By DR. CECIL A. RHODES
Professor of Criminal Justice
Executive Assistant to the President
California State University, Stanislaus

The word "draconian" has often been used to describe Proposition 21 - The Juvenile Violence and Gang Prevention Initiative. I use ‘often’ because Proposition 21 is strictly prosecutorial, and is opposed by numerous civic, educational, children, legal, university, probation, and other agencies and associations. (source:Vote NO on 21 website).

As an educator, researcher, scholar and professor of criminal justice, I find the Initiative to be cruel, regressive and costly. It is an extreme and massive revision of California juvenile justice law that would push more children into adult courts, place more children in county jails and in our state prisons, increase adult "three-strikes," and expand existing death penalty crimes.

What exactly is Proposition 21? California Secretary of State’s official description and preliminary analysis of the proposition is as follows:

"Increases punishment of gang-related felonies; death penalty for gang-related murder; indeterminate life sentences for home-invasion robbery, carjacking, witness intimidation and drive-by shootings; creates crime of recruiting for gang activities; and authorizes wiretapping for gang activities. Requires adult trial for juveniles 14 or older charged with murder or specified sex offenses, eliminates informal probation for juveniles committing felonies. Requires registration of gang members committing felonies; allows disclosure of information on juveniles committing serious felonies; limits sealing of violent offenses committed by juveniles 14 or older; requires statewide reporting of felony juvenile records."
(source:State of California Elections and Voter Information website)

After a cursory reading of the above summary, one might wonder, why the concern or controversy. Generally, prosecutors have no problem with the initiative. Supporters of "punishment for punishment’s sake," and those who believe that harsher punishment, longer sentences, and adult sanctions for children are cure-alls for societal problems would also have no problem with such laws. The philosophy is that of assessing "adult time for adult crime."

A few years ago "Three-Strikes" crime legislation was the popular catch-all; a major cure to all our societal problems with repeat violent offenders. Much of what "Three Strikes" has done is to send individuals to prison for 25 years-to-life for such non-violent "third strikes" as stealing a slice of pizza, stealing a can of beer, stealing a cookie, cashing a bad check, taking some wooden pallets to make a bonfire, minor drug possession, and other offenses that would otherwise result in probation or jail time. In the Modesto Bee (1/8/00) it was reported that prosecutors in Visalia, California would be seeking a third strike (25 to life) for bigamy. It appears that in 1997 a 30 year old defendant, while being tried for drugs and weapons possession, got married in order to have conjugal visits while in prison. He was acquitted by the jury. Last month, upon learning that he was still married to his first wife at the time of the subsequent marriage for conjugal visits, prosecutors will seek to send him to prison for 25 years-to-life.

While "Three Strikes" was aimed at adult repeat offenders, Proposition 21 is aimed at our youth, and because we are dealing with children, it is arguable that it far surpasses Three Strikes in cruelty and costs.

Proposition 21 is cruel, regressive, and costly. It is regressive because it flies in the face of all that we stand for as a democratic and humane nation that purports to care for its children. States stand in loco parentis relating to minors, and legislation abounds in support of this fundamental principle. We restrict children from numerous certain acts, and apply sanctions against adults for allowing, permitting, or participating in acts prohibited to minors. For example, children are legally prohibited from contracting, drinking/buying alcoholic beverages, purchasing cigarettes, serving on juries, obtaining a driver’s license, engaging in sex acts, attending certain movies, and other legally prohibited activities.

For over 100 years, (since the Illinois Juvenile Justice Act of 1899), our country has treated children differently in our justice system. The 1899 Act was so significant that by 1917, all but three States had established juvenile courts. The Act was premised on the following:

• Children, because of their minority status, should not be held as accountable as adult transgressors.
• The objective of the juvenile justice system is to help youth - to treat and rehabilitate rather than punish.
• Disposition should be predicated on analysis of the youth’s special circumstances and needs.
• The system should avoid the punitive, adversary, and formalized trappings of the adult criminal process.

Proposition 21 is a throw-back to the days prior to the Juvenile Justice Act. Proposition 21 is designed to punish children as adults. It has nothing to do with prevention or rehabilitation. It is strictly punitive. It pushes more children into adult courts and would require more children (16 and older) to serve their time in adult state prisons.

As a society, we continue the regressive punitive sanctions of executing children (minimum constitutional and legislative age in several states – 16; California minimum age – 18). While maintaining the age of majority at 18 for voting and legally engaging in other activities, we have continued to lower the age for prosecuting children as adults. Although the concept on its face is illogical, (e.g. you can’t legally contract, vote, marry, serve on a jury, have sex, etc. but you can be prosecuted as an adult, serve time in adult prisons, and be put to death for your behavior) we continue to enact regressive juvenile/criminal legislation.

