Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr., is a professor of law at the University
of Richmond's T. C. Williams School of Law in Richmond, Virginia, and
a contributing editor to Criminal Justice magazine. He is also a former
chair of the Juvenile Justice Committee of the Criminal Justice Section.
As previously noted in this column, 1999 is the juvenile court's centennial
year, and that fact creates an opportunity for reflection on the history
and future of the juvenile justice system. (Robert E. Shepherd, Jr.,
The Juvenile Court at 100: Birthday Cake or Funeral Pyre? CRIM.
JUST. 47 (Winter 1999).) There has been much focus on the broad sweep
of juvenile court history, and even on the infant days of the court
in Chicago and Denver, but tales of those who dreamed this dream in
other parts of the country, especially states that were not among the
pioneers, are rare. Virginia is one such state. Its unique cast of dreamers
provides a fascinating example of comparable pathfinders in other jurisdictions
and also illustrates many of the issues still being revisited in state
after state today.
The turn of the century
The creation of the juvenile court and its supporting agencies and
institutions in Virginia largely parallels the early history of the
juvenile justice movement in other jurisdictions, but the timing and
pace of Virginia's reforms was considerably more leisurely. Unlike other
states, Virginia did not establish institutions for juvenile delinquents
until late in the nineteenth century. Well into the twentieth century,
children, mostly boys and overwhelmingly African American, were incarcerated
in the adult penitentiary. Indeed, Charles Hutzler, one of the early
leaders of the juvenile justice movement in Virginia, concluded, after
attending a national convention in 1902, that "our institutions and
our methods are more than a generation behind the advanced conditions
which prevail in more favored localities."
The juvenile reformatory movement in Virginia was begun by private
associations, first the Prison Association of Virginia, incorporated
in 1890, and then the Negro Reformatory Association of Virginia, chartered
in 1900. Both groups focused their efforts only on boys; the Prison
Association opened a reformatory for white boys on a farm near Laurel,
Virginia, in 1891, and an institution for African American boys was
established in 1900, in Hanover County. (The first institution for white
girls was opened in 1910 and a program for African American girls in
1915.) Judges were able to exercise considerable discretion by committing
youngsters to Laurel and Hanover, continuing to place them in local
jails, or sending them to the penitentiary. The methods utilized at
Laurel were frequently more retributive than rehabilitative, however.
Children were literally bound with a ball and chain to promote a lock-step
environment. When Hutzler came back from the 1902 meeting, he noted
that there still was considerable debate about the use of corporal punishment.
Opinions regarding the use of the ball and chain, however, were "decidedly
emphatic against its use and [national experts] said that in an experience
covering from five to twenty-five years [they] had never had a case
that required such severe treatment." Hutzler therefore recommended
ending its use.
Charles Hutzler, the first president of the Prison Association just
mentioned, was the son of Abraham Hutzler, a Jew who emigrated from
Bavaria in the 1830s and opened a dry goods store in Richmond. Although
Charles Hutzler had little formal secular education, he read widely
and was an avid student of Rabbi Maxmillian Michelberger. Initially
following in his father's footsteps as a merchant, he founded a major
bank in 1911 and headed it until his death in 1919. Hutzler was active
in what is now called Reform Judaism and served as president of his
synagogue, president of the local B'nai B'rith, and chairman of the
Richmond School Board. His major civic activity near the turn of the
century appeared to be the Prison Association of Virginia, which became
the vehicle for getting young people out of the penitentiary and local
jails.
Another juvenile reform pioneer was Thomas Calhoun Walker, born a slave
on June 16, 1862, in Gloucester County. He was educated at Hampton Institute
and studied law in Gloucester with a former Confederate general. He
was one of the earliest African American lawyers admitted to the Virginia
bar and spent much of his long career, into the 1950s, serving as the
"children's lawyer" for African American youth across the state. Details
of his life are memorialized in his informal memoir, The Honey-Pod
Tree, which was published in 1958. The book contains many a story
of Walker's entering a jail to find a cell filled to overcrowding with
young African Americans. He made it a practice to persuade local judges
to bond these boys to his custody and would distribute them among families
of his acquaintance or taken them home to his wife. Many of the youths
were adopted by these families and went on to college or into a trade
without further difficulties.
The beginnings of the juvenile court
The National Conference of Charities and Corrections held its annual
convention in Richmond in May of 1908, and Judge Julian Mack, of the
pioneering Chicago juvenile court, was one of the principal speakers.
