Wednesday, January 02, 2008

Babies and bath water. Part 2.

If there's one single notion that underlies today's frenzy to discard the bad apples before they ever ripen (click here for Part 1 in this series), it's a presumed equivalence between sinister kids and sinister adults. And there is, in fact, such an equivalence—just not in the way hard-liners suppose. The common denominator that links the 15-year-old felon to his 30-year-old counterpart isn't adulthood, but the opposite: Crime is an inherently juvenile phenomenon.

As Judith Martin (better known as etiquette expert "Miss Manners," but also a respected essayist and lecturer) tells us, "The belief that natural behavior is beautiful, and that civilization's restrictions spoil the essential goodness inherent in all of us noble savages, is, of course, the Jean Jacques Rousseau School of Etiquette.... A major influence in Jefferson's time, Rousseau's philosophy continues to survive in the pop-psychology and 'human potential' movements of today, and in the do-nothing school of child-rearing, which has given us so many little—savages. In point of fact, we are all born rude." Rude, or worse; much worse. Family counselor and columnist John Rosemond reminds us that there may be no more sociopathic entity than an infant: "Every child comes into the world carrying a Pandora's box containing unbridled narcissism: the 'I want, I deserve' impulse that drives every antisocial event." We should thank our lucky stars that tantrum-throwing 3-year-olds (generally) lack access to guns and/or the wherewithal to use them; the murder rate would soar ten-fold.

The problem, then, as I see it, isn't that we have too many kids out there who've turned prematurely into adults. It's that we have too many adults out there who never got past being kids.

Further, where's the logical foundation supporting the idea that the more loathsome the offense, the more it deserves prosecution in adult court? A few years ago in Indianapolis, a 7-year-old boy took a gun to school, put it to the head of a classmate and pulled the trigger. Fortunately, the weapon jammed. But the misfire was a quirk of fate. Suppose the weapon had gone off, splattering classmates with the wounded child’s brains. Suppose it could be proven that the boys had fought the previous day, thus making this a "revenge killing." What to do with such a youthful killer? Charge him with homicide? Execute him?

Such hypotheticals suggest that sentencing guidelines cannot and should not be based solely on the repugnance of the offense. Appropriate weight must be given to other factors, including intent, overall mental capacity, and the role of sheer happenstance. (I won't belabor the latter point, since it's something of a separate argument that opens many new cans of worms. But I ask you to consider a scenario wherein a wife, enraged at her husband, grabs a heavy glass ashtray and hurls it at his head. She misses. Later she apologizes for the ashtray-hurling, there's a clinch, and all ends well. Except...suppose the ashtray had connected, whereupon the man fell, hit his head on a marble table top, and died. There are no happy endings for the woman in this second case; she faces, at the very least, a manslaughter charge. Which begs the question: What exactly are we penalizing here? Her intent? Or her aim?)

There are also practical grounds for being dubious about all this. A study by the John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice looked at 1,400 offenders between ages 11 and 24. The study's authors concluded that younger defendants often have as much trouble understanding their legal dilemmas—and thus as much difficulty exercising their constitutional right to participate in their own defense—as adults ruled mentally incompetent to stand trial!

For all of these reasons, it not only strikes me as harsh, but incongruous with every known truth about human development, to sentence a teenager to a lifetime behind bars for a misdeed he might not have committed, given a few more years of seasoning.

We're understandably hesitant to give the truly malicious youngster a "free shot" to commit one heinous crime before reining him in. Hard-liners use Lionel Tate as the poster boy here; he was imprisoned for a second violent felony a few years after courts overturned his initial life sentence. "See?" they'll say. "See what happens when you let 'em out? They don't deserve second chances!" No, I don't see. Tate got the second chance to which all teens and preteens (if not all people) are entitled, and he blew it. That reflects only on Tate. You can't use him as evidence for the argument that we should "just lock 'em all up the first time and throw away the key!"; no more than you can use some random John Doe's benevolent act as proof that Mr. Doe will continue doing good works for the rest of his life. Neither human behavior, nor life itself, is quite that neat.

Interestingly enough, we're unwilling to bend the rules the other way. We don't recognize children of uncommon precocity by awarding the exceptional 13-year-old a driver's license, drinking privileges, or the vote. "Oh come on," we say, laughing. "He's just a kid." Indeed.

A few final thoughts on the matter next time.

Read Babies and bath water. Part 1.


Your PR Guy said...

You make a nice point here. I think we all screw up once or twice in our lives and need that second chance to right whatever went wrong, if we truly learn from our mistakes.

