The Possibility of Parole

George Will is predictably too deferential to Antonin Scalia and his brand of self-serving originalism, but credit where credit is due, he takes a principled stand on a "law and order" issue:

Denying juveniles even a chance for parole defeats the penal objective of rehabilitation. It deprives prisoners of the incentive to reform themselves. Some prisons withhold education, counseling and other rehabilitation programs from prisoners ineligible for parole. Denying these to adolescents in a period of life crucial to social and psychological growth stunts what the court in 2005 called the prisoner’s “potential to attain a mature understanding of his own humanity.” Which seems, in a word — actually, three words — “cruel and unusual.”

I'm not going to argue that there are no juvenile offenders who, at the end of the day, should not spend their lives behind bars in the interest of protecting the rest of society. In some cases, serious juvenile offenses may reveal "the susceptibility of juveniles to immature and irresponsible behavior", but in others they reveal a depravity that will last a lifetime. But there's no reason to believe that, by the time a juvenile reaches or passes his thirties, a parole board will have great difficulty distinguishing one from the other.

Asbos

In the past few years in the U.K., an increasing number of people are being subjected to "Anti-Social Behavior Orders", or Asbos. These are similar in some respects to personal protection orders (PPO) or restraining orders in the U.S., but the threshold for obtaining such an order is much lower. Most notably, it seems that the largest criterion for obtaining an Asbo is that somebody be offended by the target's conduct. Although an Asbo (like a PPO) is a civil order, the violation of an ASBO can result in a custodial sentence (similar to a contempt sentence that might result from violating an PPO). But given the lower threshold for issuance, there have been some peculiar results.

A couple of days ago, The Observer described how "Children with autism and other serious psychological conditions are being targetted by the government's controversial anti-social behaviour orders (Asbos), according to mental health charities and professionals." The examples they give include:

• "In one case in the South West, a 15-year-old boy with Asperger's syndrome, an autistic disorder, was given an Asbo which stated he was not to stare over his neighbours' fence into their garden."
• "In one example discovered by BIBIC, an Asbo was given to a 15-year-old with Tourette syndrome, which can involve an inability to stop shouting out profanities. The order banned the teenager from swearing in public, something made impossible by the gravity of his disorder."
• "In one case in the Midlands, the authorities applied for an Asbo against a 12-year-old girl with Asperger's who had been swearing in the street. It later emerged that she had heard her parents arguing with neighbours and had simply mimicked them."

I'm certainly no defender of public anti-social behavior, but c'mon. Whatever I may think of the neighbors who petition for Asbos under such circumstances, perhaps the larger question is what's wrong with the judges who apparently hand these things out like candy.

Kids in Cuffs

William Raspberry takes on the question of a handcuffed five-year-old, but from a different perspective.

It's funny how the videotapes have divided us. Some of us saw the footage of the 5-year-old girl gone berserk in her St. Petersburg, Fla., classroom and decided we'd been too harsh in our judgment of the school officials for calling the police. Others saw the cops handcuffing the tiny child and decided it was the grown-ups who had gone nuts.

I look at the tape and tremble for fear that I'm looking at a fledgling outlaw whose path, if uninterrupted, could land her in jail -- or worse. And it can't be a 5-year-old's fault.

And yes, if you talk to elementary school teachers, you will learn that those on track to do time in jail or prison are usually identified at a very early age. But efforts to formalize the identification, channel the kids or their families into counseling programs, or to otherwise provide the type of support and intervention necessary to prevent that outcome are typically rejected as too costly or too controvercial. Or both.

I'm not ascribing any particular brilliance or insight to teachers. It is just that they happen to be exposed to their students (and their student's behaviors and attitudes) on a daily basis for the majority of the year. If you think about people you knew who dropped out of school, or ended up in jail or prison, how old were they when you first recognized that something was wrong?

Of course, there's another problem with intervention - with the minimal resources we have put into this issue, even if we correctly identify the kids we seemingly have no knowledge of what type of intervention will be helpful, and what type will be counter-productive. Despite the pouring millions upon millions of dollars into our nation's child welfare systems, there seems to be a general disinterest in finding out what actually works. I guess, as opposed to finding and implementing what is likely to work, it's bureaucratically easier to set specific hurdles in front of parents - parenting skills classes, anger management classes, periodic home inspections, drug and alcohol testing - to see who trips, with "foster care" as the "solution" when the parents are deemed inadequate.

