Jeralyn E. Merritt, Denver, CO, is a Co-Chair of the NACDL Legislative Committee along with Gerald Goldstein and Elisabeth Semel. She is a member of the NACDL Board of Directors and The Champion Advisory Board. Her e-mail address is JEM97@aol.com.
Since the end of January, and with a constant eye on the upcoming mid-term congressional elections for control of Congress, many on Capitol Hill are distracted by the activities of Independent Counsel Kenneth Starr and "Monica-gate." But Congress still marches on to a beat that is not music to our ears. It remains stuck on sound bite politics instead of the effective policies called for by those who know the system best: state and federal judges and prosecutors, defense attorneys, and corrections officials. The leaders of the three major criminal justice organizations, our President Gerald Lefcourt, Ronald Goldstock, Chair of the ABA Criminal Justice Section, and William Murphy, President of the National District Attorneys Association, have joined together on many criminal justice issues, including opposition to the pending juvenile crime bills. Hopefully, Congress will come to listen to their well-expressed plea for criminal "Justice That Makes Sense."
S.10, the "Juvenile Injustice" bill (our words) is among the worst of a bad crop of legislation. It does seem to be now considered controversial by the Senate leadership, and it has been put off the front burner.
S.10 may have lost some steam in light of the FBI's annual report, Crime in the United States 1996, published by the GPO in October 1997. The report compiled data from law enforcement agencies nationwide, and found violent juvenile crime has significantly decreased for two years in a row. Violent crimes include murder, forcible rape, robbery and aggravated assault. According to the FBI report, juvenile arrests for murder in 1996 were at their lowest level for the decade.
It is true that juvenile arrests in the 1990s are higher than the corresponding rates in the late 1980s. But our representatives should pause long enough to consider the relevant fact that under current laws the trend of violent juvenile crime is going down while the population of juveniles has been growing.
House Bill 3 (H.R. 3) -- Done Deal in the House
May 1997, the House juvenile crime bill, H.R. 3, passed that body. Perhaps the worst feature of H.R. 3 is its bribing of state officials, through desperately needed juvenile crime assistance, or grant money, to do the wrong things. It ties the $1.5 billion federal grant money available over three years to the states' compliance with federal mandates. One such provision is that juveniles 14 years and older who commit a violent crime must be tried by the states as adults. H.R. 3 takes the crucial discretion away from neutral judges, as to when such juveniles should be tried as adults.
To get some of that $1.5 billion, the states must also increase penalties for repeat offenders. They must keep, maintain and make public all arrest (not just conviction) records for juveniles. And they must "permit" juvenile court judges to issue court orders of restitution against the parents or guardians of convicted minors, for failure to "properly supervise" them.
So far, Congress has recklessly failed to notice that there is no evidence to support the idea that trying children in the adult system will increase public safety or decrease recidivism. No one has demonstrated that threatening juveniles with adult courts and jails will deter would-be youth offenders, nor that actually subjecting them to the adult court and jail system serves a remedial purpose and makes society safer from recidivism. As a matter of fact, two recent studies -- one by the University of Florida, one by Columbia University -- conclude that juveniles tried as adults are more likely to be re-arrested, and that the subsequent arrests tend to come earlier with youths treated as adults.
Pending Senate Bill S. 10 -- Threatens Spring Movement
to Floor Vote
While S. 10 has been put off from a Senate floor vote for a brief time, it remains likely that it will be taken up by the full Senate later this month or next. It is championed by Senate Judiciary Committee Chairman Orrin Hatch (R-UT), and some other influential Senators. It has cleared the Senate Judiciary Committee, and is thus ready for a vote by the full Senate any day that the leadership thinks it "has the votes." It is up to us to make sure they don't ever get the votes to pass it!
S. 10, the so-called "Violent and Repeat Juvenile Offender Act of 1997," is essentially akin to H.R. 3, as described above, but worse. It expands federal jurisdiction to cover the entire universe of juvenile delinquency.
Here are just some of the most wasteful and Dickensian features of S. 10:
Undermining Federal Courts and Trampling States' Rights.
S. 10 would turn specialized federal courts into "juvie courts." It would abolish the current judicial role that exists in almost all cases, relative to the ultimate decision as to whether a juvenile should be transferred into adult federal court. S.10 replaces hearings before neutral judicial officers with the unprecedented "unreviewable discretion" of Special Federal Juvenile Prosecutors, to prosecute as an adult in federal court anyone 14 years old or older for any alleged violation of the federal law, no matter how non-violent. The bill's title, "Violent and Repeat Offender Act," is a misnomer.
Endangering Juveniles and Society By Mixing Kids
With Adult Inmates.
S.10 would abolish the law's current requirement that juvenile and adult offenders not be mixed in pre-trial detention and incarceration facilities. It would change the law to allow adult inmates to engage in "intermittent" physical contact with youths, which could mean physical contacts every day for "short" periods of time. It would allow sight and sound contact between juveniles and adults for up to 72 hours -- time enough for kids to be taunted, harassed, and threatened by predatory adult offenders.
