Chapter 9
1. What did Megan’s Law mandate?
2. What are sex offenders required to do under the Campus Sex Crimes Prevention Act of 2000?
3. What is the goal of civil commitment laws?
4. According to the authors, what does the “dark field” imply?
Chapter 10
1. Who were the muckrakers, and what was their purpose?
2. What did the Sherman Antitrust Act (1890) try to do?
3. What did the Savings and Loan debacle highlight?
4. What did the Dodd-Frank Act specify?
Chapter 11
1. What are “magic bullets”?
2. What does social disorganization theory posit?
3. What is the RICO statute?
4. What type of policy is referred to as the “new Jim Crow?”
Chapter 12
1. What two trends led to the creation of the first juvenile court?
2. What does the “once waived, always waived” law state?
3. What is a “reverse waiver?”
4. What is a de-certification hearing?
Chapter 9
The Back Story on Sexual Offenders
In recent history, sex offenses, particularly those committed against children, often generate an intense reaction, which is observable in media coverage (Leon, 2011a). Few people would disagree that serious and repeated sex offending behavior is a severe social problem requiring attention (Wright, 2009). This attention and response on the part of society is typically in the form of passing legislation that outlines sanctions and community-based policy practices aimed at keeping sex offenders either incapacitated or closely supervised so that they can no longer victimize another child or adult. In theory, these laws are intended to prevent known sex offenders from committing further crimes (known as “recidivism”) as well as provide safety and support to victims of sex offenses (Center for Sex Offender Management, 2008; Cohen & Jeglic, 2007; Ohio Department of Rehabilitation and Correction, 2007; Wright, 2009). However, the realities of these laws often deviate from the intended aims because of legislation and policies enacted irrationally without consideration of the potential unintended consequences of such overly restrictive, punitive actions (Farkas & Stichman, 2002; Mercado, Alverez, & Levenson, 2008).
Historians and criminologists argue about the relationship between ideas about sex crimes and their impact on policy and practice, but archival data show that since at least the 1920s, popular beliefs regarding specific problems of sex offenders and appropriate solutions have remained largely the same (Leon, 2011a). In particular, the public has long believed that sex offenders exhibit both moral degeneracy and compulsive sickness, and that such a confounding pathology requires preventative detention (like civil commitment) to stop any escalation into more serious crimes. While brief spurts of interest in treatment for sex offenders appeared in the 1960s, the general public believes that sex offender treatment is pointless.
One area of change involves the recognition of victims. Social movements have drawn attention to the general tendency to discredit victims and to dismiss women and children who protest their sexual abuse (Rose, 1977; Whittier, 2009). In what we might think of as the “bad old days” (although in some jurisdictions and among some practitioners these dismissive attitudes still prevail), the law and its agents sent the message that sexual violence and sexual offending were really “not so bad” (Frohmann, 1997). Professional discretion was used to divert some sexual offending entirely from the system, or to provide nuisance-worthy slaps on the wrist, while other offending was diverted into treatment, and a fraction of offenders received “deserved” punishment equivalent to other serious criminal offending. This shameful legacy is part of what creates the particular salience of contemporary efforts to prosecute sex crimes and to provide adequate punishment and protection for victims. As the experiments with treatment and diversion for sex offenders have failed in often dramatic ways (Leon 2011a), crime victim advocates use these examples to call for crackdowns on offenders. This is evident in the frequent passage of laws named in honor of child victims (Simon, 2007).
The criminal justice system and the larger political system continue to function against this historical backdrop. Part of addressing this legacy of leaving victims unprotected has meant efforts to increase capacities within criminal justice, such as improved training for police and prosecutors who respond to sex crime victims (Horney & Spohn, 1991), and the collection and attempts to process DNA evidence in the face of staggering backlogs in rape kits (Telsavaara & Arrigo, 2006). While these improvements are real and significant, far less has been achieved in terms of increased accountability for offenders (Beichner & Spohn, 2005). Specifically, despite public awareness and political pontificating on behalf of sex crime victims, convictions for forcible rape have remained relatively constant (Bachman & Paternoster, 1993), while “other sex offenses” (the category that counts all nonrape sex offenses) have increased (Leon, 2011a). Prosecutions for offenders who know their victims are less likely than for the stereotypical offense by a stranger (Tjaden & Thoennes, 2006); it is also true that sentences for non-stranger assailants remain shorter than sentences for stranger perpetrators (McCormick, Maric, Seto, & Barbaree, 1998), which reflects the persistent impacts of rape and sexual assault myths (e.g., widely accepted false beliefs that excuse sexual assault; see Burt, 1998).
Although most sex offenders are still not held accountable (see Figure 9.1, later in this chapter), the fraction who are charged, arrested, and convicted face much more stringent restrictions than in the past. While fears about sex criminals have long held purchase in the public's imagination (Freedman, 1987), today the kind of sexual offending that qualifies a person for inclusion in the category of dangerous sexual offender has spread to include offenders who in previous generations would have been handled informally or through therapeutic intervention (Leon, 2011a, pp. 43–44). For example, in the 1960s, prosecutors who were willing to plead down to misdemeanors did so knowing that the offenders could be civilly committed (i.e., using another form of social control to compensate for a lesser criminal charge). This type of discretion at the front end is now severely curtailed. In addition, more cases make it into the criminal justice system. Mandated reporting laws now trigger law enforcement proceedings in cases which, in previous eras, would have remained unreported. Although most of these new laws that reduce discretion and widen the net for sexual offenders originated in the states, eventually federal laws mandated compliance if states wished to continue receiving federal money for criminal justice. Altogether, this leaves little room for attorneys and judges to challenge predominant biases or to support alternative sanctions unless there is robust evidence against future dangerousness or deviance.
The Current State of the Policy
The current state of sex offender legislation differs from the past in that it shifted from a diverse set of tools that were used to divert and to punish sex offenders in varying ways, to a more or less one-size-fits-all policy of strict supervision of convicted offenders (both adult and juvenile) following their release back into the community. The intensive supervision of sex offenders is justified through high profile cases involving convicted (or alleged) sex offenders committing new sexual offenses against children, which include kidnapping, violence, and even homicide. The public's horror and outcry from these tragedies is often cited in the today's federally mandated sex offender notification and registration legislation as well as in many of the current local ordinances, including Megan's law and Jessica's law, to name a few.
Washington was the first state to enact legislation that regulated the management and supervision of sex offenders (Wright, 2009). These laws were passed in response to two cases of sexual assault and homicide against children. The first involved a sex offender named Wesley Dodd who molested, tortured, and ultimately killed three young boys. The second case involved an offender named Earl Shriner who kidnapped a 7-year-old boy, molested him, cut off his penis, and left him for dead. Both offenders had already served sentences for prior sex offenses, and both admitted that they planned to commit these offenses on their release from prison. In response, Washington's Community Protection Act of 1990 detailed new policies for the monitoring of sex offenders once they reenter the community following incarceration (Wright, 2009). While several states adopted similar legislation following the Washington cases, the first federal law of this kind was not enacted until 1994.
The Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994 (Office of Justice Programs, n.d.) was the first federal law to require a statewide sex offenderregistration system. Jacob Wetterling was an 11-year-old boy who was abducted near his home in St. Joseph, Minnesota, by a masked stranger in 1989. While his body has never been found, his abduction closely mirrored the case of another boy who was abducted and sexually assaulted earlier that year, leading law enforcement to believe they were in search of a repeat sex offender. Jacob's mother, Patty Wetterling, actively fought for improved sex offender registration requirements in Minnesota and was appointed to a governor's task force to more formally fight for this legislation. In 1994, the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act in honor of Jacob and his family. This Act amended the Violent Crime Control and Law Enforcement Act in order to mandate states to use 10% of their budget for law enforcement to establish a statewide sex offender registration system (Ohio Department of Rehabilitation and Correction, 2007; Sample & Bray, 2006). Sex offenders were required to provide their residential addresses to law enforcement, which then entered and maintained this information in a database (Ohio Department of Rehabilitation and Correction, 2007). This Act applied to all sex offenders equally, regardless of the type of offense they had committed, or their risk to reoffend.
In 1994, twice-convicted pedophile Jesse Timmendequas lured 7-year-old Megan Kanka to his home with the story that he had acquired a new puppy and that she was invited to see it. Timmendequas then sexually assaulted and murdered Megan (Sample & Bray, 2006). Although most known sex offenders will not commit a new sex crime, and only a tiny fraction commit homicide (Langevin, 2003; Zimring & Leon, 2008;), these crimes against children were given widespread media attention and prompted citizens to demand harsher monitoring of all sex offenders released from prison. Kanka's mother fought to change the existing law, arguing that the registration requirements outlined in the Jacob Wetterling Act were not sufficient to ensure community safety (Wright, 2009). In 1996, Megan's Law (named after Megan Kanka) required that registration information (originally required to be collected from offenders under the Jacob Wetterling Act) now be available to the public. This is known as community notification. As of the year 2000, all fifty states had developed a sex offender registry accessible to the public (Sample & Bray, 2006). Megan's Law also required that states have procedures in place for disseminating information to citizens regarding certain sex offenders who live or work in their communities (Ohio Department of Rehabilitation and Correction, 2007). Active community notification (when police distribute information about particular offenders) is usually reserved for offenders designated the highest risk to reoffend. However, public access to sex offender registration information is available for all sex offenders, regardless of their risk level (Cohen & Jeglic, 2007), including information on juveniles (Leon, Burton, & Alvare, 2011).
In 1996, the Pam Lychner Sexual Offender Tracking and Identification Act was also enacted at the federal level as a subsection of the Jacob Wetterling Act. This new act established a national database maintained by the FBI to track all sex offenders convicted of an offense against a minor or of a violent sexual offense (Logan, 2009). In 1996, Pam Lychner was a real estate agent preparing to show a vacant home to a potential buyer when the man who arrived at the house, a repeat sex offender, violently assaulted her (Office of Justice Programs, n.d.). As a direct result of her experience, Pam Lychner later founded “Justice for All,” a victims’ rights advocacy group that fought for harsher sentencing laws for violent offenders. She then assisted in drafting the bill that later became the Pam Lychner Sexual Offender Tracking and Identification Act to honor her, following her death in July of 1996 on TWA Flight 800 that crashed off the coast of Long Island (Office of Justice Programs, n.d.).
More legislation followed. In 2000, the United States Congress passed the Campus Sex Crimes Prevention Act (Logan, 2009) to further amend the Violent Crime Control and Law Enforcement Act of 1994. Under this new section of the Act, registered sex offenders are now required to report theirattendance or employment at any higher education institutions. This information is entered into the state registries, and colleges and universities can request information from law enforcement agencies on sex offenders attending their school (Wright, 2009).
In addition to registration and notification laws, sex offenders are often subjected to restrictions on their residential, recreational, and employment choices. Communities can enact local ordinances that prohibit offenders from living a certain distance (usually 1,000 feet) from schools, parks, daycare centers, or other locations where children gather, regardless of whether the offender previously had a child or adult victim (Duwe, Donnay, & Tewksbury, 2008; Ohio Department of Rehabilitation and Correction, 2007;). In some instances, if the coverage of local ordinances is particularly dense, sex offenders may not be able to live in certain towns at all because they would always be within 1000 feet of a prohibited area (Ohio Department of Rehabilitation and Correction, 2007). In fact, in a study on residency restrictions in San Diego, results indicated that sex offenders could permissibly live in only 27% of the total amount of living space available in the city (Wartell, 2007, in Wright, 2009).
Finally, the Adam Walsh Child Protection and Safety Act of 2006 (H.R. 4472) was designed to fill in the gaps and close any loopholes discovered in the previous Acts that were passed in the 1990s. Title I of the Adam Walsh Act is the Sex Offender Registration and Notification Act (SORNA), which requires that sex offenders provide additional registration information, such as vehicle information and Internet identifiers, as well as requiring offenders to check in with law enforcement in person to update and verify their registration information on a regular basis (Ohio Department of Rehabilitation and Correction, 2007). Additionally, SORNA requires that DNA samples be taken and kept on file for all registered sex offenders.
Perhaps one of the most controversial and debated legislative responses to sex offending is the use of civil commitment to continue to incapacitate sex offenders. Civil commitment laws were originally created to treat and incapacitate mentally ill sex offenders (often coined “sexual psychopaths”) who psychologists believed to be unable to control their sexual and violent impulses (Cohen & Jeglic, 2007); this treatment was offered instead of incarceration (Leon, 2011a). This kind of civil commitment as an alternative to prison was aligned with the popular belief at the time that sexual offending was a psychological disorder, and that with enough time, could be “cured” (Leon, 2011a). During the 1950s, this legislation, which was originally designed to incapacitate dangerous sex offenders like serial killer Albert Fish, was also applied to homosexuals, and to individuals who engaged in non-contact sexual behaviors like exhibitionism (Leon, 2011a, pp. 80–81, 94–96; Wright, 2009). Although states’ definitions of “sexual psychopath” varied widely, all states required that in order to be committed, a sex offender must have an existing mental illness and present a danger to themselves or others. Once a committed offender was deemed as no longer a threat to themselves or others, they were then able to be released. However, it is extremely difficult to assess whether someone is truly suffering from a mental illness, whether their illness is cured or in remission, or more importantly, whether they present a danger to themselves or others (Wright, 2009).
While this earlier generation of civil commitment laws fell out of favor, the wave of attention brought to child sexual abuse in the 1990s led to a new approach: Incarcerated sex offenders nearing the end of their sentence could be transferred to a hospital for indefinite civil commitment. The Adam Walsh Act also contained Section 301 (called the “Jimmy Ryce State Civil Commitment Program for Sexually Dangerous Persons”) that provided grants to states to once again develop civil commitment programs for eligible offenders, illustrating the continued popularity of indefinite incapacitation of sexual offenders. By 2007, twenty states plus the federal government had enacted new civil commitment provisions for sex offenders—all following the model of Washington state's law. These civil commitment laws provided a way to keep sex offenders incapacitated and locked up, even after they had served their entire sentences. While the stated goal of civil commitment is to provide treatment to sex offenders, research has indicated that most civilly committed sex offenders actually do not receive any sex-offender specific treatment during their commitment. In California, one study found that only 20% of civilly committed sex offenders received any type of sex-offender oriented treatment, even though the stated primary reason for the commitment was to receive treatment (Cohen & Jeglic, 2007). Since the commitment is based on treatment without a definite length of sentence, sex offenders could be (and have been) locked up indefinitely. Civil commitment also carries with it an extreme cost—more than the cost of incarceration and outpatient treatment. As of 2000, it costs states on average $350 dollars per day for each sex offender who was civilly committed, which is far more than the daily costs per inmate of most prisons (Cohen & Jeglic, 2007).
It is clear from the current trend in sex offender legislation that citizens are fearful of sex offenders committing future offenses, particularly against children. As a result, society is supportive of harsh, restrictive legislation that keeps all sex offenders, regardless of their offense, under very strict supervision and provides offender information to the public so that individuals are aware of sex offenders living in their area (Craun & Theriot, 2009). However, current legislation and policy are not grounded in empirical evidence regarding sex offender behavior; recent scholarship disputes that these policies actually result in less sexual offending, reduced sexual recidivism, or greater community safety (Leon, 2011b).
