HAVING IT BOTH WAYS: Getting Flexible With, Instead Of Just Tough On, Juvenile Crime

Two weeks ago, Lionel Tate was convicted of first degree murder in the beating death of six-year-old Tiffany Eunick. Florida law now requires that he be imprisoned for life with no possibility of parole. It may turn out to be one of the longest prison terms ever served: Lionel Tate is only thirteen years old.

In the last ten years, America has gotten tough on juvenile crime. The age at which children may be tried as adults has been lowered in nearly every state; in some, like Alaska, there are no age restrictions at all. Unfortunately, trying juveniles as adults has been treated as an end in itself: if Lionel Tate gets a grownup trial, he can get a grownup sentence, and we can be rid of him.

But getting tough is only a step toward what should be the real goal: getting flexible. Trying juveniles as adults allows us to begin by treating a juvenile convict like a juvenile, see if she's amenable to rehabilitation, and then sentence her as an adult if she's not. This approach — called "blended sentencing" in the few states, such as Texas, that are trying it — is the real justification for treating kids like adults.

Complementing these psychological and moral truths is a statistical one: indiscriminately treating juvenile criminals like adults doesn't seem to work. In the April 1999 issue of Corrections Today, University of Virginia Law School professor Richard Redding surveyed the available studies and reported that juveniles sent through the adult system get released sooner, and re-offend faster and in greater numbers, than equivalent juveniles sent through the juvenile system. This is so because juries and judges are more lenient with young defendants, and because adult jails substitute experienced predators for whatever nurturing influences — family, friends, schools, churches — previously existed in a youth's life.

If treating dangerous kids like adults doesn't work, what does? To answer the question, we need to recognize that the debate about whether to try juveniles as adults blurs three separate but related questions: What should we do with juveniles who are awaiting trial? How should we try them? And what should we do with juveniles who are convicted?

The last question is the most important, and the answer to it dictates the answer to the other two. Juveniles who are convicted of serious violent crimes should be sentenced flexibly, in a way that allows us to see if the juvenile system works, and act accordingly when it doesn't. In Texas, Missouri, Connecticut, and a few other states, this is usually called "blended" sentencing.

Using the blended approach, a convicted juvenile is initially sent to a juvenile facility, and given the benefit of whatever rehabilitation programs — counseling, schooling, strict adult supervision — that the state affords. He may get a provisional adult sentence, or not, but either way, no adult sentence is imposed — yet. The court monitors the juvenile, and gets regular reports on how he is responding to programs designed to help him. As the child nears eighteen, the court reviews his progress.

If the juvenile is responding well, the court can leave him in the juvenile system, carefully control his reentry into society, and continue to supervise him until he's 21. But if a murderous 15 year-old has simply hardened into a murderous 18 year-old, the court can impose an adult sentence, and send the defendant to an adult prison.

This is a vast improvement over the system in most states, in which some juveniles must be tried as adults (depending on their age and their crime) and others can be at the discretion of judges or prosecutors. None of these approaches makes sense. If we are going to bother with having a juvenile justice system, why guess beforehand as to whether a given juvenile will benefit from it? Far better to put the child into the system, and see if it actually works.

Adopting such a flexible system of sentencing requires that we try most truly predatory juveniles as adults — that is, try their cases in front of juries in open courtrooms where the rules of procedure and evidence are followed. The reason that juveniles are currently tried in closed courtrooms, in front of judges and not juries, is that no matter what their sentence, they have to be released at 18 or 21. But to preserve a judge's option to sentence a child as an adult, the child must be tried with his full panoply of constitutional rights protected.

Finally, flexible sentencing means housing kids with other kids before trial. If we are going to hold out the hope of rehabilitation for children, then we have to take that hope seriously until it is disappointed. Sending a child to an adult jail to await trial prejudges the matter and cuts the child off, potentially for months, from any nurturing influence.

For Tiffany Eunick and her family, all we can do is weep. But we must not let that tragedy eclipse another: we are about to write off the life of a thirteen-year-old boy. We will never know if Lionel Tate would have grown into a man or a monster. But at little risk to society's safety, we can try to find out. And since we can, we ought to.