President Obama, speaking last week at an NAACP convention on the eve of his historic tour of Oklahoma’s El Reno Correctional Institution, outlined the major components of his vision for the future of criminal justice reform. When it came to the issue of juvenile offenders, he called for a shift in perspective: “We’ve got to make sure our juvenile justice system remembers that kids are different. Don’t just tag them as future criminals. Reach out to them as future citizens.”
In 1996 Wisconsin changed the state’s juvenile justice landscape by excluding 17-year-olds entirely from the juvenile court. Initially this was an effort to save resources and improve community safety by incarcerating older teens as adults, under the theory of ”adult crime, adult time.” At the time of the legislative change, there was little research to suggest that trying youth as adults would improve community safety. Since then, research has effectively contradicted the premise that the change would make communities safer.
As a result of this kind of thinking, across the U.S., there are 2,484 persons sentenced for crimes committed under age 18 are serving life without parole in U.S. prisons. There are none in the rest of the world. The Rest of Their Lives: Life Without Parole for Youth Offenders in the United States 2008, Human Rights Watch, May 2008. Forty three states permit the imposition of life with no possibility of parole in some form for children who commit crimes under 18 at the time of the offense.
Judges impose sentences of life with no parole on black youth at a rate 10 times greater than white youth. Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J.L.& Fam. Studies 11 (2007), at 70. The Governor’s Commission on Reducing Racial Disparities in the Wisconsin Justice System studied the problem of minority overrepresentation in prison and came up with a number of recommendations. One recommendation was to return 17-year-olds to the juvenile court, while retaining judges’ flexibility to try those accused of more serious crimes in the adult system.
There is no evidence that placing juveniles in the adult criminal system either through original adult court jurisdiction laws or waiver into adult court diminishes youth violence. In fact, this may increase crime and diminish community safety. See e.g. “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System”, Morbidity and Mortality Weekly Review, November 30, 2007. www.cdc.gov/ mmwr/preview/mmwrhtml/rr5609al.htm. Christina DeJong & Eve Schwitzer Merrill, Getting “Tough on Crime:” Juvenile Waiver and the Criminal Court, 27 Ohio N.U.L. Rev. 175, 176 n. 10 (2001); “While incarcerating waived juveniles in adult facilities quenches the public’s thirst for ‘justice’ and provides the community with a sense of security, incarcerating juveniles with adults does not, in fact, increase public safety. Overwhelming evidence indicates that incarcerating juveniles with adults produces no superior deterrent or incapacitative effects, and instead results in increased recidivism.” Ellie D. Shefi, Waiving Goodbye, Incarcerating Waived Juveniles in Adult Correctional Facilities Will Not Reduce Crime, 36 U. Mich. J. Law & Reform 653, 665 (2003); citing Donna M. Bishop et al., The Transfer of Juveniles to Criminal Court: Does it Make a Difference?, 42 Crime & Delinq. 171, 184-85 (1996).
Upon close examination of a jail’s ability to serve 17-year-olds, it is not surprising that youth with jail sentences are the least likely to stay out of trouble after their release. According to data presented in the Legislative Audit Bureau’s analysis of 17-year-olds in the adult system, few services are available in the adult jail system. Legislative Audit Bureau, Report 08-3, A Review: 17-Year-Old Offenders in the Adult Criminal Justice System, February 2008, page 7 Significantly, the recidivism rate for 17-year-olds incarcerated in adult prisons was nearly double that of younger teens treated in the juvenile system, despite the longer follow up period for the juvenile offenders.