Cara H. Drinan: The War on Kids: How American Juvenile Justice Lost its Way
In The War on Kids, legal scholar Cara Drinan seizes the recent changes made by the Supreme Court on the juvenile justice landscape to argue for steps that can be taken to correct juvenile sentencing practices in the last fifty years. In each chapter, she uses personal stories of individuals who were caught in the penal shifts of the juvenile justice system in the last few decades to illustrate her argument for a radical shift in how we punish children and youth. She begins the book with the story of Terrence Graham, whose case went up all the way to the Supreme Court in Graham v Florida (2010) where the Court held that a juvenile convicted for a non-homicide offense cannot be sentenced to life without possibility of parole. Terrence’s story serves as a fitting introduction to how the U.S has shifted from the nation that recognized the need for juvenile justice that is independent from the adult criminal justice system to waging a war on children and adolescents through punitive approaches to justice.
In the first chapter of the book, Drinan introduces the readers to Kuntrell Jackson and Terrence Graham. Kuntrell Jackson, then 14 years old, decided to rob a store with two of his friends. When the boys reached the store, Kuntrell learned that one of his friends was carrying a sawed-off shotgun. The clerk refused to give them any money and there is dispute of whether Kuntrell also threatened the clerk. In the end, Kuntrell’s friend shot and killed the store clerk and the three friends fled the store without any money. Under Arkansas law, 14-year old Kuntrell was automatically transferred to criminal court, convicted on charges of felony murder and aggravated robbery and sentenced to life in prison without possibility of parole (the only minimum sentence for both crimes in criminal court). Similarly, in 2003 Terrence Graham, then 16, and two of his friends tried to rob a restaurant in Jacksonville, Florida. A manager of the restaurant confronted the three and while fleeing, one of Terrance’s accomplices hit the manager. Under Florida law, the prosecutor decides whether to charge a juvenile as an adult, and accordingly, Terrence was charged with one count of armed burglary and one count of attempted armed robbery in criminal court. He pled guilty to these charges and received a sentence of three years of probation. While on probation, Terrence was charged with armed home invasion. He denied the charges, and though the state did not pursue them, his probation officer filed an affidavit citing numerous probation violations including fleeing from the police. A different judge presided over the sentencing for Terrence’s probation violations, and instead of considering mitigating factors including his age, he sentenced Terrence to life without parole. This was despite the suggestions put forth by the Florida Department of Corrections for a four-year sentence for the probation violations. Drinan uses Kuntrell and Terrence’s facts to highlight that these are just two of the over 200,000 juveniles, on average, who are charged as adults in criminal court each year. But how did we get here? Drinan walks us through the history of juvenile justice, beginning with the establishment of the juvenile court. She then explores the history of two parallel punitive trends in juvenile justice, first, the use of transfer laws, i.e., the transfer of cases from juvenile court to criminal court and second, the emergence of mandatory minimum sentences for juveniles convicted of a range of crimes, which include life without possibility of parole. These changes together have “converged to expose our nation’s children to severe, unavoidable sentences” (Drinan 2017, p. 24) as in Kuntrell and Terrence’s cases. Both were involved in crimes where neither played a primary role but due to the laws in both states, they were sentenced to unusually long terms of incarceration that deny their potential for reform.
In Chapter 2, Drinan describes Terrence Graham’s ill-fated childhood, where he “was on a trajectory toward crime from almost birth” (2017, p. 29). Terrence, was born into family that struggled with money for basic needs like food, housing and utilities; he watched his parents abuse drugs; suffered physical and emotional abuse from his mother and began to abuse drugs at a young age. Terrence’s childhood is unfortunately not an outlier. As Drinan points out, many children in American face similar hardships as Terrence and she relates Terrence’s experiences to evidence-based research on factors that can affect one’s propensity towards delinquency and crime. These factors include the role of poverty in hindering social, emotional and physical development, the disproportionate contact of minorities with the criminal justice system, the trauma sustained from having an incarcerated parent on the child and exposure to violence within the home and community. Terrence’s childhood serves as an example of how poverty, race and parental incarceration can have an adverse effect on a juvenile’s criminal trajectory.
While sociodemographic factors can increase the likelihood of delinquency and criminal involvement, certain legal and policy paths have made this likelihood into a reality for many youth, and disproportionately, youth of color. In Chapter 3, Drinan introduces the readers to Andre Lyle. Andre, then 17 and a classmate fought over a bag of marijuana. He punched his classmate and took the bag. He was charged with and convicted of second-degree burglary and sentenced to 25 years in prison and eligible for parole after 7 years. In 2014, the Iowa Supreme Court held that the mandatory minimum sentence imposed in Andre Lyle’s case, was unconstitutional. However, as Drinan points out, Iowa is the only state to take this position since mandatory minimum sentences are the norm across all other states. She identifies four legal and policy changes that produces life-altering consequences as in Andre Lyle’s case: the school-to-prison pipeline; transfer laws; ineffective assistance of counsel and the use of mandatory minimums. Drinan uses Andre’s case as one example to show how mandatory minimum sentences give “no room for consideration” for any other variables that affected Andre’s life (2017, pp. 63–64). These variables include the fact that his father was in prison, his mother had previously threatened him with a knife and that he was under his grandmother’s care, who let him smoke marijuana and hardly supervised his school work or attendance.
