No Second Chances Or No Chance At All

No Second Chances or No Chances At All

On Monday, March 22, Indiana legislatures conducted the second reading of a bill that would restore prosecutorial discretion to try 16 and 17-year-old children in adult court for their second gun crime.[1]  Representative Wendy McNamara authored the bill in response to an Indiana Supreme Court decision that cast doubt on the jurisdiction of the juvenile court to hear cases in which teenagers are charged with dangerous possession of a firearm.[2]  According to representative McNamara, the bill merely reinforces the status quo by “putting back into law what has currently been in practice for as long as I can know. . . .”  At first blush, it might seem hard to argue with Committee Chairman Senator Mike Young’s assertion that “kids with guns do dangerous things, and we gave them one break, and on the second one we’re going to send them to adult court.”  Such an assertion seems to follow a common belief held by many that kids who do adult crimes should do adult time.

The problem is this is not an adult crime.  In fact, Indiana’s dangerous possession statute “is clear and applies only to children; an adult cannot commit dangerous possession of a firearm.”[3] If IN HB1256 passes, it would be just another example of criminalizing youth, prioritizing the perception of public safety over education and development.  What’s more, another piece of legislation, IN HB 1369, which passed the House by 65-31 vote, would eliminate the license requirement to carry a handgun in Indiana despite the $5.3 million per year the license raises and fears the bill would make police officers and the general public less safe.[4]

So, what’s really going on here?  Does a dangerous possession statute like Indiana’s betray a presumption of dangerousness in youth?  Is the solution to remove kids from their dangerous homes and place them in prisons?  Will waiving a teen gun offender to adult court amount to a denial of services and individualized treatment by placing them on probation or community correction?  And why in the world would we subject a child to the adult criminal justice system for conduct that is not criminal behavior? As I ponder these questions, I can’t help but think this is just another example of the system working as it was designed to, an example of what Alec Karakatsanis would characterize as people in power making very important choices about what is and is not a crime for very particular racial and political purposes.[5]

In my view, it is absurd to deprive a person of their childhood because they made the same mistake twice – which in and of itself seems to indicate a lack of mature reasoning.  It is absurd to “discipline” teenagers in a way that does not teach them about the rights and responsibilities they will have as adults.  But this seems to be the criminal “justice” system working as it was designed.  When 83% of the young offenders being sent directly to adult court on firearms charges are children of color, it seems clear that proponents of the bill are indeed just trying to maintain the status quo of controlling poor people and people of color.  Because, while a “lawful citizen in the state of Indiana” should have the right to protect themselves without state interference, children – particularly children of color – are not afforded the same right.  Imagine, for instance, white, female, country singer, Miranda Lambert said that after receiving threats, she carries a weapon for self-protection.[6]  That is, no doubt, her right and many might celebrate her for doing so.  However, children who grow up in marginalized communities, which inevitably become designated as “high crime areas” to justify infringements on other constitutional rights such as the 4th Amendment, may start carrying a gun for protection.  Driven by the same trauma as a “lawful citizen,” these children are thrown in jail, labeled criminals, and deprived of hope for the future.

Although I have focused on Indiana, this is a nationwide problem.  For example, truancy laws across the country subject children to the “justice” system for conduct that would not be criminal if committed by an adult.  And while these laws may be enforced under the guise of public health and safety, in reality, it is just another way for the legal system to marginalize and subjugate children, preparing them to be disenfranchised and despondent adults.

[1] https://fox59.com/news/politics/indiana-senate-to-debate-bill-to-send-more-juveniles-to-adult-court/

[2] K.C.G. v. State, 156 N.E.3d 1281, 1282 (Ind. 2020)

[3] Id. at 1283.

[4] https://www.indystar.com/story/news/politics/2021/02/22/indiana-general-assembly-house-votes-eliminate-handgun-license/6765355002/

[5] https://www.texasobserver.org/alec-karakatsanis-usual-cruelty-criminal-justice-reform/

[6] https://tasteofcountry.com/miranda-lambert-admits-she-carries-a-weapon-for-protection/

 

It’s the little things.

