[This op-ed is the first of a three-part series by Judge Teske on the subject of trying juveniles as adults]
I got up this morning and started my routine toward the morning news-making coffee, feeding the cat and dog, and turning off all the porch lights-and upon pouring my first cup and sitting in what my wife calls my “man chair,” I turn the tube on, and there it was-on CNN-“fewer states are trying juveniles as adults.”
I already knew this as a matter of fact having served as Georgia’s representative on the Federal Advisory Committee for Juvenile Justice — a committee that advises the president, Congress, and the Office of Juvenile Justice and Delinquency Prevention (OJJDP) on juvenile justice matters — and as chair of our State Advisory Group (Governor’s Office for Children and Families), which distributes federal juvenile justice grant funds to support effective programs for juveniles in Georgia. But watching CNN legal analyst and former federal prosecutor Sunny Hostin discuss the merits of this new trend, sent a rush of mixed emotions from excitement to thinking, “It’s about time,” and concluding with, “Will Georgia ever follow suit?”
Ms. Hostin was well informed. She pointed to the adolescent brain development research of the 90s using magnetic resonance imaging (MRI) which found that the frontal lobe of the brain, which filters emotion into logical response, is not fully developed until age 21. (Geidd et al., 1999).
In an article to be published in the upcoming issue of the Journal of Child and Adolescent Psychiatric Nursing titled “A Study of Zero Tolerance Policies in Schools: A Multi-Integrated Systems Approach to Improve Outcomes for Adolescents,” I set forth why the MRI research should dictate policy decision-making for the handling of juvenile offenses.
Although the article focuses on school offenses and the counter-productive results of zero tolerance policies, it is equally applicable to all offenses, including serious violent felonies when it comes to the process of deciding if a youth should be handled in a juvenile or adult court.
Georgia is one of those states still clinging to its automatic transfer law — SB 440 — the law that brings kids ages 13 and up to adult court if charged with one of “seven deadly sins.” Given this trend away from the adultification of our youth, is it time for Georgia to reconsider SB 440?
I think so, but that is my opinion and my opinion doesn’t make policy-nor does it influence it! But after listening to Ms. Hostin on CNN, maybe my opinion is not in the minority. One thing is for certain — my opinion is grounded in evidence that treating kids as adults in most circumstances is ineffective.
Despite the evidence against treating youth as adults, why do most of our policymakers refuse to change the law? After all, this issue will never go away. The strength of the evidence-grounded in both behavioral and medical science is here to stay and will continue to be a thorn in the side of policymakers. And don’t be fooled thinking that the juvenile code re-write — whenever it passes — will sweep this issue under the carpet. It doesn’t address this issue.
The irony of the proposed juvenile code is that it was re-written to bring Georgia into the 21st century when it comes to evidence-based practices in juvenile justice; yet it ignores the strongest growing trend grounded in best evidence-“Don’t Treat Kids as Adults!”
The evidence will no doubt command those immersed in juvenile justice practice to relentlessly bombard policy makers until they admit that sustaining SB 440 is merely a political decision to “look tough” on juvenile crime although the evidence says it’s not tough. And if policy makers continue the status quo because it’s politically efficient, maybe-just maybe-the bombardment of evidence against SB 440 may eventually convince them to inch their way toward other changes in SB 440 that will save some of these youth from the abuses of a non-rehabilitative adult system designed for adults with fully developed frontal brains.
Consider why we no longer execute juveniles in this country. In Roper v. Simmons, 543 U.S. 551 (2005), the U.S. Supreme Court held that it was cruel and unusual punishment to execute a person under the age of 18. The court used the “evolving standards of decency” test and pointed to the increasing infrequency with which states were executing juveniles. At the time of the decision, 20 states had the juvenile death penalty on the books, but only six states had executed prisoners for crimes committed as juveniles since 1989.
Since 1990, the Court noted that each of these countries had either abolished the death penalty for juveniles or made public disavowal of the practice, and that the United States stood alone in allowing execution of juvenile offenders. The Court finally pointed out that only the United States and Somalia — you read me right, SOMALIA, a failed state considered one of the poorest and most violent countries in the world — had not ratified Article 37 of the United Nations Convention on the Rights of the Child (September 2, 1990), which expressly prohibits capital punishment for crimes committed by juveniles.
The majority opinion, written by Justice Anthony Kennedy, relied on the MRI research Ms. Hostin referred to on CNN. Justice Kennedy mocked the concept of treating youth like adults by pointing to the paradox in our treatment of them. Going back to our English common law forefathers we have recognized that adolescents possess a lack of maturity and sense of responsibility compared to adults — long before there was research to confirm this.
Look at the statistics; youth are overrepresented in almost every category involving reckless behavior. This concept of adolescent rebellion and reckless conduct is so engrained in our societal thought that our laws prohibit youth under 18 from voting, serving on juries, smoking tobacco, or marrying without parental consent. In recent years, most states prohibited youth under 21 from drinking alcoholic beverages.
I think the most significant problem with laws that adultify youth — whether to execute them or incarcerate for long periods — is that studies show juveniles are more vulnerable to negative influences and outside pressures, including peer pressure. Consequently, they have less control over their own environment. In other words, they lack the freedom, unlike most adults, to escape their criminogenic setting. How sadly ironic that youth caught in an abusive and neglected setting can be removed and placed in foster care, but youth caught in a criminogenic setting are removed and treated like an adult-they are incarcerated along with adults.
