___________________________________________
In the
2003
____________________
people of the State of
Petitioner,
v.
Respondent.
___________________
~
____________________
Are O.C.G.A. 15-11-30.2(f) and 15-11-28(b)(2)(A)(1) Cruel and Unusual?
____________________
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
ARGUMENT
1. Should children and adolescents be processed in the adult judicial system or does it constitute cruel and unusual punishment in violation of the eighth amendment to the Constitution
A. In order to understand the current law we must look at its focus and implementation
B. Is the law concordat with the Constitution?
CONCLUSION
TABLE OF AUTHORITIES
Cases:
Harmelin v Michigan, 111 S. Ct. 2680
Solem v Helm, 463 US 277
In re Kevin Nigel Stanford, 123 S. Court 472…………………………………………………………………………
Hein v Mullin, 123 S. Ct. 1654
Dusky v US, 362 US 402 (1960)
People v Woodson, 428 U.S. at 30
Harmelin v. Michigan, 501 U.S. 957, 976 (1991)
Graham v Collins, 506 U.S. at 498-99
Coker v Georgia, 433 U.S. at 592
Stanford v. Kentucky, 492 U.S. 361, 380 (1989)
Edmund v Florida, 458 U.S. 782
Thompson v Oklahoma, 487 U.S
California v.Brown 479 U.S. 538, 545 (1987)
Bellotti v. Baird, 443 U.S. 622, 635 (1979)
Eddings v Oklahoma 455 U.S. 104
Other Authorities:
Garbarino, James, Ph D; Lost Boys; Anchor Books, 1999
Chan, Janet; The Limits of Incapacitation as a Crime Control Strategy, September, 1995
Gorski, Terence; Sentencing Children as Adults
Gorski-Cenaps Web Publications; May 23, 2001
Marshall, Eliot, The Shots Heard ‘Round the World
Science Magazine , Vol. 289, No. 5479; July 28, 2000
Podleski, Thomas; Interpretation of Caspl Article, February, 2003
Butts, Jeffrey; Juvenile Justice Deadly Distraction; San Francisco Chronicle, January 12, 2003
Guinier, Lani and Torres, Gerald; The Miner’s Canary; Harvard University Press; Cambridge, MA; 2002
Foucault, Michel, Discipline and Punish: the Birth of the Prison; Vintage Books; New York, NY; 1979
Norman J. Finkel, Capital Felony-Murder, Objective Indicia, and Community Sentiment, 32 Ariz. L. Rev. 819 (1990)
ARGUMENT
I.
SHOULD CHILDREN AND ADOLESCENTS BE PROCESSED IN THE ADULT JUDICIAL SYSTEM OR DOES IT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AMENDMENT TO THE US CONSTITUTION.
Michel Foucault (Discipline and Punish, Vintage Books, 1977, pg 293) fixes the date of the completion of the carceral system as January 22, 1840, the date of the opening of Mettray juvenile prison. Built as “cloister, prison, school, regiment”, Foucault sees this institution as “the disciplinary form at its most extreme”. The supervisors of Mettray had to be parent, teacher, military captain and religious advisor as the purpose of this facility was to rehabilitate delinquent youth.
The history of juvenile justice has its roots in Common Law, and from the beginning, youth has been seen as deserving special treatment. Even Mettray did not have adult residents, only young boys whose incarceration was seen as rehabilitative.
Prior to the turn of the 19th Century there was no provision for juvenile facilities that would focus on education, job skills, and rehabilitation and then in Chicago, 1900, the first juvenile court was created to address the unique needs of youth in the legal system.
This new system of justice, designed to assess and then meet the needs of delinquent youth encompassed child protection agencies, social workers, psychologists, police agencies, legal representatives, and the corrections system. The detained juvenile after appearing before the juvenile judge is evaluated to determine the cause of the act that has brought him/her before the court. Reports are made and a combination of programs, education, psychological counseling (when necessary) and incarceration as a last resort are employed. The mind of a child or adolescent is seen to be incapable of understanding life circumstance that would allow the making of decisions on an adult level. The juvenile system is based on rehabilitation of the delinquent and skills training to help the youth live in the world.
