by Hanna Koslowska, The New York Times

October 24, 2014

The government may recommend he still sit in the back seat of a car, but a 10-year-old boy can be charged as an adult for the homicide of a 90-year-old woman and potentially spend the rest of his life in prison.

Along with Somalia, the United States is one of two countries in the world that have not ratified a United Nations convention that requires countries to have a minimum age to consider a child criminally culpable. According to Amnesty International, it stands alone in sending juveniles to prison for life without the possibility of parole. In some parts of the country children are automatically charged as adults when accused of homicide. Two recent cases have exposed ambiguities in the criminal justice system and drawn criticism from those who question whether the law should ever treat children as adults.

The cases are very different. In one, a 10-year-old Pennsylvania boy who reportedly suffers mental issues repeatedly punched a 90-year-old woman and choked her by pressing her cane against her neck, eventually leading to her death. According to a police statement, the woman, who was in the care of the child’s grandfather, got upset with the boy, which incited his violent reaction. In the other case, a group of teenage football players of Sayreville War Memorial High School, New Jersey, aged 15 to 17, allegedly performed brutal hazing on new members of the team, and several of them now face charges of aggravated sexual assault.

“The thread that ties the two cases is the threat of adult prosecution,” Marsha Levick, the deputy director and chief counsel of the Juvenile Law Center, told Op-Talk. But another thing they have in common, Ms. Levick said, was that “each scenario can be properly managed in the juvenile justice system.”

At The Daily Beast, Christopher Moraff writes that since a Supreme Court ruling in 2005 banning capital punishment for juveniles, “slow progress has been made reversing some of the more critical flaws in the system.” While the court also ruled that automatic life without parole for minors violated the Constitution, if tried in the criminal justice system, the Pennsylvania boy would face at least 25 years in prison. Moreover, under Pennsylvania law, the judge could still send him to prison for life without the possibility of early release.

“While that is unlikely to happen, the very fact that it can is a stain on the American judicial system,” writes Mr. Moraff.

Ms. Levick told Op-Talk that it is “ludicrous” to try the boy as an adult. “It’s a remarkably inhumane response,“ she said, explaining that the boy couldn’t have possibly appreciated the full consequences of his actions, but also “would not be competent to stand trial,” unable to understand the proceedings, incapable of distinguishing between the players in the courtroom.

Writing for The Huffington Post, Ms. Levick also points out that the child was given coloring books while held in isolation in an adult prison. “It confirms, in that simple gesture, the wrongheaded thinking behind a law that would allow the adult confinement and prosecution of a 10-year old child.”

He should be offered treatment and special care, Ms. Levick says. “Children require special care to stay on course developmentally, to enable successful return to their family and community, and to reduce further offending in the future.”

This sort of care and emphasis on rehabilitation, rather than punishment, is offered by the juvenile justice system, where the boy could still be placed if his lawyers so petition.

And even though the defendants in the Sayreville case are older and different dynamics were at play during the offense, advocates say that they should placed in the juvenile justice system as well and that they should be offered guidance and help.

When we talk about the two cases in the same breath, Ms. Levick said, we’re “walking a very fine line.” The two situations are different, both inexcusable, but in both there’s also hope for the young offenders.

The juvenile justice system is well-equipped to return the teenagers as productive members of society, Ms. Levick said.

The young football players’ shocking behavior has rocked New Jersey. Various polls for local publications show that respondents would like to see the defendants tried as adults. Some bring up the argument that a harsh punishment could serve as a deterrent for similar behaviors. Victim advocates have said in the past that some children are beyond redemption. “While juvenile advocates often note that a youth’s brain is still developing, we all learn from an extremely early age that killing is wrong,” say representatives of the National Organization of Victims of Juvenile Offenders at The New York Times.

However, Elizabeth Cauffman, professor of psychology and social behavior at the University of California, Irvine, told The Star Ledger that trying minors in adult court and administering severe punishment is entirely counterproductive. “They end up being held with adults and becoming more hardened criminals,” she said.

Children need guidance, and positive reinforcement in order to reverse their behavior, Ms. Cauffman said. Teenagers know how to distinguish right from wrong, “but their ability to do the right thing isn’t as developed.”

They are more impulsive and can’t control their emotions as well as adults—in fact, Ms. Cauffman added, “their emotional system doesn’t fully develop until about age 25.”

What’s more, one can’t predict whether a teenager who had committed sexual assault would be a rapist in the future, according to Ms. Cauffman. Research shows that you can’t base a long-term prognosis on minors’ behavior. “That’s why their punishment shouldn’t be driven by the offense.”

The Star Ledger published an editorial where they echoed Ms. Cauffman’s words and opposed trying the Sayreville teenagers in adult court. A juvenile detention center, The Ledger says, “is no picnic, either.” But it offers access to rehabilitation services. “We created this separate system because while the young brain can be capable of monstrous violence, it’s a more flexible creature.”

The editorial cites a study that followed 1,300 juvenile offenders for seven years. Of those, only 10 percent continued to commit serious offenses. “That tells us rehabilitation is possible,” the editorial states.

In the 1990s, the “tough on crime” era, Ms. Levick told Op-Talk, the mind-set was that every kid on the street would be a future offender, hence the inclination to prosecute them in adult courts. But the juvenile justice system works, treating minors in “developmentally appropriate ways.”