When a 6-year-old boy fatally shot his first-grade classmate this week in a Flint, Mich., school library, the nation was once again rocked by a shocking act of violence committed by a troubled child.
But in the grim, familiar litany of public recrimination -- neglectful parents, overcrowded schools, calloused kids -- there was one surprise: The county prosecutor said right away that the child should not be charged with the crime. "He is a victim in many ways," prosecutor Arthur Busch told the press. "We need to put our arms around him and love him."
Love from prosecutors toward young offenders is scarce these days. It was in Michigan where Nathaniel Abraham was convicted as an adult in the murder, at age 11, of a stranger, sitting in the courtroom at a defense table where his feet couldn't touch the floor. In Northern California, just four years ago, prosecutors in Richmond charged a 6-year-old with attempted murder in the nearly fatal beating of an infant neighbor. Ultimately, the D.A. dropped the charges on grounds that the disturbed boy could not stand trial, but he remains the youngest child ever charged with so serious a crime.
And on the California ballot next week is Proposition 21, a ballot initiative that would make sentences for juvenile offenders over the age of 14 harsher, by giving prosecutors the power to move cases classified as "violent" felonies (such as first degree murder and rape) into adult criminal court. It would also mandate life in prison for teens convicted of "gang-related" home invasion robberies, car-jackings and drive-by shootings.
The proposition reflects the national pendulum swing that has led to kids like Abraham being tried as adults, and many states routinely putting teens in prison with adult criminals. But the pendulum may be swinging back. Polls are showing Prop. 21 is in trouble with voters. In early February, 41 percent of state voters in a Field poll had decided against it, with only 24 percent in favor and 35 undecided.
A more recent poll found somewhat more support for the measure, but it varied enormously depending on how the pollster described the initiative. Even when pollsters used language that focused on stiff punishment for gangs, only 55 percent were in favor. The lack of support for Prop. 21 might indicate that voters are having second thoughts about the lock 'em up approach to crime when applied to kids.
Prop. 21 certainly has a respectable pedigree. It is the brainchild of former California Gov. Pete Wilson, a Republican, and it has the endorsement of current Democratic Gov. Gray Davis and state law enforcement. Wilson was key in passing California's famous "three-strikes-and-you're-out" law, which automatically sentenced third-time felons to 25-years-to-life in prison. A whopping 72 percent of voters approved the three-strikes law.
Compared to three strikes, support for Prop. 21 is relatively low. If it fails, it will be the first major anti-crime initiative to be rejected by California voters. And just as Prop. 13, the property-tax-cutting initiative of 1978 heralded a national tax revolt, it's possible that voters' indifference to Prop. 21 could reflect a weariness with expensive, get-tough solutions to crime -- especially when applied to kids.
"If it gets enough media attention, this could be the first beatable get-tough" proposition, says crime expert Franklin Zimring of the University of California at Berkeley. "The people who usually sit on the sidelines in these kinds of get-tough campaigns" -- including teachers unions, the PTA and the League of Women Voters -- have come out publicly against the initiative, he notes. "There are genuine limits to the gullibility of the California initiative voter that Prop. 21 seems to be ignoring."
One explanation for Prop. 21's troubles is the cost to taxpayers: $300 million a year, plus one-time costs of $750 million. The money would go toward court costs and the construction of more prisons.
The proposition covers a lot of ground. It unseals the records of minors who have committed certain crimes. It would restrict the authority of parole officials to decide whether juveniles should be held or released before a court hearing. Especially controversial is the new class of "gang-related" offenses. For instance, it would add years to offenses found to be gang-related, make gang recruitment a serious crime, expand the use of wiretaps against suspected gang members and force people convicted of gang-related offenses to register with local authorities. Some groups say the definition of gangs is too loose and unfairly targets minorities.
The California Youth Authority, California Juvenile Court Judges and Chief Probation Officers of California are against it. And the ambivalence of district attorneys suggests prosecutors might not even want the additional power. The state D.A.s' association is sponsoring Prop. 21. But in Los Angeles, where the anti-gang provisions would be likely to have the most impact, D.A. Gil Garcetti has declined to take a position on it. According to a spokeswoman for his office, "There are things he likes about it and things he doesn't like about it." The D.A. of traditionally conservative San Diego has also declined to take a position, offering the same explanation.
Victims' rights advocates are among the initiative's strongest supporters. Maggie Elvey is the assistant director of Crime Victims United, and a major proponent of Prop. 21. (Elvey's husband was murdered seven years ago, and she has publicly grieved that his teenage killer, who was convicted as a juvenile, will be out of jail with a sealed record at age 25.) In Elvey's mind, Prop. 21 will act as a deterrent, teaching kids without a strong sense of right and wrong that there are real consequences for their actions.
She complains that groups such as the ACLU are using "scare tactics," giving kids misinformation about the provisions of the bill and how it will be used. "We are not trying to put all of the young ones in prison with the big boys," she says. Juveniles in adult facilities are housed separately from adult criminals, according to Wilson and other proponents. "They have all of these kids believing that we're going to pick them up if there's three in the crowd dressed strange. That's a little unconstitutional. I don't think that's going to happen."
Even Elvey admits, though, that the gang-related provisions of Prop. 21 are open to a lot of interpretation by police and prosecutors. "I don't know how they're going to tell if they're gangs. There are parts of this thing that are a little crazy," she says, "but that's what happens when you can't get the legislators to do good legislation and the public has to come along and write up this kind of thing."
