Why trying kids as adults is unjust

James Alan Fox

March 16, 2015

At least for now, 12-year-old Morgan Geyser and 13-year-old Anissa Weier of Waukesha, Wis., are facing prosecution as adults for the near fatal stabbing of their sixth grade classmate Payton Leutner following a birthday celebratory sleepover.

The two girls reportedly acted out of fear that the fictional villain Slender Man would harm them or their families unless they complied with his sacrificial demand.

According to Wisconsin law, anyone age 10 or over who is charged with first-degree homicide, including attempts, must be tried in adult criminal court. The girls' only hope, one that in today's political climate may be slimmer than Slender Man himself, is that the judge will reduce the charge to second-degree attempted homicide, thereby allowing the case to be moved to juvenile court.

Wisconsin is hardly unique in its handling of youthful offenders. Some states leave to juvenile court judges the decision of transferring minors to the adult system, while others give prosecutors discretion over where a case will be tried. Still other states, including Wisconsin, stipulate that juveniles charged with certain offenses will automatically be tried as an adult, although in some situations a criminal court judge can return jurisdiction to juvenile court, a so-called reverse transfer.

In recent years, the U.S. Supreme Court has ruled on several occasions to eliminate certain draconian punishments for juvenile offenders. Yet, the matter of trial jurisdiction is just as critical.

There are many drawbacks to trying kids as adults, and few advantages. The juvenile justice system is predicated on the principle of rehabilitation, for which youngsters have greater capacity than their older counterparts. By contrast, criminal courts are far more punitive and far less concerned with what might be in the best interests of a young defendant. Scientific studies have demonstrated that youngsters prosecuted and punished as adults recidivate at a higher rate than those adjudicated in the juvenile justice system for similar offenses.

If juvenile court punishments are insufficient to achieve justice, then they should be lengthened. But pretending that teens are just smaller versions of adults runs contrary to what we know about neurological and social development. Committing a crime ordered by some mythical miscreant reflects the kind of immature thinking that is typical of youngsters. Although they may offend like adults, they reason like children.

The most prominent characteristic separating youth violence from adult offending is the especially senseless nature of what motivates juveniles to murder and maim others. Killing to appease some imaginary figure is absurd to most people, but youngsters who sometimes have difficulty distinguishing fantasy from reality can see things differently, particularly if reinforced by a like-minded friend.

In a sense, some teenagers can be loosely characterized as "temporary sociopaths." Insensitive to risk, they think almost exclusively about the short-term. Adolescents have limited empathy for others and limited ability to assess the long-term impact of their behavior on their own future, much less that of their victims.

At same time, the response of accomplices can be all important. Peer approval is a powerful reward, while rejection can seem like a fate worse than death. As in the Wisconsin case, teenagers sometimes perpetrate despicable crimes, more to express loyalty to their partner in crime than to express any disdain for the victim.

The late-'80s and early-'90s surge in youth violence prompted rapid change in state laws nationwide, widening the range of offenses and lowering the minimum age when transfer to adult court is possible, if not mandatory. The steady decline in violence over past 20 years, however, has done little to limit the juvenile-to-adult jurisdictional pipeline. Many legislators, worried about voter reaction were they to be viewed as soft on crime, hesitate to roll back tough-sounding policies.

In order to realize major reform of transfer laws in this country, it will likely take the politically insulated U.S. Supreme Court to do the right thing, just as it has in rethinking juvenile sentencing rules. In the meantime, here's hoping that the Wisconsin girls will be adjudicated in juvenile court and spared the full weight of a felony prosecution.

James Alan Fox is the Lipman Professor of Criminology, Law and Public Policy at Northeastern University and a member of the USA TODAY Board of Contributors.