Policy makers’ and legislators’ perceptions of sexual offending behavior influence the policies that they draft and support (Sample & Kadleck, 2008). A study done in Illinois found that legislators who were involved in drafting sex offender legislation or actively supported sex offender legislation frequently reported believing that sex offender recidivism was higher than recidivism rates for other types of crimes, and that sex offenders were mentally ill and dangerous. The legislators surveyed also reported that they used media to gain information about the scope of the “sex offender problem” in the United States (Sample & Kadleck, 2008). This study lends support to the belief that much sex offender legislation is fueled by misperceptions about sex offending behavior (often developed as a result of high profile cases portrayed in the media). Legislators feel that if they create legislation that requires the close supervision of sex offenders that the “sex offender problem” is lessened. The assumptions behind such legislation are (a) all sex offenders recidivate at high levels, (b) if sex offenders are closely monitored by law enforcement agencies and their presence is well known in the community, they have less opportunity to commit a new sex offense, and (c) these laws prevent non-sex offenders from committing a first offense. If these assumptions are true, then empirical research should validate the assumptions listed above. This is not the case.
What Research has Taught Us
As evidenced by the fact that most national sex offender legislation is named after the victims of particularly tragic cases, these policies tend to be fueled by emotional responses to such tragedies. It turns out that the empirical evidence often contradicts the emotional impulse.
Sex Offenders and Repeat Crimes (Recidivism)
Commonly held beliefs among the public and policy makers view all sex offenders as a similar group of deviant offenders who prefer to target strangers and have high rates of repeat offending. Research on sex offender characteristics and behavior found that these beliefs are not true. In reality, sex offenders are neither specially deviant, nor specialists in terms of sticking to sex offenses. Before addressing these facts, it is important to recognize that those sex offenders who are available for study typically include only those who have been caught by criminal justice officials or who have sought treatment. As depicted in Figure 9.1, this limits our knowledge of the larger group of sexual offenders. All sex offenders who fall in the dark section of the largest circle, outside the smaller circles, have not been detected by authorities: they are lost in the “dark field.” As a result, available research is limited to those offenders detected by criminal justice authorities or who are engaged in treatment, either voluntarily or under order by the justice system) (e.g., see Becker, Stinson, Tromp, & Messer, 2003). As Figure 9.1 indicates, most sex offenders are unknown and unstudied.
Notwithstanding the dark field, we do know that convicted sex offenders are actually a highly diverse group of offenders with a multitude of different characteristics, victim preferences, and motivations for offending (Robertiello & Terry, 2007); very few have a psychiatric disorder. Studies of sex offenders in correctional and clinical samples provided a number of different models for explaining sexually deviant conduct. For most offenders, these explanations involve a combination of factors, as opposed to the fictional account of a compulsive offender who cannot resist a pathological urge. While mental illness plays a role in some offending, for the majority of offenders, it does not (See, generally, Strassberg, Eastvold, Kenney, & Suchy, 2012; Marshall, 2007).
Most sex offenders are like other criminal offenders: People convicted of sex crimes are typically generalists with other criminal involvements. A large representative sample in 1994 of 38,000 offenders released from prison in 15 states demonstrates what many other studies also ascertained (Miethe, Olson, & Mitchell, 2006). Miethe and colleagues found that the “sex offenders” in their sample (released prisoners who were most recently incarcerated for a sex offense) had criminal records showing far less specialization than other offender types. Rather than “sex offenders,” they were criminals who had a recent sexoffense in their history along with other kinds of offending: The longer the criminal record of the sex offender, the less likely they were to be specialists. This contrasted with prisoners incarcerated for property and public order offenses, who were more likely to specialize in these types of offenses, the longer their criminal career.
Figure 9.1 Limitations to Sex Offender Studies
Another piece of the misunderstanding surrounding sex offenders includes their relationship to victims. Most sexual offense victims are assaulted or abused by someone they know, not attacked or abducted by a stranger. In fact, almost 50% of all sexual abuse against children under the age of six, and approximately 42% of sexual abuse offenses against children between the ages of six and eleven, are committed by a relative of the child (Craun & Theriot, 2009). In terms of sexual offenses involving adult victims, one survey found that nearly 98% of female victims reported knowing the perpetrator (Craun & Theriot, 2009). This particular misperception results in public support for legislation that requires sex offender registration information to be available to the general public, community notification policies, and residency restrictions, all of which may be misleading the public. While a community resident worries about the sex offender who lives two blocks away, they are unaware or ignore the fact that acquaintances and relatives are much more likely to pose the real threat.
Finally, recidivism rates for sex offenders are not as high as the public perceives. Research on sex offender recidivism found that not only do recidivism rates vary by offender characteristics (e.g., type of offense, relationship to victim, etc.), but are relatively low (Sample & Bray, 2006). Despite our gut feeling that sex offenders must be repeat offenders, many decades of empirical research demonstrates that most convicted sex offenders do not commit new crimes (Zimring & Leon, 2008).
A large representative sample of released prisoners were followed for three years, and the results reveal that sex offenders are less likely to reoffend (Langan & Levin, 2002, pp. 6–8). See Figure 9.2, which shows that the majority of those prisoners were arrested at least once within 3 years of release (67.5%, shown by the large white circle). Figure 9.2 also includes two smaller circles which show who committed new sex offenses: The shaded circle shows that 22% of those prisoners who were not called sex offenders (i.e., they were in prison for something else, and thus were not on the registry) subsequently committed a new offense that was a sex offense. This is in striking contrast to the small circle that represents repeat sex crimes: Just 5.3% of those prisoners were called sex offenders (i.e., they were incarcerated for a prior sex offense) and then went on to commit new sex crimes.
Another way to appreciate the low recidivism rate for sex offenders is to compare them with other kinds of offenders. In the same study, offenders with the highest rearrest rates were those who stole motor vehicles (78.8%), those who possessed or sold stolen property (77.4%), and burglars (74.0%) (Langan & Levin, 2002). Those with the lowest rearrest rates for any kind of crime were rapists (46.0%), those who committed sexual assault (41.4%), and those convicted of homicide (40.7%).
his finding of low recidivism is confirmed by studies with longer follow-up periods. A meta-analysis (a study which combines numerous studies and controls for variation in the study design) with an average follow-up of 4 to 5 years found an average sex offense recidivism rate of 13.4% (N = 23,393; 18.9% for 1,839 rapists and 12.7% for 9,603 child molesters) (Hanson & Bussiere, 1998; see also Hanson & Morton-Bourgon, 2004). These results are also evident in state-specific studies. For example, in a report to the Ohio Sentencing Commission in 2005, it was reported that Ohio sex offenders had a recidivism rate of only 8% for a sex-related offense and 14% for a non-sex offense during a 10-year follow-up period (Office of Criminal Justice Services, 2006).
The Impact of Laws on Known and Unknown Offenders
Research conducted in the years following the enactment of current sex offender policies evaluates the impact on reducing sex offender recidivism. Early studies found mixed results for the effectiveness of registration and notification legislation, as well as for residency restrictions (Center for Sex Offender Management, 2008). Some states have reported that offender registration and notification laws have deterred offenders from recidivating and have found significantly lower rates of recidivism in groups that are required to register compared to offender recidivism rates prior to the implementation of registration laws. However, these studies lack methodological rigor, and are also offset by studies from other states that found no such impacts; some studies even indicated that these laws may actually be contributing to increases in offenders’ risk to recidivate (Center for Sex Offender Management, 2008). Research also indicated that sex offender legislation is associated with a false sense of security in citizens (since most offenders victimize someone who is known to them, not strangers in their neighborhood), increased hostility and vigilantism against sex offenders by community members, and obstacles for offenders seeking housing and employment (Center for Sex Offender Management, 2008).
It is evident from this research that commonly held beliefs regarding sex offenders and their behavior are not accurate. However, sex offender legislation and policies continue to use these misperceptions and justifications for laws that impact nearly every sex offender, regardless of their risk to reoffend, creating overly restrictive and punitive conditions of supervision that may result in an array of negative consequences. A report to the Ohio Criminal Sentencing Commission in 2006 listed several unintended consequences of the state's registration and notification laws. These included misleading the public, negatively impacting family members of offenders and victims, hindering offender reentry, increasing displacement, increasing vandalism and retribution, and a reluctance to report offenses (Office of Criminal Justice Services, 2006). Furthermore, the report suggested that some of these issues increase an offender's stress level and sense of isolation, two factors that play a significant role in an offender's risk to reoffend (Office of Criminal Justice Services, 2006). Research on sex offender legislation and policies primarily focused on offender registration and community notification practices and whether these strategies at supervising sex offenders resulted in lower rates of recidivism among convicted sex offenders. An early study in 1995 was one of the first outcome studies examining the effectiveness of community notification laws (Schram & Milloy, 1995). This study was conducted in Washington and examined the rearrest rates of 90 sex offenders who operated under the highest level of notification and 90 matched offenders who were released prior to the enactment of the notification law. At the end of a 54-month follow-up period for both offense groups, the authors report that there were no significant differences in rearrest rates for the two groups. However, the authors state that the findings, while not statistically significant, tend to suggest that the sex offenders in the community notification group were rearrested at a quicker rate than the group that were released prior to the enactment of the law. Despite the limitations of this early study (particularly, the small sample of sex offenders used in analyses), the findings do not support the effectiveness of community notification practices in reducing recidivism.
A more recent study by Sandler, Freeman, and Socia on the effectiveness of New York's registration and notification laws was published in 2008. This study used time-series analyses to examine arrest rates for sexual offenses before and after the implementation of New York's Sex Offender Registration Act (executed in 1996) in order to see whether the laws reduced recidivism rates or deterred first-time offenders. The authors used data from the New York State offender criminal history files provided by the New York State Division of Criminal Justice Services. Twenty-one years of New York State monthly arrest counts were collected beginning in January 1986 (ten years prior to the enactment of the registration and notification law) to December of 2006, eleven years following the enactment of the law (Sandler, Freeman, & Socia, 2008). Results indicated that the enactment of the registration and notification laws had no significant impact on rates of sexual offending (total sex offenses, rapes, and child molestations). More importantly, the study also revealed that approximately 95% of arrests for sexual offenses (both before and after the enactment of the registration and notification law) were first-time sex offenders, not new offenses by previously convicted sex offenders (recall Figure 9.2). Therefore, the vast majority of sex offenses were committed by individuals who were not listed and would never have been on a sex offender registry (following the enactment of the law). The authors concluded that the legislation, which was originally designed to limit convicted sex offenders’ opportunities to recidivate, targets only a very small percentage of those committing sexual offenses and is ineffective at deterring first-time offenders who are committing the vast majority of offenses (Sandler et al., 2008).
Studies that examined the impact of residency restriction ordinances focused on whether these policies reduced the risk of sex offenders coming into contact with potential victims, particularly children. A 2008 study found that only a handful of the offenders in their sample made direct contact with a child victim that was located within one mile of their residence. In addition, of those offenders who did make direct contact with a victim, none of them did so near a school, park, daycare center, or any other location that is typically included in the residency restriction statutes. These findings fail to support the effectiveness of these types of policies at reducing victimization of children (Duwe, Donnay, & Tewksbury, 2008).
Some critics of current sex offender legislation posit that these overly punitive laws may actually lead to an increase in recidivism and sexual violence, citing the tenets of criminological theories (Wakefield, 2006). Wakefield described the harmful effects of registration and notification laws and residency restrictions, in the context of labeling theory and secondary deviance. The author states that these laws lead offenders to feel stigmatized, isolated, and rejected by their community, obstacles that they may feel they can never overcome. The negative feelings associated with these obstacles may lead offenders to engage in a self-fulfilling prophecy and ultimately commit a new offense (Wakefield, 2006).
According to social control theory, social bonds keep individuals from initially engaging in deviant behavior, and may possibly be what prevents offenders from engaging in future criminal acts (Kilmer, 2012). Close ties with family members, engagement in conventional activities like employment, and connectedness to one's community through involvement in community activities (all of which are considered important social bonds) are extremely difficult to secure for sex offenders once they reenter society following incarceration. As a result, offenders may feel isolated, alienated, and frustrated all of which are shown to be linked to an increased risk for recidivism (Ohio Department of Rehabilitation and Correction, 2007; Tewksbury & Zgoba, 2010). Therefore, overly harsh sex offender legislation and policies, particularly residency restrictions, may be preventing sex offenders from developing strong social bonds and ultimately be responsible for increasing the offender's risk to recidivate (Levenson, 2006; Levenson & Cotter, 2005; Levenson & Hern, 2007).
When all sex offenders are grouped together as a homogeneous, high-risk population, legislation is applied to every offender, which potentially reduces the benefits of these laws and could possibly contribute to recidivism. The current sex offender legislation requires law enforcement to monitor and supervise all sex offenders, regardless of their offense type. In addition, offense type, not individualized risk assessment, typically determines the duration and conditions for the offender's registration and contact with law enforcement (Leon et al., 2011).
Therefore, agencies are overburdened with the number of offenders they have to supervise, and officers may not be able to provide the level of supervision that is required, which can result in high-risk offenders slipping through the cracks. Some argue that resources are better used if they are focused only on those offenders at highest risk to recidivate rather than every offender equally (Leon et al., 2011). That way, high-risk offenders are placed under careful supervision, and low-risk offenders can more easily reintegrate back into society, thus lowering their sense of isolation and stress, and ultimately reducing their risk to reoffend (Robbers, 2009). It is therefore important for legislators to realize that sex offenders are a very heterogeneous group with varying motivations for their behavior as well as other unique characteristics that influence their risk to recidivate
Race, Gender, and Class Implications of the Policy
Feminists and advocates are troubled by the lack of progress in holding sex offenders accountable, and this may be partly attributed to the misleading sense of accomplishment which popular sex offender laws perpetuate (Janus, 2006; Leon, 2011a; Schultz, 2005). By focusing on the subgroup of sex offenders who have been caught and convicted (recall Figure 9.1, which illustrates how many offenders remain unknown), we assuage our fears and concerns, but do little to impact future sex crimes or the structural conditions, including views of women and other rape myths that allow sexual violence to continue (Burt, 1998; Frohmann, 1997). Research also shows that sex offender legislation may perpetuate racial and economic inequality. In a study with the general conclusion that the unintended consequences of residency restrictions dramatically overshadow their purported benefit, Socia (2011) demonstrates how offenders are pushed into overpopulated areas, which has particular implications for economically disadvantaged offenders and for impoverished neighborhoods. In an examination of counties in upstate New York that are representative of the typical parcel density found throughout the United States, Socia measured effects on housing availability, affordability, and social disorganization. He found that sex offenders who must move into the least restricted neighborhoods under the most severe residence restrictions have few housing or rental options. If these few sparsely populated neighborhoods do not contain enough housing for all sex offenders who might have to move there, then homelessness likely increases, which further inhibits the ability to manage and support the offender in the community. Several other recent articles further examined the collateral consequences of these laws on particular communities (Hughes & Burchfield, 2008; Hughes & Kadleck, 2008; Mustaine, Tewksbury, & Stengel, 2006; Zevitz, 2004).
Sex Offenses Committed by Youths
When youth under age 18 are caught engaged in sexual contact, including sexual acts involving force, or with much older youth sexually touching younger children, but also including mutually agreed-on sexual contact, those youth can be taken to court and adjudicated delinquent on sex charges (the juvenile court system does not use the word “convicted” in order to avoid stigmatizing youth and to distinguish them from adult proceedings). Prosecutors can also waive these youth to adult court if they feel the charges are serious enough. Approximately 15 to 17% of reported sex offenses are committed by youth (Andrade, Vincent, & Saleh, 2006; Miner, 2002). While some juveniles may offend as a result of motivations similar to their adult counterparts, juveniles may also have unique motivators that are typically not found in adult offender populations and therefore may have different risk factors and treatment needs (Andrade et al., 2006; Miner, 2002).
