Examining the “Gang Penalty” in the Juvenile Justice System: A Focal Concerns Perspective

Published date01 October 2020
Date01 October 2020
DOI10.1177/1541204020916238
Subject MatterArticles
YVJ916238 315..336 Article
Youth Violence and Juvenile Justice
2020, Vol. 18(4) 315-336
Examining the “Gang Penalty”
ª The Author(s) 2020
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A Focal Concerns Perspective
D’Andre Walker1
and Gabriel T. Cesar2
Abstract
There are hundreds of thousands of juvenile gang members in the United States who are at
heightened risk of criminal offending, violent victimization, and incarceration. Importantly, however,
incarceration in itself is a lifelong risk factor for negative social outcomes. That said, little is known
about the effects of gang membership on the sentencing outcomes of juvenile offenders. The primary
research question of the current study is: How does self-reported gang membership influence the
likelihood of incarceration relative to similarly situated non-gang-involved juvenile defendants? To
address this question, the current study uses data obtained from the Pathways to Desistance study.
In a sample of 1,067 serious adolescent offenders drawn from Wave I, results show that gang
affiliation is a significant predictor of incarceration. This finding was consistent across the two study
sites (Phoenix, AZ, and Philadelphia, PA), ultimately providing support for a “gang penalty” in juvenile
sentencing outcomes. The implications for future research, juvenile justice policy, and youth
development are discussed.
Keywords
juvenile justice, gangs, incarceration, sentencing, focal concerns, gang penalty
Law enforcement estimates suggest there were over 30,000 gangs and nearly 280,000 juvenile gang
members in the United States in 2012 (Egley et al., 2014). Self-report data suggest the number of
juvenile gang members may be as high as 1.5 million (Pyrooz & Sweeten, 2015). These statistics are
problematic because gang-involved youth have disproportionately high offense rates for felony
assaults, felony thefts, weapons offenses, and alcohol/drug use (Fagan, 1990; Pyrooz et al., 2016;
Walker-Barnes & Mason, 2004). Gang-affiliated youth are also more likely to be violently victi-
mized than their non-gang peers (Pyrooz et al., 2014; Taylor et al., 2007). The risks of adolescent
gang membership include a range of negative social outcomes that can extend well into adulthood
(Krohn et al., 2011; Moule et al., 2013; Pyrooz, 2014). In short, reducing the risk associated with
gang membership could reduce a heavy load on marginalized communities and the criminal justice
1 Department of Legal Studies, University of Mississippi, University, MS, USA
2 School of Criminology and Criminal Justice, Florida Atlantic University, Boca Raton, FL, USA
Corresponding Author:
D’Andre Walker, Department of Legal Studies, University of Mississippi, 303 Hedleston Hall, University, MS 38677, USA.
Email: dlwalke1@olemiss.edu

