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Spring 1994
   
Taking Off the Kid Gloves
Rita Kramer
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A father of six on his way home from work is held up at gunpoint on a city street, tries to resist, and is shot in the head. A little girl is accosted on her way home from school, taken up to the roof of a building in a housing project, and sodomized. A boy questioned after shooting a two-year-old in a playground shrugs and explains: “She was wearing a red hat.” In each of these cases, the culprit is 15 years old or younger, has been arrested before, and has been paroled by a juvenile court.

Juvenile violence is the nation’s most serious crime problem, the National District Attorneys Association declared at its fall 1993 meeting. The statistics support this view. By 1990, nationwide figures compiled by the FBI showed the highest number of teenagers arrested for violent offences—homicide, armed robbery, rape, aggravated assault—in the more than 25 years that the agency has been keeping such records. Further, according to FBI figures, 29 percent of those arrested between 1987 and 1992 for the most violent crimes were under 18. A 1992 study by Northeastern University’s College of Criminal Justice found that between 1985 and 1991 the number of 17-year-olds arrested for murder increased by 121 percent, the number of 16-year-olds by 158 percent, and the number of 15-year-olds by 217 percent. During the same period, the number of arrests of boys 12 and younger doubled.

The problem is particularly acute in New York City. Nearly one-fourth of all under-16 suspects arrested for robbery nationwide are in the city. The number of juvenile arrest cases heard in the city’s Family Court has doubled since 1986; in 1992, more than 90 percent of the 13,000 arrests brought to Family Court were felonies. Twenty years ago the majority of cases heard in Family Court were misdemeanors, and the most common charge was “jostling”—pick-pocketing without physical contact. Today, the most common charge is group robbery—which involves violence or the threat of violence. Arrests of juveniles for possession of a loaded gun have increased by two-thirds over the past five years. And during the past two years, felony assault has grown even faster. The crisis of youth violence prompted Governor Mario Cuomo to impanel a Commission for the Study of Youth Crime and Violence and Reform of the Juvenile Justice System, which held its first hearings in January 1994.

The astounding increase in predatory behavior by the young is related to other forms of social pathology, most notably the breakdown of the family and the increasing number of children born to mothers hardly beyond childhood themselves. These chronic problems must be addressed. But there is an urgent need to control the violence on the streets and in the schools, in the projects and the playgrounds. To understand why the ferocity of crimes committed by the young is increasing even as the age of young criminals is decreasing, it is necessary to understand how the juvenile justice system has evolved over the past century.

How Family Court Evolved

From colonial times until the early nineteenth century, children “convicted of any stubborn or rebellious carriage against their parents or governors” were sent to a house of correction alongside adult criminals. But in the 1820s, New York (followed by Boston and Philadelphia) established institutions with the avowed purpose of rehabilitating children convicted of crimes (usually stealing). The movement to separate children from adult criminals inevitably led, by the turn of the century, to the establishment of special juvenile courts.

The child-savers of the late nineteenth and early twentieth century, who shaped the institutions of juvenile justice, had been schooled in the progressive child development movement. Their views were incorporated into New York State law, which by 1909 explicitly directed the courts to “consider the child not as upon trial for commission of a crime, but as a child in need of care and protection of the state,” which was to deal with him “as a wise parent would deal with a wayward child.” Of course, juvenile crime in those days was comparatively minor: a typical case would be a boy who stole coal from a railroad yard or copper fixtures from an empty building.

It was assumed that children need not be provided with legal protections like those afforded adults charged with crimes. A 1932 decision explained that “the state was not seeking to punish a malefactor” but rather “to salvage a boy who was in danger of becoming one,” and therefore “the proceeding was not a criminal one.” By the 1930s, every state in the union had established a juvenile court based on the doctrine of parens patriae, whereby the state, in what were civil proceedings, would decide on the needs of the child and protect his best interests.

But in the 1960s this doctrine was swept away. A new generation of reformers argued that without benefit of due process protections, children were being locked away in institutions that failed to care for them at all, let alone as wise parents would. In the landmark 1966. Kent v. U.S. decision, the U.S. Supreme Court found that “the child receives the worst of both worlds . . . he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”

The solution was to replace the system based on a social welfare model with a system based on a criminal justice model. Parens patriae gave way to due process, the child’s needs to his legal rights. It would develop that the needs of a juvenile brought before the law did not always coincide with the assertion of his legal rights—indeed, these goals could be in direct opposition. But before that became apparent, the Supreme Court’s In re Gault decision (which followed a year after Kent) mandated the appointment of legal counsel, known as the juvenile’s “law guardian,” in every delinquency hearing. It was a provision already included in New York’s paradigmatic Family Court Act of 1962, which brought due process and other rules of criminal proceedings into Family Court.

