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Making the time fit the crime
LINDA SATTER
ARKANSAS DEMOCRAT-GAZETTE

While some people doubt the effectiveness of the state's system for rehabilitating and caring for delinquent children, others believe that the justice system doesn't deal harshly enough with youths who commit crime.
One of the much-debated questions is: When is a child too young to be treated as an adult offender?
Under current law, prosecutors can't charge anyone younger than 14 in adult court and can't ask a juvenile court judge to declare delinquent a child younger than 10. Children younger than 7 are considered to lack the mental capacity to commit a crime.
Children declared delinquent by a juvenile court judge are put in the custody of the state Division of Youth Services, which is run by the state Department of Human Services. DYS' mission is to rehabilitate youth, but a series of articles in the Arkansas Democrat-Gazette has shown that some children in state custody have suffered abuse at the hands of staff and other juveniles.
Children 14 and older can be sent to state prison after being convicted as adults of certain crimes.
Prosecuting Attorney Fletcher Long of Forrest City isn't interested in putting toddlers in prison. But he does support eliminating the minimum age for trying children in adult court, especially for violent crimes such as murder and rape.
If, for example, a 13-year-old commits a crime -- say, a nonviolent crime such as burglary -- Long proposes giving the child a three- or four-year suspended sentence in adult court.
He says that if children are subjected to adult punishment that could result in imprisonment, they learn that the state means business. It also gives those who haven't progressed to the most serious of crimes some incentive to get off the criminal track before they advance to violent offenses such as murder.
"I know that I can take a young man and put him on a suspended sentence for three years, and I'm not going to see him again," says Long, vice president of the Arkansas Prosecuting Attorneys Association. "If he goes to juvenile court, we'll see him over and over and over again."
Ouachita County Sheriff Ben Garner points to a recent survey of 45 of the state's 75 sheriffs in which they were asked at what age a child should be required to stand trial in adult court.
"We have responses that vary from the age of 8 to 12," says Garner, one of a handful of law enforcement representatives on the Governor's Working Group on Juvenile Justice.
Garner, who also was the longtime president of the board of directors of the Arkansas Boys and Girls Ranch, says he believes the cutoff should be 12. But whether it's 8 or 12 or 14, he says, "We're not saying that just lowering the age is the answer. I believe we have to consider the specifics of the crime."
If the illegal act was a sexual offense, was it a crime simply because the victim was younger than 14, or was force involved? How old was the victim? Have there been other victims?
If a child was caught with an explosive device, was he in an isolated location, or were other people in danger?
If it was a burglary, was it a first offense, or do the youth's past offenses indicate that he is graduating to more serious crimes?
If the state starts charging children as adults at age 12 instead of 14, then "we can start tracking a kid [two years earlier] and open up some records," Garner says.
That leads to another change that law enforcement officers would like to see.
Now, they don't have access to juvenile records. If they did, it could help them identify suspects who have criminal patterns that match an unsolved crime, allowing officers to make arrests earlier.
Also, Garner says, it would help circuit judges know an offender's true history and issue better sentences. And he thinks it would help law officers protect society if the officers knew, for example, that a certain youth had a habit of raping 8- or 9-year-olds in a certain area of town.
That's going too far, responds Amy Rossi of Arkansas Advocates for Children and Families.
While some people believe children should be accountable in adult court for committing violent crimes, society in general believes children lack the mental and emotional maturity to make many important adult decisions, Rossi says.
"I don't understand the inconsistency in that," she says. "We have convinced ourselves that they are not old enough to vote and drink and drive. But they can go to adult court. It's schizophrenic."
Others contend that the real culprit is the Arkansas juvenile justice system.
"The problem that concerns me and most of the juvenile judges the most is, now, when they turn 18, we're through with them," says Juvenile Court Judge Gary Arnold of Benton, chairman of the Juvenile Committee for the Arkansas Judicial Council.
