update their files on the family.

Sadly, the evidence came in August of 2009, when Benjamin was tired of being ‘disciplined’ too harshly and too often.  “I was over my head. I shot him in the back of the head.  I got so angry at him,” the sobbing child told the 911 Operator as he called for a doctor.  His mother, Monica Albear, who now has custody of Benjamin as well as his younger sister and brother, says both she and Benjamin called the Children, Youth and Families Department on several occasions begging for help, but that nothing was done.

In response to the Hilburn case — as well as a host of other cases where CYFD allegedly dropped the ball, Gov. Susanna Martinez appointed a new secretary to CYFD and is purportedly ‘cleaning house.’  Yet while it’s easy to point fingers at overworked, underfunded social workers with limited legal abilities (law enforcement needs to sign off on any any removal of children from family homes) there are other culprits that the media is not looking at — the fact that a ten-year-old has unrestricted access to a gun, and secondly that prosecutors have decided that Benjamin Hilburn should be a poster-child for trying children as adults. According to KOAT News, prosecutors stated on Tuesday that it was critical for Benjamin Hilburn to go to trial as it could ‘set a precedent’ for child murder cases across the country.

guns-and-ammo - CopyThe fact that I would even need to address children having access to firearms for a second time this year in this blog is a sad commentary on how the second amendment has been taken too far.  In a society where we deem ten-year-olds incompetent to drive, make their own medical decisions, stay home alone, make decisions about their own sexuality, vote, decide their own religious affiliation, or a variety of other legal rights we reserve for adults, that we seem to think it’s perfectly o.k. for children to have access to killing machines (and then expect them to act like adults and not actually use them as killing machines) boggles the mind.  Earlier this year, I wrote about the story of 11-year-old Jordon Brown, accused of killing his sleeping, pregnant step-mother with his very own child-sized shotgun.  One can’t help but feel that if a child kills their parent with a shotgun given to them by the selfsame parent, it’s less of a crime than a Darwinistic statement.

But of course, immediately after the incident, the District Attorney’s office was quick to blame the shooter not the weapon.  In achild with rifle - Copy statement to KOTA News, Steve Scott of the Valencia County District Attorney’s Office claimed that the incident was not a good enough reason to restrict the ability of parents to give their children rifles.  Sadly, this is unsurprising seeing as the Valencia County District Attorney’s Office seems to think children are adults — or, at least, should be prosecuted like they are. While the defense psychologist, Dr. Maxann Schwartz, argued that  the child not only had ADHD (which recent research indicates is the product of the child’s brain being even more immature than his/her peers’), but that a twelve-year-old can not understand the trial process sufficiently to participate in his/her own defense, the prosecution countered that plenty of adults can’t understand the trial process either and that ADHD is not enough to merit dropping the case.   One can not help but wonder what is sufficient in the minds of Valencia County’s District Attorneys to drop a case: apparently that the child was only ten-years-old, abused, immature, obviously confused and remorseful (as evidenced in the 911 call), and was given access to a weapon by an irresponsible adult apparently isn’t quite enough.  Maybe he needs to be richer, whiter, or a member of the police department to catch a break in Valencia County.

This kid has already been let down by the adult world — an adult world who ignored his calls for help against abuse; an adult world so wrapped up in its own polarized fight for ‘individual liberty’ that we allowed him to have a weapon he was not mentally mature enough to handle; an adult world so concerned with elections, they want to make an example of an abused little kid whose life is already ruined.  Hopefully, one adult — the Valencia County Court Judge — will finally do the right thing, and not allow the prosecution of this child for murder.