Importantly, research also shows that young people who commit sex crimes rarely grow up to be adult sex offenders. Most recently, Zimring and his colleagues examined a Philadelphia birth cohort, which included 13,160 boys and 14,000 girls born in 1958 and followed them through age twenty-six (Zimring, Jennings, Piquero, & Hays, 2009). Even though they used a more inclusive measure than is typically used (police contact as opposed to arrest, adjudication, or conviction), the data did not show a connection between juvenile sexual offending and adult sexual offending.
However, many of the legal and clinical responses to juvenile sexual offending mirror responses seen in the adult population. Stemming from the misconceptions of adult sex offending, legislators fear that juvenile sex offending is becoming increasingly widespread and that juveniles have a high risk of recidivism, similar to their adult counterparts (Letourneau & Miner, 2005). Despite the research, youth adjudicated as sex offenders are subjected to more severe and longer sentences than other juvenile offenders and in some states, they are also subjected to registration, community notification, and civil commitment (Chaffin, 2008; Letourneau & Miner, 2005); under the Adam Walsh Act, just like adult offenders, juveniles are included in public registries, although a few states refused to comply (Freeman & Sandler 2010).
How do We Fix It? Suggestions for Policy Reform
Advocates and policy makers face public pressures to “do something” about sexual offending, and this overshadows the use of empirical evidence to reform public policies: Symbolic responses often take precedence over implementation concerns and related unintended consequences. Attempts to reform the laws have to be framed in terms of real advances in addressing sexual violence. This requires an emphasis on the harms done by sweeping all sexual offending into the same category and the related dilution of law enforcement and other resources.
Reform efforts must differentiate. For example, fixes to the current broad laws should be framed as reallocating resources to focus on the truly dangerous. The Jaycee Lee Duggard/Phillip Garrido case is an illustrative one: Had the California probation officers assigned to visit Garrido been able to focus on a small caseload of high-risk offenders, then there is the likelihood that they would have provided more than cursory oversight of his house and would have identified the kidnap and rape victim Jaycee Lee Duggard rather than allowing him to terrorize her for eighteen years (Strobel, 2009).
Reformers who challenge sex offender policies must be wary of supporting any recommended changes that appear to go “soft” on sex offenders. This can be done by emphasizing that most needed reforms come after punishment: Amendments to registration and residency restriction policies do not change the available sentence structure for sex offenses (Leon et al., 2011). Reforms instead address the separate issue of more sensibly managing sex offenders after their punishment to bring policies in line with facts, not emotions.
Chapter 10
White-collar and corporate crime constitute one of the more intransigent problems confronting law enforcement in the United States and, indeed, throughout the world. The core difficulty is that by definition these offenses are committed by persons who have power in the worlds of business, politics, or the professions. The status of white-collar criminals is reflected in the biases in criminal codes that favor them. In addition, efforts to discover and penalize white-collar and corporate crimes are largely in the hands of persons with the same background and beliefs as those who are perpetrating the offenses. Take one glaring example: the lobbying of legislators. This is an obvious form of bribery. But, the definition of bribery is established by the same legislators who are bribed by the lobbyists, who most assuredly expect some quid pro quo in the nature of favorable legislative treatment. Typically, the lobbyists get what they have paid for, and often a great deal more. In 1707, the English satirist Jonathan Swift repeated a telling comment that had been made by a prominent church official some six centuries earlier: “Laws are like cobwebs which may catch small flies, but let wasps and hornets break through” (Swift, 1707, p. 19).
Illustrative of lobbying tactics was the 2012 conviction of Zehy Jesus and Sandy Annabi in a New York federal district court in one of the rare instances of a successful bribery prosecution. In a city just north of Manhattan, Mr. Jesus gave Ms. Annabi, the majority leader of the city council in Yonkers, $195,000. She then changed her pivotal vote in regard to approval of a controversial luxury mall and housing complex that Mr. Jesus wanted to construct. The defense claimed that the money was really an expression of Mr. Jesus's intense love of the recipient, stressing that he had lost 150 pounds over four years in order to impress her, and that he had showered her with gifts. “It was not her vote, but her body he sought,” Jesus's lawyer maintained in his rather brazen opening statement (Weiser, 2012). Perhaps the defense attorney concluded during the jury selection process that a formidable number of members of the panel hearing the case were streetwise and cynical New Yorkers.
There are many reasons why a campaign against the massive problem of white-collar and corporate crime is exceedingly difficult to accomplish, and we subsequently detail some of these considerations in this chapter, along with establishing the background and current context in which white-collar crimes and corporate offenses take place.
The Back Story
Throughout recorded time, naysaying prophets have preached against the perils of unbridled power, which is employed only for self-interest in order to enrich those who exercise it, at the expense of those in inferior positions. Middlemen who profited from the productive labor of farmers were treated scornfully in the Bible as were usurers, or persons who lent money and expected more in return than they had advanced. It was only in the Middle Ages that prominent theologians began to locate divine justification for the accumulation of wealth at the expense of the polity.
In the United States, the prime motivation for the revolution that resulted in the separation of the colonies from the British Empire appears to have been an attempt to create a republic, as contrasted to a monarchy, in which leadership was placed in the hands of persons (only men at the time, and not Black men) who would duplicate the idyllic times during the Augustan epoch in the Roman empire (Galinsky, 1998; Reinhold & Alessi, 1978). The leaders served without pay and equitably advanced the interests of the entire population. Exemplifying this ideal was Samuel Adams of Massachusetts, one of the United States’ Founding Fathers. As one of his biographers observes, Adams was educated at Harvard College and was, “a character out of the classical [that is, Roman] past” (Maier, 1980, p. 37). Another writer indicates that Adams had “neither personal ambition nor the desire for wealth. He … gloried in his poverty” (Wood, 2011, p. 140).
The utopian dream of disinterested and nonpartisan leadership disappeared in short order. As the Pulitzer Prize–winning historian Gordon Wood pointed out:
Far from sacrificing their private good for the good of the whole, Americans of the early Republic came to see that the individual's pursuit of wealth or happiness (the two were now interchangeable) were not only inevitable, but justifiable in a free state. (Wood, 2011, p. 75)
Over more than two centuries of existence, it is this view that prevails in America.
The unsavory history of behavior that now would be regarded as white-collar crime permeates the chronicles of bygone U.S. history. The most glaring financial skullduggery took place in connection with the construction of the railroads. The so-called Robber Barons (Josephson, 1934) bribed members of Congress to grant them funds to build railroad tracks across the continent, and then developed schemes that allowed them to personally pocket a goodly portion of the public funds that they were awarded. “The Southern Pacific Railroad,” it has been pointed out, “under the rapacious and unscrupulous leadership of Collis Huntington was widely believed to dictate policy to the legislature and to dispose of California state matters generally as best suited its own interests” (Turner, 1985, p. 140). It was an accurate belief (Lewis, 1938). Another commentator summed up the nefarious activities of the railroad moguls, describing the perpetrators as “cold-hearted, sordid, selfish men” (Boardman, 1977, p. 62).
Investigative writers, who came to be known as muckrakers, also exposed a series of notorious scandals. They focused on matters such as corruption in the politics of the country's major cities (Steffens, 1904), abominable conditions in the Chicago meat-packing plants (Sinclair, 1906), and monopoly practices in the oil industry (Tarbell, 1904). As the years went by, there was no letup in the big-time law breaking by a roster of persons with the power to do so, culminating in the Great American Meltdown that began in 2008. There typically are half-hearted policy reactions to glaring misdeeds when they are brought to the attention of the public and the politicians. Generally, the actions by legislators went only so far as they believed necessary to placate their middling-class constituents, and not so far as to alienate the rich who financed their campaigns. For instance, the Sherman Antitrust Act was passed in 1890 to try to eliminate monopolistic practices that undercut the ideal of an open competitive marketplace, but the Act was enforced in a languid manner, initially singling out labor unions for prosecution. The Department of Justice filed only nine cases during the five years following passage of the Act, and merely 22 cases during the Act's first 22 years of existence (Dewey, 1990). Typical of this early period was an unsuccessful 1895 government antitrust lawsuit United States v. E. C. Knight. The Supreme Court declared that the E.C. Knight Company, which controlled 98% of the country's sugar-refining capacity, was a monopoly of “manufacture” and not of “commerce,” and was therefore exempt from the reach of the Sherman Act, although the company obviously entered into commerce when selling the sugar that it refined (United States v. E. C. Knight, 1895).
Subsequently, the Sherman Act was sustained by the Clayton Act, the Robinson-Patman Act, and other measures. This strengthened law was employed by the Federal Trade Commission (FTC) to force motion picture producers and distributors to divest themselves of the theaters that they owned and that they favored over competitors when releasing films (United States v. Paramount Pictures, 1948, 1949). Over time, studios were also ordered to end illegal tying relationships where outlets were allowed to screen top-rated films only if they agreed to simultaneously rent “oaters,” low-budget westerns that filled out the double-feature, newsreel, and serial (e.g., Perils of Pauline) productions that constituted the movie showings of the time (Conant, 1960).
Antitrust enforcement subsequently was eviscerated by economists, mainly academics, who pretended to predict the future of amalgamations and pricing tactics of powerhouse companies. It is not unreasonable to suspect that the economists’ ideological preferences played a considerable part in their speculative ventures as well as those of the courts that came to rely on these murky crystal-ball readings. Wal-Mart, for instance, prevailed in a leading antitrust case in American courts (Wal-Mart Drug Stores v. American Drugs (1995; Kelley, 1997), but was considered by the German Supreme Court to illegally stifle competition, among a myriad of other specifications of wrongdoing. Wal-Mart ceased operations in Germany and publicly proclaimed that it had learned a lesson.
This is not to say that regulatory oversight does not accomplish some worthwhile ends. Just as we will never know how many persons are inhibited from committing murder, not because of their conscience, but because they fear the legal consequences, we will never know how many possible white-collar criminals are deterred from violating the law because of the law itself.
The FDA, Thalidomide, and RUR-426
There also are exemplary illustrations of regulatory vigilance in the United States that prevented what otherwise could have become tragic disasters. Probably the best known involved the Food and Drug Administration (FDA) and the marketing of the medication Thalidomide. The original 1907 law thatestablished the FDA was strengthened in 1938 after more than one hundred people, mostly children, died from taking a sulphanilamide preparation mixed with a toxic chemical that was added to sweeten its taste (Carpenter, 2010; Hilts, 2003). The resulting legislation was characteristic of remedial actions that so often are taken only after severe damage aroused the public.
Thalidomide was developed in the early 1950s in West Germany by Chemie Grünthal, a German pharmaceutical company, and was marketed vigorously as an antidote to a range of human health problems, most particularly morning sickness during the early stage of pregnancy. By 1907, an estimated one million Germans were taking the drug on a daily basis. The producing company advertised what proved to be an ill-fated claim:
In pregnancy and during the lactation period, the female organism is under great stress. Sleeplessness, unrest, and tension are constant complaints. The administration of a sedative that will hurt neither the mother nor the child is now possible. (Teff & Munro, 1976, p. 1)
Thalidomide proved to have teratogenic effects. In West Germany, about 4,000 children suffered birth defects known as phocomelia, deformities, such as abnormally formed limb growth, stunted arms and legs, misshapen hands and feet, as well as damaged internal organs. By the time the drug was withdrawn in 1960, some 10,000 children in 46 countries were born deformed from their mother's use of thalidomide during the first trimester of their pregnancy.
Frances Kelsey was a medical officer in the federal Food and Drug Administration in Washington when she determined that thalidomide was unfit for sale in the United States, despite intense pressure from the pharmaceutical company that acquired the right to market it in America. Kelsey had a degree in pharmacology from McGill University in Canada and had coauthored a text on the subject. She also possessed a PhD and a medical degree. Of particular importance was the fact that she previously worked as an editor of Journal of the American Medical Association (JAMA). When she took the job at the FDA, she remembered that many of the scientifically poor articles submitted to JAMA extolling the virtues of a new drug were written by the same physicians who purported to have conducted research about the value and safety of pharmacological products that were now seeking FDA approval.
More than 500 samples of Thalidomide were distributed by its American outlet to doctors, but fortunately almost all were given to patients who were past the first pregnancy trimester. Because of Kelsey's wariness and integrity, only 17 American children were born with thalidomide-produced deformities. Most of their mothers acquired the drug when their husbands were stationed at an overseas military base. Later, President John Kennedy would present Kelsey with the Distinguished Federal Civilian Service Award (Daemmrich, 2002).
The FDA, its moment of glory well behind it, would show an unscientific, political face when it ingloriously caved in to political pressure in 2004 and disapproved the perfectly safe RU486—the morning-after birth control medicine. This rejection occurred after it had reviewed 40 studies and more than 15,000 pages of data regarding the drug and despite the 23 to 4 vote of its panel of expert medical scholars and the favorable recommendation of the FDA staff. After so strong an endorsement, agency veterans could not recall any other time when the organization failed to approve a drug. In several overseas jurisdictions, the morning-after pills were then being sold over-the-counter. A stated reason for the FDA rejection was that availability of the pills would encourage more and “unsafe” sexual promiscuity. A critic sarcastically noted that the FDA would hardly turn down a drug that treated undesirable levels of cholesterol because it encouraged the eating of cheeseburgers.
In 2009, the FDA was induced to acknowledge the conclusions of a barrage of scientific evidence and approved the sale of morning-after medications. The approval was on a non-prescription “behind-the-counter” basis, meaning that they would have to request the drug and was only approved for women 18 years of age and over. Women under 17 were required to present a prescription, a stipulation that a federal district court judge ruled unconstitutional (Tummino v. Torti, 2009). On April 5, 2013, a Federal District Court ruled that Plan B (the morning after pill) be made available over-the-counter to girls of all ages (Tummino v. Hamburg, 2013).
The Current State of the Policy
Perhaps the most appropriate word to describe the current state of policy in the United States regarding individual and corporate white-collar crime is “erratic.” Notoriously, the government failed to file charges against highly placed individuals and corporations. As far as can be determined, it was decided in high government circles during the last part of the Bush administration and during the Obama presidency that bringing criminal charges against prominent businessmen who had done woefully aberrant things, acts that might reasonably be charged as criminal, was a matter best overlooked since to prosecute them would undermine already-skeptical views about the powers-that-are and the marketplace. In a powerful piece of investigative journalism, Gretchen Morgenson and Louise Story reported that because of the seeming fragility of America's financial system, it was Timothy Geithner, the Secretary of the Treasury and once a player in the world of high finance, who persuaded prosecutors to ignore Wall Street crimes. The aim, the reporters wrote, was “a desire to calm markets, a goal that could be compromised by a hard-charging attorney general” (Morgenson & Story, 2011, p. A1). Bank robbers could only wish they had it so good.
The most visible aspect of this approach was the use of civil suits launched by the Securities and Exchange Commission (SEC) against some of the more prominent malefactors and the companiesthey piloted. The Bank of America, for instance, agreed to a fine of $155 million for its failure to notify stockholders that its acquisition of Merrill Lynch also involved the assumption of millions of dollars awarded to more than one hundred employees of the near-defunct company. No person involved in the composition or approval of the incomplete and misleading statement that went out to shareholders was held either civilly or criminally responsible. Typically, the Bank of America, when agreeing to pay the fine, insisted that the court acknowledge that the payment did not indicate guilt, a traditional dodge aimed at helping a company prevail against later lawsuits. The judge in a related case involving Citigroup asked rhetorically why a company would pay a $285 million fine, and at the same time insist that it was not guilty of having done anything that was against the law. The SEC, which launched the civil cases and approved the settlement terms, appealed the ruling that the losing party must admit guilt. An appellate court in a unanimous decision endorsed the SEC argument that if companies were forced to admit guilt when settling cases, court actions would grind to a halt. A spokesperson for the SEC implicitly acknowledged the power of the corporate world that made his agency support so illogical a concession:
As we have said consistently, we agree to settlements when the terms reflect what we reasonably believe we could obtain if we prevailed at trial, without the risk of delay and uncertainty that comes with litigation. Equally important, the approach preserves resources that we can use to stop other frauds and protect other victims. (Wyatt, 2012, p. B7)
The idea that the corporate world has superior resources that keep the government from taking a sensible position is unsettling (see generally Pontell, 1984). Besides, of course, the alleged protection of victims is a “closing the barn door after the horses are gone” fiction. Most importantly, the public never gets to hear from those on the witness stand the sordid details of the acts that cost the company, that is its shareholders and ultimately its customers, these hundreds of millions of dollars.
