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The kids and the courts
LINDA SATTER
ARKANSAS DEMOCRAT-GAZETTE

HOW DO YOU PUNISH A 13-year-old killer? A 10-year-old killer? A 7-year-old killer?
Arkansas lawmakers will debate how to punish young murderers when the legislative session starts in January.
The two main forces in the debate are people who favor prison for murderers younger than 14 and people who insist that 13-year-olds be treated as children. The discussion promises to be heated.
Already, three legislators are circulating proposals:

State Rep. Ted Thomas, R-Little Rock, favors allowing juvenile court judges to decide whether children of any age who commit capital or first-degree murder should be tried as adults. Currently, only children 14 and older can be tried in adult court.
Under this proposal, children younger than 14 could receive a maximum sentence of 40 years.

State Sen. Tom Kennedy, D-Russellville, favors allowing children of any age who commit rape, capital murder or first-degree murder to be charged in adult court.
However, a prosecutor would first have to convince a circuit judge that the child was mature enough at the time the crime was committed to understand the nature of the offense and its consequences, and was capable of forming the intent to commit a crime.
Under this proposal, a person 13 or younger could serve life in prison without parole if convicted of capital murder in adult court.

State Rep. Jim Luker, D-Wynne, favors allowing children younger than 14 at the time a crime was committed to be moved from the juvenile court system to the adult system when they turn 18, if the state does not consider them rehabilitated or considers them a risk to public safety. This proposal would apply to people convicted of only the most violent crimes such as murder and rape.
The March 24 schoolyard killings near Jonesboro, which left four girls and a teacher dead and 10 other people wounded, prompted the legislative proposals, although Luker says his bill also was influenced by shootings in recent months by youths across the country.
Under current Arkansas law, the suspects -- 13-year-old Mitchell Johnson and Andrew Golden, who just turned 12 -- are too young to be charged as adults.
Also, neither suspect can be held in a state facility beyond age 18.
Although the law permits youthful offenders to be held until age 21, Arkansas has no facilities to detain them beyond age 18.
That means five years in state custody for Mitchell and six years for Andrew.
The shootings near Jonesboro stirred sentiment statewide to try youthful killers as adults no matter what their age, according to an Arkansas Democrat-Gazette survey conducted in April.
Fifty-four percent of men and 48 percent of women surveyed favored removing age limits for a child to be tried in adult court.
More than 90 percent of the 811 Arkansas voters surveyed said youthful offenders shouldn't be freed when they become adults, regardless of their crimes, and that they should serve time in adult prisons when they reach adulthood but haven't finished their juvenile court sentences.
None of the legislative proposals suggests using the death penalty for a defendant younger than 14 when the crime was committed. The U.S. Supreme Court ruled in 1988 that no one who committed a crime at age 15 or younger can be executed.
"I've gotten more comments from people who don't like that part of the bill. They say, 'Just fry the little b******s,' " Thomas said. "I don't support the death penalty for kids that young. It just doesn't seem right."
He also thinks a life sentence is too drastic for someone who commits a crime at a very young age, which is why he proposes a 40-year maximum sentence for offenders younger than 14. For adults, the most serious crimes other than capital murder are punishable by 10-40 years or life in prison.
The main thrust of Thomas' bill is eliminating the state restriction on trying as an adult anyone 13 or younger who commits capital or first-degree murder.
Although that would conflict with a common-law provision in Arkansas that prevents anyone younger than 7 from being convicted of a crime, Thomas said that if his bill becomes law, it would override the common-law provision.
Gerry Glynn, an assistant professor of law at the University of Arkansas at Little Rock, said common law holds that anyone younger than 7 doesn't have the intellectual ability to commit a crime.
Thus, common law provides an "absolute defense" for young children who would otherwise face being convicted, he said.
Common law also includes a presumption that anyone who is between 7 and 14 is incapable of acting as an adult, Glynn said. This requires prosecutors to prove, before anyone in that age group can be convicted, that the child had the mental capacity to commit a crime.
Although children as young as 10 can now be sent to juvenile court, they aren't actually charged with crimes. Instead, they may be declared delinquent for committing an offense. Delinquency "sounds and feels like a crime," Glynn said, but it's not.
Glynn said because children ages 10-13 who break the law are considered merely "delinquent," common-law protection for children hasn't been litigated in recent years.
