Reprinted from the Sunday, January 7, 2007 edition of The Tennessean
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"Old enough to do the crime, old enough to do the time."
This popular refrain reduces a complex reality to simplistic rhetoric. It’s also wrong. While young people must be held accountable for serious crimes, the juvenile justice system exists for precisely that purpose. Funneling more youth into the adult system does no good and much harm.
Juveniles are not adults, and saying so doesn’t make it so. Besides, we don’t really mean it: When we try them in criminal court, we don’t deem them adults for other purposes, such as voting and drinking. We know they’re still minors — they’re developmentally less mature and responsible and more impulsive, erratic and vulnerable to negative peer pressure.
As people, they are still active works in progress. We just don’t like the logical consequences of that reality — that they are by nature less culpable than lawbreaking adults, even when they do very bad things. So we change the rules of the game.
Which is precisely what we’ve done. In the last decade, virtually every state has made it much easier to try juveniles as adults. These sweeping changes came amidst widespread alarm that a wave of "juvenile superpredators" was coming — which fortunately turned out to be false. (In fact, juvenile crime was already falling by the time states were tightening the screws.)
In some states, including Tennessee, there is now no minimum age for being transferred to criminal court for certain crimes. It’s not abstract: Kids as young as 10 have been charged as adults.
The consequences of this switch-up can be extreme. Most young offenders do not become adult criminals. But when we punish them as adults, we change those odds. Teens tried as adults commit more crimes when released; their educational and employment prospects are markedly worse, creating opportunity and incentive for more crime; they bear a lifelong, potentially debilitating stigma.
The separate juvenile system was developed both to mitigate these harms and because youth were being preyed upon and "schooled in crime" while in adult prisons. We are now sending them straight back to that harsh schoolyard. All this for little or no payoff: Increased transfer has never been shown to reduce juvenile crime.
Our desire to ratchet up consequences is understandable. Victims of juvenile crime don’t hurt any less, and close cases (say, crime committed the day before the 18th birthday) make age distinctions seem arbitrary. This is why we historically have built in a small "safety valve," under which transfer arguably is appropriate for those very few offenders who are extremely close to the age cutoff and commit particularly awful crimes. The trouble is that the valve has both expanded and lost its spring. Indeed, people now act as if the decision to treat a juvenile as a juvenile implies a judgment that the crime was not that serious, the victims not that worthy of respect.
It doesn’t have to be this way. I once attended the sentencing of a teenager — Clarence — who had killed a woman — Pauline — who sang in my choir. The proceeding was no less solemn, no less tragic by reason of being in a juvenile court. Clarence was sent to a secure facility that very much resembled a prison. His family was destroyed. Pauline’s family was destroyed. The only slight glimmer of hope was that Clarence might, while incarcerated, grow up and become a law-abiding adult and that we would not collectively make him worse than when he went in.
When we consign our youth to the adult system, we are throwing away even that glimmer. Juvenile sentences, in contrast, shield our youth from the unique dangers of adult facilities and preserve the possibility — however slight it may seem — of rehabilitation.
Terry A. Maroney joined the Vanderbilt Law faculty as assistant professor in Fall 2006.