The Kids’ Judge

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When I came upon a news item not long ago to the effect that the Florida representative Bill McCollum had called for changes in federal law that would allow for the trial (in certain circumstances) of thirteen- and fourteen-year-old juveniles as adults and that other “get tough” members of Congress advocated confining some convicted juveniles with adult prisoners, my reaction was immediate and automatic: What, oh what, would Judge Lindsey say?

Judge Lindsey, you see, was Ben Lindsey, a progressive advocate with a flyweight physique (ninety-eight pounds, five feet five at age thirty-two, in 1901) and the soul of a gladiator. Among his several reform causes was precisely the separate treatment for young criminal offenders that is now under attack, and whether you agree with his reasoning or not, his story is worth telling. He is one more spirited exemplar of a special kind of American optimistic spirit that flamed especially high at the start of this century.

Lindsey was the son of Landy Lindsey, a Confederate-veteran telegraph operator, dreamer, and depressive who moved his young family from Tennessee to Denver, where he failed notably to make a living. Ben was first sent to a Catholic prep school, but when his father lost his job, he was moved into the strongly Baptist environment of his maternal grandfather’s home in Tennessee. When Ben was eighteen, Landy Lindsey cut his own throat with a razor. Ben returned to Denver, where he and a brother kept the family alive but impoverished. He sold newspapers and worked as a janitor, then began to study law, but at age nineteen he found life so grim that one night he put a gun to his head and pulled the trigger. The weapon misfired, and Lindsey was shocked back into the will to live.

Soon after, as a temporary district attorney, he got an accused man jailed, then realized in horror that the convict’s family would starve without his earnings. Lindsey unsuccessfully pleaded with the judge for a suspended sentence. “Son,” was the response, “your forte will never be that of a prosecutor.” He became a public defender, and his next formative experience was in conferring with two clients who turned out to be twelve-year-old boys awaiting trial for theft. He found them in jail playing poker with two old cons. Lindsey, outraged, got the judge to assign the boys to his supervision instead of keeping them in what he called “a school for crime.”

Several losses in civil suits taught him that victims of industrial accidents, and indeed all underdogs, had no chance of winning in court against corporations in cahoots with the political machine that ran Denver and Colorado. (A man not given to understatement, he called it “The Beast.”) He saw a way out in working from the inside, so he joined the Democratic party and was rewarded in time with a county judgeship. Then came his personal moment of conversion. A teenager came into court, charged with stealing coal alongside a railroad track. Lindsey sentenced him to a term in reform school. From the back of the room came “the most soul-piercing scream of agony that I ever heard from a human throat.” It was the boy’s mother, who lived with her husband, dying of lead poisoning from his job, in a hovel heated only by the stolen coal. Lindsey, with no firm legal basis, suspended the boy’s sentence and put him on probation.

From there he went on to tackle the entire system of justice as it applied to children. Historically, juvenile and adult offenders had been lumped together. English common law had held that seven was the “age of reason.” Colorado had generously raised it to ten. A humanitarian reform wave of the early nineteenth century had led to the establishment of “reform” schools. Colorado’s dated from 1891. But all of them were still prisons, often unsupervised chambers of horrors.

Lindsey first discovered a law for schools that allowed for “incorrigible” truants to be treated as “juvenile disorderly persons” requiring oversight, not chastisement. “Not a criminal,” he exulted later, “but a ward of the state to be corrected.” He got the district attorney thereafter to file all complaints against children under that law. That let him use probation and counseling—his own—to lead them back to the straight path.

His techniques were based on a progressive-era premise that people, especially young people, were disposed to do the right thing but fell into deviance by circumstances rather than by free will. This was a revolt against his traditional Christian upbringing, but he balanced it in his counseling and writing by an emphasis on personal morality and responsibility. This tension between social engineering and preaching nagged at most progressives. Lindsey’s court, all the same, was informal and nonadversarial. He met with the young probationers and talked to them “as one boy would talk to another,” in their own argot, as their equal. “No matter how calloused or covered up it may be by bad environment,” he believed, “down in every human soul we know there is the image of God.” Even bad influences could be turned to use. The gang loyalty of a young “criminal” could make him “more amenable to the law of the home, the school and the State.” He told his boys, for example, that they need not “snitch” on one another but should urge known fellow offenders to turn themselves in. When he did have to commit them to reform school, he sent them unescorted, and he boasted that in one two-year period not a single one of forty-two such boys had failed to show up. He also claimed that fewer than one in ten returned to his court on a second offense.