Beginning in the 1970’s and carrying into the 1980’s this began to change. The focus was now on accountability and community protection. Legislatures enacted tough juvenile laws that classified young criminals as adults. Partially in response to increased violent crime in urban areas and the emergence of youth gangs, the concept of ”adult time for adult crime” came to be the direction of juvenile justice, incorporating the concept that those youth convicted of serious crimes “are fully responsible and can be fairly punished as adults”. (Scott and Sternberg, Blaming Youth”, Texas Law Review )..
In 199
4 the State of Georgia enacted OCGA 15-11-30.2 and 15-11-28, that in effect ended the juvenile court system for violent youthful offenders in the state. This action which was also enacted in many states, was in response to political and media pressure that had created a new form of criminal, the young black “predator”. These young men, primarily from the inner cities came to be seen as the cause of escalating crime in America. The Juvenile Justice system was changed from one that encouraged education, job skills and social responsibility to one of retribution and incarceration in the adult prison system. This new model goes beyond public safety; it has features of what is described by sociologists as “moral panic”. (Scott and Sternberg, supra)When a suspected violent child offender is arrested in the State of Georgia the adult criminal justice system takes over. The child is processed through the adult court, which does not afford him/her the protections and options of the juvenile system. In the event that the defendant in these cases is found guilty of the charges, he or she is incarcerated in adult correctional facilities as opposed to juvenile detention or a group home.
Studies suggest that this modern juvenile justice policy is a highly politicized process, driven by distorted perceptions of the threat. (Scott and Sternberg,supra)
II
Who are these children who are being incarcerated in adult facilities, some with life sentences? The Rand Study tells us that 50% of the youths that they interviewed believe that it was up to chance whether they would be dead by age 20, 40% do not believe that the police can protect them, and 92% (approx) of those youths who have used guns “view the world as a dangerous, out-of-control place”. (Goldberg, Julie, Schwabe, William; How Youthful Offenders Perceive Gun Violence). The conclusion of the Rand Study is that deterrence would be best achieved by building on the strengths of these youths. The young men in this study were quite definite that there were no resources for them and they believe that they can succeed with help and an education. (Goldberg/Rand supra).
How did these youths find themselves in the criminal justice system? Who are they and where do they come from? Sixty percent come from the poorest and least educated socioeconomic categories; they are 40% African American, 23% Hispanic, 35% non Hispanic white, 1% Asian and 1% not members of any of the above groups. Their IQ mean is significantly lower and their Drug/Achohol use significantly higher. They are more angry/irritable, depressed/anxious with suicide ideation and thought disturbance. (MacArthur Research Network, Methods, Measures and Procedures for the Juvenile Adjudicative Competence Study, August, 2002).
The real question then needs to be asked? Are they competent legally? Adjudicative competence has to meet two criteria: ability to assist counsel and decisional competence. Assisting counsel is defined in Dusky v US, 362 US 402 (1960) where the Supreme Court set a two part test that states “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and the second element “rational as well as factual understanding of the proceedings against him”. These elements are separate because a juvenile may be able to assist counsel, but unable to make decisions regarding the defense. As part of the Dusky standard, the Supreme Court recognized the importance of decisional competence. This criteria is understanding, appreciation, reasoning, and choice. Understanding encompasses the ability to understand relevant information to a specific decision; appreciation is an ability to conceptualize the position of defendant confronted with a specific legal decision; reasoning means the capacity to rationally understand options and choice indicates the ability to choose between those options.
Researchers at Harvard Medical School, UCLA, and the National Institute of Mental Health have looked at and tracked the development of a child’s brain through adolescence to adulthood. They have found through neuroimaging technology that a normal healthy adolescent brain develops and changes.
Myelination (the neuroimaging process) has shown that: the brain matures through adolescence and is not complete until the early 20’s. The area not fully developed and refined is the prefrontal cortex which is the largest section of the brain, is the slowest to develop, and is responsible for complex thinking. It is the area of the brain that controls organization, abstract thinking, prioritize, understand and anticipate consequesnces, control impluses and adapt behaviors accordingly. To compensate for the lack of maturity of the prefrontal cortex, the adolescent brain relies on the area of the brain, the amygdala, which is responsible for instinctual behavior. The conclusion of these studies is that biologically adolescents do not have the same ability to control impulsive behavior or make sound decisions.