It’s the little things. . .

Many largescale changes must be made to the juvenile justice system.  From limiting law enforcement’s jurisdiction over children to diverting funds to community resources to shutting down detention facilities, there is much that can be done at a high level.  These measures recognize the growing body of science emphasizing the difference between criminal and adolescent behavior while recommending family-oriented and least restrictive models of discipline.  If that is the purpose, what can stakeholders who have direct and immediate contact with children in conflict with the law do now while we wait for legislation to catch up with science?  Could something as simple as access to a radio help?

It seems hard to overstate the importance of music to an adolescent.  Listening to music at a given moment changes the situation, which is an extremely powerful tool, particularly for a young person with limited control over their lives.  Listening to “music (in its different genres, behaviors, and contexts…) [allows adolescents] to capitalize, exercise, and regain a sense of agency.”[1]  When so much of a child’s life is dictated by schedules imposed on them by parents, school administrators, state officials, and others who are generally not accountable to the child, there is precious little with which an adolescent can experiment in their “trajectory toward their empowerment as agents who can create and control several aspects of their own world.”[2] And so, in listening to music, an adolescent can explore their own identity, connect with peers, and regulate mood by building a world “in which they can shout and be silly, [be] fragile and in search of themselves, and make their own, personal, choices.”[3]

When I started teaching Street Law to students in a residential probation facility, one of the first exercises we engaged in was developing class rules and incentives together.  Though I intended the exercise to encourage a spirited back and forth of negotiation, I was surprised by the enthusiasm.  They seemed genuinely excited to have the opportunity to exercise some agency over their environment and the thing they advocated for most was playing music at the beginning of class.  When I asked them to justify getting to listen to music before class as opposed to afterward as a reward, they explained listening to music can help process emotions, reduce anxiety, and improve performance in school.  They even self-imposed limits on the music videos to avoid gratuitous sexual or violent imagery.  Commending them on a job well done, I collected requested songs for approval by probation staff.  It was at that point that a student asked me why it needed to get approved, why they couldn’t just listen to the music they wanted to listen to.  It was striking that of all the highly restricted conditions they were subject to, limitations on music might have been among the most immediately hurtful.  Eventually, the music was approved (so long as it was a radio edit) and the students bought into the class.  But the fear of being judged on their musical tastes and having it censored was an emotionally fraught experience.

That interaction was among the most impactful of my teaching experience so far and it’s been the hardest to relate.  People seem, generally, to accept the idea that the content children consume ought to be regulated.  But, when it comes to music and the teenager, I’m not so certain.  It feels too much like reading a diary or otherwise depriving them of judgment-free self-exploration.  This seems especially cruel and counterproductive when, for better or worse, so many other restrictions on expression and experimentation apply.

Science suggests when a listener has so little control over their external environment, “the music itself becomes important to them; they feel the need for the ‘auditory bubble.’. . . to cope . . . [and] to improve their internal mood to deal with their lack of control over the external situation.”[4] One researcher calls it the “musically extended mind” that enhances internal abilities and affords possibilities for action at the affective, physical, and social levels.[5] Nevertheless, some would argue that kids these days aren’t listening to music with good moral values and with bad language.  Music just isn’t the same as when we were kids.  Of course not!  Music is ephemeral.  But that might be why it is so crucial, particularly for children who are learning how to navigate their time and place.  Furthermore, I’d like to share a point raised by my students.  They knew some words might be “inappropriate” and shouldn’t be said in polite company, but “that’s not the point,” they said.  The songs are about “flexing” or “telling it like it is.” In other words, it’s about “misery sharing”[6] or building confidence by listening to lyrics about overcoming significant obstacles.  To say that their music is inappropriate might sound to them like “your feelings are inappropriate” or otherwise discouraging having confidence, pride, or optimism.