Paradoxically, this was in part the reason why legislation in many states was passed in the ‘90s treating kids as adults — they are inclined to make poor decisions. The other part was the increase in juvenile crime during the early nineties that led to the now regretted article by Princeton Professor John Dilulio titled The Coming of the Super-Predators, which called for the treatment of kids who commit violent crimes as adults.
Dilulio theorized about a new generation of male youth raised in “moral poverty,” who “lived by the meanest code of the meanest streets, a code that reinforces rather than restrains their violent, hair-trigger mentality … So for as long as their youthful energies hold out, they will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”
Dilulio concluded that rehabilitation for these youth was inappropriate and that juvenile courts were not equipped to handle these “super-predators.” Legislation to adultify youth charged with violent crimes soon followed. Forty-seven states passed such statutes by 1998, and Georgia was one of them.
I say “regretted” because the author has since retreated from this position. About the same time his article was published, juvenile crime rates fell and are now at the lowest levels in recorded history. (Krisberg, Juvenile Justice: Redeeming Our Children, 2005). Ironically, Dilulio has since reversed his belief and now embraces rehabilitation and reform. (Becker, As Ex-Theorist on Young ‘Superpredators,’ Bush Aide Has Regrets, 2001).
Despite the professor’s regretful conclusion, his observation about a new generation of male youth raised in “moral poverty” has some merit — it’s his conclusion that is wrong. Professor Dilulio did not have the benefit the adolescent brain research. He did not anticipate the response of sociologists, psychologists, clinicians and forward-thinking juvenile justice practitioners to the changing evolving culture of the American family. He did not anticipate the resilience of our juvenile justice system.
The increase in juvenile crime in the late ‘80s and early ‘90s is, in part, related to the changes undergone by the family since the ‘70s. These changes had a profound impact on many children and youth. Take for instance the substantial increase of children born outside of marriage, rising from 11 percent of all births in 1970 to 36 percent in 2004 (National Center on Health Statistics, 2006).
Research studies show children raised outside of marriage have an elevated risk of conduct disorders, psychological problems, low self-esteem, difficulties forming friendships, academic failure and weak emotional ties to parents, especially fathers (Amato and Keith, 1991; Amato, 2001). These characteristics are closely associated to criminogenic behavior that often manifests into delinquent conduct.
The increase in gangs during this period exacerbated the situation because gangs tend to attract youth with problems generally associated with single parent households. During the time the professor published his “Super-predator” article, the Center for the Study and Prevention of Violence published a study showing an increase in the form of youth violence — their acts were more “lethal” resulting in more deaths and serious bodily injury. The study concluded that more guns were getting into the hands of youth. (Elliott, Youth Violence: An Overview, 1994). Other studies revealed both an increase in gangs and their lethality due to access to guns. (Klein, 1995; Klein and Maxson, 1989; Miller, 1974, 1992; Spergel, 1995).
Consider, for example, that in addition to the above risks of children in single parent households, the child poverty rate is more than four times higher in single-parent households than in married-couple households — 34 percent compared with 8 percent.
Many studies regarding poverty and the family conclude that economically deprived parents struggle for the survival of their families. These struggles often cause parental neglect of children — not the traditional neglect that can cause children to be removed from the home — but the type that induces personality disorders in children later objectified in delinquent conduct. Specifically, studies have shown that parents are often unable to pay attention to the importance of parental care. Consequently, children in poor families usually miss the personality development teachings primarily taught in the family.
I am sure that some, especially single parents, may be offended by my comments, so allow me to point out what I am not saying. I am not saying that single parents lack good parenting skills nor are bad parents. The parent is not necessarily the problem — it’s the circumstances and environment that single parent households may find them in that gives rise to criminogenic issues in the child. Therefore, I am not describing most single parents, but I am referring to the ever-increasing number of single parents who are unfortunately trapped in poorer circumstances — for whatever reason.
The overwhelming number of parents of delinquent youth in my court is single and poor. Most of these youth do not know the identity of their father or they have little to no contact with them. The research is overwhelming concerning the adversity facing youth with absent fathers — they are at higher risk of incarceration.
I cannot overstate how many single parent mothers of low income come before me in tears crying over their child, asking for help and explaining how hard it is to stay on top of her child as a single parent. Most of these parents are good. They love their child. They are making sacrifices. For some, however, the sacrifices are not enough. Unfortunately, other circumstances are working against their parental efforts such as poverty, high crime neighborhoods and street gangs — not to mention the child’s unique psychopathy associated with these circumstances.
These circumstances have led to new and different approaches. These new approaches are intensive and focus on family function. It is not uncommon for judges and probation officers to require the entire family to be treated using multi-systemic therapy, family functional therapy and wrap-around services. These services have proven successful with many families.
Professor Dilulio retreated from his original position because he came to realize that youth are under neurological construction and many are being wired by anti-social surroundings and unfortunate circumstances not prone toward success. In other words, if kids are wired to do stupid things, they can be re-wired to do smart things-regardless of their adverse circumstances. They are not adults — they are kids!