New Laws Affecting Kids Should Be Vetted By Body of Experts to Avoid Unintended Consequences

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Judge Steven Teske

Judge Steven Teske

It is a natural human emotion to be scared of what we don’t understand. And sometimes the fear is too great and we check our brains at the door.

The “superpredator” scare of the ’90s is a great example of checking our brains at the cloakroom.

When Jerome Miller shuttered the youth prisons in Massachusetts, the ’90s outcry that a wave of “superpredator” kids would rape and pillage homes and families as if Armageddon was upon us shuttered the movement to shutter youth prisons. But the evidence shows that he was on the right path.

Acting like a collective amygdala, legislators ignored their frontal lobe’s capacity to translate emotions into logic, and instead they opted not to flee or freeze, but to fight. Anticipating the onslaught, legislators took a pre-emptive posture and passed automatic transfer laws intending to remove “superpredator” kids from the streets for lengthy periods, including the sentence of life without the possibility of parole.

But the “superpredators” never came, and the onslaught didn’t happen. The experts misinterpreted the data, and instead the opposite occurred. Juvenile crime declined and continues to decline.

In the wake of this “superpredator” outcry we’re left with the passage of harsh laws creating a fallout that continues today with an estimated 250,000 youth tried, sentenced or incarcerated as adults every year.

So, if the superpredators never came, then what kids are we locking up today in adult prisons?

When we disaggregate the 250,000 kids locked up as adults each year, most youth prosecuted in adult court are charged with nonviolent offenses. Surely, these are not kids described as the “superpredator” kind.

Maybe I am a bit naïve, but I can’t believe that our policymakers among our several states intended these results. How do we correct these unintended consequences? And more critical, what do we do to avoid future unintended consequences when facing another spike in crime?

I believe we could do better now and will in the future if we analyze laws using what I refer to as the Relativity of Laws. That holds that benefits received from a law or rule to effect positive social change are directly proportional to the degree of rationality exerted to avoid unintended consequences, or outcomes that counter the intended benefits.

So, in the world of juvenile justice, the intended purpose is a constant factor called recidivist reduction. The degree of rationality is the extent to which objective data analysis and evidence-based studies are considered in the configuration to reduce recidivism. In other words, will this policy complement the system in the effort to reduce recidivism and promote public safety?

In my wishful thinking, it would be a blessing for all kids if states would adopt a legislative and policymaking review body dedicated to juvenile justice and child welfare matters proposed by legislators and executive officials. I don’t mean to usurp our democratic process, so I am not calling for a body that can unilaterally reject a legislative bill or an executive order as that may very well violate the legislative veto clause and separation of powers doctrine.

I propose instead an interdisciplinary body made up of officials with subject matter knowledge from the three branches of government, and including others with specialized knowledge of what works in matters involving children and youth who simply review proposals and provide feedback and recommendations.

No foul, no harm. An extra step in the process that can reduce the odds of unwittingly passing harmful policies.

These reviewing bodies can measure the relative effectiveness of existing laws and those proposed in the future by using a two-prong analysis:

  1. Will it accomplish its intended purpose?
  2. Will it result in unintended consequences that will cause harm?

For purposes of policy analysis, harm is anything that is contrary to the physical, mental and emotional well-being of kids and/or isn’t contrary to best practices.

The latter question is necessary because laws can still achieve their intended purpose, but may do it in a broad manner that does more than what was intended, and the “more” may be harmful.

So, even if the policy achieves its intended purpose, it may still be bad policy if the impact benefits some but harms others.

For example, when the Georgia Council on Criminal Justice Reform discovered that more than 50 percent of youth committed to the state were low risk, we were convinced that the current law achieved its intended purpose to remove the scary kids. Notwithstanding this fact, we were also convinced that the law swallowed more than scary kids. It also consumed the kids who make us mad, and placing them in criminogenic facilities created a hyper-recidivist effect. This not only harmed the kids, it made them worse.

But assuming that the answer to the former question (i.e. Does the policy achieve its intended purpose?) is no, the answer to the second question will most likely cause some harm.

Why? Because the relativity of laws hold that if the intended purpose is to reap benefits, and those benefits were not realized, then something nonbeneficial is resulting, and that is an unintended consequence, and unintended consequences are suspect to cause harm.

Applying these rules of relativity to automatic transfer laws, it goes without saying that if the laws were passed to avert a situation that was never going to happen in the first place, then it becomes impossible for these laws to have accomplished their intended purpose, a purpose that was never realized.

For the most part, the automatic transfer laws can be described as phantom laws because they were created by phantom facts, or facts that never existed. It’s like a mirage in the desert. We run toward it, but regardless how fast we run, we never reach it because it was never real in the first place.

So it follows that if these laws are grounded in phantom facts, the intended purpose of the policy is also a phantom, and this is what leads to overly broad laws that swallow up unintended victims. Ironically, we are making the nonviolent violent notwithstanding the research that shows that kids retained in the juvenile justice system are less likely to reoffend than young people who are transferred into the adult system.

Unintended consequences can be avoided if we stop checking our brains at the door.

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