Broken Windows and White-Collar Crime
The failure to bring to justice the malefactors, and the default in the criminological scholarly community to attend assiduously to this major national economic crisis, is exemplified by the work of James Q. Wilson, who likely was the most prominent public commentator on criminal behavior. When Wilson died early in 2012, the myriad of media obituaries focused on the “broken windows” theory that he advanced in collaboration with George Kelling. Kelling and Wilson suggested that minor neighborhood irritants needed to be remedied in order to create an atmosphere that would discourage more serious street crimes. They argued that indifference to incidents such as petty acts of vandalism and graffiti created an atmosphere that encouraged robberies, burglaries, and other major crimes (Kelling & Wilson, 1982).
There was a curious element in Wilson's work. He employed the term “crime” to refer exclusively to traditional street offenses perpetrated by low-status offenders. In his influential work, Thinking About Crime, Wilson defended this emphasis: “This book [does not deal] with white-collar crime,” Wilson wrote.
Partly this reflects the limits of my own knowledge, but it also reflects my conviction, which I believe is the conviction of most citizens, that predatory street crime is a far more serious matter than consumer fraud [or] antitrust violations…. because predatory street crime makes difficult or impossible maintenance of meaningful human communities. (Wilson, 1975, p. 407)
One could observe that the Great Economic Meltdown made it exceedingly difficult or impossible to maintain meaningful human communities in areas where a barrage of foreclosures was fueled by sales tactics that resulted in the subprime crisis, and homeowners found that skullduggery by scavenger lenders forced them to lose their homes. The lenders, who themselves profited handsomely, readily unloaded the high-risk obligations on investment firms which bundled them together and sold them to unwary investors (Posner, 2011). Here, we had a striking example—not of broken windows—but of catastrophically abandoned residences initiated and fostered by white-collar crime.
Predatory street crimes, the object of Wilson's attention, net their perpetrators far less loot than the bonuses, sometimes illegally obtained (e.g., the hundred or more Merrill Lynch awards) by corporate executives whose businesses have virtually or actually gone bust. It could be argued also that Wilson's observation about the “conviction of most citizens” about crime seriousness is at least in part a function of the information and opinions promulgated by writers like Wilson. He added the following cynical comment to his initial observations about “broken windows”: “I am rather tolerant of some forms of civic corruption,” he wrote, noting in parentheses that “if a good mayor can stay in office and govern effectively only by making a few deals with highway contractors and insurance agents, I do not get overly alarmed” (Wilson, 1975, pp. 407–408). It is the homeless vagrants who irritate motorists by making a few passes at their car windows and then asking for a handout that Wilson finds so in need of a law enforcement crackdown.
The tolerance of broken windows in the financial world can be linked to the indifference about vigorous oversight, which is characterized by numerous current developments. A priority of the U.S. Chamber of Commerce is to weaken the restraints on business imposed by the Sarbanes-Oxley Act, formally known as the Public Company Reform and Investor Protection Act. The Act got through Congress in 2002 only because the Enron-Arthur Andersen debacle hit the headlines and aroused public ire. Sarbanes-Oxley requires chief executive and chief financial officers to attest to the fact that their financial reports are accurate. If their certification proves to be wrong, they can be made to reimburse the company for any equity-based compensation they received and any profit they obtained from sales of the company's stock. The law also demands that auditors cease doing consulting work with their clients unless the client's board of directors approves of the arrangement (Fletcher & Prett, 2003; Welytok, 2008).
Consequences of White-Collar and Corporate Crimes: The Monstrous Meltdown
As the first decade of the new century neared its end, for those delighted Americans who were routinely “making hay while the sun shines” in business, and also achieving marvelous profits with their stock market investments, the ever-expanding bubble came to a crashing halt. Huge investment firms found themselves deeply in debt as the bottom fell out of the housing loans they packaged as credit derivatives. Unemployment rose, further compounding the impossibility of homeowners, who had been gulled into absurd mortgage arrangements, to meet their payments. House values went “underwater,” that is, a house often was not worth what the purchaser owed on it. This fueled a barrage of foreclosures. Banks became wary of making loans, so in turn, businesses that depended on such financing to meet payrolls also gave up the ghost.
It would be much too dreary a recital to go through the roster of unsavory acts, often white-collar crimes, which were part of what actually was a depression, but was camouflaged as a recession, or more dramatically called the Great Economic Meltdown.
We highlight a few of the markers along the way that demonstrate the nature of the activities fundamental to the depressing depression.
Bear Stearns
In March 2008, Bear Stearns, the fifth largest investment company in the United States, became the first of the giants to topple. Its risk management department had accumulated a debt of $1.5 billion. The firm sold itself to J. P. Morgan Chase at $10 a share; it had earlier sold on the New York Stock Exchange for $172 a share. Its situation was best summed up by the son of a former manager who was describing the company's executives: “Few come dishonest; none leave honest” (Cohan, 2009, p. 188).
Ralph Cioffi and Matthew Tummin, managers of the company's hedge fund arm, became the first from any of the juggernauts implicated in the meltdown to be tried criminally, and so far they are the only prominent persons. They were charged with securities fraud, wire fraud, and conspiracy. Among other things, they sold $2 million of their own investment in a hedge fund that they were pushing without informing their customers about their actions, although internal emails indicated that they regarded the fund as a bad investment.
Both men were found not guilty in 2000 by a jury after eight hours of deliberation. The decision largely rested on the panel members’ assumption that the defendants were doing what people in their position always did. But, there was lifestyle fallout from the defendants’ lost jobs and the fees they incurred. Cioffi, for instance, sold his house in New Jersey and began renting. He also unloaded a Long Island home and gave up a luxurious Fifth Avenue dwelling in New York City, although he managed to retain a retreat in Vermont.
The SEC, undoubtedly embarrassed by its criminal court defeat, refused to abandon the case, and in 2012 reached a civil settlement with the defendants: Cioffi had to cough up $700,000 of his profits and pay a $100,000 civil penalty; Tummin was assessed $200,000 of profit money and fined $50,000. The federal district judge who approved the agreement, scornfully called the assessed sums “chump change,” a phrase that dictionaries equate to “chickenfeed” and define as an inconsequential amount. Coiffi was planning to relocate in Florida where he expected to open an investment firm.
The American International Group (AIG)
AIG was the largest insurance company in the United States and the 18th largest public company in the world. It was ruled over for 37 years by Maurice Raymond Greenberg, nicknamed Hank Greenberg after a home run slugger who played for the Detroit Tigers. Greenberg's holdings in AIG were worth more than $3 billion dollars. One of his favorite work maxims was: “All I want from life is an unfair advantage” (Shelp & Ehbar, 2000, p. 146). He and his underlings saw to it that they did get an unfair advantage, although it sometimes involved playing fast and loose on the edge of legal codes. In 2003, the company admitted that it had intentionally misrepresented its earnings to regulators. Greenberg's announcement that he would plead his Fifth Amendment right against self-incrimination and not respond at a Congressional hearing led the AIG Board of Directors to fire him. In 2009, Greenberg and the company's former chief financial officer paid $1 million to the SEC to settle the allegation of ersatz corporate reports. Interestingly, Greenberg maintained that rather than settle, he would have mightily fought any criminal charges.
AIG was deeply involved in the arcane credit derivative market, a market that Warren Buffett, the second richest American (behind Bill Gates), called “weeds priced as flowers” and branded as “financial weapons of mass destruction” (McDonald & Robinson, 2009, p. 161). However, because of the high risk, they were hot Wall Street items since a seller could make exorbitant profits. In the fall of 2008, the government bailed AIG out of its dire liquidity crisis to the tune of $173 billion.
Lehman Brothers Holdings
The government's corporate rescue operations rather quixotically took a brief halt when it came to Lehman Brothers, the country's fourth largest investment bank. The company had been fudging its balance sheet and was short $600 billion. The casino capitalism of Lehman was aided and abetted by the top scores awarded to the company's toxic holdings by a prominent credit rating agency. The downfall of Lehman Brothers came when it could not finalize its purchase by Barclay's in England (the British government objected) or the Bank of America. Lehman's filing for bankruptcy in September 2008 was the largest such default in American history. Richard Fuld, the Lehman CEO, summarized the situation in a short sentence: “We were overwhelmed,” he announced. He did not mention that his own cash bonuses had totaled $250 million between 2004 and 2007, and that his company had distributed more than $16 billion in bonuses to its executives during the same time period. In 2008, as Lehman was approaching financial disaster it depleted its limited resources by more than $10 billion through year-end bonuses, stock buy-backs, and dividend payments (Dillian, 2011; Ward, 2010).
Dodd-Frank Remedial Legislation
It is not without a considerable element of irony that the Congressional action to plug loopholes that had permitted the meltdown to occur bears the name of Christopher Dodd, the chair of the Senate Banking Committee. Dodd was one of the “Friends of Angelo.” Angelo was Angelo Mozilo, the chief executive of the Countrywide Financial Corporation, which at its height financed one out of every five American home mortgages. At its nadir, Countrywide was rescued through a $4 billion purchase by the Bank of America that was aided by government bailout funds (Bruck, 2009; Michaelson, 2009).
Among other complications, Countryside offered sweetheart terms to persons the company believed supported its legislative agenda. Dodd's mortgages with Countrywide involved his Washington, DC, residence and his home in Connecticut and were estimated to save him $75,000. The Senate Ethics Committee concluded only that Dodd should have been more careful about involvement in what some might interpret as corruption. The lenient verdict likely had something to do with Dodd's decision not to run for reelection. Compounding the irony was the fact that Dodd's father, Thomas, also at one time a Connecticut senator, was one of the few members of the Senate to be censured by it. In his case, the charge was the expenditure of campaign funds for personal use, but it also was said that Dodd had double-billed on at least one out-of-town trip, charging both the government and the travel sponsor for his expenses.
The Dodd-Frank measure claimed to be the most drastic overhaul of the country's financial arrangements since legislative reforms that followed the Great Depression in the 1930s. It was an extraordinarily far-ranging and complex measure whose highlights we only note here in a general way: It called for (a) the consolidation of regulatory agencies; (b) increased transparency in regard to credit derivatives; (c) the creation of a new consumer protection agency and tightened rules that sought to increase investor protection; (d) new procedures that would make it unlikely that the government (e.g., taxpayers) again would have to bail out defaulting enterprises; and (e) upgraded standards for auditors and credit rating agencies.
Among the 264 rules in the Dodd-Frank Act was one that specified that companies of a certain size must report the ratio between the compensation of their CEOs and median earnings of their employees. A provision that personally helped many Americans was one that put a cap on the escalating fees that banks were getting for the use of debit cards. Not surprisingly, many banks raised the costs they were imposing for the “management” of depositors’ money in order to compensate for the lesser amounts they could garner from debit card transactions.
Liberals found the constraints on business introduced by Dodd-Frank insufficient while conservatives thought them too demanding and likely to damage the country's economic health. Cynics suspected that astute attorneys and clever MBAs will find a way to get around the more intrusive elements of the Dodd-Frank Act, which was renamed in Congress from the “Wall Street Reform and Consumer Protection Act” to the “Restoring Financial Stability Act” in order not to tarnish Wall Street.
What Took Place Thereafter
The presidential campaign of 2012 did little to buttress faith in the likelihood that the average citizen was getting a square deal from the government. George (Mitt) Romney, the Republican candidate, was reported to have paid 13.9% in taxes on his multi-million dollar income, a situation possible only because of code provisions favoring a person, like himself, who lives off the capital gains of his vast fortune. Warren Buffett, the second richest man in the United States, went public with the information that his secretary paid taxes at a higher rate than he did.
The Crew Report
It was discovered that Ron Paul, a member of the U.S. House of Representatives from Texas, one of Mitt Romney's opponents for the presidential nomination, paid salaries or fees totaling more than $300,000 from money contributed to his electoral campaign. The money went to his daughter, brother, grandson, daughter's mother-in-law, granddaughter, and granddaughter-in-law. The information appeared in a 2012 report by the Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit group founded in 2003 that, in its words, aims to explore, deter, and litigate legal and ethical wrongdoing by members of Congress. Its report noted that “a shocking 248 House members used their positions to financially benefit themselves or family members” (Citizens for Responsibility and Ethics in Washington, 2012, p.F13). Specific findings included the following:
82 members (40 Democrats and 42 Republicans) paid family members through their congressional offices, campaign committees, and political actions committees.
38 members (24 Democrats and 14 Republicans) earmarked in appropriation bills funds to a family business, employer, or associated nonprofit organizations.
The report and some of its commentators were careful to point out that notwithstanding the blatant nepotism of these dealings, they were not necessarily illegal, but some might well have crossed that line, such as payments to a baby sitter, and rental of a seaplane in the Caribbean.
Fraud in the World of Medicine
The ravages visited on federal and state medical benefit programs by doctors and other health service persons are staggering (Jesilow, Pontell, & Geis, 1993). In 2012, for instance, the Wycoff Medical Center in Brooklyn, New York, was going hat in hand to city and state authorities bewailing the cuts in the assistance given to the facility, which is located in one of the city's poorest neighborhoods. Meanwhile, the hospital's chief executive officer was driving to work in a Bentley Continental GTE, an automobile worth $160,000. The hospital paid thousands of dollars to insure the car and, when the executive lost his driver's license because of an accident, hospital security guards chauffeured him and his wife around the clock in a Cadillac Escalade and a Lincoln Town Car. Additionally, some members of the hospital Board of Directors were involved in enterprises that posed conflicts of interest with their hospital obligations (Hartocollis, 2012).
Race, Class, and Gender Implications of the Policy
By definition, white-collar and corporate crimes are related to matters of class. Neither women, African Americans, nor members of any other minority racial or ethnic groups have figured prominently in the annals of such crimes. A major reason for this situation is that White males have dominated the power structure of the United States. This situation is currently undergoing change in regard to women and Asian Americans, and somewhat less so in regard to Blacks. Women now comprise a majority of the under-graduate college and university enrollments, and they outnumber men in most graduate programs. Law, medical, and business schools also report rapidly escalating rosters of females; presumably, this translates at some ratio—probably not an equivalent one—to their assumption of leading positions in the legal, medical, and business areas.
It is uncertain what, if any, impact this development will have on white-collar and corporate crime. It could reasonably be argued that the character traits necessary for ascension to power suggest that those women who reach those peaks will be as dishonest as the men they replace. Indeed, women likely have to outshine men in terms of aggressiveness, toughness, and winner-take-all qualities in order to reach the pinnacle of worldly success. On the other hand, women as a gender, more than men, tend to be nurturing and cooperative rather than confrontational and highly competitive. A study of female doctors, for instance, found them willing to spend more (unpaid) time with patients discussing their ailment, less mercenary, and comparatively uninvolved in status-enhancing professional activities. Part of the explanation for this may lie in the fact that women physicians tend to be married to male doctors and enjoy excellent family incomes; male doctors choose their mates more randomly (Geis, Geis, & Jesilow, 1991).
