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Juvenile Justice and the Theater of the Absurd

The route to a law that will help keep kids out of adult prisons.

In the diner where my working life began hung a photocopied epigram, splattered with coffee and grease: "The beatings will continue until morale improves." We all get the joke: The supervisor is committed to doing the absolute wrong thing until his charges cheer up and give him the right result. The premise is absurd, a Samuel Beckett play in a single sentence. It's quite a funny play, too — unless you happen to be the one getting beaten.

The executive personnel of this establishment changed frequently; most had never managed employees before, and some reacted to their insecurity by ruling with an iron hand. I looked forward to the day when I'd finish school and move on from the diner to the white-collar working world, where certainly such nonsense did not exist.

I was, of course, wrong. There are striking differences between the world I grew up in and the one I live in now. Nonsense, however, is a constant. This is never more obvious to me than when I am thinking about or writing about juvenile justice. So many of our policies intuitively seem designed to drive children deeper into criminality, and research overwhelmingly proves as much. But changing these policies — these proven failures — remains an uphill battle.

The beatings will continue ...

One of the most striking examples of the disconnect between juvenile justice means and ends is adultification — that is, trying minors in adult court and sentencing them to adult prisons. About 200,000 minors enter the adult criminal justice system each year. Research on minors sent to the adult system says that they are more likely to re-offend and escalate into violent behavior than their peers who go to the juvenile system, where rehabilitative services are far more extensive. We also know that youths in adult prisons are at high risk for suicide and for victimization by adult inmates.

Though treating juvenile offenders like adult criminals sounds medieval, the practice actually gained popularity in the United States in the 1990s, when many states changed their laws to move more children to the adult justice system. Understanding why adultification became the darling of law-and-order types is an interesting journey into the American psyche.

A couple of months ago, there was a series of shootings in Hartford, Conn. The city's newspaper, the Hartford Courant, quoted a local politician as saying, "It seems the youth involved in these incidents are getting younger and younger." Police had not arrested anyone for the shootings or discussed any suspects. But the legislator assumed that the perpetrators were young people. Had she made assumptions about the shooters' race or ethnicity, the reporter would have asked a challenging follow-up question. There is one group in America about which it is perfectly acceptable to make negative assumptions: teenagers. We are quick to believe them violent, disruptive and, perhaps worst of all, disrespectful. In the 1990s, supposed experts said that we were dead right.

The rate of youth violence increased in the late 1980s, giving rise to fears about youth and crime. One might argue that the introduction of crack cocaine to our cities and the decimation of social programs throughout the Reagan presidency had something to do with this trend. Or one might argue that teenagers were simply wicked creatures getting even worse by the minute. The latter argument carried the day. Throughout the 1990s, the theory of a coming wave of "superpredators" gained popularity. The book Body Count promoted the theory with rhetorical gusto. These superpredators would be "radically impulsive, brutally remorseless youngsters, including ever more preteenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun toting gangs and create serious communal disorders." The book, authored by University of Pennsylvania professor of political science John DiIulio, former education secretary and drug czar William J. Bennett and John P. Walters, now drug czar under George W. Bush, was enormously influential. DiIulio later backed away from the superpredator theory, but America did not.

Between 1992 and 1998, 40 states passed laws making it easier to try minors in adult courts. These legislative changes made for a dramatic shift in the prison population. The number of kids in adult jails has more than doubled since 1990. Human Rights Watch estimated in 2005 that more than 2,000 youth under age 18 were serving life without parole. Until a Supreme Court decision that same year, the U.S. was executing prisoners for crimes they committed as minors. About 7,000 American children sit in adult jails right now.

The laws vary from state to state. In some places, a child as young as 10 can be transferred to adult court, largely at the discretion of prosecutors. Other states have no minimum transfer age at all. Elsewhere, adulthood is automatically set at 17 for the purposes of criminal prosecution, though it remains at 18 for other purposes, such as marrying or even getting a tattoo. My state, Connecticut, is one of only three to set the age of adult prosecution at 16 for all offenses. Until recently, a 16-year-old could go to adult prison for truancy. (Samuel Beckett would have delighted in the irony of that one.)

Youth crime was already declining as many adultification laws were passed. Today, youth violence is at a 30-year low. But the public perception remains that juvenile crime is escalating. America is very much like those assistant managers who were the bane of my own adolescence. Terrified that we cannot keep order, we become authoritarian. Most of the data we have on adult prisoners show that the prospect of heavier sentences has no discouraging effect on criminal behavior. Yet we adopted this get-tough strategy as a sensible way to fight youth crime.

