Sholeh: 'Tough on crime' is tough on kids

  For centuries humanity has recognized that all minds are not alike. What each is capable of understanding, and thus, acting upon with reasoned judgment, varies by wide margins. We don’t hold someone with developmental disabilities, brain injuries, strokes, or senility to the same standard as those without. Nor do we expect children to think as adults, as their brains are quite literally still developing, with the judgment areas last and still forming through the early 20s.

   Or do we?

   Over time society decided to legally protect children and teens; the law considers youth as “a disability” (of mature decision-making). We declare those younger than 18 or 21 to be incapable of sound judgment to enter the military, to marry, to smoke or drink alcohol, to sign a contract, to consent to even basic medical procedures. We legally and morally recognize youth is less capable of reasoned, informed judgments.

   Why then do we make an exception for serious crimes, acts even more significant and with higher adult consequences, judgment, self-control, and implications than perhaps any of those items above? It’s irrational, so it must be emotional. That is a high price for a yet-to-be-developed mind to pay just to salve society’s emotional wounds.

   Bear with me.

   The juvenile justice system was created for a reason — the recognition of these mental differences and lesser capabilities. The point of creating separate juvenile justice courts was that like any other mental disability, youthful minds are scientifically and increasingly proven to be biologically less able to reason, and thus should be held accountable and guided or treated according to a standard fitting that level of capability. Teens can’t think like adults, and have far less mental impulse control, so they shouldn’t be treated like adults, we once reasoned. Teens are also much more susceptible to suggestion and influence – including improvements, so they’re also more capable of changing for the better than are adults.

   So a justice system specifically for juveniles made sense, one designed to offer penalty options, second chances, judicial flexibility in what are often complex situations, and – key to so many juvenile offenders – the hope of real help with a better-than-adult’s chance of success. Until the 1980s and 1990s, when rising crime rates shifted thinking.

   A disturbing nationwide trend developed (one which other nations have a tough time understanding, judging from European newspapers and with, by the way, lower crime rates) with American legislatures, judicial systems, and communities using this age-appropriate system less and less, charging kids “as adults” and bypassing the juvenile system.

   Thus began popular changes in state laws allowing this bypass for certain crimes and ages (varies by state from 13 to 17). Violent crimes and the fear they inspire in all of us somehow seemed to justify ignoring the disability of age and forcing less developed minds to accept harsher adult penalties (including prison assaults and other traumas to which teens and youth are especially vulnerable), as well as less case-flexible and less treatment-oriented consequences.

   The irony? Trying juveniles as adults hasn’t been a crime deterrent, according to PBS’ “Frontline” and studies which examined juvenile arrest and incarceration rates over 10 years in New York, Pennsylvania, New Jersey Florida, Idaho, Wyoming, and Montana. In fact, the study covering Idaho found rates of certain juvenile crimes targeted by our 1981 legislation had actually increased after the law was enacted. Similarly in Florida, juvenile offenders transferred to the adult system were more likely to re-offend than those who remained in the juvenile system. 

   It also costs a lot more, as some states such as North Carolina have determined. A legislative task force in that state found in 2011 that trying more kids as kids could save them up to $50 million, even after accounting for more specialized detention space.

   Anyone who’s raised a difficult child to adulthood, or known one living in difficult family circumstances, and made an attempt to observe has seen the changes in mental maturity and impulse control as years go by. In kids with problems (especially bad parenting) – the typical youth offender, those changes tend to be even more apparent. There are nuggets good and bad in all of us, but as we get older, we are better able to nurture the right ones and find ways to address the others. Without acknowledging youth’s disability and without the help juvenile facilities were designed to provide, the possible becomes next to impossible.

   There are always alternatives. We changed the laws before, first to recognize the disability of youth, then again to ignore it. Why not a middle ground between being treated as an adult and getting a clean slate at 18 (which doesn’t necessarily happen anyway)? Revisit these laws with an eye toward balance, with the advice of experienced child psychologists, judges, defenders, and prosecutors, considering other states’ and nations’ systems to identify approaches to juvenile justice with proven track records. It needn’t be one extreme or the other. “Tough on crime” needn’t mean “tough on kids.” Especially when data doesn’t show it to be effective.

   Violent crime rates are steadily decreasing now, by almost half for youth aged 10 to 24 between 1995 and 2011 according to the CDC; yet our level of societal fear seems to remain high. This too, defies logic. Perhaps fear is just a habit that’s hard to break, rational or otherwise.

   “The law is reason free from passion.” - Aristotle

   Sholeh Patrick, J. D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.