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Inside Criminal Justice

The Slow March to Justice for Children

May 31, 2010 08:13:40 am
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Why has it taken a century for America to mend the flaws in its juvenile justice system? In an exclusive commentary for The Crime Report, Barry Krisberg, one of America’s foremost experts on juvenile justice, calls this month’s Supreme Court decision on juvenile lifers in Graham v Florida a “small, but important, step” towards improving the way we deal with our most troubled children.

America’s foremost legal philosopher, Roscoe Pound (1870-1964), once observed that the American juvenile court was the greatest step forward in Anglo-American law since the Magna Carta.  He was referring to an ideal of justice that was individualized, compassionate and infused with the value of human redemption. This was the vision of Jane Addams, Judge Ben Lindsey and the youth advocates who lobbied to create the juvenile court in Illinois and Colorado in 1899. 

Sadly, this ennobling model of justice has been honored more in the breach than in reality.  

The juvenile court system has never had the resources or widespread political support to achieve its goals. Moreover, some have sought to virtually eliminate the juvenile court by making it more like the failed criminal justice system.  

Beginning in the mid 1970s and continuing over the next two decades, the core child protection provisions of the juvenile court have been weakened. Despite the rhetoric about how much America loves its children, this nation allowed juveniles as young as 12 years old to receive the death penalty, until the Thompson v. Oklahoma case (1988)  limited the application of capital punishment to youngsters older than 16.   

It took several more years for the U.S. Supreme Court, in Roper v. Simmons (2005), to ban the death penalty for youth under age 18. Before these decisions, the U.S was virtually the only civilized nation to put juveniles to death. 

Draconian Punishments 

Despite the progress in limiting the death penalty for children, the legal system continued the practice of sentencing young people to Life without the Possibility of Parole (LWOP) or sending minors to prisons for long terms. The political pressure to seize the macho “get tough on crime” low ground was irresistible. It was as if we adults could scare off young criminals by showing them how mean and out-of-control we were. But there was no research supporting the theory that these draconian punishments produced lower juvenile crime rates. 

In Roper, Justice Kennedy argued for a 5-4 majority that the juvenile death penalty was cruel and unusual based on a key notion of “evolving standards of decency.” He cited international legal standards that were contrary to this bizarre practice and relied on emerging neurological research suggesting that adolescent brains were not fully developed, and that adolescents possessed diminished capacity to judge the consequences of their actions. It was also shown that the application of the juvenile death penalty was used in a rare and arbitrary manner. The right-wing talk show hosts had a field day criticizing Justice Kennedy, implying that he was a traitor to America. 

With Roper on the books, many of us assumed that a legal challenge to sentencing youth to LWOP would be next to succeed. The fundamental logic of Roper seems central to the constitutional challenge to LWOP for youth.  It was not hard to see that putting a child in prison for the rest of their life, with no hope of mercy, was arguably as cruel as the death penalty. 

With its May 17 decision in Graham v. Florida,  the Court took a small but important step forward by banning the automatic use of LWOP for minors who had not committed a murder.  The heirs to Jane Addams’ vision probably wondered why it took over a century to figure this out. The critics of Justice Kennedy and the Court howled again about the reliance on international opinion and standards as one basis of the decision. This time the Court was able to muster a 6-3 majority, with Justice Roberts offering a limited concurrence. But, Justices Thomas, Alito, and Scalia expressed their continued support for the harshest possible penalties. 

The Next Step 

It now remains to be seen if the logic of Roper and Graham will be further extended to practices of sending very young children to prisons for much extended terms. It is hard to see how the same basic legal and philosophic arguments do not apply to laws that allow minors to be tried in adult courts without careful consideration of their “fitness” for the juvenile justices system.  

There is growing evidence that children placed in prisons and jails are more likely than adults to commit suicide, to be subject to rape, and that the minors spend more of their confinement time in segregation. Moreover, there are many juveniles sentenced to long prison terms for non-lethal behavior, such as conspiracy or alleged gang involvement. But there is no credible research supporting the theory that these harsh penalties increase public safety. The data also show that the vast majority of minors who are sent to prison are African American and Latino―a shocking indictment of America’s quest for racial fairness. 

