The classic strawman, the underlying justification for any legislation appearing to be tough on crime, the go-to argument for riling up mobs in your favor is to implore people to, please, think of the children.
The “children” at issue are not just any children: they’re your children and mine, those sweet innocent babes who just want to eat ice cream and roll in the mud and take cute pictures with the family dog. Those naive children whom we must protect at all costs from the dangerous monsters that lurk around the corner and wait in shadows. Unless, of course, these children commit crimes themselves, in which case we do think of them: we think of them as juveniles. One day, they’re the future of the nation, the next they’re shackled in the back of a prison van, drenched in their newly acquired status as irredeemable delinquents, the scourge of society.
Juveniles have long been the forgotten sector of the criminal justice system. Practicing in juvenile court is barely a step above practicing in family court. Representing them is akin to being a social worker and no self-respecting defense lawyer voluntarily wants to go into juvenile court and looks down on those who do. Until now. After the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama, the plight of juvenile defendants is finally seeing the light of day and taking center stage in a long-overdue discussion about just what, exactly, we are doing to our children. These two cases are notable not only for their respective holdings, but also for mainstreaming the scientific consensus on the development of the adolescent brain.
They’ve caused us to re-examine our treatment of these damaged, troubled 14, 15, 16 and 17 year olds and have shone a spotlight on the ugly legislation we have in our states that mistreats these children.
There are two notable developments today in juvenile law, which are worth mentioning briefly: first, the New Jersey Supreme Court issued this major opinion [PDF], holding that a prosecutor’s decision to seek transfer of a juvenile to adult court is subject to an “abuse of discretion” standard, not a more stringent “gross and patent abuse of discretion” standard1. Second, the Pennsylvania Supreme Court today heard oral argument in a case about the retroactive application of Miller and just what is to be done about juveniles sentenced to mandatory life without parole. It’s a difficult question, to be sure.
But what’s notable about these cases – and specifically the NJ case – is how we are treating our children. The NJ statute calls for a prosecutor to seek transfer to adult court when certain criteria are met: namely that the juvenile is 16 or above and charged with specific crimes. In 2000, the NJ legislature did away with a provision in that statute that used to permit the juvenile to present evidence and mitigating information countering the request to transfer. Now, the 16 year old has no voice in this proceeding. In NJ, at least, a judge has the authority to deny the transfer, but only under very specific circumstances.
Connecticut is worse: Any juvenile 14 (!!!) and above who is charged with a felony that exposes him to a maximum of 20 or 25 years in jail (Class B and A felonies) must be automatically transferred to adult court. Not a single person in the juvenile court system has the authority to prevent that transfer. Upon transfer, the prosecutor in adult court has 10 days to decide whether to send the case back to juvenile court. Not a judge, and certainly not a defense attorney.
The net effect of this is that the juvenile who was exposed to a maximum punishment of 10 years (in NJ) or 4 years (in CT), is now exposed to adult sentences with adult consequences, often to include mandatory-minimums that can constitute a period greater than 70% of the juvenile’s life up to that point. I use these two states as examples, but I’m pretty certain that most, if not all, states have similar provisions.
The children, their rehabilitation and their individual circumstances have all been cut out of the process in the name of lip service to some badly flawed public policy. These children grow up in the adult criminal justice system, where any pretense of rehabilitation has long since been abandoned and are crippled in their lives for a foolish, tragic act at a very young age. They don’t come out reformed; the juvenile system just becomes a breeding ground and the starting point for a pipeline to the adult system.
And yet the science points in exactly the opposite direction. Adolescent brains are developing all the way until 25. Rationality is not a hallmark of the teenager, nor is clear-headed decision making or a full understanding of the consequences of one’s actions. And yet we punish them as if we expect them to be adults and act like adults at 14. Of course consequences must exist for actions that hurt others: isn’t involvement in the criminal justice system, incarceration in a juvenile facility with peers and mandatory supervision enough? Must we make these children carry the burdens of their youthful mistakes well into adulthood, nay, forever?
