At a Tender Age, by Rita Kramer
Into the Abyss
At a Tender Age: Violent Youth and Juvenile Justice.
by Rita Kramer.
Holt. 309 pp. $18.95.
Rita Kramer takes you to the edge of the abyss and lets you have a long, terrifying look. The abyss is Family Court in New York City as it struggles to cope with violent, abused, and disorderly youth. The terror comes not only from seeing the violent ones but, worse, from seeing the inability of the court to do much except return them to the environment from which they came.
Because she was given extraordinary access to the Family Court and its probation department, Mrs. Kramer can show the readers of her book the reality behind the abstraction, “the underclass.” That reality includes Billy L., a twelve-year-old boy who with his companions raped and brutally beat a bag lady. It includes Tyrone B., who at the age of twelve killed an eighty-four-year-old woman while stealing her purse. It includes Jimmy P., age thirteen, and Billy, age twelve, and Frankie, age sixteen, who gang-raped an elderly woman on a bench in Central Park; Frankie and Billy had raped another woman a month earlier, but this time they succeeded in killing their victim by beating her to death with a golf club. It includes Shavod Jones, who shot a police officer and left him paralyzed. It includes fourteen-year-old Sammy S., who robbed and savagely beat another boy on a subway platform and then tried to throw him onto the tracks in front of an oncoming train.
That reality also includes some very different kinds of youngsters: a Taiwanese girl who faces a choice of being deported or being adopted by an uncle in this country who is sexually abusing her; a boy arrested for painting graffiti on public walls; an eight-year-old boy who is learning-disabled; another boy who has become addicted to crack and is headed for a life of theft; and countless children living with hostile, abusive, and alcoholic parents.
These children and others like them are sent to Family Court. It is an institution originally designed to handle very different kinds of boys from Billy L., Jimmy P., or Sammy S. For over half a century after its creation at the turn of the century, Family Court (originally called Children’s Court) was intended to serve as a substitute parent for wayward youngsters. The child-savers of the late 19th century had called for the creation of such special courts in order to keep children out of adult court, arguing that a child, “by reason of infancy,” is not criminally responsible for his acts. Since a child’s actions, by definition, lacked criminal intent, the child could not be put on trial or convicted of a crime; rather, he could be “adjudicated” a delinquent who would then receive an appropriate disposition, designed by a court acting in loco parentis.
Because all this would be done in the name of the welfare of the child, the proceedings required no elaborate legal procedures of the sort designed to protect the rights of an accused criminal. In particular, there was no reason to have a public trial—and every reason to exclude the public. In 1905 a court held that a child had no right to a trial because children were before the court not to be tried but to be saved. In 1932 a court reaffirmed this view. The children the judges and legislators had in mind when they made these decisions were truants, shoplifters, underage drinkers, and runaways. There were some serious criminals, but not many, and scarcely any who were twelve or thirteen.
In recent decades the juvenile court has undergone two waves of “reform,” the first designed to satisfy the complaints of liberals and the second intended to meet the objections of conservatives. The result has been a court system that satisfies neither liberals nor conservatives.
The first wave, which began in the mid-1960’s, was generated by people upset by the ability of juvenile courts to inflict harsher penalties on young people than adults would have received for the same offense, and to do so without any of the protections enjoyed by adult criminals. For example, a young boy named Gault was committed to a state reformatory for six years for having made lewd phone calls. If an adult had done the same thing, he would have paid a small fine and spent (at most) two months in jail. Gault earned his six-year sentence after a proceeding in which he never faced his accuser and was represented neither by an attorney nor by his own parents. When his case reached the Supreme Court in 1967, it ruled that a lawyer must be appointed to represent anyone who might be judged delinquent. The previous year, in Kent v. U.S., the Court had held that juveniles were getting the worst of both worlds, receiving “neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.”
These decisions and others following their lead extended almost the full panoply of rights to juveniles accused of being delinquent. Such youngsters now have a right to written notice of the charges against them, to be represented by a lawyer and to have a lawyer appointed for them if their parents cannot afford one, to examine and cross-examine witnesses, to refuse to testify, and to be convicted only by the same standard operating in adult courts—namely, by evidence that supports guilt “beyond a reasonable doubt.”
The second wave of reform began in the mid-1970’s. Now people were upset by the rising wave of juvenile crime, especially violent crime. Critics of the Family Court pointed out that a bag lady is just as dead, a police officer just as paralyzed, when the fists and bullets are those of a thirteen-year-old as when they are those of a thirty-year-old. The New York State legislature passed a series of laws designed to require the court to consider the protection of the community as well as the welfare of the child in deciding on dispositions. In 1976, the Juvenile Justice Reform Act designated certain felonies—murder, rape, kidnapping, arson, armed robbery—as ones for which juveniles (mostly those aged thirteen through sixteen) could receive somewhat harsher penalties. In 1978, the category of “juvenile offender” was established: any person aged thirteen through sixteen who committed a designated felony could now be tried in adult criminal courts. The legislature did nothing about violent juveniles under the age of thirteen; it is still the case that they can receive no sentence longer than eighteen months no matter what crime they commit.
Not much changed with these new measures. During the first five years after the Juvenile Offender law was passed, 5,000 juveniles were arrested in New York State for crimes that could have led to prosecution in adult court. But only 830 were convicted in adult court and only 59 percent of these were incarcerated. Some offenders got longer sentences, but most juveniles who could be tried in adult courts were still being handled by Family Court.