How do We Fix It?
The laws regarding white-collar and corporate crime are both inadequate and, as noted, overly favorable to business. In criminal law, the issue of intent (mens rea) is one of the higher barriers that must be surmounted to obtain a criminal conviction; it is particularly difficult to reach in cases involving white-collar offenses. The highly publicized prosecution of Martha Stewart, the well-known guru of all things chic, is illustrative. Stewart seemingly violated the law against insider trading, specifically, buying or selling a stock when you have information about developments that are not yet public knowledge. But, it is very difficult to prove intent regarding acts committed on the basis of insider information. The accused can always claim that it was no more than coincidence that his or her action and the steep rise or decline of the stock they traded merely happened to coincide; they always planned to sell or buy the stock when it reached a certain level. In Stewart's case, she lied before a grand jury, which means she violated a principle holy to career street criminals: Never tell them anything, and let the state prove its case without your verbal contribution. Perjury was a much easier charge to prove and therefore to succeed in obtaining the conviction and imprisonment of Martha Stewart (Toobin, 2003).
White-collar and corporate crimes typically involve arcane matters that juries (and/or judges) may find difficult to understand. Pollution, product and occupational safety prosecutions often need to use complex scientific evidence of causation that meets the “beyond a reasonable” standard for a conviction.
Corporations and Criminal Law
Under law, corporations are regarded as individuals, and except without the Fifth Amendment guarantee against self-incrimination, they have all the rights of individual defendants. The first step in granting these privileges to corporations came in the case of the New York Central and Hudson River Railroad v. United States (1908) and was reinforced by the prestigious American Law Institute (Geis & DiMento,2002). A much overdue reform would jettison the corporation-as-person approach and see the formulation of a special innovative body of law that deals specifically and only with corporate criminal actions. We endorse the suggestion of Maria Boss and Barbara Crutchfield George (1992): “Legislators should consider taking corporate crime completely out of the current context…. and should focus their efforts on creating new laws specific to white-collar crime that utilize nontraditional penalties and standards imposing accountability and ‘front-end’ compliance requirements” (pp. 57–58).
Attorneys and White-Collar and Corporate Crime
Individual white-collar offenders also enjoy pretrial and courtroom advantages, and many business executives have contracts that guarantee that their corporate employer pays the fees of private attorneys, if the executive is charged with criminal behavior. It is arguable whether state and federal prosecutors as a group are superior or inferior to members of the private bar who defend persons accused of white-collar crime. It is common for lawyers to gain experience as government prosecutors and then sign up with private firms that offer much more lucrative salaries. They then turn their talents toward defending the kinds of persons they prosecuted, often opposing lawyers who were their subordinates when they worked for the government. John E. Hueston and Sean M. Berkowitz, the pair of prosecutors who successfully convicted Kenneth Lay and Jeffrey Skilling, the majordomos of Enron, gave up their government jobs soon after that trial. Heuston became a litigator for the 200-person firm of Irell & Manelle in Newport Beach, California, while Berkowitz accepted a partnership in Latham & Watkins, a global firm with more than 2,000 employees.
In interviews with leading members of the white-collar criminal defense bar who are headquartered in New York City, Kenneth Mann, now a judge in Israel, found that they almost invariably assumed that their client was guilty. The lawyers studied by Mann saw their task as delaying the case as long as possible so that concern and memories would fade. They knew that it was unethical to encourage clients to fabricate, but they were adept at formulating strategic scenarios and indicating their likely consequences: “If you say this, it will leave you open to an attack by the prosecutor because….” “If you say the same thing this way, the prosecutor will be stymied.” The defense counsel often has a particularly difficult task preparing an accused white-collar criminal for what could be a harrowing discovery examination. Their clients generally were not accustomed to being interrogated, but rather to giving orders that are not questioned. At trial, upper-class offenders are often treated more gingerly by the prosecution, since they present an appearance of great respectability to jurors. Ultimately, the shrewd and talented (and expensive) defense attorney will negotiate the most favorable plea bargain possible. Avoiding trial is a top priority (Mann, 1985).
Virtue as a National Need
The initial step toward formulating a curative context aimed at controlling white-collar and corporate crime is to discard the common belief that selfishness and greed are inherent, genetically determined human traits. There are compelling illustrations of human beings and societal arrangements where the personal accumulation of wealth is deplored. Among various Native American and Native Canadian tribes, for instance, prestige has been attached to those who divest themselves as thoroughly as possible of things that are superfluous to a decent style of living (Jonaitis, 1991). And there assuredly are innumerable examples of persons in past and present times who in defiance of seeming imperatives regarding the accumulation of money (i.e., yachts, Jaguars, and jewels), decided to live the simplest of lives. India's Mahatma Gandhi (Fischer, 1997; Lelyveld, 2011) and America's Henry David Thoreau (Harding, 1982) are prototypes for such a lifestyle choice. Unfortunately, few Americans take seriously the Biblical warning that those who accumulate great wealth will have difficulty ascending to a heavenly berth.
It undoubtedly is naive and disingenuous to expect that such a commendable ethos is able to take hold in contemporary capitalistic nations like the United States, or, for that matter, in authoritarian nations like China. In what he regarded as his major scholarly contribution, political scientist James Q. Wilson argued that human beings are born with a strong moral sense of decency, and remain so unless corrupted by their surrounding environment. Among his attempts to document this position, Wilson argued (rather feebly) that people leave tips in a restaurant where they never anticipate they will return (Wilson, 1993).
Be that as it may, a public policy directed at inhibiting white-collar and corporate crime will be most effective if the ethos of a society is so restructured that the idea of goodness is transmitted efficiently and thoroughly through the indoctrinating institutions, which mold the character of individuals and groups. It is expected that this is a hopeless task in universal terms, but it is a tenet that in certain places (e.g., business schools) ought to be strenuously attempted.
It seems that white-collar and corporate crime should be much easier to repress than traditional street offenses. For corporations, their structure is more susceptible to court-ordered alterations than is the personality or the psyche of the typical street offender. A company can be forced to unload that part of its operation that has been the source of law violations. Participation of a government agency in the dismemberment helps to ensure that any sale is to a business with an exemplary record of compliance.
It also can be reasonably argued that compared to street offenders, white-collar and corporate criminals are more responsive to legal threats—they will presumably avoid legal infractions for fear of public disgrace, and will be more inhibited by principles of deterrence, incapacitation, and rehabilitation. Street criminals may learn new law-breaking tricks in prison; a process not likely for, say, antitrust violators.
In addition, upper-class violators are not persons on the outer rims of society who commit burglaries and robberies in order to purchase a further dose of an illegal drug, or to secure funds to keep the party going (Wright & Decker, 1994, 1997). They are individuals and executives of entities who characteristically live in a style that is the envy of most of us less favored. They are usually well-educated, which presumes that they are capable of making reasonably accurate linkages between causes and effects—that is, that they are aware that if they break the law, and are caught, that serious consequences for their lifestyle, reputations, and the well-being of their families possibly result.
However, given the number of possible scenarios in the previous paragraph, no simple-minded conclusions can be drawn from it. For one thing, business executives, physicians, auditors, and members of the federal administrative apparatus never have sufficient information to be able to calculate with certainty the odds that they are breaking the law, and further what their fate will be if they get caught. Very often their employer will take the hit to protect them. They also are aware that sentences for white-collar crimes tend to be indulgent—forget about Bernie Madoff, who was not a mainstream player. The cliché is that any offender will emerge from a jail or prison sentence with a fine suntan, and an improved backhand.
In the end, we come back to where we began with the discussion of remedial actions. In order to tamp down major forms of white-collar and corporate crime, there are many recommendations: tighter regulations, tougher and more certain penalties, new legislation (especially in regard to lobbying) tighter congressional earmarks, and restricted campaign contributions are all necessitated.
The most dramatic incident in the wake of the meltdown demonstrated the need to create a climate of honesty and virtue that is instilled into the very essence of persons with power. Greg Smith, a middle manager at Goldman Sachs, one of the investment giants, went public with his resignation from the company after almost twelve years of employment. Smith lamented that the tone in his workplace had deteriorated into selfishness and callousness, and had become “toxic” and “destructive.” Customers often were referred to as “muppets,” a British term for idiots. The interests of clients were constantly being overruled by the prospect of making money on a deal. Stocks were being pushed that the seller knew were poor buys. “The integrity problem was too big to ignore,” insisted Smith (2012, p. A22).
As long as financiers at Goldman Sachs and other persons with status and power do not demonstrate a sense of moral rectitude, and instead feel justified in gulling other human beings, laws and regulatory oversight will do little more than nibble at the edges of white-collar and corporate evils. An effort to change the commercial culture of a nation represents a gigantic and perhaps unachievable challenge. Frighteningly, such an achievement, or some significant part of it, may be essential for the continued eminence of the United States as an admirable nation—if not for the country's eventual survival.
Chapter 11
This chapter provides an overview of the gang problem in the United States as well as an assessment of policies generated to prevent, intervene, and suppress gang membership. We open with a brief history of the relationship of gangs to the fields of social work and sociology. Following that, we critically assess the role of the media, particularly modern corporate media, in the construction of the modern gang problem—tracing the shift from a sympathetic, poverty, and subcultural narrative (when the gangs were White), to a more menacing narrative as people of color started forming gangs. We also consider the role of gender in gangs, since that is an often missing piece, although, as our chapter indicates the media are increasingly willing to demonize girls involved in gangs as well as boys.
As a modern gang city, and one that continues to have its share of gang and crime problems, we elect Chicago as an instructive case study in what is going right (and mostly wrong) with our national response to the gang problem. We consider the media coverage and the facts in what is seen as Chicago's gang-driven homicide rate. We also review evidence on the effectiveness of specific gang programs like the use of street outreach workers (which actually increased gang cohesion), to current school-based prevention programs like G.R.E.A.T. (Gang Resistance Education and Training), and intervention efforts like the media favorite CeaseFire. All these programs are shown to be ineffective, at best, or counterproductive. Other misguided crime control strategies (like the war on drugs), police brutality and corruption, and mass incarceration have impacted the gang problem, largely by fueling the development of prison gangs that tend to increase gang cohesion, violence, and crime involvement.
There are six factors to keep in mind as we discuss our current policy toward gangs:
Gangs serve as a proxy for “the other” and as targets of punitive criminal justice policies. A century ago immigrants from southern Europe were seen as threats to Americanculture and values just as Mexicans are today (Huntington, 2004). Because of the legacy of slavery and the racism that enabled it, African Americans have consistently occupied a special niche in the ranks of the demonized, and a century and a half after emancipation, they remain the most impoverished and oppressed group in the United States; in the same way, non-European gangs were always seen as representing a “dangerous class.”
As the racial composition of gangs changed, the conventional perspective on gangs changed from seeing them as mainly delinquents to now defining them as hardened criminals. Rather than an emphasis on the 1950s approach of outreach and diversion, gangmembers are now typically treated as beyond the reach of rehabilitation, are often targeted by special police units (and laws), and are viewed as fit only for incapacitation by long prison sentences. The involvement of gangs in nationalist and social movements in the sixties has been either forgotten or dismissed as trickery.
Despite sharply falling rates of crime and violence, mass incarceration emerged as the main “solution” to the “gang problem.” The “race to incarcerate” in the United Stateshas taken place at the same time as crime, and specifically violent crime in the United States has dropped to the lowest level since the 1960s. This inconvenient fact has not stopped flamboyant rhetoric by politicians warning of “out of control” violence and framing gangs as “urban terrorists.” Mass incarceration is also related to the increase of prison gangs and expansion of their influence, both inside and outside of prisons.
For both male and female gang members, the media play a crucial role in their demonization, pushing rationality into the background of both court proceedings and criminal justice policy. While gang violence is a very real problem in some communitiesacross the country, sharply declining rates of crime and violence have not caused a drop in media sensationalism toward offenders.
Despite some countertrends, gang-involved juveniles are being routinely prosecuted as adults. The rationale for a juvenile justice system, the progressive era notion that children must be treated differently than adults, is still not an accepted principle of policy (Feld, 1991). This is particularly the case when gang youth are arrested and charged.
Finally, gang violence provided the backdrop for the development of a variety of “magic bullets” purporting to be “the” cure to the gang problem. Police departmentsadopted Compstat1 and implemented a host of “zero-tolerance” gang policies in some cities, even as violence dropped in nearly all cities nationwide. University-based programs like CeaseFire (now called Cure Violence is an antiviolence program and initiative of the Chicago Project for Violence Prevention aimed at reducing street violence by using outreach workers to interrupt potentially violent situations) received massive media attention through the popular documentary The Interrupters while also claiming credit for declining rates of violence. Scientific evaluations, however, do not support their claims. School-based gang prevention programs like G.R.E.A.T., while increasing positive attitudes toward police, show no long-term reduction in gang membership (Howell, 2012).
1 A widely used data-driven police accountability program. Retrieved from http://www.policefoundation.org/pdf/compstatinpractice.pdf
Considering the history of U.S. criminal justice policy toward gangs, combined with today's historic low rates of violence, we conclude that both the current definition of the gang problem as well as the often well-funded criminal justice programs are driven by a “moral panic” rather than an accurate assessment of the phenomenon.
The Back Story
Gangs, in many ways, are inextricably tied to the origins of the fields of criminology and social work (Addams, 1920; Deegan, 1988; Thrasher, 1927). Gangs have also long been a staple of sensationalistic media crime coverage, which in turn means that the media themselves are key players in the development of crime policy around this social problem, and ultimately around the “crime problem” in general (see Barak, 1995; Barlow, 1998; Surette, 1992). Finally, controlling gangs was also a major justification for the growth of urban police forces as these institutions of social control emerged in the immigrant-rich, industrial cities of the late 1800s and early 20th century (Lane, 1971; Monkkonen, 1981).
In fact, gang policy and the treatment of juvenile offenders became a key subject for the core debates about the direction of social reform, poverty, and the “crime problem”—a pattern we contend continues to this day. Consider that at the turn of the last century and the progressive era, sociologists like Jane Addams were working in immigrant communities establishing settlement houses, focusing on literacy, and job training while other elements of the progressive establishment were laying the foundation for the first juvenile courts. The emerging field of social work was crafting a gang and crime policy that was essentially community-based youth work aimed at long-term integration of youth into adult life. It was assumed that most white male youth in gangs would “mature out” of adolescent gangs. The theoretical rationales behind these assumptions were clearly the core founding principles of criminology, including social disorganization theory (Shaw & McKay, 1969), which posited that boys were attracted to gangs because conventional institutions had broken down. Cultural deviance theories looked at the attraction of gang subcultures to lower class youth (Cohen, 1955; Miller, 1958). Policies toward gangs in the 1950, like the New York City Youth Board (1960), reflected a belief in a temporary, age-limited nature of delinquency. In the first part of the 20th century, the emerging field of social work competed with harder attitudes of the police, as seen in the lyrics of the now iconic song, “Gee Officer Krupke” from West Side Story. Here, members of the Jets, after being threatened by a surly and brutal police officer, somewhat cynically act out a future encounter where they will plead that their backgrounds explain their behavior, noting that “Our mothers all are junkies, / Our fathers all are drunks. / Golly Moses, natcherly we're punks!” and concluding with “We ain't no delinquents, / We're misunderstood.”2
2 “Gee, Officer Krupke” from “West Side Story” by Leonard Bernstein and Stephen Sondheim. © Copyright 1956, 1957, 1958, 1959 by Amberson Holdings LLC and Stephen Sondheim. Copyright renewed. Leonard Bernstein Music Publishing Company LLC, publisher. Boosey & Hawkes, agent for rental. International copyright secured. Reprinted by permission of Boosey & Hawkes, Inc.
