Sunday, January 20, 2013

Crime and punishment for India's youth

Last month’s gang-rape in New Delhi drew attention to India’s rising juvenile crime rates. But experts fear stiffening punishment will make matters worse.

By Jason Overdorf(GlobalPost - January 20, 2013)

NEW DELHI, India — With his teenager's wispy mustache and a mullet, 19 year-old Muhammed may seem guilty of failing to keep up with current style, but you’d never guess he’s a convicted murder.
“Three of us were out of our minds on smack,” he said of his crime of two years ago. “We saw a guy walking down the road who looked like he had a little cash, so we tried to snatch his mobile and wallet. He fought back, so we stabbed him. We thought he'd be able to identify us to the police if we left him alive.”
Poor, addicted to drugs, and living on the street, Muhammad (not his real name) exemplified a disturbing dark side of India's so-called demographic dividend — an increasingly youthful population economists predict will help this country surpass China as the world's manufacturing hub by 2020.
Although the economic boom is making more people rich, rising inequality, poor education and persistent unemployment have helped prompt a spike in juvenile crime.
But Muhammed is lucky. Since he was 17 at the time of his crime, the maximum sentence he faced was a three-year stint in a so-called observation home. He served his time in a progressive pilot program that focuses on de-addiction and rehabilitation.
Less than two years later, he’s free and eager to put his life back together thanks to his rare chance from India's generally troubled juvenile justice system.
But such breaks may become even rarer, thanks to a furious campaign now underway to allow Indian courts to try young offenders as adults.
That worries children’s rights activists, who believe the global attention to last month’s vicious gang-rape of a 23-year-old Delhi physical therapy student — in which a 17-year-old boy is alleged to have taken part — is prompting knee-jerk reactions that threaten to hasten the change.
Juvenile crime rose 40 percent between 2001 and 2010, according to India's National Crime Records Bureau (NCRB). The spike in violence and crimes against women by young offenders has been even more dramatic. Rapes by juveniles have more than doubled in the same period, murder is up by a third and kidnappings of women and girls has grown nearly five times.
Those figures have prompted a drive to give trial judges the discretion to try juveniles as adults, or to define youths over 16 years old as adults when it comes to serious crimes.
In what may prove to be a landmark case, the Supreme Court on Friday admitted a pleaarguing that the mental age rather than physical age of the juvenile suspect in the gang rape case should be used to determine whether or not to try him as an adult.
That contravenes the United Nations Convention on the Rights of the Child, which sets the age at 18.
India's women and child development minister has spoken out against lowering the bar.
But newspapers, television channels and tough-talking politicians continue to demand a crackdown on juvenile offenders even as experts insist the juvenile system is already broken and brutal.
“It's already very custodial, very hostile, very abusive, very violent, because of state apathy,” said Anant Asthana, a child rights lawyer who works with the New Delhi-based Human Rights Law Network. “[Juvenile offenders routinely suffer] physical abuse, sexual abuse and emotional abuse within the system itself.”
Activists say officials routinely violate laws aimed at protecting children. Instead of obtaining written orders to send underage offenders to observation homes, overworked police sometimes pretend not to know children's age in order to put them in jail.
The law guarantees juveniles speedy trials, but they often spend maximum three-year sentences in observation homes, denied bail until they’re essentially compelled to plead guilty in order to be released.
Sociologists argue that reducing the threshold age to 16 wouldn’t lower juvenile crime rates. They say it would deny thousands of young offenders a chance at rehabilitation instead — and exacerbate age-old prejudices and new fears resulting from rapid social change by targeting poor youths.
“We’re a society based on hierarchies,” says sociologist Khushboo Jain, who spent three years doing field work with street children. “These young people [on the streets] are dynamic. They've taken control of their lives. But we don't want people to come up. And if they do, we try to subjugate them in any way possible.”
Bharti Ali of the Haq Center for Child Rights blames the rise in juvenile crime rates on government policies he says are prompting cycles of poverty.
“Some 80 percent of the family budget is spent on health care,” he says. “The government education system has failed, so children run away from the schools. There's a lot of domestic violence, so children leave home or they kill their fathers.”
He also points to the stark and growing contrast between rich and poor. “You have luxury malls on one side, and on the other side you have a slum,” he says.
More than half of the children in trouble with the law come from families with households income of less than $500 a year, according to NCRB data. Critics say that trend would surely deepen if trial judges were given discretion to treat some juvenile offenders as adults.
Experts point to the United States as a warning case. Nine out of 10 juveniles who run afoul of the law worldwide never commit another crime, according to an International Save the Children Alliance report. However, in America — where more juveniles are tried as adults than in any other country — research by the Justice Department shows stricter punishment fails to deter youth crime in general or reduce the likelihood that juveniles sentenced as adults will commit crimes in the future.
That’s something 19-year-old Muhammad doesn’t question.
“If I'd been sent to jail,” he says, “I'd have come out worse than when I went in.”

Wednesday, January 09, 2013

India: Has 'mediocracy' already convicted Gang Rape 5?

