Hullabaloo

Tuesday, November 20, 2007

 
Kids On Trial

by digby

The New York Times had an interesting editorial this morning about juveniles in the Justice system. It pointed out that since the 1990's the government has been rolling back reforms of the juvenile justice system and putting younger and younger kids behind bars and trying more of them as adults.

But until I read this editorial, I didn't realize that kids were not only being tried as adults, they are being sent into our shameful and violent adult prison system as well:

As incredible as it seems, many states regard a child as young as 10 as competent to stand trial in juvenile court. More than 40 states regard children as young as 14 as “of age” and old enough to stand trial in adult court. The scope of the problem is laid out in a new report entitled Jailing Juveniles from the Campaign for Youth Justice, an advocacy group based in Washington. Statistics are notoriously hard to get, but perhaps as many as 150,000 young people under the age of 18 are incarcerated in adult jails in any given year.

As many as half of the young people who are transferred to the adult system are never convicted as adults. Many are never convicted at all. By the time the process has run its course, however, one in five of these young people will have spent more than six months in adult jails.

Some jails try to protect young inmates by placing them in isolation, where they are locked in small cells for 23 hours a day. This worsens mental disorders. The study says that young people are 36 times more likely to commit suicide in an adult jail than in a juvenile facility. Young people who survive adult jail too often return home as damaged and dangerous people. Studies show that they are far more likely to commit violent crimes — and to end up back inside — than those who are handled through the juvenile courts.

It's been true throughout history that some kids commit awful crimes. Not long ago they were treated barbarically (in some places they still are)but in recent decades, decent people came to understand that childhood itself was a mitigating factor in the commission of a crime and even more recently science has proven that the brains of children and teen-agers simply don't work the same way adults' do. Kids are not just tiny grown-ups. It's true that some may turn out to be sociopaths, with no hope of redemption, but there's really no way of knowing that at the time. It may be mental illness or childish lack of impulse control or something else entirely. But, one thing we do know is that putting kids into the adult system and in adult jails pretty much guarantees that if they weren't fatally screwed up, they will be.

Nobody thinks these crimes should be brushed off. If a child is dangerous society has to protect itself from him. But the idea of revenge or "sending a message" by punishing small children as adults is immoral, if not simply bizarre.

Three boys, ages 8 and 9, were charged Monday with raping an 11-year-old girl last week, court officials and police said.

"Never in my 20-plus years of law enforcement have I conceived of something like this," Police Chief Michael Wilkie of Acworth, Georgia, told CNN.

Clad in blue jumpsuits, the two 9-year-olds and one 8-year-old appeared in court in Cobb County, north of Atlanta, on Monday afternoon and were ordered to remain in custody until a further hearing. Family members were in court for their appearance, which was closed to reporters.

Wilkie said the girl told investigators she was raped Thursday evening. She was examined by doctors after her family reported the allegation late Saturday, and investigators questioned her extensively on Sunday, he said.

The father of one of the boys told The Associated Press that no force was used against the girl, and said the allegations have been leveled because the accuser "didn't want to get in trouble with her parents."

But Wilkie said children that young cannot legally consent to sex, "so we have to go with the charges we have."

I do not have any doubt that it's possible that these boys "raped" this girl. The legal definition doesn't require penetration (and for all I know maybe that happened too.) If they did it, then they need to be dealt with in the juvenile system and given intense psychological counseling.

But what if it was "consensual" in the sense that the kids were all playing a game or the boys thought they were, or any number of other possible scenarios? Remember, we are talking about 8 and 9 year olds. They're all hardly more than babies. No matter what it was, it cannot, by definition, be legally equivalent to a gang rape by adults or even teen-agers.

But this police chief says that even if it was a game or there were some other mitigating factors, the girl cannot, under the law, consent. Again, I'm not saying that it couldn't have happened just as this little girl said it did. But it's obvious to me that if an 8 year old can't consent to sex --- which I agree, she can't --- it's equally clear that 8 and 9 year old boys cannot "rape" in the legal sense.

American culture has always been violent and somewhat backwards in these ways, at least compared to other first world countries. But in the last couple of decades we seem to be nurturing it to the extent we have lost all common sense and certainly any sense of proportion. Arresting little boys on charges of felony rape is not only ridiculous on it's face, it demeans the entire justice system.

There is such a thing as prosecutorial discretion, something that is in very short supply in the Georgia legal system, apparently. If past is prologue, they will also charge these second graders with child molestation.

Update: I see that the article now says that the charges will be referred to juvenile court where the boys could receive five years. It will be very interesting to see if they still uphold the charges under the statutory rape statute even if it turns out that these kids were up to some sort of game or if the girl really did "consent." Either way, the whole thing is repulsive. All of these kids should be in serious counseling, not the justice system and certainly not splashed all over the press.


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digby 11/20/2007 11:05:00 AM |