States rethink charging kids as adults

12-1-2007 National

A generation after America decided to get tough on kids who commit crimes — sometimes locking them up for life — the tide may be turning.

States are rethinking and, in some cases, retooling juvenile sentencing laws. They're responding to new research on the adolescent brain, and studies that indicate teens sent to adult court end up worse off than those who are not: They get in trouble more often, they do it faster and the offenses are more serious.

"It's really the trifecta of bad criminal justice policy," says Shay Bilchik, a former Florida prosecutor who heads the Center for Juvenile Justice Reform at Georgetown University. "People didn't know that at the time the changes were made. Now we do, and we have to learn from it."

Juvenile crime is down, in contrast to the turbulent days of the 1990s when politicians vied to pass laws to get violent kids off the streets. Now, in calmer times, some champion community programs for young offenders to replace punitive measures they say went too far.

"The net was thrown too broadly," says Howard Snyder, director of systems research at the National Center for Juvenile Justice. "When you make these general laws ... a lot of people believe they made it too easy for kids to go into the adult system and it's not a good place to be."

Some states are reconsidering life without parole for teens. Some are focusing on raising the age of juvenile court jurisdiction, while others are exploring ways to offer kids a second chance, once they're locked up — or even before.

"There has been a huge sea change ... it's across the country," says Laurie Garduque, program director at the MacArthur Foundation, which has worked extensively on juvenile justice reform. "It certainly helps that there has been a decline in juvenile crime and delinquency."

Not everyone, though, believes there's reason to roll back harsher penalties adopted in the 1990s.

"The laws that were changed were appropriate and necessary," says Minnesota prosecutor James Backstrom. "We need to focus on the protecting the public — that's No. 1. Then we can address the needs of the juvenile offenders."

Each year about 200,000 defendants under 18 are sent directly or transferred to the adult system, known as criminal court, according to rough estimates.

Most end up there because of state laws that automatically define them as adults, due to their age or offense. Their ranks rose in the 1990s as juvenile crime soared and legislators responded; 48 states made it easier to transfer kids into criminal court, according to the juvenile justice center.

These changes gave prosecutors greater latitude (they could transfer kids without a judge's permission), lowered the age or expanded the list of crimes that would make it mandatory for a case to be tried there.

Some states also adopted blended sentences in which two sanctions can be imposed simultaneously; if the teen follows the terms of the juvenile sentence, the adult sentence is revoked.

The changes were ushered in to curb an explosion in violent crime — the teen murder arrest rate doubled from 1987 to 1993 as the crack trade and guns flourished — and to address mounting frustrations with the juvenile justice system.

A series of horrific crimes by kids rattled the nation:

In Michigan, a baby-faced sixth grader, Nathaniel Abraham, shot and killed a stranger who was leaving a convenience store. When he was arrested in his classroom, his face was painted for Halloween.

In Florida, Lionel Tate was 12 when he beat and stomped to death a playmate half his age.

In Chicago, two boys, then 10 and 11, dangled, then dropped 5-year-old Eric Morse to his death from a 14th-story vacant public housing apartment. His terrified brother raced down the stairs, hoping he could somehow catch Eric.

Some politicians began using the phrase "adult crime, adult time." There were predictions of even bleaker days ahead.

Some warned that by the end of the century, thousands of remorseless kids — a new generation of "superpredators" — would be committing murder, rape or robbery, joining gangs and dealing drugs.

"There was an organized effort to label kids and make people afraid of juveniles," Snyder says. "People were saying their mothers had smoked crack, their DNA had changed. ... they were no longer the same people. They tried to make it seem these kids are different from your kids and that you need to do something."

But the super-vicious breed of criminal never emerged. (The professor who coined the "superpredator" term later expressed regret.) Drug trafficking declined. An improved economy produced more jobs. And the rate of juvenile violent crime arrests plummeted 46 percent from 1994 to 2005, according to federal figures.

"When crime goes down, people have an opportunity to be more reflective than crisis-oriented and ask, `Was this policy a good policy?'" Bilchik says.

The MacArthur Foundation said in a report to be released this month that about half the states are involved in juvenile justice reforms — among them, taking more kids out of the adult system, providing more mental health and community based-services and improving conditions at detention centers.

A national poll, commissioned by MacArthur and the Center for Children's Law and Policy and set for release at the same time, also found widespread public support for rehabilitating teens rather than locking them up. Most favored shifting some money states spend on incarcerating kids and using it for counseling, education and job training.

Some states have already begun to make changes.

_In Colorado, Gov. Bill Ritter, a former district attorney, recently formed a juvenile clemency board to hear cases of kids convicted as adults. The head of the seven-member panel says it's an acknowledgment that teens are still developing and different from adults — a point made in the 2005 U.S. Supreme Court decision that outlawed the death penalty for crimes committed as juveniles.

This was the second revision in Colorado. In 2006, a law replaced the juvenile life-without-parole sentence with the possibility of parole after 40 years.

_In California and Michigan, life without parole for teens also is getting another look. This spring, a state Senate panel in California approved a plan offering the chance of freedom after 25 years. A package of bills that would ban the no-parole sentence for those under 18 and revamp the process allowing juveniles to be tried as adults awaits a hearing in Michigan.