The whole baby-holding-Pandora's-box notion casts shades and tones of Christiandom's eternally damned.

Most would say we learn to keep Pandora's box closed, but what if we are born with it already open?

Just a thought...

Anonymous said...

Hmmm. Your comments on weighing intent, etc. in this and the previous post on the topic make me think of Ron Paul's assessment of the original importance of trial by jury (where the jury could make a decision based on the constitutionality of the violated law as well as the circumstances of the crime, not just the heavily edited "facts" of the case), and how the jury's power has been appropriated by the judges in the past 80 years. You might find Paul's book "Freedom Under Siege: The U.S. Constitution After 200-Plus Years" of interest in this context, though admittedly, the subtitle will give you a hint as to the quality of writing...

RevRon's Rants said...

Welcome to the "zero-tolerance" mentality, where a kid can get expelled for having an aspirin or holding hands with a classmate. I'm surprised there hasn't been a move here in Texas to legalize the death penalty for anyone over 10. We already have it for retarded people. I've got a number of reasons to be proud of my state, but this (along with a couple of others I've already discussed) isn't one of them.

Mary Anne said...

This debate is hard for me, because my older half brother is in prison and he should have been sent A LONG time ago. I was not raised with him, but he was pretty BAD from get go and he got MANY chances from the courts. He had all the same privilages and hardships I had, but he went in a much different direction. I was shocked at how many times the courts, from his juvenile stints to his adult legal problems, gave him more chances to hurt people and their property. He started out small and just got worse. It makes me think a lot of this MIGHT be more genetic than just social upbringing. By the way, my half-brother will be getting out next year and I have a hunch he will be going back again.

Steve Salerno said...

Well, remember now, Mary Anne, I didn't argue that someone should be given 29 chances. And maybe--who knows?--your brother was damaged goods from the outset. But you're saying what you're saying here with the benefit of hindsight; you saw him expend his judicial nine lives (and then some, it sounds like). But you didn't know all this the first time he was arrested--did you? Didn't he deserve at least that (literal) second chance?

Mary Anne said...

Steve I WANT to agree with you about second chances. In certain circumstances I think they should be given, but when it comes to crime, I have a hard time with it. The criminal does just destroy his or her life, but usually others too. My half-brother has a son who is following in his footsteps from what I have heard and my half-brother did NOT raise him or have contact with him. My mother has spent her life blaming herself for my brother and no amount of therapy has helped her. Actually, the courts blamed her too even though she spent untold amounts of money on my brother's therapy that NEVER seem to work. She wishes to this day she had miscarried him, because she feels in some way responsible for him coming into the world. I WANT to believe in second chances, but have never seen them work.

Steve Salerno said...

Now wait a sec here, Mary Anne. See, these are the sorts of generalizations that stop me in my tracks. You've NEVER (I'll use your style of emphasis) seen second chances work? You're telling me that you can't just sit back, think for a minute, and tick off a half-dozen cases of people who got a second chance in life, and made the most of it? (Not somebody you know, necessarily...but ANYONE?)

Anybody else want in on this?

Your PR Guy said...

Hey, MaryAnn...

While mine isn't criminal, I'll say I've had second and third chances.

A slacker high school student, I got my act together in a small college before hitting the BIG TEN, just to throw it all away and start over again!

Now I'm finishing graduate school with stellar grades, accolades to boot and a nice job. Just signed a deal to write for an online gig too.

While mine isn't so tragic as juvenile delinquency, my cousin got a second and third chance too. So did my brother-in-law -- a he got into a heep of trouble.

Both are hard working family men, raising their children to be responsible people. In fact, just last year, my cousin's son returned from a tour of Russia. He's a classical guitarist who just graduated from the esteemed IU School of Music.

Akhetnu said...

Many states, including California, actually say that people under 14 are mentally incapable of committing a crime (i.e. forming the requisite intent and being able to connect it to the consequences of their actions). Redemption can and does happen, too.

Personally (and maybe it is the Eagle Scout in me), I expect anyone high school or older to be at least reasonably ethical and responsible. The 'he's just a kid' bit for me elicits little sympathy for someone who is old enough IMO to know better.

Still, I do excuse less experienced (read: younger) people but I do expect them to learn and redeem themselves.

I think society's main problem in this regard is one of extremes. We avoid teaching responsibility and let anyone under a certain age get away with alot of things they shouldn't: we act like anyone under 18 might as well be 3, then wonder why they all just don't magically become responsible adults at 18-24.
Either that or we assume that all children should be given the same draconian treatment.

