February/march 1997 | Volume 48, Issue 1
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.
Lindsey was not trying to supplant the family. He saw its guidance role as paramount, and he advocated—and helped secure—“contributory delinquency” laws that gave his court jurisdiction over parents who did not appropriately train or restrain their children. This involved the court in family counseling, from which, however, neither parent nor child emerged with a criminal record. Lindsey recognized that impoverished parents themselves were not always responsible for their negligence: “I saw through the tears and misfortune of these children, the defects and injustice in our social, political and economic conditions.”
Those conditions he tried to change. His efforts included job searches for his “kids” and well-publicized crusades for things like public baths and playgrounds. He took his probationers to ball games, picnics, shows, and other amusements but did not fail to lecture them on the perils of evil thoughts and associations and the duties of self-help, self-denial, and hard work.
Crusading was his specialty. Lindsey’s major fault was a habit of acting as if he stood alone in his battles. But his self-promotion had an object—namely, to win popular support for his views. To do that, he maintained, one had to “grandstand with a megaphone.” He held open hearings at which reform-school graduates told horrifying tales of sexual and other abuses. He launched headline-grabbing attacks on “wine rooms” where teenage girls were initiated into prostitution. (He left female young offenders, however, to the attention of court-appointed women.) By these brassy means he got his juvenile court formalized as a regular element of the Colorado judicial system. Eventually all other states followed suit. By 1915 he was a national figure, known as the “kids’ judge,” traveling and lecturing, a bright star in the progressive constellation. He was the subject of magazine articles and shook hands with Theodore Roosevelt. For every opponent like the president of Cornell, Andrew D. White, who deplored the “sickly, mawkish lenity to crime and wrong,” Lindsey had many friends who, like Sen. Robert M. La Follette, told him: “Your audience is now the entire country…. You have the … confidence of a vast majority of people. Be true to them and your future is assured.”
But it was not. Lindsey’s subsequent career was a spectacular flameout. His interest in families, plus a postwar attraction to popularized Freudianism, led him to become a strong advocate of family planning through contraception, which earned him new hostility. In 1927 he published a bestseller, The Companionate Marriage , advocating marriage that could be quickly and easily dissolved if there were no children, a kind of judicially sanctioned cohabitation, shocking to those who saw the Jazz Age as flushing American morality down the drain. He lost his judgeship in a close and contested election (influenced by the Ku Klux Klan). Later he was disbarred, in another hotly disputed proceeding, for alleged violation of judicial ethics. He finally moved to Southern California in the thirties and was once more elected a judge. He died, full of years and fight, in 1943, aged seventy-three.
The juvenile-court system eventually came under attack from oddly disparate sources. Conservatives objected to its “coddling” practices. But there was also criticism from the left—to wit, that whereas adult law is at least precise, the “therapeutic” treatment of juvenile offenders puts their freedom and rights in the hands of unelected “experts” and bureaucrats.
All the same, I think Lindsey is rather heroic, warts and all. It is easy to argue that there will always be crime while there are idle and violent young men around and that the “cure” is to lock them up. But I know as a historian that such prescriptions have been tried before, and if they worked at all, they worked mainly for already comfortable citizens, who found it easy to put both the circumstances of the criminals and the causes of their crimes out of sight and out of mind. I think it says good things for American values that there were people like Lindsey who shouted, “No!”