Like so many of the programs of the 1960s, the changes in the juvenile justice system did away with some problems only to create new ones. The criminalization of juvenile court proceedings meant that a youngster’s need for discipline, structure, and training would be superseded by his legal right to beat the system with the help of a legal advocate ready to take advantage of any violation of procedural technicalities. Too often, his law guardian’s efforts would send him back to the streets without the kind of help that might have enabled him to turn his life around.

And even though the system afforded a juvenile all the protections normally accorded criminal, defendants, it continued to insist that what took place was not a criminal proceeding. The youngster, whatever he had done, was not a defendant on trial for a crime of which he might be convicted; he was a “respondent” in a “hearing” regarding “an act which if committed by an adult would be considered a crime.” The outcome would be not a sentence but a “disposition,” which might lead not to imprisonment but to “placement.” Such euphemisms served to dilute any idea the “respondent” might have gleaned that his behavior was wrong and might entail serious consequences.

And the young offender was to be protected from any stigma that might attach to his youthful indiscretion. His court records were to be sealed; his name would not be made public. The law required the court to order “the least restrictive alternative” in placing a juvenile. In most cases he could expect to be put on probation, but even if disposition should lead to placement, he was facing no more than 18 months—the maximum time allowable for all but the worst offenses—and usually, given the shortage of beds in suitable facilities, considerably less. In sum, the juvenile was afforded all the procedure, safeguards of the adult system without the serious sanctions that make those safeguards necessary.

The system established by these changes was designed to deal with the typical delinquent of the 1950s, a boy who was a shoplifter, a petty thief, a burglar at worst; sometimes a truant who got into fights, and who, if armed at all, might have a knife or a zip gun. But as the new system was being created, enormous social changes were under way. The subsequent years saw the evolution of a new kind of young criminal—violent, amoral, a danger to himself and his community. Neither he nor the community would benefit from what went on in Family Court.

Overcrowded court calendars often meant that the youngster who had committed a relatively minor offense would be sent home to try again until he graduated to serious crime. Whether early intervention might have deterred him from further criminal activity no one would have any way of knowing, since no records were available to distinguish first time offenders from recidivists or to keep track of which interventions worked and which didn’t.

When a youngster did go to court, the disposition of a case often would depend not on fact-finding but on technicalities. A teenage boy might have admitted beating up a homeless old man, shooting a storekeeper, or sexually abusing a younger child. But the question before the court was whether his admission could be invalidated because a police officer had neglected to have him properly initial his responses to the Miranda warnings or whether the arresting officer had probable cause to search him for the loaded gun he was found to be carrying.

In 1976, in response to a public outcry over a series of particularly brute, muggings, beatings, and killings by young teenagers, the New York State Legislature passed the Juvenile Justice Reform Act. It had the avowed purpose of adding the protection of the community to the protection the court afforded the “child,” by defining certain offenses including murder, kidnapping, rape, arson, and armed robbery as “designated felonies” serious enough to warrant more serious “dispositions” than the statute had allowed. Two years later, the legislature established the category of juvenile offender. A juvenile offender—a teenager who has allegedly killed, raped, robbed with deadly force, or set fires—can be tried in New York Supreme Court like an adult, but will still be sentenced as a juvenile and placed (usually not for long) with other delinquents and juvenile offenders in a secure detention facility run by the state’s Division for Youth.

Thus, even with the get tough reforms of the 1970s, New York’s juvenile justice system still affords voting offenders the protections of the adult system without its penalties and still fails miserably either to retrain or retrain them. The system is wholly unable to cope with the consequence of family disintegration, school deterioration, and the ubiquitousness of drugs and guns—the growing numbers of younger and younger boys committing more and more violent acts against their neighbors.

Portraits of Violence

Robert is five feet eight inches tall and weighs 130 pounds. Those who know Robert describe him, whether with admiration or fear, as “bad.” When he was arrested and charged with armed robbery and assault, the case had to be dismissed because no witness would come forward. It’s no secret on the streets and in the projects that a 12-year-old like Robert, even if he is found guilty, will probably be back on those streets in less than a year.

