• U.S.

The Law: Wayward Winners

2 minute read
TIME

In 1923, in an outburst of moral fervor, the New York state legislature decided that incarceration was the proper treatment for any youth between 16 and 21 who “is willfully disobedient or deserts his home, and is morally depraved or in danger of becoming morally depraved.” That Wayward Minor statute—paralleled by similar laws in most other states—allowed thousands of youngsters who had never committed any crime to be imprisoned along with hardened criminals.

Three typical cases:

Esther Gesicki, now 20, had been placed in a foster home after her mother entered a state mental institution. When her mother was released, Esther wanted to rejoin her, but a social worker forbade it. Esther ran away and was later locked up.

Marion Johnson, 20, who had lived in foster homes since the age of 5, bore an illegitimate child at 17. A social worker tried to persuade her to give up the child, but she refused and was adjudged “wayward.”

Dominica Morelli, 17, had been sexually assaulted by one of her alcoholic mother’s four husbands. Moved to a foster home, she ran away and returned to her mother. Placed under a curfew, she made a trip without her mother’s permission and was promptly charged with violating probation.

The N.Y. Civil Liberties Union and Law Professor Herman Schwartz of Buffalo learned of the girls’ plight and decided to challenge the law. Circuit Court Judge Irving R. Kaufman endorsed that challenge. “The law permitted punishment as if they were criminals,” said Kaufman. “But they are punishing a condition, not a crime. How are you going to define moral depravity?” Setting aside the girls’ convictions, the three-man federal court denounced the Wayward Minor statute as “unconstitutionally vague.”

Even before the Kaufman decision, the statute had fallen into such disrepute that it had recently been allowed to expire—though not in the case of anyone already convicted. As of last week, 236 youths were under sentence as wayward, and 221 of them, including the three girls, were out on parole or probation. They will now all go free, unless the state appeals. Says Judge Kaufman: “The state will simply have to find different ways to treat these youths. Foster homes, halfway houses—but not penal institutions.”

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