to be normal and a sign of maturity in our society (Kohlberg, 1984). In our society ..... KOHLBERG, LAWRENCE (1984) The psychology of moral development ...
The social construction of juvenile delinquency
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YOUNG Volume 1 Number 4 1993
The social construction of juvenile delinquency: Sailing in cold or hot water LARS-CHRISTER HYDÉN In the late 1980s five boys aged 15 to 19 years, all with criminal backgrounds (the boys had commited burglaries and in one case physical assault), were sent on a sailing trip to the Mediterranean by the the social welfare department in Stockholm. They sailed on a large cruising yacht and were led by two experienced and professional sailors (cf. Hydén, 1992). The aim of the trip was to rehabilitate these boys to a non-criminal life-style, not by locking them up in closed institutions which is the conventional approach, but by placing them in - at least in the Swedish context - an unconventional 'treatment' project. This sailing trip provoked a fierce public debate, among ordinary people as well as in the massmedia, about the legitimacy of this cruise, which had been authorized by social workers and financed by tax payers money. This debate was a public illustration of at least part of a process which normally is hidden, namely the social definition of persons and behavior and the social consequences of this process of definition. In the case of the five sailor boys the central question was whether they should be treated as criminal or as social cases. In other words, the public debate over the five boys could be conceived as a debate about the social definition of juvenile delinquency. Two clear-cut positions could be discerned in the debate. On the one hand, there were those who argued that the boys ought to be punished instead of being sent on a sailing trip which more than anything resembled a holiday and on the other, those who defended the trip and its definition as treatment. The proponents of the former position asserted that the boys had commited criminal acts and consequently ought to be punished. To them, no mitigating factors were present. A closer look at their arguments reveals an interesting peculiarity. Most of the critics did not in fact disapprove of the sailing as such. Their point was that the boys were sailing in the 'wrong waters': namely, it was too hot where they were going. Sailing in the Mediterranean is sailing in waters which to Swedes are closely associated with holidays. To these critics, it would have been preferable had the boys been taken sailing along the Norwegian coast, where they would have to combat cold water and stormy weather, which would more closely resemble punishment. file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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The defenders of the trip, mainly social workers and so-called 'humanitarians', argued that the point was precisely not to punish the boys. Rather, what was needed was some kind of treatment to help them establish a new way of life and leave criminality behind them. This objective could only be achieved by means of some form of treatment. Treatment was necessary since these five boys had grown up under socially and psychologically distressful conditions which had led them to criminal behavior. In the debate, it is possible to identify two lines of argumention. One line is the idea that the boys should be held responsible for their actions, regardless of possible mitigating factors, and as a consequence be punished for their behavior. The other line of argument is that although the boys had committed criminal acts, the misery of their social upbringing excused their behavior, warranting treatment rather than punishment. Two questions seem to be especially interesting in this context. First, it was not evident what terms the boys should be defined - at least partly because of their age. If they had been adults, they would most likely have been defined as criminals and punished in the conventional ways. But since these five boys were teenagers, it was disputable whether despite the fact they were criminals - they should be punished for their criminal acts or not. In other words, age seems to have been a crucial factor in the social definition of these boys. A second problem in the debate was the degree to which social background factors like poverty, poor eduction and the like, could be used as an argument to excuse the behavior of the boys and in particular as a way to reduce the social sanctions imposed against them. It seems to be a point of contention as to whether it is socially more acceptable for with miserable backgrounds to commit criminal acts. In the following, I want to discuss these two problems since they seem to be fundamental to the way in which the behavior of some teenagers is defined. The particular aspect to be discussed here is whether these teenagers should be conceived of as a social or a juridical problem (or, in other cases, a psychiatric or moral one) and to what degree it is possible for social background factors to serve as mitigating elements when dealing with teenagers.