DOJ (OJJDP) Has Right Approach for Federal Government
The Office of Juvenile Justice and Delinquency Prevention (OJJDP) has developed a comprehensive strategy for serious, violent, and chronic juvenile offenders. The time-proven, key principles for preventing and reducing at-risk behavior and juvenile crime include these:
Strengthen families in their role of providing guidance and discipline and instilling sound values as their children's first and primary teachers;
Support core social institutions, including schools, churches and other community-based organizations, to alleviate risk factors and help children develop to their maximum potential;
Promote prevention strategies that reduce the impact of risk factors and enhance the influence of protective factors in the lives of youth at greatest risk of delinquency;
Intervene with youth immediately when delinquent behavior first occurs;
Establish a broad spectrum of graduated sanctions that provides accountability and a continuum of services to respond appropriately to the needs of each juvenile offender;
Identify and control the small segment of serious, violent, and chronic juvenile offenders;
Insist upon the strict legal requirement of total physical, sight and sound separation of juveniles from adult inmates, both pretrial and post-conviction.
This is a federal juvenile justice policy that makes sense. It ought to be retained and strengthened, not gutted and discarded, as the pending bills would do. H.R. 3 and S.10 force a false and dangerous choice between law enforcement and prevention. Virtually every expert in the field concurs that we must have both. The value of prevention over the pure "lock-em-up" mentality was shown by a Rand Corporation projection: While a $1million investment in new prisons would prevent 60 serious crimes a year, the same $1 million, if invested in parent training, could prevent 160 serious crimes a year. And if the same amount were spent on graduation incentives for disadvantaged students, there might be 258 fewer serious crimes a year.
The expertise of the family court and the juvenile court system serves a vital function in our society. America cannot jail itself out of juvenile crime problems. We must urge our legislators to abandon the counter-productive, "Washington Knows Best" approach to these complex and essentially localized problems, that is reflected in pending bill S.10 and its companion, H.R. 3.
Powder/Crack Cocaine Penalty Update
In the search for a less "controversial" measure than S.10, the Senate is eyeing a bill regarding the powder/crack cocaine sentencing disparity. However, the Senate is ignoring the U.S. Sentencing Commission's recent recommendation to reduce the penalties for crack cocaine offenses, from the current unreasonable powder/crack cocaine ratio of 100 to 1, to 5 to 1. And it is ignoring the Clinton Administration's proposal to reduce the ratio to 10 to 1, through the same approach.
As I wrote a few months ago, several bills have been introduced to eliminate the disparity by increasing the powder cocaine penalties to equal those for crack cocaine. Now one of them, S. 260, has emerged as a bill threatening to be moved to a full Senate vote. S. 260 was introduced by Senator Spencer Abraham (R-MI). It is co-sponsored by Senate Judiciary Committee Chairman Orrin Hatch (R-UT), Senator Dianne Feinstein (D-CA), Senator Charles Robb (D-VA), and a dozen or so others.
S. 260 should be called the "Two Wrongs Make a Right Bill." It reduces the unreasonable disparity between powder and crack cocaine sentences by raising the already harsh powder cocaine sentences towards the unjustifiable crack levels.
As we well know, the current 100:1 quantity ratio in cocaine sentencing results in low-level crack offenders receiving arbitrarily harsher sentences than high-level powder cocaine offenders. The penalty difference has also resulted in a major racial sentencing disparity, whereby African Americans receive longer sentences than the primarily white and Hispanic powder cocaine offenders. After much careful study, and based on vast experience, the specialist Sentencing Commission and the Clinton Administration recommend revision of the 100:1 quantity ratio by lowering these unduly severe crack sentences, toward the still severe powder sentences. This is also the recommendation to Congress of some two dozen federal judges, all of whom are former U.S. Attorneys. The judges flatly oppose efforts like that posed by S. 260, to raise powder to support the unjustifiable crack sentences.
Take Action Now!
The Senate's proposed juvenile crime bill and powder cocaine penalty bill are two very bad ideas that could well become bad laws in this election year. There is still time for us to forcefully oppose these bills, and to make a difference.
Here are some simple ways for individual NACDL members to make a positive impact:
1. Call the Capitol switchboard (202) 224-3121 and ask to be connected to the office of your Senator. Ask to speak with the staffer who covers juvenile justice and/or crack/powder cocaine legislation. Advise him or her of the problems with the legislation. This article and the two briefing pages that follow should be all you need. Give the staffers' phone numbers to two friends, and keep the communication constant.
2. Set up a meeting as soon as possible to visit with your Senators when they are in the home district. They can actually focus on what you are saying to them in these home district meetings, without the constant interruptions they have in Washington. Bring other people with you who share your concerns, but who come from a different constituency background -- e.g., teachers, local prosecutors and corrections officials, church/synagogue leaders/congregants.
Remember, even talking or meeting with a staff member instead of the Senator or Representative can have a significant impact, because the elected official relies on the staff person's point of view. Try to create an ongoing, open line of communication with your Senator, Representative and/or their aides. Exchange business cards in case they want more information. Send them articles and other written materials supporting our point of view. All NACDL members who have gotten their feet wet with home district meetings report remarkable success.
If you need more information, contact NACDL Legislative Director Leslie Hagin, at firstname.lastname@example.org, or (202) 872-8600, ext. 226.
You can make a difference!
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