In re Gault with Josie Duffy Rice

Number 116

in the matter of application of Paul L.

Galt.

Adel?

Hey everyone, this isn't Leon from Fiasco and Prologue Projects.

It's Rachel.

Leon's on vacation.

On this episode of 5-4, Peter, Rhiannon, and Michael are joined by journalist Josie Duffy Rice to talk about In Ray Galt.

The case has its genesis in a phone call made in 1964.

The police called it obscene, and 15-year-old Gerald Galt claimed it was a friend who had made the call.

But either way, Galt took the fall for what is now a time-honored tradition among dumb teenagers.

This bracket?

Hello, this is Niall Standish calling.

Hello, sir.

Hello, I was calling because I had some questions about cock

for my bathroom.

The police detained Galt and eventually a judge imposed a six-year sentence in a state juvenile facility.

Galt's parents appealed the case all the way up to the Supreme Court, where the justices determined that, in fact, Galt's constitutional rights had been violated, creating a series of new protections for youth in the criminal punishment system.

But it wouldn't be 5-4 if there wasn't an asterisk.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our nation fatigued and struggling struggling like a podcaster with a sinus infection.

All right.

I'm Peter.

I'm here with Rhiannon.

How many cold medications are you on right now, Peter?

I went to urgent care today and I got the good stuff.

I got the fucking juice.

So I am ready to go.

Gone off that sauce.

I still don't sound or feel particularly good, but it's a big improvement.

Where was I?

And Michael.

Hey, everybody.

And our good friend, Josie Duffy Rice.

Hello.

Hi.

Hi.

Hi.

How are you doing, Josie?

I'm really great.

Well, I have strep throat, but other than that, I'm really great.

Oh, hell yeah.

Damn.

Two sick podcasters.

Two sick podcasters.

I feel like strep throat is going around.

My wife had strep throat.

It is.

I was complaining about it to some friends, and they were like, oh, yeah, my wife had strep throat.

And blah, blah, blah.

It's just doesn't it feel like a kid's disease?

It does.

It's like I'm like, no, no, no, we don't get that anymore.

Yeah.

But it turns out we do.

But it's not.

It's a wife's disease.

It's a wife's disease.

Correct.

Yeah.

That's why I don't have strep throat.

I'm nobody's wife.

You're my wife.

Josie is here to talk to us about children's rights because she just released a new podcast called Unreformed, The Story of the Alabama Industrial School for Negro Children, which is about an abusive reform school for black children that derailed thousands of lives in Alabama over the course of several decades.

And in fact,

still operates today as a juvenile correction facility.

The podcast has become a bit of a sensation.

So Josie, congrats.

Yeah, congrats.

Thanks.

It's so good.

Thank you.

Yeah, it was a year and a half of my life.

So I'm glad someone that's not my parents are listening to it.

They actually just started listening to it.

So couldn't even depend on them.

Today's case in Ray Galt.

This is a rare case for us because it is actually sort of a good one.

It's the case that found that the due process clause of the 14th Amendment applies to juveniles.

At the time, it was a massive step forward in juvenile rights, which have always been a very fraught, gray area in our law.

The case replaced a system where the state could functionally act as a parental figure at its own discretion and shifted to one where juveniles have independent constitutional rights of a sort.

But this is not a podcast about how good the Supreme Court is.

This is a podcast about how much the Supreme Court sucks.

And so we have brought Josie on to talk about how this country has failed to deliver on the promise of the case, how the case itself came up short a bit, and what the state of juvenile justice in this country is today.

So I think the place to start, and Josie, I'll let you handle this, is what the law was before this and for much of the country's history with respect to juvenile rights.

Yeah.

So before

and Ray Galt, and thank you for reminding me that it's Ray, not Ree, because I'm not a real lawyer.

So, you know, it's hard for me to say words.

I'm going to have to rerecord that part of the podcast.

But in the early to mid-1800s and 1825, these things called the houses of refuge start.

The first one was in New York, and they are kind of like homes, right, for kids who are quote-unquote neglected or considered to be at risk of becoming delinquent.

And they're kind of like seen as these places where parents or the state can take in kids and improve them, rehabilitate them, you know, prevent them from committing harm.

And so a year after the first one starts, a mother, the mother of this girl, Marianne Krauss, goes to the courts and Marianne Krauss is 14 and the mother says that she is guilty of vicious behavior.

I have to say, I love this part of the case because I'm like, my my kids are not 14, but I could, I can see it coming.

I'm like, yeah, definitely going to need a house of refuge.

100%.

We're headed straight there.

So goes to the court, kids guilty of vicious behavior.

Basically, like, I can't control her.

I can't take care of her.

Like, just do something.

And they're like, okay, we'll put her in a house of refuge.

So Marianne crosses 14 at this point.

And soon after her father comes to the court and is like, wait a second, nobody talked to me about it.

Like, she didn't have a court hearing.

She didn't have a lawyer.

There was no due process.

Like, this is not constitutional.

The court is basically, at that point, kind of codifies a concept that they'd been inching towards for,

you know, for the 50 years that there had been these courts in America, which is this concept of parents patrié.

So this idea that like the state is the parent.

