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Saturday, September 15, 2012

Think of the children

Think of the children
Posted: 12 Sep 2012 06:07 PM PDT
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.

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