_In Connecticut, lawmakers recently raised the age of juveniles to 18 for most cases; the changes will be phased in by 2010. Prosecutors can still transfer felonies to adult court.

Legislator Michael Lawlor said 16- and 17-year-olds charged with misdemeanors such as shoplifting and vandalism were hindered when they applied for jobs or college. "This caused people to think ... should all of these cases be adult all the time?" he says. Those records are now sealed.

_In Illinois, a proposal to move 17-year-olds charged with misdemeanors to juvenile court passed in the state Senate and is pending in the House.

In 2005, the state repealed the automatic transfer of kids to adult court for drug violations within 1,000 feet of public housing or schools. An advocacy group found virtually all the kids caught in this statewide law were minorities from Cook County; about two-thirds were first-time offenders — a population, it argued, that could benefit from juvenile court.

_In Wyoming, talks are under way to shed a system that routinely charges and jails juveniles as adults even for minor offenses such as underage drinking. One idea is to have judges, prosecutors and social workers evaluate first-time offenders and find treatment — mostly, without sending them to jail.

Not all states are easing up.

Rhode Island headed in the opposite direction — at least, temporarily. Last summer, the state passed a law to send 17-year-old criminal offenders to adult prisons in what was intended as a cost-cutting move. The measure, however, was repealed about four months later after some critics pointed out this plan probably would be more expensive.

And a North Carolina proposal to study whether the state should raise juvenile jurisdiction to age 18 stalled in a legislative committee this year.

It is a change that would have aided North Carolina attorney Deborrah Newton last year, when she fought to keep a 15-year-old boy out of adult court. He was charged with second-degree murder in the drug-related death of his 16-year-old friend, Erica Hicks.

Prosecutor Melanie Shekita argued the boy had supplied Erica with drugs, including Ecstasy. And, she says, when the girl collapsed at his house and a friend called 911, the boy hung up and later told the operator it was a prank.

Shekita says the boy's "reckless behavior," his juvenile drug history and the need to have "a red flag" on his permanent record were reason enough for him to be treated as an adult.

Newton painted a different portrait, of an insecure follower who wanted to "impress his peers, selling a dime bag of pot here and there to be popular. ... He was simply not mature enough to appreciate the consequences of his conduct," she says.

The boy was tried as a juvenile and found responsible for involuntary manslaughter. He eventually entered a residential treatment program. "This kid would not have survived an adult prison," Newton says. "The most fragile are preyed upon. It's simply not the place for a child."

It's an argument made by others who've studied kids prosecuted as adults.

"The juvenile correctional system is more rehabilitative or treatment-oriented," says Donna Bishop, a criminal justice professor at Northeastern University in Boston. "The adult system, for the most part is a warehouse where (kids) spend a great deal of time with older, more seasoned, more serious offenders, many of whom talk about becoming a better criminal."

Reginald Dwayne Betts knows firsthand. He spent more than eight years behind bars in Virginia for an armed carjacking. An honors student who had never been in trouble with the police, he says he expected he might be sent to a juvenile detention center or even receive a suspended sentence.

Instead, he was tried as an adult. When he was originally sentenced to 23 years, he says, he didn't know the difference between the terms "consecutive" and "concurrent."

Locked up at 16, Betts spent most of his time in adult prisons.

"Of course it makes a difference if you're 15, 16 or 17," he says. "You're not prepared to deal with it physically or emotionally. You're trying to deal with being away from home. You're trying to deal with the stress that comes with being in prison."

Violence was a constant presence. "I got used to stuff most people I see today would never have to get used to — like somebody getting their head split open," Betts says. "You get numb to it. It's like, OK, somebody got stabbed."

Betts had serious problems at first. He wound up in isolation three times during his first 18 months. But he gradually retreated into books, taught himself Spanish, took a paralegal course, wrote and published poetry.

When he was released two years ago at age 24, he won a college scholarship, found work and started a book club for young boys. He's now engaged and has a book contract. He knows he is an exception: "People don't come out of prison and make good," he says.

In New York, Judge Michael Corriero is aware of those odds.

He presides over a special court in the adult system — it's called the Manhattan Youth Part and is responsible for resolving the cases of 13- to 15-year-olds accused of serious crimes.

Corriero tries to steer as many kids as possible away from criminal court, a philosophy he has detailed in his book, "Judging Children as Children."

"You take a 14-year-old and give him an adult sentence ... you're taking him out of the community at his most vulnerable time," he says. "His character is still malleable. Fourteen-, 15-year-old kids are supposed to be learning from their mistakes. They're becoming socialized.

"If you put them in an institution, what is that kid going to look like in 10 years?" he asks. "What special skills will he have? What empathy? What can we expect of kids that are taken away and criminalized before their time?"

Corriero says about 65 percent of the cases he handles are sent to mentoring, counseling or other alternative programs, mostly private. If the kids succeed, their records are sealed. The more hard-core teens are treated in the criminal courts.