If Only It Were Fiction

From the London Guardian:

Even the most punitive-minded of voters would surely have been shocked by the allegations that emerged last week from the inquiry into the murder of an Asian teenager in Feltham young offender institution in London five years ago. Zahid Mubarek was imprisoned for three months for stealing razor blades worth just £6 and for interfering with a car. According to Duncan Keys, an officer at the prison, Mubarek was battered to death only hours before he was due to be released because he had been put in a cell with a known white racist psychopath for prison officers' "perverted pleasure". Mr Keys, later assistant general secretary of the Prison Officers' Association, said it was part of an insidious game in which inmates who might attack each other were put together so that staff could bet on the outcome. The combinations included white and ethnic minority; weak and strong; or two prison bullies.

Prosecutorial Excess

Okay... CNN is a bit ambiguous in this first part:

Two boys were arrested for making pencil-and-crayon stick figure drawings depicting a 10-year-old classmate being stabbed and hung, police said.

But we'll proceed on the assumption that they meant "hanged".

While certainly a child's artwork may be indicative of psychological issues (apologies for the pop culture reference), sometimes it just means that the kids were drawing pictures. The report indicates, "The children, charged with a felony, were taken from school in handcuffs." Um... excessive?

As I look back on some of the pictures my classmates were drawing at similar ages... well, let's say that little Colin's daily drawings of military hardware in action probably would have inspired Florida to classify him as a habitual felon.

(Not So) Superpredators Update

A year ago, I ranted a bit about stereotypes and the criminal justice system, and brought up a case of prejudice and police incompetence in Chicago:

A couple of years ago the Chicago Police were so quick to adopt the "super predator" stereotype with two African American boys, aged seven and eight, that they bungled the investigation and all-but-certainly let a convicted child molester get away with molesting and murdering an eleven-year-old girl.

Today, the City of Chicago reportedly settled a wrongful arrest lawsuit by one of the boys for $2 million dollars.

The boys, then 7 and 8, were charged with the girl's murder but were later cleared when DNA tests linked the case to Floyd Durr, a Chicago man who has since been convicted of sexual assaults on other young girls. Durr is still awaiting trial in Ryan's death, although he is in prison as a result of the other convictions.

I hope Durr's convictions relate to offenses committed before the 1998 murder of Ryan Harris, as but for the botched investigation focused on the two boys he would likely have been incarcerated for the murder before he got a chance to attack any more young girls. It was, after all, that focus that gave credence to Durr's "she was dead when I molested her" defense, and forestalled his prosecution all of these years.

Juvenile Justice

Today, Colbert King suggests that had the police been more diligent about picking up a 20-year-old for having fled from a juvenile group home more than two years earlier (that is, when he was 17 and still a juvenile), he might not have committed a recent murder. King also assumes that any offender (including a juvenile) with a lengthy criminal record should be held in a highly secure institution, not a group home. King misses, oh, a few important factors....

First, when a juvenile offender absconds shortly before his maximum release date (which is often the offender's 18th birthday), there may be little that can be done to the offender if he is recaptured. This can make the recapture of such an offender a low priority - if, for example, all the state would do is hold a hearing to discharge the offender and close the juvenile file, the police and courts generally have better things to do with their time.

Second, picking up abscondees is typically low priority work, even when adult offenders are involved. Manhunts are usually reserved for those believed to pose imminent danger; most offenders who fail to appear in court or take off from a half-way house or group home do not merit that type of law enforcement effort and expense, and they are picked up when stopped for a traffic violation or in association with a different offense or investigation.

Third, group homes do not automatically result in huge escape rates, as King suggests. Even without his disclosing how many thousands of offenders are in the system, King's own figures, that there are presently only 56 youths who have absconded from District of Columbia group homes, suggests that this is not a huge problem.

Fourth, group homes are not necessarily inappropriate environments for kids with lengthy records. In fact, for some, a group home and structured environment can be a positive step toward rehabilitation. For others who may have been in a more secure institution, they provide a necessary and beneficial step in the transition from a secure facility to freedom. It is easy to whinge about how group homes and transitional facilities are not sufficiently tough on crime, but it is inappropriate to do so without looking into the contributions of those programs toward rehabilitation and reduction of recidivism. The "lock 'em up" approach sounds good, particularly when looking at an individual case with the benefit of 20/20 hindsight, but you have to try to remember the big picture.

