An Interview with Joel Rosch: The Age of “Maturity”?
Michael F. Shaughnessy –
- Joel , North Carolina is considering changing a law that treats all 16- and 17-year-olds as adults rather than as juveniles when they are arrested. North Carolina and New York are the only two states with such laws. I realize there are two sides to every coin, and I hope that we can discuss this openly and look at both sides of the issue. Currently, I believe most states see 18-year-olds as “ adults” for trial and criminal purposes. Am I correct on this?
For the most part – some states use 17 – however, almost all states treat a large percentage of youth below 17 as adults if they commit certain kinds of crimes. The real differences involve how we treat first-time offenders and those committing the least serious crimes. What makes NC and NY different is that they treat all 16- and 17- year-olds, even those who commit misdemeanors, as adults in the criminal justice system. That means they get adult records, making it harder to get jobs, etc., and they are grouped with older, more serious offenders. Other states treat only those who commit serious crimes (as defined in each state) as adults. So the main difference is how we treat less serious, first-time offenders and how that impacts the probability that they will graduate to becoming more serious repeat offenders. Treating first-time offenders and those committing less serious crimes in the adult system seems to make it more likely that they will continue to commit crime and more likely that they will graduate to more serious offenses.
- Now, many 16- and 17year-olds get involved with the wrong crowd, a gang perhaps, and get into trouble with the law. How is a decision made currently to use probation or some other type of community service or perhaps counseling to assist these individuals?
Most younger offenders commit their first crime as part of a group, with other youth. There is some research indicating that this is usually with older youth. The word “gang” is often misunderstood when we talk about young people. For most younger offenders, these are much more fluid groups than associations of older youth and young adults where you may have real, ongoing criminal enterprises.
Ironically, when we bring younger youth into the criminal justice system and put them in continuous contact with older, more serious offenders, we may be strengthening rather than weakening ties with real, organized, criminal gangs. One of my colleagues at Duke has done research indicating that future criminal activity is impacted by those whom youth are housed with during their incarceration.
Most first-time offenders in both the adult and juvenile system receive some kind of probation or community service. In the adult system, even before recent budget cuts across the US, there is very little supervision for first-time offenders and those who commit minor crimes, and rarely any counseling. There is usually much more supervision in the juvenile system.
We generally find lower recidivism rates for comparable kids when they go to the juvenile as opposed to the adult system because minor offenders receive more supervision than those in the adult system. There is a also a greater chance to intervene and change the life course for less serious offenders in the juvenile system because of that additional supervision. .
3. On the other hand, there seems to be a plethora of weapons out there- guns and various other weapons (knives) that can do great bodily harm. If an individual mugs someone to steal a wallet perhaps and ends up murdering a person, what is the current legal status?
State laws vary widely but in most states, most juvenile offenders convicted of using a weapon in a crime, even those as young as 14 (and younger in some states), will be treated as an adult. So for those cases involving serious bodily harm, there is not that much difference between states in how youth are treated. However, in many states, a defense lawyer can point to extenuating circumstances and make a special plea to a judge to treat the youth in juvenile court as opposed to adult court. With judicial supervision, I think that kind of flexibility is a good thing. That cannot happen in North Carolina.
- Let’s discuss an issue that people might want to forget- Columbine High School. One teacher dead. Many others wounded. Still others emotionally harmed, some in post traumatic stress and shock. If the perpetrators were indeed 16- and 17-years old- what is “reasonable justice” for the perpetrators, if you will?
There is no state in the US where youth who commit those kinds of crimes would not be treated as adults, so that case is not really relevant to the “raise the age” issue in NC or NY.
However, there is no doubt that Columbine had a big impact on how the public views youth crime and the fear of young people. There is quite a bit of research that random, and of course very rare events, have a big impact on how we think about crime and make crime policy. Although I think it should be irrelevant to the “raise the age” issue, I have no doubt that some people believe that a stricter set of laws for youth will make these kinds of tragic events less likely. While looking at where and when these events take place, there is no evidence to support these beliefs, but they do impact public policy.
- I know there are children in foster care, group homes, etc. They have not had the parenting that should have taken place- still if they commit a crime, they should be held responsible for their actions—or are there “extenuating circumstances “.?
I have heard defense attorneys make that kind of argument at sentencing hearings both for juveniles and adults, but they rarely have an impact on decisions about guilt or innocence. They can have an impact on how people are punished.
In the juvenile system and in some adult systems, when decisions about conditions of probation are being made, these kinds of issues are often considered in designing treatment plans, etc. I believe they should be a factor if systems offer rehabilitative services. Levels of confinement are usually determined by concerns about public safety.
- I hear about this word “premeditated”…Certainly, the Columbine massacre was months in the planning, and there is all kinds of evidence of “premeditation.” How heavily should this factor be weighted?
This concept is an essential part of the criminal law. One of the issues with youth is they are generally understood to have less ability to defer gratification and are much more impulsive. The brain science here is pretty compelling. This was recognized in two recent Supreme Court cases. The same reasoning is why we generally treat people who suffer from mental retardation or mental illness differently under our criminal law –something very few people dispute.
The Columbine case is clearly different from most of the issues involved with the “raise the age” debate, and raising the age would have little to do with how we deal with that kind of case. There were issues in the Columbine case (which was handled in the adult system) about mental illness, but we get really bad public policy when we try to understand the juvenile justice system through the Columbine lens.
