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Alternative Law Journal |
Richard Hil
Richard Hil teaches law in the School of Justice
Studies at Queensland University of Technology.
Since the killing of 15 people by Eric Harris, 18, and Dylan Kiebold, 17, in
a Denver high school on 20 April, a rash of speculative answers have emerged in
response to the vexed question ‘why’? Various factors have been
cited: the rejection of one of the killer’s application to join the United
States Marine Corp; the use of a mood altering drug (Luvox); the nihilistic
music of Maralyn Manson; the influence of films like Basketball Diaries
and Natural Born Killers; the violent video game Doom; a
preoccupation with Nazi ideology and adoration of Adolf Hitler. The boys were
said to be ‘outcasts’ in the school, vilified and shunned by other
pupils. They were, according to a report in the Wall Street Journal, up
to their eyes in a vengeful ‘culture of death’. As one American
journalist commented: ‘The boys that did the killing inhaled too deep in
the ocean in which they swam’.
Inevitably, the omnipresence of
guns in US society was at the centre of public deliberations following the
massacre. Perhaps not suprisingly, the President of the National Rifle
Association, former Hollywood star, Charlton Heston, was busily defending the
indefensible, claiming that ‘this is not a gun issue, this is a child
issue’. Nancy Hua of the Centre to Prevent Gun Violence responded by
saying that: ‘I think it’s outrageous that the gun lobby thinks
anything besides gun control would prevent these things from happening’.
The fact that the US Congress could not even get legislation through to install
child-proof locks on guns reveals the potency of the US gun lobby. The use of
firearms as a major way of resolving interpersonal conflict is evident in the
fact that distinctions are now drawn between gun-related school massacres and
other massacres. A recent spate of ‘copycat’ school yard shootings
testifies further to the ease with which gun violence occurs in such
institutions. Charlton Heston’s solution? Train teachers to use firearms
and install hi-tech surveillance.
While debates over schoolyard violence
are set to continue, and as President Clinton revealed his determination to
tackle gun-related crime, a new and worrying reactive law and order politics has
emerged in the wake of the Denver shootings. Indeed, shortly before the first
bodies were laid to rest the finger of blame was being pointed directly at the
parents of the killers. The fact that the parents of Dylan Kiebold telephoned
officials soon after the killings to say that their son might be involved turned
the spotlight on the distraught parents themselves. Investigations of the two
killers’ homes revealed a small though lethal arsenal of weaponry held by
the killers, including the barrel of a sawn-off shotgun, pipe bombs and
bomb-making equipment. This led increasingly to speculations that the parents
surely must have known something about the threats posed by their sons.
Despite the bewildered protestations of Kielbold’s father that
‘Dylan’s not violent’, it took only a few days for the
investigatory gaze to be fixed firmly on the parents of the killers. Lawyers
were summoned and ‘informal’ meetings held with investigating
officials. The Denver Assistant Attorney-General took a keen interest in the
proceedings. The ‘bottom line’ in all this was that the parents had
something to explain. They were well and truly on the defensive. As
the Courier Mail (1 May 1999) in Australia put it: ‘Investigators
are trying to assess how the parents could not have seen the growing rage
in their children’ (my emphasis). The suggestion that the parents, perhaps
through their negligence or sheer carelessness, failed to identify their
children’s ‘rage’ and the potential for a subsequent bloodbath
was increasingly regarded as evidence of their culpability. The shock,
bewilderment and utter horror of the parents became swamped by the impulse to
know, to blame someone — and who better than the parents of the children
themselves? Stories circulated about the violent and aggressive behaviours of
the boys prior to the killings. Teachers talked about the marginalised and
secretive demeanour of the ‘trench coat killers’. Yet, nothing was
done, especially by the parents. The killing of a popular teacher helped divert
attention away from the teachers themselves, thereby further concentrating
public attention on the parents.
President Clinton grasped at the public
urge to allocate blame by proposing tough legislation in respect of parents who
‘recklessly’ and ‘knowingly’ allow their children to
possess guns. US Attorney-General, Janet Reno, and the Governor of Colorado both
announced that the parents of the killers in Denver could be held liable for
their sons’ actions. Despite caution from the Center to Prevent Gun
Violence and the fact that 16 American States already have Child Access
Prevention Laws, it appears that the attempt to drive punitive legislative
measures through a largely Republican Congress would proceed.
Liability in respect of the parents of children who commit crimes is hardly
new. Indeed, the principal that parents should be held responsible in such cases
is now deeply embedded in various statutes in America, Britain and
Australia.[1] President
Clinton’s desire to introduce further laws in respect of the parents of
children who kill or injure with firearms merely builds on recent legislative
initiatives on the matter of parental liability. Such developments need to be
viewed against the growing ascendancy of individualistic approaches to law and
order in most Western countries. Recent measures include longer individualised
sentences, increased police powers, more ‘community-based’ options
and more stringent conditions attached to probation and supervision
orders.[2] A highly individualistic
‘justice model’ has provided the philosophical justification for the
introduction of punitive, offender and family-centred measures.