A rational argument can be made that in some circumstances, the harm or injury caused by the juvenile is so great that the protection and forgiveness of the juvenile system is undeserved. I accept that. But that argument doesn’t support the broad brush applied in states; in fact, it supports the exact opposite. Transfer to adult court must be rare and reserved for those that truly deserve it. It must not be a box that is checked in each and every case regardless of the individual circumstances. Automatic, mandatory transfers serve to undo everything that we teach our children: that we are all individuals, different from each other in unique way and that we should seek out and respect the individuality in others. Treating juveniles as adults should be an option, but an option that should be exercised by a judge after a careful consideration of all the factors: the circumstances of the crime, the record of the defendant, his age, his special circumstances. It should be a measured, informed, intelligent decision made on a case-by-case basis, not a blind one-size-fits-all paean to populist bloodlust and fear.
It’s difficult enough for adults to deal with the devastating consequences of having a felony conviction in modern America. Think of the children.
1Apparently such a standard exists. I’d never heard of it, but there you have it.
Thanks for this post. I am actually that rare and beautiful butterfly that voluntarily left criminal defense to do juvenile defense. And I have often uttered the phrase (I’m not a social worker!) to myself, if not to colleagues, despite the fact that my work often involves elements of social work (hey mom and dad – that sociology degree is working out after all!). I practice in Texas – Texas!!! – and I cannot believe the transfer laws in such “enlightened” places like CT. Wow, just wow.
In Texas we have an informal hearing and the judge decides whether the child is tried as an adult (we call it certification or transfer, depending on the locale). Our rates of that have been decreasing in the last few years, which make us look great. On paper. But, we also have this nasty little hybrid called “determinate sentencing,” where (upon grand jury approval) the child is tried in juvenile court. If convicted the judge (or jury, if the child chooses), then can sentence the child to a term which the child will begin to serve in the juvenile system. Upon aging out of the juvenile facility, the child can be released on parole or transferred to the adult prison to finish his or her sentence. There is a list of offenses for which determinate sentences can be sought. That’s a brief overview.
The worst part of this – there is no minimum age. Any child old enough to face prosecution in juvenile court (10 years old here) can get a determinate sentence. Maximum sentences can be anywhere from 10 years for a 3rd-degree felony to 40 years for a 1st-degree, capital or “aggravated controlled substances” felony. So our prosecutors follow this little song-and-dance: Ask the judge to certify the kid. If the judge refuses, return to the grand jury and get the petition amended to seek determinate sentencing. Screw kid and flush future down the drain. Repeat.
That’s just terrible. What is the rate of grand juries granting “determinate sentencing”? At least here in CT, the maximum penalty in juvenile court is up to 4 years in detention or some similar treatment program.
What are we teaching our kids? Sigh.
I shudder when I actually think of the children after reading this post. Quite a thought-provoking article.
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I don’t know the rate of grand jury’s returning determinate petitions. I’ll look into it.
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I asked a colleague who’s been doing this a lot longer than me. Based on his experience, he’d estimate the grand jury approval rating for determinate sentencing at “better than 95%.” He also estimates that the State seeks determinate around 80-90% of the time when certification is denied. As an example of when the State wouldn’t ask for determinate when certification was denied, he said that there may be a policy that the DA screens for certification for ANY first degree felony, even if they know certification will be denied. They may feel that determinate isn’t appropriate since they were only screening because it’s policy (AWESOME police, you guys!). He did go on to say that what troubles him most are the aggravated robberies where the child is not the gunman. In those cases (depending on the court), certification is likely to be denied, but determinate will almost always be pursued, which means a 15 year old kid will get a permanent record and risk up to 40 years in adult prison for being an accomplice. (Texas uses “law of parties,” which holds any actor responsible for the other actors’ behavior when they commit an offense together).
So sad. We’ve got to stop being so rigid in our criminal justice system.