- I know that there are treatment facilities for juveniles…..but I am, and I use this word sparingly, dubious, as to treatment efficacy. Can you convince me and perhaps many others out there that all treatment facilities work for all children/adolescents all of the time?
I think I can, in fact I am certain I can, convince you that there are programs that work, but that would require another interview that would include descriptions of lots of studies.
For my money, the best evidence that we have of programs that work is assembled by Peter Greenwood, a former researcher at Rand (check out http://futureofchildren.org/futureofchildren/publications/docs/18_02_09.pdf or better yet his very good book Changing Lives http://www.press.uchicago.edu/ucp/books/book/chicago/C/bo3618929.html ) .
The meaning of “ programs that work” is the issue.
Do we have a pill or something that immunizes youth from future criminality? – No. Do we have programs that can significantly and consistently reduce the probability of young committing future crime? Yes.
Thirty years ago, there was a famous article by Robert Martinson demonstrating that we had no evidence that we had such programs. Martinson laid out strict, and I think appropriate, criteria for what evidence we needed to have to prove that treatment and prevention programs worked. We now have a number of programs that meet these criteria, and when we put them in place, we get less youth crime.
While we will never get even close to zero, we know more about how to prevent youth crime and we know a lot more about the characteristics of the programs that are most likely to lower the probability that youth who commit a crime will continue to commit crime. In an era of increasingly scarce resources, we need to use our resources wisely, and there is no excuse not to use those programs which are more effective and usually much less expensive than traditional punishment systems. In recent years, Greenwood and others have shown us how to do that.
- Now, there are many, many children in special education classrooms that have already been labeled or diagnosed as “intellectually deficient” ( what used to be termed “ mentally retarded.”) If they commit a crime at 16 or 17, how, in your mind, should the legal system address these pupils or these individuals?
That is tricky and the question is getting away from the “raise the age” issue. But let me try to answer it.
First, understand that we generally hold young people to be less culpable and use that to mitigate punishment, and do the same for all people with less cognitive capacity, regardless of their age. That also can mitigate punishment. Most states have programming for people after they are convicted of crime, and behavioral health status should impact what that programming looks like.
Under extreme cases, insanity can be an “excuse” that moves a case from the criminal system to the civil commitment system, which is not necessarily more lenient. Most criminals are not murders, and while there is no death penalty there, people can spend more time in a mental institution after an insanity plea than they would spend in prison after being convicted of committing a crime.
The standard in the criminal justice system usually revolves around the ability to distinguish between right and wrong, which is very different than how I understand special education status. Intellectual deficiencies affect how all people, regardless of age, are treated in the criminal justice system.
- One step further, we have bullies and others on psychotropic medications with psychiatric diagnoses. Should a 16- or 17-year-old with a psychiatric diagnosis be treated the same as an adult?
I do not see why this should be different for a younger offender with a psychiatric diagnosis. If the psychiatric diagnosis is serious enough, it will move the case out of the criminal justice system and into the civil commitment system, which operates under a different set of rules where mental age and other factors will impact what happens to someone.
Bullies are a different issue. Some schools use the criminal justice system to deal with actions by bullies that resemble crimes. Others use the school’s discipline system.
- We seem to be in a time period of “out-patient mentality,” By this I mean many individuals who 20 years ago would have been in a lock down or psychiatric facility are now on various and sundry medications. Is this putting society at risk, or should we just be treating these individuals as adults and giving them long prison terms as adults?
I have done a great deal of work on community-based mental health and that could be whole different discussion. Please keep in mind that by any measure, done properly, community-based mental health treatment is far superior to treatment in a locked psychiatric facility. Note that I am talking about treatment. There are other functions where locked psychiatric facilities function very well and are an essential part of any well- functioning mental health system. All things being equal, both society and most psychiatric patients are better off when patients receive most of their treatment, including medication management, in community settings. Again, I feel confident I can make that case based on what we know about program outcomes.
To what I think is the gist of your question, the vast majority of people convicted of crimes – in both the juvenile and adult systems – are supervised in the community. Remember, we have scarce resources. We should reserve our prison beds, which are expensive and limited, for those who clearly pose the most danger to the rest of us. To the degree that community corrections creates more space in prison to hold the most violent offenders, we are all much safer and much better off. If, however, community corrections puts potentially violent offenders back on the street when there are open prison beds, or less violent people behind bars, it is not working properly and we are worse off.
What most people do not know is that the juvenile system has much greater capacity to monitor young people in the community than the adult system, and youth who are exposed to those kinds of services are less likely to continue committing crimes. Putting young, less dangerous 16- and 17-year-old first-time offenders in the juvenile system generally makes us much safer.
- What have I neglected to ask?
You have not asked about how any of this impacts public safety.
For a whole host a reasons, especially lowering recidivism among first time offenders and reserving scarce court time and expensive prison beds for more dangerous offenders, treating less serious, first-time 16- and 17- year-olds in the juvenile system will make us safer and save money. It is also more consistent with our ideas of justice and it is the right things to do.
11. Any last thoughts or summary statement?
Yes, I’d like you to provide a link to our Center’s website – www.childandfamilypolicy.duke.edu where we have more information on these and related issues, and a link to my homepage http://childandfamilypolicy.duke.edu/people_detail.php?p=jbrrosch&t=policy if people want to follow up with me on any of these issues.
Joel Rosch PhD
Senior Research Scholar
Center for Child and Family Policy
Durham NC 27708-0545