"To the best of my knowledge, it has never been eradicated in Arkansas," Glynn said of common-law protection, known as "the defense of infancy." But it could be overridden by legislative action or by new case law.
And that's what Thomas says his bill would do.
He is quick to point out that while it sounds harsh -- theoretically making it legal for even a 5-year-old to be tried in circuit court -- his bill includes safeguards to prevent all but the most horrendous of young criminals from being tried in adult court.
For one thing, his proposal would apply only to capital or first-degree murder cases.
Also, though his bill would give prosecutors discretion to charge certain children younger than 14 as adults instead of sending them to juvenile court, it would require a juvenile court judge to approve the prosecutor's decision.
The youth's adult court case would automatically be transferred to juvenile court after arraignment in adult court for a hearing on which court should have jurisdiction in the case. If the juvenile court judge sends the case back to adult court, the young defendant could appeal the transfer to the Arkansas Supreme Court before any circuit proceedings begin.
Thomas' bill also would ensure that any defendant younger than 14 be segregated from adults while awaiting trial.
Thomas said more than 20 states, including Alaska, Arizona, Maine and Florida, don't have age limits on charging children as adults.
Intent, which prosecutors now must prove to win a murder conviction, also would play a part in a youthful offender's sentence, he said.
"If two kids in the woods are playing Russian roulette, then they're horseplaying or it's accidental. I don't want to lock someone up in the pen for some kind of horseplaying," he said.
But in a case like the schoolyard shootings at Westside Middle School near Jonesboro, "These kids [allegedly] had a list of people they wanted to take out," he said.
The proposal by Kennedy, a prosecuting attorney from 1993-96, would allow a child of any age who commits capital murder, first-degree murder or rape to be tried in circuit court at a prosecutor's discretion. And the proposal is unique in its focus on a child's mental maturity.
Under current law, when someone claims innocence by reason of mental disease or defect, the burden of proof of such a condition is on the defendant.
Under Kennedy's proposal, whenever children younger than 14 are tried as adults, prosecutors would be required to prove that the child was capable of forming, and did form, the intent to commit a crime.
Also, prosecutors would have to prove that the child exhibited intent through a series of steps or a course of conduct rather than by acting spontaneously.
"I want to differentiate between a split-second decision and a decision that is carried out over a course of conduct," Kennedy said. Children "don't necessarily process things as quickly as a person with more maturity."
Prosecutors routinely tell jurors in adult court that when deciding whether a crime was committed with premeditation, they should remember that under the law, premeditation can be formed a mere "instant" before the crime occurs.
If premeditation was involved, punishment is more severe. But Kennedy thinks that for youthful offenders, premeditation should be defined differently, without the provision that it can be formed "in an instant."
"I would like to have a higher standard for youthful offenders, because I don't know if they are mature enough to not react to a sudden impulse," Kennedy said.
"I want it to be course of conduct that shows a methodical approach, and if it does those things, the defendant should be held accountable regardless of age."
The child's mental and emotional maturity should be decided at a pretrial hearing in circuit court, he said.
For more violent crimes, Kennedy said, anyone -- including a child -- should be subject to a sentence of life in prison without parole.
Under Kennedy's proposal, a youthful offender convicted in circuit court of a capital offense would be placed with the state Division of Youth Services until he reaches age 18, then would be transferred to an adult prison.
"I don't think a 13-year-old boy should be housed in an adult prison," Kennedy said. "By the same token, I don't think a 13-year-old who carried out a step-by-step process to commit murder should ever be let out."
Kennedy recalled a murder case involving a boy that he prosecuted in 1996. The boy shot and killed his father, who had begun imposing rules after the boy was caught smoking marijuana in school. The boy bragged about the murder to his friends.
"I think there are some acts that are so egregious that, regardless of the age of the offender, if they were able to form the intent and tell the difference between right and wrong, and know the consequences, and carry out their actions anyway, then they should not be allowed back in society," Kennedy said. "I don't think the rights of a youthful offender should outweigh the rights of society."
Unlike the other two proposals, Luker's bill would give juvenile court judges the discretion to decide beforehand where charges will be filed.
Luker's bill calls for so-called "blended sentences" for youthful offenders.
Prosecutors would petition the juvenile court judge for permission to try someone 13 or younger under the blended process. The defendant would have a right to a jury trial -- even in juvenile court, where there are now no juries.
