“What begins with anger ends with shame.”
Benjamin Franklin
I was asked this past week to visit the North Carolina General Assembly and speak to legislators about effective juvenile justice practices -- what works and what doesn’t work. Like Georgia and most states, North Carolina too was hit hard by the economy and is making hard decisions to cut programs — the state is 3.6 billion in the hole. The irony of budgeting in a fiscal crisis is that it forces policymakers to scrutinize the way things have always been done. When you have to cut, the question is what to cut and hopefully the less effective programs are cut and replaced by more effective and cost efficient alternatives.
Our discussions in North Carolina focused on what works and what doesn’t work -- and typically what works is more cost effective. What doesn’t work is less effective and more expensive to the taxpayer --incarceration of kids in most circumstances is ineffective.
I was joined later in the day by a juvenile judge from Halifax County, N.C. named Brenda Branch. Judge Branch shared her practical and common-sense approach to treating juveniles -- kids should be treated like kids! This point was emphasized when I asked the audience, “How many of you did some type of delinquent act when you were a teenager?” Most raised their hands with laughter.
Judge Branch followed-up and told the group that persons with authority over kids should recall their own teenage years when deciding how to respond to kids who made stupid decisions. Together, we challenged the audience to question if our desire to change a child is driven by a need to change something in ourselves. Is it possible that our attempt to address youth violence by treating them as adults is a reaction driven by our anger as opposed to the needs of kids? After all, the research strongly refutes the effectiveness of automatic transfer laws to adult court.
Policy making too often is a response to events we can’t explain. When this occurs, legislators tend to react with emotion, not objective data. Take, for example, the case of 8-year-old Amy Yates found strangled near her home in Carrollton, Ga., in 2004. We were all shocked to hear that a 12-year-old boy named Jonathon confessed to the murder. Jonathon would later recant his confession claiming that after hours of interrogation he wanted to go home. After asking for his mom and dad -- and after being told no -- he told his interrogators he was with Amy in the woods playing a game and ran into her by accident causing her to fall down a ditch.
The ditch sealed it for the police. Amy’s body was found in a ditch. The police claimed the location of Amy’s body was known only to the killer -- they had not released this fact to the public. Jonathon entered an Alford plea -- a plea that allows a defendant to admit only that the state can prove their case while denying his guilt.
Jonathon was committed to the Department of Juvenile Justice (DJJ) for the maximum time allowed --two years. If Jonathon were 13, he would go to adult court. A kid under 12 charged in juvenile court and commitment to the state for no more than two years (unless extended on motion by the state for another two years) is the most a judge can do under such circumstances. Still and all, DJJ decides the placement, which can include home.
Amy’s father was angry. He left the courtroom vowing to change the laws. He could not fathom how someone can commit such an atrocious act against a sweet little girl and be free after two years. Mr. Yates’ crusade led him to state Sen. Bill Hamrick from Carrollton, Ga.
I recall when Sen. Hamrick joined Mr. Yates’ crusade. He called for reform in the juvenile justice system -- beginning with the tougher handling of 12-year-old murderers. This “tougher” approach included lowering the minimum age of the “seven deadly sins” law -- automatic transfer to adult court -- from 13 to no minimum age in cases involving murder.
I was besieged with calls from colleagues on and off the bench when Sen. Hamrick’s comments made the news. The callers queried how anger directed at one person -- a 12-year-old boy -- could drive a change in policy?
I told my colleagues and friends that the anger was not the problem -- the anger was appropriate. Jonathan killed a little girl. We are supposed to get angry when someone is murdered. It is a natural and God-given trait. It’s what we do with our anger that is the issue. Paradoxically, what is a natural trait may — by our misguided thinking -- produce an inappropriate and unnatural outcome.
Removing the minimum age for treatment in adult court in cases involving murder presupposes that all such children cannot be rehabilitated and should be locked away for life. Consider that only 10 percent of all murders each year are committed by juveniles -- and most of them are 15 or older. Many of those under 15 were charged as a party to a crime, and were not necessarily the killer. Most of us in this juvenile justice field -- if we stay in tune with the research -- know that “murders by the very young” are rare. (Bilchik, S, Juvenile Justice Bulletin, 1999). Annually between the years of 1980 and 1997, fewer than 10 juveniles age 10 and younger were identified as participants in murders (and I emphasize “participate”). These numbers have dropped along with the rate of juvenile violent crime which is now at an all time low.
Several of my colleagues -- knowing these statistics -- asked out loud, “Really. We are going to change the law to treat the very young as adults based on a case that may not happen in Georgia for, say, another 25 or more years?”
But the distress displayed by several judges, defenders and advocates was not only statistical. The idea of sending kids at any age under 13 to adult court to face life in prison assailed the fundamental precepts of a civil society -- to abrogate essential concepts such as mental competency and protecting children from emotional and physical harm -- even when they have harmed others.
The previous columns on this subject have addressed adolescent brain research. We should all know by now that youth, especially the Jonathon’s and younger, are under neurological construction and are prone to make very poor choices -- sometimes not fully appreciating the results of their actions. This is a good juncture to remind ourselves of Dr. Jay Giedd’s comments that being under neurological construction means youth generally can still be neurologically re-wired to behave and do well. Do we really want to forsake this medical and behavioral fact in a moment of anger?
