In terms of actual numbers, the 1996 statute changes did have a significant impact on the phenomena related to violent crimes among adolescents. The changes have attracted outspoken criticism, however. According to Berman, “among [Colorado] juveniles sentenced to life since 1998, 60 percent went to prison on felony murder convictions, compared with 24 percent of adult cases” (para. 2), a statistic which Berman contends exposes some of the flaws and imbalances not rectified by the statute changes, but caused by them. Berman also noted that between 1998 and February, 2006, 1,244 juveniles had been brought before Colorado district courts and tried as adults (para. 2). Among the 1,625 total changes made against the juveniles tried as adults, less than three percent were homicide cases, and more than one-third of the cases were non-violent robberies (para. 2). While Berman does not provide related information about the specific sentences of the juveniles who were tried as adults for the non-violent crimes, his fundamental argument is that treating juveniles as adults is a misguided policy and practice. His specific criticism is that the changes fail to achieve the state’s articulated goal of holding adolescents accountable for crimes while providing them with opportunities for rehabilitation so that recidivism can be curbed and the adolescents can go on to become productive members of society.
Another criticism of the revised policies that treat Colorado juvenile offenders as adults is that the policies result, albeit unintentionally perhaps, in the over-representation of minority youth in the criminal justice system, mirroring the same phenomenon that is viewed as problematic among adults (National Council on Crime and Delinquency 1-2). In its report on the treatment of children as adults in the criminal justice system, the National Council on Crime and Delinquency reported that while “African American youth are 16% of the adolescent population in the United States, they are 38% of the almost 100,000 youth confined in local detention and state correctional systems [and] were overrepresented in all offense categories” (2). In the United States, more than 6,000 cases involving adolescent offenders were transferred from juvenile court to district courts in 2003, and not surprisingly, the rate of African-American transfers was higher than that of Caucasian adolescents (National Council on Crime and Delinquency 2). Perhaps most alarming of all, of the more than 4,000 adolescent admissions to state Department of Corrections for adults, 58%, or every three out of four convicted and sentenced adolescents, was African-American in 2002 (National Council on Crime and Delinquency 2). While these are national figures, the National Council on Crime and Delinquency suggests that they reflect observable and measurable trends in every state.
The rates for Colorado, calculated as “the number of juvenile offenders in detention on October 22, 2003, per 100,000 juveniles age 10 through the upper age of jurisdiction,” were as follow: 1.0 Caucasian; 4.7 African American; 2.1 Latino; 1.9 Native American; and 0.7 Asian/Pacific Islander (National Council on Crime and Delinquency 24). When the rates of prison commitment by race and ethnicity are examined, the disparities are even more evident: per every 100, 000 convicted and sentenced youth offenders in Colorado, 3.6 were Caucasian, 46.1 were African American, 17.6 were Latino, 21.3 were Native American, and 7.9 were Asian/Pacific Islander (National Council on Crime and Delinquency 36). The National Council on Crime and Delinquency concludes that while this country is founded on the ideals that our legal system offers “equal justice under the law” (37), this only applies for some members of the population, namely, those who are members of privileged racial and socioeconomic groups. African American juvenile offenders are more likely to be treated harshly because of structural factors that are deeply ingrained in our society, and which affect adult and adolescent populations alike (National Council on Crime and Delinquency 37).
In addition to these criticisms, there are a number of other philosophical, moral, ethical, and social considerations that are cited in the arguments of those who are opposed to treating adolescents as adults when they commit crimes. A report by the organization Human Rights Watch on the conviction of Maryland children and adolescents as adults documents a number of negative outcomes for this particular population of study. Human Rights Watch indicated that in addition to the concerns that prison industrial complex opponents generally have regarding the living conditions of incarcerated individuals, the harmful effects for children and adolescents, particularly when they are in facilities with adults, are exacerbated exponentially, with the long-term outcome being that the adolescent becomes increasingly less receptive to rehabilitative efforts (119). Children and adolescents are particularly vulnerable to the dangers that are part and parcel of incarcerated life, however, because they have not yet finished developing cognitive, physical, or psychological structures that prepare them to analyze, integrate, and effectively respond to the stimuli and hardships that they experience in prison. Human Rights Watch offers a seemingly endless list of these hardships, including susceptibility to threatened and actualized violence (68), abuse by guards (82), susceptibility to immune disorders and other illnesses because of poor ventilation, lighting, and inadequate temperature regulation (58), and inadequate provision of the basic necessities of life, including clothing and food (64).