The focus of King's editorial also brings to mind the following: However the state may have failed, it was not the state which pulled the trigger in this case. Even assuming that had the District picked up the killer shortly after he absconded, and even assuming that it had the authority to detain him past his eighteenth birthday, he would most likely have been released within the past two years, and quite likely that he would have made the same bad choices. It wasn't his placement in a group home at the age of seventeen, or his low priority status as an abscondee from the group home, which made him pull the trigger and kill a fifteen-year-old girl.

Criminal Conduct by Adolescents

In the New York Times today, there is an editorial by Joan Jacobs Brumberg, "Separating the Killers From the Boys", which attempts to address some of the problems with juvenile justice, particularly in relation to violent offenders.

Lee Malvo, the teenager charged in the Washington-area sniper attacks, is on trial for his life in an adult court in Chesapeake, Va. Although "kids who kill" seem like a modern phenomenon, we've actually been struggling for more than a century with how to regard and treat them. Are they men or merely boys? Should it make a difference in the way we think about their punishment?

There, of course, is no easy answer to this - once the boy has been turned into a killer.

After describing the 1892 execution of an adolescent, Brumberg notes,

There were Americans who considered the execution of an adolescent to be barbaric while others hailed it as an act of justice.

More than 100 years later, both sentiments are being repeated as Lee Malvo's trial continues. One side predictably argues that he deserves special protection from capital punishment because of his dysfunctional beginnings, his vulnerability to psychological coercion and his age. The other side responds with their mantra: "A kid who kills like an adult should be punished as one." It's a rhetorical groove we've been stuck in despite the passage of a century.

Brumberg is entirely correct that the notion of "if you're old enough to do the crime, you're old enough to do the time" reflects an incomplete understanding of cognitive development. As children and adolescents fact that children lack the perspective and experience of adults, particulary at younger ages may not fully appreciate the concept of "death", and particularly in adolescence may have a false sense of immortality, give the right circumstances you can turn a child or adolescent into a soldier who will bravely advance where adults would fear to go, and who will kill more easily than a typical adult. Whatever you think of Malvo's "indoctrination" defense, the use of "child soldiers" around the world evidences quite well that pretty much any child can be turned into a killer, in many cases willing to perform atrocities that would make most adults blanche.

Brumberg comments, "boys well into their late teens have difficulty curbing their impulses, thinking through long-term consequences and — most relevant to Lee Malvo — resisting the influence of others." I would venture that most teens who manage to curb their impulses and think through their actions would find this assertion to be patronizing. While acknowledging that there are times in your life when various impulses are more difficult to control, it remains possible to obey the law - and I personally do not care for the "they can't help it" defense, based upon global observations as opposed to individual choices. Whatever the overal tendency, individuals, including adolescent boys, should be held responsible for the choices they make.

The best solution in one sense would be to try to identify children who are likely to end up in prison at the earliest possible age, and to intervene at that time. Of course, this would take political will - the will to invest resources, the will to stand up to accusations of "racism" when implementing this type of program in inner city regions, and the will to stand up to those who decry such programs as stigmatizing. Further, as there is some truth to the problem of stigmatism, and as perceptions of racism may undermine a program, and great care would have to be taken in designing and implementing such a program.

If you speak to school teachers, and they are willing to speak candidly, they will inform you that even in their lay experience they can pick out the children in their classes who are likely to become criminals no later than second or third grade, and usually in kindergarten or first grade. And they will tell you that the identifications have a high degree of accuracy. It makes sense to utilize that information, and to try to get these kids' lives turned around before they become criminals or killers. An ounce of prevention....

Until that happens (and don't hold your breath), we should recognize that it is difficult to classify adolescent offenders like children or like adults, because they aren't like either children or adults. Once we acknowledge that reality, perhaps we can stop trying to cram them into one system or the other (sometimes with slight modification of the sentencing options for adolescents tried as adults), and recognize that we should be designing from the ground up a justice system that appropriately addresses adolescent crime and potential for rehabilitation.

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