Violence Redux:A Brief Legal and Historical Perspective on Youth Violence

by Marshall Croddy

To a busy urban street comes the staccato clap of automatic weapons fire. From a passing car, someone fires at a rival gang member, but misses and kills a young girl instead. The press features stories about a "mad dog" killer. Weeks later the young suspect too is dead, murdered by rivals.

On an empty field late at night, the sounds of yelling and cursing can be heard. Two young men struggle in a drunken brawl after a weekend party. One falls to the ground mortally wounded with a skull fracture. The other is arrested for murder.

Two young college men, 18 and 19 years old and of upper middle class backgrounds, kidnap a 14-year-old boy for ransom and brutally kill him. They are eventually captured and tried for their senseless crime.
Stories such as these confront us on a daily basis. But these particular stories are yesterday's news. The first took place in the early 1930s on the streets of New York; the second occurred in Springfield, Illinois, in 1837; and the third is based on the 1924 Leopold and Loeb murder case. They serve to illustrate a sad truth about America's past and present: violence perpetrated by and against young people has always been part of the American experience. And, in spite of overall reductions in violent crime rates over the past few years, the juvenile violent crime rate is still depressingly high.1

Violence and Youth
If one watches the local television news, it is easy to get the impression that violence in America is not only a bigger problem than in the past, but that it has reached crisis proportions. Yet many indicators show that violent crime in America is actually decreasing. For example, the National Crime Victimization Survey (NCVS) shows that the percentage of households experiencing some kind of violent crime has generally declined since 1975. According to the Uniform Police Report (UCR), the murder rate has also dropped in recent years.
ÊPolls have demonstrated that people's perceptions about crime and violence do not necessarily reflect real trends. For example, in the mid-1990s, polls started indicating a greater public concern over crime and violence, when the actual rates had leveled off and were declining.

Experts offer various explanations. According to some, concerns over violent crime are somewhat constant, but at various times get overshadowed by other issues. Others suggest that recent concerns over violent crime are based less on personal experience or actual crime rates, and more on perceptions fueled by the media, which tend to highlight violent and dramatic crimes.

Many older people tend to think that today's youth are more likely to break the law than young people in the past, and are more violent than ever. How accurate is this perception? In 1970, youth 18 and under accounted for 26 percent of all arrests, while by the early 1990s, this figure had actually dropped to 16 percent. However, beginning in the mid-to-late 1980s, experts began noticing a nationwide increase in the rates of violent crimes against youth, especially those 12 to 15 years old. More disturbing, these trends occurred while the population of teenagers was on the decline.

Beginning in 1985, the national rate of youth arrests for violent crime increased in every year except 1992, 1994 and 1995. Also, beginning in 1985, there was a disturbing increase in the adolescent murder rate-although it too started to decline in the early 1990s. In 1995, the arrest rate for violent crime by 10- to 17-year-olds was 622 per 100,000, down from a peak of 655 per 100,000 in 1990. These rates are not too different from overall rates for violent crime, which in 1995 were 515 per 100,000.2

Perhaps the most important consideration about youth crime is how to head it off. Delbert S. Elliott, a researcher in the field of youth violence, notes that according to self-report studies, the highest rates of participation in violent acts are at ages 16 to 17. On the other hand, if a young person does not get involved with violence before the age of 20, he or she is unlikely to do so. And, while 80 percent of young offenders stop being violent by the age of 21, the remaining 20 percent commit a high percentage of violent crimes.

Even more importantly, teenagers are often the targets of violence. On average, teens are much more likely to be victims of violence than are adults or senior citizens, with African American males in the age range of 16 to 19 being especially vulnerable. 3

The Gang Problem
One of the chief risks for youth in regard to violence is being drawn into a gang. The problem is not new. Historically-and while not unknown in rural areas-gangs involving juveniles have always been a significant factor in large urban areas. As early as 1791, children's gangs were noted in Philadelphia. During the mid-19th century, well-organized adult gangs and their youthful cohorts became a serious problem in New York and other cities on the eastern seaboard. As the urban population swelled from the twin influences of industrialization and immigration, job seekers from the countryside and from abroad who could not find work often fell in with what would now be recognized as youth street gangs.4
In one memorable affray in 1903, hundreds of young men from three different predominantly Irish gangs-the Eastmans, the Five Pointers and the Gophers-waged an hour long gun battle on New York's East Side. Only after police arrived in massive force did the fighting end, leaving three dead and seven wounded on the streets. The incident, only one in a series that terrorized the East Side for many years, was sufficiently deadly and notorious that Tammany politicians themselves were forced to get involved to negotiate a peace among the warring factions.5

The New York street gangs thrived and evolved throughout the early decades of the 20th century. Young men living in crowded and decaying tenements sought refuge and companionship on the streets. There, from very early ages, they formed cliques with other like-situated youth, bonding together for protection, friendship, and mischief making. Many were products of families cut off from the social stability of the old communities from which they came, some stressed by cultural and language alienation as well as poverty. The pocket communities where they lived-the Lower East Side, parts of Brooklyn, the Bowery-were also economically and socially stressed, reducing the reach of social control.

