Four ways America gets it wrong in prosecuting alleged teen offenders
The United States leads developed nations in punitive, cruel and inhumane practices against children and adolescents who come into conflict with the law.
One of the most popular and humane American legal innovations is the juvenile court.
Developed by progressive reformers in Chicago in 1899, it was rapidly copied around the world.
Today, every developed nation has a separate court system for juveniles, based on concepts of rehabilitation, proportionality and confidentiality. It represents a second chance for young people, who are by nature more impulsive and prone to risk-taking.
It is shocking, then, that over a century later the United States leads these nations in punitive, cruel and inhumane practices against children and adolescents who come into conflict with the law. A visiting judge from the Netherlands recently commented that she didn’t understand what went wrong.
The recent adult prosecution of five teens in Lake County is a shocking example of the quadruple set of legal hammers against Illinois youth that prosecutors and legislators have built over the past four decades.
First, only children under the age of 15 have an absolute right to a lawyer throughout interrogation and this right is only in murder and sex offense cases in Illinois. Older adolescents are merely advised of their Miranda rights, but the Chicago Police Accountability Task Force found fewer than 1% actually get to consult with a lawyer prior to waiving their Miranda rights. High-school-age youth, deemed too young to drink, drive or vote, are at a significant disadvantage when interrogated by police, and frequently sign “confessions” believing they will then be released.
Ironically, Illinois has raised the age to 21 to purchase tobacco products, but still allows teens to be interrogated without a lawyer.
Second, the U.S. violates internationally recognized rights of children by prosecuting children under the age of 18 in adult court. In Illinois, legislators developed a set of “automatic” adult prosecution laws that send 16 and 17-year-old youth into adult court upon the mere filing of a charge, with no possibility to be sent to juvenile court. A 16-year-old who signs a statement without a lawyer in a murder investigation is suddenly propelled into adult court, with no way out.
No other developed nation allows adult prosecution of adolescents. In fact, nations increasingly allow the use of juvenile sentences for young adults into their 20’s.
Third, only in Illinois (and a handful of other states) do the laws allow “felony” murder charges — murder prosecutions in cases involving an unintentional death in the course of a felony offense.
In the Lake County case, a man fired a gun at teens he thought were trying to steal his car, and a 14-year-old was shot and died. The five teens who were with the 14 year-old all have been charged under the “felony murder rule” with murder in adult court. The felony murder rule is a misguided U.S. invention — a failed policy that needs to be thrown out.
Fourth, once found guilty in adult court, youth are subject to mandatory and excessively long sentences that include “truth in sentencing” requirements to serve the full sentence, with no exception for youth. Ten years is the norm in other developed nations for a serious offense. But in the U.S., we now have sentences that amount to de facto life terms for young people. This is wildly out of step with science that indicates young people grow out of criminal offending — and grossly inhumane.
This confluence of “tough on crime” measures, built up by prosecutors and legislators over the decades, stacks the deck against our young people and shocks the rest of the developed world.
It’s time to dismantle these provisions and rebuild the progressive and restorative system of justice envisioned over a century ago, back when the U.S. was a leader in youth justice.
Elizabeth Clarke is president of the Evanston-based Juvenile Justice Initiative, an advocacy organization launched in 2000 by the MacArthur Foundation and the Woods Fund of Chicago to provide non-partisan policy leadership on juvenile justice issues in Illinois.
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