What to Do About Kids Who Kill : AT A TENDER AGE Violent Youth and Juvenile Justice <i> by Rita Kramer (Henry Holt: $18.95; 309 pp.) </i>

One summer night, not long ago, three New York City boys, ages 12, 13 and 16, rode the subway from 116th Street down to Times Square where they watched a movie and then walked home, stoping again on their way to rape, sodomize, and nearly beat to death a bag lady they found asleep in Central Park. The three were arrested, and during questioning, the oldest revealed (and testimony from another witness confirmed) that Billy, the 12-year-old, had been the instigator in a similar crime less than a month before. Only in that case, the victim had died.

Billy was sent by the city’s Family Court to an unlocked rehabilitation program in Upstate New York for a period of up to 18 months, the maximum sentence for a boy of his age. A year later, while back in the city for a home visit, he ran away and shortly after that was spotted again in Central Park following another rape/beating similar to the ones in which he was known to have been involved.

Why was so obviously dangerous a boy left at large? The answer, says longtime child advocate Rita Kramer in “At a Tender Age,” her excellent and thought provoking study of the New York City Juvenile Justice System, lies in the “obsolescent philosophy” behind a system that fails “either to restrain or retrain the violent young.”

She makes a convincing, if occasionally repetitive, case to support this contention. Beginning with the medieval English concept of parens patria , which allowed the Crown to take the place of the natural parents when a child’s welfare would otherwise be at risk, Kramer traces the early 20th-Century evolution of the juvenile court into a non-adversarial fact-finding body charged with doing whatever was best for young miscreants who were considered “not criminally responsible . . . by reason of infancy.” In 1967, however, all this began to change. The Gault decision (arising from a case in which a boy accused of making obscene phone calls ended up with an open-ended sentence to reform school) mandated that every juvenile be represented by counsel, and so began a trend in Family Court “away from the concept of benevolent protection to that of procedural rights.” As a result, Juvenile Court proceedings have today become adversarial ones where the still “not criminally responsible” defendant is afforded nearly all the protections he would have in adult court but where, paradoxically, a finding of not guilty serves to deprive him of whatever help thecourt can offer through supervision by a probation officer or placement in one of its networks of rehabilitation programs.

But what of the children who are found guilty and thus qualify for help? How effective are the court’s efforts at rehabilitation? Only slightly better than no help at all, she concludes. The author sits in on uninspired probation officers who seem more concerned with filing reports than helping their charges. She visits non-secure group homes where any efforts at disciplining a child result in his exercising his option to run away. She deplores the generally low quality of the child-care workers she encounters, and she discovers on a visit to Lincoln Hall, the state’s showplace rehabilitation program, a “subculture” in which “the pecking order (among students) depended on who was stronger, tougher and meaner,” and where with the complicity of the staff, “a black market of rewards and privileges, including drugs, was part of the system.”

Not everything Kramer meets in her three years examination of juvenile justice in New York City is all bad. A superb probation officer named Pat Brennan does, through superhuman exertion, manage to make an impact on some of her kids. Two thoughtful “presenters,” James Payne and Peter Reinharz, fight manfully to preserve some semblance of sanity in the surreal world of the Legal Aid Society dominated Family Court, and a child-care worker named Frances Anastasi labors against large odds to make the group home, at which she is head counselor, a peaceful haven for the children who briefly live there.

Kramer suggests, reasonbly enough, that raising both the salaries and status of social workers to attract more Pat Brennans into the field could not help but improve the system. She makes other equally common-sense recommendations for reform. Streamlining court procedures to shorten the period between arrest and disposition would help a delinquent better make the connection between his crime and its consequences. Eliminating the practice of sealing the record of a juvenile’s previous court appearances could allow his judge to consider the nature and number of his prior offenses in making a disposition. More police in high-risk neighborhoods would help refute the usually correct perception by delinquents that crime does pay.

Some of her recommendations are more controversial. She would waive a juvenile’s right to privacy in favor of making Family Court more accountable by opening its proceedings to public scrutiny. Her advice to Legal Aid lawyers is to stop “thinking about crimes of violence as though every mugger were a political prisoner for whom it is crucial to provide the benefit of every conceivable doubt.” And if that were not heresy enough to liberal thinkers, she maintains that “punishment (rather than treatment) is the best deterrent found so far for the persistently dangerous delinquent.”

But even if the system is reformed, Kramer remains pessimistic. “At a Tender Age” provides countless examples to prove that parens patria doesn’t work. The state cannot replace parents. When both families and social structures collapse as they have in the ghettos that produce nearly all the kids that appear before Family Court, no form of public intervention is going to salvage the most damaged products of these environments. The cure for delinquency will not be found by improving juvenile justice systems. The sobering message implicit in this important book is that we must look instead at all the aspects of our society that contribute to producing a boy like Billy.