In these states we would not let a 12- or 13-year-old buy a carton of cigarettes, a six-pack of beer or a ticket to the movie American Pie 2. They are not mature, competent or responsible enough to drive a car, get a job, move out of the house, marry, serve in the military or vote. They need a note from their parents to go on a class trip to the zoo. But let a 12-year-old do something truly monstrous, and suddenly state and federal lawmakers want to behave as if this child were competent to stand trial as an adult in a capital murder caseas if it made sense to punish this prepubescent adolescent in the same way we would a hardened felon.
And Masters Tate, Brazill and Williams are just the tip of the iceberg. Over the past decade legislators in 47 states and the District of Columbia have made it easier to put on trial and punish juveniles as adults. Between 1985 and 1997 the number of minors admitted to state prisons more than doubled, climbing from 3,400 to 7,400. In 1998 U.S. jails housed nearly 7,000 youngsters awaiting trial, and prisons and adult correctional facilities held more than 11,000 juveniles. That same year state and federal prosecutors charged 200,000 young people with criminal offenses.
Children in U.S. prisons or jails are not a new phenomenon. Before 19th-century reformers established America’s first juvenile court in Chicago in 1899, children who had reached the age of reason (7) were often tried and sentenced along with adults, serving time in the same prisons and occasionally facing execution. In the period from 1870 to 1890, one out of every 25 convicts in San Quentin and Folsom prisons was between 14 and 17.
But for most of the past century, juvenile courts and correction facilities have treated youngsters between 7 and 17 not as criminals but as delinquents, and (in theory at least) focused on rehabilitating the youthful offender rather than punishing the offense. Unlike criminal courts, the proceedings here were not adversarial, but informal and confidential. And juveniles were not convicted or sent to prison, but adjudicated delinquent and put on probation or sent to training schools or reformatories.
Two underlying beliefs have guided the practice of these juvenile courts: first, that children and adolescents are not responsible for their actions in the same way as adults; and second, that they are more open to reform and rehabilitation than their elders. Because of the immaturity and malleability of juveniles, their guilt was weighed differently, and rehabilitation took priority over punishment.
But not all juveniles were kept out of criminal court. Judges in juvenile courts could transfer youths who were nearly 18, habitual offenders or guilty of particularly serious crimes, and down through the years about 1 percent of youthful offenders were sent to adult court by means of these judicial waivers.
But in the early 1990’s, legislators in nearly every state responded to concerns about a spike in juvenile violent crime rates and began tinkering with the juvenile justice system, making it easier to put more and younger adolescents on trial as adults and to send them to adult jails and prisonssometimes for life, occasionally for death. State and federal lawmakers made a number of changes in the juvenile justice system. They expanded judicial waivers, allowing judges to transfer younger and less serious offenders to adult court, and they increased the number of cases in which judges are presumed or mandated to issue waivers. They gave prosecutors new or expanded authority to file charges against minors in criminal court, passed legislation excluding certain offenses from juvenile courts and in some states even lowered the age at which all juveniles must be sent to adult court. They also introduced blended sentences, allowing juvenile offenders to finish the last years or decades of their term in adult prisons. And they demanded mandatory minimum sentences for a variety of juvenile offenses.
As it turns out, the surge in juvenile violent crime rates that began in the late 1980’s was already ending as legislators made these changes, and could have been better dealt with by limiting adolescents’ access to handguns. These, at least, were the findings of a recent report by the Sentencing Project, a Washington-based research group, titled Prosecuting Juveniles in Adult Court. Still, shaken by stories of superpredators and school shootings, lawmakers decided to get tough on juvenile crime and shift the focus from rehabilitating offenders to punishing offenses. As a result, the vast majority of states now allow 14-year-olds to be tried as adults. Fifteen states explicitly permit this practice for children as young as 13, 12 or 10. And more than half the states have one offense for which juveniles of any age can be charged as adults. At the same time, 38 states house juveniles in the general population in adult prisons or jails.
Still, our toughness on juveniles is not limited to this new willingness to try and punish more and younger children as adults. America’s judicial system can also boast an uncommon and unpopular readiness to sentence juveniles to life, or death. The Convention on the Rights of the Child, an international treaty ratified by every U.N. member except the United States and Somalia, forbids punishing any crime committed by a minor with life imprisonment without parole. But in 1998 California had 14 prisoners serving this sentence for crimes committed when they were 16 or 17. And, of course, Lionel Tate just received this punishment for a crime he committed as a 12-year-old.