Treatment programs are very expensive, but they pay off in the long run, declares Melissa Sickmund, senior research associate at the juvenile center. "If you do good in juvenile justice, you won't have adult criminals," she says.

Though juvenile crime tends to evoke images of gangs and murder, violent teens are the exception.

Studies show they account for about 5 percent of all juvenile arrests. Drugs, burglary, theft and other property crimes are among the more common reasons teens are prosecuted in adult courts.

Most of these kids, though, don't end up in adult prison, according to the Campaign for Youth Justice. A study the group commissioned of 40 large court jurisdictions in the country looked at teen felony cases in 1998 and found between a third and a half had no conviction or were bounced back to juvenile court.

Many states have what is called "reverse waiver" provisions, meaning judges can send the case in the other direction.

But crossing the threshold into the adult world is damaging in itself, argues Liz Ryan, head of the group. About 7,500 juveniles are held in adult jails on any given day, she says, and that number probably reaches tens of thousands a year because of turnover.

Being in an adult jail, Ryan says, increases a kid's risk of sexual abuse and assault. Educational opportunities are limited. Even good intentions can go awry; teens who are separated for their safety can end up isolated in 23-hour lockdown.

And for those eventually convicted of serious crimes in adult court, the damage can be irreparable.

"A lot of people say, 'So what? They get a slap on the wrist,'" Ryan says. "Well, there is a consequence. We call it perpetual punishment. You have a felony record that follows you the rest of your life."

Ryan says that can affect college loans and admissions, voting and job prospects. "By cutting off opportunity, it increases the likelihood they'll be back in the justice system," she says.

Sheila Montgomery worries about her son, Zack. He recently was released after serving 27 months for being an accomplice in the robbery of an Oregon convenience store. He had originally received a 7 1/2-year term after falsely confessing to being the robber; he was re-sentenced after evidence revealed he wasn't.

Montgomery says her son, then 15, was struggling with bipolar disorder. He's now 17 and a student again, though his mother says the school was reluctant to accept him.

"He'll forever be a felon," Montgomery says. "He can't put the past behind him. It was hard for him to find work. A lot of people didn't want to see him."

Montgomery says her son deserved punishment and she has no problem with "a little bit of jail time," but probation and counseling would have served him better.

"I feel there are more economical ways to approach juveniles with treatment," she says.

But prosecutors say some kids are just too dangerous to be considered juveniles, where they could be released to walk the streets again by age 21.

If a criminal is likely to get out in three or four years and do more harm, "then I come down on the side of risking the damage that is done by sending someone to prison," says Gary Walker, a Michigan prosecutor who is active in juvenile issues.

"When they tell me placing a younger person in an adult setting is not necessarily for the betterment of the individual," Walker says, "my answer is: 'Who thinks it is?'"

Minnesota prosecutor Backstrom didn't hesitate at all in prosecuting Matthew Niedere and Clayton Keister as adults in the murder of Niedere's parents.

The 17-year-olds, he says, carefully planned the crime: Niedere shot his father five times and his mother four times. Keister shot Patricia Niedere after she ran outside the family store, yelling for help, then returned and tried to save her dying husband.

Prosecution was one thing, punishment another.

"I had to make a very difficult decision whether to put these young men away for their natural lives, or give them a chance," Backstrom says.

He weighed several factors, including their lack of criminal record and brain research that shows the frontal lobe — the part that regulates impulse control and aggression — is still developing in the 20s.

Backstrom agreed to having the teens plead guilty to murder involving an armed robbery — allowing for the possibility of parole in 30 years.

"As I told them at sentencing, they're going to have to show more remorse than they did when they pled guilty," he says. "If that's the case 30 years from now, then we'll give them a chance in society."

More than a decade ago, Backstrom had pressed Minnesota lawmakers to make it easier for prosecutors to take serious cases into adult court.

He was spurred by a case in which he wasn't allowed to try a 16-year-old for murder as an adult; the boy fatally shot an acquaintance point-blank in the head in a dispute over marijuana. He served less than 1 1/2 years in juvenile detention.

"That's not justice," the prosecutor says. "That's a joke. ... He should have gone to prison 15 or 20 years. That's what would have happened today."

State Attorney Harry Shorstein of Jacksonville, Fla., has his own approach.

"I think I've created my own juvenile justice system," he says. "The secret is not choosing punishment vs. prevention, but using both."

In 16 years, Shorstein's office has transferred more than 2,600 juvenile cases to adult court. Almost all offenders go to jail for about a year, where they live separately from adults, attend school, meet with mentors and receive social services.

Meanwhile, the prosecutor buses in at-risk kids — ages 9 to 11 — so they can talk with a few teen inmates, seeing them locked up, cut off from their families.

"All this is not to try to scare them but ... have them interact with the juveniles they looked up to because of their guns, money and cars," Shorstein says.

But technically, the jailed teens have not been convicted. And if they stay out of trouble while locked up, and for two years of probation, their record is clean.

"I believe crime is like gymnastics," he says. "It really is a young person's sport. If you incapacitate a 15- or 16-year-old for a year, you can prevent more crime than if you imprison a 22-year-old for life." ..more.. by SHARON COHEN, AP National Writer