Juvenile judges have the ability to try kids 14 and older as adults, and in cases of rape and murder, frequently do. But Davis argues that Prop. 21 streamlines the system, mandating adult trials for certain offenses and enabling prosecutors to move the cases to adult court, without judicial review.
As of 1997, 15 states already had laws on the books that allowed prosecutors to file some cases directly to adult court. According to Justice Department statistics released this week, the number of people under 18 sent to adult state prisons more than doubled between 1985 and 1997, serving an average of five to eight years for such crimes as rape, robbery and drugs. The total number is still proportionally small -- 7,400 teens in adult jails in 97.
But the increase comes at a time when the number of crimes committed by teens is going way down. The 1998 Justice Department report says the juvenile violent crime arrest rate is at its lowest since 1987. And it comes despite unanimous research that shows serving time in a state facility is much more likely to lead to repeat offenses than juvenile facilities. Wilson calls the juvenile system "outmoded," but it remains the only correctional model that is geared heavily toward rehabilitation.
Even some conservatives are uncomfortable with the measure.
"Frankly, I don't like this proposition," says Michael Warder, vice president of the Claremont Institute, a conservative public policy research organization in Sacramento. "I'm generally a tough, law-and-order kind of guy. But I think this goes too far. For the full weight and force of the state of California to come down on a 14-year-old, I think that's a little bit over the top."
Warder is generally in favor of the "three-strikes" law because it puts away "incorrigible" repeat felons. And he believes that punishment is just as important a part of the justice system as deterrence and rehabilitation.
But Prop. 21 makes him uneasy, because it takes discretion over sentencing out of the hands of judges. "It gives the state greater and greater power and I don't know what the checks would be on that power." Warder also believes this power marks government interference in families. "This initiative, in a way, would put aside the obligations of the parents and have the state intervene directly in family relations."
As for the gang provisions, even Warder acknowledges that Prop. 21 would disproportionately affect poor kids and ethnic minorities. "I don't generally make this kind of argument, because personally I find it repugnant, but nonetheless ... I think there is disparate impact on the basis of race and economic status. I'm not a big fan of gangs, but on the other hand you have to look at the consequences of this kind of law, and who does it seem to be targeting."
National numbers reflect this as well: While there are few statistics on the class of juvenile offenders, according to the Department of Justice, 58 percent of teenagers entering state prisons were African-American, though they make up only 12 percent of the state's population.
And not all victims rights groups are in favor of Prop. 21. Mark Klaas became one of California's best known advocates of victims rights, after his 12-year-old daughter, Polly, was killed by a repeat offender. Klaas has supported measures to make sex offenders register with local officials after they've served their time. But he opposes Prop. 21 because "it does not have a prevention component to it. By completely focusing on trying young people as adults, for whatever crime, we're just going to continue to fill up our prisons and throw away the youth of America."
The national move to get tough on crime that Prop. 21 represents was spurred in part by the violence of the crack epidemic, and in part by simple demographics: A rising teenage population was expected to lead to rising teenage crime, along with a new generation of so-called superpredators, calloused by parental neglect, media violence and bad schools.
The problem was "the numbers were never there," says Zimring, who has studied crime statistics for 30 years. In fact, Zimring says, while alarmists were testifying to Congress about superpredators, the juvenile crime rate was dropping by half. Statistics from the Justice Department and the non-partisan think tank RAND show juvenile arrests have gone down -- both nationally and in California.
"What it indicates," Zimring says, "is the aptitude for catastrophic error that we have when we project our fears on to future patterns of violent crime."
"Juvenile crime is a success story," says Peter Greenwood, a senior researcher at RAND. "The consensus for anybody who looks at the data is that crime has been going down much more for juveniles than it has for anybody else."
While RAND does not take positions on political initiatives, Greenwood says he can't make sense of Prop. 21 or the numbers being used to support it. "Prop. 21 is written as if we're in some sort of wave of juvenile crime." In fact, he says, the opposite is the case: "We had a wave of juvenile homicide and violence that peaked around 1991 and '92 and it's gone down dramatically."
"A law that gives prosecutors more power just doesn't make a whole lot of sense given that the current systems seem to have worked very well," Greenwood says.
But it may be that the public understands its fears about superpredators were never well-founded. National surveys show that the get-tough-on-teens approach might be giving way to a growing concern for the welfare of teens. A poll conducted last July by Opinion Research Corporation International found that 90 percent of people believe America could reduce juvenile crime by investing in prevention, and 81 percent felt that prevention programs were equally as important as locking up young criminals in combating teen crime.
"People are really torn about these things," says Michael Decorsey Hinds, a vice president of Public Agenda, a national public opinion think tank. Hinds has found in his research on crime and public opinion that "Americans support a blend of solutions that cross ideological lines. Some are conservative in saying that it's more important for the government to be tough on crime than it is to protect the rights of the accused."
Hinds still believes public opinion favors retribution -- even when the criminal is a juvenile. "The whole attitude of 'three strikes and throw away the key' is creeping backwards in age," he says. And while more people support prevention programs and gun control, they are more willing to spend money on building new prisons than on rehabilitation.
Zimring is more optimistic. "The folks who won the 'war on crime' now want to bring it to the juvenile court, and they're having more trouble than they thought," he says. "People are funny about kids -- they're ambivalent. The wells of public ambivalence and mixed feelings around make this issue extremely interesting."