And basically that if you are a kid, right, you think of the people having control over you as being your parents.

If you're an adult, you recognize that the state has control of you, right?

But there's this point at which the court basically says, like,

yeah, your parents have some control, as long as they use it right.

But ultimately, you are our children too.

You are the state's children, too.

And so, at the end of the day, if we think something is good for you, because either you're neglected or you are like heading towards criminality, as they kind of like frame it, then we have the right to do whatever we want.

And the reason we can do that is because the house of refuge is not a prison, it is a school.

It is a good place, not a bad place.

And when the state is nice enough to do something good for people, they don't get any rights.

There's a catch.

So stop looking this gift horse in the mouth and asking for rights.

Okay.

Right.

And so that kind of sets off this like tradition in juvenile justice that exists for the next, you know, 150 years, approximately.

I think that's like important background because that's sort of, you know, undergirding.

all of all of these institutions that spring up on top of it.

So you have houses of refuge, which are notably less punitive than contemporary prisons, but also are sort of a black box.

They seem to be housing juveniles that are convicted of very minor crimes, things that perhaps are not even crimes at all.

So it's sort of, you know, there's nothing formal.

It's all very haphazard.

Most of these are privately funded.

They're not really run directly by the state.

And it's not until 1899 that you see juvenile courts spring up, starting in Illinois.

Now, they don't have

the same types of procedural protections that are afforded to adults because they're still adhering to this concept of parens patriae or whatever, the state as the parent.

So no right to counsel, no right to bail, no protections during interrogation, no right to a trial by jury, et cetera, et cetera.

And moreover, the judges there have enormous discretion, so disparate treatment within the system is rampant.

They are profoundly racist, with black children being much less likely to be deemed worthy of rehabilitation.

And that's notable for a couple of reasons, primarily because a lot of this sort of springs up because everyone sort of starts in the progressive era to understand that children are more readily rehabilitatable, right?

I'm sure there's a real word for that.

Rehabilitating.

Capable of rehabilitation.

Yeah, sure.

Rehabilitating.

And to give the racism of the system some color, the first white child whose case was decided by the juvenile courts was sent to live with his grandmother.

And meanwhile, there are records of a 14-year-old black child whose punishment was being leased out to a plantation a couple years later.

The disparities are like, blatant in the South, especially.

In 1905, the governor of Arkansas pushed for a juvenile reform school, quote, where white boys might be taught some useful occupation and the Negro boys compelled to work and support the institution, end quote.

Corporal punishment disproportionately used on black children, and you generally just sort of see the juvenile justice system absorbing the disparities of Jim Crow in the South and the sort of regularized racism of the rest of the country.

Yeah, those are very Mt.

Megs vibes.

This is like

exactly what Mount Megs was.

So in the mid-century, for this case, you see the Supreme Court step in, ostensibly to bring some order to this fairly chaotic system and replace the state as the parent concept with something a little more grounded.

So Ree, I will hand it off to you because the background here is actually kind of fun as far as these things go.

Yeah.

Yeah.

Yeah.

I mean, it's fun and not.

It's fun until the end, I guess.

Calling your neighbor and asking about their boobs is objectively funny.

Gerald Galt is hilarious.

Hilarious.

Yeah, this case in Ray Galt is, it's a really good example of this concept that like basically children did not have legal rights, right?

Like children are different at this time in history in their legal personhood, right?

Josie, something I heard you talk about when you were on the podcast, Citations Needed, talking about unreformed, was really striking to me.

You were talking about how people say all the time that kids are resilient,

right?

Like, oh yeah, kids are really resilient.

Like kids can make it through such struggles or hardships.

They always bounce back.

And you're like, yeah, I mean, some kids are resilient, right?

But kids are people.

Kids are people.

So some of them are different.

Right, right.

It's just a weird thing we do where we project kids as this like, it's just so weird.

I mean, like, and all of us were kids.

I'm like, I mean, were you this way that you describe all kids as being?

You know, it's a very strange kind of pattern that we tend to follow.

I mean, I don't want to say that I wasn't resilient or anything, but like, I still remember the name of the full name of the girl who like called me an ugly nerd in second grade.

Yeah, well, you should, you should tell us her day of it.

And there's like three people whose full names I remember from second grade.

And like two of them were bullies.

Oh, totally.

Right.

And then one was like my best friend.

And that's it.

That's the only people I remember.

So like, right, right.

To say nothing of like the massive trauma we're talking about kids going through in the juvenile justice system at this time.

But yeah, roughly similar to what else is called.

But yeah, this is the court kind of shifting a history that we've just talked about of like kids not really being recognized as individual human beings who have their own constitutional rights.

Right.

So So, June 1964, 15-year-old Gerald Galt is taken into custody by the sheriff in Gila County, Arizona.

Now, Galt's neighbor, Aura Cook, had complained to the sheriff that she'd received an inappropriate and offensive telephone call.

We're talking about a prank call here, right?

This is what this kid is accusing of.

Like, no threats.

No, like, I'm going to kill you.

She's like, Is your refrigerator running?

Right, no, not even that.

It's 1964.

Like, the household telephone is relatively new.

