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Kenneth B Nunn

excerpted from: Kenneth B. Nunn, The Child as Other: Race and Differential Treatment in the Juvenile Justice System , 51 DePaul Law Review 679-714, 679-682 (Spring 2002)(205 Footnotes Omitted)

Adolescence may be described as a period of transition from childhood to adulthood, when those yet to become adults gain greater physical and mental abilities than children, but continue to lack the wisdom and judgment possessed by mature adults. This symposium has been given the title The End of Adolescence. Many of the articles in this volume focus on a growing trend to shorten the period of adolescence, or to eliminate it entirely. But insofar as African American boys and girls are concerned, it is somewhat inaccurate to speak of an "end of adolescence." For to have an "end" suggests there was a "beginning," and there was no beginning of adolescence for African American youth. The concept of a group of young people who were entitled to special treatment because they were impetuous and immature was never extensive enough to include African American children.

Indeed, there was no "adolescence" as such in the United States until about 1830. Prior to that time, children were viewed as the property of their parents and were mainly valued as a source of cheap labor. One historian claims that "[i]n labor scarce America the services or wages of a child over ten was one of the most valuable assets a man could have." While adolescent children were valued, and perhaps even loved by their families, there was no social category that recognized their existence, and they had no political or social rights. This predominately materialistic view of childhood began to change in the early nineteenth century. Due to a variety of factors--increased wealth for the American white middle-class, increased urbanization, greater industrialization, and the rise of transcendentalist thought--new attitudes about children and society's obligation to them began to arise. By 1830, the view that childhood was a distinct stage of life committed to learning and development had come into vogue. As a consequence, white child labor became disfavored, and the first child labor laws were enacted.

When adolescence began for white children in 1830, African American children remained slaves. They, like African American adults, were property, and a much lower class of property than that to which white children were relegated prior to 1830. "[T]he idealization of white children that occurred in the 1830s did not affect [B]lack children at all." Black children who were living in slavery had no legal rights. Their connection to their family was not even respected. They could be separated from their parents and sold away whenever the slaveholder so desired. African American children's only socially recognized function was to work at hard labor for the economic benefit of whites. Even after the end of slavery, the social distinction between white and Black children remained. In fact, within a few years of the Civil War, Southern legislatures enacted "apprenticeship" statutes that allowed former slaveholders to force African American children back into virtual slavery. Although most apprenticeship statutes were repealed by the 1870s, African American children continued to work on farms and in factories in much greater numbers and at much greater risks than white children.

The different perception and treatment of African American children thus has deep historical roots in the United States. Indeed, the racial disparities in the vision of childhood is so glaringly apparent that it changes the nature of the research hypothesis of this symposium. The question for children of African descent in the United States is not "why the end of adolescence," but rather "why never the beginning?" In this Article, I will address this revised research question by analyzing the way African American children are perceived in American culture at large. I argue that African American children are not afforded the same treatment as European American children, and consequently never enjoyed the benefits of adolescence because they are viewed differently by white society. African American children are viewed as children of "the other," and as "others," they may be treated in ways that would be unthinkable if white children were involved.

The "other" is a concept that has been addressed in a variety of sources, but it is most commonly associated with postmodern thinking and analysis. As I explain elsewhere in this Article, the "other" is the reflection or antithesis of the self. Whatever qualities the self is thought to have, the "other" has the opposite. In this way, the "other" is a tool for defining the self and the reality with which the self engages. The quality of otherness that engulfs African American children is such that African American children define the boundaries of childhood, adulthood, delinquency, and crime.
The juvenile justice system is rife with racial disparities between white and non-white children. By virtually every means of measurement, African American, Latino, and Native American children receive much harsher treatment than do European American children. They are more likely to be arrested, charged, to receive more severe sentences, and to stand trial as adults. I trace this disparate treatment to the process of "othering," which has deep historic and cultural roots. When children in the juvenile justice system are viewed as the children of the "other," the juvenile justice system is employed as an instrument of repression and control. Viewing the juvenile justice system as a means of repression and control provides a greater explanation for the racial disparities that exist within it than can be provided by theories of either retribution or rehabilitation.

In this Article, I will focus on the treatment of African American children as the "other" in the juvenile justice system. As previously stated, African American children are not the only ones who may be treated as the "other." Latino, Native American, Asian, and even white children may be "othered" in the appropriate social context. My concern here, however, is with African American children. I focus on their condition because I believe it is exemplary of how all children who are perceived as children of the "other" are treated and because, in some ways, the treatment of African American children, in a bipolar racial hierarchy, is unique.

In Part I of this Article, I will describe the extent and nature of the racial disparities that exist in the juvenile justice system. Next, I will discuss the concept of "otherness" in Part II. In Part III, I will discuss the child as "other," which will be followed by a discussion in Part IV of the impact of the "other" in the juvenile justice system. Finally, I conclude that if white children were its predominant subjects, the juvenile justice system would look entirely different. It would focus on rehabilitation and reeducation rather than its present emphasis on repression, isolation, and control.

. Professor of Law, University of Florida Levin College of Law. A.B., 1980, Stanford University; J.D., 1984, University of California, Berkeley School of Law (Boalt Hall).