Judge Steven Teske on the Politics of Fear: Debunking the Superpredator Myth

The Second of a Three-Part Series by the Judge on the Subject of Trying Juveniles as Adults.

I took the bench and asked if the parties were ready to proceed.

“Yes, your Honor,” they all announced in unison.

I looked up and saw a young man, 16 years old, trying hard to hold back his tears. His parents sitting to his left, his attorney to his right — his hands quivering. His name was Jay.

He was arrested the day before for criminal attempt to commit a burglary. He had never been in trouble before. He was with an 18-year-old he knew from school. His spurious friend wanted to “hit a lick”--- break into a house --- and goaded Jay to join him.

Kids like company when committing most delinquent acts. They imbue a new meaning into the phrase, “misery likes company.” Neighbors saw the two at the back door and told police that the 18-year-old kicked in the door as Jay looked on.

Unlike most courts in Georgia and around the country, we employ a detention review committee to assess each kid detained on a new offense. It is a multi-disciplinary panel composed of representatives from mental health, social services, school system, juvenile justice, victim advocate, public defender, prosecutor, and certified citizen volunteers.

This panel meets with the parents before the hearings to gather information about the child and family to assess the child’s risk to re-offend and develop alternatives to detention that minimize the risk — that is --- return the child home and at the same time protect the community.

Jay admitted to attempting to break into the home. After the plea colloquy, I listened to the report from the detention review committee. Jay is an honor roll student. He is in ROTC, plays football and has no disciplinary record at school.

His attorney asked to approach the bench and handed me a letter from his principal. Jay is an “exemplary” student. Both his parents are professionals and were dumbfounded by his actions.

Jay stood before me — tall, handsome, articulate and remorseful. And to top it off, Jay wants to be a lawyer.

I had to do it — I had to ask the obvious question of this bright young man. “What were you thinking, Jay?”

“I wasn’t thinking your Honor. I was stupid!” he said.

Jay’s upbringing, outstanding academic performance and mature disposition are antithetical to his delinquent conduct. Many outside my work would be stupefied — I understand why he did what he did. Jay’s response, “I was stupid,” is — believe it or not — a medical diagnosis for adolescent misbehavior. It doesn’t justify their conduct, but in many circumstances, it explains it.

Now envisage a kid not as fortunate as Jay — let’s call him Joe -- a kid raised in poverty, raised by a single parent working more than one job and living in an economically deprived neighborhood. Look around and see the gang graffiti on the walls of apartment buildings and fences. Kids are carrying weapons and guns, wearing colors to signify their gang affiliation and looking over their shoulder to stay alive.

Like Jay, Joe is wired to do stupid things. Notwithstanding their different circumstances, Jay and Joe are equally wired to do stupid things — by virtue of their adolescence. If Jay, with all his pro-social assets, can break into a house to steal, what is Joe going to do with all the anti-social deficits around him?

Their developmental immaturity strongly implies that youth are still in a cognitive structuring stage. Youth are under neurological construction, and should be surrounded by positive adults, peers, and institutions to enable them to become responsible adults (Giedd et al., 1999). Dr. Jay N. Giedd, a brain imaging scientist, described the importance of how adults should manage the youth stating, “You are hard-wiring your brain in adolescence. Do you want to hard-wire it for sports and playing music and doing mathematics–or for lying on the couch in front of the television?” (Weinberger, Elvevag, & Giedd, 2005).

This begs the question -- Do we want to send kids who are under neurological construction to an adult prison to be hard-wired by adult criminals? Did we really think that treating kids as adults would improve their situation, or our own?  Did we really believe that raising kids with adult criminals would reduce recidivism?

In 1995, Wisconsin lowered the age of adult criminal liability from 18 to 17. In a study several years later it was found that the recidivism rate for 17 year olds charged in adult court was 48 percent. This was three times higher than the rate for juveniles in the juvenile justice system. It was also three times higher than the rate for adults in the criminal justice system. (Boggs, et al, Treatment of Juveniles in the Wisconsin Criminal Court System: An Analysis of Potential Alternatives, 2008).