Such
developments have been directed towards the imposition of more stringent regimes
of punishment and control over aberrant ‘crime prone’
populations.[3] Families and
communities that appear most closely allied to the ‘crime problem’
have come in for the closest
scrutiny.[4] In the wake of the New
Right’s focus on the ‘traditional family’ and the call for
greater ‘family
responsibility’,[5] as well as a
general resurgence during the late 1980s of ‘conservative
criminologies’ (encompassing notions of individual responsibility and
accountability, as well as situational crime prevention and a focus on victims),
crime control measures became focused increasingly on the role played by
families (and particularly parents) in the creation of juvenile
crime.[6] The family-household was
seen as the essential breeding ground of ‘anti-social’ behaviors,
and neglectful parents as primarily responsible for their children’s
offending behaviors.[7] The apparent
‘failure’ of parents to control their children became an integral
feature of public discourse on juvenile crime in most Western countries. The
apparent ‘willful’ abnegation of parental duties became the target
of government legislation in which measures were introduced to punish such
pernicious tendencies.
For example, the then British Conservative
Government under John Major introduced two major pieces of legislation, the
Criminal Justice Act 1991 and the Criminal Justice and Public Order
Act 1994 which enabled the courts to impose bonds on those parents whose
‘negligent’ behaviours had contributed to the offending of their
children. The Criminal Justice and Public Order Act built on the 1991
legislation by requiring parents who are bound over to ensure that their
children comply with the sentence of the court. Under the Act, parents would be
required to forfeit their bonds if their children failed to meet the conditions
of an order, let alone if they
re-offended.[8]
The election
of Tony Blair’s New Labor government in May 1997 meant a continuation
rather than reform of many of the previous government’s criminal justice
policies. In a discussion paper published shortly before the election New Labor
proposed the introduction of ‘Parental Responsibility Orders’ aimed
at those parents who ‘have not been prepared to accept guidance and
counselling to help them cope with their behaviour’. The order would
require parents to attend counselling or guidance sessions. ‘They
[parents] would learn ... how to set and enforce consistent standards of
behaviour and how to respond more effectively to challenging adolescent
demands’.[9]
A similar
emphasis on parental responsibility emerged in the statutes of a number of
Australian State and Territory
governments.[10] For example, s.197
of the Queensland Juvenile Justice Act 1992 states that if it is
established by the court that ‘wilful failure’ on the part of a
parent had ‘substantially contributed’ to a child’s offence,
then the parents could be held liable. In New South Wales the
Children’s (Parental Responsibility) Act 1994 and Tasmania’s
Statute Law Revision (Penalties) Act 1994 state that ‘wilful
default’ or the failure to exercise ‘proper’ care of a child,
thereby leading the child to commit an offence, could render the parents guilty
of an offence.
In North America the proposition that some parents should be held responsible
for the criminal actions of their children has been widely accepted by numerous
State legislatures. One of the first States to make the explicit link between
children’s crimes and parental neglect was California. The Parental
Responsibility Act 1988 made parents criminally liable for failing to
adequately supervise their offending children. ‘Culpable action’ on
the part of parents in respect of their children’s offending could result
in imprisonment of a parent for up to one year or a maximum fine of $2500.