He says judges favor some type of "blended sentencing" that would allow them to monitor a youth's progress and retain some control over him past his 18th birthday. But judges haven't agreed on the age at which their jurisdiction should end.
"As a society, I think we have a much better opportunity to rehabilitate a young person than we do an adult," Arnold says. That applies especially to the youngest offenders, who at some point "are going to be back in society, where we're going to have to deal with them," he says.
"When you're talking about the underlying purpose of the Juvenile Code and the statutes, the emphasis is clearly on rehabilitation," Arnold says. "In reality, there's inadequate funding to provide for all those rehabilitative programs that are contemplated in the code. I do think that if we had those options, we would clearly be focusing on rehabilitation."
Didi Sallings, executive director of the state Public Defender Commission, agrees. "We don't have enough services, enough programs, enough funding."
"And," she says, "I don't think the juvenile facilities for incarceration are safe. I see in circuit court a lot of kids who were in juvenile who might have been saved and were not. They got taught in DYS [the Division of Youth Services] to be worse. They got raped. They got beaten. It's a pattern we see too frequently."
By imprisoning children without proper services, "you make a monster. I firmly believe that. I think you rip the soul out of a kid once you do that, and once you do that, you can't fix it," she says.
And she called the adult system "a training ground for building better criminals" and thus only "short-term protection" for society.
Her comments were made before this series of articles, which has detailed the rape and beatings of children in DYS custody, was published. Sallings says she's glad to see the abuses coming to light because when she has spoken about them, her comments have been dismissed as routine complaints of a defense attorney.
She finds appalling the idea of eliminating the minimum age for trying murderous children as adults.
"Under that, 7-, 8- and 9-year-olds could conceivably be going to jury trials in circuit court," she says. "People are fed up with crime, but that's barbaric."
Children now can be tried in the adult system as young as 14 for committing violent crimes. They can face life in prison if they're convicted of capital murder.
But national reports of killing rampages by children younger than 14 have some people calling for any young killer to be tried as an adult.
"I don't think it should be any lower than what it is," says Sallings, mother of a 7-year-old and a 9-year-old. "Kids are kids, even at 14, and if you go any lower, you're really invading childhood."
Andre Derdeyn, chief of psychiatry at Arkansas Children's Hospital, agrees. With sarcasm heavy in his voice, he says, "Sometime now we'll probably get 3-year-olds in the juvenile justice system."
He quickly adds, "That's not where 3-year-olds are headed. That's where society is headed. The incarceration and punishment of a child is being excessively counted on as a solution to society's problems."
His remarks reflect a fear shared by Sallings and Rossi that Arkansas lawmakers will react inappropriately to the March 24 schoolyard shootings near Jonesboro, in which five people died.
Derdeyn is concerned that public pressure could result in significantly lowering the age at which children can be tried in juvenile and adult courtrooms, and end up behind bars.
He doesn't think that's the answer. Instead, he advocates placing children who commit crimes in "smaller, more caring operations, things approaching residential treatment instead of jail."
"They need to be in a place where they can feel like a person because, let's face it, that's what's wrong with most of them," Derdeyn says.
Not all agree.
Long, the prosecutor from Forrest City, points out that giving society the option of charging a young person as an adult doesn' t mean that will be done in every case.
"Hell, give us a break," says Long. "We may have the title 'prosecuting attorney' in our name, but we're all human. We feel what everybody else feels."
That includes recognizing that some children are more mature and culpable than others, says Long, who also chairs the prosecutor association's Legislative Committee.
In response to people who fear a "slippery slope" effect -- that if prosecutors can charge a child of any age in adult court, they'll end up charging all of them as adults -- Long replies: "Malarkey."
"I got elected to make that call. If I get a little too zealous, the judge can sure transfer it to juvenile court," he says. "You elect people to exercise their discretion, so let them do it."
Long is among those who fear that misplaced sympathy for young offenders will go too far, leading to ineffective remedies.