During Prohibition, these cliques proved a potent recruiting ground for older gangs cashing in on the artificial scarcity and high demand economics of alcohol. The result was a murderous war for territory and vice control by gangsters in cities from New York to Chicago.6 Such crime bosses as Charles "Lucky" Luciano, Al Capone, and Benjamin "Bugsy" Siegel all emerged from the street gang milieu, along with hundreds of less famous figures. Of course, the vast majority of youth from these and similar backgrounds did not become violent criminals, but rather productive members of society.

A survey of modern research suggests that many of the same factors that spurred the development of violent gangs in the early decades of this century are at work today:

When communities are weakened by demographic and economic shifts that concentrate poverty and destabilize their institutions, conventional processes of socialization and control fail. When intergenerational relationships break down or are distorted by such developments, the likelihood that gangs will flourish and compete with one another, often with deadly consequences, is enhanced. 7
Of course, the object of competition between gangs today is profit from illegal drugs rather than outlawed alcohol. It is also arguable that today's gang violence is more widespread, more deadly, and more random than in the past-though even now it would be hard to imagine a melee like some that took place in New York at the turn of the century.

But youth gangs continue to thrive in areas of poverty and social destabilization. Today, black and Chicano gangs operate in communities cut off from the mainstream economy and blighted by the erosion of the old manufacturing base. White skinhead groups bond together in hate on the false assumption that other ethnic groups are responsible for a lack of perceived opportunity in their own rust belt and rural environments.8 Asian youths and others whose families seek to cope in a societal milieu different from their own traditions form part of the mix.

As the above examples suggest, there is little evidence from national self-report studies for any difference in predisposition to violence by race, or presumably ethnicity, once social class is taken into account.9 And, as in the past, only a tiny minority of youth become chronic offenders; unfortunately, it is chronic offenders who account for about two-thirds of all violent offenses.10

Solutions to America's problems with violence in general, and youth gangs in particular, have proven illusory. Youth violence is after all a multi-faceted and multi-causal problem. Research points to a variety of interactive factors affecting individuals that can give rise to violence, including psychosocial development, neurological and hormonal differences, and social processes.11 Such factors defy simple solutions, and as with cancer, there are no magic bullets.

Addressing social factors is particularly difficult and controversial. How does society solve the problems of poverty, family dysfunction and child abuse, alcohol and drug addiction, racial discrimination, and American culture's fascination with violence? Proposed or tried solutions today face prickly political debates over governmental versus individual responsibility, welfare versus workfare, and the federal versus state role in dealing with juvenile crime and violence.

But it is the historical and ongoing debates over rehabilitation versus punishment, and when children should be treated like adults, that have had the most effect on how we deal with juvenile offenders.

Common Law and Juvenile Crime
The origins of these debates can be traced to our English jurisprudential roots. In the Middle Ages, a period characterized by much shorter lifespans, children were expected to work by the age of 5 or 6. By ages 12 to 14, youths were often married, and few people lived past 40 years old. It was the common belief that anyone old enough to commit a crime was old enough to be punished for it, often in the same harsh manner as adults. In two notable cases from the early law of England, a 13-year-old girl was burned to death for killing her mistress, and an 8-year-old boy was hanged.12
By the 16th and 17th centuries, these attitudes began to soften. It was also during this period that the common law developed the notion of parens patriae, that is, that the monarch was the parent of the country and should intervene to protect children if necessary.

During the 18th century, another concept evolved that is with us today: the idea of intent. Before a person could be punished for a crime, he or she not only had to commit a forbidden act that resulted in harm, but also had to intend to commit that act. The concept of intent raised a troubling issue in regard to children. At what age were they able to form intent? The common law relied on Christian beliefs, which held that at age 7, children reached the "age of reason" and could tell right from wrong, thus making them capable of forming criminal intent.

By the late 18th century, English common law judges routinely dismissed criminal cases against children under 7, and put the burden on the prosecution to prove that children between 7 and 14 were capable of forming criminal intent. In this, prosecutors were often successful. In a 1796 case, for example, the prosecution successfully argued that a 10-year-old defendant had formed the requisite criminal intent in a murder case because the boy had hidden the victim's body and thus demonstrated that he knew he had been wrong to kill.

If tried and convicted, children were treated in the same manner as adults. This could mean a long term in adult prison or jail, flogging, and, especially, hanging-a real possibility given the long list of capital offenses. In actual practice, the courts showed leniency toward the youngest offenders. For example, between 1801 and 1836, while English courts sentenced 103 children under 8 to death, none were actually executed.

