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Juvenile Criminals: Coddle or smack upside the head?

January 24, 2012

2. Law, 4. Arrest, 6. Trial

Juvenile Criminals: Coddle or smack upside the head?

Our precious little snowflakes would never hurt anyone, right?  They didn’t intend to put the hurt on that person. They didn’t mean to steal.  The other kid instigated it.  Blah, blah, blah.  But ask instead about someone else’s kid, and the story changes – That kid was always trouble; the parents are useless; he hangs with troublemakers – it was just a matter of time.

The struggle of the juvenile-justice system boils down to mens rea.  We have no trouble – and shouldn’t – concluding that a 25-year old knew what he was doing when he walked up to someone and punched him in the face.  Did the 15-year old know?  Sure.  Did the 5-year old?  Probably not.  So what is the age at which a person’s mental state is developed enough to conclude that they are responsible for knowing the norms of cooperative society and can be held accountable for their deviant actions?  If I could answer that question, there’d be no debate.  And how about this:  When a juvenile commits a crime, is it better in the long run to employ alternative-punishment models rather than simply segregating them from society in jail or prison?

We’re not going to exhaustively explore these topics in a single post.  Too much territory, but we can go through some of it.  Let’s start by defining the population.

The US Census tells us that 24.0% of the US population is under age 18.  The total population as of 2009 was 307,006,550, which yields 73,681,572 juveniles.  The US DOJ tells us that in 2009 there were 1,906,600 juvenile arrests.  Yes, some juvies were arrested more than once, but that multi-arrest data isn’t available – so ignoring that wrinkle, arrests:population is roughly 1:39, or just over 2.5%

Why age 18?  Forgive me for this drive-by fact – I did the research years ago and just spent 30 minutes searching my hard disk for it to no avail.  I recall going back and back and back – American Colonial, English Common Law, Romans, Greeks, and earlier.  In all instances, age 18 had been set for being able to exercise the full rights of citizenship. This was true even when mortality suggested that the average adult never saw age 40.  But the “age of majority” shouldn’t be confused with the “age for criminal responsibility.”

We can reference an 1832 Scottish writing to get a baseline approach to age and criminal responsibility (at 3):

(1) Minors, whether male or female, who have attained the age of fourteen years, are liable to any punishment, not excepting death itself, for grave offenses.
(2) Pupils, though below fourteen years of age, nay though only nine, ten, or eleven years of age, may be subjected to an arbitrary punishment, if they appear qualified to distinguish right from wrong, but not to the pain of death.
(3) Children under seven years of age are held to be incapable of crime, and not the object of any punishment.

So ages 0-6 are off limits, 7 to 13 hinge on an insanity defense, and 14+ are fair game.  Even though written 180 years ago, it resonates today.  Here’s a summary by state of physical age set for transfer from juvenile jurisdiction to adult jurisdiction for prosecution of a crime.  We still cling to this middle ground where knowing right from wrong is a case-by-case call.

We just need to add one variable: We don’t put kids under 18 in jail or prison (as a general rule).  A recent and ongoing Pennsylvania case illustrates this.  Check this out:  An 11-year-old boy shot his father’s pregnant girlfriend in the back of the head while she was lying in bed in their western Pennsylvania farmhouse, then got on the school bus and went to school, authorities said Saturday.  The kid used a 20-gauge shotgun.  The girlfriend and fetus died.

Notice the rehabilitation issue that rises in the decision to whether to try him as an adult or a kid:

On 29 March 2010, the same trial court had denied a petition filed by Jordan Brown’s lawyers for transfer of the trial to juvenile court. Testimony from the prosecution’s psychiatric expert had concluded that “since [Jordan Brown] would not take responsibility for his action, the prospects of rehabilitation within the juvenile court jurisdiction was not likely to be successful”.  This opinion was “pivotal and found to be highly persuasive” by the trial court, which then ruled that the boy should be tried in adult court. [My note – WTF? He has to admit guilt before they’d decide to try him a juvie or adult?  Never heard of anything so constitutionally insulting.]

Then the PA Superior Court stepped in and remanded for a new hearing absent some psych testimony.  The trial court changed its outcome:

In its decision on 23 August, the trial court concluded that “the transfer of this case to the Juvenile Division of this Court will serve the public interest… The Court specially finds that the defendant is amenable to treatment, supervision, and rehabilitation as a juvenile after considering his age, mental capacity, maturity, whether he can be rehabilitated prior to the expiration of juvenile court jurisdiction.”

We continue to have physical age and mental age.  After that, we have some wild-ass guess about the future:  “You think, Billy Bob, that we gots ourselves nuf time to fix this rascal before we gots to set him loose?”  Best of luck with that.  Let me know if you need to borrow some Tarot cards.

