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July 28, 2009

New York Times editorial on "12 and in Prison"

Today's New York Times has this notable editorial about young kids in adult criminal justice systems.  Here are some excerpts:

The Supreme Court sent an important message when it ruled in Roper v. Simmons in 2005 that children under the age of 18 when their crimes were committed were not eligible for the death penalty.  Justice Anthony Kennedy drew on compassion, common sense and the science of the youthful brain when he wrote that it was morally wrong to equate the offenses of emotionally undeveloped adolescents with the offenses of fully formed adults.

The states have followed this logic in death penalty cases.  But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts.

Congress can help to correct these practices by amending the Juvenile Justice and Delinquency Prevention Act of 1974, which is up for Congressional reauthorization this year.  To get a share of delinquency prevention money, the law requires the states and localities to meet minimum federal protections for youths in the justice system.  These protections are intended to keep as many youths as possible out of adult jails and prisons, and to segregate those that are sent to those places from the adult criminal population.

The case for tougher legislative action is laid out in an alarming new study of children 13 and under in the adult criminal justice system, the lead author of which is the juvenile justice scholar, Michele Deitch, of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin.  According to the study, every state allows juveniles to be tried as adults, and more than 20 states permit preadolescent children as young as 7 to be tried in adult courts.

This is terrible public policy.  Children who are convicted and sentenced as adults are much more likely to become violent offenders — and to return to an adult jail later on — than children tried in the juvenile justice system....

The study’s authors rightly call on lawmakers to enact laws that discourage harsh sentencing for preadolescent children and that enable them to be transferred back into the juvenile system. Beyond that, Congress should amend the juvenile justice act to require the states to simply end these inhumane practices to be eligible for federal juvenile justice funds.

The study referenced in the editorial is available at this link.

July 28, 2009 at 10:36 AM | Permalink


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"Children who are convicted and sentenced as adults are much more likely to become violent offenders...."

Juveniles* tried as adults are much more likely to be violent offenders already. That is typically why they were tried as adults.

*Teenagers, not children, in most cases.

Posted by: Kent Scheidegger | Jul 28, 2009 10:44:49 AM

Where did Kennedy get the idea that the youthful brain has less morality than the older brain? He just made that up to justify his criminal lover immunization of the lawyer client. As to impulsivity and judgment, the same may be said of the 30 year old brain versus the 60 year old brain. And punishment helps the person to mature.

Posted by: Supremacy Claus | Jul 28, 2009 11:14:08 AM

"But they have continued to mete out barbaric treatment — including life sentences — to children whose cases should rightly be handled through the juvenile courts."

I love how the NY Times describes society's response as barbaric--isn't that a description more fitting of the crimes that got the juveniles in the soup they're in.

The issue here is not just sympathy for the juvenile criminals. It IS harsh to sentence a 14 year old to LWOP. It's also harsh to allow 14 year old violent criminals to serve a few years and then get out. The price for such stylishness is innocent blood. Too bad the NY Times editorial board is too dense to recognize that obvious issue.

Posted by: federalist | Jul 28, 2009 11:22:51 AM

Kent, 2 responses:

(a) the study is focused on children younger than 14. That's the whole point, that it is bad policy to send pre-adolescent kids to the adult justice system.

(b) as to whether the transfers are restricted to violent offenders, the following quote from page 31:

"While it is more likely for a young
child to be adjudicated in adult court for a person offense than for any other type of
crime (Figure 6), it is astonishing to note the variety of crimes for which they are considered
transfer-worthy. The number of property offenses dealt with in the adult court is
nearly identical to the number of person offenses, and the number of public order crimes
is more than half the number of person offenses."

See p. 31 of the report (p. 49 of the linked PDF)

Posted by: Texas Lawyer | Jul 28, 2009 11:50:53 AM

"That's the whole point, that it is bad policy to send pre-adolescent kids to the adult justice system."

It's also bad policy, as we've figured out, to release violent juvenile criminals upon society after a short time behind bars.