Beyond the first contact with the justice system, children and youth who are incarcerated “come of age in prison”- a place that is “scary, even for adults who know they are leaving its walls in a short time” (2017, p. 66). In chapter 4, Drinan describes Jonathan McClard’s story. Jonathan and Jeremy Voshage were fighting over Jonathan’s ex-girlfriend. Jonathan asked Jeremy to meet him at a car wash, and while high on pills and marijuana, Jonathan shot Jeremy three times. Jeremy survived but required intensive physical therapy and Jonathan was charged with first-degree assault. In Missouri, first-degree assault carries a mandatory sentence of 30 years and the judge rejected Jonathan’s attorney’s request for a dual jurisdiction sentence (juvenile custody till 21 and then re-evaluate the adult sentence at 21) and sentenced Jonathan to 30 years. He was placed in a medium security adult prison at age 16 (separated from the adult population till 17) and at 17 years old, Jonathan was scheduled to be transferred to Southeast Correctional Center in Charleston, Missouri. Jonathan was on suicide watch since entering the first prison, but ultimately, he would commit suicide days before his transfer to Southeast Correctional. Jonathan McClard’s story reiterates the evidence that children who are housed with adult inmates in jails or prisons are known to experience more physical abuse, sexual assaults, are more likely to violate disciplinary rules, and are particularly vulnerable to the harmful effects of solitary confinement (even when it is used as a protective measure).
In Chapter 5, Drinan discusses four important Eighth Amendment decisions of the Supreme Court that recognize the uniqueness of children and youth. These cases provide some hope of much needed change in the juvenile justice system. First, in Roper v. Simmons in 2005, the Supreme Court held that the death penalty is unconstitutional in so far as it applies to juveniles. For the first time, the Court in Roper relied on empirical evidence of adolescent brain development to justify why juveniles should be treated differently. Five years later, in Terrence Graham’s case, the Court held that a sentence of life without possibility of parole for nonhomicide offenses is unconstitutional (Graham v. Florida, 2010). Like Roper, in Graham, the Court explained that the mitigated culpability of youth and greater capacity for reform among juveniles requires that they not be subjected to the same harsh sentence as adults for non-homicide crimes. Two years later in Miller v. Alabama (2012), the Court held that the Eighth Amendment precludes states from imposing a mandatory sentence of life in prison without parole for juveniles convicted of homicide offenses. States must now consider the mitigating qualities of youth before imposing a sentence of life without possibility of parole. Four years later, in Montgomery v. Louisiana in 2016, the Court held that that Miller applies retroactively, and states must now provide juveniles previously sentenced to life without parole with a meaningful opportunity for release on parole. Following Miller and Montgomery, nearly half of the states today have banned mandatory imposition of life without possibility of parole for juvenile convicted of homicide offenses. However, Drinan astutely points out that these cases address only the harshest possible sentences and disregard other forms of sentences such as lengthy mandatory minimums that can resemble the sentence of life without possibility of parole for children and youth.
There is also little empirical research on the effects of these court decisions (see Caldwell 2016 as one example) and so in chapter 6, Drinan once again relies on real-life examples of individuals who have made it out (George Toca and Gregorgy Diatchenko) or are trying to get out (Louis Costa) of prison. In 1984, George Toca, at 17, was charged with second-degree murder of his best friend Eric Batiste during a botched attempt at carjacking. George insisted he was innocent, had an alibi for the time of the carjacking and looked nothing like the man described by the robbery victims as Eric’s accomplice who shot him. Yet, he was convicted and sentenced to life in prison without parole. George Toca began to serve his sentence in Louisiana State Penitentiary (Angola), the country’s largest maximum-security prison where he took advantage of any rehabilitative opportunity the prison offered. He reached out to the Innocence Project of New Orleans to fight for actual innocence and the Innocence Project took on his case. In the meanwhile, Miller was decided in 2012, and so George’s attorneys now had two avenues of relief. Ultimately, the District Attorney’s office offered George Toca an ‘Alford Plea’ in 2015 which he accepted. This allows him to maintain his innocence but at the same time state that the State has sufficient evidence to convict him. Today, George Toca lives a quiet life in Louisiana, where he is building his own landscaping business and is an example that people can grow and mature in prison. Similarly, Greg Diatchenko is out in the community after serving over thirty years in prison. Greg, at 15, stabbed and killed a 55-year-old man in 1983. He was convicted of first-degree murder and sentenced to serve life in prison without parole. Like many youths who enter prison at a young age, Greg’s initial prison adjustment was poor. But a chance encounter with an empathetic correctional officer influenced Greg to forge a path of rehabilitation. He enrolled in programs, followed a routine and avoided disciplinary infractions for over two decades, despite not knowing if he would ever have the chance to leave prison. Post- Miller, Greg filed a petition in the Supreme Judicial Court (the highest appellate court in Massachusetts) that the state sentencing scheme of mandatory imposition of life without parole was unconstitutional in so far as it applies to juveniles convicted of homicide offenses. The Supreme Judicial Court agreed with Greg, and in 2013 in Diatchenko v. District Attorney for Suffolk County, the Court held that any imposition of life without parole for juveniles would be unconstitutional and that all those individuals serving a juvenile life without parole sentence would be eligible for parole after 15 years (Trahos 2016). A year later, in 2014, Greg Diatchenko was released on parole after his initial hearing with the parole board. Today, he works as a custodian but at 51, faces unique challenges including explaining a thirty-year gap on his resume, adjusting to living in a basement apartment in his mother’s home instead of on his own and trying to get a driver’s license. Like Greg, Louis Costa was sentenced to mandatory life in prison without parole for two counts of first-degree murder in 1988. At the time of the murders, Louis was 17 years old and had no prior juvenile record. After some protracted legal challenges (including a second trial in 1994 and multiple appeals over the years), Louis Costa appeared before the Massachusetts parole board in 2016 after serving 30 years of both his life sentences. His attorney presented evidence of his mitigated culpability at the time of the crime, his rehabilitative efforts and his lack of any serious disciplinary infractions in 30 years. Despite this, the parole board denied parole to Louis Costa in what Drinan describes a rather opaque decision and gave him a chance to re-appear before the board in early 2018. George Toca, Greg Diatchenko and Louis Costa show three different experiences following the Supreme Court decisions. Their stories highlight that despite the difficulties of prison, youth are more amenable to reform and deserve a second chance to show that they have changed. They also show that the implementation of Supreme Court decisions can be “messy, unpredictable and unfair” (Drinan 2017, p. 127).
By weaving in social science research and individual stories across chapters, Drinan makes a compelling argument of shifting the War on Kids to a “War for Kids” in Chapter 7. In this chapter, she argues for several changes: (1) securing the implementation of Supreme Court’s decisions in resentencing juveniles who were sentenced to LWOP in a meaningful way; (2) returning juveniles who commit serious crimes to juvenile court unless a juvenile court judge warrants the need for the juvenile to be tried in adult court; (3) providing age-appropriate sentences which would mean abolishing life without parole entirely for juveniles across all states and any type of mandatory minimum that does not consider the mitigating qualities of youth; (4) reducing incarceration and promoting rehabilitation and (5) creating youth-informed panels to review sentences, especially at the back-end of the system like parole hearings. In conclusion, Drinan points that the ramifications of tough on crime policies, in so far as they relate to children and adolescents, require not only legislative and policy changes but also public support. In using real life examples, she reminds us that kids are “not born bad” but adapt to their circumstances in ways that are often beyond their control.
As a legal scholar, Cara Drinan bridges the gap between social science and the law to present a persuasive argument for a radical shift in the way we treat juveniles in the justice system. But apart from individuals who went into prisons as children and adolescents, we must also think of young adults. Youth between the ages of 18 and 25 are equally predisposed to reckless behaviors as suggested by studies on adolescent brain development (see Scott and Steinberg 2008 for a review of studies). Moreover, laws that stipulate an arbitrary age for treating adolescents as adults (ranging from 16 to 19 across states) need reconsideration. The Massachusetts state senate recently passed a criminal justice reform bill (S.2185) which proposes to raise the age of juvenile court jurisdiction from 18 to 19 years of age (Miller 2017). The “War for Kids” (Drinan 2017) should also look at specific models of juvenile justice that officials can adapt. For instance, Elizabeth Scott and Laurence Steinberg (2008) argue for a developmental model of juvenile justice that recognizes adolescence but can still hold adolescents accountable for their actions without treating them as adults or as children. While the drop in punitive laws relating juveniles since the late 2000s signifies a change in how America considers treating its youth (see Bernard and Kurlychek 2010), we know that the effects of these legal changes are slow (Bishop and Feld 2014). We also know that one of the challenges of mass incarceration is reentry (Clear and Frost 2014) and while the changes that states are making per Miller and Montgomery are important, George Toca, Greg Diatchenko and Louis Costa are real examples of individuals who need aftercare that specifically caters to individuals who are institutionalized at a very young age. Therefore, Drinan’s book is important in reminding scholars, academics, practitioners and the public that at the heart of these new changes in the juvenile justice landscape are real stories of abuse, courage and rehabilitation. The war for kids needs to be fought with important policy changes and with empathy- something that has been lacking in the last few decades.
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Conflict of Interest
The author declares that she does not have no conflict of interest.
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