The slow march to justice for children that was spearheaded by Jane Addams and celebrated by Roscoe Pound has taken a modest step forward with Graham v. Florida. We can only hope that advocates for humane treatment for our children continue the struggle for justice. 

Barry Krisberg, PhD., is currently a Distinguished Senior Fellow and Lecturer in Residence at the UC  Berkeley School of Law, and a Visiting Scholar at John Jay College of Criminal Justice in New York.

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Posted by waterheater installation
Wednesday, December 01, 2010 03:43

The Slow March to Justice for Children was enormously illuminating cheers, I reckon your audience would maybe desire a lot more posts such as this. Mind that you do not restrain yourself. MAny authors confine themselves to what they consider they are able to perform. Be sure you can travel as far as your psyche will let you.

Posted by Matt
Monday, November 01, 2010 08:05

A person is either an adult or a child, but isn’t one or the other depending on what’s most convenient at the time. There isn’t a state in the US that believes a 12 year old is ready to leave school, get a career in the real world, drive a car, buy some porn, smoke a cigarette, drink a beer and generally do the things we let adults do. They can’t even vote. If all it takes for a child to become an adult is a nod from the DA, that privilege should be open to all children. After all, is the honor role sixth grader any less mature than the psychotic child murderer? Is the only way to be recognized as mature for ones age to keep killing until a court breaks down and admits you’re finally thinking like an adult? Just doesn’t make sense. In the event that the government isn’t willing to remove the arbitrary age of majority, it should continue to hold it as invariable, no matter what the circumstances. If bright children can’t vote; if ambitious children can’t leave school to become entrepreneurs; why, if two 10 year olds in love can’t marry – then bad children can’t serve adult sentences.

Posted by Pamela
Tuesday, June 08, 2010 12:24

www.myspace.com/savebrettjones Natural Life -8th grade

I will continue my struggle for freedom for just one boy at least. A perfect stranger, I looked into his case, got a copy of the trial transcripts, was so outraged at this boy’s trial, the glaring violations, the incompetent counsel, no defense defense, I wrote to him and soon after hired him a PCR lawyer. His case got suriprising traction when the MS Supreme Court accepted his application. In only 2 weeks time after all responses were filed, the Court granted him relief. After taking 11-1/2 months the trial court judge denied his PCR. We are now appealing to the MS COA.

The U.S. defends their stance on lwop for juveniles and their refusal to sign the Rights of the Child treaty abolishing LWOP for juveniles, by insinuating that LWOP is reserved for only the worst cases. This boy, Brett Jones, has no criminal past, no record of violence, was in the gifted program in school, was far, far from the worst of the worst, and in fact was only defending himself against a violent family member.

The U.S. should be ashamed of their refusal to show humanity toward children who are accused of crimes and treat them as the children they really are. The screeching and temper tantrums of the people on the right such as Limbaugh, Beck, O’Reilly and the others (as well as the harsh and rigid Supreme Court Justices who think this sort of thing is noble for the good of society) is truly ignorant, backwards and pathetic. Hopefully, their children are perfect which no doubt they are.

Thanks for your insightful article. I feel that if people would just take a stand against this, maybe look into a child’s case who is serving LWOP and see if they can hire a lawyer maybe we could feel better about ourselves. Helping this boy, who is now a young man was the best thing I ever did. It has changed my life immeasurably. I love him to death and he hopefully will see freedom one day soon. I can live with myself, not that I can sleep at night due to the unending stress of the case, but when I sleep, it’s good.

I hope one day our courts, legislators, politicians, prosecutors and whoever else is responsible for these bad laws charging children as adults and subjecting them to mandatory adult sentences such as lwop come to their senses. We’ve gone so far backwards, since 1899.

There was a case in Chicago in the 50’s I believe involving a Catholic grade school fire where untold number of children died. PBS (WTTW)had an excellent documentary where at the end it reported that although they determined the child who had started the fire in the garbage can below the stairs that quickly engulfed the entire building, they never divulged who he was because the ADULTS did not want to ruin his life. He was of grade school age. When I heard that, it really took my breath away. It was disturbing becasue of what we have turned into. Barbarians it seems.

http://www.olafire.com/ (Our Lady of Angels School)

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