And this kid's like, you know what I'm gonna do?

You know, it would be funny.

And right.

He paved the way.

They were a thing until sort of recently.

Like, we did prank phone calls as a kid.

Absolutely.

Yeah, of course.

We did too.

And of course, we loved the jerky boys.

Did you guys listen to the jerky boys as a kid?

Yeah, no.

I don't know.

But I will be googling that immediately.

That was a very guy thing.

Oh, were they like radio people who did the like fake phone calls?

It was like, yeah, you buy buy like cassette tapes.

This was before the days of CEs and they recorded themselves prank calling people and it was excellent.

They were

you had crank yankers in the early aughts right at Comedy Central.

This is a part of recent history and it's all thanks to Gerald Galt.

So actually, for his part, Galt always said that he had a friend over at the family trailer and the friend asked to use the phone.

Okay, didn't know.

He didn't know who his friend called, but he heard him using vulgar language.

He took the phone from him and he hung it up.

At any rate, this boomer, would-be present-day MAGA freak neighbor lady, calls the cops.

It's funny to call her a boomer.

She was probably born in like 1903, but.

Well, she's a boomer.

She's got boomer energy.

Okay.

The Spanish-American War boom.

If she is still alive, she almost certainly was at the Capitol in January 6th.

That's like in a walker, just very slowly approaching the Capitol Capitol building.

So, yeah, she fucking calls the cops because of a prank call, and Galt is taken into custody without his parents being told.

Again, this is a 15-year-old boy.

Galt's mother gets home from work in the evening.

She can't find her kid, eventually finds him at the county jail.

She is not allowed to take him home.

The next morning, the judge in the juvenile court holds a preliminary hearing and says he's not deciding anything right then.

So, Galt stays in jail for another few days before he's eventually released.

No reason given.

Galt's mom gets a note from the superintendent of the juvenile detention home saying that the judge is going to have further hearings on, quote, Gerald's delinquency on a certain date.

At that hearing, the state filed a petition, which would be like sort of roughly analogous to like a formal charge, like a charging document.

But that petition wasn't ever served on Galt's parents.

It didn't contain any factual allegations, right?

Like a charging document, like an indictment, it has to have facts, allege facts that meet the elements of a crime.

None of that is in this supposed charging instrument.

It just said that Galt was under the age of 18 and needed to be supervised by the court.

Galt at this hearing did not have a lawyer.

The neighbor who accused him of making the prank call was not present and did not testify.

There was no transcript of the hearing.

The judge said that Galt admitted to making the lewd phone call, but Galt's parents said he absolutely did not do that.

So at the end of this circus proceeding, the judge finds that Gerald is a, quote, delinquent child and sentences him to detention at the state industrial school until he is 21 years old.

Side note, at the time, if someone were convicted as an adult for making lewd phone calls, the maximum prison sentence in Arizona was two months.

This is a 15-year-old getting sentenced to six years.

Right.

It's so bizarre.

Rhea, I think we talked about this when we briefly discussed this case a couple of years back, but they would have fried me back in the 60s if this is what they were doing to prank callers.

Yeah.

I mean, how did any child make it through this?

It's just a total crapshoot.

I know, I know, right?

I'm like, did the judges not ever, I guess they grew up before the phone?

Literally, literally.

How could you possibly think this was that phone?

Phones in the 60s to these judges who were making these decisions was like the equivalent of TikTok now.

Right.

You know, or like OnlyFans.

They're like, you have an OnlyFans?

Yeah.

Six years.

Right.

Right.

They're like, what is this?

This is nothing but a vessel for lewd and inappropriate pornography.

Basically.

Right.

So at the time, there was also no right to appeal a juvenile case.

So Gerald Galt, his family, they cannot appeal the judge's ruling there.

So the parents had to file a writ of habeas corpus.

That's a special kind of legal filing asking for a court to review someone's detention, basically.

They filed that at the Arizona Supreme Court.

The Arizona Supreme Court referred the writ back down to the same juvenile court judge who dismissed the case, obviously.

At that point, they appealed that order on constitutional grounds.

And that's how we eventually get to the U.S.

Supreme Court.

So Galt is saying that the Arizona juvenile code is unconstitutional because it didn't require notice to his parents or notice of the charges against him.

It didn't allow for an appeal.

You know, in general, this is a massive denial of due process across the board.

Yeah.

So here we are.

A prank phone call has made its way to the United States Supreme Court.

So the court is addressing the issue that all of these basic constitutional guarantees are inapplicable in juvenile proceedings, right?

And they start off, in this opinion, by acknowledging that there are differences in the procedural protections guaranteed to adults and juveniles, and noting that the lack of those protections and the discretion given to juvenile judges has led to many juveniles being denied their fundamental rights.

They acknowledge the utility of many of these different procedures, but they ultimately say that, quote, under our Constitution, the condition of being a boy does not justify a kangaroo court.

Amen.

I say, amen.

What they hold is that while juvenile proceedings do not need to conform to all of the requirements of adult proceedings, they do need to adhere to basic principles of due process and fairness.

And therefore, in this case, Galt should be afforded at least the right of notice of the charges, the right against self-incrimination, and the right to confront his accusers.