The 1960s marked changes on many fronts. New minority gangs became politicized and attracted to nationalist and civil rights movements. Groups with a nationalist identity, such as the Black Panther Party, Young Lords, and Brown Berets, competed with the gangster identity for the attention and interest of ghetto and barrio youth (Perkins, 1987). However, at the same time gangs like the Vice Lords and Crips began the takeover of vice markets in major cities. Also, the Italian mafia retreated to more profitable and less risky ventures, such as gambling, managing the Teamsters Pension Fund, and controlling Las Vegas casinos (Russo, 2001). People in gangs began to be treated as adults involved with “organized crime,” and the social work programs of the past were overshadowed by new gang squad enforcement units. Gradually, the origins of the current policy, known as the war on gangs, evolved as an obvious outgrowth of the Republican emphasis on “law and order” and the “war on drugs.” This policy, in fact, masked an increasingly racialized strategy of policing, control, and imprisonment (Garland, 2001; Sherman, 1971).
This political and nationalist turn of the gangs ended in mass incarceration in the 1980s, which resulted in elevating the position of those members within the gangs who wanted to control illicit vice markets over the gang members who identified with the more politicized, prosocial elements (Hagedorn, 2008). Prison became increasingly important in gang culture and affairs, as the gangs took over and replaced the “lifers” in the hierarchy of the prison inmate subculture; witness the infamous Stateville Penitentiary in Illinois (Jacobs, 1977).
Media and the Framing of Crime and Gangs
However, the back story is not just about the gangs. It is also about how the corporate media during this period began to play a more central role in the construction and comprehension of the gang and crime problem, which resulted in very significant consequences for the country. There are many complex reasons for this evolution, some of which relate to media consolidation practices during this period, but also the rise of increasingly conservative media barons like Rupert Murdock (Bagdikian, 2000). For a variety of reasons, whether discussing print or television, conservative media tends to turn to sensationalistic crime stories along with celebrity gossip and scandals as reliable front page staples. For newspapers and television with shrinking newsrooms and little appetite to engage in serious investigative journalism, this mix provides a compelling and profitable filler (Hamilton, 1998; McManus, 1994).
Criminologists have been somewhat slow to analyze this trend, having reserved analytical interest in journalism to efforts to explore whether the “if it bleeds, it leads” form of journalism increases the public's fear of crime. In fact, we now know that media exposure to crime stories do have an impact. Heavier viewers of local television news are more likely to fear crime and criminal victimization (Romer, Jamison, & Aday, 2003). This is attributed to “pervasive coverage of violent crime stories,” which also tends to increase the fear of African American and other minorities who are disproportionately featured in crime stories (Romer, Jamison, & DeCoteau, 1998). A broader question, though, is the degree to which crime journalism influences punitive crime policies specific to gang policy, such as “the war on drugs,” and “mass incarcerations.”
The Current State of the Policy
After years of decline, officials now claim the number of gangs is increasing. The most recent police estimates put the number of gangs in the United States at 27,000 and the number of gang members at approximately 788,000. Supposedly, this represents a 25% increase in the number of jurisdictions reporting gang problems since the nation recorded a twelve-year low in 2001 (National Gang Center, 2009). In 2007, nearly all large cities (86%) reported gang problems, which represents an increase of approximately 50% since 1983, when the gang problem in our country was just beginning to grow (Curry, Fox, Ball, & Stone, 1992; National Gang Center, 2009). However, official estimates of gangs must be used with extreme caution since political factors may enter into police reports (see Miller, 1975), and gangs do not typically keep membership rosters, and never provide them to officials. That said, gangs have long been a feature of the urban landscape in the United States and they show no signs of going away.
Modern day estimates of gang membership sometimes fail to include female participants. Researchers who asked youths if they had ever been in a gang (self-report) found that 3% of boys (aged 12–16) and 1% of girls reported that they were in a gang (Greene & Pranis, 2007, p. 36); this statistic means that girls comprise roughly one quarter of all the youth in gangs. A study conducted in England and Wales, with a slightly broader definition of gang, found that girls comprised roughly half of those classified as belonging to a “delinquent youth group” (Sharp, Aldridge, & Medina, 2006, p. 3). By contrast, police estimates of the number of girls in gangs are frequently very low (often considerably below 10%) (Curry, Ball & Fox, 1994; National Gang Center, 2009). Studies of gang problems done by researchers in the field tend to line up with the self-report data and find that girls are roughly 20% to 46% of those involved in gangs (Miller, 2002, pp. 68–105). All this research points to the importance of paying attention to girls when seeking to prevent gang membership.
One explanation for the different estimates of the number of girls in gangs is a function of the age of the sample surveyed, since girls tend to join gangs at a younger age, and leave gangs earlier than boys (Peterson, Miller, & Esbensen, 2001; Williams, Curry, & Cohen, 2002). A study done of youth ages 11 to 15 found that nearly half the gang members were girls, but one surveying an older group (13–19) found only a fifth were girls (Esbensen & Huizinga, 1993). In the population of young people selected to evaluate the anti-gang program G.R.E.A.T., girls comprised 38% of those reporting gang membership in the eighth-grade sample (Esbensen, Deschanes, & Winfree, 1999). One researcher noted that this is about the same age that girls are attracted to scouting (Quicker, 1983).
The predominant policy response to gangs has focused almost exclusively on harsh, criminal justice responses, which could safely be described as a “war on gangs.” As a result, virtually every policy is designed to make it easier to incarcerate gang members for long periods of time. Specifically, U.S. gang policy has been dominated by sentencing enhancements, vertical prosecution programs, and gang injunctions, all of which fuel mass incarceration.3 Sentencing enhancements add a given amount of time to a person's sentence for being a gang member, and for committing a crime in furtherance of the gang. Vertical prosecution programs assign a single prosecutor to a gang member for all of the crimes theyare charged with (now or in the future). This single prosecutor (or group of prosecutors in large jurisdictions) often works closely with local police agencies. The purpose is to have a prosecutor familiar with the gang member's history so that he or she is less likely to plea bargain the case, thus the court is more likely to charge the suspect with every possible crime and enhancement so that they receive the longest possible sentence. Finally, gang injunctions are civil orders that prohibit named gang members from associating with one another, congregating in specific areas, or doing other things stipulated in the injunction. They are highly controversial because they are applied without due process protections and can prohibit named persons from engaging in normally legal activities. Gang injunctions only need to meet the preponderance of evidence threshold rather than the more stringent “beyond a reasonable doubt” standard, and cited individuals are not entitled to an attorney (unless they are currently on probation). Finally, and significantly, gang injunctions are most often used in disadvantaged minority neighborhoods and in gang areas that are adjacent to affluent communities.
3 Some may argue that policy responses also include prevention and intervention programs. We contend that resources spent on prevention and intervention are minimal at best, and do not work. Therefore, we do not include them here.
Race, Class, and Gender Implications of the Policy
Today, much of the discussion about gangs is centered on issues of race and ethnicity. In criminological theory during the first half of the 20th century, race and gender were disregarded in favor of class (Irwin & Chesney-Lind, 2008). African Americans were considered just another ethnic group, and women in gangs received scant attention by researchers. In terms of policy, girls were identified as either “tom-boys” or “seductresses,” and policies advocating charm schools and teaching women to conform to gender norms was the chief program for girls—if there was one at all (Chesney-Lind & Hagedorn, 1999). For males, the expectation that “boys would be boys” produced the conclusion that they would eventually mature out of an ethnically neutral gang; therefore, generic delinquency programs were recommended to deal with immature juveniles. The essential role played by various forms of masculinities in gang membership was ignored, even as the gang member was dubbed a “rogue male” by early influential criminologists (Cohen, 1955).
The one major exception to the absence of any discussion about ethnicity was the institutionalization of the Mafia in the 1930s in large cities, and the focus on Italians. Existing literature on gangs has almost completely excluded the Mafia, with the partial exception of Ianni's (1975) study of ethnic succession. Italian gangs were ultimately labeled and treated as “organized crime,” and their history (e.g., corruption of police, and integration with urban machines) is seen as irrelevant when reviewing the majority of gang literature. Two things are clear: ethnic and racial stereotypes are prevalent in American society (Chiricos & Eschholz, 2002; Gilliam & Iyengar, 2000) and courts (Hagedorn & Maclean, 2012), and the media play a prominent role in the maintenance of these stereotypes (Welch, Fenwick, & Roberts, 1998). This is evident because the key frames or narratives used by the general public to understand the “crime problem” are provided by the media coverage of crime (Goffman, 1974). Coverage of gangs provides the perfect setting for the corporate media to racialize the crime problem, without seeming overtly racist.
Gang members are reliable and dramatic staples in these media crime scripts, with their unique tattoos, their distinctive clothing styles, their propensity to “hang out” in open street settings, and their reliance on urban graffiti as a communication device (White, 1996). Social science studies over the past decades have pointed out that media coverage is not correlated with actual gang activity, but with sensational events, and often conflates and falsely equates gangs and violence (Miller, 1975; Sullivan, 2005).
Importantly, media-driven stereotypes of crime and offenders are often accompanied with narratives that tend to stress either culpability or innocence leaving the reading public with fairly clear ideas about who should be forgiven and who deserves the punishment. Consistent with that premise, Chiricos and Eschholz (2002) noted that the dominant perception of crime as a minority phenomenon likely influenced “the dramatic escalation of punitiveness toward criminals in the past 20 years, with incarceration rates tripling despite stagnant … crime rates” (p. 401). They further stated that the ways in which minorities are portrayed in the media reinforce the notion that these groups “constitute a ‘social threat’ that warrants a punitive response by the criminal justice system” (2002, p. 416).
Girls are also demonized by the media for their gang identities—consider the Chicago trial of Jacqueline Montañez. In 1992, Montañez and two female gang members killed two rival gang members. Prosecutors spared no rhetoric at her trial:
Jacqueline Montañez is a cold, calculating, vicious murderer full of hate beyond her years. She showed no remorse at the trial and I believe today shows no remorse about what happened. She planned and perpetrated a crime by luring them with a promise of a good time. She and her fellow gang members got together and went on that mission. And then executed Hector Reyes and Jimmie Cruz in a manner that Al Capone would be proud of …. Jacqueline Montañez, Judge, has become the teen queen of criminals…. She stands 15 years old, but by her actions, she's a seasoned veteran, a cold-blooded assassin. (Krejci, 1993)
The judge lamented that the youthful age of Montañez made her ineligible for the death penalty, and she was sentenced to life without parole. But no one, neither the prosecutor, mass media, or her own defense attorneys, ever asked why a young girl would commit such a violent act? Presumably, any reading of the literature of women and violence (Chesney-Lind & Pasko, 2004) would mandate a search for childhood sexual or physical abuse in her background. In Montañez's case, she was raped and beaten by her stepfather beginning at the age of seven. She ran away repeatedly, but was returned by police to her step-father who continued the abuse until her teenage years. When she finally ran away for good, she joined the rival gang of her stepfather; consequently, the killings were obviously much more complex than simple gang revenge.4
4 See affidavits and other supporting materials plus links to Amnesty International articles at http://jacquelinemontanez.com. The “juvenile life without parole” sentence for Montañez was seemingly overturned by the U.S. Supreme Court in Miller vs Alabama, but the State of Illinois refuses to apply this decision to any prior cases. Refer to http://www.supremecourt.gov/oral_arguments/argument_transcripts/10–9646.pdf.
The punitive propensity in the U.S. gang policies all too often ignores the context of offending and appeals to fear and racial animosity for support of policies of mass incarceration (Alexander, 2010). As Jacqueline Montañez says poignantly, “I did what they said I did, but I'm not who they say I am” (Amnesty International, 2011, p. 9). Our moral panic over gangs gets in the way of an investigation of all the facts and replaces humane and sound justice policy with fear.
Unintended Consequences of the Policy: The Fallacy of Increasing Gang Violence
This chapter argues that punitive policies of mass incarceration are related to factors other than gangs as an alleged “real threat” and in large part are explained by media demonization and popular stereotypes of criminals and crime. At the end of the 1980s and early 1990s, along with law enforcement interests (e.g., the L.A. Sheriff 's office, which conducted large scale gang trainings around the country), the corporate media actively participated in generating a “moral panic” around the gang problem— think of movies like “Colors” and “Boys in the Hood”. Following arguments by Loic Wacquant (2009), Michelle Alexander's thesis in 2010 agreed that punitive policies, like those directed at ethnic youth gangs, were related to racial domination; these positions are convincing to us. The intent of this section is to illustrate that framing gangs as a “real threat” (regardless of why we believe that is occurring) ignores the actual trends of violence in the United States. We believe the explanations for this violence are found elsewhere.
We begin by looking at changes in the U.S. homicide rate over the past century.
The homicide rate in the United States in 2010 at 4.8 per 100,000 people is about the same as it was in 1950, which is often pictured as being a period of law and order. The 2010 rate is lower than it was in 1920 and exactly the same as it was in 1908.5
5 Refer to
e absolute number of homicides in the United States in 2010 was 14,748, which is actually 12 fewer than the 14,760 people murdered in 1969, despite a U.S. population increase of over 100 million people in the past 40 years (Fox & Zawitz, 2007). In other words, there is no gang homicide epidemic in the United States today. We are experiencing record low rates of violence not seen for over a century. So, howhas this good news about serious crime translated into correctional policy?
Some observers say that homicides were reduced because more offenders were locked up, but Blumstein and Wallman (2000) pointed out that the drops in homicide preceded punitive policing policies, and the expansion of incarceration practices in the 1990s. While academic debates generally found little impact of incarceration on homicide rates (see Black & Orsagh, 1978; Rosenfeld, 2000), the recently published United Nations Global Study on Homicide helps us better understand how gangs influence the variation in rates of violence (Me, Bisogno, & Malby, 2011).
To summarize this important report, homicide rates vary across regions based on their level of development. In other words, where there are vast areas of social exclusion, such as sub-Saharan Africa, homicide is at a high level. In addition, in some countries and cities, such as Medillín, Colombia, or Juarez, Mexico, homicide reaches terrifying heights. These elevated levels of homicide are the result of wars by gangs, cartels, or militias, often over control of drug markets. Any sudden jumps and declines in levels of violence are typically related to gangs making war, or as in the case of El Salvador recently, making peace (Hayden, 2012).
The history of homicide in the United States finds major increases in the 1920s were clearly related to gang wars over beer and alcohol, and in the 1990s the wars were over crack cocaine markets. The increases in the 1970s, the United Nations report suggests, are better understood as a desperate response to the devastating impact of deindustrialization (Wilson, 1987) or to increases in the hopelessness of the urban Black population after the winding down of the civil rights movement (Me et al., 2011). This period also included the expansion of and conflict between newly formed Black gangs in major U.S. cities.
By the end of the 1990s, the gang/crack wars had ended and in most cities there were significantly lower rates of violence. We contend that this signifies that the Justice Department reports of an upsurge in gang activity is unrelated to the actual recorded rates of violence. We argue that this claim of an upsurge in gang activity is more related to media demonization of violence by “dark others” (see Kingsbury, 2008). This “moral panic” exploits real fears of personal safety, and also manipulates deeply embedded racism in the U.S. public, which has led to the creation of a vast network of expensive and repressive gulags or penal camps. This policy has two major unintended consequences.