Posted by: federalist | Jul 28, 2009 11:58:53 AM

The report is written by a lawyer. It has zero credibility. A child kills both grandparents to avoid punishment. This criminal lover, rent seeking horrible feminist lawyer attributes a pattern of premeditation, stealth, escape, alibi generation, lying, to the side effects of a medicine. The medicine made him really slick, perhaps. No court has ever accepted anti-depressant agitation as credible excuse. That excuse is ridiculous.

It is funny, but not funny. The feminist lawyer destroys the family. Bastardy explodes criminality. Then the feminist lawyer blames everything and everyone but the client and herself.

Not a word of the barbarity of blasting the grandparents that took you in, after your feminist enabled ho' mother abandoned you to pursue the full time Roman Orgy lifestyle.

Prof. Berman, don't you ever tire of this toxic left wing charade? You accept this self-serving, rent seeking, lying garbage as if it were true. You are like a child yourself. You believe what the left tells you. And if you ever expressed concern for a crime victim, ever, at any time after your 1L, I would love to read it. I would be impressed by a simple, I felt sorry this victim was murdered. I do not expect nor request any type of advocacy on behalf of the millions of people dispatched by the lawyer client in extra-judicial executions using butcher type methods.

I also invite the author of this left wing propaganda to come here, and to debate the data and the policy implications of loosing multiple murderers on the public. Let's go page by page, reference by reference.

I demand that this feminist nightmare become foster parent to any released under aged murderer. Let's loose them all into a lawyer neighborhood for a change, not into a minority one, carrying a six fold burden of crime victimization already. I support the release of all pre-teen murderers into lawyer residential neighborhoods. Let's have group homes of them, hanging out on the porch as lawyer children pass by on the way to the park.

Posted by: Supremacy Claus | Jul 28, 2009 12:11:56 PM

Federalist, we don't allow 7-year-olds to marry, drive, join the army, sign contracts, manage their own money, or hold full-time jobs. I suspect you are not lobbying for any of those restrictions to be eased.

But when they commit crimes, then — and only then — you seem to be content with the idea of treating them exactly as if they were adults. Why is that?

Posted by: Marc Shepherd | Jul 28, 2009 1:52:18 PM

"The number of property offenses dealt with in the adult court is nearly identical to the number of person offenses...."

That statistic confirms my point. Property offenses are far more common than violent offenses. (Seven times, in the FBI index.) If the two are equal in the portion of juvenile offenders transferred to adult court, then that group is far more violent than average.

Posted by: Kent Scheidegger | Jul 28, 2009 1:59:04 PM

It's good that the op-ed focuses on actual "children." People who are 12 and 13 and commit violent crimes might still be capable of rehabilitation in a way that 17-yr-olds might not be.

That said, there's a good amount of stupidity in the article. Even if you think that Justice Kennedy's opinion is good policy, it's simply awful as a matter of constitutional law, and had the opinion gone the other way there would still be a majority of states that do not execute minors (whether because they simply do not have the death penalty or because they do but make exceptions for minors).

Also, as Mr. Scheidegger points out, the op-ed contains an exceedingly stupid example of the correlation-as-causation fallacy when it points out that "children who are convicted and sentenced as adults are much more likely to become violent offenders".

When I see how bad the NY Times is in writing about law, I often wonder if their op-eds on other subjects are similarly shoddy.

Posted by: anonymous | Jul 28, 2009 2:12:11 PM

Perhaps, Marc, you didn't read my post very carefully. I did acknowledge it was harsh to incarcerate violent juveniles for long periods. Problem is that it's also harsh to let them go.

If you're going to get all weepy about the fate of these criminals, just remember the cost in blood of letting them go after a short stretch. Sometimes, you do things that ruin your life. Sad but true. That's how I feel about violent juvenile offenders.

Your reference to contracts etc. is ridiculous. We lock up juvie offenders to protect the rest of us.

Posted by: federalist | Jul 28, 2009 3:09:58 PM

SC. You are right and wrong. Every single valid study I've seen indicates that most children develop their sense of morality by the age of nine. However, that's not the same thing as impulse control or developing an idea of the consequence of one's actions. Just because a child has learned an adult sense of right and wrong doesn't mean that a child has the same skills adults have to cope.

That's the problem with Kent's line of thinking as well. Even if juvies are more violent than most that doesn't mean they are morally worse, it just means that they are less skilled.