In America throughout the 19th century, the age of criminal culpability gradually increased. Today, though states vary, the early teens are generally established as the basic age after which one can be held accountable for criminal acts.13 For example, in California, children under the age of 14-in the absence of clear proof that at the time of committing the charge against them they knew of its wrongfulness-are not capable of committing crimes.14

Separate Justice for Juveniles
Unfortunately, throughout the first decades of the 19th century, children who were convicted of crimes ended up in the same prisons with adults. Through contacts with older criminals, young offenders often learned how to perfect their criminal lifestyles, and were often abused by the older inmates.
By the 1820s, American reformers-especially in the cities-began calling for alternatives to adult punishment, and for ways to care for the increasing numbers of street waifs. In 1824, using parens patriae as an underlying rationale, New York City established the nation's first reform school (called a House of Refuge) for abandoned, deprived, and criminal children. Its program of religion, education, and hard work was copied in most urban areas, and became the model for how America treated juvenile offenders well into the 20th century.

Unfortunately, the system had significant drawbacks. Usually, the institutions were run by private organizations on a profit motive, the labor of the young inmates being the primary capital. Often, moral development and education got sacrificed for greater productivity, and children spent less and less time in classroom and chapel, and more time in the workshops. Some institutions became notoriously corrupt, and conditions deteriorated. Moreover, the system of mixing offender populations with deprived and abandoned young people had predictable results. Reform schools, like the adult prisons before them, soon developed the reputations of being "universities of crime."

Trying to address this problem, turn-of-the-century Progressives fueled the creation of a new juvenile justice system that would lead to the one we know today. The spark of reform was lit when the Chicago Reform School burned down in the Great Fire of 1871. It had been so corrupted by vice and crime that many judges had refused to send any but the most hardened juvenile offenders there, preferring instead to sentence most youth to adult jails, which offered a safer environment.

After the fire, the city government refused to provide the funds to rebuild it. The Chicago Women's Club developed a school for young people in the regular jails, and helped establish a city police station for women and children arrestees so they would not have to mix with adult male criminals. In the process, they began the movement for a completely new juvenile justice system.

In 1899, their work bore fruit when Illinois opened its first juvenile court, the flagship of an entirely separate system of justice for juveniles. Rather than punish young people as criminals, it was designed to treat and rehabilitate them. Rather than mixing children with hardened offenders, it would create institutions to meet the specific needs of offenders and of abused or neglected children. Fundamentally, the Progressives believed that criminality among those of tender years was a product of social and family causes, and that delinquency should be treated more like a disease than a crime. Within 25 years, all states but Maine and Wyoming had passed laws based on the Illinois model.

Contemporary Views of Juvenile Justice
Until the mid-1970s, both the assumptions behind and the presumed effectiveness of the juvenile justice system went largely unchallenged. Then the public mood shifted. A perception arose that juvenile delinquency was getting worse, and that the system was coddling young criminals. This outlook may have been fueled by high rates of recidivism, as well as by statutory anomalies that allowed juveniles to serve much less time for violent crimes, even murder, than would adult felons.
A "get tough" mood swept the country, which translated into legislative action largely designed to increase juvenile sentences and try more juveniles as adults. From 1978 to 1988, these changes increased the lock-up rate for juveniles by nearly 50 percent. Today, many authorities on juvenile justice note a virtual abandonment of rehabilitation as the primary emphasis in the system, and a much greater focus on punishment and incapacitation.15

In addition, many states began lowering the age at which young people can be tried as adults, particularly when the juvenile is accused of a violent crime. In New York, all persons 16 and over charged with criminal offenses are processed as adults. Forty-eight states now have laws permitting juveniles to be waived to the adult system. Vermont allows a waiver at the youngest age: 10 years old. In an eerie reminder of the way things once were, an increasing number of teenagers are being convicted and serving hard time.16

It is questionable whether such practices will significantly reduce the rates of juvenile violent crime over the long run. By 1991-and in the face of "get tough" policies-juvenile homicides, forcible rapes, and aggravated assaults rose to the highest levels in American history (then declining in most years afterward). Experts offer a variety of explanations. Some argue that juvenile offenders-often incarcerated in overcrowded, and sometimes gang-ridden, facilities-come out more likely to commit violent crimes than when they went in.17

Others suggest that the threat of incarceration does little to deter those juveniles most likely to commit violent crimes. They see the psychological and social pressures to be violent as overriding the operation of rational choice. They also suggest that incarceration, particularly with regard to gang members, has become almost an accepted part of the lifestyle.

Still others argue that rates for violent crime-and, indeed, crime in general-are resistant to any kind of intervention, and are simply tied to demographics. According to this theory, the greater the percentage of males between the ages of 15 to 25 in the population, the more likely it is that crime rates will go up.