The necessity for such a law is also illogical. Juvenile violence has declined significantly in California in the last ten years. Between 1991-98, California’s juvenile felony arrest rate dropped by 30 percent. Arrests of juveniles for homicide declined by more than 50 percent. It is patently apparent that our current juvenile laws, enforcement of those laws and their application are working just fine. A recent statewide poll found that California voters firmly believe that prevention (e.g. after school programs, including job and vocational training programs) works in reducing youth violence. (Fairbanks, Maslin, Maullin & Associates for the California Wellness Foundation, February, 1999) The Initiative is clearly irrational as well as illogical.

On April 28, 1997, I was a presenter at the 4th Annual Stanislaus County Crime Summit; the other presenter (keynote) was then Attorney General Dan Lungren. My topic was "Response to Juvenile Crime: We Can Do Both." I said the following:

"… we have been getting tougher … in fact quite tough, on crime, but… we have not been focusing our efforts on PREVENTION. For the last 20 years, we have been focusing our efforts on combating criminal behavior and activities through punishment… If you break the rules, you get punished; if you do it again, you will get punished longer and more severely."

We need to increase our focus on the "why" and the "cause" of juvenile delinquent/criminal behavior and activity. We also need to punish for delinquent/criminal acts, but we need to punish intelligently. Not by rushing to keep lowering the age at which we prosecute children as adults each time there is a gruesome case which captures the media headlines, but by learning from such acts to prevent other children from committing similar acts. Regardless of the nature of the violent act, we shouldn’t lose sight of the fact that the actor is a child. We have sanctions and prevention, but we must impose the sanctions with the sole purpose in mind of prevention and modifying the behavior. We can do both, and we must do both, or the aberrant and deviant behavior will only escalate.

A few years ago the nation was aghast at the brutal attack on the New York Central Park female jogger perpetrated by a group of 13 to 16-year-old teens out "wilding." Then Mayor Ed Koch, when asked his opinion as to why youngsters would do such a thing, stated, "I don’t want to know ‘why.’ I only want them punished!" Mayor Koch echoed the sentiments of many citizens when proffering their opinions on juvenile violence. "If you want to act like a man, then you should be punished like a man." "They know right from wrong and should be punished accordingly." "If you are old enough to do the crime, you are old enough to do the time."

I say to the above that the juvenile is "acting like a man" because of who he is … a child trying to ACT like a man. If he weren’t a child, he would not need to be a pretender to what he or she seeks to emulate: adult behavior…. They are "pretenders" – they are not the real thing – they are not adults. They engage in adult behavior, albeit deviant and abhorrent, but they do so with the limited capacity of a child. They know ‘right from wrong’ as a child knows right from wrong. They know right from wrong as a 13, 14, 15 or 16-year-old knows right from wrong. A child lacks the full gravity, insight, and appreciation for most of what they do, especially when they attempt to act like adults."

The cruelty of purpose, intent, and application permeates the very fabric of the Initiative. According the Legislative Analysts Office’s Report, Proposition 21 will have the following procedural and fiscal impacts: (source: http://www.lao.ca.gov/initiatives/2000/21_03_2000.html)

Prosecution of Juveniles in Adult Court

Juveniles 14 years of age or older charged with committing certain types of murder or serious sex offense generally would no longer be eligible for juvenile court, and would be tried in adult court (mandatory adult court jurisdiction). The current juvenile court fitness could be "statutorily waived" by allowing prosecutors to directly file charges against juvenile offenders in adult court without first obtaining permission of the juvenile court.

Fiscal Effect

Although unknown, the annual operating costs to counties to house offenders before their adult court disposition could be tens of millions of dollars to more than $100 million annually, with one-time costs of $200 to $300 million.

Juvenile Incarceration and Detention

Probation Departments would no longer have the discretion to determine if juveniles arrested for any one of more than 30 specific serious or violent crimes should be released or detained until they can be brought before a judge. Rather, detention would be required. It requires the juvenile court to commit certain offenders declared delinquent by the court to a secure facility (such as juvenile hall, ranch or camp or CYA). It also requires that any juvenile 16 or older who is convicted in adult court must be sentenced to California Department of Corrections (CDC) instead of the Youth Authority.

Fiscal Effect

Unknown. Potentially significant costs to counties

Changes in Juvenile Probation

It would prohibit the use of informal probation for any juvenile offender who commits a felony. Instead, it requires that these offenders appear in court, but allows the court to impose a newly created sanction called "deferred entry of judgment."

