This article was published in the inaugural addition of the George Washington University Law School Criminal Law Society Brief on May 24, 2016. Find it here.
Is the “super predator” rhetoric back? I hope not. A series of events both on the local and national stage have brought the issue of youth violence back to the front pages. In D.C., there have been several instances of youth attacking passengers on the metro, and Hillary Clinton was recently confronted by a young woman at a fundraiser about her use of the term “super predator” and vote for drug laws in the 1990s that helped fuel mass incarceration.
The “super predator” narrative has long been debunked as racist, hyperbolic hysteria following extensive media coverage of a rise in youth violence in the late 1980s and early 1990s. But unfortunately for youth, the hysteria did not stay within the confines of letters to the editor. State after state changed its laws to make it easier to try youth as adults, eroding the promise of the juvenile justice system to offer its offenders rehabilitation, not just punishment.
Pushing back against this trend beginning in the 2000s, the Supreme Court issued a series of opinions reminding the American public of what we have long known: children are not “miniature adults.” The Court has focused on three key differences:
First, children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking. Second, children ‘are more vulnerable to negative influences and outside pressures,’ including from their family and peers; they have limited ‘control over their own environment’ and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as ‘well formed’ as an adult’s; his traits are ‘less fixed’ and his actions less likely to be ‘evidence of irretrievable depravity.’
Children – yes that means everyone who is under 18 – are not the same as adults and therefore cannot be held to the same standards when it comes to sentencing, even for the most heinous crimes.
Yet the reaction to the recent D.C. metro attacks threatens to ignore this. A 16-year-old who shot a passenger on the Green Line on February 23 is being tried as an adult. Understandably, the heinousness of the crime would make it seem easy to conclude that such a youth is deserving of serious punishment. It is important to send the signal that such behavior is not tolerated and that violence has real impact – real victims whose lives are disrupted and sometimes destroyed. Furthermore, the immediate victim of a crime is not the only victim; the victim’s family and friends (and in this case, everyone who uses the metro) are affected. Public safety is the most basic of needs in an organized society and violence must be swiftly addressed.
Yet trying youth as adults is not the answer. If we want these young offenders to be brought to justice and make sure they don’t offend again, we have to do better than the adult system. Vincent Shiraldi, head of D.C.’s Department of Youth Rehabilitation Services for five years in the mid-2000s, recently wrote an op-ed on why – and how states that have taken the “why” to heart are safer. He highlights the dangers that youth face in adult prisons, the developmental differences between youth and adults, and the diminished likelihood of successful reintegration into society when youth leave the adult system.
In addition to and elaboration on these points, consider the following: Adult prison disrupts normal adolescent development. Most youth grow out of delinquent behavior without intervention. But even for those that need intervention, prison intervenes in the wrong direction. Prison not only puts youth in an environment that is a training ground for future crime, but because youth are also at the point of forming their identity, prison facilitates the entrenchment of self-identification with a criminal life. That makes it more likely that youth will engage in antisocial behavior and get rearrested upon release. Indeed, adult transfer has not been proven to improve public safety and in fact, has been tied to higher recidivism rates.
While the juvenile justice system is far from perfect and repeatedly fails to live up to its rehabilitative purpose, it at the very least recognizes that children are different and that means that the response to delinquency must also be different. Many youth who enter the juvenile or criminal justice systems are themselves victims of abuse. Many have suffered extensive trauma. This does not excuse their violent behavior, but it should inform the response to such behavior. Putting such youth in an environment where they are not only more likely to be victims of further abuse, but are also unlikely to receive help in processing the trauma that brought them to prison in the first place will make it harder for them to stay away from crime upon release.
Putting the super predator rhetoric to rest does not mean that public safety is sacrificed at the feet of adolescent development. What it does do is recognize that treating children as adults is counter-productive; public safety is not benefitted by putting youth in environments where they are not allowed to develop normally, where they are not given access to treatment and programming that will help them prepare for a law-abiding life, and where they are at risk of further abuse. Those youth who committed heinous crimes against passengers on the metro need to be brought to justice. But if we’re serious about public safety, the response to Mayor Bowser’s statement that “We’re very focused on crimes on Metro and we are not going to tolerate lawlessness on our public transit system” should not be a spike in juvenile transfers to adult court.
 Roper v. Simmons, 543 U.S. 551, 568 (2005) (holding death penalty for offenders whose crimes are committed when they were under the age of eighteen unconstitutional per the Eighth Amendment); Graham v. Florida, 560 U.S. 48, 74 (2010) (holding life without parole for juvenile offenders who commit non-homicide crimes unconstitutional per the Eighth Amendment); Miller v. Alabama, 132 S.Ct. 2455, 2460 (2012) (holding mandatory life without parole for juvenile homicide offenders unconstitutional per the Eighth Amendment); Montgomery v. Louisiana, 136 S.Ct. 718, 732 (2016) (holding Miller v. Alabama is retroactive).
 Miller v. Alabama, 132 S.Ct. at 2470.
 Montgomery v. Louisiana, 136 S.Ct. at 733 (quoting Miller v. Alabama, 132 S.Ct. at 2464).