November 2016 Bar Bulletin
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Shark Tank: New Insights into Juvenile Prosecution


Swimming with sharks. Bad idea or good idea? I would imagine that anyone reading this column would instantaneously conclude that this is a very bad idea. In the highly unlikely event that any teenager were reading this column, he or she would also reach the same conclusion. But it would take longer.

Unlike adults, who can “feel” a bad idea in their guts, teenagers need to think it through. Maybe if you had a really good guide, swimming with sharks would be fine. One should always be open to new experiences. Eventually teens reason their way to the conclusion that swimming with sharks is a bad idea, but it takes them 300 milliseconds longer on average than it takes an adult to reach the same conclusion.

That’s probably about how long it takes to throw an egg at a house or, let’s face it, about how long it takes to pull a trigger. It’s this research, brilliantly explained by Vassar College Professor Abigail Baird, that underscores a new effort to convince the Legislature to end the practice of automatically trying as adults young people charged with certain violent crimes.

At a conference in mid-October, about 250 people gathered to hear speakers ranging from Prof. Baird to a young, spoken-word poet recently released from the Oregon Youth Authority. This effort, led by former Washington Supreme Court Justice Bobbe Bridge, fits with the KCBA’s new task force looking at reforming the juvenile justice system. Both efforts are inspired by our growing understanding that adolescents really do not think like adults, so we should not punish them as if they were adults.

While it is true that incarceration of juveniles is measured in weeks and the incarceration of adults is measured in months and years, it is also true that both systems result in criminal records that can interfere with landing a job, finding housing, getting a student loan or being admitted to college. When youth are 16 or 17, automatic adult jurisdiction attaches when they are charged with stealing tennis shoes or Halloween candy with what “appears to be” a weapon. This means that the power to decide in which system a youth fits is left to the prosecutor.

In Washington, a youth convicted in adult court will stay in the juvenile prison system until age 21; thereafter the time is served in an adult institution. And yet the neuroscientists have been telling us that the male brain is not finished maturing until age 25. Should we really operate a system where these young people are mixed with seasoned adult criminals?

Why not follow Oregon’s example and create a youth authority that will house youth until age 25? The Oregon Youth Authority offers high school and college degrees, sophisticated vocational training, and lots of therapeutic interventions — all designed to make sure that young people do not continue on a life of crime. The speakers from Oregon demonstrated much lower recidivism rates for those young people able to stay in the Youth Authority programs without ever going to adult prison.

This idea sounds great, until we realize that Washington underfunds its Juvenile Rehabilitation Administration, and the result of that is a recidivism rate of 53 percent after 18 months in the community. It also sounds great until we think about the fact that the model does nothing to address disproportionality in the criminal justice system. But at least it reflects the science better.

The very-Seattle crowd at the conference enthusiastically supported eliminating automatic adult jurisdiction (known as “auto decline,” referring to declining juvenile jurisdiction) and returning to the approach of letting judges decide whether to decline juvenile court jurisdiction. At the end of the afternoon, several members of the Legislature spoke and reminded all of us of the political facts of life.

Chief among these is the fact that no legislator wants to get a failing “soft on crime” grade from the sheriff and police chiefs associations. Unless these groups can be brought on board, there is little hope for success. Still, approached incrementally there might be hope to educate legislators about the brain science and to demonstrate cost savings from adopting another approach. The youth authority approach would likely cost a lot of money because it will only work if done right.

And yet, this is the right thing to do. The science is consistent with common sense. We all know we want our own children to have access to education and jobs even if they make stupid decisions and get off the path to success we have so carefully laid out for them. We should treat other people’s children the way we would treat our own.

From painful personal experience, I have learned that people with financial resources send their struggling teens to wilderness programs and boarding schools in Utah and neighboring states. These programs provide safe places for youth to make mistakes, and to learn and grow without calling the police. They offer family therapy to make the transition home as successful as possible. Privilege affords these teens the time and room to let their pre-frontal cerebral cortex mature. Programs like these cost about the same as incarcerating a youth at JRA.

We can do a whole lot better by the young people of Washington. But that is true about education, mental health and child welfare as well as the juvenile justice system. As long as we prioritize low taxes over taking care of our most vulnerable citizens — children and the mentally ill — there is simply no way for the dream of a Washington Youth Authority to become a reality.

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