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The following discussion thread excerpt is from an ongoing law.com online seminar, “Kids and the Law: Juvenile Justice and Child Law Practice,” which is moderated by Carole Shauffer of the Youth Law Center. For more information on this program and other law.com seminar offerings, please visit www.law.com/seminars. CAROLE SHAUFFER, EXECUTIVE DIRECTOR, YOUTH LAW CENTER, SAN FRANCISCO, CALIF. There is an increasingly strong movement toward treating young offenders as adults and excluding many categories of youth from the jurisdiction of the juvenile court. This reflects both heightened fear of juvenile crime (ironically at a time when juvenile crime rates are decreasing) and a lack of confidence in the treatment potential of juvenile facilities. The question of youth in adult systems should be divided into issues relating to the criminal court process as opposed to juvenile court procedure and issues relating to punishment in the adult system in contrast to “treatment” in the juvenile system. I hope that participants can address both these issues. Specifically, I hope defense attorneys and prosecutors can comment on the likelihood of conviction in each court, the likelihood of pretrial release, and the likelihood of incarceration after adjudication or conviction. Are there times when defense attorneys believe that their clients will be less likely to be convicted or incarcerated when they are afforded the increased due process protections of adult court? Second, what is the impact on the young people involved and the criminal justice system when teenagers are incarcerated with adults? We know that many corrections administrators have opposed liberalized waiver because of the difficulty of serving this population. What experiences have people had with youth after incarceration? How have their special needs, including education and mental health treatment, been met? What approaches have been taken by attorneys involved in impact litigation to address these issues? States have different procedures for transferring youth to adult court including lowering jurisdictional age, a presumption for trial as an adult for certain offenses, prosecutorial decision making, and “transfer hearings.” What approaches have practitioners used to each of these? What differences have we seen? Finally, the disparate impact of liberalized waiver provisions on minority youth has been discussed extensively in a new report prepared by Pretrial Services Resource Center for Building Blocks for Youth (http://www.buildingblocks foryouth.org/). What has been the experience of practitioners in this regard? STEPHEN K. HARPER, MIAMI-DADE PUBLIC DEFENDER’S OFFICE, MIAMI, FLA. The trend toward transferring more juveniles into the adult criminal justice system has profound implications for the children transferred, for long-term public safety and for basic principles of Anglo-American jurisprudence. The juvenile justice system — founded just over a century ago — is based upon the principles that children should be treated differently because they are less culpable than adults, because they are more malleable and treatable than adults, and because it would be more cost effective to treat them differently than adults. The juvenile justice system was founded on the principle that the state must act as parent (parens patriae) and apply the appropriate and individualized response to children and adolescents who break the law. Unlike the adult system, which is “crime centered” in that it punishes according to the seriousness of the crime, the juvenile justice system is “child centered” — it punishes and treats according to the levels of culpability and need of the individual juvenile offender. In creating a justice system to parent the child the goal was to integrate the child into the greater social fabric. The creation and implementation of the juvenile justice system recognized that children and adolescents are developmentally different and less culpable than adults who commit similar acts. Adults are presumed to know right from wrong, to understand the consequences of their actions and choices, and to have the capacity to control their impulses. A fundamental principal of Anglo-American jurisprudence is that we punish according to the level of evil intent or mens rea. Because children and adolescents are not fully developed cognitively, morally, emotionally and because they are still developing judgment, identity and impulse controls, we do not hold them to the same level of moral accountability as we would a fully formed adult who commits the same act. This is not to say that they should not be held accountable for their wrongdoing but that they should be held accountable in a developmentally appropriate way. The juvenile justice system is also based on the understanding that kids get into trouble, in part, in response to events not of their own choosing or making. Traumatized, neglected, abused kids — if untreated — are more likely to get into trouble. The juvenile justice system was designed, in part, to identify and deal with these kinds of kids. It was designed to be a system of treatment as well as a system that dealt with punishing wrongdoing. The juvenile justice system is founded on the principle that because kids are still developing, they are malleable and resilient and, therefore, there is still time to turn them around and to make them productive citizens. The main argument between the adversaries in the juvenile justice system used to be over whether there should be more treatment or punishment in the disposition. The argument was over how best to parent the child. Prosecutors traditionally held the view that consequence and punishment would best teach the kid; defense lawyers traditionally sought more treatment than punishment. The last decade has seen major changes in the policy, principles and law regarding juvenile justice. Nothing illustrates this more than the dramatic changes in the transfer law of nearly every state. According to the Office of Juvenile Justice and Delinquency Prevention, between 1992 and 1995, 40 states and the District of Columbia passed laws making it easier to transfer juvenile offenders into the adult criminal justice system. This was done at a time when juvenile crime (particularly violent juvenile crime) spiked dramatically and when many policy makers lost confidence in the ability of traditional juvenile programs to rehabilitate kids. Policy makers and law makers began to fear that there was a new kind of juvenile “superpredator” who would not respond to treatment and who would pose a