The responsibility paradigm The question whether the boys should be defined as criminal or as social problems seemed to rest on a fundamental paradigm concerning the assignment of responsibility for actions and the consequences of this liability. This conception appears to be deeply embedded in Western culture, although differences in determining degrees of responsibility and certainly in the formulation of the institutional file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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consequences probably occur. In the following, this paradigm will be referred to as the 'Responsibility paradigm'. In general, in both legal and other contexts, an individual must be linked to an action in such a way that it is clear it was he or she who committed a certain act at a certain point in time. But it is crucial to analyse the context of the action in order to make it clear what kind of act was committed. Only then does it become possible to judge what kind of responsibility the person has for the act (Feinberg, 1965). If I walk into a grocery store and on impulse grab some meat and walk out without paying, this is a different kind of act than if I had planned the theft. In the first case, my action was impulsive and not deliberate; in the latter case, it was clearly premeditated (Duff, 1990). The first action could presumably be excused in terms of an impulse which overcame me. But the second is presumably difficult to excuse, and I would probably have to try to justify it by arguing that I was hungry, had no money, and therefore was forced by social circumstances to steal food (Austin, 1956/1990; Scott and Lyman, 1968). In both cases I committed a criminal act, the seriousness of which would depend on the description of the context of the act. But basically I undoubtedly would be found to be an agent capable of having insight into the wrongness of my act and its consequences. This is the common way in which a person is defined as a criminal or as a 'problem' to be processed within the legal institutions. A second case would be when it is possible to argue that a person was not of 'sound mind' when commiting the act. This person would be seen as temporarly or permanently distracted or affected by mental illness. In this case the person is not judged responsible for his actions, and as a consequence cannot be punished. Instead he or she is sentenced to or recommended for some form of treatment, being legally judged as 'mentally disordered'. The responsibility is lifted off the person here if his action can be explained in terms of a force which clouds his judgement or his possibilities of making a sound judgement. In such cases the person is defined as a psychiatric case, such his competence to act as a responsible agent is diminished by mental illness. His action can neither be excused nor justified as he is not considered a capable agent at all. A person may commit a social, moral or legal infraction but still be a capable agent, even though his actions may be excused by reference to his social circumstances (Floud, 1975). Examples of social circumstances that can be used to excuse criminal acts include when a person has grown up under circumstances that could be characterised either as socially or psychologically deprived rendering the person a socially less capable citizen in terms of knowledge and foresight as regards social and moral rules and consequences; or when a person belongs to what commonly is regarded a subculture - that is, a culture with different norms and moral rules found in what could be called the file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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mainstream society. In these cases as well can be claimed that a person who does not act according to norms of the majority society does so because of insufficient knowledge which can be attributed to social circumstances. In these instances, a person may be classified as a 'social case' or a 'social problem' : in other words, by referring to social cirsumstances, a social reason is invoked to excuse a criminal act in order to mitigate the description of both the person and of the act. In sum, the 'Responsibility paradigm' states that the degree of responsibility for action can be localized along a continium with premeditated actions at one end - where the person is defined as a criminal - and at the other, actions for which no one can be held responsible due to the fact that the person who committed the act was overcome by impulse or mental disorder, making this a psychiatric case. If mitigating factors of a social kind can be identified which lessen liability, the person may be defined as primarily a social problem.
