Report Finds States Pulling Back from Tough Laws of ’80s, ’90s (Watch the Video)

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By Natalie Krebs and Eric Ferkenhoff

Keynote speaker Robert Schwartz / Photo by Gideon Resnick of The Chicago Bureau

CHICAGO-Fears that a generation of menacing adolescents would stalk cities and kill at will never came to pass, and it appears states have gotten the message. Legislators are now relaxing harsh laws against minors enacted in the late 1980s and 1990s, according to a report out Tuesday.

The study found children lack the mental capacity to commit crimes as adults. States have also raised the age at which juveniles may transfer to adult courts, and they now recognize most minors involved in crimes have some type of mental illness.

But the racial disparities plaguing the juvenile justice system were among the most telling findings, with statistics heavily skewed against blacks and Hispanics. The National Conference of State Legislatures (NCSL) study reported, “minority youth come into contact with the juvenile justice system at every stage at a higher rate than their white counterparts.”

In response to this imbalance, 10 states – including Illinois – enacted disproportionate minority contact legislation between 2001 and 2011, the years covered in the report.

This echoes a study by the same group in 2009, in which the introduction states:

“African- Americans, Hispanics, Asians, Pacific Islanders and Native Americans comprise a combined one-third of the nation’s youth population. Yet they account for over two-thirds of the youth in secure juvenile facilities.”

Tuesday’s report – released during the NCSL's meeting in Chicago and funded by the John D. And Catherine T. MacArthur Foundation – goes on to say that research “suggests that minority youth receive harsher treatment than their white counterparts at nearly every stage of the juvenile justice process.”

MacArthur Foundation Luncheon at the NCSL, with Robert Schwartz from The Chicago Bureau on Vimeo.

The start of such tough juvenile sentences largely stemmed from the violence of the 1980s and 1990s, when powerful street gangs were looking to control territory in Chicago and other cities across the country.

Stories about youth like Yummy Sandifer – an 11-year-old boy hunted by police for gunning down a 14-year-old girl and later killed by teen members of his own gang – made the cover of Time magazine. Biographers wrote books about ‘Little B,’ and authorities arrested young men and women at alarming rates for abandoning, killing, maiming and neglecting children.

It was a frightening period, and lawmakers were scared into action. State legislators passed laws that treated young children – just 12 and 13 in some cases – as adults, which automatically transferred their cases to adult court based on the nature of their crimes.

But in recent years, the courts have discussed adolescent development literature, according to the executive director of Pennsylvania’s Juvenile Law Center, Robert Schwartz.

“[They’re] recognizing adolescent’s impetuous and ill-considered actions and decisions,” Schwartz said. “Their vulnerability to negative influences and outside pressures, including peer pressures, and their capacity for change. Those differences, at the word of experts, make juveniles less guilty by reason of adolescence. Youth isn’t a defense, but it is a mitigator.”

Cities and states are giving a nod to this, with some passing laws that loosen the grip on teens and minors while others revisit the issue.

But for many officials, it’s more than just making decisions that aim to benefit children; for some, it’s just as much about costs which are much higher for incarceration than, for example, some treatments.

At the same time, it’s not about making excuses for youth violence and other crimes; they must be held accountable – just at the age they are, according those at the event Tuesday.

For its part, The MacArthur Foundation has started programs in 35 jurisdictions in 15 states. The idea is to build on rehabilitative services much more than punishment for crimes committed when, according to research, young brains were so underdeveloped they couldn’t grasp the gravity of the crime.

The problem, according to many experts, is there is no consistency in the system. Fifty states; 50 systems of juvenile justice. Few argue for an overall federal law, but some sameness in the legal community could help in organizing records and tracking children as they mature through the system.

The report does credit moves by the United States Supreme Court in moving states to action and away from reactive policies that punish more than help juveniles.

For example, in 2005, the death penalty was taken off the books for juveniles. Five years later, life without parole was erased for all minors convicted for crimes less severe than murder.

Then this year, in June, the high court ruled that mandatory life without parole for minors was unjust even in the case of murder, siding with arguments that a child’s brain is not developed to the point where adult decisions can be made, thought through and acted upon.

Along the way, the court cited MacArthur Research Network studies about the nature of adolescents. In a word, they’re impulsive, and should not be held to the same standard as actual adults even if the crime is fitting for tough penalties. (Here, in Illinois, the state raised the age from 17 to 18 for juveniles to be treated as adults for misdemeanor crimes.)

The Supreme Court’s rulings prompted action on the state level – which, to some degree, seemed as budget-minded as it was a recognition of a child’s mental state.

“Research also shows that moving 16- and 17-year-old youth out of the adult system into the juvenile system will return about $3 in benefits for every $1 in cost,” the report found.

But states did make their own moves. Arizona was out front, passing a law in 2001, the first year studied in the report, that said juveniles must be placed in residential facilities if “the juvenile has psychological and mental health needs and requires the court to periodically review the progress of the treatment given.”

Even traditionally non-progressive states have made seemingly bold moves.

Consider Georgia, which has recently been debating a wholesale overhaul of its juvenile system.

In 2006, the state began mandating full mental health evaluations of juveniles deemed not competent, meaning the minors be exposed to community-based treatments and other rehabilitative services before detention in a secure facility is even considered.

“The legislative trends evidenced during the past decade,” according to the report’s findings, “reflect a new understanding of adolescent development and the value of cost-benefit analysis of existing data-driven research."

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