But what about those kids that committed troubling acts of violence, those kids that our system would have removed from their communities to be rehabilitated?  Should they be allowed to listen to music that some may perceive as problematic?  Perhaps a level of censorship is appropriate in certain circumstances.  But music, like anything else, is uniquely understood through the listener’s context and history that influences their ability to identify and understand the musical, social, and political elements contained within.[7]  And so, I am less inclined to censor music based on sensibilities.  Perhaps, instead, it is more appropriate to encourage dialogue through sharing music while permitting solitary listening.  I would speculate that these small gestures of empathy and understanding might make the discipline that much more effective and rehabilitation more likely.[8]

 

 

[1] Saarikallio SH, Randall WM and Baltazar M (2020) Music Listening for Supporting Adolescents’ Sense of Agency in Daily Life. Front. Psychol. 10:2911. doi: 10.3389/fpsyg.2019.02911

[2] Id.

[3] Id.

[4] Id.

[5] Krueger, J. (2018). “Music as affective scaffolding,” in Music and Consciousness II: Philosophical, Psychological, and Cultural Perspectives, eds D. Clarke, R. Herbert, and E. Clarke, (Oxford: Oxford University Press).

[6] Skånland, M. S. (2013). Everyday music listening and affect regulation: the role of MP3 players. Int. J. Qual. Stud. Health Well-Being 8:20595. doi: 10.3402/qhw.v8i0.20595

[7] Christopher M. Ortivez, Understanding Rap Music from the Listener’s Perspective (1997) (M.A. Theses, University of Colorado Denver) (Auraria Library).

[8] P Nieman, S Shea, Canadian Paediatric Society, Community Paediatrics Committee, Effective discipline for children, Paediatrics & Child Health, Volume 9, Issue 1, January 2004, Pages 37–41, https://doi.org/10.1093/pch/9.1.37 (“To be effective, discipline needs to be: 1) given by an adult with an affective bond to the child; 2) consistent, close to the behaviour needing change; 3) perceived as “fair” by the child; 4) developmentally and temperamentally appropriate; and 5) self-enhancing, i.e., ultimately leading to self-discipline.”)

 

Kids are Kids

Kids act imprudently when they think social capital is to be gained. It is a normal part of the adolescent experience and essential to their growth.  However, a child’s experience will vary drastically based on implicit biases in society and the youth justice system.

 

Consider, for instance, a 16-year-old boy who sat idly by and watched his friends take a delivery truck for a joyride and end up crashing it into a parked car.  He pleads guilty to larceny in exchange for probation and “youthful offender” status.  Unfortunately, this special status is used to deny bail for an alleged probation violation when he is later wrongfully accused of a violent felony. This denial leads to three years at Rikers, awaiting a trial that would never happen because, as he maintained his innocence, the State did not have evidence of his guilt. The State ultimately dismisses his case. His family, particularly his mother, was at every one of his 36 court appearances to show support and ask when her son can come home.  The court, however, is content to keep him detained on a technicality until the State decides to dismiss the case. Regretfully, the trauma endured while in jail at the hands of others interred there and the guards that were supposed to look after him was too much for the young man when he was finally released.  Having spent his formative years in an infamously abusive detention facility, he was not the same when he reintegrated into society and he soon thereafter committed suicide after several bouts in different mental health facilities.

 

Alternatively, consider a 17-year-old boy who wants to impress a group he idolizes by showing up to one of their events, strapped with an illegally purchased weapon, to show off that he is willing to engage in dangerous and criminal activity to be accepted by them. Unfortunately, the boy unexpectedly finds himself in an overwhelming situation and ends up killing two people and injuring a third. He does not deny doing so but claims he had to protect himself.  However, he finds that society recognizes his predicament. Thanks to crowdfunding and deep pocket donors, he is able to be released on bail despite a prohibitively high cost, while the State determines whether there is sufficient evidence to take him to trial or if his defense is reasonable.