Therefore, the Dusky standard cannot be met.
Neurobiological studies done in New Zealand have indicated that adults incarcerated for violent crimes have a history of childhood abuse. These studies (Caspl, A., McClay, J., Moffitt, Terrie, Mill, J., Martin, J. Craig, I., Taylor, A., Poulton, R.Role of Genotype in the Cycle of Violence in Maltreated Children, Science MagazineVol. 297; August 2, 2002) indicate that abuse and neglect in early childhood “are at risk of developing antisocial personality symptoms and becoming violent offenders”, that maltreatment “increases the risk of later criminality by about 50%”. The gene that is affected is the MAOA that is located on the X chromosome, encodeing the MAOA enzyme which metabolizes neuro-transmitters such as norepinephrine, serotonin, and dopamine “rendering them inactive.” These deficiencies have been linked with aggression.
III
Science has come a long way in the last decade in the understanding of the adolescent brain, its development and ability to understand and measure criminal understanding and intent. What about the law?
There are no legal precedents to support the recent laws transferring juveniles to adult courts for adjudication and no independent scientific or sociological studies to give any credence that incarceration of juveniles in adult facilities acts as either a deterrent or has a rehabilitative effect. In fact, the Supreme Court has maintained that the Eighth Amendment requires that each incident and each defendant be looked at individually and mitigation be considered. In Woodson, 428 U.S. at 304 the Court states that "The fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender...."
The Woodson Court also noted that mandatory statutes "papered over the problem of unguided and unchecked jury discretion." See Woodson, 428 U.S. at 302;
Justice Scalia reasoned that the consistency principle has a stronger claim to constitutional status. Outside the death penalty context, however, Justice Scalia has taken a narrower view of unusualness. He has argued, for example, that a punishment cannot be considered constitutionally "unusual" as long as it is a
punishment that has been traditionally used, or that was in use at the time the Eighth Amendment was adopted. See Harmelin v. Michigan, 501 U.S. 957, 976 (1991) (plurality opinion) (Scalia, J., announcing the decision of the Court). Justice Thomas is sympathetic to Justice Scalia's position. See Graham, 506 U.S. at 498-99 (Thomas, J., concurring).Second, although the proportionality doctrine has long been "informed by objective factors to the maximum possible extent," Coker, 433 U.S. at 592, more recent articulations have injected a heavier dose of positive indicia into the doctrine, so that it now approximates the "evolving standards" doctrine, see infra note 80. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 380 (1989) (noting that "the two methodologies blend into one another"); Norman J. Finkel, Capital Felony-Murder, Objective Indicia, and Community Sentiment, 32 Ariz. L. Rev. 819 (1990) (noting the importance of "community sentiment" in both the "evolving standards" and proportionality doctrines). If the proportionality doctrine is to retain any independent vitality, however, the "Constitution contemplates that in the end [the Court's] own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." Coker, 433 U.S. at 597, accord Enmund, 458 U.S. at 797; Thompson, 487 U.S. at 833; Stanford, 492 U.S. at 392 (Brennan, J., dissenting); cf. Harmelin, 501 U.S. at 986 (plurality opinion) (Scalia, J.) ("The real function of a constitutional proportionality principle, if it exists, is to enable judges to evaluate a penalty that some assemblage of men and women has considered proportionate - and to say that it is not.").
California v.Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring).There is also broad agreement on the proposition that adolescents, as a class, are less mature and responsible than adults. But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly "during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment" expected of adults. Bellotti v. Baird, 443 U.S. 622, 635 (1979).
To add further emphasis to the special mitigating force of youth, Justice Powell quoted the following passage from the 1978 Report of the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders:
"Adolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment, because adolescents may have less capacity to control their conduct, and to think in long-range terms, than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth." 455 U.S. at 115 , n. 11. [p*835]. Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult.
CONCLUSION
Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct, while, at the same time, he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.
The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.