The Office of Juvenile Justice and Delinquency Prevention (OJJDP) commissioned a study of multiple jurisdictions and found that “the bulk of empirical evidence suggests that transfer laws have little or no general deterrent effect on preventing serious juvenile crime.” (Juvenile Justice Bulletin, June 2010).

Another study conducted by the Centers for Disease Control and Prevention concluded that “strengthened transfer policies are harmful for those juveniles who experience transfer [and that] [t]ransferring juveniles to the adult justice system is counterproductive as a strategy for deterring subsequent violence.” (McGowan, et al, Effects on Violence of Law and Policies Facilitating the Transfer of Juveniles from the Juvenile Justice System to the Adult Justice System, 2007).

Enough said --- it’s obvious that the politically vernacular phrase of “getting tough” on juveniles is a meretricious argument in support of continuing SB 440. It has always been, and it will always be, the axiom that children and youth are impressionable and easily influenced. It was once said that, “We are only young once, after that we need some other excuse.”

So what is the excuse for policy-makers who fail to acknowledge this immutable axiom?  They are not biologically wired to do stupid things as are adolescents, yet it is arguably stupid to continue policy that is inane -- its objective is not only unsupported in evidence, but it is indisputably harmful to the youth and the community.

I have come to understand this phenomenon as the “Politics of Fear.” It’s hard for some politicians to let go of the “super-predator” myth because it displaces common sense with fear-a basic survival mechanism in response to a threatening stimulus. Thus, it becomes a politically savvy ploy that motivates the populous out of fear to act or not to act depending on the agenda.

Fear is a politically expedient tool. I learned of this adroit modus studying political science in my masters program when reading Robert Griffith’s book “The Politics of Fear”-- an analytical perspective about the rise of Senator Joseph McCarty and the “Red Scare” of the fifties.  By making claims absent sufficient evidence, Senator McCarthy accused prominent persons, and not so prominent, of being a communist, and causing loss of employment, destruction of careers and in some cases imprisonment. Many of these verdicts would be overturned, and dismissals declared illegal, and laws also declared unconstitutional. None of these remedies, however, could replace the pain and suffering caused by the actions of Senator McCarthy, and those who followed suit out of fear.

I sometimes see no distinction between the behavior of Senator McCarthy and others who feared to speak up and say “this is wrong.”  I also see no distinction between the “Red Scare” antics of the fifties and the “Super-Predator” scare of the nineties. The results are the same -- people suffered.

I guess it is easier to sympathize with the victim’s of the “Red Scare” than with youth who have injured others.  It is the kid’s crime that makes it difficult to sympathize with the child. I understand that, but it does not negate the harm produced by their treatment as adults.

Until policy-makers decide to displace their fear with reasoned intellect, there are other approaches to consider that can reduce the impact of harm on youth in adult prisons. These approaches include removing mandatory minimums for SB 440 youth and allowing SB 440 youth to be treated in a Youth Development Campus until age 21 with an opportunity for parole.

We know that youth fare much better in a juvenile facility than in adult corrections. If policymakers want to “look tough” by convicting kids as adults, then so be it for now.  However, it should not stop them from initially placing kids in a juvenile facility until age 21 for treatment.  We do that now for youth adjudicated in juvenile court on a designated felony.

By removing mandatory minimums for SB 440 youth, they would be eligible for parole. At 21, if not sooner, a youth could be evaluated for parole into the community and receive supervision until the end of his sentence. If parole is denied, the youth would transition into adult prison but continue his eligibility for parole consideration.

I know this sounds all too simple and I know it’s not. Beyond the political rhetoric arising from the “Politics of Fear” tactics, there is the money issue. Can the Department of Juvenile Justice afford the additional youth once held in adult corrections? Probably not, unless the money from adult corrections used to house these youth are transferred to DJJ. Still, that may not be enough given the expenses associated with housing juvenile offenders — expenses associated with specialized treatment and educational needs.

I do know this -- we will never figure it out until we give it serious attention — unless we keep poking and prodding.  Let’s face it -- this issue will not go away. The evidence against treating kids as adults is insurmountable and growing. It’s a matter of time before it is exposed for what it is --- a myth — and one born out of political rhetoric.