Robert’s next offense occurred in front of several witnesses from outside his neighborhood. Emerging from a subway station, they saw Robert running down the street, dragging an old woman behind him on the slushy sidewalk. He had tried to snatch her handbag, but its strap remained wound around her arm. By the time Robert was stopped a block away, his victim’s head had hit the curb, and she had suffered a concussion, a broken arm, and numerous bruises and lacerations.

Four months later, when Robert appeared in Family Court, his victim was still in the hospital. Since it was Robert’s first court appearance, his law guardian persuaded the judge to place him in an open facility until the dispositional hearing that was scheduled to be held some weeks later. Even if the later hearing results in his being sent to a secure locked facility outside the city, he will be out within 18 months. And he’ll still be under 16 and therefore, in the eyes of the law, a child.

Fourteen-year-old Daryll decided he didn’t want to go to school one Tuesday morning. He met his friends Terry, also 14, and Wayne, 13. “We be messing around,” as Daryll later told it, “and Wayne say he know where to get a gun.” The three boys took the .22-caliber “Saturday night special,” which belonged to Wayne’s cousin, up to the roof of the building where Wayne lived, and pretended to shoot at passers-by below. Bored with that game, they walked down the street and into a park, where they confronted a lone man sitting on a bench and demanded money. Their intended victim turned out to be an off-duty transit policeman. He managed to hold on to Terry, who had dropped the gun, until help arrived. Terry eventually led the police to the others, and all three were arrested.

The charge was attempted robbery “in concert” and, in Terry’s case, possession of a loaded firearm. But the court had no way of knowing that Terry had been arrested for gun possession before, under a different name. Since juveniles cannot be fingerprinted or photographed (to avoid, as the law puts it, “the possibly stigmatizing effect of a delinquency finding”), a boy under 16 arrested for felony assault or gun possession may continue to appear at every arraignment as a first-time offender.

In keeping with the Family Court Act’s requirement of “the least restrictive alternative,” Terry was placed in an open-door group home in Brooklyn, which had neither the structure nor the supervision that Terry needed. After one weekend pass spent in the old neighborhood, he failed to come back.

The Division for Youth ostensibly operates on a belief in the power to rehabilitate even violent children. In practice, however, youths are routinely given a second chance—to commit the same crime.

The Family Court’s inability to track the records of young offenders also makes it impossible to compile statistics on the effectiveness of various modes of placement and treatment. At present it’s anybody’s guess what works and what doesn’t.

Other deficiencies in the system must be corrected as well. Present law makes no provision for arrest warrants to be served on juveniles in their homes, making it easy for an under-16 offender to elude the authorities. Even if apprehended, a juvenile suspect has a good chance of eluding the court as well. Requests for adjournments, the absence of a lawyer or a witness, crowded dockets—even the failure of the youth himself to appear within a given period—will result in dismissal of the case, even if there has been a finding of weapons possession, robbery, or assault.

When young criminals are placed, it is neither soon enough nor for long enough to have any meaningful effect on their lives. The New York State Law Enforcement Council predicts that at least three-quarters of the 2,100 youths now in Division for Youth facilities will commit fresh crimes when they are released. Even the most violent know they have little to fear under the present rules, in which the 12-year-old murderer and the 15-year-old mugger face sanctions no more severe than they would for possession of a stolen credit card.

The inadequacies of the juvenile justice system contribute to the growing problem of school violence. Serious incidents of violence rose 16 percent in New York City’s schools in 1993, in part because agencies like the Division for Youth routinely return dangerous youngsters from placement facilities to the schools without notice.

By the time a teenage boy has become habitually violent, it’s too late to expect that after-school tutoring and recreational programs, counseling, or even psychological treatment can make up for years of emotional trauma and social deprivation. And it is hard to believe that a course in conflict resolution, the fashionable remedy among educators, would make much difference to the most violent youngsters, like the student in the Delaware River town of Walton, New York, who shot his teacher in the face when she told him to stop talking in class.

Early Intervention

What, then, can be done to prevent and respond to violence among the young? Rehabilitation efforts do not seem promising for the most violent teenagers. (“They’ve never been habilitated in the first place,” observes a Family Court officer.) But early intervention seems to offer some hope of helping vulnerable youngsters before they become violent. A study by the Orange County, California, Probation Department points to the need to target such efforts carefully. The seven-year study of thousands of youths in juvenile institutions or on probation found that about 70 percent of first-time offenders were never arrested again, while some 8 percent became chronic offenders responsible for about half of the repeat arrests.