Anonymous said...


Its the Londoner again wading in with my twopence worth.

It seems to me that society is caught between a rock and a hard place with how to punish violent crime in general. The death penalty seems too harsh for our sophisticated palate while paying for a lifetime in jail for these offenders gives us indigestion. I can see why the legal biblical process of an " eye for an eye" was so attractive to the masses.

Steve, your example of the 7yr old who brings a gun to school to stick in their friend's mouth is an excellent example of where I think a lot of the responsability should start to gather - the gun owner who left it where this child could get hold of it.

In terms of second chances - I'm all for them but where is the second chance for the victim?

I don't think its something we'll ever be able to sort out......

Steve Salerno said...

Londoner, I'm glad you brought up the "where is the second chance for the victim?" argument. I can understand how people would feel that way--and in fact, I'm going to address that very sentiment in my next (and, mercifully, final) post on the topic. But I go back to what former NY gov Mario Cuomo famously said about the death penalty: that government should not be in the business of elevating people's most base emotions to the status of law. Just because a criminal commits an irrational act of violence against some innocent victim doesn't mean that society should act in equally irrational fashion in punishing the offender. To my mind, there may be no more indefensible line in all of (supposedly) civilized society than "an eye for an eye," and it frankly astonishes me that that line so often goes unchallenged, when hard-liners use it as a rhetorical trump card.

RevRon's Rants said...

Regarding the objections to incarcerating violent prisoners for life rather than executing them, I doubt that the cost would even be an issue, were it not for the sheer numbers of people we keep locked away.

In spite of (or perhaps because of) the fact that I'm from Texas, I am dead set against the death penalty. I am also against the current practice of locking up occasional drug abusers and people who commit other nonviolent offenses. Keep the prisons for criminals who pose a threat to society, and either decriminalize the truly victimless crimes or assign the perpetrators to some appropriate form of community service.

Eliminate the glut of people we send to what is literally a crime training seminar, and we can lock up all the really bad actors forever and never fill up our prisons.

Anonymous said...


I agree with you about the death penalty however I hate prisons even more. Besides costing huge amounts of money and labour, I don't really see how they benefit us. English prisons are grossly overcrowded and so filled with drugs its impossible for the residents to detox even if by some remote chance they wanted to

On the basis of the lesser evil, I vear towards death penalty rather then a life sentence. I think its easier on both sides until we can come up with a truly more humane system.


Anonymous said...


What is a truly victimless crime?

a/good/lysstener said...

First of all Happy New Year everyone.

I have a hard time with this one. I too basically dislike the idea of capital punishment and that whole idea of locking people up and throwing away the key. OTOH I feel there's something to be said for vengeance, and that it has its place and we shouldn't necessarily apologize for it. What is so wrong about people who have lost a child or suffered through a rape seeing the perpetrator punished, even severely punished? Why do they not deserve that satisfaction? And though as I say I'm not a "fan" of capital punishment, you do have to admit what someone once wrote about capital punishment being a deterrent to future crime: even if capital punishment doesn't prevent other people from killing, it certainly prevents at least *that* person from ever killing again!

Carl said...

You're wrong on this one Steve. We need to clean things up, it's gotten out of hand and the tougher the better.

Your PR Guy said...

Our misunderstanding of the phrase “an eye for an eye” is clouding our discussion of second chances for juvenile delinquency. The term is a notion explained in Exodus, Leviticus and Deutoteronomy, as well as in the New Testament. Now, I’m not one for Bible thumping – the author of SHAMblog knows that – but if we look at the history of “an eye for an eye” we understand it in its original context.

Knowing how the phrase came to be, how it was understood, helps us understand how it applies to use today.

What I’m about to say will sound contradictory. And it is. But life is full of contradictions. In fact, symbolic logicians use the contradiction to show the end of logical problems. While you may think this is ridiculous, the same notions found in Enlightenment-inspired rational thinking are rooted in Aristotelian logic, which also finds logical ends to problems in the contradiction.

In a discussion threat a few days ago, we touched on the notion of nothing as something, which is a contradiction – one Heidegger wrote on extensively in “The Quest for Being,” an essay devoted entirely to the examination of nothing. Heidegger’s book, “Being and Time” also addressed the issue of nothing as something that exists outside what we know, or what we can see, touch, smell, hear and taste.

