ICYMI: Mandatory Minimums Harm Children

August 28, 2019
In The News

Over the last three decades, through both Democratic and Republican administrations, thousands of children have been warehoused in prisons with adults. We have usually ignored the cages these children are in because they were convicted of crimes in the adult criminal justice system. But we cannot ignore the fact that regardless of what they have done, they are still our children. Congress has a chance to enact reforms that assist children prosecuted in the adult criminal justice system by passing House Resolution 1949, one of three child sentencing reform bills led by Republican Representative Bruce Westerman of Arkansas.

An estimated 76,000 children are tried as adults every year. These children end up in a system that is poorly equipped to serve them. Children are fundamentally different from adults, which is why we do not let children vote in elections, join the military, or buy cigarettes. Young people often make bad decisions without pausing to think about the consequences. But because their brains are still developing, they also have an incredible capacity for change, and who they are when they are teenagers is certainly not who they will be for the rest of their lives. This is why the Supreme Court, in a series of rulings, has struck down the use of the death penalty for those under 18 and declared life without parole an impermissible sentence for the vast majority of children.

Yet, many children still face incredibly long sentences that are harmful to them and provide no commensurate benefit to public safety. A few decades ago, a group of academics propagated the false notion that some young people could not be rehabilitated because they were so evil and remorseless that they should be termed “superpredators.” This idea has been completely debunked. Unfortunately, the bad policies that allowed children to be easily transferred into the adult criminal justice system in the wake of the superpredator era had a lasting impact across the country. Children continue to be subject to lengthy mandatory minimum sentences when they are tried as adults, and their status as children is often not considered during sentencing.

The adult system is not the right place for children, who grow up without educational opportunities, age appropriate services, or treatment if they are placed in it. In the adult system, they face far greater risks of physical and sexual abuse, and are far more likely to commit suicide than youth committed to the juvenile justice system. Long sentences driven by mandatory minimums further compound the harm these children suffer. When we prosecute children in the adult system, where the focus is on punishment instead of on treatment, we continue failing to address why kids end up committing crimes in the first place.

The vast majority of children in the justice system are contending with early childhood trauma and unmitigated adverse childhood experiences. Study after study has shown that almost every social ill can be traced back to trauma experienced in childhood. About 90 percent of children in the juvenile justice system have experienced at least two of these adverse childhood experiences, which may include anything from abuse or neglect to having an incarcerated parent or living with a family member who abuses substances. However, the justice system rarely recognizes or understands the connection between children who have committed a criminal act and their previous exposure to trauma.

As the law stands now, the hands of judges are tied when sentencing under statutes that require harsh mandatory minimums that do not consider the capacity of children to change. Under House Resolution 1949, however, judges would be required to consider how children are fundamentally different from adults and would be authorized, but would not be required, to depart up to 35 percent from the otherwise applicable mandatory minimum sentence. Similar legislation has been championed at the state level by members of both parties, and most recently by Republican state lawmakers in Arkansas and Nevada.

American ideals emphasize the value of every human life, especially the lives of children, and the capacity in each of us to seek forgiveness and redemption. The pending federal legislation will align our current laws with these inherent values. Mercy is justice, too, and no one is more deserving of mercy when they make mistakes than our children.

Nila Bala is associate director of criminal justice and civil liberties with the R Street Institute. She served as a public defender of Baltimore City. James Dold is the founder and chief executive officer of Human Rights for Kids.

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