First, the vast increases in incarceration and enhanced penalties for gang members led to the takeover of the inmate subculture by street gangs, who are now the most powerful force inside prison walls (Camp & Camp, 1985; Fleisher & Decker, 2001). Almost all of the criminological literature makes sharp distinctions between prison and street gangs, That has never been the case in Chicago (Jacobs, 1977), and today gangs from prisons are dominating, or attempting to control, street drug markets everywhere (Hayden, 2004; Moore & Williams, 2010). In a period of mass incarceration, with so many young Black males being released and then quickly returning to prison for violating conditions of parole, the prison has become continuous with the community, and gangs can no longer be understood separate from their typically incarcerated leadership. The large numbers of gang members going in and out of the prison system means persisting ties of varying strength exist between gangs both inside and outside the prison walls.
Secondly, the war on gangs has led to the application of RICO (Racketeer Influenced and Corrupt Organizations Act), or organized crime conspiracy statutes against gang members. The recent passage in the state of Illinois of a “street gang RICO statute” means that the state has joined more than two dozen other states in using RICO statutes to target street gangs and not the mafia (Garcia, 2012). Aside from widening the net by increasing the incarceration of gang members, the impact or ramifications on family and friends of these RICO and conspiracy charges has been relatively uninvestigated. Susan Phillips's 2012 book, Operation Fly Trap, is the first book to look carefully at the human impact of conspiracy charges, chronicling the broken families and how the war on gangs encourages street violence. It is a chilling and important piece of research. We also need to reiterate with Michelle Alexander (2010) that prison disenfranchises felons, which, she argues, makes incarceration a key element in a criminal system that functions as the “new Jim Crow.”
What Research has Taught Us about Gangs
Since 2001, there has been a tendency to conflate the wars on gangs and drugs with the war on terror. Gangs are now frequently being reframed by media and law enforcement as “urban terrorists” (Killebrew, 2008), which often justifies police brutality and denial of civil liberties. For example, MS-13 (a transnational criminal gang) has been called a “mutating virus and international menace.”6 Anti-gang legislation, such as in Illinois and California, typically contain “urban or street gang terrorist” in the title.7
6 Ling, L. (Writer). (2000). The world's most dangerous gang [DVD]. Washington, DC: National Geographic.
7 For example (740 ILCS 147/1), referred to as the “Illinois Streetgang Terrorism Omnibus Prevention Act.”
Punitive policies continue to be popular with prosecutors and the public. The recent 5 to 4 Supreme Court decision in Miller v. Alabama (2012) declared a sentence of life without parole for juveniles was unconstitutional, following the earlier ruling that declared that the death penalty was unconstitutional for youth under 18 (Roper v. Simmons, 2005).8 At the same time, the trend continues toward waiving juveniles (particularly gang-involved youth) to criminal court to be tried as adults.9 The use of the waiver, particularly with those persons labeled as gang members, has shown no overall decline over 25 years, despite declining rates of crime and violence. About one in every one hundred youth adjudicated delinquent is waived to adult court. These data demonstrate that we have not decisively broken from the fears of John Dilulio's predictions that the nineties would see a generation of young, hyperviolent “super-predators.” (Adams & Addie, 2010).
8 Note that many states, like Illinois, simply refuse to apply the ban on juvenile life without parole sentences to past cases, including Jacqueline Montañez.
9 For example, see Institute for Law and Justice, specifically sections on Prosecutor and Judicial Decision making in Juvenile Waiver Cases. Retrieved from http://www.ilj.org/focus_areas/gangs_and_juvenile_justice.html
Most criminological reviews of gang programming (e.g., Howell's Gangs in America's Communities) omit any mention of the impact of mass incarceration, and avoid discussing the everyday problems of minority youth when dealing with law enforcement, such as overly aggressive policing, brutality, and corruption. Federally funded gang programs tend to have a very one-sided view of the police in poor minority communities; they see them as agents of social control and not as problems themselves. Also, including the police as part of the problem is virtually unknown in the federally funded universe of gang research.
For example, the highly touted G.R.E.A.T. program purports to be a gang and violence prevention program, but formal evaluations (see a review in Howell, 2012) have not found any long-term effects on gang membership (Esbensen, 2004). The main impact of the program appears to be a short-term change in attitudes of youth toward law enforcement. The G.R.E.A.T. program is more ceremonial than substantive and appears to be little more than a 21st century version of “Officer Friendly.”
A second example is the Department of Justice “comprehensive model” (Howell, 2012)10 of gang programming that was based on Irving Spergel's Little Village Gang Violence Reduction Project in Chicago. What Howell and the Department of Justice (DOJ) fail to disclose is that Spergel's project was sabotaged by the Chicago police and ultimately denied funding (Spergel et al., 2003).11 In the final Report to the project, the late Dr. Spergel laments: “The Mayor and the Superintendent of the Chicago Police Department still had not learned that the gang problem was a complex human, organizational, and community problem that could not be resolved by hardline police policy alone” (Spergel et al., 2003, p. 18).
10 http://www.nationalgangcenter.gov/Comprehensive-Gang-Model/About
11 Spergel also expanded on this issue in a personal conversation to the first author, and in a formal talk to one of his classes.
In fact, Chicago provides a good example of what public policy has not learned from research on gangs and violence; hence, Chicago is an excellent setting for an exploration of whether gang wars are a response to a real threat or may more closely resemble a moral panic.
Gangs, Chicago, and Homicide
Chapter 12
The first juvenile court was created in 1899 in Chicago. Its founders promoted it as a way to help youth in need by responding to youth crime in developmentally appropriate ways. The creation of this type of court was a very popular legal reform, and states across the United States quickly copied Chicago's idea and began their own juvenile courts.
More than 100 years later, the system of juvenile courts is still in place. But, often children under age 18 are prosecuted in adult criminal courts instead of juvenile courts, due to a policy called juvenile waiver. Waived juveniles are identified as better suited for the adult court, and their cases are transferred, or waived, there. In this chapter, we describe how the numbers and use of juvenile waiver policies has expanded in recent years and the effects of these policies.
The Back Story
The development of the juvenile justice system in Cook County (Chicago) in 1899 was preceded by massive social change, including transformations like urbanization and immigration (Platt, 2009; Rothman, 2002). Rapid immigration and urbanization in the late 19th century meant that large numbers of youth, many of them poor and from immigrant families, were forced to fend for themselves on urban streets. Their parents often worked long hours in factories, leaving these youth with little supervision as they traveled within high-crime impoverished areas.
At the same time, ideas about childhood were changing in the United States. Historians described the late 19th century as a time when broadly held ideas about childhood, including perceptions of the abilities and vulnerabilities of children as well as of the “value” of children, were changing (see Feld, 1999; Zelizer, 1985). Children were increasingly seen as different from adults because they were: (a) vulnerable and in need of protection from cruel city streets, (b) innocent, in that they were not fully responsible for their mistakes due to their immaturity, and (c) emotionally priceless, as adults began to cherish children more for sentimental reasons than for their ability to contribute financially to the family.
These two trends—increasing numbers of poor, unsupervised, often immigrant youth, and the growing recognition of children's needs and their differences from adults—led to broad changes in how society dealt with juvenile delinquents and to the creation of the first juvenile court. Rhetorically, at least, the new juvenile justice system followed the ideas that juveniles, due to their age and lack of maturity, were more in need of rehabilitation than punishment. Children were also viewed as having a lower level of culpability (blameworthiness) than adults, since they lacked adult-like maturity (Bortner, 1986; Fritsch, Caeti, & Hemmens, 1996). The court system was designed to be a “confidential, informal, and non-adversarial forum to deal with crime related and other problems of children” (Houghtalin & Mays, 1991, p. 394). Juveniles were viewed as relatively blameless, since the court's founders believed that improper parenting and negative community influences were the root causes of their delinquency (Applegate, Davis, & Cullen, 2009). As a result, children were seen as more innocent, less able to form criminal intent, and more amenable to treatment and rehabilitation than adults (Fritsch et al., 1996; Kurlychek & Johnson, 2004).
Yet, the founders of the first court realized that not all youth fit this description, as some juvenile offenders were so dangerous or stubborn in their offending that they were beyond the juvenile court's ability to help. These youth were sent to the adult courts, or waived to the adult court for prosecution and punishment (see Kupchik, 2006; Tanenhaus, 2004). This practice was relatively rare since the founders of the juvenile court were optimistic that they could reasonably respond to most delinquent youth.
In the 1970s and 1980s, the juvenile court came under attack. Juvenile crime was rising, and critics argued that the rehabilitative nature of the juvenile justice system was too soft on crime, too coddling of offenders. These critics insisted on a more retributive approach, where punishment was the central goal instead of rehabilitation; such an approach follows the maxim “an eye for an eye” in prescribing punishment rather than trying to fix the problems that led to the delinquency (Applegate et al., 2009; Fritsch et al., 1996; Steiner & Wright, 2006; Steiner, Hemmens, & Bell, 2006). Though juvenile courts were able to waive the most difficult youth to adult court, critics argued that this happened too infrequently. As a result, 49 states amended their statutes during the 1990s to “get tough” on crime, increasing the number of juvenile offenders prosecuted as adults. The purpose of these new laws was to make it easier for judges or prosecutors to waive youth to adult court so that they could be treated as hardened offenders rather than as errant youth. Punishment rather than rehabilitation was now the central concern guiding the sentencing of these juveniles. Those accused of serious crimes were to be held fully accountable and have to take full responsibility for their acts, two ideas that were previously foreign to the juvenile justice system (Fritsch et al., 1996; Urbina, 2005). Slogans like “If you are old enough to do the crime, you are old enough to do the time” started appearing in the media, and political campaigns championed a “get tough” on crime position (Kurlychek & Johnson, 2004).
These laws worked in different ways. One type of waiver law that became more common during this time is usually referred to as “statutory exclusion.” These laws apply to specific age/crime combinations and dictate that youth of certain ages arrested for certain offenses are automatically waived to the adult system. In Maryland, for example, juveniles 14 and older are automatically waived for capital offenses, and those 16 and older are waived for a host of personal and weapon offenses (Kurlychek & Johnson, 2010). In addition, certain states have “once waived, always waived” legislation, which states that after a juvenile is waived once to criminal court, all subsequent charges against the juvenile, regardless of the severity of the offense, have to be charged in criminal court. Other laws expanded the original type of waiver practice, known as “judicial waiver,” where judges decide which juveniles should be waived. These new laws made it easier for judges to waive youth based on their discretion, by removing barriers like minimum age requirements for waiver. In these cases, a judge has to determine if the juvenile is amenable to the treatment options available in the juvenile court. If the judge feels the juvenile will not benefit from the treatment offered by the juvenile court, the judge transfers the juvenile to adult court. Also, these decisions usually take into account the age of the offender and the offense committed (Griffin, 2003).
But, perhaps the most substantial shift was that states across the United States gave greater power to prosecutors to decide which youth should be waived. Many states adopted “direct file” laws that allow prosecutors to file juvenile cases directly to the adult court, prior to any appearance before a judge (also known as prosecutorial waiver) (Applegate et al., 2009). Fifteen states allow the use of direct file, and while some have restrictive criteria about who can be waived, other states give the prosecutor a great deal of freedom and discretion to make this decision. For example, in Florida prosecutors have few restrictions on directly filing juvenile cases in adult court, thus the waiver of juveniles to the adult court is very easily accomplished. One consequence of this broad prosecutorial authority in Florida is that racial and ethnic minority youth are disproportionately transferred to the adult system, with studies finding Black youth over twice as likely to be transferred (Bishop, Frazier, & Henretta, 1989).
The Current State of the Policy
It is very difficult to estimate exactly how many youth under the age of 18 are prosecuted in adult court, for two reasons. One reason is that there are many different ways for a youth to be waived to adult court.1 Most states allow for judicial waiver, where a judge can decide which youth should be sent to the adult system. In some states, judges must follow presumptive judicial waiver laws, where a judge has little ability to deviate from the presumption that a case will be waived, based on specific criteria. In other states, judges must waive certain cases, if certain criteria are met. But, other cases can be directly filed in the adult court by a prosecutor, and yet others are automatically excluded from the juvenile court. In most states, the age of the offender and type of crime determine which of these many waiver mechanisms can and will be applied to a particular case.
1 For an excellent recent summary of states’ waiver laws, see Griffin, Addie, Adams, and Firestine (2011); this summary informs the following discussion of contemporary waiver laws and rates of waiver.
Just to make things even more confusing, more than half of all the states also use a “once waived, always waived” rule; this rule states that if a youth is waived to the adult court at any time, that juvenile is automatically considered an adult for any further criminal offense, regardless of their age and how trivial the offense. Conversely, about half of the states allow for a “reverse waiver,” which means that after a juvenile's case gets waived to the adult court, it can still be waived back down to the juvenile court. In other words, waiver laws are very complicated, with most states using multiple—sometimes even competing—waiver mechanisms.
The second reason why it is difficult to estimate how many youth are prosecuted as adults is simply that we don't bother to count them. The number of youth who are waived by judges is counted each year—however, this is the least common method of waiver (Griffin et al., 2011). There is no national count of youth whose cases are directly filed in the adult court, or who are excluded by law from the juvenile court, because many jurisdictions don't define them as juveniles. Once a juvenile gets treated as an adult, their legal status within the criminal justice system is that they are, officially, an adult. Thus, a thirteen-year-old in middle school, who enjoys absolutely none of the rights or privileges of an adult (e.g., voting, purchasing alcohol or cigarettes, driving) and who is classified as a dependent and a minor by all other government agencies, no longer counts as a juvenile for criminal justice statistics once she or he is waived to the adult court.
Nationwide, we know that about 8,500 youth were judicially waived in 2007 (Griffin et al., 2011). Based on a 1998 report from the Department of Justice, we can use this number to estimate the number of youth waived by other means (Rainville & Smith, 2003). This report was based on research in 40 large counties in the United States where the researchers tracked cases of all the juvenile defendants who were waived to adult courts. It found that in these counties, judicially waived youth represented about one-fourth of all waived youth (Rainville & Smith, 2003), suggesting that approximately another 25,500 youth were waived in 2007 from direct file and statutory exclusion laws, nationwide.
Yet, neither of these estimates includes youth who are beyond their state's age of majority. This is important because 13 states define being an adult (for criminal justice purposes only) at either 16 or 17. In New York, for example, all 16- and 17-year-olds who are arrested for any offense are automatically defined as adults, with no opportunity whatsoever for prosecution in the juvenile court (thus, when a prosecutor on Law and Order wrestles with the decision to prosecute a 17-year-old as an adult, the television show offers an incorrect view of New York's laws). Based on their states’ ages of majority, Griffin et al. (2011) attempted to estimate the number of youth younger than 18 who were prosecuted as adults; they estimated that up to 175,000 youth reach adult court this way! These youth aren't normally considered under other counts of waived youth, even though they are younger than 18 and prosecuted in adult courts.
Though these estimates may be helpful, they are estimates, not counts, and should be interpreted with caution. Moreover, extrapolations are severely complicated by the fact that states waive youth at very different rates. For example, among the 13 states that collect and report data on waiver fairly well, the rate of waiver varies from 7.1 per 100,000 youth in North Carolina to 164.7 per 100,000 in Florida (Griffin et al., 2011)—this variation among the states would likely be larger if all the states were included in the comparison.
