Critical Evaluation: Adult Time
ALTRUISM V. DRACONIAN
2008-04-14
By DeAngelo Starnes

It’s tax time again.  I can think of a few things I don’t want my taxes to go to: pre-emptive wars, bank bail-outs, no-bid contracts for Halliburton and Blackwater, the salaries of the White House, and jails where children are serving adult time after being convicted of adult crimes.

Each year over 20,000 juveniles are charged and tried in the criminal judicial system.  Although current statistics on the exact number of juveniles currently serving time in adult correctional facilities seem to be unavailable to the public, it is estimated that there may be over fifteen thousand juveniles serving time alongside adults in prison.  Given the difficulty in obtaining these statistics, that number is probably much higher.

Over the past week, a widely-viewed video circulating in the news and on the Internet shows a teenaged girl receiving a physical beating.  The video contains only a short clip of a thirty-five minute battery, which resulted in a concussion, two black eyes, and diminished hearing in one ear.  Apparently, the girl was lured to the house where six of her fellow cheerleaders assaulted her while two boys acted as look-outs.  All eight kids have been arrested and charged as adults.

It’s the being charged as adults I have a problem with.  Certainly, what you see on the video is repugnant.  The girls’ actions are vicious and pre-meditated.  But what you don’t see are adults, or kids acting like adults.

It reminds me of last year’s big story from Jena, Louisiana.  Teenagers were charged as adults for attempted murder simply for participating in a simple schoolyard fight.

To charge someone as an adult requires some “adult” actions, doesn’t it?  But how do you define an adult action?  What are the qualifications for it?  Acting mature and responsible seems to underlie the concept.  But I know a lot of so-called adults who act immature and irresponsible as a way of life.  In my opinion, commission of most crimes is an act of irresponsibility regardless of years spent on the planet.

Society uses age as a delineating point for many activities.  There are minimum age standards for driving, voting, employment, and buying alcohol, a car, or a house - among other things.  Persons falling below that line either are prohibited from the activity or must do so with adult supervision.  There are virtually no exceptions to these minimum age requirements.

In the criminal judicial system, there is allowance for a blurring of the line.  There are certain cases where prosecutors decide to charge and try children as adults.  And being charged as an adult has a consequence of serving adult time with adults upon conviction. 

Juveniles are considered to be persons aged 17 years or younger.  You can’t treat someone in this age range like an adult.  First, scientific studies have determined the human brain undergoes continuous development up to the age of about twenty-one.  According to the research, the brains of juveniles, particularly the frontal lobes, are not fully developed, youths lack the ability to perform critical adult functions, such as plan, anticipate consequences, and control impulses.  Thus, in terms of cognitive abilities and decision-making capabilities, children haven’t reached the point where they can fully comprehend the breadth of the consequences of their actions.  I’m not saying they don’t know right from wrong.  I’m saying they don’t have to capacity to fully evaluate the impact their actions have on themselves, their families, their victims, and their victims’ families. 

In addition to the physical development of their brain, they lack the social experience of life that informs emotional development and intellectual capacity.
The stunted physical and emotional development of a child presents legal problems that haven’t been adequately addressed by the legal system.  Criminal defendants must be legally competent to stand trial.  This requirement includes (a) the ability to understand the nature and possible consequence of charges, the trial process, the participants' roles, and the accused's rights in this process; (b) the ability to participate with and meaningfully assist counsel in developing and presenting a defense; and (c) the ability to make decisions to exercise or waive important rights.  Many adult defendants considered competent to stand trial do not have a flawless understanding of the trial process or ability to assist counsel.  How can you expect someone you don’t trust to vote or drive a car without adult supervision to be able to do the same?

As an example, adults typically see a legal right, such as right to counsel during an investigatory interview, as an "entitlement," which is provided to them by law and cannot be revoked. In contrast, research suggests that children think of a right as "conditional,” i.e. something that authorities allow them to have but which can be retracted if one doesn’t act a certain way.
Similarly, juveniles often lack the capacity to assist their attorneys in their defense.  Assisting counsel requires more than being able to watch, listen, and communicate. It is a collaborative process.  It requires information provision and decision-making - information and decisions which will dictate how you spend the best years of your life.
So even if you could argue that there are cases where juveniles should charged and tried as adults, there should be an additional safeguard requiring a competency hearing.

And this is just the process that I’m writing about.  The other component, and the more serious aspect, is the punishment upon conviction.  I’m of the opinion that, regardless of the heinous nature of the crime, no juvenile should receive adult time or serve time with adults before they are 18 years old.

Regarding adult time, thankfully, the Supreme Court abolished the death penalty for juveniles.  However, in most states, the sentence of life without the possibility of parole is still available.  In 2006, the United Nations voted 185 to 1 in favor of abolishing life without the possibility of parole sentences for juveniles.  The United States was the lone dissenting vote.  The latest available statistics indicated that there are 2,381 persons currently serving life without the possibility of parole sentences for crimes committed when aged 17 or younger.

When you sentence a child to life without parole, you have effectively given up on the child’s ability to redeem and rehabilitate him/herself.  There was a time when children were given an opportunity to fail and to learn from those failures.  Indeed, it was an expectation.  However, since the late 80s, society has become less forgiving of juveniles committing crimes.  The identity of children as children has been lost.  They have been recharacterized as animals.  They have become soccer balls in political contests where the game is “getting tough on crime.”

And what does that say about our society?  We fear our children.  We have lost control of our children.  We don’t trust our children.  We have lost hope in our children.  Aren’t we the adults?  We don’t allow our children to run our households.  We insist they follow our rules.  If we are not ready to cede control to our kids, why are we punishing them like they’re adults? 

I’m not saying that juveniles shouldn’t receive sentences that last into adulthood.  However, I don’t believe that you should place juveniles in adult prisons.  I don’t think you should send a child away for the rest of his/her life without taking into consideration the fact that (s)he committed a crime when (s)he wasn’t fully formed as an adult.
We must recognize that juvenile commission of crimes are acts of immaturity.  It’s the decision-making process that needs fixing.

A question that lies at the foundation of the criminal judicial system is “What is its goal: punishment or rehabilitation?”  Personally, I don’t think that these are mutually exclusive notions.  Obviously, wrongs have to be punished.  However, punishment is incomplete if there is no lesson learned at the end of it.  The lesson should begin the rehabilitation.

I think that juveniles in the criminal system require special attention.  For starters, we should demand that a “correctional” facility live up to the correctional part of the facility’s title.  In addition to serving time in a correctional facility, post-custody sentences must include a comprehensive program of mandatory academic and financial education, job training (including job-seeking guidance), and psychological counseling.  In fact, the whole family should receive counseling because, most likely, it is what’s happening at home that’s responsible for the child being in the criminal judicial system. 
 
Charging a child with an adult crime, sentencing them with adult time, and forcing them to serve that time with adults do not improve society, deter crime, or make us safer.  It’s a form of vengeance imposed on kids.  Vengeance is not justice.  It’s just vengeance.  And vengeance is nothing more than selfish and a self-gratifying emotion.  If we are to be an adult society, we need to reconsider treating children as adults in the criminal judicial system.  It’s time for us, as a society, to act maturely and responsible with the people who represent our future.

DeAngelo Starnes is an attorney and cultural critic based in Denver.  He covered the final season of the Wire for EbonyJet.com. Critical Evaluation is his new regular column.