JRC Newsletter of July 28 Posted

Vol. 4 #12 July 29, 2013

When Children Are Adults

by Gordy Allen

Prior to the idea of “juvenile court” and its implementation, children of all ages were arrested, tried, and if convicted, punished as ‘little adults’. The movie “Oliver” comes to mind. Because of increased urbanization, the deplorable conditions in adult prisons, and the absence of child labor laws leading to abuse, a ‘save the children’ movement began. Perhaps the first result of such a new ideology was the “House of Refuge” in New York City started by the Quakers.

Based on a family model, the House sought to provide order and discipline where none had previously existed, but in an environment where the institution was to be considered a home, not a prison; peers were considered to be family; and staff were to be considered as family, and were expected to relate to the residents in that way. The first juvenile court was founded in 1899 in Cook County, Chicago.

Juvenile court and the concept of the “welfare of the child” developed simultaneously and symbiotically. The process was to be indeterminate, based on professional staff recommendations, discretionary decisions following a standard of ‘best interest of the child’ with the end product designed to be rehabilitation, rather than punishment. The theorists suggested early intervention, at a lower age, and a lower threshold for such intervention would give rise to the rehabilitation of the child prior to the onset of “serious” criminal activity. Court intervention was authorized into the life of a child who had been “wayward and habitually disobedient”.

The Court itself was separated from the adult criminal court, and given new nomenclature for its processes. A criminal became a delinquent. Confidentiality was imposed; access to records was limited; formality was unnecessary, because the Court, taking the place of the parent (“parens patriae”) had only the best interest of the child as its motivation. The juvenile court judge became a compassionate avuncular elder. Background information became valuable; the more that could be obtained, the better the ‘cure. Dispositions actually increased in length, to the extent that adult sentences were often much shorter than the period of rehabilitation for the juvenile delinquent, for essentially the same conduct. After all, the rehabilitation was for a wholly benevolent purpose.

Iowa’s juvenile court statute reflects this history. The legislature decreed that the statute “shall be liberally construed to the end that each child shall receive…the care, guidance, and control that will best serve the child’s welfare…and the court shall secure for the child care as nearly as possible equivalent to that which should have been given by the parents”. Iowa Code chapter 232.1 (emphasis added)

The two models (punishment and rehabilitation) differ in several important respects. The former focuses on the criminal act and the conduct of the actor. Society demands retribution, and is necessarily focused backward to the precipitating conduct. The sentence is usually determinate. The rehabilitation model in contrast focuses on the needs of the offender, and prognosis for a ‘cure’. Attention is forward seeking, with indeterminate sentences based on progress, with necessarily lengthy periods of contact. Importantly, both models argue the rightness of their cause as the best to satisfy the constant need to protect the public.

Success in that goal is measured by the rates of recidivism and crime. The ebb and flow of those rates correspond to the legislature’s response to alternately dedicate more funds to rehabilitation and facilities, or to increase the penalties for certain crimes. In a sense, the legislature alternates between engineer and brakeman on the same train, but with ostensibly the same purpose, irrespective of function at any one time. Importantly for this discussion, service to those purposes sometimes operates to ‘exclude’ certain conduct from the jurisdiction of the juvenile court, as so egregious that it must be ‘punished’. In these instances, the age of the child becomes secondary to the conduct, and if declared by the legislature to be sufficiently ‘bad’, the crime mandates adult punishment, rather than juvenile treatment.

Advocates of both positions use statistics and case histories to argue the validity of their respective positions. As with most statistical debates, most anything can be proved. But one thing is fairly certain: juveniles like their adult counterparts, after spending time in adult institutions, become better criminals. Studies in Florida, New York and New Jersey show that juveniles who are excluded from juvenile court and do adult time were rearrested, and sooner, than their juvenile counterparts, and their subsequent crimes tended to be felonies.

Legislatures faced with the choice of which crimes to ‘exclude’ from the jurisdiction of the juvenile court must necessarily consider the protection of the public, but it behooves such legislators to also consider the impact of adult prisons on the future behavior of the juvenile, the impact on management of an already strained correctional system, and the cost in dollars and public safety. ‘Lock ‘em up’, while a politically easy response, is not necessarily a sound policy decision, and may result in less, not more, safety for the public.

Perhaps because of this ‘ebb and flow’, the Iowa juvenile code is somewhat of a patchwork quilt of statutory definitions and jurisdictional thresholds. A “forcible felony” committed by a juvenile, age 16 or older, is excluded from the jurisdiction of the juvenile court and the crime is prosecuted as an “adult” crime, and the child, now considered an adult under the law, is subject to mandatory sentence provisions. State v Black Hawk District Court., 616 NW 2d 575 (2000). A child 15 or younger may still be “waived” to the adult court, by the juvenile court if the conduct is egregious and there appear to be no prospects for rehabilitation. Iowa Code 232.45.

