Prison Is a Poor Deterrent, and a Dangerous Punishment

R. Daniel Okonkwo

R. Daniel Okonkwo is the executive director of D.C. Lawyers for Youth.

UPDATED SEPTEMBER 18, 2013, 3:10 PM

Youth should be treated differently from adults. Research on adolescent brain development does
not provide an excuse for culpability, but it shows that youth are amenable to treatment in ways
that adults are not. Additionally, given what we know about the development of the adolescent
brain, how it processes risks and rewards, deterrence through the threat of incarceration is likewise
ineffective at controlling the behavior of youth. Therefore, prison is never an effective punishment
for youth.

The juvenile justice system was created to transform youth into productive members of society.

Prisons cannot provide the rigorous rehabilitation that the juvenile justice system affords youth.
Prisons generally do not require that correctional officers receive appropriate training to deal with
youth populations, nor do they offer training on the social, emotional or psychological needs of
young people. Further, the consequences of using prison as punishment for youth include higher
rates of recidivism, further increases in societal harm, and repeated expenses from paying for
offenders to continue cycling through the justice system.

It is also dangerous to assert that a young person sent to prison will become a lifelong criminal.
However, there are certainly lifelong consequences to being incarcerated rather than treated in the
juvenile justice system. The survival skills that youth (and adults, for that matter) learn in prison
self-preservation at all costs, using violence to resolve conflicts and legitimizing domination and
retaliation are the polar opposite of the skills necessary to survive in society on the outside.
Prison does not teach those skills that youth need to be functioning members of society, like how to
resolve conflict without violence, how to get what you want through hard work rather than just
taking it and how to work with others.

The juvenile justice system was created to treat young offenders, who have an increased capacity to
change, in a system that provides proper rehabilitative services that can transform youth into
productive members of society. This purpose is precluded when youth are housed in prisons, where
they face more danger, a higher risk of re-offending and less chance for success after they are
released.
Should Juveniles Be Tried as Adults?
Jan 8, 2007

Reprinted from the Sunday, January 7, 2007 edition of The Tennessean maroney terry 9-06

"Old enough to do the crime, old enough to do the time."

This popular refrain reduces a complex reality to simplistic rhetoric. Its also wrong. While young
people must be held accountable for serious crimes, the juvenile justice system exists for precisely
that purpose. Funneling more youth into the adult system does no good and much harm.

Juveniles are not adults, and saying so doesnt make it so. Besides, we dont really mean it: When we
try them in criminal court, we dont deem them adults for other purposes, such as voting and
drinking. We know theyre still minors theyre developmentally less mature and responsible and
more impulsive, erratic and vulnerable to negative peer pressure.

As people, they are still active works in progress. We just dont like the logical consequences of that
reality that they are by nature less culpable than lawbreaking adults, even when they do very bad
things. So we change the rules of the game.

Which is precisely what weve done. In the last decade, virtually every state has made it much easier
to try juveniles as adults. These sweeping changes came amidst widespread alarm that a wave of
"juvenile superpredators" was coming which fortunately turned out to be false. (In fact, juvenile
crime was already falling by the time states were tightening the screws.)

In some states, including Tennessee, there is now no minimum age for being transferred to criminal
court for certain crimes. Its not abstract: Kids as young as 10 have been charged as adults.

The consequences of this switch-up can be extreme. Most young offenders do not become adult
criminals. But when we punish them as adults, we change those odds. Teens tried as adults commit
more crimes when released; their educational and employment prospects are markedly worse,
creating opportunity and incentive for more crime; they bear a lifelong, potentially debilitating
stigma.

The separate juvenile system was developed both to mitigate these harms and because youth were
being preyed upon and "schooled in crime" while in adult prisons. We are now sending them straight
back to that harsh schoolyard. All this for little or no payoff: Increased transfer has never been
shown to reduce juvenile crime.
Should the Law Treat Kids and Adults Differently?
By Jessica Reaves Thursday, May 17, 2001

LANIS WATERS/AFP

Nathaniel Brazill looks back at his mother after being found guilty

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When a child kills, does he instantly become an adult? Or does he maintain some trappings of
childhood, despite the gravity of his actions?

These are the questions plaguing the American legal system today, as the violent acts of juvenile
offenders continue to make headlines.

Wednesday, 14-year-old Nathaniel Brazill was found guilty of second-degree murder for killing his
English teacher last year. The charge usually carries a prison term of up to 30 years, but Brazille's
defense team is hopeful the sentencing judge will be more lenient in this case. They have a powerful
ally: Jeb Bush. "There is a different standard for children," the governor said after Brazill was
sentenced. "There should be some sensitivity that a 14-year-old is not a little adult."

In March, another Florida jury sentenced14-year-old Lionel Tate, who killed a younger girl while
practicing wrestling moves on her, to life in prison without parole. The concurrent Brazill and Tate
trials served to heighten the public misconception that juvenile violent crime is on the rise; in fact,
recent figures show a precipitous drop over the last five years.

Are we seeing a drop because children are thinking more carefully about their crimes, knowing they
could receive adult sentences? All but five states allow children of any age charged with murder to
be tried as adults. The death penalty generally isn't an option at least not for defendants under
the age of 16; The U. S. Supreme Court has ruled capital punishment unconstitutional for anyone
who hasn't celebrated their 16th birthday. Some states, however, will consider 16- and 17-year-olds
for the death penalty.

