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December 7, 2007 - Arizona Capitol Times (AZ)

Report: Trying Kids As Adults 'Is Counterproductive'

By Luige del Puerto,`

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A report released by a federal agency confirmed the long-held view by children's advocates that the transfer of juvenile offenders to adult courts increased, rather than reduced, the likelihood of subsequent violent behavior.

Transferring a juvenile to an adult court "is counterproductive" as a strategy to reduce or prevent violence, said the review released by the U.S. Center for Disease Control and Prevention on Nov. 30.

The review, which looked into six studies done over the years on the effects of transfer laws in several states, indicated that transferred youth were 34 percent more likely to be re-arrested for crimes compared to those retained in the juvenile youth system.

Its conclusion backs up children's advocates who say juvenile offenders should be kept in the juvenile system and who call for a reassessment of strengthened transfer laws, enacted in response to the wave of violent juvenile crimes in the late 1980s and early 1990s.

In fact, authors of the review specifically have in mind state legislators; they hope their conclusions would "encourage discussion" about the societal and economic costs and benefits of transfer laws.

"On the basis of these findings," they said, "(we) recommend against laws or policies facilitating the transfer of juveniles to the adult criminal justice system for the purpose of reducing violence."

Like other states, Arizona allows juvenile offenders to be treated as adults under certain situations. In 1996, voters amended the state Constitution to require defendants 15 years and older to be tried as an adult when accused of certain violent felony offenses or if they are chronic felony offenders.

The next year, the Arizona Legislature passed a law that required county attorneys to prosecute 15-year-olds as an adult if accused of first- or second-degree murder, forcible sexual assault, armed robbery, and other violent felony offenses. The Legislature further gave county attorneys the discretion to prosecute 14-year-olds as an adult if they were accused of certain felony offenses or if they were chronic felony offenders. A decade later, there is indication the Legislature might be taking another look at Arizona's juvenile laws.

Last session, lawmakers approved and the governor signed a measure that spares some juveniles from being prosecuted as adults.
The new law states that if a juvenile is being prosecuted as an adult at the discretion of the prosecutor, the defendant can ask the court to hold a hearing to determine if jurisdiction should be transferred to a juvenile court. The court must also hold a hearing if the offense was committed more than a year before the date that criminal charges were filed.

Under the new law, the court can initiate this hearing on its own, in effect giving judges more say in the matter. If the court finds "by clear and convincing evidence" that public safety and the rehabilitation of a juvenile is best served by transferring the youth to a juvenile court, then the judge shall order the transfer, the law states.
Passage of the measure indicated that the Arizona's lawmaking body might be "beginning to open the door" to reassessing juvenile laws, said Sen. Karen Johnson, R-18, author of the "reverse transfer" law.

"I would say it is at least a first step in hopefully making some more changes down the road," Johnson said.

States strengthened their transfer laws following the dramatic rise in violent juvenile crimes in the late 1980s and early 1990s. Between 1992 and 1999, all states except Nebraska had expanded transfer codes so juveniles could be more easily tried in adult courts, the review noted.

One rationale for the transfer laws is to deter criminal activity, on the premise that the adult criminal system is more severe and punitive, the review said. In short, the belief was that those who were subjected to the adult system would think twice before re-offending and those who were in the general population would pause before engaging in criminal activity.

There is logic to the emphasis on juvenile offenders. Individuals under 18, while constituting a quarter of the population, have been responsible for about 40 percent of violent crimes, such as rape, robbery and aggravated assault in the last 20 years.

Children's advocates say that the adolescent brain works differently than the adult brain and some cite the 2005 U.S. Supreme Court's 5-to-4 decision to ban the death penalty on juveniles who commit murder when under 18. In the celebrated case, Justice Anthony Kennedy wrote for the majority that juveniles are "more vulnerable or susceptible to negative influences and outside pressures, including peer pressure." He wrote that a juvenile's character is not as well formed as an adult's and that his or her personality traits are "transitory, less fixed." The high court's decision also noted scientific and sociological studies that say juveniles lack maturity and have an "underdeveloped sense of responsibility."

The CDC review noted that a separate judicial process for juveniles has been justified on grounds related to the psychosocial development of youth; they are more malleable to reform, and therefore an emphasis of a judicial response should be on reform - rather than or in addition to punishment.

Beth Rosenberg of the Children's Action Alliance said the review confirms their position on adolescent development and the "terrible consequences for our community safety and youths' ability to lead positive lives when they are prosecuted as adults."

The review surveyed studies that assessed the effects of strengthened transfer laws in Pennsylvania, New York, Minnesota, Florida and Washington state. Review authors said these states are geographically and demographically diverse, suggesting that the findings might apply in other states.

Two of these studies focused on Florida. The first one compared the overall re-arrest rates of juveniles initially arrested in 1987, and then either transferred from or retained in the juvenile system. The findings were more mixed - they indicated that transfer increased recidivism over the short term, but reduced recidivism over the long term for some and increased it for others.

The second study replicated the first one following the "strengthening" of juvenile laws in Florida in 1990 and 1994, which resulted in increased discretion of prosecutors to try juveniles either in adult or juvenile court. The second study compared felony re-arrests after age 18.

"The findings indicated that transferred youth had 34 percent more felony re-arrests than retained youth," the review said. The review added that as far as the laws' deterrent effect on the general juvenile population, evidence was insufficient to determine whether they were effective in reducing violence.

Prison reform advocate Donna Hamm said there appears to be more and more acknowledgment that the juvenile brain is still developing well into 20s, and that this significantly impacts behavioral outcomes. "Perhaps we can hope that the scientific community will continue to provide credible evidence that should be taken into account in designing and refining criminal justice processes that are age-appropriate and not counterproductive," she said.

Hamm said the Johnson bill is a "step in the right direction" but cautiously added that she could only hope it reflects amenability on the part of legislators to "rethink" the juvenile system. Hamm calls Arizona's laws "very harsh."

"I cannot think of anything more unconscionable we can do as adults than giving up on children as lost causes," she said. "That's pretty much what we do when we try children as though they have the sophistication and judgment capabilities of an adult criminal mind."

In an e-mail, Hamm recommended a process of reviewing sentences of juveniles, sentenced under the adult court and who have not displayed "serious behavioral problems" while incarcerated, on the basis of "appropriateness alone. Also, Hamm recommended allowing individuals to apply for sentence reductions "based on demonstrated lack of negative adaptations to the extraordinarily problematic survival-environment presented in the prison setting."

"To avoid the most obvious political process for these reviews, you would have to avoid the clemency process. which relies upon final decisions made by the person in the governor's seat, a political animal at best," she said.

Johnson said a juvenile transferred to an adult court could end up in a cell with adult perpetrators who are likely much more violent. "Maybe that could account for some of the recidivism," she said. Johnson said she was anxious to read the review and share it with others. She added: "I would hope that they would see that same movement in here that maybe the road we went down wasn't the best one."

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