There are ‘safety valves’ incorporated which seemingly make the decision even more discretionary with the respective courts. An “adult”, made so by the exclusion of the statute, is prosecuted in the adult system, unless the adult court finds “good cause” to refer the adult to the juvenile court to be treated as a “child”. This is in effect a reverse waiver, and the same considerations of 232.45 apply. State v Terry Also, when jurisdiction has been “waived” as opposed to statutorily excluded, and after conviction as an adult, the district court may nevertheless grant a deferred judgment even if the offense carries a mandatory prison term. State v Greiman. In addition, Iowa Code 907.3A establishes a “youthful offender” category allowing the district court to return the “adult” who was waived, to the juvenile court for purposes of sentencing, which sentence may exceed the age of majority of the now “child”. This option is not available to those whose crimes were “excluded” from the juvenile court. Our Supreme Court and the Iowa Legislature have said these options are to “ameliorate the effects of the penalty in an appropriate case”.

While this history and current legislative scheme may seem confusing, it is apparent that the overriding consideration is to attempt to make the punishment fit the crime, and the individual. The Court’s function is to find the appropriate case and the appropriate punishment. It is to the Court’s and the Legislature’s credit, not only that this purpose has been established, but that significant opportunities for achieving that goal do exist.

Unfortunately, there is a significant number of current “adults” in our corrections system, who had no opportunity to take advantage of these “ameliorative” effects. They are the offenders now housed in our adult institutions who were placed there as juveniles for conduct committed as juveniles, but tried as adults, they received the ultimate sanction Iowa imposes: life in prison.

The 8th Amendment to the US Constitution prohibits “cruel and unusual” punishments. Such a prohibition applies not only to those considered “barbaric” but “excessive in relation to the crime committed”. Coker v Georgia (1977). The US Supreme Court also held that “it is a basic precept of justice that punishment should be graduated and proportionate to the offense”. Atkins v Virginia (2002) Punishments which are so disproportionate are “cruel and unusual” and constitutionally prohibited. Trop v Dulles (1958) The Amendment must draw its meaning from “the evolving standards of decency that mark the progress of a maturing society.”

Scientific studies confirm that juveniles – all juveniles – have a lack of maturity and an underdeveloped sense of responsibility, which often results in impetuous and ill-considered actions and decisions. Johnson v Texas, (1993) They as a group are more vulnerable or susceptible to negative influences and outside pressures. Character is not well-formed. Personality is transitory. Recent brain studies demonstrate this is not a function of parenting or environment. It is a fact of nature. We just do not have the necessary thought processing equipment.

This is hardly new stuff. Who among us remembers when we were 16 and 17 yet cannot recite a litany of stupid, “ill-considered”, and immature acts, many of which were crimes by definition, but because we were not caught, were not committed by “criminals”? “There but for the grace of God, go I”

For this reason, the US Supreme Court recently declared that capital punishment may not be imposed upon an individual, whether called a juvenile, or an adult because of “exclusion”, for conduct committed under the age of 18. Roper v Simmons (2005) The Court, speaking through Justice Kennedy, found it unsupportable to “conclude that even a heinous crime is evidence of irretrievably depraved character” and further, such studies, supported the proposition that a minor’s character deficiencies can be reformed. The prohibition on cruel and unusual punishment was held violated when “the law’s most severe penalty is imposed on one whose culpability or blameworthiness is diminished to a substantial degree by reason of youth and immaturity”.

In Iowa, the “law’s most severe penalty” is life in prison. Admittedly, Roper did not prohibit life sentences imposed on conduct committed as a juvenile. But the rationale of Roper, the history behind the legislative treatment of juveniles and the evolution of the juvenile court system, all suggest that the imposition of such a penalty, without possibility of parole, on a class of offender, violates those “evolving standards of decency that mark a maturing society”. Certainly, the possibility of parole based on considerations of rehabilitation, and the “reformation of character deficiencies” should be allowed, rather than statutorily eliminated.

There is no question that murder is “most foul”. It is not my purpose to suggest that lengthy prison sentences are always “cruel”, or even to suggest that such sentences might not, in an “appropriate case”, be deserved. It is not my intent to suggest that the prison doors should be immediately opened for those now residing in prison for conduct committed while 16 or 17 years of age.

But it is my purpose to suggest in the strongest terms possible that to categorically deny the possibility of parole to an offender who has served 22 years of a life sentence, for a crime committed when she was 17, without consideration of her present age, maturity and rehabilitation, is not an attribute of a maturing society. The Iowa legislature has acknowledged the need to consider appropriate sentences to ameliorate the effects of harsh sentences on undeserving individuals, and the US Supreme Court has repeatedly admonished that the punishment should be proportionate to the offender. Justice O’Connor, in her dissenting opinion in Roper, disagreed with the majority’s 18 year old age barrier for imposition of capital punishment. She argued for consideration of all factors, rather than an age determinative solution. But in so doing, she expressed eloquently the argument for the class of Iowa offenders who wish nothing more than to be considered for parole:

Proportionality issues clearly raise 8th Amendment concerns. But these concerns may properly be addressed not by means of an arbitrary, categorical age-based rule, but rather through an individualized sentencing in which juries are required to give appropriate mitigating weight to the defendant’s immaturity, susceptibility to outside pressures, and cognizance of the consequences of actions.

