Friday, December 03, 2021

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B. The Super-Predator War

The first section of this Part describes the emergence of the iconographic image of the adolescent super-predator as a symbol of juvenile crime in the United States. It then discusses the concomitant adoption of punitive juvenile justice policies throughout the country. Next, it details the ways these policy changes have impacted youth of color.

1. The Coming of the Adolescent Super-Predator

It is remarkable that the proponents of the Wars on Crime and Drugs would turn their sights to adolescents in the early 1990s, especially when one considers the history and purpose of the U.S. juvenile justice system. Established at the turn of the twentieth century, this country's juvenile justice system rested on the prevailing Progressive philosophy that the system should treat, rather than punish, child offenders. In the case of children, the belief was that delinquent acts were not borne of malevolence, but rather were a product of social forces largely beyond the children's control. The Supreme Court emphasized that [t]he child was to be treated and rehabilitated, and the procedures, from apprehension through institutionalization, were to be clinical rather than

The U.S. juvenile justice system has experienced shifts in penal philosophy over time. During the first half of the twentieth century, a belief in rehabilitation and individualized treatment gave way to concern over the indeterminate nature of dispositions. Juvenile offenders often received the worst of both worlds . . . neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children, the Supreme Court lamented in 1966. In response, the Court imported a series of key constitutional safeguards from the adult system during the 1960s and 1970s, including the rights to notice, to counsel, to confront and cross-examine witnesses, to a fair and impartial hearing, and to protections against self-incrimination. With these changes, however, came increased formality and an ideological shift in focus from the best interests of the offender to the gravity of the offense itself.

Nonetheless, few anticipated the changes of the 1990s. While the push for more punitive juvenile justice policies had already begun in the late 1980s as members of both parties witnessed the political benefits of getting tough on crime, a few high-profile incidents aided these efforts. The most notable of these was the infamous Central Park Jogger case. In April 1989, a young, white female jogger was brutally beaten, raped, and left to die in Manhattan's Central Park. Within hours, police arrested and charged a group of seven African-American and Latino teens ranging in age from fourteen to sixteen with rape, assault, and attempted murder. Almost immediately, a new term was coined: the incident was part of a new adolescent practice known as wilding. Local politicians seized on the incident. In the summer of 1989, New York City Mayor Edward Koch called for the death penalty for wilding, deemed the seven suspects monsters, and complained that the juvenile justice system was too lenient. A similar response came from mayoral candidate David Dinkins, who responded with a call for a new antiwilding law.

As crime rates continued to climb in the early 1990s, the calls for stiffer penalties for juvenile offenders reached a fever pitch. Unlike the Wars on Crime and Drugs, however, there was no executive clarion call to arms. The closest thing to a declaration came in the form of a 1995 magazine article. In The Coming of the Super-Predators, former Princeton University political science professor John DiIulio warned of an oncoming tsunami of adolescent super-predators, morally-impoverished youth who had grown up surrounded by deviant, delinquent, and criminal adults in abusive, violence-ridden, fatherless, Godless, and jobless These were kids who have absolutely no respect for human life and no sense of the future . . . . stone-cold One year later, DiIulio projected that by the year 2010 there [would be] approximately 270,000 more juvenile super-predators on the streets than there were in In My Black Crime Problem, and Ours, Professor DiIulio predicted that the black crime rate, both black-on-black and black-on-white, is increasing, so that as many as half of these juvenile super-predators could be young black

The news media ran with this narrative. In a headline announcing that the super-predators have arrived, Newsweek asked, Should We Cage the New Breed of Vicious Borrowing rhetoric from the Wars on Crime and Drugs, the theme of moral depravity again played a central role. Kids Without a Conscience? asked the cover of People magazine in June 1997. The style of news reporting that dominated the era only reinforced the message. In its coverage of juvenile offending, news media often relied on a technique called episodic framing. Instead of placing an individual incident in its broader statistical, political, or socioeconomic context, the news media frequently reported juvenile offenses as discrete events, which, social scientists claim, encourages viewers to associate the conduct in question with the moral deficiency of the individual, rather than her broader social milieu. When the topic is crime, episodic framing galvanizes support for more punitive crime policies.

By all indications, the American public was listening. Even as national crime rates were dropping steadily, a flurry of public opinion polls conducted in the late 1990s revealed the American public's fear of violent juvenile offenders. Polls also revealed that the public substantially overestimated the likelihood of being victimized by a person of color. Nearly twice as many respondents to a 1994 poll, for example, believed that they were more likely to be victimized by a perpetrator of color than a white perpetrator when, in reality, the vast majority of crimes are intra-racial.