"Just look at the justice system now," Long says. "The sanction in juvenile court is next to nothing, and juveniles know that."
Under current law, juvenile facilities cannot hold a youth beyond the age of 21. However, there are no holding facilities for anyone older than 18, so in effect, a child tried as a juvenile must be released at 18.
But putting young children in adult prison, even if they're separated from adult prisoners, would be tough for both the child and the prison system, says state Department of Correction Director Larry Norris.
It's hard enough to find space to keep 14-year-olds -- the youngest age of children sent to adult prison -- safely away from older juveniles, he says. Aside from the safety issue, he says, "It breaks your heart to see a 14-year-old kid end up in the penitentiary."
As of mid-April, there were five youths in the Arkansas Department of Correction who were 14 when they committed their crimes, which included aggravated assault, aggravated robbery, first-degree battery, kidnapping, first-degree murder and second-degree murder.
In addition, the department had 46 inmates who were 15 at the time of their crimes; 89 who were 16; 108 who were 17; and 63 who were 18.
Of those 311 inmates between ages 14 and 18 when they committed their crimes, 14 are serving life sentences for murder.
After years of working alongside prisoners from teen-agers to adults to the elderly, Norris says, "I really don't think there's a snapshot age" for prosecuting a child as an adult.
"I think there's a lot of 10-year-olds who understand the ramifications of their actions, and I think there's people 25 years old who don't have a clue."
Norris says prisons -- whether for youths, adults or youths prosecuted as adults -- should provide education, vocational skills, help for substance abuse, attention to medical needs, treatment for mental problems and attention to a person's general well-being.
Garner, who represents the state's sheriffs, favors extending those rehabilitative services beyond 18 for youths sentenced in juvenile court.
"I think we need to look at a facility after our Youth Services program runs out at age 18 -- a flow facility, as I like to call it -- for those juveniles from 18 to 20 years old. I think they need to learn." The burden then lies on the young person to prove that he's worthy "of being released back into society," Garner says.
That philosophy is embraced by one proposal that state lawmakers will consider in the legislative session that begins in January. With the blessing of the state's juvenile court judges, it advocates "blended sentencing," which calls for imposing an adult sentence if, at age 18, a youth can't prove he has been rehabilitated in the juvenile system.
"It may just have the little 'oomph' that we need to make things better," Norris says.
But others, like state Rep. Ted Thomas, R-Little Rock, wonder if the expense of rehabilitation will take funds from other programs.
"Where's the money going to come from? From where it is now used for first chances for other people? At what point are we shortchanging the people who do the right thing? It's going to come out of what we currently spend for education and health care," Thomas says.
When children are locked up, either in a juvenile facility or with others charged as adults, everyone interviewed agrees they should be segregated by age and the degree of violence in their crimes.
Norris thinks physical size and personality should also be a consideration.
Arnold, the circuit/chancery judge from Benton, says substance abusers should be separated from other youthful offenders, "simply because rehabilitation for a drug offender is different than that for, say, a rapist."
But Sallings, of the Public Defender Commission, and Derdeyn, the psychiatrist, while agreeing that violent juvenile offenders should be separated from nonviolent ones, say they think that's not going far enough. They think an offender's behavioral pattern should be considered, too.
"For a lot of people who commit a violent crime, it's the only violent crime they'll ever commit," Sallings says. "I don't think you put one kid who commits an isolated violent crime with one who has a history of violent crimes."
Derdeyn agrees that a child who kills in a moment of rage is different from a child with a history of violent behavior.
"Everybody's aggressive when they're pushed to the wall," he says.
The way things are going, he says, "the juvenile justice system is becoming the mental health holding place."
Whatever is done, Rossi says, must be consistent.
"Some years we invest in the system and do a pretty good job," she says. "Then in the next biennium, some other pet project comes along, and we abandon the programs we started."

This article was published on Monday, June 29, 1998

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