Consider that case reports and studies of juvenile homicide offenders reveal positive treatment outcomes and low recidivism rates. (Cormier & Markus, 1980; Gardiner, 1985; Hellsten & Katila, 1965, and Toupin, 1993). This should not be surprising since recidivism among adult homicide offenders is relatively low in comparison to adult offenders. Given the better opportunities for neurological re-wiring for youth it would follow that recidivism among juvenile homicide offenders would be much lower. In fact, these studies reveal that juvenile homicide offenders -- like the adult studies -- have lower recidivist rates than juvenile offenders. (Toupin, 1993).
Competency to stand trial requires the child to possess “sufficient present ability to consult with his attorney with a reasonable degree of understanding and a rational as well as factual understanding of the proceedings against him.” Dusky v. United States 362 U.S. 402, 1960. In his landmark studies of juveniles and their competency to stand trial, Dr. Thomas Grisso evaluated the ability of juveniles to respond to a series of questions concerning their ability to apply the Miranda warning to hypothetical situations. The juveniles under the age of 17, in comparison to adults, showed significant gaps in their understanding of the warning, especially with regards to the right to remain silent. The study reveals a greater lack of understanding for juveniles under age 15. (Grisso, Juveniles’ Waiver of Rights: Legal and Psychological Competence)
In the grand scheme of things, it simply comes down to a very simple thought -- probably so simple it is often overlooked -- and I will quote Dewey Cornell, a clinical researcher, who put it this way in his article “Child and Adolescent Homicid,”: “It is difficult to distinguish when the poor judgment of a nervous, immature adolescent should be regarded as competent in such a momentous matter as to deciding to confess to murder.” (Dewey, from the Handbook of Psychological Approaches with Violent Criminal Offenders: Contemporary Strategies and Issues. Kluwer Academic, New York. Eds. Vincent B Van Hasselt and Michel Hersen).
Let’s put this “simple thought” into perspective -- by looking at it from the perspective of -- let’s say a 12- year-old boy such as Jonathon. Dr. Grisso’s uncontroverted research reveals that most juveniles detained for a crime will waive their Miranda rights and make a statement to the police (Grisso, 1981). Grisso further points out that even when parents are available to the juvenile, most will assume a passive role or encourage the juvenile to give a statement (Grisso, 1981). The research has shown that with “prolonged questioning, many juveniles can be prodded, cajoled or beguiled into giving police incriminating statements” (Dewey, 1999).
Speaking of Jonathon’s perspective, let me tell you -- using the words of Paul Harvey -- “the rest of the story.” Jonathan, after about two years removed from his home for a crime he confessed and later recanted claiming he did so because he wanted to go home, was released when a 19-year-old mentally disabled youth named Chris Gossett admitted that he killed Amy (Chris was 16 at the time of Amy’s murder).
Chris told police that Amy rode her bike to the Gossett’s to deliver a birthday invitation. She met up with Chris and he lured her into the nearby woods. When asked why, Chris said it was for sex. Chris said he tried to remove Amy’s pants, which would explain why her pants were unzipped and opened but not pulled down. He also described how he sat on Amy’s chest to keep her from screaming. At the time, Chris weighted 280 pounds. Amy’s chest had massive bruising. Jonathan weighed only 100 pounds---not enough to cause such bruising.
Lastly, Chris shared how he took Amy’s notebook and tossed it. The police found it a short distance away from Amy’s body. Not even the Yates knew that Amy’s notebook had been found. In fact, they were never shared any of these details about Amy’s death. Mr. Yates saw the taped confession of Chris. How could Chris have known these details? Mr. Yates was convinced he had persecuted the wrong person --and a 12-year-old at that! Mr. Yates pursued another crusade -- to free Jonathan. He succeeded.
Mr. Yates other crusade -- to change the law -- was successful too. Today it is called “Amy’s Law.” To bring it full circle, I must re-introduce Sen. Hamrick. He sponsored “Amy’s Law,” but thanks to the open mindedness, common sense, and intellect of the good senator, “Amy’s Law” does not transfer kids under 13 for murder to adult court. In fact, Sen. Hamrick resisted placing it in the category of designated felonies in which judges can place kids in secure confinement for 1-5 years. Instead, Sen. Hamrick sought counsel and advice from the experts and formed his own opinion -- he convinced his legislative colleagues to change OCGA 15-11-70 to give juvenile judge’s discretion to commit youth under 13 years of age adjudicated on murder to the Department of Juvenile Justice until age 21 with the authority to release the youth upon a showing of rehabilitation.
We often experience how bad facts make bad law. The murder of Amy Yates is a case of bad facts that was on a road to becoming a bad law. Sen. Hamrick changed the direction of “Amy’s Law” so that the next time a kid 12 and under commits murder -- and really did it -- he will be treated with an eye for rehabilitation instead of an eye for an eye.
Aristotle said it best -- “Anyone can become angry -- that is easy. But to be angry at the right person, to the right degree, at the right time, for the right purpose, and in the right way -- this is not easy.”
Sen. Hamrick took the road less traveled -- he drafted a law that will benefit and not hurt children. He put aside his anger and listened to the facts.