So it's worth noting, I think, that this case expressly does not afford the full suite of constitutional protections to juveniles.

It's sort of a half measure, essentially saying that the proceedings need to adhere to the principles of fairness and due process.

But

what exactly that means isn't entirely clear, other than at least it means notice of the charges, right against self-incrimination, and the right to confront one's accusers.

So it's a step forward in the jurisprudence, but it's one that leaves the door open to the abuse of juvenile rights moving forward and leaves juvenile courts to operate within the margins of the Constitution in a sort of perpetual gray area.

So

you get a number of consequences flowing out of that, but one of the most obvious ones is just a few years later in 1971, there's a case called McKeever v.

Pennsylvania where the court says that juveniles do not have the right to a jury trial.

Right.

Right.

And had the court taken a firmer stance here, that might have come out the other way, right?

Why deny them a right to a jury trial?

Why is that fair to deny someone a jury trial, but unfair to deny them the right to confront one's accusers, right?

Right.

Right.

There's not really like a consistent thread of reasoning there.

And that gray area results in juveniles being denied plenty of constitutional rights, you know, up until the present day.

Basically, they'll figure it out later.

Yeah, exactly.

It's like this throwaway.

It's like kicking the can, right?

Totally, totally, totally.

I got to say, I missed a lot of that because i was reading an article and frantically doing some mental math and speaking on behalf of the podcast i want to issue a correction on on a previous joke you do not under any circumstances need to hand it to gerald galt

turns out gerald galt may have ended up doing some not ideal things later but convicted sex offender convicted sex offender gerald pedophile that's not good

Obviously, we apologize for the statements we made in support of Darrell Gault,

but perhaps had he not been thrown into prison

for a prank phone call, he might have gotten his life on the correct track.

I think it's important that we leave all of this in the podcast.

Yeah, no, we're cutting all of this.

That way people know.

that we own up to our mistakes.

That's worst case scenario for someone you just called cool, you know?

It's It's as bad as it gets.

It really isn't ideal.

So there were two dissents in this case, and I wish I could say they were because, you know, we had some far-sighted justices who were like, this does not go far enough.

But that is not the case.

We had John Harlan II, the bad Harlan.

For our listeners who don't know, there were two John Harlans.

One was the other's grandfather and was a great justice and

was on the you know reconstruction era court and dissented from a lot of the bad civil rights cases yeah his dissent was just painfully boring this overly technical decision about deferring to state legislatures the other is from potter stewart

that is just it's just kind of nasty it's just like these kids suck they don't deserve shit like literally it's like only two pages and it's like this isn't a criminal proceeding this is like it's just like this isn't real and they're not real people and we shouldn't care.

Right.

Like, it's wild.

And like, one of the things that they have in common is with the majority as well, is that they're all very concerned about teenage delinquency.

Call it like one of the biggest troubles of the nation, which is like, considering this is the mid-60s and there is like racial strife and the sexual revolution and the Cold War.

Yeah.

Well, I think the sexual revolution, to them, that is teen delinquency.

that's the same thing that's true yeah kind of wild but yeah the dissents are just absolute garbage honestly that's the thing i sort of love about this and i not like feel comforted by this feeling of like just generations of people being like the teenagers these

kids are break down yeah about the teens yeah these ones are going to be the end of us you know it's like not that different than what you see today bro when you were like swing dancing in 1921

all the old fogies were like these kids have been possessed by the devil

right possessed by the devil is the American tradition of beings like right every generation you know forever yes this this feels like a good time to take a break

and we're back so Josie I want to sort of give you a broad prompt here but what do you see as the legacy of this case or maybe another way of framing it is what do you see as you know we move away from the concept of the state as the parent and into this sort of era of juveniles having some rights, but not all rights.

How would you describe that era, the sort of 50 or so years following this case?

What are its definitive qualities in your mind?

I would define it as bad is the word I would use.

You know, the interesting part about this case, right, is it's granting children rights, which like two thumbs up, but it's also in a way kind of acknowledging like this is a criminal system.

This is a system of punishment.

Like actually, the state is not just thinking of its job as rehabilitation, right?

It's thinking of its job as punishment too.

That was true before, but now it's kind of more explicit and aligning kids with the same rights as adults also kind of has given juvenile justice systems.

free reign to kind of given them the same punishments as adults too.

You know, you can look at it both ways, right?

At least they're not lying to themselves anymore, saying that like they were rehabilitating kids when they weren't.

And some of that fiction was

important in differentiating between how we think of kids and adults.

And like with this case, which obviously like on its face is really good, that fiction kind of disappears.

Right.

And like this is like you said, the 60s, this is racial strife.

This is Lyndon B.

Johnson's We're on Crime.

This is, we're going to Nixon.

And then we're like pretty soon after that, going into Reagan.

And, you know, like, then we're in super predator land, right?

Then we're in like thousands and thousands of kids in adult prisons, thousands and thousands of kids institutionalized.

Yes, they have rights now, they have they can have a lawyer and they can go to juvenile court.

They actually have to be found guilty of something, which is a major shift, obviously, very important.