Children and teenagers As suggested by the public debate over the five Swedish sailing delinquents, the 'Responsibility paradigm' evidently becomes problematic when actions committed by teenagers are to be defined. Our assessments of the actions of children and teenagers seem to depend on the age of the child. In Sweden, for instance, parents of young persons not yet 15 years old are formally responsible for the actions of their children. When teenagers turn 18, they are regarded as responsible in certain respects: they may vote, they may be given to criminal sanctions, but they may not purchase alcohol. This periodization is arbitrary to a certain degree and wholly determined by historical and cultural circumstances. It has become institutionalized in our society and is important in our assesment of actions and what we perceive to be normal or non-normal for different age groups. In our culture, children are generally regarded as only partially responsible for their actions, in contrast to adults, who are fully responsible - with some exceptions as discussed above (cf. Harré, 1983). In general, the actions of children are seen as impulsive because children are unable to deliberate their actions and to judge them according to cultural norms (Frankfurt, 1988). We tend to argue that children are unable to evaluate their actions according to general moral standards. It is assumed that such capability develops during the teenage years. Sometimes it is argued that children lack the cognitive capability of evaluating their behavior morally in a way that is assumed to be normal and a sign of maturity in our society (Kohlberg, 1984). In our society and culture, we argue that children are incapable of free moral judgements according to the moral standards of the adult world. Furthermore, children do not have the right to make moral judgements file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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or to act in accordance with their own moral judgements. In this way, children and youths can be excused for their actions by reference to their age. Young persons, from about 15 to 18 years old, are in a transitional period between being children who are free from responsibility and adults who are responsible for their actions (Matza, 1964). This implies that we are not sure whether we can argue that youths are responsible when they commit criminal acts and if they must be held fully responsible for their actions. We are especially ambivalent about whether young persons act with full moral insight into their actions and the possible consequences of these actions for other people and the way they are judged by the rest of society. This problem of deciding whether teenagers are to be regarded as responsible subjects or not is probably one of the reasons for the emergence of the debate over the five boys' sailing trip. The critics of the sailing trip claimed that the five boys were quite aware both of having committed criminal acts and of the consequences. In this respect they ought to be defined as liable subjects irrespective of their age (1519 years). And, as a matter of fact, the five boys actually defined themselves as responsible criminals who expected a just punishment. They were, at least initially, critical of the sailing trip because of the nature of its treatment, and preferred a definite punishment to this somewhat more indefinite 'social treatment'. They wanted to know when they could expect to be released and the character of the penalty. The defenders of the sailing trip wanted to define the boys, not as criminals, but as 'social problems', thus legitimatizing the trip. They argued that the five boys had been brought up in social and psychological deprivation. Implied in this line of reasoning is the assumption that due to their upbringing the boys are less apt to function as 'normal' citizens because they presumably had been denied experiences that we regard as necessary for learning how to act according to conventional standards. For instance, it was argued that none of the boys had had any close father-figure during their upbringing, but were raised by single mothers. On the assumption is that fathers represent and transmit the moral order to children, the defenders of the trip believed that the boys had not learned the necessary moral standards and insights. When the boys commited crimes they did it because they lacked the moral insight into the motives and consequences of their actions. This lack of morals, it is claimed, may then be regarded as an excuse for their criminal actions. For this argument to be correct in its defence of the five boys, then at least one condition must be fulfilled. These young people must in fact have lacked moral insight into what they did and the consequences of their actions. But the five sailing youngsters obviously did not lack this insight; on the contrary, all of them were aware of the fact that they had file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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engaged in criminal behavior and they even expected to be punished. The boys were not only aware of the dominant moral order, but were also commited to it, although they tried to 'neutralize' their criminal 'transgressions' (cf. Sykes and Matza, 1957). Although it probably is correct to maintain that these five boys had suffered from both social and psychological deprivation during their childhood, which affected their moral conceptions, the question is whether this is sufficient to excuse them for their criminal acts. One problem with this argument is that it suffers from a confusion between causes and reasons for an action, and the justification of these actions. The possible psychological, social and moral deprivation in the boys upbringing may explain and help us understand why just these five boys started on their criminal careers. And if we understand that then we are able to describe their criminal actions in a more complex fashion: in other words, we can describe the kind of act they committed more adequately. But this does not mean that poor social circumstances make the boys less accountable for their actions in moral terms. Thus, the attempts to disqualify the five boys as competent actors seem to rest on somewhat shakey ground.