Fiscal Effect

Insignificant. Potential costs in some counties

Juvenile Record Confidentiality and Criminal History

The measure would reduce the confidentiality protections for juvenile suspects and offenders by:

• Barring the sealing or destruction of a juvenile offense record for any minor 14 years of age or older who had committed a serious or violent offense, instead of requiring them to wait 6 years from when the crime was committed as provided under current law.
• Allow law enforcement agencies the discretion to disclose the name of a juvenile charged with a serious felony at the time of arrest, instead of requiring them to wait until a charge has been filed as under current law.
• Provide law enforcement agencies with the discretion to release the name of a juvenile suspect alleged to have committed a violent offense whenever release of the information would assist in apprehending the minor and protecting public safety, instead of requiring a court order as under current law.

In addition, it requires the California Department of Justice to maintain complete records of the criminal histories for all juvenile felons, not just those who have committed serious or violent felonies.

Fiscal Effect

Minor savings to counties

Gang Provisions

This measure increases the extra prison time terms for gang-related crimes to 2, 3, or 4 years, unless they are serious or violent crimes in which case the new extra prison terms would be 5 and 10 years respectively. In addition, this measure adds gang-related murder to the list of "special circumstances" that make offenders eligible for the death penalty. It also makes it easier to prosecute crimes related to gang recruitment, expands the law on conspiracy to include gang-related activities, allows wider use of "wiretaps" against known or suspected gang members, and requires anyone convicted of a gang-related offense to register with local law enforcement agencies.

Fiscal Effect

This provision would result in some offenders spending more time in state prison, thus increasing costs to the state for operating and constructing prisons. The Department of Corrections (CDC) estimates the measure would result in ongoing annual costs of about $30 million and on-time construction costs totaling about $70 million by 2025 to house the offenders for longer periods. Law enforcement agencies would also incur costs to implement and enforce the gang registration provisions.

Serious and Violent Felony Offenses

This measure revises the lists of specific crimes defined as serious or violent offenses, thus making most of them subject to the longer sentence provisions of existing law related to serious and violent felonies (must serve at least 85 percent of sentence). These crimes would count as a "strikes" under the Three Strikes Law.

Fiscal Effect

The addition of new serious and violent felonies, combined with placing the new offenses under the Three Strikes law, will result in some offenders spending longer periods of time in state prison, thereby increasing the costs of operating and constructing prisons. The CDC estimates that the measure would result in ongoing annual state costs of about $300 million and one-time construction costs totaling about $675 million in the long term. The measure could also result in unknown, but potentially significant costs to local government to detain these offenders pending trial, and to prosecute them.

State:

Estimates – ongoing annual costs of more than $330 million and on-time costs totaling about $750 million in the long term.

Local:

Estimates – ongoing annual costs of tens of millions of dollars to more than $100 million, and one-time costs of $200-$300 million.

The long and short of it is that Proposition 21 is cruel, regressive, and costly. The measure is mean spirited, excessively punitive, irrational, illogical, and extremely costly. California spends nearly $4 billion annually on prisons, and since 1984, the state has added 21 prisons. This measure is a knee-jerk reaction to certain societal juvenile problems, and the passage and implementation of the measure will lessen us all as a society. We are intelligent and progressive enough to realize that we need a balance of sanctions and prevention. Prevention programs are estimated to be twice as effective and significantly cheaper than such increased punitive sanctions.

By VINCE BEISER

Almost every nation on earth has banned executions of juvenile offenders — but in the U.S .in January alone, a record four people were scheduled to die for crimes committed while they were kids.

Douglas Christopher Thomas is scheduled to be executed on January 10. Before Douglas Christopher Thomas was old enough to vote, buy a beer or serve on a jury, the state of Virginia decided he was old enough to die.

Convicted of murdering his girlfriend’s parents when he was 17, Thomas is slated for execution on January 10. "Everyone makes mistakes as a teenager, some bigger than others," says Thomas, now 26, by phone from Virginia’s Sussex I maximum security state prison. "What I did was wrong. But I’m not the same person I was at 17."

No one, including Thomas, denies that he committed a horrible crime and deserves punishment. The United States, however, is by now virtually the only country in the world where someone as young as he was when he committed his crime can receive the ultimate punishment — death. This January, Virginia and Texas plan to kick off the new millennium by executing four inmates for crimes they committed while they were, by most people’s definition, just kids.