Public opinion polls also revealed a concern that America's youth had lost their moral compasses. A 2001 report that the Frameworks Institute published, which compiled information from dozens of surveys on perceptions of youth, was particularly illuminating. Among the findings the study reported were the following: in response to a 1998 survey, only 16% of Americans said that young people under the age of 30 share[d] most of their moral and ethical In a separate 1998 poll, when asked what comes to mind when they think of teens, nearly three-quarters of respondents gave negative descriptions, such as rude, wild, or irresponsible. Eighty-two percent of adults who responded to a 1998 poll felt that youth [did] not have a strong sense of right and wrong, up from 46% in 1965 and 34% in 1952. Not surprisingly, respondents overwhelmingly endorsed punitive responses to juvenile offending.

Ostensibly to ameliorate these concerns, lawmakers responded. Between 1992 and 1997 alone, legislatures in forty-five states enacted or enhanced waiver laws that made it easier to transfer juvenile offenders to the criminal justice system. Thirty-one states gave both juvenile and criminal courts expanded sentencing authority over juvenile offenders, forty-seven states enacted laws that modified or removed traditional juvenile court confidentiality provisions by making records and proceedings more open, and twenty-two states expanded the role of juvenile crime victims in the juvenile justice process. California's Proposition 21 is among the harshest of these laws. Proposition 21 requires adult trials for juveniles as young as fourteen years of age if they have been charged with a list of enumerated felonies. It also transfers absolute discretion from judges to prosecutors to determine which juveniles should be tried as adults, weakens confidentiality laws, toughens gang laws, and expands California's three-strikes law for both juveniles and adults. Ironically, voters ratified the referendum in 2000, a time when arrest rates among juveniles were hitting their lowest point in thirty years.

The net effect of these laws was astounding. Between 1985 and 1994, the number of delinquency cases waived to criminal court climbed 83%, from 7200 to 13,200. In 1988, approximately 1600 juvenile offenders were confined in adult jails; by 1997, there were more than 9000. By some estimates, nearly 2000 juvenile offenders in adult jails were serving sentences of life without the possibility of parole. To put this in perspective, no other country in the Western world sends juveniles to prison for life, and by 2005, every country except the United States and Somalia had ratified the Convention on the Rights of the Child, which explicitly forbids life imprisonment without possibility of release for offenses committed by persons below eighteen years of

In the late 1990s, Congress jumped into the fray. In 1997, the Senate Judiciary Committee took up the Violent and Repeat Juvenile Offender Act of 1997, which proposed multiple get tough measures for juvenile offenders, including a provision that lowered the minimum age for trial of capital offenses from eighteen to sixteen. Senator Orrin Hatch, one of the Act's sponsors, explained that [p]eople are expecting us to do something about these violent teenagers. We've got to move on Although it was never put to a vote in 1997, the Act resurfaced in 1999 after the shootings at Columbine High School. The proposed Consequences for Juvenile Offenders Act of 1999 again included multiple measures to make it easier for prosecutors to try children as adults. Although it subsequently died in conference, the Act failed only because of an attached provision that strengthened firearm control laws. Ironically, while Congress was prepared to exact harsh punishments on juveniles in the name of public safety, it was not willing to adopt laws that would keep firearms out of their hands.

2. Disproportionate Minority Contact

These so-called get tough laws of the 1990s had by far the harshest impact on youth of color. While social scientists had known for decades that adolescents of color were more likely to be arrested, detained, formally charged in juvenile court, transferred to adult court, and confined to secure residential facilities than their white counterparts, these disparities soared during the 1980s and 1990s. Statistics suggest that four out of five youth newly held in detention between 1983 and 1997 were juveniles of color. The transfer of juveniles of color to adult court was equally, if not more, disproportionate. A 2000 study, for example, showed that 82% of youth charged in adult court in eighteen of the largest jurisdictions in the country were youth of color and that African-American (43%) and Latino (37%) youth were more likely than white youth (26%) to receive a sentence of incarceration. These numbers persist even today.

Research suggests that these disparities cannot be attributed entirely to crime commission rates. While differential offending contributes to disproportionality, research shows that the statistical differences between the offending patterns of white youth and minority youth are simply not great enough to account for the racial disparities observed at any of the processing points in the juvenile justice system. To date, of the hundreds of multiple regression studies that have been conducted on disparities in juvenile justice, nearly two-thirds have documented a race effect on decision-making, which suggests that race-neutral criteria cannot, by themselves, account for the disparities observed in processing outcomes. In other words, but for the presence of race bias, overrepresentation would not exist to the same degree.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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