Let’s go back to the US DOJ report for another view.  The overall data tells us that the most likely offender is white (66%), age 16 or 17 (73%), and male (70%).  Do you see that?  Almost 3/4s of all juvenile crime is committed by kids within spitting distance of voting age, yet we are told time and again that the precious snowflakes that are 10 or 11 or 12 are the problem.  Just not true.

That 1.9 million crimes also seems fat to me – 112,600 were curfew violations.  Nobody cares.  The single-highest crime is “Other” – 323,300.  These are not traffic offenses or any of the other crimes listed, so I don’t care about these, either (even though they might actually include serious crimes not properly categorized).  110,300 were liquor violations – so what?  170,300 were for drugs – probably heavily weighted to smoking weed.  170,100 were disorderlies … pathetic.  That takes us 1,020,000 arrests – 47% less than the starting point.

Within this refined number, the most commonly identified crime is theft – 317,700. Theft is not Robbery.  Theft involves no force, no person – no victim is present during the crime.  Then 219,700 are simple (or lower) assaults.  93,400 are runaways. That leaves us with an arrest population of 389,200 out of an age-defined general population of 73,681,572.  1 out of 189 just isn’t enough to worry about.  Sure there’s some murders, rapes, agg assaults, and assorted other nasty things there, but it’s just not as bad as folks trolling for research dollars would like us to believe.

And speaking of that, do you want a hug-and-tuck-in-nighty-night approach?  Have at it:

This paper examines the implications of contemporary advancements in neuroscience for our understanding of agency, particularly in assessing the criminal responsibility of juvenile offenders. I argue that the increasingly sophisticated knowledge of adolescent brain development challenges conventional notions of juvenile accountability. Central to our usual notion of accountability is agency — our sense that an individual must be capable of navigating his or her own life and of making decisions for which he or she in significant part is responsible. In order to defend a modified version of agency for juvenile offenders, I elaborate on Daniel Dennett’s model of the brain, a model that redefines metaphysical conceptions of free will and defends a naturalist conception that is more compatible with advancements in neuroscience. This revised conception of free will challenges conventional notions of legal guilt and accountability; it illuminates new ways of thinking about the complex and difficult questions of juvenile agency. I argue that such rethinking of juvenile agency will deepen our capacity to respond wisely and justly to juvenile crime and affirm a cherished but reconceived agency in young offenders.

Make me gag.  Go ahead.  Read it.  I dare you.  Let me know how it works out for you.  I’d rather bang my head off the wall.

Kids that commit crimes are criminals – and petty criminals at that.  That tiny portion of the juvenile population that deserve alternative handling is no different that the tiny portion of the adult population that could benefit from it.  When kids know that committing a crime will lead to arrest and an ass kicking, they’ll smarten up.

When criminals, regardless of age, know that the risk and reality of punishment does not outweigh the reward of the crime, then they’ll choose the crime.  It’s rational.

And let’s add one last data set – All crimes in US.  Here’s how we can parse the information:

Juvenile Adult Total
2009 population 73,681,572 233,324,978 307,006,550
2009 crimes 1,906,600 8,856,356 10,762,956
Ratio crimes:pop 1:39 1:26 1:29
% population 24.0% 76.0% 100%
% Violent crimes 6.5% 93.5% 100%
% Property crimes 4.5% 95.5% 100%
% Thefts 5.0% 95.0% 100%

OK, what do we draw from these data?  Juvies commit their share of crimes, but, first, it’s mostly nuisance stuff, and, second, adults do more.  Are there bad kids that do bad things?  Sure.  But mostly it’s just kids being kids.

And the fix is easy – adjust their risk calculus.  When risk of getting caught and fear of punishment rise, the possible reward from doing the crime just ain’t worth it.

Now we need to stop getting courts to strip down juvie constitutional rights in the name of liberal academic theories that have never worked and never will.

PS – Tell me, do you want to coddle this punk?  I’d give him a vigorous defense and use everything I’ve got to ensure his trial is fair and complete.  But coddle?  No.

Omaha teen Bryton Gibbs was sentenced on December 8 to 100 years in prison for the murder of a pizza delivery man. Now 17, Gibbs was 16 when he stabbed Christopher Taylor to death with an 8-inch kitchen knife. Shortly before 11 p.m. on September 10, 2010, Gibbs called Pizza Hut and placed an order to be delivered to a vacant apartment. When Taylor, 33, arrived, Gibbs and three other male teens robbed him of $50. Gibbs then killed him, in what District Court Judge Mark Ashford described as a murder for sport before sentencing him to 80 years for second-degree murder and 20 years for using a weapon to commit a felony. He will be eligible for parole at 67.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

View all posts by Clyde

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