OP-ED: Moving from the Traditional Idea of Punishment to a More Measured Response

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John Lash

One of the most entrenched ideas in American culture is that punishment is effective both at creating justice and at affecting change in those who do wrong. The basic concept is that when someone does something I don’t like I hurt them, or threaten to hurt them, and they change. Obviously this kind of violence does work, but it is limited by my ability and willingness to harm you.

We see this idea demonstrated in everything from child rearing to war. We also see it played out in the realm of juvenile justice policy. In the ‘90s it was the impetus for many of the changes to juvenile codes that made it easier to transfer kids to adult courts, especially for serious crimes, and led to an increase in the number of children serving adult sentences that is only now being reversed.

Don’t get me wrong. I know that there is a place for detention in how we address danger and harm, I just think we need to rethink its purpose. The real reason to detain someone (child or adult) is for our and their safety. That’s it really, and when we have them detained we need to do our best to make sure that the time is well spent on education, treatment and whatever else they might need to be a more effective member of society. When the danger passes we can let them out, under supervision if necessary, and begin the work of reintegration into our community.

One of the biggest challenges to doing things this way comes when kids commit serious crimes, especially murder. Take the case of Paul Gingerich, who, as a 12-year-old, helped kill an older boy’s stepfather, Phillip Danner. Gingerich, because of the nature of his crime, was swiftly transferred to adult court where, after pleading guilty to conspiracy, he was sentenced as an adult to 25 years in prison and five years on probation.

Because of the split between juvenile and adult court, the judge had no other option than to impose a standard sentence based on the crime. Gingerich was housed in a juvenile facility, but faced transfer when he “aged out” of that system, and was expected to be released when he was 37. Instead, due to appeals and a recent change in Indiana law he has a chance to earn back his freedom.

The Indiana Supreme Court ruled in his favor, upholding a lower court’s finding that the transfer out of adult court was too swift. The Indiana legislature, motivated in part by Gingerich’s case, passed a law this past summer giving judges more flexibility in these situations.

It is expected that on Dec. 16 Gingerich will again waive his right to have his case heard in juvenile court, and will again accept a plea bargain in exchange for dropping certain charges. The difference is the new law.

The deal, explained by Robert King in Indy Star, is based on the new law, which “was a legislative response to the outcry from child advocates and juvenile justice groups after Gingerich’s initial sentencing.” It allows for the judge to revisit the case when the boy turns 18. His behavior and progress will be evaluated, and a decision will be made about what will happen to him next. He could remain in prison, go to a residential program, be on electronic monitoring or probation. As his lawyer, Monica Foster, says, “He has the keys to his own jail cell.” Foster and Gingerich’s parents are confident in his ability to continue to be a model prisoner.

In this case we see a logical and humane response to a tough problem, and one that gets away from the traditional idea of punishment to a more measured response. Hopefully we will soon see similar strategies employed around the country.

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