One of those executions is expected to be postponed, but even if the total is only three, "it will be the highest number of executions of juveniles not only in one month, but even in a single year" since the Supreme Court reinstated the death penalty in 1976, says Bryan Stevenson, a prominent death-penalty defense lawyer and director of Alabama’s Equal Justice Initiative. According to Amnesty International, only five other countries are known to have executed juvenile offenders in the 1990s: Pakistan, Saudi Arabia, Iran, Nigeria, and Yemen. The US has executed more juvenile criminals than all of them combined — and is the only one known to have put any to death since 1997.

Every country on earth has ratified the United Nations’ Convention on the Rights of the Child, which prohibits the death penalty for juvenile offenders, with two exceptions: Somalia, which effectively has no government, and the US. Even China, one of the world’s most enthusiastic criminal-killers, recently banned juvenile executions.

"We’ve always been the world leader in juvenile executions," says Victor Streib, dean of Ohio Northern University’s College of Law and author of a biannual report on the juvenile death penalty. "Now we’re the only ones."

Killing offenders too young to be considered adults has a long history in the US. The first such execution was in Massachusetts in 1642, when a 17-year-old boy was put to death for having sex with animals. The youngest person executed in modern times was a 14 year old who was electrocuted in South Carolina in 1944. Today, the Supreme Court has set 16 as the minimum age for death penalty eligibility, but there are many who would like to see that lowered. Former California Gov. Pete Wilson suggested lowering the age limit to 14, and a Texas state legislator has introduced a bill to make it 11.

Currently, there are some 70 juvenile offenders on death row around the country. All are male. Two thirds of them are black or Hispanic, and two thirds of their victims were white.

The death penalty is generally thought of as a punishment reserved for the worst of the worst, the callous, hardened men and women with long histories of brutality and no hope of redemption. Critics of juvenile-offender executions say it simply shouldn’t apply to even violent criminals whose youth offers the potential for rehabilitation.

While each of the three young men firmly slated for death next month did commit murder, none had a significant previous history of violence, nor even a particularly impressive criminal record. Their brief lives resemble those of thousands of troubled, trouble-making teenagers — with the difference that theirs went off the rails with a single burst of unexpected violence.

Glenn Charles McGinnis, 26 and on Texas’ death row, had a history of shoplifting and auto theft, but no prison record until, at 17, he tried to rob a dry cleaner’s and wound up shooting the attendant to death. Steve Roach, now 23 and awaiting execution in Virginia, had been arrested for car theft and breaking-and-entering, but had no history of violence before he inexplicably blasted his 70-year-old neighbor with a shotgun and stole her car. Three days after the murder, Roach turned himself in to the county sheriff and made a full confession.

"I was 17. I don’t know what I was thinking," says Roach by phone from Sussex I. "I don’t think I had a reason for what I did."

Thomas’ case in particular points up the arbitrary nature of laws which attempt to distinguish between responsible adults and salvageable children. In 1991, Thomas and his then-girlfriend, Jessica Wiseman, were convicted of killing Jessica’s parents. The Wisemans had forbidden 14-year-old Jessica from seeing Thomas, then 17. Several people testified at Thomas’ trial that Jessica was the real mastermind behind the crime. Even the federal judge who turned down one of Thomas’ recent appeals acknowledged that "the record strongly supports the conclusion that it was Jessica Wiseman who wanted her parents killed and who instigated Thomas to carry out her wishes."

But Jessica was a minor, and so was sent to a juvenile detention facility until she turned 21. She is now free. Thomas, just three years older, was sentenced to death. "I was just over the line," he says, "and she was just under."

One of the main reasons that there are separate courts and penal systems for juveniles and adults is the notion that young criminals have the potential to learn the error of their ways.

"We’ve always recognized that the essential meaning of childhood is that you will change," says Stevenson. "To take a single act of a child, even a terrible, horrific act, and say that we’ll take their life because of it contradicts that. It’s legitimate to say they should be punished, but not to say they’ll never change."

That argument cuts no ice with juvenile death-penalty supporters. "McGinnis was no child then, and he isn’t one now," says Michael Jones, a spokesperson for Texas governor George W. Bush, a whole-hearted death-penalty enthusiast. "He was six feet tall and weighed 170 pounds when he went in and murdered a woman, shot her three times in the head and back for $140. This young man was judged to be a serious danger to his community, and that’s why he received the sentence he did."

McGinnis, like many juvenile death-row residents, is the product of a savagely abusive upbringing. His crack-addicted mother used their one-bedroom apartment as base for her prostitution business. At various times in his childhood, his mother and stepfather beat him with a baseball bat, whipped him with an electric cord and poured hot grease on his stomach. His stepfather raped McGinnis when he was about nine.