The question of whether society is justified in emphasizing youth violence has also been raised. In a 1996 book, Scapegoat Generation: America's War on Adolescents, researcher Mike Males cited the decline in violent youth crime, particularly in Los Angeles and California. He also provided statistics suggesting that other age groups and types of people are just as violent. Though controversial, Males argued that the perception of a generation of violent youth has been used by the media to "demonize" young people.18 He concluded in an interview: "We do not stereotype adult groups that way. Young people deserve the same fairness."

The problems with the juvenile justice system have led to a new round of calls for reform. Proposals include earlier intervention, providing alternatives to incarceration for the vast majority of offenders, and spending more money for probation, counseling, and education programs.19

A number of these ideas are reflected in a new comprehensive strategy for dealing with serious, violent and chronic juvenile crime, offered by the Office of Juvenile Justice and Delinquency Prevention. It outlines several principles for addressing the problem:

Identifying and controlling the small group of serious, violent, and chronic juvenile offenders who have committed felony offenses or have failed to respond to intervention and nonsecure treatment and rehabilitation at the community level. 20
This plan seemingly seeks a middle ground, in that its elements address both the research on the causes of violent delinquency and the need to promote public safety by incapacitating the most dangerous offenders. President Clinton's proposed 1997 youth crime bill incorporates several of these strategies by increasing penalties for gang-related violence while also launching new prevention programs.21

Not everyone supports the Administration's "reform" approach. The new Republican-sponsored House Bill, titled the Juvenile Crime Control Act of 1997, offers $1.5 billion in block grants to states that adopt tougher measures when trying juveniles in their jurisdictions. States would have to assure that juveniles of 15 years or above who commit serious violent crimes would be tried as adults; that penalties for repeat juvenile offenders would be increased; that juveniles who commit second crimes would have their records made public; and that parents who fail to supervise convicted juveniles would be subject to court sanction. In addition, the legislation would allow convicted juveniles in some cases to be sentenced to adult prisons.22

It remains to be seen whether in an era of shrinking government, new approaches or the "get tough" philosophy will prevail. In truth, both will probably entail greater expenditures of public money into the underfunded juvenile justice system. In either case, it is likely that the debate will continue as it has throughout our history.

1. Office of Juvenile Justice and Delinquency Prevention, Comprehensive Strategy for Serious, Violent and Chronic Juvenile Offenders, Program Summary (D.C.: U.S Department of Justice, 1994), 1-5.
2. U.S. Department of Justice, Office of Justice Programs, Criminal Justice Statistics Online, Table 4.3 (1995).
3. Ibid.
4. Marshall L. Croddy et al, Criminal Justice in America (Los Angeles: Constitutional Rights Foundation, 1994).
5. Herbert Asbury, The Gangs of New York (New York: Knopf, 1928), 279-282.
6. See, for example, Robert Lacey, Little Man (New York: Little Brown, 1991) and Laurence Bergreen, Capone (New York: Simon & Schuster, 1994).
7. Albert J. Reiss, Jr., and Jeffery A. Roth (eds), "Perspectives on Violence," Understanding and Preventing Violence (D.C.: National Research Council, 1993), 145.
8. Robert K. Jackson and Wesley D. McBride, Understanding Street Gangs (Sacramento, 1985).
9. Delbert S. Elliott, Youth Violence: An Overview (Boulder, CO: Institute of Behavioral Science, 1994), 4.
10. Office of Juvenile Justice and Delinquency Prevention, 5.
11. Reiss and Roth, 102.
12. M. Cherif Bassiouni, Criminal Law and Its Processes (Springfield: Charles C. Thomas, 1969), 87.
13. Ibid.
14. California Penal Code, Part 1, Title 1, Section 26 (1983).
15. Ron Harris, "A Nation's Children in Lockup," Los Angeles Times (8/22/93): A1.
16. Croddy, 217.
17. Harris, A20.
18. Mike Males, Scapegoat Generation: America's War on Adolescents (Monroe, ME: Common Courage Press, 1996).
19. Edward Humes, "Lessons in Juvenile Injustice," Los Angeles Daily Journal (6/12/96): 6.
20. Office of Juvenile Justice and Delinquency Prevention, 9.
21. James Risen, "U.S. Violent Crime Drops Record 7%," Los Angeles Times (6/2/97): A1.
22. Jerry Gray, "Bill to Combat Juvenile Crime Passes House," The New York Times (5/9/97): A1.

Marshall Croddy, a lawyer, is the Director of Program Materials Development for the Constitutional Rights Foundation, and the author of numerous educational publications and texts in areas of law and civics, including the recently published The Challenge of Violence. This publication, which is accompanied by a Teacher's Guide, is described on page 289 of this issue of Social Education.