So it is with law. Its spirit presides over use and we only see its effect. We neither smell, see, touch, hear nor taste law in its purest form. We do not know what law looks like in the pure. So, when we talk about an “eye for an eye,” which is a notion of the law in the grand, we must look to its origins.

Without getting into ancient history, and “eye for an eye” is meant to stop the revenge each of us feel when we’re wronged. It is meant for Judges to determine the right retribution and restitution a victim should be entitled to for the crime they suffered.

So it’s for the victim and it’s for the judge, and that’s it. We should understand the phrase, an “eye for an eye” as a restraint to the victim to refrain from seeking revenge. What is revenge, anyway? It is two eyes for an eye. So, an “eye for an eye” actually addresses our behavior, our tendency to “two-up” (taking both eyes for the cost of one) to balance the moral accounting books. That’s the problem; we always want more. We want the criminal to suffer more than we did.

If we understand and “eye for an eye” in this context then it is the measure we use to balance the moral accounting books, otherwise, if we always sought revenge, our societal accounting books for morality would always be imbalanced, leading us down a slippery slop of chaos. We would live in lawlessness.

So are second-chances good or bad? They are both. And circumstances only a judge has the authority to weight determines whether a second chance is granted But then there’s this whole notion of forgivingness that really messes with how we want justice meted.

RevRon's Rants said...

"What is a truly victimless crime?"

Well, one blatant example can be found in placing casual users of marijuana in the criminal justice system. We take an individual whose "crime" consists of getting silly, and convert them into a criminal by locking them up with truly violent individuals. Same goes for the 18 year old guy who fools around with his 16 year old girlfriend and gets caught, and is forever after labeled a sex offender.

There are much better ways to address these situations. We've already seen how effective prohibition was in stemming the use of alcohol, which is inherently more damaging than marijuana. Truth is, the vast majority of "drug-related" deaths are really the direct result of deals gone bad, rather than being a direct result of drug use. Decriminalize the substance, control & tax it like we do alcohol, and not only would the "drug-related deaths" end, the government would realize a significant boost in revenues. If a user had problems, they should be dealt with medically, rahter than via the criminal justice system.

As to the young "sex offenders," I know of very few guys who would not fall within that net, and escaped it solely because they didn't get caught. And I doubt that the girls we were with had been particularly traumatized by the experience.

The insistence upon "cracking down" on any and every person who makes a mistake isn't about improving society; it's about making ourselves feel better by getting revenge or making us feel more noble when we posture about what's wrong with everybody else.

RevRon's Rants said...

Alyssa - The only things that differentiate the murderer from the capital punishment supporter are legality and circumstance. Following your logic, would it not be appropriate for the loved ones of a murder victim to be given the opportunity to execute the perpetrator? two wrongs, and all that...

Take it from one who knows first-hand; exacting revenge might offer some degree of satisfaction, but there are residual issues that actually compound the grief one feels at losing someone. I don't believe that we as a society should be in the business of institutionalizing and legitimizing revenge - especially not revenge killing.

Anonymous said...

Well said PR Guy!

As for Revron, in London the age of consent is 16 and there are calls to bring it down to 12 and since we have the highest teenage pregnancy rates in the whole of Europe - I think its going to happen shortly.

Marijuana has been declassified and use only warrants a warning - of course there are now specialist psychiatric teams to deal with adolescent drug induced psychosis - so they are under mental health Act section instead legal incarceration.

Be careful what you wish for .....

RevRon's Rants said...

Anonymous - Better to have the kids in treatment than in prison. And for the record, anybody who has severe mental problems after smoking pot had them beforehand. Furthermore, the physical and mental prognosis is much brighter for an abuser of marijuana than for one who abuses alcohol.

I don't recommend full legalization of marijuana or the abolition of statutory rape laws; just the elimination of uninformed, knee-jerk reactions when more reasoned approaches would better serve everybody involved.

Mary Anne said...

Steve asked:
"You've NEVER (I'll use your style of emphasis) seen second chances work? You're telling me that you can't just sit back, think for a minute, and tick off a half-dozen cases of people who got a second chance in life, and made the most of it? (Not somebody you know, necessarily...but ANYONE?)"
I stated that I've seen second chances work in certain aspects, but not in regards to violent crimes. Yes, I've seen pot heads and boozers reform, but those are NOT generally violent crimes inflicted on others.