But like, this doesn't change the way that the courts are seeing kids.

In fact, like it aligns with the increased cruelty towards children that we see see over the next, you know, 50, 60 years, right?

And so like that really matters.

I mean, when you think about this idea of kids as little adults, these like little evil adults, there are some people who are just born bad or like, again, the super predator idea, all of this sort of stuff you're seeing, especially in the 90s, but in the decades before that too, that kind of is like one element of the American conception of children that for a long time the courts were trying to deny existed and finally admit that it really kind of does, right?

And so it's a big deal.

I mean, like, it's a major case in that, like, before that, like at Mount Megs, for example, you're seeing kids go to Mount Megs for loitering, for laziness, for missing curfew, for things sent away for six, seven, eight years.

You know, you're seeing parents write in and say, like, I don't know where my child is, and I have no right to know, and I need to know where my kid is.

Like, it's obviously a depraved system.

But I think the idea that GALT kind of drastically grants kids and the juvenile justice system more restraint, I think is a falsehood.

Yeah, yeah.

I mean, I think there's this idea, right, like after in Ray Galt, that like the court thinks that it's solving a juvenile justice problem by like bringing juveniles into this like constitutional world, right?

Where kids have constitutional rights, but it's actually, you know, quote unquote solving this problem

by putting kids in a system much the same as the adult criminal system, which is rife with injustice, right?

And so it doesn't actually totally solve the problem.

The other idea, too, is like, yeah, kids were getting sent to Mount Megs

before this, you know, in a completely depraved way that where they were deprived 100% of any due process rights.

But it didn't stop kids from being sent to Mount Megs, right?

They were still sent there and it's still open.

Sure did did it because that place is still open and so i actually was talking to a friend of mine who's a lawyer in alabama about this exact thing and she sort of said like yeah they kind of gave up on pretending juvenile justice was something different but also like having a lawyer in the system doesn't always mean what it should in part because like lawyers and juvenile justice systems sometimes think that they're guardians according to them exactly and so this idea that like you know she was saying she sees lawyers argue for imprisonment because it's in the kids best interest there's still this parents patrii parents' patriot, I don't know how to say any of these words, way of thinking about kids where we are trying to save them

from themselves, kind of by like constraining their liberty in a way that like doesn't actually address the problem or give them what they need.

Right.

It seems like this case sort of

solves some problems and then entrenches others.

Right.

So you have problems like parents literally not knowing what happened to their child.

And this mitigates that to a large degree by providing the right for people to have notice.

But on the other hand, you have the formalization of the juvenile justice system as something that resembles the adult criminal justice system much more, which

then leads to juveniles being just eventually...

placed into adult facilities at incredibly alarming rates, right?

So you start from a place where kids can be sent to these reform schools where the goal is rehabilitation for damn near anything and without any protections.

You give them protections, but on the back end,

within a couple of decades, they're being sent to like adult prisons in the hundreds of thousands every year.

Right.

And their protections aren't the full suite of constitutional protections that adults get.

Right.

Right.

You still don't have a right to to a jury trial, right?

There are still rights that you don't get as a juvenile.

Right.

Not to mention that we have a whole podcast about how half those rights don't mean shit anyway.

Exactly.

Exactly.

So, you know, there's a real question of how much good was done by this case.

Yeah.

You know, all of these kind of procedural protections.

It's like, it doesn't mean nothing, but it doesn't mean everything.

Right.

And we tend to grant it this like almost superhuman power of, well, now kids really got their fair shot in front of courts, right?

We know that's not the case.

Right.

We know that like this case exists and we still have prosecutors in Florida transferring enormous numbers of like juvenile cases to adult court unilaterally.

Like the ways in which the protections for juveniles or adults, you know, civilians generally, the ways in which we've kind of made that possible, make things like this, even the good cases seem like they've had equally bad results almost.

I think it's worth noting that there's this like fundamental problem here, which is that it's difficult to agree on the framework for viewing juvenile rights.

And it's inherently tricky, right?

You have to strike a balance between respecting the human rights of the child and also respecting the fact that they are merely a child, respecting that they are the responsibility of their parents or guardian, but also that their parents or guardian might be failing them in some ways, right?

That they can cause real damage and suffering, but also that they are more likely to be rehabilitated and less likely to understand the consequences of their actions.

These are really complex dynamics that are not easy to navigate.

I think sometimes we talk about issues that do have simple solutions, and I think this isn't one of them.

When you're trying to find solutions for a problem this complex, I think it's useful to look at low-hanging fruit, right?

When I look at the juvenile justice system now, my thoughts are get juveniles out of adult jails and prisons, stop trying them as adults, drive resources towards rehabilitation, push for different sets of sentencing guidelines, et cetera.

Now, a lot of these efforts have been made over the last couple of decades and have, in some regards, have been quite successful.

But I just wanted to sort of put that out there because I do think these are tricky issues, and I don't think the solutions are super clear-cut.

Look, we've seen just in the past couple years, and I brought this up a few times over the past few weeks because I've been talking about juvenile justice a lot.

Like you think about Uvalde or Buffalo or Dylan Roof or people.

I think all three of them were technically adults, but they were young.