The jury, however, didn’t buy his attorney’s argument that McGinnis’ traumatic upbringing should earn him a measure of mercy. Neither does Dianne Clements, director of Justice for All, a Texas crime victims’ advocacy organization. "There are lots of people with worse childhoods who don’t commit capital crimes," she says.

Whether an appropriate punishment or not, another common argument in favor of the death penalty — that it serves as a deterrent — doesn’t seem to apply when it comes to teenagers, who notoriously think themselves invincible. Both Roach and Thomas say they didn’t even realize they might face execution for their crimes. "I thought at the most I’d get a certain number of years, and then me and Jessica would be together again," recalls Thomas.

Thomas, Roach, and McGinnis each still have a chance to escape death. Ross D’Emanuele, McGinnis’ lawyer, is preparing an appeal based on international law. The US has actually signed a treaty, the International Covenant on Civil and Political Rights, that specifically bars death sentences for persons under 18. The Senate, however, inserted a condition exempting the US from that particular clause. D’Emanuele hopes to convince the Supreme Court that the Senate had no right to do so, thereby earning his client — and possibly Roach, Thomas, and other condemned juveniles as well — at least a stay of execution while the issue is sorted out.

All three are also pleading for clemency from their respective state governors, stressing the lack of violence in their backgrounds apart from the murders they were convicted of. That avenue, however, hardly seems promising. Virginia’s governor, Jim Gilmore, has only commuted a death sentence to life in prison once, and then only for a severely mentally ill inmate.

Texas’ Bush has also commuted only one death sentence, for a man who confessed to a murder he did not commit. A commutation on strictly humanitarian grounds seems unlikely, especially given Bush’s presidential aspirations in a country where a large majority of the public supports the death penalty. Even President Clinton felt obliged, during his 1992 campaign, to return to Arkansas and personally sign the death warrant for a brain-damaged inmate.

Death penalty opponents, however, are hoping that the growing chorus of international outrage may help change the atmosphere in the US. Amnesty International has launched a major campaign to draw attention to juvenile executions, and the National Coalition to Abolish the Death Penalty claims to have gathered nearly 50,000 signatures for a petition demanding a moratorium. And at a press conference last October, the United Nations High Commissioner for Human Rights called on Washington to abandon juvenile executions.

By MICHAEL NAPP

The Year 2000 primary season has arrived with increasing attention due to the various presidential nomination contests. Daily news reports are filled with the latest rhetoric from the candidates. The California primary is scheduled for March 7.

Several propositions have been certified for the California primary ballot. A far reaching proposition is aimed at those Californians too young to be eligible to vote. Proposition 21 was initiated, sponsored and financed by former Governor Pete Wilson and his backers, and may have the most far reaching effect on youth of any governmental action of this generation. Named the "Gang Violence and Juvenile Prevention Initiative," it is a massive revision of the juvenile justice system.

In fact, Prop 21 is not about prevention. It builds no new schools. It does not purchase a single textbook. It does not hire a single new teacher. It doesn’t fund a single new diversion or counseling program for troubled youth, and it does not create a single summer job for young people.

What Prop 21 does is push more 14 and 15 year olds into adult courts, more 16 and 17 year olds into adult jails, and vastly expand "gang" related and three strike penalties.

Legislative analysts state that Prop 21 will cost hundreds of millions of dollars. The proposition will continue the process of the criminalization of youth by creating punishments that don’t fit the crime.

It lowers felony vandalism like graffiti from over $50,000 to around $400 with a minimum penalty of one year in jail and thousands of dollars in fines. It makes "conspiracy" of just knowing a gang crime will be considered a crime, and expands the definition of gang membership to include as few as 3 people. Youth must register with the police, in the same way as sex offenders, for mere association with a so-called gang. It expands the "3 strikes" laws to make sentences longer for youth, and expands death penalty definitions. It eliminates probation for many youth, creates stricter probation rules for those eligible, and makes it easier for more to be moved from probation to adult prisons.

Youth as young as 14-years-old will be sent into the adult court system rather than to juvenile court. Proposition 21 allows public scrutiny of juvenile court records by eliminating "confidentiality" rules designed to permit youth offenders to return to school or find work. Youth offenders will be labeled as criminals for life.

The extreme provisions of Prop 21 have brought together a diverse group of opponents including:

• California Speaker of the Assembly Villaraigosa
• Los Angeles City Council
• San Francisco Board of Supervisors
• ACLU of Northern and Southern California
• California PTA
• California Council of Churches
• Chief Probation Officers Association of California
• League of Women Voters of California