These results are strikingly consistent with the findings of the classic longitudinal studies of delinquency that followed thousands of boys born in the 1940s and 1950s from childhood into adulthood. Criminologists at Northeastern University and the University of Pennsylvania consistently found over the years that as little as 6 or 7 percent of chronic offenders were responsible for more than 70 percent of the most serious offences. This violent few began their criminal activities at a very young age and went on to become career criminals in adulthood. In the years since these studies were published, youthful offenders have become younger, more numerous, and more violent.

After analyzing the records of the small percentage of chronic violent offenders—an undertaking not possible in New York because of the confidentiality statutes—Orange County officials developed a profile to help them identify potential career criminals at the time of a first arrest. The common characteristics: problems at home (family conflict, parental death, divorce, criminal relatives, child abuse or neglect) and in school (failure, truancy, suspensions, or expulsions), a history of drug or alcohol use, and a history of delinquency (running away, stealing, or gang membership). Identifying youngsters with a pattern of these characteristics makes it possible to focus efforts on potentially dangerous children as young as eight, before they become habitual criminals. And by tracking those efforts, it will be possible to find out what kinds of preventive measures are effective.

Hector is typical of the children the program hopes to reach. At age ten, he has already been in trouble in school because of his conduct as well as his academic failures. His mother, who was 16 when he was born, has a drug problem and cannot control him. His father has been out of the picture since before he was born. He has been shunted around to various relatives, but no one wants to keep him for long. He steals money and disappears from school and home for days at a time. No one knows yet whether programs such as those under way in Orange County will prevent boys like Hector from joining the army of neglected and abused youths who slash and shoot their way through society. But the effort is certainly worth a try.

Other early-intervention programs aim to reach troubled children before they ever come before the court. One approach is suggested by a Ford Foundation program officer, who contrasts the experiences of suburban and inner-city youngsters. Middle-class parents typically steer their youngsters past the shoals of adolescence with the help of other caring adults in private, community-based after school programs. The school band or debating society, Boy Scouts and Girl Scouts, Little League team, dance class, and summer camp all serve to keep 8- to 16-year-olds busy while easing the transition from childhood to adulthood. By contrast, in poor and single-parent families in high-risk communities, many adolescents spend their time on the streets among gang members and drug dealers. Publicly funded recreational programs could help those who haven’t yet gotten into trouble, and would cost a fraction of what it would cost to place youngsters in detention facilities later.

Reforming Juvenile Justice

The juvenile justice laws need to be changed in ways that reflect the changed nature of juvenile crime. Neither a gun-toting 14-year old nor his neighbors are appropriately served by a system that defines him as a child and subjects him to sanctions designed decades ago for boys who got into fistfights. Among law enforcement personnel and the political leaders who have begun to listen to them, a consensus is forming on the changes that have to be made:

* Do away with confidentiality in juvenile court proceedings. Repeat offenders would know their past records will be considered at every court appearance, and officials would be able to conduct follow-up studies of what works and what doesn’t before investing in the various detention facilities and rehabilitation programs.

* Once fingerprinting and photographing make it possible to distinguish the first-time offender from the recidivist, intervene where there is the best chance of success—with the youngest, the least violent, the less practiced. “Kids don’t start out as murderers,” a New York City Corporation Counsel attorney points out. First offenders should be required to make restitution to their victims or perform community service. A second arrest should be followed immediately by stronger measures. For those who require placement away from home, it should include intensive remedial schoolwork and practical job training, and it should last long enough for such efforts to have some chance of taking hold.

* Impose swift and sure sanctions, whether cases are heard in juvenile court or waived to the adult criminal system. A court appearance should follow arrest without delay, preferably on the same day, before the offense has faded into the culprit’s vaguely remembered past.

* Establish mandatory sentences for repeat offenders, and require children placed in detention facilities to perform some form of work to help defray the cost of incarceration.

The aim of all such measures is, when possible, to change the behavior of the violence prone young and, at least, to restore the balance between the rights of violent youngsters and those of the community. With appropriate reforms, some of the criminal young will be chastened sufficiently to learn a skill or trade and become law-abiding citizens. Those who are unable or unwilling to change will be kept out of the community, and their neighbors will be relieved of the fear that pervades so much of urban life today. And an important message will be sent back to the streets: Some behavior puts one outside the bounds of society, and swift, certain, and painful consequences will follow such behavior.

Ultimately, stopping crime by the young may require basic changes in family life and cultural attitudes. But changes in the juvenile justice system could go a long way in controlling the current epidemic of youthful violence.

 

 

 
If we are to control the plague of violent crime committed by youths, the juvenile justice system must be reformed.
City Journal Spring 1994.
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