You know, I think in Uvaldi, the shooter was days past his 18th birthday.

And what we know about juveniles, that their brains are less developed, that they have less impulse control, less emotional control, less likely to think about the consequences of their actions, make them like really easy targets for this narrative of evil because

they are capable of doing bad things, right?

They are capable of committing serious harm.

The fact that you are less developed doesn't really stop you from being capable of doing these things.

And so it is a really tough question.

It just is so clear that the way that we currently do it is illogical.

It's based on all these kind of legal fictions of somehow a kid's adult or whatever.

And it's another example of us not putting any kind of resources and attention into prevention and then throwing up our hands when a kid who's been like trawling the white supremacists like message boards ends up going into a supermarket and shooting people.

Like it just seems so clear that all the places that we could get involved before, we fail to do that.

And then we treat kids like adults, you know?

Yeah.

And I don't want to wander too far afield, but just to your point, like it's just phenomenally easy to do large-scale damage right now, right?

It's very easy to get your hand on a very lethal weapons

if you're 18 that don't require a lot of advanced planning, right?

You don't have to be fucking Timothy McVeigh and building a giant bomb.

You just go to Walmart and buy an AR-15, and that's it.

Yeah, that's right.

That is a notable difference.

When I say they were almost children, while they were adult enough to get the gun, they couldn't have gotten a couple days before,

which does matter.

But it is true that we afford...

basically kids with access to the ability to commit widespread harm, to the ability to make the front page of the Washington Post, right?

And then we allow them to kind of re-entrench our system of cruelty.

Yeah.

So I think it's probably worth talking about the state of the law now.

Yeah.

We've talked about this in the past.

A couple years ago, me and Rhea talked about it on the pod, but in 2005, Roper v.

Simmons holds that you cannot put juveniles to death.

Phenomenal.

In 2010, you get Graham v.

Florida, and the court says that you can't sentence juveniles to mandatory life without parole for non-homicide offenses.

And in case anyone's not a lawyer who's listening, mandatory means required by the sentencing.

So you can still sentence a juvenile to life without parole, but you need to do it after an individualized evaluation of the case.

In 2012, you have Miller v.

Alabama, where the court says you cannot implement mandatory life without parole for juveniles, period, even including homicide offenses.

There was a clear trend of recognizing that juveniles should have more access to rehabilitation until the recent conservative takeover of the court, until Brett Kaffana basically steps on the court and replaces Anthony Kennedy, and then, of course, made worse by Amy Coney Barrett.

So I'm wondering whether you have any thoughts, Josie, about where we are other than that it's not looking great,

where you see the broader movement, you know, because activists have had a lot of success over the last 20 years in changing laws on the ground.

We have far fewer juveniles in adult prisons.

We have fewer juveniles being tried as adults.

But where do we go from here in your mind?

Yeah, I think it's a really, like, when you look at the period from 2005 to 2016, like it's a major shift, right?

I mean, like, it's just a major shift in the way that the court is acknowledging that juveniles are different than adults.

And the trend is headed in such a very clear direction.

I think if you had asked me five years ago, I would have said we are five years out from no life without parole sentences for juveniles, including like et al.

period.

We were almost there.

And you also see the court kind of moving away from this idea of being incorrigible, which is like this term they use from the beginning of like time, essentially, is in the beginning of the making decisions of what kids they're most concerned with, the incorrigible ones.

Obviously, this is like a fiction of us being like psychic beings.

You know, the Supreme Court just is knowing something that that the rest of us don't know, which is where will you be in 20, 50, 100 years.

We don't actually

turns out you can't predict the future.

So the idea of incorrigibility is like a ridiculous one anyway.

But it's important, right, for the fiction they need to maintain, because what activists have been pushing on this issue for over a century now is that young people are more receptive to rehabilitation, right?

Totally.

You need what is essentially a pseudo-scientific concept to throw at them to be like, well, not this one, because he or she is incorrigible.

Right.

And look, like this kind of idea of people being incorrigible is not just a conservative one either.

I mean, like, Kyle Rittenhouse, obviously an asshole, like, whatever, not my favorite guy, right?

But I was blown away at how many people were like, put him under the prison forever on the left.

Like, he was a kid, right?

We see kids on both sides like do horrible, horrible things.

And still, this recognition that they are a child becomes this kind of like political weapon that we wield when it's convenient and don't wield when it's not.

And so the court like is moving away from this idea of incorrigibility.

You see them in Montgomery, which makes Miller retroactive and says, okay, mandatory life sentences without parole should not apply.

And everybody who had one gets a rehearing.

But you also see them talk about this corruptibility, this idea of like, well, they have to be very incorrigible for you to sentence them to life without parole.

And then obviously, once we see Brett Kavanaugh and his ill could get on the court, we have Jones v.

Mississippi, which you guys have talked about plenty before, but you know, they're sort of like, they don't have to find that you're permanently incorrigible.

They just have to find you're corrugible for the time being or whatever.

This kid's just a piece of shit.

This kid sucks, dude.

Bad vibes.

Right.

And, you know, this is a big deal because

I'm scared we're moving backwards.