I've said it before I'll say it again. The one thing that all pedophiles want to do is impose an adult's world on the child. For sexual predators it's sex. For other types of predators, it's other things.

Posted by: Daniel | Jul 28, 2009 3:13:47 PM

It seems Doug, that none of your illustrious readers have ever heard of the UN Convention on The Rights of the Child.
The United Nations General Assembly adopted the Convention and opened it for signature on 20 November 1989 (the 30th anniversary of its Declaration of the Rights of the Child). It came into force on 2 September 1990, after it was ratified by the required number of nations. As of December 2008, 193 countries have ratified it, including every member of the United Nations except the United States and Somalia.
The Convention generally defines a child as any human being under the age of 18, unless an earlier age of majority is recognized by a country's law.
I understand that President Obama has declared a wish to see Congress ratify for the US during his tenure? If it did so, I wonder if that would put an end to this abuse and "barbaric response" to crime by young children.

Article 37 States: Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.
Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or
imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.
In particular, every child deprived of liberty shall be separated from adults unless it is considered in the
child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other
appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

Posted by: peter | Jul 28, 2009 3:33:51 PM

Your reference to contracts etc. is ridiculous.

What I supplied was a list of capacities in which the law bars a child from making decisions requiring the maturity of an adult. What is more, there are no exceptions: a judge can't, for instance, decide that a particular 7-year-old is eligible to drive. Why, then, should the law treat some 7-year-olds like adult criminals?

We lock up juvie offenders to protect the rest of us.

You will note that I did not say that they all deserve their freedom. Some surely do not. My issue is "trying them as adults."

Posted by: Marc Shepherd | Jul 28, 2009 3:58:41 PM

"Just because a child has learned an adult sense of right and wrong doesn't mean that a child has the same skills adults have to cope."

1) But that would also hold true from ages 21 to 81, and indeed criminals burn out in their 50's in the majority of cases.

2) Indeed, if someone is very impulsive, then draconian punishments are therapeutic and reach them better than slaps on the wrist.

3) We all did stupid things as kids. However, how many of us thought of using a shotgun on our parents to prevent a spanking. That is the last thing any one of use would have thought of. That makes the child extremely threatening to all future caretakers. He just wanted to avoid a spanking. He was stealthy, escaped, concocted an alibi, and accused others.

This case is not a good one to illustrate your impulsivity points.

Posted by: Supremacy Claus | Jul 28, 2009 6:49:41 PM

Texas Lawyer's comments to Kent are on point. This study is not looking almost adult teenagers being tried as adults, it is looking at very young children ages thirteen and under, being tried as adults. The fact that these cases are thankfully rare in the nation as a whole, does not mean that they aren't a mistake.

Particularly problematic are life without possibility of parole sentences metted out to very young offenders. A thirteen year old is never utterly incapable of redemption and is never capable of the level of culpability that makes that offense appropriate, yet this is the only statutory choice for many young juveniles tried as adults for serious crimes.

Often, the decision to try a youth as an adult is made by a prosecutor or by automatic application of a state statute, rather than a judge. And, a handful of states, like Florida, Michigan and Pennsylvania make up a large share of cases nationally, even though almost half the states theoretically permit these kinds of prosecutions.

The most extreme results are often the largely unintended intersection of laws that sought to impose mandatory minimum offenses on adults likely to be hardened offenders but drafted imprecisely to allow tough punishments for less culpable officials, laws that expanded the ability of prosecutors to bring cases in adult court that were targeted at egregious cases involving teens, and laws that allowed very young offenders to be tried in adult court at times when adult court sentences weren't as harsh. Often no one at the legislative level thought about how all of these factors would interact together.

Equally important, while prosecutors often have discretion to keep very young offenders out of adult proceedings, a large subset of prosecutors have developed an instinct to abdicate moral responsibility for their choices and simply bring the most serious charges available in every case as a strategic way to seek greater bargaining power. A subset of prosecutors are oblivious to the notion that they, as well as judges, have a responsibility to seek what is just in a particular case and act like one of the adults in the room.