The U.S. Department of Justice released a report in August affirming that transferring juveniles to the adult system actually contributes to higher recidivism rates. The report cites six major studies, all of which showed that minors transferred to adult court were more likely to re-offend than peers who went to juvenile court for similar offenses. It is difficult to empirically demonstrate whether the prospect of an adult conviction has a deterrent effect on juveniles considering criminal behavior, but the report's conclusion is that available research shows the deterrent effect to be slight if indeed it exists at all. The report also posits "the possibility that incarceration in adult facilities may have brutalizing effects on juveniles, which may partly account for their increased recidivism."

The concept of a separate justice system for juveniles was founded on the theory that adolescents are different from adults, less responsible for their transgressions and more amenable to rehabilitation. Painting with very broad brush strokes: The primary purpose of the juvenile justice system is to help young people reform; the primary purpose of the adult corrections system is to punish. All of the services one might expect to set a youth on a path to law-abiding success — from mental health treatment to schooling — are far more extensive in the juvenile system. Surveys of adolescents serving adult time in my state paint a picture of kids in serious need of these services. Their files are full of reports of violence witnessed and experienced from a very early age, disrupted family lives, substance abuse and special education needs. The majority have diagnosed mental health issues. It is not unusual to see a kid who has been in 10 different placements, from relatives' homes to foster homes to state hospitals. What is unusual is finding an "inmate" who was not first a client of child protective services.

These hardships cannot constitute a free pass for young people to break the law, but their histories are clearly a disadvantage. In an adult prison, however, a youth may have no access whatsoever to services that address these issues. That vacuum is filled by adult criminal mentors.

Interestingly, the DOJ report makes it clear that the simple act of being charged in the adult system is a predictor of recidivism — even for youth who never do time in an adult prison. Juvenile records are sealed; an adult record limits future opportunities. As we push kids into the adult system and saddle them with the lifelong stigma of a criminal conviction, we limit their options to ever earn an honest living. One legislator who supported reform in Connecticut told me that he's seen many young people suffer even when they were acquitted. Employers now use Internet searches to do background checks. Police withhold the names of juveniles, but other arrests are public information. Because there is far more police reporting than court reporting at most newspapers, potential employers will typically see accounts of an arrest but never know that the case was dropped or that the youth was found not guilty. Other consequences of an adult record include ineligibility for public housing or for a Pell Grant to help with college.

The reformers of the Progressive Era who fought for a juvenile justice system called themselves "child savers." They believed that young people were works in progress, that criminal behavior in youth did not have to mean a lifetime of criminality. This belief rested on moral and sometimes religious conviction. Today it rests on science. In adolescence, the prefrontal cortex, the seat of reasoning and judgment, is still developing. In study after study at Dartmouth's Laboratory for Adolescent Science, Dr. Abigail Baird used functional magnetic resonance imaging to actually see brain activity in teens as she put them through various decision-making tasks. Like other scientists studying developing brains, she found that teenagers truly do think differently and that their brains have not developed all the working connections that they will use in adulthood.

Baird terms the amygdala, an almond-shaped area of the brain that provides critical processing for sensory information, "the brain's burglar alarm." The amygdala is activated in fight-or-flight, survival situations, and when Baird asked adults and teens to identify "good" and "bad" ideas, she discovered an interesting difference. Evaluating a clearly dangerous act — for example, swimming with sharks — adults used their amygdala. Teens, who took longer to respond negatively to dangerous acts, used the frontal cortex, which was not nearly as efficient. Teens did not have enough experience with abstraction to liken swimming with sharks to more familiar dangerous situations, Baird concluded. Their brains simply weren't equipped to make a good decision in a split second. Imagine, instead of swimming with sharks, the choice becomes: "Should I take a ride in a stolen car with Rick, the coolest kid in school?"

So to review: Trying kids as adults encourages crime. It does nothing to address the family or health issues that plague many young people in the system. It limits their opportunities for a lifetime. And it makes no provision for the fact that adolescents demonstratively do not have adult judgment and so cannot fairly be held to adult standards. Adultification is a policy whose time should never have come, the real-world continuation of beatings to improve morale.

