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State could keep killer kids in pen for life under bill
RAY PIERCE
ARKANSAS DEMOCRAT-GAZETTE

Children who kill could face a lifetime in prison if a bill filed Wednesday becomes law.
Gov. Mike Huckabee said he supports the legislation as a step toward correcting juvenile justice system flaws highlighted by last year's shootings at a school near Jonesboro.
"None of us could have anticipated what took place when an 11- and 13-year-old opened fire at a schoolyard," Huckabee said of the shootings that killed five people and wounded 10.
Senate Bill 505 by Sen. Tom Kennedy, D-Russellville, and Rep. Stuart Vess, D-North Little Rock, would institute "blended sentences" into the state's juvenile code.
Under blended sentences, a delinquent youth could spend part of his sentence in the state Youth Services Division and then transfer at an older age to the Department of Correction if shown to be insufficiently rehabilitated at the end of his time in the youth division's facilities.
Adult sentences generally would run no longer than 40 years, but the state could ask the court under this legislation to extend the sentence to life for capital murder or first-degree murder.
The measure has more than enough sponsors to pass. It has 20 in the 35-member Senate and 62 in the 100-position House.
The bill has a broad base of support in and out of the Legislature, Vess said. "This is the culmination of great effort from a lot of people," he said. "I feel like this consensus bill is a better bill than any bill put together by any one group."
Didi Sallings, director of the state Public Defender Commission, said the bill satisfied her as it is. She said she worried that some of those safeguards might be chipped away as the legislative debate wears on.
SB 505 was crafted as a response to the shootings that killed one teacher and four pupils last March 24 at Westside Middle School.
The shooters -- Andrew Golden, then 11, and Mitchell Johnson, then 13 -- are in detention at the Alexander Youth Services Center, where they will remain until they are 18.
The bill also would strike from current law a provision that does not allow children 14 or younger to be tried as adults, regardless of their crimes.
Under the bill, children under 14 would be presumed incapable of forming a criminal intent sufficient to be tried as adults. But they could be viewed as adults if the state overcame several obstacles.
The state would have to prove to a juvenile court judge that the youth:

Could form criminal intent.

Knew the actions were wrong.

Should have reasonable expectations of the consequences.

Could act on his own.
In addition, it would have to prove the youth could:

Act intentionally.

Make logical decisions.

Foresee consequences.

Control his impulses.

Resist peer pressure.
Current law gives the state authority over youths deemed delinquent until they turn 21, but since the state has no place to hold delinquent youths 18 to 20, the state frees them at 18 irrespective of their crimes.
Under the bill, sentences would be set by a jury. Youths tried in juvenile court under current law do not have a right to jury trial. At any time after a youth is found delinquent, a judge could decide to impose the extended sentence or suspend it on the basis of factors such as the youth's rehabilitative success, his home environment or public safety concerns.
Huckabee assembled a group of lawmakers, children's advocates, juvenile court judges, prosecutors and civic leaders after the Jonesboro shootings to look at reforming the state's juvenile justice system.
After months of meetings and hearing from experts, the working group came up with recommendations on topics ranging from the juvenile justice system to schools and home environments. Among the recommendations was a call for Arkansas to institute blended sentences.
Huckabee has said that a delinquent's blowing out 18 candles on a birthday cake should be no guarantee of freedom.
Children under 14 would be subject to a blended sentence, called "extended juvenile jurisdiction," only for two crimes -- capital murder or first-degree murder.
Those 14 or 15 would be subject to extended jurisdiction for six crimes -- capital murder, first-degree murder, kidnapping, rape, aggravated robbery and terroristic acts, particularly drive-by shootings.
"The goal ... is to ensure that people have the opportunity to have justice if their victims, but it also provides every incentive for the juvenile to try to rehabilitate himself and places the responsibility on the state to try to rehabilitate that juvenile," Kennedy said.
The bill would allow defense attorneys to ask juvenile judges to take jurisdiction in cases where the lawerys' youthful clients face prosecution in adult courts because of laws that allow prosecutors to take some youths in adult proceedings.
The juvenile court would order a mental examination by a psychiatrist or psychologist trained in working with young people. That professional would write a report on the child's competency. The evaluation would have to consider the youth's mental health, intelligence, and other factors.
Sallings said the competency requirements, which she helped write, wouldn't be so tough to make the bill toothless. "If a kid passes those, he's not going to be your average 10-year-old," she said.
Paul Kelly of Little Rock, senior program coordinator for Arkansas Advocates for Children and Families, said his group supports the bill although it had had early reservations due to concerns the state would treat children as if they were adults.
"I think in general we're supportive of it given that its competency requirements are very good," he said. "It's a nice compromise, and there's enough protection to keep children who are not competent under adult standards from being prosecuted."
In another forum, legislators were told that children, 10 to 13, have a far less capacity for reasoning and realizing the consequences of their actions than older teen-agers and adults. A psychologist gave that view to the Senate Judiciary Committee. He was Thomas Grisso, a clinical psychologist of the University of Massachusetts Medical School. The mental capacity of younger children should be taken into account in setting punishments, he said.
"About a hundred years of clinical and research experience has clearly demonstrated that the average 10- to 13-year-old is really no match for the average 17- or 18-year-old in most areas of intellectual and social ability," Grisso said.
He said children's reasoning abilities are important to consider when talking about due process and their right to avoid self-incrimination and in understanding the Miranda warning that an accused has the right to remain silent.
Grisso said that when pre-teens have been asked if they understood the Miranda warning, they said it meant to shut up or not to talk until the police tell you to.

Information for this article was contributed by Elizabeth McFarland of the Arkansas Democrat-Gazette.

This article was published on Thursday, February 18, 1999

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