Although the law was challenged by various legal and welfare
organisations on the grounds that it was subjective and an intrusion into the
privacy of families, the Californian Supreme Court nonetheless upheld the
Act.[11] Since 1988, at least 17
other States have passed laws that hold parents criminally responsible for the
crimes of their children. A number of States have also strengthened provisions
that require parents to pay costs incurred by courts or the corrections system
in dealing with their children. Arizona, Alaska, Indiana, Dakota, New Hampshire
and Virginia have all passed laws that make the parents of offenders responsible
for victim restitution.[12] In
Kentucky, parents may be required to meet the adjudication costs incurred by
their children’s appearance in
court.[13]
The growing
emphasis given to parental responsibility in respect of juvenile crime in the
United States has found expression in a number of celebrated court cases. For
example, in a recent case in Indiana the parents of a repeat juvenile offender
were fined $30,341 for the cost of incarcerating their son. While the judge in
the case stated that the parents were not held directly responsible for their
son’s crimes, their negligent actions were considered to have led to his
offending. As the judge remarked: ‘The effect [of the judgment] is to make
parents aware of their responsibility for their children. They can’t pass
it off to some social agency. That’s a
smokescreen’.[14]
One
of the popular arguments associated with parental penalty is that the
‘modern family’ is now less equipped to care for its children. As a
senior representative of the National Center for Juvenile Justice stated:
‘We want them [parents] to be something they used to be, but the mechanism
is gone. The father is not always the breadwinner and the mother is not home
nurturing. That’s all
gone.’[15] An alternative view
was aired in the wake of another celebrated judgment in which the parents of a
Detroit teenager were each fined $1000 and ordered to pay court costs for their
apparent failure to properly supervise their offending son. The American Civil
Liberties Union questioned the constitutional basis of parental responsibility
laws and pointed out that the fining or jailing of parents would do little to
address the particular skills required of a parent, especially when confronted
with an offending son or
daughter.[16] Moreover, writing in
the influential Stanford Law and Policy Review, Howard Davidson
argued:
It is simply inappropriate to rush into legislative solutions that punish parents for their children’s criminal acts without ensuring that effective services are readily available to families at all income levels ... to help them to be better parents.[17]
Similar
criticisms of parental penalty have also been aired in Britain and
Australia. In Britain, for instance, organisations such as the Penal Affairs
Consortium, National Association for the Care and Resettlement of Offenders,
National Association of Probation Officers and the Directors of Social Services
have criticised parental penalty on the grounds that it may worsen the plight of
many poor and already beleaguered families. It has also been argued that
punitive sanctions will do little or nothing to address the complex problems
facing families and may indeed lead to increased tensions between parents and
their children.[18]
In
Australia, organisations such as the Australian Association of Social Workers,
the Catholic Prison Ministry and the Church Network for Youth Justice have also
pointed to the damaging consequences of parental penalty, including the
possibility that this may lead (as a consequence of increased household
conflicts) to more cases of homelessness among young
people.[19] In Queensland, proposals
to make parents liable for up to $5000 restitution in cases of property damage
caused by their children have been roundly condemned by a number of key justice
organisations on the grounds that this may worsen the financial predicament of
many hard-pressed families, thereby generating the conditions that may lead to
more (rather than less) offending.
Rather than being a ‘bolt out of the blue’, President
Clinton’s call for parents to be held responsible for the crimes of their
children is the outcome of an incremental process of parent blaming that has
permeated Western systems of crime control over recent years. It is a call
founded on highly dubious assumptions about the culpability of parents in their
children’s actions and a convenient way of deflecting attention away from
wider social issues. To reduce the search for crime to some form of parental
failure is merely to eschew the deep problems besetting many aspects of
contemporary American life. What is needed in a society where firearms are used
directly and indirectly as a conventional means of conflict resolution is some
moral commitment to minimising this most lethal of all ‘solutions’.
References
[1] Hil, R., ‘The Call to
Order: Families, Responsibility and Juvenile Crime Control’, (1998) 59
Journal of Aust Studies
101–14.
[2] Pitts, J., The
New Politics of Juvenile Justice, Macmillan, 1998; Cunneen, C. and White,
R., Juvenile Justice: An Australian Perspective, Cambridge University
Press, 1996.
[3] Hudson, B.,
Understanding Justice: An Introduction to Ideas, Perspectives and Controversies
in Modern Penal Theory, Milton Keynes, Open University Press, 1996; Hogg, R. and
Brown, D., Rethinking Law and Order, Pluto Press,
1998.
[4] Carrington, K.,
Offending Girls: Sex, Youth and Justice, Allen and Unwin,
1993.
[5] Abbott, P. and Wallace,
C., The Family and the New Right, Pluto Press,
1992.
[6] Brake, M. and Hale, C.,
Public Order and Private Lives, Routledge and Kegan Paul,
1993.
[7] Cook, D., Crime,
Poverty and Disadvantage, Child Poverty Action Group,
1997.
[8] Penal Affairs Consortium,
Parents and Juvenile Crime, PAC,
1994.
[9] New Labor, Parenting:
A Discussion Paper, New Labor Headquarters,
1996.
[10] Hil, R., Making Them
Pay: A Critical Review of Parental Restitution in Australia, Centre for Social
and Welfare Research, 1996.
[11]
Yea, A., ‘Holding Parents Responsible’, (1997) 5(7) NCLS
Legisbrief 11.
[12] National
Conference of State Legislatures, Selected Parental Responsibility Enactment
Summaries: 1989–1996, NCSL World Wide Web off-print,
1996.
[13] Yea, A., above,
p.1.
[14] Collins, C., When
Parents Pay for their Children’s Mistakes, State Government News,
California, June 1990, p.21.
[15]
Collins, C., above, p.34
[16]
Collins, C., above.
[17]
Davidson, H., ‘No Consequences — Re-Examining Parental
Responsibility Laws’, (1996) 7(1) Stanford Law and Policy Review
28.
[18] Cook, D.,
above.
[19] Hil, R., above, ref.
10, p.15.