A group of prominent Richmond citizens, interested in establishing a
juvenile court in the city, took advantage of the occasion to invite
several of the convention speakers to address them in a meeting held
following the convention. The next year a second meeting of the group,
which called itself the Juvenile Protective Society, was held to discuss
the drafts of two bills prepared by former Governor Andrew J. Montague,
one of the early progressive politicians in the South. The Virginia
legislature enacted those bills in 1910, authorizing courts to commit
certain children to separate juvenile facilities. Richmond took advantage
of another provision of the legislation to create a juvenile section
of its police court. In 1912, Judge John Jeter Crutchfield, along with
a citizens advisory committee, began hearing juvenile cases three afternoons
a week, after he completed his police court docket.
A separate juvenile court
By 1914 it was apparent that the 1910 legislation was not sufficient
to bring about total juvenile justice reform in Virginia. Again, at
the instance of the Richmond reformers, the legislature allowed for
separate juvenile courts in any large city in the state, this time modeled
on the Illinois juvenile courts. The new Virginia juvenile court, like
the Illinois and Denver courts before it, was grounded in the premise
of parens patriae and was given broad, chancery-like powers to save
children from delinquency. The first court under this later act began
functioning in Richmond on the first day of 1916, with J. Hoge Ricks,
a young lawyer who had served as the first juvenile probation officer
and clerk for Judge Crutchfield, as its initial judge. This court and,
later, others in the state, operated under vastly different procedures
from adult criminal courts. Judges seldom wore robes, and cases were
heard in chambers, with the judge seated at a desk and the youth in
a chair across from him. The new courts had the authority to place juveniles
on probation as an alternative to institutional confinement, and their
judges had vast discretionary powers. Like others around the country,
the courts were established to implement three premises: (1) juveniles
should be kept separate from adults in institutional settings; (2) children
are developmentally different from adults and thus more amenable to
treatment and rehabilitation; and (3) youths should be dealt with through
individualized justice targeted to their own particular needs, rather
than by a process dictated by the offense.
Judge J. Hoge Ricks
Judge Ricks was one of the most fascinating figures of the progressive
era in Virginia. He was a Quaker from rural Caroline County, Virginia,
who attended Guilford College in North Carolina and graduated from Richmond
College Law School. He was a towering figure in the juvenile justice
movement for more than 40 years. During his career he was a founder,
member, and officer of numerous organizations, including the following:
charter member of the National Council of Juvenile Court Judges; founder
of the Virginia Council of Juvenile and Domestic Relations Judges and
of the Community Fund of Richmond (now the United Way); president of
the Virginia State Conference of Social Work, and, twice, of the National
Probation Association; and member of the National Council of the Committee
on Militarism in Education, the League for the Abolition of Capital
Punishment, the Executive Committee of the Commission on Interracial
Cooperation (with Thomas Walker), the Richmond Interracial Committee,
and the Executive Committee of the National Conference of Social Work.
He was also the only American juvenile court judge to serve on the first
United Nations committee to study juvenile courts and juvenile delinquency.
Ricks functioned much like the legendary Judge Ben Lindsey of Denver
in the community, frequently advocating before the city council and
in talks to civic clubs for better services for children and youth.
The spread of juvenile courts around the state
Juvenile courts began to develop in other parts of the state as the
result of legislation in 1922, adopted pursuant to the Report of the
Children's Code Commission. Advocated by the League of Women Voters,
the Commission was established by the governor and chaired by Judge
Ricks; it recommended the adoption of a number of bills to improve the
welfare of children in Virginia and included the expansion of juvenile
and domestic relations courts to other cities.
Judge Kerr Morehead Harris, the first woman judge
Judge Kerr Morehead Harris of Danville was one of the early judges
to be seated as a result of the 1922 legislation; she was the first
woman judge elected in Virginia and perhaps the first woman judge in
the South. Judge Harris, a grandmother and the widow of a lawyer, was
elected by the Danville City Council in 1922 and served until 1946.
Her court was covered by the New York Times and by New York
Sun columnist Bob Davis, who visited Danville to cover the then-great-grandmother
who "dispensed Solomon-like justice and mercy to juvenile delinquents
and married folks, white and black, to the satisfaction of the community."
In 1940 Judge Harris was invited to Chautauqua, New York, to speak at
the famous gathering place about "Juveniles as Seen From the Bench."
She was fond of recalling that many in Danville referred to her court
as "the Jubilee Court" and to herself as "Missus Judge," or "Judgy."
Judge Herbert Cochran and Judge Odessa Bailey
Another prominent early juvenile and domestic relations judge was Herbert
Cochran of Norfolk, who served in that Tidewater city until 1954. Judge
Cochran was a Phi Beta Kappa graduate of Dickinson College who read
law at Oxford from 1908 until 1911 as a Rhodes Scholar, then obtained
his law degree at the University of Virginia. He and Judge Ricks were
great allies in many battles in Virginia and across the nation on behalf
of children and families. A third strong collaborator with Ricks and
Cochran was Judge Odessa Bailey of Roanoke, who was elected to the juvenile
bench in Roanoke in 1944 and served a four-year term on that court.