The Human Rights Watch report also mentions the variable of education, noting that children and adolescents who receive educational training while imprisoned typically receive sub-standard instruction that does not prepare them adequately for a return to the community and a successful reintegration into the educational institutions and professional opportunities that might be available to them (101). The problem is particularly acute, they note, for incarcerate juveniles who have learning disabilities, mental illnesses, cognitive deficits, and behavioral disorders (Human Rights Watch 105). Finally, the Human Rights Watch report explains that when these adolescents are isolated from a society that sets norms and expectations, and are placed instead in an environment that often flouts social propriety and functional relationships, adolescents become more withdrawn and dysfunctional, rather than engaged and contributory (115). Their limited contacts with the outside world prevent these adolescents, in most cases, from developing meta-cognitive structures for learning how to develop and sustain healthy relationships with themselves and with others. As a result, when these adolescents are released from prison, they are ill-prepared to negotiate their environment and, as a consequence, they are at far greater risk for recidivism (Human Rights Watch 115).
Despite these and other criticisms, the practice of treating juvenile offenders as adults is not without its proponents, however (U.S. Department of Justice 2). As the Human Rights Watch report points out, it is unfortunate but true that most Americans would rather feel that some action is being taken, however ineffective it may be, than perceive their leaders as lenient when it comes to crime (16). This is a short-term rather than a long-range view, and as such, it is short-sighted because it fails to consider potential future consequences. Nonetheless, it is a powerful rhetorical technique that allows the treatment of juvenile offenders as adults to be seen as a preferable strategy to treating juveniles as, well, children who have not yet developed adult capabilities. Citing Zimring, the Human Rights Watch describes this rhetorical argument in the following way: “To talk of a ‘coming storm’ creates a riskless environment for getting tough in advance of the future threat” (18). They continue, “If the crime rate rises, the prediction has been validated. If the crime rate does not rise, the policies that the alarmists put in place can be credited with avoiding the bloodbath. The prediction cannot be falsified, currently or ever” (Human Rights Watch 18).
The changes that began to be set in motion when former Governor Romer called together his task force to study phenomena related to juvenile crimes in the summer of 1993 have, in one sense, merely reflected nation-wide trends toward treating children and adolescents accused of crimes as adults. Adults who fear for the safety of themselves and their communities argue that children who are capable of committing “adult” crimes should be held accountable for their actions by being treated as if they are adults. This reasoning rests upon flawed logic; however, the rhetorical debates in favor of the treatment of juveniles as adults have been incredibly powerful and effective in shaping law and public policy. As a result, most of the states have spearheaded intense initiatives aimed at overhauling their juvenile justice systems, moving away from purely rehabilitative measures to those that are more punitive in nature. Although Colorado’s proposed and implemented changes were intended, at least in theory, to strike a balance between punitive accountability and the potential for rehabilitation and successful reintegration into society, the statistics documented in this paper seem to substantiate the contention that Colorado’s 1996 statute revisions have tended more towards the punitive than the rehabilitative. This seems to be particularly true for juveniles who have been tried and convicted of violent crimes. It is also true for African-Americans, who are disproportionately represented in the criminal justice system in the United States, whether as adolescents or as adults.
Unfortunately, the trend towards treating juveniles as adults in the criminal justice system does not appear to be a flash-in-the-pan fad. Rather, it is entirely consistent with the growing prison industrial complex, which profits from keeping inmates warehoused rather than providing them with opportunities for rehabilitation and more productive contributions to society. There are social, moral, political, and legal implications of this philosophical and practical position, most of which are only beginning to be understood. Ten years after the overhaul of the Colorado Children’s Code, it remains unclear just how—if at all—the treatment of juveniles as adults has resulted in increased safety in the community and whether, over the long-run, may actually put Coloradans and Americans at greater risk than they ever anticipated.
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