permanent risk to public safety. In many jurisdictions the decision making power was transferred from judges to prosecutors. Many concluded that the juvenile justice system was a noble but failed experiment and that public safety concerns had to come first. The last decade has seen a much larger number of kids transferred into the adult system. Many of these kids are getting probation, not traditional juvenile treatment. Other kids are indeed getting prison sentences. Transfer decisions have had a seriously disproportionate effect on minority kids — they are more likely to be transferred — and incarcerated once transferred — than similarly situated white kids. Early studies by Donna Bishop and Jeffrey Fagan show that transferred kids have a significantly higher recidivism rate than similarly situated juveniles who are not transferred. These changes in transfer law and transfer numbers raise two fundamental questions: are they actually making the public safer and, if so, at what cost? To my mind, there are also other important and rarely considered issues surrounding transfer: what effect does the transfer have on the individual child, what effect does it have on our fundamental principles of justice, and what effect does it have on our “vision of childhood? The transfer of juveniles into the adult system ignores or dismisses historic principles of moral accountability and focuses instead on the crime itself, the harm to the victim, and the overriding need to protect public safety. It ignores the malleability and needs of the individual child. It results in more troubled kids being treated as simply disposable. All of this can be illustrated in the case of 14-year-old special education student Anthony Laster who last year hit another kid in his class and took his $2.00 lunch money. Prosecutor Barry Krischer in West Palm Beach, Fla., felt justified in transferring Anthony into the adult system for the crime of Strong Armed Robbery. Prosecutor Krischer did not consider who the perpetrator was, what his level of culpability was, whether he was treatable in the juvenile system. His focus was only on the crime committed and the impact it had on the victim. He justified his decision to transfer by stating, “The gravity of the crime is not diminished by whatever learning disabilities the perpetrator may have. The victim was no less frightened or traumatized.” Nowhere does he consider that Anthony was a kid — a special needs kid at that — and that he could be punished and treated in a juvenile justice system. I am of the opinion that transfer hurts the kid (most often permanently), harms rather than protects the public safety in the long run, while ignoring and demeaning what we know about child development and longstanding principles of justice. PROFESSOR BARBARA BENNETT WOODHOUSE, UNIVERSITY OF PENNSYLVANIA SCHOOL OF LAW, CO-DIRECTOR, CENTER FOR CHILDREN’S POLICY PRACTICE & RESEARCH, PHILADELPHIA, PA. At the Center for Children’s Policy Practice & Research at University of Pennsylvania (CCPPR), we have provided a number of psychiatric evaluations of children charged as adults. Frequently, these cases involve juveniles who have grown up in the child welfare system and whose deficits can be partially attributed to the failures of that system. We work as an interdisciplinary team, composed of a psychiatrist assisted by a lawyer and a social worker. I find these cases very troubling because the legal standard does not appear to give sufficient weight to lack of maturity and delayed cognitive development. It is not enough for our team to conclude that the child was unable to comprehend the magnitude of the act he/she committed or that he/she shows some promise of rehabilitation. Regarding the consequences, incarceration of a child as an adult may put at risk the child’s completing his/her education. We recently submitted an amicus brief in a case that illustrates the impact on youths of being jailed with adults, even in separate parts of the same facility. Juveniles who are convicted as adults and incarcerated in county jails have no access to education, under Pennsylvania law. These youngsters did not commit serious violent crimes, or they would be in state facilities. They may spend as much as two years in the county jail and are effectively prevented from finishing their schooling. This law was challenged in Brian B. v. Commonwealthby the Juvenile Law Center and the Education Law Center, on behalf of the class of juveniles affected. CCPPR submitted a “Brandeis Brief” to the 3rd Circuit detailing the importance to adolescents of education and the social costs of such a short sighted policy. The 3rd Circuit recently upheld the lower court’s ruling. It applied a rational basis standard, and found that this deprivation of education may be penny-wise but pound foolish; however, it does not violate the youth’s constitutional rights. It concluded that there is no “right” under the Constitution to education so the state is free to withhold education as long as it can show any rational basis — for example, that providing education is inconvenient and costly. A dissenting judge concluded that the policy was so irrational and arbitrary as to be unconstitutional. A rehearing en banc is now being sought by the plaintiffs. STEPHEN K. HARPER, MIAMI-DADE PUBLIC DEFENDER’S OFFICE, MIAMI, FLA. Specifically addressing Carole Shauffer’s question regarding the likelihood of conviction in each court, in Miami-Dade, Florida, more kids are acquitted in juvenile court than in adult court. This is not because the acquittal rate in juvenile court is particularly high. It isn’t. It is not because juvenile judges as finders of fact are more fair or more defense orientated than juries. Rather, it is because virtually no cases transferred to adult court go to trial. For example, in 1998, the Public Defender’s Office represented around 665 juveniles who had cases transferred into adult court. Only one of those cases actually went to trial. Most kids (and their lawyers) are fearful of longer sentences in adult prison should they be convicted at trial. Virtually every case ends in a negotiated plea. In our experience, threat of transfer is a means by which to extract a plea within juvenile court, and transfer is a means to extract a plea in adult court. Thus, notwithstanding the increased due process protections that come with adult court, most juveniles and their lawyers are too scared to risk a loss at trial. Many lawyers believe that long sentences in adult prison are essentially the end of any meaningful life for the kid.

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