India's high-profile gang rape case has parallels with New York's Central Park jogger case
By Jason Overdorf
(GlobalPost - January 9, 2013)
Can the five adults and one juvenile suspects in the notorious Delhi gang rape case expect a fair trial? Probably not.
On paper, the men accused of the vicious assault will enjoy all the advantages of India's liberal justice system, apart from the high-priced, influential lawyers that only the wealthy can afford. But cases are not tried on paper, and this one exhibits every sign that it will not be tried in the Saket district court where they made their first appearance on Monday. Instead, like so many court cases, government policies, and bureaucratic actions, it will be decided by the country's real rulers: The Mediocracy.
"This is a media trial," senior Delhi High Court advocate Rajinder Singh told me in a Q&A yesterday. "Even the judges who are going to be responsible for these trials are motivated by the media and what is going on in the country."
In almost every story I've reported, whether it's about poor people starving because of government corruption or a city cleaning up its act after an unhealthy dose of the plague, somebody will say it: All this is only happening because of the media attention. And if the media attention goes away too soon, "all this" stops happening, too.  (Consider the Wall Street Journal's neat encapsulation and the Washington Post's history of "high profile" Indian rape cases and the policies they engendered, such as an innovative and effective Delhi Police outreach program called Parivartan, which began in 2006 after a sensational case and then quietly died as the media attention to the issue waned, according to the Economic Times).
Call it the power of the press, and it's a good thing. The government isn't functioning -- it's failing to feed the hungry, or failing to curb corruption (the main cause of the first failure), and the journalists step in.  But the short attention span of the news cycle isn't enough to initiate real change--consider the country's revolving door elections--and as the Delhi gang rape case indicates to some degree, what makes news is often connected with caste- and class-related biases. (Rape and humiliation is a daily reality for women from the castes once known as "untouchable," for instance, yet the media's sporadic coverage of the problem has never gained much traction, as Badri Narayan pointed out for The Hindu). 
On Wednesday, a high-handed New York Times editorial cautioned that "there are disturbing aspects to the way the case is being handled." They're right. But the editors might have a look at the newspaper morgue before they get TOO snippy: There are several parallels (as well as contrasts) here to the brutal New York City rape and beating of the so-called "Central Park jogger" in 1989-- which ignited a similar media frenzy. 
In both cases, the police were under massive pressure to make arrests following the assault, and quickly netted five (or six) suspects. In both cases, graphic descriptions of the assaults captivated the national news media for weeks, opening new debates on public safety, violence against women, and various sociological concerns to do with race and class. And in both cases, most media reports described the assault in a tone that was, appropriately, horrified, but also in ways that played into existing class prejudices.
In India, words like "savage" and "bestial," when combined with descriptions of the slums from which the alleged perpetrators hailed, tapped the barbarians-at-the-gate fears of the city's elite, encouraging their prejudices against the untraceable migrant population (Mea culpa).  Meanwhile, the victim was always described as a "physical therapist" or "physical therapy student" and her companion as a "software engineer," even though the victim had also migrated from a village to the capital.
In the US, the media trumpeted the New York police claim that the five suspects had confessed to going "wilding" in Central Park on the night in question. The phrase reportedly stemmed from Tone Loc's "Wild Thing," popular at the time, in which the wild thing was sex. But for many readers (and writers) it conjured up much more sinister images--of "wild" or savage teenagers from New York's African-American and Latino neighborhoods who had forsworn all vestiges of civilized behavior and were now "on the loose" right across the street from The Ritz. And in direct contradiction of New York policy in cases of juvenile offenders, the names of these and other suspects were released to the media before any of them were formally charged--including one 14-year-old suspect who later did not figure in the charge sheet.
So what happened?
The result in the New York case was the swift conviction in 1990 of all five "wilding" suspects, four of whom signed written confessions and one of whom made a verbal admission of guilt while in custody but refused to sign on the dotted line. But then things went bad. There was no DNA evidence at the scene to link any of the five young men to the crime--only a sample from another, unidentified man. And as a 2012 film called "The Central Park Five" depicts, all five convicted teenagers retracted their confessions within weeks, claiming that they'd been intimidated or coerced into making false admissions of guilt. (For example, one of the boys confessed to being present after detectives told him they'd found his fingerprints on the victim's clothing).
A decade later, a convicted rapist and murderer, doing a life sentence for other crimes, confessed to raping and beating the Central Park jogger, not as part of a gang, but all by himself, and DNA testing confirmed that he was, indeed, the person who had left behind the only physical evidence that police had from the scene of the crime. Though the so-called "Central Park Five" had also confessed to other crimes they allegedly committed that night, and police insisted they still believed the five had participated in the assault, evidence or no, all five men were released from prison and their names were removed from the sex offender registry. A year later, three of them sued the City of New York -- each seeking $50 million in damages.
In India, we must await the verdict--and inevitable appeals.
In the New York case, the Central Park jogger survived her ordeal but was left with no memory of the event, so there was no evidence apart from the DNA sample and the confessions of the five suspects. In India, the victim survived long enough to make a statement, and was allegedly able to identify her attackers. Moreover, her male companion, though beaten badly himself, was allegedly a witness to the entire assault, and also able to identify the attackers and recall the crime in great detail. 
The problem is that in this atmosphere it may prove impossible for anyone to question those alleged facts. How did the victim identify the alleged attackers--without prompting, from an array of photos that included many others from similar backgrounds, with similar dress? For how much of the ordeal was her companion conscious? How did he make his identification of the attackers? (Again, I am not expressing any personal doubt or knowledge of the actual evidence here, only pointing out that the issue is not simply "what happened" but also "are these men, and all of these men, guilty of all of these charges?")
The lynch mob atmosphere, as in the Central Park jogger case, means that it may be very difficult to know beyond a shadow of a doubt, even after the verdict comes in.
As the New York Times pointed out, lawyers initially refused to defend the suspects (and tried to block their fellows from doing so), though the accused now have court-appointed representatives. But where the NYT editors think the judge's decision to try the case in camera (i.e. without allowing the media to observe and report on the proceedings) will make it all the more likely that the proceedings will amount to jumping through hoops before coming to an inevitable conclusion, I'm not necessarily inclined to agree.