Or are there other factors? Defense attorneys might offer a different argument: Since the bulk of the
drop-off in juvenile crime predates most states' embrace of harsher penalties for young offenders, it
is disingenuous to assume any connection between the two.
The fundamental question is, are children capable of understanding the consequences of their
actions? Maybe not; recent studies suggest that the brain's prefrontal lobe, which some scientists
speculate plays a crucial role in inhibiting inappropriate behavior, may not reach full development
until age 20.

It's unlikely that America's thirst for vengeance will be sated by scientific theory. We are, as a nation,
very much in favor of treating child criminals as adults a recent ABC news poll showed 55 percent
of us believe the crime, not the perpetrator's age, should be the determining factor in sentencing.

Below, a few of the arguments posited by both sides of the juvenile crime debate. At the end, there
is an email address; we invite you to send us your comments. Let us know what you think.

Should the U.S. justice system treat juvenile violent offenders as adults?

NO

The juvenile prison system can help kids turn their lives around; rehabilitation gives kids a second
chance. Successful rehabilitation, many argue, is better for society in the long run than releasing
someone who's spent their entire young adult life in general prison population. A young person
released from juvenile prison is far less likely to commit a crime than someone coming out of an
adult facility.

Children don't have the intellectual or moral capacity to understand the consequences of their
actions; similarly, they lack the same capacity to be trial defendants.

Children shouldn't be able to get deadly weapons in the first place. Adults who provide kids with
guns used in violent crimes should be held at least as accountable as the kids themselves.

It's remarkably easy to find a seasoned defense lawyer who believes the current system is too
vulnerable to racism: Statistically, black juvenile offenders are far more likely to be transferred to
adult courts (and serve adult time) than their white peers who've committed comparable crimes.
Adolescents, Maturity, And The Law
JEFFREY FAGAN AUGUST 14, 2005

Crime, Law, and Maturity

Historically, the courts' algebra of maturity was based mainly on social norms and popular legal
comfort zones for other adult functions, such as driving, voting, marrying, and signing contracts --
typically 18, though occasionally 16. Juvenile courts assumed that young offenders similarly are not
fully responsible for illegal behaviors. Because they were immature, they had room to reform
before reaching adulthood. Juvenile courts also were designed to avoid both the stigma of a criminal
conviction and exposure to the toxic inuences of adult punishments. They emphasized treatment
and education more than punishment, in the best interests of the child.

Until recently, judges decided which youths were immature and amenable to treatment on a case-
by-case basis, applying a series of criteria that were elevated from the norms of everyday practice to
a set of constitutionally sanctioned standards identied in Kent v. U.S., the landmark 1966 Supreme
Court case that grappled with the concepts of maturity and sophistication. Judges relied heavily
on the evaluations of social workers whose recommendations were usually persuasive to the
juvenile court. Repeated appearances in juvenile court signaled to the judge that this kid needed
tougher punishment or stronger treatment than the juvenile court could provide. Judges usually
waived high-prole cases into adult criminal court, in part to avoid political criticism of the juvenile
court itself.

As fears of a juvenile-crime epidemic rose in the 1970s, state legislatures across the country started
to take away judicial discretion by carving out large sectors of the juvenile-court population -- as
young as 13 years of age -- and removing them to the criminal court. In some states, the power to
send a teenager to the criminal court was transferred from juvenile courts to prosecutors. And
several states changed the rules to make juvenile offenders show why they should not be
transferred.

Development, Immaturity, and Culpability

The recent push to lower the age threshold for treating juvenile offenders as adults assumes that
adolescents are no different from adults in the capacities that comprise maturity and hence
culpability, and that they have adult-like competencies to understand and meaningfully participate
in criminal proceedings.

But the new science reliably shows that adolescents think and behave differently from adults, and
that the decits of teenagers in judgment and reasoning are the result of biological immaturity in
brain development. The adolescent brain is immature in precisely the areas that regulate the
behaviors that typify adolescents who break the law. Studies of brain development show that the
uidity of development is probably greatest for teenagers at 16 and 17 years old, the age group
most often targeted by laws promoting adult treatment.

Teens at these ages tend to be poor decision-makers when it comes to crime. They often lack the
several elements of psychosocial development that characterize adults as mature, including the
capacity for autonomous choice, self-management, risk perception, and the calculation of future
consequences.

For example, in laboratory experiments and studies across a wide range of adolescent populations,
developmental psychologists show that adolescents are risk-takers who inate the benets of crime
and sharply discount its consequences, even when they know the law. Adolescents take more risks
with health and safety than do older adults, such as having unprotected sex, driving drunk, and
engaging in other illegal behaviors. Adolescents are more impulsive than adults and insensitive to
contextual cues that might temper their decisions. They lack the capacity for self-regulation of either
impulses or emotions, and their tendency toward sensation seeking often trumps both self-
regulation and social judgments or risks and consequences.

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Adolescents also are far more prone to peer inuence, often burying considerations such as legality,
consequences, or risk. Their desire for peer approval can shape their behavioral decisions even
without direct coercion. Peer inuence interacts with risk taking and impulsivity to compound bad
decisions: Recent studies have shown that people generally make riskier decisions in groups than
they do alone. In a new study by psychologists Margo Gardner and Laurence Steinberg, teenagers
took far more risks in a simulated-driving game called Chicken compared with persons over 18,
and risk taking was greater when peers were present. Adolescents typically overstate rewards and
underestimate risks. Imagine how this plays out in the decision to commit crimes, especially in the
company of peers.