4 thoughts on “Judge Steven Teske on the Politics of Fear: Debunking the Superpredator Myth

  1. I totally agree with this 100%. How are rebellious teens supposed to learn from their actions when they are locked up with the adults? These newly convicted fearful teens most likely will adapt to their new environment by looking up to the adults in prison. When children misbehave we show them what they did wrong and slightly reprimand them… we do not make them suffer, because that negative reinforcement would produce bad results as well. I am 18 years old and can admit that within a desperate situation i still look for guidance, so will others regardless of whether its from a reliable source or not.

  2. Judge Teske;
    You refer to a study in Wisconsin “In a study several years later it was found that the recidivism rate for 17 year olds charged in adult court was 48 percent”.
    Which study are you referring to?
    The only one I am familiar with in Wisconsin is seriously flawed as it did not include any 17 year olds that a) had the original charges reduced to an ordinance
    b)had been placed in a deferred prosecution program and successfully completed it
    c)had been convicted and had their conviction expunged under the youthful offender provisions.
    In short, the study did not include many offenders who were most likely not to recidivate.
    If this is the same study you are referring to, you may want to look at the methodology of the study before you quote it.

  3. Dennis:

    I don’t know if this is helpful, but I am quoting directly from the report as follows:

    “A 2008 Legislative Audit Bureau report estimated that among 17-year-old offenders in the jurisdiction of adult criminal courts, more than 43 percent were
    incarcerated again within three years of release. This compares to 16.2 percent of juveniles 16 or younger and 18.5 percent of adults. While these 17-year-olds may have characteristics that make them more prone to repeat offenses or have needs that cannot be met under the current system, their substantially higher rates of recidivism indicate a failure of rehabilitation programming in the adult
    correctional system. We were unable to find estimates of recidivism rates for juveniles (age to 10 and 15) waived to adult courts. However, the differences in rates between 17-year-olds and older adult offenders suggest that the current
    treatment options available in the adult corrections system are inadequate for the rehabilitation of younger offenders (WLAB, 2008).”

    I did a reference check on this publication and I did not find any publication disputing the findings. If you can find it I would greatly appreciate you giving it to me. It could be possible that Wisconsin did a follow-up legislative audit and corrected its own initial report, but it did not get published (any maybe it came across your desk).

    Regardless, there is so many studies showing the ineffectiveness of transfer laws, and especially on this issue of high recidivist rates among youth transferred. You could imagine my editor having a fit if I quoted all of them, but here are a few more I gathered from a literature review by UCLA School of Law Juvenile Justice Project (which, by the way, begins citing the Wisconsin audit:

    “In Wisconsin, where all 17-year-olds are subject to adult jurisdiction, a legislative study found that those offenders were reincarcerated much more often than either adults or non-transferred juveniles.176
    Within a three year timeframe, transferred juveniles reoffended at more than double the rate of adults. Wisconsin is not the only state to experience increased recidivism as a result of transfer laws. A compilation of statistics from 15 states indicates that juveniles released from state prisons are rearrested at a rate of 82%, a rate 16% higher than their adult counterparts.177 Studies focusing on individual states produced similar results. Violent
    juvenile offenders in New York subject to transfer reoffended at a higher rate and more quickly than similar juvenile offenders not subject to transfer in New Jersey.178 Youth tried as adults in Pennsylvania were more likely to be rearrested after their release, and for more serious crimes, than youth prosecuted in juvenile court.179 Minnesota youth tried as adults were 16% more likely than their peers tried in juvenile court to reoffend within 2 years of release.”

    In all fairness, there is a single state that reported favorable recidivist rates for transferred youth. You can find that in yet another comprehensive report on the topis as follows:

    Steiner & Wright, supra; Woolard, supra; COALITION FOR JUVENILE JUSTICE, CHILDHOOD ON TRIAL: THE
    FAILURE OF TRYING&SENTENCING YOUTH IN ADULT CRIMINAL COURT (2005); JEFFREY FAGAN, AARON KUPCHIK
    &AKIVA LIBERMAN, BE CAREFUL WHAT YOU WISH FOR: LEGAL SANCTIONS AND PUBLIC SAFETY AMONG ADOLESCENT FELONY OFFENDERS IN JUVENILE AND CRIMINAL COURT (2007).