Treatment or punishment In the debate over the sailing trip, those who argued that the boys should be defined as responsible agents favoured some sort of punishment, and those who maintained the existence of social excuses, proposed some kind of treatment, whether be it psychological, educational, or social. The social and institutional consequences of how liability is defined may vary among countries, but basically the two options of punishment or treatment of some sort seem to be primary. These options are generally accepted as being mutually exclusive and at least partially linked to the concept of liability. I would like to focus upon this distinction between the concepts of 'punishment' and 'treatment'. 'Punishment' is usually invoked on the basis of an action that has already occurred, that is it is retrospective in effect. In order for a punishment to be imposed it must have been shown that the person is liable for the action, and certain circumstances surrounding the action have to be established ('mens rea' and 'actus reus'). If this is done, it is then possible to decide whether the person is guilty of the alleged crime or not. The traditional form of punishment in Sweden and West European countries is generally imprisonment for burglary or violent crimes, for example. Punishments, and in particular imprisonment, basically mean that the convicted offender is deprived of several of his or her fundamental rights, as Foucault (1974/1979) has pointed out. This is especially true of the right to freely decide over his or her time and space, that is, to file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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command where to be (space) and when (time). Imprisonment in other words consists of the State's right to deprive the offender of time and space. The Norwegian sociologist Nils Christie has defined the aim of punishment as inflicting pain on the offender: Punishment imposed by the penal law is an intentional infliction of pain. The punished are supposed to suffer. If they seem to enjoy the punishment, we should immediately change methods (Christie 1982).
Something else is generally intended with the concept of 'treatment', perhaps even the opposite of punishment. Treatment and care are not basically related to what a person already has done, but what he or she may do in the near future. What the person in fact has done is important only as an indication of possible future actions that may jeopardize his or her social development into a full-fledged citizen. Treatment is aimed at a presumed future development which will eventually result in social rehabilitation and a non-criminal life style. In that sense, treatment is prospective, while punishment is retrospective. And if punishment robs a person of space and time, nonmandatory treatment offers him or her space and time in the form of possibilities: the opportunity of a new life in terms of education, economic support, housing, etc. It was these basic distinctions that were brought to light in the debate over the five delinquent boys sent on a sailing trip by the social welfare department in Stockholm. The boys themselves freely admitted they had committed several criminal acts and that they expected to be punished. This view was shared by the vast majority of citizens in whose five criminals were given the opportunity to go sailing in waters which by tradition in Sweden are associated with leisure and holidays. Several commentators argued that the boys should at least sail for part of the time in cold latitudes, so that this potentially pleasant sailing holiday would turn into literally a cold punishment. In this way pain would be inflicted upon the boys. Even the defenders of the trip were somewhat uneasy about the possibility it could be interpreted as some sort of vacation and they were quick to point out that the boys were required to study during the trip, which implied some sort of pain. However, in this context to make a choice between punishment and treatment is also to say something about what kind of persons the five boys were. The proponents of some sort of punishment viewed the boys as responsible subjects, capable of enduring a punishment. Their opponents on the other hand, although depicted in the debate as guardians of the 'humanist' approach, could only defend the trip by defining the boys at least in part as incompetent subjects, who had been damaged by social circumstances, and who were incapable of acting as responsible citizens. In short, what I have called a 'humanist' position, which is aimed at defending persons in a marginal social position, can only succeed through a redefinition of these persons as less capable citizens.
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Conclusion The debate in Sweden which we analysed in a general way above confirms an idea presented by Emile Durkheim (1893/1989) one hundred years ago: criminality is not a quality inherent in an act or a person but rather a phenomenon defined by a social reaction (cf. Becker 1963). The five Swedish boys were defined as criminal and as social problems through a process that started when they were apprehended by the police and questioned. To the police and prosecutors, the boys were primarily a legal problem and were defined as criminals. However, later they were turned over to the social authorities who redefined the boys as a social problem in need of some kind of treatment. Basically this process could be characterized as a categorization process: the boys and their actions have to be categorized in a certain way in order for the authorities to be able to decide on and legitimate their measures. The categories used depend on two circumstances. First, all institutions do not have the same set of social categories, and second, they use them in different ways. A social category like 'criminal', defining actors and actions in relation to a legal framework, is primarily in use in legal institutions, like the police and justice departments. A category like 'juvenile delinquency' basically defines a person and his or her actions in relation to a moral and social norm, and is traditionally used by social agencies and professional groups like social workers and psychologists. Psychiatric institutions would use social categories casting the actor as a deviant from social norms in a way and for reasons that basically are alien to observers. The categorization of persons by institutions serves to select the proper clients, decide elegibility of clients, and to legitimaze measures taken by the institution (cf. Lipsky 1980). Although an institution has a more or less limited set of social categories at its disposal, the use and application of these categories are not always without problems. The categorization of the five boys rests on a description of them as persons and of their actions: certain actions are depicted while others are left out, certain contextual facts are stressed, others toned down, and some types of mitigating factors are highlighted while others are not mentioned. All the descriptions of the boys made by institutional representatives are defeasible (negotiable)(Hart 1949), that is, possible to challange and question. In this respect categorizations are not to be seen as 'objective' descriptions or reports, but as part of an ongoing institutional discourse, negotiating and proposing social categories. This also suggests that representatives of the same institution may propose different categorizations. In the present case social workers - all of whom were employed by the same agency - held widely different opinions on how to define the five boys, whereas police officers, for instance in general tended to take a more collective stance.