316
Youth Violence and Juvenile Justice 18(4)
system and improve life-course trajectories for many adolescents. However, “what works” in gang
programming remains a point of strong contention in criminology and criminal justice (Kennedy,
2019).
The juvenile justice system was designed to act “only in the best interest” of youthful offenders
(Tanenhaus, 2012). However, over time, the broader criminal justice system’s response to gangs has
centered on policies and practices geared toward suppression of gang activity including enhanced
police patrols, gang intelligence units, multiagency task forces, gang databases or “gang files,” and
civil injunctions (Barrows & Huff, 2009; Katz et al., 2002; Maxson et al., 2005). In the United States,
nearly half of the states have adopted laws allowing for more severe sentencing for gang-related
defendants (Maxson et al., 2011). More broadly, questions have been raised about the ability of
incarceration to ameliorate (or exacerbate) future offending, violent victimization, and other nega-
tive social outcomes in youth, particularly during and after the transition to adulthood (Abrams &
Terry, 2017; Fader, 2013).
Contrary to the “best interest of the child” standard, research suggests that juvenile incarceration
is not a protective factor but a risk factor for future offending (Bernburg & Krohn, 2003), adult
incarceration, substance abuse, and financial insecurity (Gilman et al., 2015), and negative beha-
vioral and mental health outcomes in adulthood (Lambie & Randell, 2013). Many youth who are
spared incarceration and sentenced to probation do not receive treatment-related services (White,
2019), and incarcerated youth of color are more likely to receive reform school over therapeutic
placements (Fader et al., 2014). Further, both incarceration and probation are imposed on juvenile
offenders without the full protection of due process (Feld, 1991, 1993, 1997, 2006, 2007, 2013,
2017; Zimring, 2014). Youth in gangs who are charged with crimes are therefore among the most
socially and legally “at-risk” youth. If gang membership makes incarceration more likely over-and-
above the seriousness of their charges, then the juvenile justice system may be imposing additional
risks on youth in most need of protection.
Research on courtroom work groups suggests that the juvenile courts may discriminate between
gang members and non-gang members through extralegal “focal concerns” (Steffensmeier et al.,
1998). Research on disparities in legal outcomes has identified racial differences in the processing of
juvenile offenders, suggesting that Blacks are perceived as more dangerous and blameworthy
(Bishop et al., 2010; Fader et al., 2014; Lowery et al., 2018). Several qualitative studies have
detailed a process by which probation officers use value-laden narratives or “attributions” in pretrial
and presentencing reports that convey extralegal factors to judges (e.g., self-reported and suspected
gang membership). These studies suggest probation reports are taken by judges at face value and
may paint certain defendants as more sophisticated or less redeemable (Harris, 2009, p. 254; see also
Bridges & Steen, 1998; Gaarder et al., 2004). Gang members are likely to be similarly stereotyped
by probation reports (and therefore judges), but relatively little is known about how gang member-
ship interacts with focal concerns in sentencing decisions regarding juvenile offenders (Miethe &
McCorkle, 1997; Pyrooz et al., 2011; Zatz, 1985).
As such, the effect of gang membership on juvenile court sentences remains unclear. Our study
attempts to address this void in the literature by examining the role of gang affiliation on case
disposition using data from the Pathways to Desistance study. The sample includes over 1,000
serious juvenile offenders in two large U.S. cities, specifically Phoenix, AZ (n ¼ 431), and Phila-
delphia, PA (n ¼ 636). This multisite feature of these data allows for the examination of juvenile
gang affiliation on case disposition in two different juvenile justice systems and across racial and
ethnic lines. Based on Steffensmeier and colleagues’ focal concerns perspective, we hypothesized
that gang membership would be associated with more punitive sentences (i.e., incarceration). From a
juvenile justice perspective, incarcerating gang members amounts to further marginalizing already
“at-risk” youth. If self-reported gang members are more likely to be incarcerated than their non-
gang-affiliated peers who were adjudicated for similar crimes, extralegal factors may lead to a dual

Walker and Cesar
317
marginalization of youth in acute need of support. We therefore refer to our expectation as the “gang
penalty” hypothesis.
The main question that guides our analysis is: How does self-reported gang membership shape
the likelihood of incarceration relative to similarly situated non-gang juvenile defendants? The
sections that follow provide an overview of prior research on gangs, crime, and the focal concerns
perspective on courtroom decision making.
Literature Review
Gangs and Crime
Individual traits that have been found to influence gang involvement include antisocial behavior
(Craig et al., 2002; Gordon et al., 2004; Lahey et al., 1999), alcohol and drug use (Hill et al., 1999;
Walker-Barnes & Mason, 2004), mental health problems (Davis & Flannery, 2001; Howell & Egley,
2005), victimization (Peterson et al., 2004; Taylor, 2008; Taylor et al., 2008; Taylor et al., 2007),
and other negative life events (Thornberry et al., 2003). Gang involvement has also been associated
with family, school, peer group, and community risk factors (Hill et al., 1999). Family plays a
significant role in the criminal activity of youth, and youth in gangs are no exception. Studies have
shown that familial poverty, low parental supervision and attachment, disrupted family structure,
lower levels of parental education, familial criminality, sibling antisocial behavior, proviolent
parental attitudes, and child maltreatment often characterize gang members’ backgrounds (Eitle
et al., 2004; Hill et al., 1999; Thornberry et al., 1993; Thornberry et al., 2003). Contemporary
research on family poverty and state intervention suggests that these familial risks extend far beyond
youth traditionally considered to be at the “highest risk” of crime, victimization, and gang mem-
bership (Kim et al., 2017; Lash, 2017; Lee, 2016; Ray, 2017).
A diverse set of school- and education-related risk factors also predict youth joining a gang. For
example, low achievement in elementary school (Craig et al., 2002), negative labeling by school
officials (Esbensen et al., 1993), being diagnosed with a learning...

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