 

The commonality between the two scenarios is both intuitive and backed by hard science.  They both involve youths that are on relatively equal footing developmentally. Generally looking at the physiological development of a 16- to 17-year-old’s brain, we know the neural connections that permit more complex brain functions are still forming for adolescents. The first of these functions is the socio-emotional system, which results in increased sensation-seeking, emotional arousal, and attentiveness to social information.  The cognitive control system responsible for regulating these impulses develops more gradually until well into their mid-twenties.[i] As such, it’s important to remember that 17-year-olds demonstrate significantly less impulse control than 22- to 25-year-olds.[ii] And I don’t know about you, but when I was 22, I was still making some pretty impulsive socio-emotional decisions!

 

Despite their similarities, the children were treated very differently. The reasoning between the two incongruent outcomes is probably not hard to guess. The former scenario describes the plight of Kalief Browder, a 16-year-old Black child who was held at Rikers Island without bail for three years. The latter is that of Kyle Rittenhouse, a 17-year-old White child, who, last week, posted $2 million bail despite several crowdfunding sites removing fundraisers created in his support. However, some deep pocket donors contributed to a fund set up by Kyle’s attorneys. Regardless of how one feels about the protests that filled so much of the 2020 news cycle, it is important to reflect on disparate impact of the criminal and youth justice system on different communities.

 

Kalief was a kid when locked up at Rikers for a crime he did not commit. Kyle is still a kid.  Both deserved to be treated like one.  It’s okay to recognize that Kyle does not carry the same level of culpability as a fully developed adult. It’s ok that Kyle be returned to his family. It is good for him, and any child in conflict with the law, to know that their family, friends, and community are there to support them, to foster growth, and that the justice system will be fair to all youth.

 

I am not surprised that a 17-year-old boy, who idolized police and military – though disqualified from service in the Marine Corps – crossed state lines with an illegally purchased firearm to “supplement” an overwhelmed police presence. I think he was just playing police. That is not to say that Kyle does not have a right to protest, counter-protest, or participate in political discourse. Like all children, he should be encouraged to advocate for what he believes in. But, unfortunately, Kyle found himself in way over his head, and the socio-emotional feedback from his peers and his idols led to devastating and deadly results. But isn’t that most youth crime?  Couldn’t you say the same thing for Kalief? Or any child allegedly involved in gang activity? I do not mean to equate law enforcement to criminal enterprise.  But in the eyes of a child seeking approval from society, I think it’s a distinction they may not fully appreciate.

 

What is true though for Kyle is true for all children caught up in the criminal justice system.  And, statistically speaking, most of them are of color.  In fact, though 14% of children in the U.S. are Black, 42% of boys and 35% of girls in juvenile facilities are Black. There are so many other children like Kalief who have not received bail leading up to trial because of a presumption of guilt based on the color of their skin.  Or worse, they never even made it to the detention facility because they were killed by the police that are supposed to protect them.  Not just now, but for decades.  For as long as our county has existed.  Don’t they have a right to be angry? To walk the streets with other likeminded people to demand justice?  When they become emotionally overwhelmed due to the circumstances, shouldn’t they be given a benefit of the doubt as well?

 

We need to remember that there are so many children sitting in detention centers for less devastating offenses that also deserve to know that society cares about them.  There are also young supporters of Black Lives Matter who were swept up off the streets by state and federal law enforcement officers for practicing civil disobedience or maybe vandalizing property.  I get upset when I think about Kyle Rittenhouse because I think about the countless children who aren’t going to be home tonight, who spent Thanksgiving separated from their families, and will likely not be with them for the winter holidays.  Like Kyle, they should not be the object of our disdain.  Rather, they deserve to be home with their loved ones and participate in a society that values them and recognizes that they are still growing.

[i] See Michael N. Tennison & Amanda C. Pustilnik, “and If Your Friends Jumped Off A Bridge, Would You Do It Too? “: How Developmental Neuroscience Can Inform Legal Regimes Governing Adolescents, 12 Ind. Health L. Rev. 533, 558 (2015).

[ii] Laurence Steinberg et al., Age Differences in Sensation-Seeking and Impulsivity as Indexed by Behavior and Self-Report: Evidence for a Dual Systems Model, 44 DEVELOPMENTAL PSYCHOL. 1764 (2008).