UNLV Magazine | Fall 2005 | The Weight of History

Historians don't make public policy; they only look back and analyze it. Or so it used to be. Law historian David Tanenhaus is influencing the future of juvenile justice in the United States by examining its roots. Last year he published a book, Juvenile Justice in the Making, about America's first juvenile court in Chicago, and he co-wrote an article calling for the abolition of the death penalty for juveniles. That article was cited in friend of the court briefs filed with the U.S. Supreme Court, which ruled this spring in Roper v. Simmons that it is unconstitutional to execute people for crimes they commit before age 18. Tanenhaus was reluctant at first to be drawn into activism, fearing it could undermine his credibility as a scholar. So he never misses a chance to remind others of his roots as a historian, not a policymaker. He is now studying the origins of federal juvenile justice policy in the 1920s and '30s.

The United States is considered the inventor of juvenile justice. It's arguably the most important legal innovation in all of American history.

There are people who want to return to the way the juvenile justice system was established. It's become like constitutional law, where people want to know what its founders envisioned. But I'm skeptical of that argument because it says that the people before us were somehow wiser than we are today.

I encourage people not to make the argument that things are so different today that we need to start all over. It's very dangerous to disconnect from our own history.

I see my role as helping to frame the questions we need to ask. That's my role as a teacher, to show my students how to analyze and think about a problem.

I began reading the work of people like criminologists and developmental psychologists to come up with answers to the really difficult questions about how to treat the young. I tried to figure out how to stay true to my role as a historian if I got involved in public policy. That was a real challenge.

In the law school, I hold the title of the James E. Rogers Professor of History and Law, a position partly funded through a donation. People always think I'm this ancient professor who's been around forever, and when they receive e-mails from me with the title included, they always respond. It's amazing to see how much having a position like this can make a real difference.

The Supreme Court's landmark decision on juvenile execution should help to bring the United States into closer compliance with international human rights law. And it may clear the way for the United States to ratify the 1989 United Nations Convention on the Rights of the Child. The United States and Somalia are the only two members of the United Nations that have not ratified this important treaty.

It used to be that the people who supported the death penalty did so because they believed it had a deterrent effect. Now, many people support it in terms of retribution.

There was a real spike of youth violence in the late '80s. There was a fear that there was a tidal wave of youth crime coming. But the get-tough legislation came after The Weight of History the youth crime rate started to decline. Although it may not have been rational policy, it became very good politics to get tough on crime.

We forget America's juvenile justice system is a success story. We diverted children for a century from being tried as adults and confined with adults. There was a period when having a juvenile court was a badge of pride for a city.

There is this idea that these young people are somehow fundamentally different from the way kids were before. There is a book by Franklin Zimring called American Youth Violence that says we're very comfortable in saying the past was safer and that children were more innocent than they are today. I think it's important to understand our own history so we don't romanticize the past as a golden age.

What makes youth crime different from adult crime is that often kids commit crime in groups. It's scarier, but it raises questions about the culpability of each person involved.

There's a very different public understanding of how juvenile courts work because we generally only learn about the cases of really serious and violent crimes. Most involve less disturbing offenses, such as property crimes.

I think almost everyone can relate to something they did as an adolescent. Young people take risks. You don't think as much about the future.

You don't have any control over how people use your research.

A producer from Judging Amy called after reading my book, and I spent a day in Hollywood with the writers of the show. They wanted to have the judge reflect on the early juvenile court and what it was all about, then become an activist. They were realizing that people were upset that we'd gone too far in getting aggressive about juvenile justice. So much of what goes on in the justice system really is dramatic. The writers did incorporate some of what we had discussed, but they would say, "We have to remember this is entertainment."

It has fascinated me to learn how much children were actors in American history.

Even though there has been a lot of criticism, we haven't seen a state abolish its juvenile justice system. There's a belief that most adolescents and children are fundamentally different from adults. It's important that we hold on to that belief, and incorporate it into our youth policies.

It gives people who work in this field a sense of pride to know that it has a history. They say, "I've worked here a long time, but I'd forgotten what we're supposed to be doing." When they say that to me, I find that very rewarding.