    Anyway, please let me know what you find so I can make my corrections and add it to my library. Thanks for your thoughts and observations and helping me stay on track.

    Steve

  4. Judge Teske,
    Aside from Supreme Justice Sandra Day Oconner and Justice Stevenson you seem to be another one of the Judges in our society that gets it. Thank You for that. With that being said why is it do you suppose the courts and other Judges have such a hard time seeing the same way you and the other two Justices see on this issue? How did this happen? & why was it allowed to happen? Have you ever set down and looked at the sexual abuse and corruption that seems to go hand and hand when it comes to trying these kids as adults? “THE JUVENILE JUSTICE SYSTEM IS WELL
    EQUIPPED TO HANDLE CASES INVOLVING SERIOUS ACTS OF VIOLENCE COMMITTED BY YOUNG OFFENDERS.” That is a statement quoted verbatim in a Petition for a Writ of Certiorari to the Supreme Court of South Carolina,
    BRIEF AMICI CURIAE OF DANIEL LEDDY,
    JEANNE MEURER, AND H. TED RUBIN IN SUPPORT OF PETITIONER in 2008 and all 3 are (or were) Judges.Here it is 2011 and we still have a juvenile justice system that doesn’t get it. Do they not understand the costs, the mental health issues that are going to follow these kids for the rest of their lives? This is judicial abuse, how do we stop it? If not now…….when? There are cases right now as I type in PA, Indiana, Az, and TN that are just heart breaking beyond belief, kids have been sexually abused (I know this for a fact, it’s not hear say),kids are being punished and having their rights taking away even while in lock-up, and when something is said (grievence) the child is disciplined even further and nothing happens to those that are causing the abuse or knowing of the abuse.God forbid if the child is from a small town where the judge can not seem to recuse himself because everyone knows everyone in the community including the judges. There was a case in AZ where the child was 8 years old, he was taught how to write in cursive so that he could sign a plea bargain? Are you kidding me? It’s no secret the media and family verified this really occurred, I am sure that others out there that can change these laws have read this story at least once, and still once again it’s being allowed to continue. It’s not okay for a parent to commit child abuse, but it’s okay for the justice system to? While I am not saying that I condone any of the crimes that these children have been accused of committing, but do you yourself not take it as an insult to your intelligence when you do a study or research on the effects of children being tried as adults, and then presenting your facts along with others that think the same and have the same facts and all that work is ignored or swept under the carpet? Maybe we as a society should start holding these parents responsible for their childrens behavior as an incentive to be a better parent even if it means taking parenting classes, maybe it will also make these irresponsible adults think twice about bringing children into this evil society as we know it today. I know there are going to be a lot of parents that are going to disagree with that statement because they are feeling they should not be punished for their kids mistakes, I understand, but I dont feel these kids need to be punished so harshly either because they did not receieve the proper guidance as a child, or because the judge they go before has a bad day.The judges that are still making this their practice need to held accountable as well. If you do not like your job then find one that you do, because causing these children grief, instead of helping them and getting to the root of the problem is not doing anyone any justice, especially these kids. For anyone interested in seeing just how bad things are for some of these children I invite you to go to this website:http://www.childrens-hopeandvoice.org/ it will list those children I spoke of earlier and then some. I sure hope and pray that you can be the model change for our justice system and see that this law gets changed. I try everyday to help a child any child especially if I know they have been thrown to the wolves per say and I try to find the Justice that they deserve, I will be happy to share with them that there is another Judge out there fighting for them, and understands them, and then name you.Thank You very much for your time and allowing me to voice my concerns over this sad issue that our children continue to face. I will close this message and hopefully provide another child with some form of justice today and that will be by me sharing his side of the story, Here’s to you Paul Henry Gingerich
    http://www.youtube.com/watch?v=dupznRIupoEKitty , we are fighting for change.
    Respectfully,
    Dana Hoffman