The first woman lawyer to serve on the bench in Virginia, she formed
a strong ideological alliance with Judges Ricks and Cochran to found
the Virginia Council of Juvenile Court Judges in 1946, and she served
as its second president. Even after leaving the juvenile bench in 1948,
Bailey continued her strong interest in children and families, as president
of the Virginia Conference of Social Work, the Woman's Club of Roanoke,
and the Virginia Federation of Women's Clubs. She unsuccessfully tried
to use her considerable political influence to establish Virginia's
World War II memorial to servicemen as a facility for emotionally disturbed
children.
A comprehensive juvenile code
In 1947 the legislature adopted a resolution to study the jurisdiction
of juvenile and domestic relations courts in the state. Judge Ricks
was elected to serve as Vice-Chairman of the study, which recommended,
to the General Assembly in late 1949, adoption of a comprehensive bill
based on the Standard Juvenile Court Act promulgated by the National
Council on Crime and Delinquency. Judge Ricks had served for a number
of years as a member of the drafting committee for the Standard Act,
as had Judge Cochran. The General Assembly's 1950 session endorsed most
of the study committee's recommendations, and the general framework
and language of the 1950 legislation remains embedded in Virginia juvenile
law to this day.
The expansion of the juvenile justice system
In 1960 the Virginia General Assembly enacted legislation establishing
regional juvenile and domestic relations courts in largely rural areas
of the state, extending coverage by full-time juvenile court judges.
Six years later, the legislature created the Virginia Court System Study
Commission, to examine the structure of courts at all levels in the
Commonwealth. Chaired by Chief Justice Lawrence W. I'Anson of the Virginia
Supreme Court, the group labored for several years before making its
major recommendations, in late 1971. Judge Kermit Rooke of Richmond,
who followed Judge Ricks, served as the juvenile judge on the study.
The 1972 and 1973 sessions of the Virginia General Assembly enacted
the Commission's recommendations relating to juvenile courts. On July
1, 1980, the dream of Judge Ricks and his allies, of a statewide system
of full-time juvenile court judges, was finally realized with the creation
of juvenile and domestic relations district courts across the entire
state.
The family court reform movement
Virginia Senate Bill 175, introduced in 1948, had attempted the consolidation
of juvenile matters with divorce, adoption, and other domestic relations
jurisdictions into a single court. The study report of 1950 appeared
somewhat open to that approach as well, but consolidation was not enacted.
However, a seed had been planted, and several attempts were subsequently
made to address seriously the creation of family courts in Virginia.
Legislative resolutions in 1976 and 1977 endorsed studies of such a
structure for the state. In 1983 Chief Justice Harry L. Carrico and
the Judicial Council appointed a committee to examine the jurisdictional
and structural problems caused by the division of family law matters
between juvenile and circuit courts. That committee subsequently recommended
to the council that a family court system be established in Virginia
as a division of the circuit court. The council in turn recommended
the establishment of an experimental family court system, on a pilot
basis, to evaluate the efficacy of such a court structure. Legislation
in 1989 directed the council to create such pilot courts, to evaluate
their operation, and to report back to the General Assembly by the end
of 1992. Pursuant to this legislative mandate, and its enactment, the
Judicial Council recommended the creation of a family court system in
Virginia. The General Assembly overwhelmingly passed legislation establishing
this system, commencing in 1995, with staffing and funding details to
be worked out in future sessions. The devil proved to be in those details.
Subsequent legislatures balked at the implementation of the family court
according to the previous schedule, and no funding was provided. When,
finally, the 1998 legislative session ended without action to fund the
family court, the experiment ended without ever having been implemented.
The dream of half a century was postponed to an uncertain future.
Conclusion
The traditional juvenile justice system of Charles Hutzler, Thomas
Walker, and Judges Ricks, Harris, Cochran, and Bailey in Virginia, and
their counterparts in other states, is under great pressure from those
who seek punishment under the rubric of "accountability" at both the
state and federal level. Before the turn of the century and during the
two decades that followed, however, these pioneers-male and female,
white and African American, young and old, Jew and Christian, Quaker
and Baptist-dreamed a dream that the juvenile system could reform delinquent
children and transform society. And they worked devotedly to transform
that dream into reality. They would recoil in horror at the prospect
of the increasing numbers of juveniles being tried and convicted in
criminal courts and sentenced to serve long terms in adult prisons.
Their dreams largely stemmed from their revulsion at the sight of young
people placed in "schools of crime," with hardened adult prisoners.
The centennial celebration will be a wasted occasion unless it is used
both to honor the dreamers and to revitalize their dream.
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