Posted by: ohwilleke | Jul 28, 2009 8:48:55 PM

SC. I wasn't making a point about impulsivity. I was making a point about development. The difference between a 13 year old and a 25 year old is something you can't even deny: time. I think it's fair to say that by the time a person is 25 they have had or should have had enough time to develop adult coping skills. I don't think that's a fair statement to make for a pre-teen or young teen. Heck, we don't even allow people that age to work legally. If you wish to think that a 13 year old is a fully developed human being, you have that right. I simply disagree.

Posted by: Daniel | Jul 28, 2009 10:13:33 PM

Most of human history and cultures thought fourteen was adult, as does biology, in the ability to reproduce. That ability defines adulthood across all species. That 18 or 21 age was labor lawyer rent seeking, and left wing teacher rent seeking. They force adults to waste 4 years doing zero in high school, except lowering labor competition and giving millions of teachers worthless make work jobs babysitting a bunch of forcible idled adults. Maturity comes from experience. Many of these kids are street wise thugs, surviving in environments where neither of us could, killing at will, running multi-million dollar businesses. They have better business savvy and social skills than both of us by their talents and experience. They are more mature than either of us, and should hang when they act up. The 123D count should definitely start at 14, and the earlier in special heinous cases. The younger the onset of the count, the fewer the future victims of these vicious predators.

Posted by: Supremacy Claus | Jul 28, 2009 10:58:01 PM

marc, everyone with a brain agrees that if you could figure out which kids are salvageable and which aren't we'd be able to tailor our system better---but that's not how life works. Let's say, for the sake of argument, that if you release 100 violent 13 yo juvenile offenders within 10 years, 2 will commit murder, would you be ok with that? The fact is that we don't know who's redeemable and who isn't, and the system now errs on the side of public safety. I'm glad that it does.

Your seven year old hypos are silly, and I am not going to discuss them. We're not talking about hundreds of 7 year old killers.

Posted by: federalist | Jul 28, 2009 11:23:14 PM

Fed: We are talking about 100's of 7 year old killers. We are talking about 4 year old, scary, cool as cucumbers, killing machines.


"He should not have grabbed my toy."

"Oh, OK. No problem."

Posted by: Supremacy Claus | Jul 29, 2009 12:25:03 AM

The Campaign for the Ratification of the Convention on the Rights of the Child (CRC)

Posted by: peter | Jul 29, 2009 2:58:15 AM

"If you wish to think that a 13 year old is a fully developed human being, you have that right. I simply disagree."

Does anyone think that? The issue, Daniel, is safety. A 13 yo violent offender let out at say 23 is a serious danger to society.

Posted by: federalist | Jul 29, 2009 9:56:05 AM

"A 13 yo violent offender let out at say 23 is a serious danger to society."

That is the most ridiculous statement I have seen today.
Of course is probably reflects your view that prisons, even for children, are merely warehouses, and that no effort should be made to address the offending behavior, but I hope that is very much a minority view.

Posted by: peter | Jul 29, 2009 12:11:14 PM

The 13 year old may be more fully developed than some of the adults here. How many here have had multiple sex partners, killed people, and made $2 million by stealing cars on commission, run a six figure drug dealing business starting at age 9, been in rehab, or used marijuana daily? How many here have been parentified, and had to provide and care for siblings, impaired parents, starting at age 7?

Maturity comes from experience. I do not have the maturity to survive that environment, as an adult.

The HBO series, The Wire, is fictional. However, a Baltimore journalist created it. Its extreme content, especially involving kids and crime, is realistic. One may see mature kids in action, younger than 13.

Posted by: Supremacy Claus | Jul 29, 2009 12:12:12 PM

federalist. "Does anyone think that?" Apparently SC does. Although it may be a kindness to describe what happens in his brain as thinking. ;-)

Posted by: Daniel | Jul 29, 2009 2:45:50 PM

Dan: I think most of the people here spent their time studying. I know they had perfect averages from kindergarten to law school. However, studying 80 hours a week gives them a virginal, albeit charming and funny naivete about the real world. Perhaps none committed a crime nor was victimized by a crime.

Posted by: Supremacy Claus | Jul 29, 2009 5:28:35 PM

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