If the child is convicted, both a juvenile sentence and an adult sentence would be determined, Luker said, with the adult sentence "held in suspense or abeyance."
After the youth completed his sentence in a juvenile facility, the case would come back before the court for a decision on whether the offender should be released, possibly with probation, or whether he should be ordered to serve the adult sentence.
To be released, Luker said, a youthful offender would have to show that he had been rehabilitated and was no longer a risk to public safety.
But for particularly heinous crimes, he said, "even if they have been perfect angels" while in juvenile custody, "justice would not be served having them released."
He does not propose that blended sentencing be applied to nonviolent crimes, even for repeat offenders.
The adult sentence would be limited "probably to a term of years, an extended term," but wouldn't include life without parole or a death sentence.
"I'm uncomfortable with the proposals that simply lower the age of accountability. Then you're calling someone an adult who's not. And I'm not saying this out of any great sympathy for them, but I am saying that's giving up on them," Luker said.
The current system of releasing youthful offenders once they reach age 18 gives them permission to "be the baddest actors for years" because juveniles know they will go free regardless of what they do, he said.
The ideas contained in Luker's proposal have won praise from Thomas, Kennedy and Sen. Mike Beebe, D-Beebe, a co-chairman of the Senate Judiciary Committee, as well as state Department of Correction Director Larry Norris. The proposal, not yet drafted as a bill, also recently received unanimous support of the 15-member Juvenile Judge's Committee of the Ark ansas Judicial Council, made up of juvenile court judges.
Connie Hickman Tanner, director of juvenile courts for the state Administrative Office of the Courts, said juvenile court judges like Luker's ideas, which Luker says are modeled on methods used in other states that Tanner told him about.
Of proposals that judges have discussed so far, Tanner said, "I know his is the one they are going to support. We had a meeting, and they voted unanimously on the blended-sentencing concept coupled with appropriate funding."
Tanner said that as a guide to judges, she gave them summaries of statutes on various types of blended sentencing used in other states.
She said juvenile court judges, who regularly deal with children and might be better equipped to understand how they mature, "would like to go back to cases originating in juvenile court" instead of the cases being filed in adult court and transferred by a circuit judge to juvenile court.
The judges are also looking at the different ages over which juvenile courts could extend their jurisdiction, she said.
"There is some discussion about extending the age past 21," Tanner said. While no age has been decided on, she said, California, Oregon and Wisconsin retain jurisdiction up to age 25. No jurisdictional age limits exist in Colorado, Connecticut, Hawaii and New Mexico.
A bill proposed by Rep. Jimmy Jeffress, D-Crossett, in the 1997 legislative session called for an across-the-board two-year lowering of ages for which children can be tried as adults. Jeffress said the bill never made it out of the House Judiciary Committee, and he won't attempt to revive it in the 1999 session.
What prompted that bill was a crime in which a boy, "10 days away from his 14th birthday," raped a young girl and then shot and killed her mother, Jeffress said. The defendant, convicted in juvenile court, will be released at age 18.
Before the school shootings near Jonesboro pushed the age issue to the forefront of public scrutiny, "we knew we were up against the wall, that it would be a hard sell," Jeffress said of his bill, co-sponsored by Rep. Sandra Rodgers, D-Hope, whose husband was then a prosecutor.
Now, Jeffress said, "I think I tend to agree with a lot of things I've heard about across the country -- like dropping age restrictions completely, and letting the merits of the case dictate whether it's tried in juvenile or circuit court."
"We've got to have some leeway to treat them more severely. If you put in a cutoff age, there's always going to be somebody below that," he said.
Jeffress, who has taught junior high and high school students for 27 years, said he believes rehabilitation could be effective in juvenile court if it's done right. But that's expensive, and, "where is that money going to come from?"
Tanner, who not only speaks for the state's juvenile court judges but is a member of the Governor's Working Group on Juvenile Justice, agrees. If there are only extended sentences without rehabilitation, she warns, youths "may stay in longer, but when they come out, research shows they are rearrested more quickly and their crimes become more serious."
The debate will undoubtedly broaden as more bills are drafted.
Only one thing is certain, Thomas said: "Come January, there will be something. It's just unacceptable to have four dead kids and one dead teacher with a five-year sanction."

This article was published on Monday, June 29, 1998

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