Now in Iowa, there are least 45 offenders, who ask nothing more than this: to eliminate the “arbitrary categorical age-based rule” which mandated a life sentence for acts committed while 16 or 17, and allow consideration by the parole board of “appropriate mitigating factors”.

Gordon (Gordy) Allen is a Professor of Law of Drake University. http://www.law.drake.edu/faculty/?profileID=allenGordon

 

Correction

In the most recent issue, we committed one small error pertaining to the new OJJDP grant. It is not the judicial district departments of correctional services, but the juvenile court services offices in the three judicial districts that are participating in the project.

 

Board of Corrections Report

By Jean Basinger

The Iowa Board of Corrections met at the Office of the Sixth Judicial District Department of Correctional Services on July 12, 2013. All members of the board were present with the exception of the Rev. Michael Coleman of Waterloo. Iowa State Senators Rob Hogg, Tom Courtney, Rick Taylor, and Robert Dvorsky were present for the entire meeting and the tour of the Anchor Center which followed the meeting.

Charles Larson, Sr., Chair of the Board, presided: District Director Bruce VanderSanden welcomed the group. He reported that they expect to be able to open the Anchor Center in the next fiscal year.
Report by IDOC Director John Baldwin: The Director spoke at length regarding the new requirements of the Prison Rape Elimination Act. There will be 3 audits of the institutions and community-based corrections during fiscal 2014 to evaluate compliance. Auditors in Nebraska have been contracted to do this. Under the new rules, juveniles tried as a adults must be housed out of sight and sound of adult prisoners. Males will be housed on a unit in the LUD basement at Anamosa State Penitentiary. Females will be housed in Nebraska. The Director stated that, for the most part, the new policies are “just good corrections”.

Report from Attorney General’s Office by William Hill: Mr. Hill reported on the types of cases with which they are currently working. These include placement of mentally ill, sex offenders, and elderly prisoners when they are released; how sex offender laws work, including issues of mandatory minimums, family reunification, etc. There are also issues related to religious rights. These usually have to do with food and items used in worship by different religious groups.

Lettie Prell presented a risk assessment document that she has designed for the Iowa Board of Parole.

First Judicial District Department of Correctional Services Director Karen Herkelman reported that the Women’s Center for Change received full funding. They hope to go beyond doing current practice and try new things such as strengthening incentive based activities. They want to balance supervision, accountability, and treatment. Lots of agencies will be coming in to work with women. Senator Hogg asked Director Herkelman to talk about the lack of funding for the Black Hawk and Delaware drug courts and the mental health courts. The other Senators were surprised at this information and what to be informed should this kind of situation arises again. It seemed to this observer that they were indicating that this kind of funding can be found if the Legislature is made aware of the need.

The Board members made the decision to only meet one time in August to consider the budget for the next fiscal year. This was also the case last year. This means that the Board will not have the opportunity to hear from the individual wardens and district directors regarding, not only their needs, but also about the programs they are especially proud of. In light of the situation that occurred with the drug and mental health courts described above, I hope they will reconsider and be willing to invest more time in reviewing the proposed budget.

Following the meeting there was a tour of the Anchor Center.

Please note that these minutes are not official.

Selected links:

Female inmates sterilized in California prisons without approval

 

http://cironline.org/reports/female-inmates-sterilized-california-prisons-without-approval-4917

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UPCOMING EVENTS

Voices to be Heard is a support group for families and children of an incarcerated loved one. The group gathers to support and comfort those who know too well the grief that comes to those left behind when someone they love is incarcerated. The group meets on the first and third Tuesdays of the month at Union Park Methodist Church (East 12th & Guthrie in Des Moines) from 5:30 – 7:00 p.m. The group brings in speakers, performs outreach, provide support groups and leadership classes. It is a good idea to contact Melissa ahead of time because the group provides dinner and a head count is preferred. Contact Melissa at 515/229-2645 for more information. NOTICE: There will be no meetings in August!

The next Friends of Iowa Women Prisoners meeting is at noon on Tues., Aug. 20th at Wesley United Methodist Church, 800 East 12th.

In August our presenter will be Elvia Miller. Elvia has over 12 years experience working in treatment facilities and halfway house programs. Her work, life experience and education have given her the knowledge and awareness of the services needed for women to be successful in recovery.

Bring your lunch. The place and time are consistent throughout the year. The meetings are always held on the third Tuesday of the month, and always held from noon to 1:00 pm at Wesley United Methodist Church located at 800 East 12th Street in Des Moines. The location is a block west of East High School. Please contact Vi for more information.

Justice Reform Consortium member organizations: Iowa CURE & Iowa Coalition 4 Juvenile Justice; Friends of Iowa Women Prisoners; Trinity United Methodist Church; Methodist Federation for Social Action; Voices to be Heard; ACLU of Iowa; Social Action Committee, Des Moines Presbytery; Des Moines Chapter of WILPF; American Friends Service Committee; Plymouth Congregational Church, Board of Christian Social Action; Iowa Annual Conference, UMC; Iowa NOW and Des Moines NOW; National Association of Social Workers; Beacon of Life; Citizens for Undoing Racism-War on Drugs Task Force.

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