Meanwhile, as we saw in all the furor last August over the Texas inmate Napoleon Beazley, America remains one of a handful of countries that execute juvenile offenders. At 17 Beazley murdered John Luttig, and at 25 he was scheduled to become the 19th person executed in the United States since 1976 for a crime committed as a minor. Sentencing juvenile offenders to death is in clear violation of a number of U.N. conventions and treaties and has been condemned by the American Bar Association, most major religious denominations and just about every human rights group with a Web site. Even China gave up the practice in 1997. Still, the U.S. Supreme Court has upheld the constitutionality of executing people over 16, and 23 states currently allow capital punishment for juveniles. So approximately 80 U.S. prisoners sit on death row waiting to be executed for crimes they committed at 16 or 17, and in the last decade over half of the world’s executions of juvenile offenders have been in the United States. More than half of those were carried out in Texas.
From all the media attention given to cases like those of Beazley, Tate, Brazill and Williams, it would be easy to conclude that the vast majority of juveniles being tried as adults are violent offenders, probably murderers. But, in Gershwin’s phrase, it ain’t necessarily so. In both 1995 and 1996 fewer than half the cases nationwide waived to criminal court involved violence against people. And a study released in October 2000, Youth Crime/Adult Time, found that current laws cast too wide a net, sending many juveniles into adult courts and jails for nonviolent offenses. According to the study, nearly 40 percent of the juveniles tried as adults were charged with nonviolent crimes, and many were not convicted or were sent back to juvenile court, which suggests that their cases were neither strong nor serious. The findings suggest that the adult criminal court is taking on numerous cases that should be prosecuted in the juvenile justice system.
Ironically enough, legislators and prosecutors are charging and punishing more and more juveniles as adults at the very moment researchers are confirming just how different adolescents are from grown-ups. According to a report this year by a National Research Council panel, titled Juvenile Crime, Juvenile Justice, children and adolescents think, feel and judge differently than adultsoften overestimating their grasp of a situation and underestimating the negative consequences of their actions.
Recent brain studies indicate that children and adolescents process emotionally charged information in that part of the brain responsible for instinct and gut reaction, while adults do this work in the more rational frontal section. Other research shows that while strong emotions can cloud or distort judgments for both adults and adolescents, teens experience wider and more frequent mood swings. All of this suggests that juveniles lack the cognitive and emotional maturity of adults, are less able to think rationally or clearly when faced with emotionally charged decisions and should be held less culpable for their choices.
At the same time, studies of juvenile defendants raise questions about their capacity to grasp the adversarial process of criminal court and their competence to stand trial as adults. Youngsters under 15 often misunderstand their legal rights and are more likely to confess in detail to an authority figure. Children find it more difficult to remember or recount events in a consistent or coherent fashion. They often forget names, addresses and the correct sequence of events, making it more difficult for them to assist in their defense and easier for police or prosecutors to discredit their testimony. On the witness stand children often appear unemotional and callous, even though they are deeply frightened or upset. And when faced with plea offers from the prosecution, juveniles have a poor grasp of the strength of the case against them or the long-term consequences of their decision. When Nathaniel Brazill realized he was facing a prison sentence of more than a quarter-century, his response was, Not too badhardly an indication that he understood what was going on.
And if it is a mistake to put juveniles on trial as adults, it may be a greater one to incarcerate them with grown-ups. Adolescents in adult jails and prisons are more vulnerable to a wide range of dangers. Compared with youngsters in juvenile detention centers, youths housed in adult jails are nearly eight times as likely to commit suicide. They are five times as likely to be sexually assaulted, and twice as likely to be beaten by staff members. And they are 50 percent more likely to be attacked with a weapon. A story in The Miami Herald suggests that youngsters in Florida prisons are nearly 21 times as likely to report being assaulted or injured as adolescents in the state’s juvenile justice system.
Nor does treating juveniles as adults make our communities or society any safer. About 80 percent of juveniles admitted to prison are released before their 21st birthday, and being jailed with adults does not seem to discourage them from returning to a life of crime. If anything, the opposite may be true. Studies in Florida, Pennsylvania, New York and New Jersey and a good deal of national research indicate that recidivism rates are higher among juveniles who are transferred to adult court than among those who remain in the juvenile system. Adolescents who are tried and punished as adults are more likely to offend again, to do so sooner and more often, and to commit more serious crimes than those kept in juvenile court. States like Florida that prosecute large numbers of juveniles as adults have some of the highest juvenile violent-crime rates. And even deterrence programs like Scared Straight, which sought to deter juvenile offenders by exposing them briefly to prison life and adult convicts, have been an unmitigated disaster and led to increased criminal behavior on the part of adolescents.