And I'm certain we're in a stasis state when it comes to juvenile sentencing and juvenile justice at the court.

And so it's really like just another example of how this shift in the court to whatever the like hell we have now, just the world's worst people all wearing these black robes.

It just is a reminder that like nothing has changed.

Like children are the same.

Their brains operate the same.

Their brains advance the same.

We know that kids, their brains don't stop developing until they're about 25 years old.

Like this has always been the case, right?

But the court creates these legal categories, these fictions that are made up.

And like the future of children's rights kind of depends depends on who's sitting on the court that day.

Not saying anything groundbreaking.

This is the basis of your entire podcast, but you know, it really is just a reminder of how arbitrary it all is.

Yeah.

And, you know, this is a slightly academic point, but just thinking about that, you know, I don't know that the court is necessarily the right vehicle, regardless, for changing the way we treat juveniles in our legal system in general, right?

But to the extent we want to, like the language is right there in the Constitution, right?

Like the 14th Amendment, like on its face, it includes birthright citizenship.

It applies to infants and toddlers, right?

Like it talks about persons.

All the Bill of Rights that are incorporated by the 14th Amendment refer to the people and persons in the accused.

The language is there for robust constitutional protections for children if we want to build a jurisprudence around that.

The tools are there.

And this is a point we've made a number of times lately, I think, but like the language and the tools are there in the Constitution already.

We don't need to amend it.

We don't need groundbreaking historical research.

You just got to read the Constitution on its face.

We'd rather do shooter drills and put a cop in every school than we would like actually.

I also think it's probably worth noting, and we've talked about this a bit before too, but the conservative view on this is just profoundly unscientific, right?

Like

there are mountains of research showing that juvenile and young adult brain does not stop developing until the age of 25.

And like violent behavior falls off a cliff after that age, like tremendously, right?

These are basic facts, right?

They should affect how we sentence young people.

Yeah.

Right.

They should affect how we look at a young violent offender versus an old one.

The fact that the modern courts have decided to ignore that is just one of the many ways that the conservative intellectual movement has chosen to reject modern science.

And in this case, not even modern science.

We're talking about the last 150 years of research on this.

You know, another example of what part of the conservative project has an enormous amount of control over this is the state legislatures, right?

Last year, I did this story in Tennessee and talked to a state legislator who said, like, some kids are just born bad, is what he told me.

And I was like, you want to cite any resources there?

And the answer is no.

He just wants to support the law.

In Tennessee, it was 51-year mandatory minimum, right?

And like, despite the fact that there are lawyers there, like Jonathan Harwell, going up to state Supreme Court and winning, actually, but saying, like, here's how kids' brains work.

Yeah.

It's irrelevant to people trying to get re-elected.

Right.

And so you see this, like, I'm tough on crime.

This is my tradition of not letting you get like killed by the juvenile gang member in your home or whatever, that has just re-entrenched the cruelty of juvenile sentencing across the country.

Right.

And I do have to say, before we wrap, I think one of the most disconcerting things about modern conservative discourse, and by modern, I really mean like the last year of conservative discourse, is a renewed interest in hyper-violent punishments

directed at non-violent criminals.

Most prominently, Donald Trump.

Who?

Former president, Donald Trump?

Oh, yeah, yeah, yeah, yeah.

I know you're not like super into politics.

He has said that he would support the execution of drug dealers.

And

I think a lot of people very quickly wrote that off.

But segments of the right, the sort of fringe, intellectually fringe, but still quite popular right,

has grabbed onto similar concepts and talked about bringing back things like public hangings and types of corporal punishment for adult criminals.

And

that's notable because I think when you look back at 2016,

There were a lot of things that Trump said, like, I'm going to ban Muslims from coming into this country, that everyone rolled their eyes at, right?

Like, you can't do that, right?

Because it was so far outside of the bounds of polite discourse.

Right.

Everyone felt like it was off the table, but in fact, was something that was relatively popular with the common voter.

Absolutely.

Because they don't have any concern for the norms of Washington discourse.

Executing drug dealers feels similar to me.

I totally agree.

It feels like the same thing.

And I think it's a very disconcerting and sort of undercovered trend in conservative politics right now.

And it has me a little bit freaked out.

There's a serious move towards charging people with homicide for drug dealing, essentially, right now.

You see that like left and right, right?

You deal someone drugs, they later overdose.

you get a homicide charge.

And that happens sometimes when you like share drugs with your friend or you didn't know there was like something in your drugs or whatever.

Like we judge this to be the most harmful thing.

And the most harmful thing, all bets are off the table, all protections are off the table.

Right.

Is a real direct line there.

I think that we're not taking sort of these threats of sex offender should be executed, drug dealers should be executed.

I would not even be surprised if like that pulls kind of okay

among like the center left, too.

Well, because for us, it's like, is there fentanyl in our cocaine?

You know, right, that's important in Brooklyn for us to verify, right?

As an Atlanta mom, I can't confirm that, but um, sure,

It reminds me of immigration, where there was a not too distant past where the Republican Party mainstream was pretty pro-immigration because it aligned with the interests of their donors and businesses, right?

