A too-harsh law on juvenile murder


By James Alan Fox, 1/25/2007


IN THE FACE of tragedy, we should generally avoid responses that make matters worse. Sadly, the likely outcome of last week's tragic slaying at Lincoln-Sudbury Regional High School may be one of lose-lose.

Emerging from the bathroom turned bloody crime scene, 16-year-old sophomore John Odgren tearfully expressed hope that freshman James Alenson would not die from his multiple stab wounds. It is doubtful that the alleged assailant had any clue of the full ramifications of the attack -- even if premeditated.

Undoubtedly, Odgren understood the gravity of his actions and that he certainly was in deep trouble; but I suspect he was unaware, at least not until his arraignment later that day, that he was facing a mandatory life sentence if convicted.

Besides his struggle with Asperger's syndrome and hyperactivity, Odgren was reportedly enamored of knives and bombs. His fixation on destruction may have in part resulted from his medical condition, although not to the point where his actions would be legally excusable. Regardless of his dark passion, John Odgren hardly seems the ruthless and incorrigible monster envisioned by state lawmakers who crafted the existing "tough-on-crime" juvenile murder statute.

Codified in 1996, the law mandates that offenders as young as 14 charged with murder are automatically to be tried as adults -- no wiggle room for special or mitigating circumstances. The bill was fashioned in a climate of concern over unprecedented levels of youth violence in the early 1990s and the popularized notion of "superpredators" terrorizing our streets.

It also passed during an emotional groundswell in the wake of the high-profile, exceptionally brutal murder of a Somerville woman by her 15-year-old neighbor, Eddie O'Brien. A juvenile court judge initially determined that O'Brien, a first offender, should be adjudicated as a juvenile under the assumption that he was amenable to treatment. Outraged, and possibly thinking ahead about a future run for governor, then district attorney Tom Reilly appealed the ruling, succeeding in having the case switched to a more law-and-order jurist who transferred O'Brien to adult court. As usual, laws designed with worst-case thinking are ill-conceived when applied to lesser cases like Odgren. Of course, the loss to Alenson's family is not any less because of the defendant's condition and background, but he hardly qualifies as a "super predator" by any stretch of the imagination.

Clearly, juveniles should not be able to hide behind a shield of youthfulness, if they've demonstrated a persistent history of violence. But Odgren showed no such pattern. Though his fascination with violence may have been worthy of concern, at least until now fascination with violence is not against the law.

What the prevailing juvenile murder statute overlooks is that teen killers are simply not adults. They may walk, talk, and even kill like adults, but they think and reason like the immature youngsters they are. Recent research on brain development confirms that adolescents do not have the same capacity for judgment as do adults.

Advocates of "adult time for adult crime" contend that such sanctions will force kids to think twice. Yet, they frequently act without thinking even once. Typically impulsive, impatient, and imprudent, juveniles often kill over trivial reasons. Few people wish to bring back the days when young killers were routinely released at age 21. But the undesirable choice between too little and too much punishment was actually resolved in 1991, when the juvenile homicide penalty in Massachusetts was lengthened to 20 years incarceration -- that is, before spiraling rates of youth violence and the O'Brien case prompted the legislative upgrade to the adult penalty, life in prison.

It's time to rethink our rigid juvenile murder law and allow lesser penalties for perpetrators who, by virtue of emotional and cognitive immaturity, are less responsible. That is, less responsible, rather than not responsible: Adolescents know that killing is wrong, though they may not fully grasp the pain they can cause through their actions.

Ten years ago, the state Legislature, in passing the existing statute, wanted juveniles to have consequences for their violent acts. Yet, I suspect that the lawmakers themselves were not fully aware of the consequences of their legislative act. Hopefully, the Odgren case will demonstrate that flexibility and discretion are goals to achieve rather than loopholes to be eliminated.

James Alan Fox is the Lipman Family Professor of Criminal Justice at Northeastern University .