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.