And George Bush and Karl Rove, they wanted to strike a grand bargain on immigration reform in 2006, but it became...

a way for politicians to prove their bona fides to the base, right?

Starting with Mitt Romney in 2012 and going from there, there was just this race to the bottom of, well, I'm going to make it so miserable for immigrants that they'll self-deport.

Well, I'm going to build the wall, you know, and everybody climbing over one another to be just more inhumane and grotesque.

And there are two issues that remind me of that right now.

And one is transgender stuff.

And the other is the death penalty and just criminal punishment in general, you know, and it's like Ron DeSantis is saying, well, we want to put to death anybody who rapes children.

And Trump is like, we're going to put to death drug dealers.

And they brought back federal executions in a big way at the end of Trump's term.

And

it seems like it's a trend where we're going to be seeing just worse and worse stuff for the next decade.

And Biden has a death penalty case as we speak, right?

Like, here's a man who ran on, I'm going to, in the federal death penalty, and I'm going to encourage governors to like in the state death penalty where there's a case in front of him as we speak, you know, the DOJ is prosecuting someone and hoping to get the death penalty.

And the transgender thing also relates to the kids thing, right?

This idea of kids as political pawns and deep down evil, you know, who are manipulating the rest of us, basically, is like not separate from this question of like, how much can they be punished?

The Biden death penalty thing is the most lawyer-brained thing too, right?

Because their excuse is that before he took office, they were already seeking the death penalty.

So there's like just doing what we were doing.

Just continuity in the case or whatever.

It's like, this is something that is not even persuasive to most lawyers.

And everybody else is going to be like, what the fuck are you talking about?

Because why end the federal death penalty if not out of some respect for human life?

Right.

And so to say that some like...

principle of like right you know continuity between presidential administrations matters more because Jeff Sessions wanted to send someone to death.

Look, I care about human life as much as the next person, but this one guy said we had to do this thing, and that also really matters.

Right.

We're already on the way.

We already filed the book.

No, turning back down.

Right, exactly, exactly.

We don't want to like waste our time.

Unreal.

And look, it's all of this is emotional response, right?

All of this is highlighting the worst, the Nicholas Cruises and the worst possible crimes by young kids and saying like they're our exception.

But the point is that the exception proves the rule.

And, like, we still allow this, you know, we still allow this.

Right.

This is our method of prevention.

Like, this is what we're like, this will deter the next kid from doing something bad.

Yeah, because kids are really thinking about copyright.

Exactly.

And also, like, know what the sentencing scheme is in their state.

I mean, like, it's all just so made up.

Right.

And that's, you know, what we know ready.

Yeah, I think, you know, as we wrap, I think it's to sort of square what we've been talking about with the case, you know, Inray Gault does what's on the surface quite a good thing by adding these protections, but it also funnels juveniles into the criminal justice system and sort of puts them at its mercy.

And now we have a situation where the politics of the criminal justice system

are getting a little bit dicey.

And had we created a separate apparatus for juveniles that truly treated them differently and handled them separately, had separate institutions dedicated towards juveniles and geared them truly towards rehabilitation rather than just purportedly, then we might be in a situation where juvenile rights were sort of safe, even with this modern discourse.

But as it stands, they are, the discourse is one and the same, right?

To the extent that

the discourse shifts towards being tough on crime again, like it did in the 90s, that will always fall on juveniles just as it does adults.

Yep, absolutely.

So, Josie, before we go,

I want to let you do the full pitch.

Unreformed, for those who have not listened.

So Unreformed deals with a lot of these questions, right?

It looks at this institution that was started as kind of a safe haven for black kids in the early 1900s.

The state of Alabama took it over.

As you can imagine, they didn't have the best intentions in 1911.

And what we saw for the next 60 years was this like,

house of abuse functionally, this place of true mental, physical, emotional abuse that these kids suffered.

And what we look at is kind of the trend in how they got there, what happens in the courts, right?

What happens in the late 1960s when they file a federal case, when a whistleblower files a federal case, like alleging that the treatment at the facility violate these kids' constitutional rights, and what it looks like now, which it still exists, right?

This institution still exists.

It is no longer called the Alabama Industrial School for Negro Children.

They did get rid of the Negro usage in the name, which I guess is

a slight improvement, but it is still an institution where quote-unquote delinquent children are sent in Alabama.

And so this is really also a look at like where the kids who went there end up.

And that's kind of what's coming up in the next couple of episodes.

And I think an important look at like when we admit that kids are more influenceable than adults, and then we put them in places where they're abused horribly, why are we surprised when later on that kind of abuse gets replicated?

So, eight episodes.

You can find it on wherever you listen to podcasts.

And yeah, check it out.

You can find it wherever you get your podcasts, including in this feed right here.

Yeah, so next week we will publish an episode of Unreformed so that you can listen yourself.

This is such great news.

Thank you guys so much.

Yeah.

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It is a good Slack.

Huge fan of the Slot.

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I filled out a couple forms recently and both times I like put in my employment and it was like your occupation.

I was like

podcaster.

Sometimes I just put self-employed or freelancer and once I'd put down journalist.

I was like, I feel like you can't say that I'm not

legal pundit.

I'm going to start putting down a thought leader.