Indeed, the evidence suggests that several community-based programs that do not involve imprisonment are both less costly and more effective than trying and punishing adolescents as adults. As the authors of Juvenile Crime, Juvenile Justice note, Research has shown that treating most juvenile offenders within the community does not compromise public safety and may even improve it through reduced recidivism.
In their pastoral statement last year on crime and criminal justice, the U.S. Catholic bishops came out against policies that treat young offenders as though they are adults. According to the bishops, society must never respond to children who have committed crimes as though they are somehow equal to adultsfully formed in conscience and fully aware of their actions. It would be a mistake to think that the bishops (or the Catholic moral tradition, for that matter) are soft on crime, or do not hold persons morally responsible for their actions. As they note elsewhere, we believe in responsibility, accountability and legitimate punishment. Those who harm others or damage property must be held accountable for the hurt they have caused. Still, not everyone has the same ability to exercise free will, [and] each person is responsible for and will be judged by his or her actions according to the potential that has been given to him or her (emphasis added).
The bishops’ point is that the morality of an action does not depend only on the gravity or seriousness of the offense. It is also related to the freedom and understanding of the person committing the crime. In Catholic moral theology, persons are responsible and culpable for their offenses to the degree that they are free and understand what they are doing. This means that a just punishment must take these factors into consideration, paying attention to both the crime and the criminal. Thus, in the Catholic moral tradition’s understanding of mortal sin, a person can be considered guilty of such a grievous offenseand deserve eternal punishmentonly if three conditions are met. The act or crime has to involve grave or serious matterthat is, it must be a serious infraction of the moral law and/or cause significant harm. The sinner also must have a clear awareness of the wrongfulness of the act and know that the deed in question is gravely sinful. Moralists describe this condition as full advertence, and one 20th-century manual of moral theology notes that a sin is not mortal when there is no full advertence to the sinfulness or gravity of the act. Finally, a person has to give full consent of the will. Then, and only then, can the person be guilty of a mortal sin.
In general, Catholic morality assumed that persons were capable of sin once they reached the age of reason, or 7 years. But there are a number of indications that down through the ages our moral tradition has recognized the diminished capacity and responsibility of adolescents and minors, and has assigned them lighter penalties because of their age. Like a number of other medieval handbooks of penance, the seventh-century penitential guidebook of Cummean (an Irish abbot) imposed briefer periods of fast or penance when the perpetrators of various sins (theft, assault, sodomy) were not adults, but small boys or adolescents. And in the tenth-century confessional manual of Egbert (bishop of York), the author offers this advice: It is proper for any priest, when he imposes fasting on men, that he know...how young he is, or how old...[for] discrimination among all men is needful, even though they commit similar offenses.
Even canon law has long distinguished between the culpability and punishment of adolescents and that of adults. Although 7 was considered the canonical age at which persons were held accountable for their acts, the 1918 Code of Canon Law made a distinction between minors (under 21) and adults and excused anyone who had not attained the age of puberty from any penal laws, for on account of the want of mature judgment they deserve leniency. As one canon lawyer noted, the code demanded that persons under 14 ought to be punished with medicinal-educational penalties rather than with censures or other vindictive penalties. And more recently Catholic moral theology has raised serious questions about the ability of children and juveniles to commit a mortal sin. The late German moral theologian Bernard Häring argued that small children or even pre-adolescents...are not normally able to commit a mortal sin: that is, to turn away from God and good in the very depth of their hearts and with so great freedom that they deserve not only the death penalty but everlasting death.
More than a century after the first juvenile court was founded in Chicago, we have even more reason to know that adolescents are not small adults, and should not be treated or punished as if they were. Children may gain an elementary grasp of morality at 7, but this is not the only age or stage of reason. Developmental psychology has confirmed what Shakespeare told us long ago, that we go through several stages in our cognitive, affective and moral development, and that between the adult and the infant is the whining school-boy or adolescent. If we are to play the part of mature adults (Shakespeare’s judge), we will need to know the differences between these stages and act accordingly.