I was involved in the effort in Connecticut that resulted in legislation that will end the practice of sending all 16- and 17-year-olds charged with a crime into the adult justice system, effective in 2010. When the law takes effect, only those charged with serious, violent felonies can be tried as adults. The 97 percent of 16- and 17-year-olds in the system who are accused of less-serious crimes will be considered juveniles.

Several factors led to success here. For one thing, Connecticut did not change its juvenile jurisdiction law during the superpredator hysteria of the 1990s. Connecticut had tried kids as adults for most of the 20th century. This was actually an advantage. There was no recent history of aroused passions to combat. In fact, it came as a surprise to many in the state that this law was even on the books.

The most striking news story in the years leading to the reform was the suicide of a 17-year-old in an adult prison. The boy had psychiatric problems and was alone in his cell for nearly 23 hours a day. This segregation is common practice for the protection of young inmates. But imagine a disturbed kid spending 23 hours a day staring at the bars that confine him. The boy was incarcerated, by the way, for a simple parole violation. The horror of his story was an unfortunately potent weapon in the arsenal of advocates for juveniles.

Connecticut is politically unique; party labels don't strictly apply here. (It's the state, after all, that gave the world Republicrat Lowell Weicker and Demolican Joe Lieberman.) So although Democrats were the main sponsors of juvenile justice reform and control, the state General Assembly and Republican legislators were supportive. Ultimately, Republican Gov. Jodi Rell signed the legislation. Because Connecticut legislators are part-time and usually have other careers, there were natural champions in the Assembly. The bill's co-sponsors both have social work backgrounds. We also did very well with the Legislature's many lawyers. Defense attorneys and former prosecutors alike had witnessed the folly of adultification.

But the money issue would not go away. It's more expensive to house a child in a juvenile facility than in an adult prison. All the services that make the juvenile system preferable cost money. Readying the juvenile system to accommodate 16- and 17-year-olds has a price tag in the millions. Society decided not to invest in these kids long before they ever ran afoul of the law. They come from the worst-funded school districts. They live in crumbling housing, in neighborhoods where the potholes widen from year to year. Children, by definition, have no political or economic power.

Remember the old epigram: The beatings will continue until morale improves. The people most obviously getting beaten up by adultification were not the ones paying taxes. It quickly became clear that, if we wanted to change policy, we needed to send a message to every taxpayer in Connecticut: You're getting beaten, too.

The main advocacy group pushing for reform, the Connecticut Juvenile Justice Alliance, sounded that message over and over. Our rallying cry was not that the current policy is draconian, though it is, but that it's not in the best interest of law-abiding taxpayers. At every opportunity - before the General Assembly, during discussions with the press and in open breakfasts held all around the state - we presented the research that shows adultification causes recidivism. Yes, putting 16- and 17-year-olds in juvenile court would cost more in the short run. But it would also prevent multiple crimes and multiple incarcerations in the lives of these children. That means safer communities and a reduction in the amount of tax revenue needed to fund new prisons. Sticking with adultification, we insisted, hurt us all. Of course, we reassured people that the very few teens who do commit serious crimes would still go to the adult system. This disarmed objections that we were "soft on crime."

Legislators who voted to commit millions to formerly throwaway kids tell me that they've received no negative feedback from their constituents. Several are playing up their role in juvenile justice reform in their re-election campaigns.

We've won a battle here, of course, not a war. There will be plenty of chances to skimp on the necessary funding between now and 2010. And sadly, adultification is not the only counterproductive policy in our treatment of at-risk youth. There are many more battles to be fought. But this particular victory means that, every year, about 10,000 Connecticut 16- and 17-year-olds will be spared the permanent stigma of adult arrest and the potential trauma of an adult prison.

The success of the Raise the Age campaign, which still seems a bit astounding even to those directly involved in it, is an object lesson for anyone looking to promote reform to benefit a marginalized group. Those of us in advocacy tend to be focused on the injustice done and the suffering of the victim. We need to recognize that society does not always share our concern. But if altruism is a less-than-universal instinct, self-preservation is not. We need to shift our focus to the majority. What benefits does the comfortable, middle-class taxpayer get from acting on behalf of the oppressed?

There is almost always a payoff for the majority in these situations. In a country where the birthrate is falling and the elderly population is burgeoning, we must maximize the number of people who have an opportunity to be active participants in our communities and in our economy. If those of us with comfortable lives want to preserve our living standards in the coming decades, there can be no throwaway people. The beatings, for all our sakes, cannot continue.

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