Another way to view the contemporary use of waiver policies is to look at a high profile case. Consider, for example, the case of Jordan Brown, who killed his father's pregnant fiancée in 2009 in Pennsylvania, when Jordan was 11 years old (Balingit, 2012). Jordan's case was initially heard in the adult court, but eventually he was sent down to the juvenile court where in April of 2012, he was adjudicated delinquent (the euphemism for “convicted” used in the juvenile court) for the murder of his father's fiancée and her unborn baby. Jordan's crime was horrific and clearly deserves some form of serious punishment that can both protect the public from a severely troubled youth and respond to public outrage over the crime. But, given the severe immaturity of the average 11-year-old, the prospect (and initial action) of prosecuting Jordan as an adult raises interesting questions. Does it make sense to prosecute a preadolescent as an adult if he lacks anywhere near an adult capacity of maturity and reasoning, including the ability to understand the consequences of his actions, think about the future, or empathize with others? Is the answer to this question influenced by the fact that conviction for this offense in the criminal court would have resulted in a mandatory sentence of life in prison without possibility of parole?
Jordan's case also underscores the complexity of waiver law. Because of Pennsylvania waiver laws, his case began in the adult court, which states that the judge conducts what is known as a “decertification hearing”; here, the judge decides if the case should be “decertified,” or waived down to the juvenile court. The judge denied the defense's request for decertification, arguing that because he refused to admit guilt and take responsibility for the crime, Jordan failed to show he was amenable to rehabilitative treatment (amenability to treatment is one component of the decertification decision). Jordan's attorneys successfully argued to the Pennsylvania Superior Court that it was unconstitutional to force him to admit guilt (thus foregoing his right to a trial) in order to be prosecuted as a juvenile (Juvenile Law Center, 2012). This disagreement shows the complexity of Pennsylvania's waiver laws and lack of clarity—even among judges—about how waiver decisions should be made.
As we discuss below, a growing body of evidence suggests that waiver laws may produce more harm than good. Perhaps in recognition of this, a number of states are beginning to undo some of their waiver mechanisms. In Connecticut, the criminal age of majority was raised to 18 from 16. Other states have enacted smaller changes, such as limiting the offenses for which a juvenile can be waived (see Arya, 2011). For example, in 2010 Colorado raised its minimum age of direct file eligibility from 14 to 16 for most offenses, meaning that prosecutors cannot directly file juveniles younger than 16 (other than those charged with murder or a sex offense) to adult court. Though waiver is still a common and popular practice, these modest legal reforms suggest that we may see a substantial reduction of the use of waiver at some point in the near future.
What Research has Taught Us: Outcomes of Waiver Laws
There are a few key goals of waiver laws: to sentence serious offenders more severely than could be done in the juvenile court; to judge serious juvenile offenders based on what they have done, not on who they are; and to protect the public from serious juvenile offenders. The research evidence suggests that waiver laws may have met the first goal, but have failed at the other goals.
Early research examining whether waived youth are punished more severely than youth in the juvenile court shows mixed results; some studies find that juveniles who get waived are more likely to be convicted and incarcerated than youth in the juvenile court, while other studies find that they are less likely to be convicted and incarcerated (see Howell, 1996). If the latter is true, it is probably because adult court judges who are accustomed to sentencing hardened adult offenders may look sympathetically at waived youth and attempt to rehabilitate rather than punish them severely. However, more recent research has done a better job of comparing similar cases and controlling for factors like juveniles’ prior records. This literature tends to report that youth prosecuted in criminal court do indeed receive harsher punishments than those tried in juvenile court (Jordan & Myers, 2011; Kupchik, Fagan, & Liberman, 2003). Moreover, recent research suggests that youth who are waived often receive even harsher punishment than young adults who are charged with the same crimes (e.g., Kurlychek & Johnson, 2004, 2010; Steiner, 2009). Thus, overall the research finds that waiver to adult court is successful at providing harsh punishment for juveniles.
When we look at how these waived youth are judged, however, we find that waiver laws are less successful. In theory, waiver to adult court means that the defendant's immaturity should no longer matter, only their offense (see Kupchik, 2006). As slogans, such as “you do the crime, you do the time” suggest, waiver laws are meant to select some youth who no longer deserve the individualized decision making of the juvenile court and now must be judged only for the harms they committed. Waiver laws are intended in part as a message that at least for these youth, it doesn't matter if they have dysfunctional homes or learning disabilities—only their crimes matter. Yet, research that examines how youth in criminal court are judged finds that these waived youth are still judged with their immaturity in mind. Though this research is sparse and based on case studies that may not be generalizable to all jurisdictions, it finds that judges, prosecutors, and defense attorneys do still consider the immaturity of waived youth and try to allow them room for rehabilitation (Barrett, 2012; Kupchik, 2006). For example, this research finds that adult court judges often delay sentencing on juveniles’ cases while the juvenile is sent to drug treatment, counseling, or other therapeutic programs. If the juveniles do well in these programs, and prove their ability to reform their behavior, judges often suspend their prison sentence. Thus, when they believe the circumstances of a particular case warrant it, court actors actually bypass some aspects of waiver laws in an effort to act like a juvenile court, not an adult court; in these cases they allow children the opportunity to learn from their mistakes rather than assuming they are fully responsible for their crimes.
Nevertheless, perhaps the most important outcome to consider is public safety. Waiver laws are intended both to protect the public by teaching young criminals a lesson and to prevent crime among youth who may be frightened by the harsh sentences given to young offenders. This was certainly a central promise of politicians who wrote new waiver laws in the 1990s, suggesting that only by creating harsh waiver laws could we tackle increasing rates of serious juvenile crime. By this important measure, waiver laws are a colossal failure. Several studies in different parts of the country and using very different methodologies were conducted looking at both general deterrence (whether waiver laws prevent crime among the whole population of youth) and specific deterrence (whether the experience of waiver prevents a return to crime, or recidivism, among the specific youth who are waived) (see Bishop, Frazier, Lanza-Kaduce, & Winner, 1996; Fagan, 1996; Fagan, Kupchik, & Liberman, 2003; Jensen & Metsger, 1994; Lanza-Kaduce, Frazier, Lane, & Bishop, 2002; Myers, 2001; Singer & MacDowall, 1988; Steiner & Wright, 2006; Winner, Lanza-Kaduce, Bishop, & Frazier, 1997). Recent reviews of this research conducted both for the U.S. Department of Justice (Redding, 2010) and the Centers for Disease Control (Hahn et al., 2007; see also McGowan et al., 2007) find that these studies converge on two general conclusions: waiver laws have no general deterrent effect (they have no impact on juvenile crime rates, generally), and among youth who are waived, the waiver laws may increase rates of crime, particularly violent crime.
It is not fully clear why waiver laws might increase crime. It's possible that the mark of an adult conviction makes it more difficult for waived youth to find employment and even a place to live (e.g., many housing projects evict residents if a family member has been convicted of certain crimes2), which makes them more likely to return to crime rather than moving forward with productive lives. It's also likely that because they are sent to the adult system, these juveniles miss out on potentially helpful treatment they could have received in the juvenile court system. Although the research still has not fully explained why we see this result, it is now clear that the increased use of waiver that began in the 1970s puts the public at greater risk of criminal victimization, particularly violent victimization.
2 The federal government's “One Strike” policy encourages public housing authorities to evict families if their children are convicted of any offenses, leading to homelessness among youth whose families face the choice of kicking out their children, or eviction for the whole family (Kaplan & Rossman, 2011).
Race, Class, and Gender Implications
Another serious problem with the broad use of waiver is that waiver policies increase racial inequality in the juvenile justice system. Several studies find that youth of color are considerably more likely than White youth charged with the same crimes to be waived to the criminal court (e.g., Bortner, Zatz, & Hawkins, 2000). While self-report studies show White adolescents use drugs just as often as African American adolescents, 75% of juvenile drug offense defendants are Black, and 95% of youth sent to adult prison for drug charges are youth of color (Young & Gainsborough, 2000).
Once in the criminal court, youth of color also face more severe punishments than similarly situated White youth. For example, Jordan & Freiburger (2010), found that compared to Whites, a Black youth's chances of receiving probation rather than jail time were decreased and both Blacks and Hispanics were significantly more likely to receive prison rather than a jail sentence compared to Whites. Finally, having previous encounters with the juvenile justice system increased the probability of receiving prison rather than jail for Black youth, but not for Whites. Because youth are much more likely to face severe punishment in the adult system than in the juvenile system, and their incarceration in adult facilities often leads to severe problems like physical attack (Forst, Fagan, & Vivona, 1989) and PTSD (Fagan & Kupchik, 2011), this racial discrepancy in the use of waiver means that minority youth are subjected to hurtful outcomes at greater rates than White youth.
Furthermore, the racial discrepancies caused by waiver do not cease once the juveniles are released, since the stigma of criminal court conviction continues to harm youths for years to come. In contrast, juvenile court convictions are often sealed and confidential, which means that the youth are less likely to be punished when seeking jobs, housing, or public benefits. Yet, this stigma that results from waiver has different consequences according to a juvenile's race. For example, in an extensive study of the long-term harm of a criminal conviction to one's future prospects, Devah Pager (2007) conducted an experiment where Black and White young men claiming to have criminal convictions searched for employment. She found that contact with the criminal justice system substantially decreased employment opportunities for youths, indicating the stigma of prison as the factor preventing them from employment. For instance, 34% of Whites without a criminal record received callbacks compared to only 17% of Whites with a criminal record; indicating a criminal record reduces their chance of callback by 50% (Pager, 2007). Unfortunately, this statistic was much worse for African Americans. Despite similar resumés, the results indicated that among Blacks who did not have a criminal record, only 14% received callbacks, compared to 34% of Whites without criminal records and 17% of Whites with a criminal record. Therefore, the effect of a criminal record is much more pronounced for Blacks than it is Whites. This is again evident from the report that employers asked several Black applicants before submitting their application if they had a criminal history. None of the White applicants were asked the same question (Pager, 2007).
Overall, evidence on waiver strongly reveals that it increases racial inequality; youth of color are at greater risk than White youth of being waived, which has a long-lasting effect on their ability to eventually become productive citizens. There is less evidence on whether waiver has implications for gender and class dynamics. With regard to gender, this is likely because most waived cases are of males, though additional research is needed to clarify this issue. With regard to class, this is probably because juvenile and criminal justice systems rarely collect data on socioeconomic status, thus it is difficult to measure the class backgrounds of juveniles.
Unintended Consequences of Juvenile Waiver Policies
Above, contrary to the goals of waiver policies, we discussed how waiver leads to increased crime rates and less overall public safety. Yet, there are other downfalls to the widespread use of juvenile waiver as well. One important consequence is that waived juveniles who are incarcerated often do their time in adult correctional facilities rather than juvenile facilities. Research shows distinct differences for youth between the adult and the juvenile correctional experience. Simon Singer (1996) describes how youth and adult systems differ physically and structurally.
Masten Park, like other [Division for Youth] facilities, differs from adult prisons in several important ways. First, they are physically different. Secure facilities for juveniles are much smaller than most maximum security adult prisons. Like other juvenile facilities, there are no prison cells with iron bars in place of doors. Juvenile institutions contain a much lower staff-to-inmate ratio. Masten Park's daily average of 100 juvenile offenders contrasts sharply with another correctional facility in western New York, Attica, which houses over 2,000 adult inmates. (p. 167)
With such a large number of inmates and the low staff-to-inmate ratio, juveniles in adult prisons are much less likely to receive educational or counseling services. Once waived to the adult system, the child also loses protective and rehabilitative services (Redding, 2003). According to one study, juveniles facing time in adult prisons are almost eight times more likely to commit suicide, five times more likely to be sexually assaulted, two times more likely to be beaten by a staff member, and 50% more likely to be attacked with a weapon (see Forst et al., 1989; Young & Gainsborough, 2000). Other research indicates that compared to juveniles in adult facilities, those in juvenile facilities develop more supportive, mentoring relationships with staff that can be helpful for their successful reintegration to society after their release (Kupchik, 2007). Moreover, juveniles in adult facilities report significantly higher levels of posttraumatic stress disorder (PTSD) and other symptoms of mental illness compared to similar offenders serving time in juvenile facilities (Fagan & Kupchik, 2011). In other words, because they are waived to the adult system and often incarcerated in adult facilities, these youth are more likely to be victimized, receive less treatment, and leave the facilities in worse shape than youth who are retained in the juvenile system.
Unfortunately, the problems with youth being transferred to the adult system do not stop once they are released. As we mentioned above, several long-term consequences are associated with transfer of youth, including a public record, being charged as an adult on subsequent offenses, having to report conviction on employment applications, as well as losing the right to vote and serve in the military. Gainful employment and an education are both activities that have been shown to reduce recidivism. A felony record can automatically disqualify employment in certain licensed or professional occupations, jobs in health care or skilled trades, as well as public sector employment (Western, Kling, & Weiman, 2001). This has a tremendous impact for a juvenile who may still spend the majority of his or her life outside of prison. He or she has very limited opportunities to find employment that affords a decent living, which consequently could provoke the return to illegal and more profitable activities (Needels, 1996). While research has shown there is no causal link between having a criminal record and posing a risk to campus safety, more and more college campuses are including criminal records on applications. Taking away the chance to attend college greatly impacts these juveniles, because studies show that education greatly reduces recidivism by increasing employment opportunities (Center for Community Alternatives, 2011).
uggestions for Policy Reform
At this point, the evidence is clear that the current waiver policies should be changed. Pretending that children who make mistakes are equally responsible for their crimes as adults runs contrary to all science on adolescent development (e.g., Steinberg, 2009). Punishing juveniles as adults exposes them to harsh treatment and fails to help them refrain from crime in the future. But, perhaps most importantly, the evidence now strongly suggests that waiving large numbers of juveniles to the adult court only increases crime and puts the public at greater risk of victimization.
None of this signifies that juveniles should never be tried as adults, but that the waiver practice should be used sparingly, only for the most severe cases, and where it is necessary for public safety or where juvenile justice penalties proved ineffective. Policies need to be revised, such as in the state of New York where all 14- and 15-year-olds arrested for any of seventeen felony offenses are automatically waived to the adult system, and where all 16- and 17-year-olds arrested for any offense are considered adults. These policies allow little room for informed professionals to evaluate individual youth to determine whether they are in fact beyond the capacity of the juvenile court.
It is also important to limit the use of direct file, the type of waiver that allows prosecutors authority over who is waived and who stays in the juvenile court. Though they may be well-intentioned, prosecutors typically have only a portion of the relevant information available to them. They usually know only about the offense committed, and nothing about the juvenile and his or her home life, history of victimization, efforts to succeed in school, or other factors that should be taken into account in deciding whether the youth deserves to be prosecuted as a juvenile or an adult.
The solution is fairly straightforward: return to a system of judicial discretion and limited use of waiver. This was the practice of most juvenile courts before the wave of legislation from the 1970s through the 1990s, which led to so many youth being waived to the adult court. A system of judicial waiver allows judges to make balanced decisions after hearing from both prosecutors and defense attorneys, and after weighing all the information, not just the facts relating to the offense itself. Only cases in which serious violence takes place, or cases where the juvenile has exhausted options available through juvenile court and continues to offend, should be waived to the adult court. This system protects youth from the hazards of waiver, protects the public from the higher crime rates that result from the frequent use of waiver, and allows the juvenile court to make sensible decisions and treat youth.
Another important policy reform is to begin counting the number of people younger than age 18 who are prosecuted and punished as adults. It seems ridiculous that in this information age, we simply don't know how many youth are waived to the adult system. Without better information, it is difficult to track who is waived, how many are waived, and what outcomes result.
Finally, additional research is necessary to study gender and class implications of waiver. We discussed the racial implications found in several prior studies; yet, we know very little about the extent to which female youth are particularly affected by waiver to criminal court or whether social class shapes waiver experiences. The issue of gender implications is particularly important since arrest rates of female juveniles relative to those of males increased considerably in recent years (see Chesney-Lind & Irwin, 2007). We hope that researchers can remedy these gaps in our knowledge as additional data on waiver are collected.