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This process is normally hidden or at least invisible to the naked eye, but unfolds through bureaucratic processing and discussions between civil servants, social workers, the police, and others. The public debate in Sweden brought this process into the limelight and allowed us to see at least parts of the processes through which the five boys were constructed as social and criminal problems. More specifically, the institutional categorizations became part of a broader discourse involving the mass media - television, radio and newspapers. This discourse involved certain basic beliefs concerning responsibility and the meaning of citizenship and to what degree age and social contextual factors may be argued to diminish these. The proponents of what I have called a 'humanitarian position' argued that the five boys could not be recognized as fully responsible subjects due to their age and social background, and propounded alternatives to criminal sentences. The cost of this position is the denial that the boys could be considered citizens capable of not only acting responsibly, but also acknowledging the full consequences of their actions. The proponents of a more 'conservative' position, arguing that the boys ought to be punished, stressed the boys' right to be regarded as fully responsible subjects in order to strip them of their basic rights in condeming them to prison sentences.
References AUSTIN, JOHN (1956/1990) 'A plea for excuses' Austin, J. Philosophical papers Oxford: Clanderon Press. BECKER, HOWARD S. (1963) Outsiders. Studies in the sociology of deviance New York: The Free Press. CHRISTIE, NIELS (1982) Pinans gränser (The infliction of pain) Stockholm: Almquist & Wiksell. CICOUREL, AARON (1968) The social organization of juvenile justice New York: Wiley. DUFF, R.ANTHONY (1990) Intention, agency and criminal liability. Philosophy of action and the criminal law Oxford: Basil Blackwell. DURKHEIM, EMILE (1893/1989) The division of labour in society London: MacMillan. FEINBERG, JOEL (1965) 'Action and responsibility' Black, M. (ed.) Philosophy in America New York: Allen and Unwin. FLOUD, JEAN (1975) 'Sociology and the theory of responsibility: “Social background' as an excuse for crime' Psychological medicine 5: 227-238. FOUCAULT, MICHEL (1974/1979) Dicipline and punish: The birth of file:///Users/lars-christerhyden/Documents/Arbetsbibliotek/Artiklar%…filer/The%20social%20construction%20of%20juvenile%20delinquency.htm
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the prison New York: Vintage Books. FRANKFURT, HARRY G. (1988) 'Freedom of the will and the concept of a person' Frankfurt, H.G. The importance of what we care about Cambridge: Cambridge University Press. HARRÉ, ROM (1983) Personal being Oxford: Basil Blackwell. HART, HERBERT L.A. (1949) 'The ascription of responsibility and rights' Proceedings of the Aristotelian society XLIX:171-194. HYDÉN, LARS-CHRISTER (1992) 'Brott och straff och behandling' (Crime and punishment and treatment) Nordiskt socialt arbete 10: 3-13. KOHLBERG, LAWRENCE (1984) The psychology of moral development San Francisco: Harper and Row. LIPSKY, MICHAEL (1980) Street-level bureacracy. Dilemmas of the individual in public services New York: Russel Sage. MATZA, DAVID (1964) Delinquency and drift New York: John Wiley and Sons. SCOTT, MARVIN B. & STANFORD LYMAN (1968) 'Accounts' American sociological review 33: 46-62. SYKES, GEORGE M. & DAVID MATZA (1957) 'Techniques of neutralization' American sociological review 22: 667-669. YOUNG Volume 1 Number 4 1993
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