The juvenile court has, however, been “criminalized.” In Family Court, Rita Kramer encountered a system in which lawyers argue over rights and rules, on the apparent assumption that if there are enough of both then society and the juveniles will be better off. But the reality behind this fight makes the assumptions a sham, because the process protects neither the child nor society. A twelve-year-old murderer-rapist can receive, at most, an eighteen-month sentence. A fifteen-year-old murderer-rapist will not receive much more. An abused child can at best be sent to a poorly financed facility for foster care; in fact, he is more likely to be returned to the home where the abuse occurred on the grounds that it is “in the best interests of the child” to receive the “least restrictive” disposition and, wherever possible, to be reunited with the parents.
The system has changed from parens patriae (the state’s power of guardianship over minors and others legally unable to act for themselves) to Perry Mason; once concerned with the needs of the child, it is now concerned with the rights of the child, with some added concern for the protection of the community.
A concern for rights means one thing when dealing with a thirty-year-old, a very different thing when dealing with a twelve-year-old. In New York City, a twelve-year-old in Family Court often cannot read, so he cannot understand the documents the lawyers hand him. When asked what he wants, he generally answers, “to go home,” even though “home” may be a rat-infested apartment inhabited by a teen-age mother on drugs and visited by an abusive, alcoholic father.
The Legal Aid lawyers who provide the defense counsel (technically, “law guardians”) in Family Court believe that crime has socioeconomic causes that in turn are the result of the failures of government. (Lenore Gittis, head of the juvenile division of Legal Aid, argues that “what is needed is a federal commitment, like the Marshall Plan.”) Meanwhile, they assert that the best interests of the child are served by keeping him in the family.
Let us agree for the moment that crime is entirely caused by “socioeconomic factors”—a big supposition, but let it pass. Even so, the rights-oriented procedures of the Family Court make matters worse. If one socioeconomic cause is parental abuse, the rights orientation results in returning abused children to their abusive parents. “It’s their right.” If another such cause is bad companions, the rights orientation increases the chances that juveniles will be sent back to the neighborhood that is filled with such bad companions. “It’s their right.” If another such cause is drugs, the rights orientation makes it as easy as possible for the youngster to avoid going to an institution that is drug-free. “It’s his right.” And when a young person does end up in such an institution, such as Lincoln Hall (an attractive country home run by the Archdiocese of New York), the lawyers insist that he is entitled to go home on the bus every weekend, even though he probably won’t go home but will come into the city to score drugs, pick up girls, and get drunk. “It’s his right.”
The child needing help does not get it; the child who cannot be helped learns that the system is a joke. There are not many chances of receiving either good care or serious punishment. A few good people work in Family Court, but many lawyers and probation officers are just marking their time, at low pay, waiting for another job or retirement.
What does one do about this insanity? No one knows for certain, but Mrs. Kramer makes some reasonable suggestions, to which I would add a few of my own.
First, triage: there must be a system that administratively (not judicially) sorts out the young people entering Family Court into three groups: those who probably need help, those who probably need to be put on trial, and those who probably should not be there at all. The full panoply of judicialized proceedings in an adversarial setting is no more appropriate at the point of entry into Family Court than it would be for the emergency room at Bellevue Hospital.
Second, records: any arrest that does not lead to a delinquency finding is now sealed. As a result, the probation officers and judges do not know what is in their records, and hence often whether they are dealing with a first-time offender or a serious troublemaker. Because only the most serious offenders get fingerprinted, many of the records that are kept are unreliable; youngsters can go through court several times under several different names without anyone knowing it.
Third, care: it ought to be possible to get learning-disabled children into appropriate classrooms and the psychopathic delinquents out of those classrooms, but schools have become so enmeshed in rights and procedures of their own that it is very difficult either to help the needy or to get rid of the monsters. It ought to be possible, without first convicting a youngster of a rape-murder, to send him to a residential-care unit where he can get the help his family does not provide. There are some good facilities in New York, but the ironic result of the system’s rights orientation is that the best facilities get the worst and most hopeless cases, while the children who could benefit from such facilities are often sent back to abusive or discordant families.
Fourth, responsibility: if a person does something wrong, punishment should follow, speedily, fairly, and unfailingly. There are all sorts of punishments, ranging from community service and restitution through long-term confinement. But they are not applied systematically. It makes no sense at all to let an adjudicated offender off scot-free the first few times and then sock him with a heavy sentence after the fifth or tenth offense. But responsibility in Family Court cannot be limited to children—families must also be held accountable. In the phrase of Mark Moore of Harvard, many families are “bankrupt,” morally and legally as well as financially; such families must either be made to accept meaningful responsibility for their children or lose them. According to Mrs. Kramer, Family Court probation officers do not even visit the families of delinquents; instead the youngsters come to the probation offices and answer a few perfunctory questions. The individualistic bias of a rights-oriented system leads to the absurdity of treating a child as if he were someone in arrears on his income taxes.
Finally, start early: the most violent and destructive children usually can be identified at an early age—eight or nine—long before the Family Court gets involved. Schoolteachers usually spot them first; they need help then and there.
Mrs. Kramer would add to this list, “stop teen-age pregnancies.” I do not know enough about this aspect of the problem to say if she is right and, if so, what could be done.
If a governor or mayor wants to make a lasting difference in New York City, let him go with Mrs. Kramer and peek into the abyss of Family Court, and then set himself the task of reconstituting it along saner lines. If he is not willing to do this he should stop making speeches about crime.