My half-brother started out with stealing a car at 15. He got by with a warning and probation, "boys will be boys" the officier said. My mother put him into "therapy." At 16 he beat up his girlfriend and knocked her teeth out. He again went into "therapy." Her family did not press charges, because "it would look bad." He continually beat-up this girl on and off until he was 21. He beat-up his stepmother and stole from his half siblings, but his father would not press charges. He was from a "broken home" so he had "issues." He FINALLY was arrested for beating up the mother of his child, but she would not press charges and took him back until he nearly killed her. He ended up molesting a 13 year old girl and said "she looked like she was 20." He served a few days for that. I do not know why he is in prison now. I have an uncle who thinks its his duty to "care" for his wayward nephew. He has threatened to kill our mother so she has a restraining order on him. Anyway, my point is when it comes to VIOLENT crimes I have not seen reform. The example you gave of the guy who sold ecstasy was NOT a violent crime. People CHOSE to buy ecstasy from him. No one CHOSE to be shot or maimed. I am just pointing out there is a difference in crimes and they can escalate.

Anonymous said...

I'm with you on this one, RevRon. As the bumper sticker says, "An eye for an eye makes the whole world blind."

RevRon's Rants said...

mary anne - Your half-brother is obviously an example of a failed process. Here n Texas, it is frequently stated in (half) jest that "He needed killing" is an acceptable defense in a murder case. I'm frankly surprised that your half brother survived as long as he has.

In the case of an adolescent who commits a violent crime, I still think we need to look not only at the crime, but at the child who commits it and the environment that nurtured (or at the very least, accepted) the violence that erupted.

I can remember getting into a fight with one of the kids in my neighborhood. He had been taunting me, and when I dismissed his taunts with a single finger salute, he jumped on me. It didn't take long before I'd had enough, and hit him with a roundhouse punch, right between the eyes. He went down, and as it turned out, he had suffered a concussion from th blow. If such a scenario had played out nowadays, I'd likely be sent to prison, not to mention being sued. And I wouldn't have turned out to be the well-balanced, amiable, and productive soul I am today. :-)

If we fail to look at the whole situation and address all the issues, we'll merely create more criminals, while more of the violent ones slip through the cracks.

Steve Salerno said...

An excellent and, I think, highly relevant point, Ron, that underscores just how absurdly and unrealistically didactic we've gotten in our "zero tolerance" approach to crime (or even merely defining what constitutes a crime). I feel safe in saying that if the "behaviorial guidelines" now operative in most schools had been in effect when I was a boy, we all would've been kicked out and/or sent "somewhere" (as we euphemistically like to say) for "evaluation." A simple schoolyard skirmish is now "assault with intent to commit severe bodily harm." What used to be a vulgar, macho shouting match among several boys vying for the heart (or other regions) of a coveted female is now "terroristic threats." In the Flatbush of my youth, none of us would've made it out of school in good standing; I'm not kidding. Not a one.

So maybe today's more restrictive climate is "progress," but I don't think so. I don't think the statistics on youth violence bear that out. There are, of course, myriad factors at the heart of today's unrest, but the bottom line is that all the tough rules and codes and policies certainly haven't eliminated the problem.

RevRon's Rants said...

It should be noted however, Steve, that in the days of our youth, kids didn't bring guns to school. In Texas, we left them in the car (or truck), where they belonged! :-)

Mary Anne said...

A lot of this is a class and money issue. I am sure if my brother had been from less privilged upbringing, he would have been dealt with differently. It reminds me a lot of the Kennedy family problems. All my half-brother learned from "therapy" was how to blame his upbringing on his violent tendencies. So money and position does play a part in a lot of this.

Steve Salerno said...

Duly noted, Ron, but I sometimes wonder: Maybe the opportunity we had to "work it out among ourselves" helped us let off steam, so things didn't build to the crisis stage they build to today? I mean, it's crazy; you can't even tell your chief romantic rival you're gonna "kill him" anymore! What kind of policy is that?

Mary Anne said...

Rev Said,
"In the case of an adolescent who commits a violent crime, I still think we need to look not only at the crime, but at the child who commits it and the environment that nurtured (or at the very least, accepted) the violence that erupted."

Environement is interesting, because it does not always explain violent behavior. It does not explain why one person has a conscience and another does not.

Crime statistics show that one is most likely to be killed by a loved or family member than a stranger. So one has to be MORE afraid of who they keep close than who they pass on the street.

Basically, when it comes to a child who commits a violent crime, society is taking a dangerous gamble either way.

Mary Anne said...

Steve said,
"I mean, it's crazy; you can't even tell your chief romantic rival you're gonna "kill him" anymore! What kind of policy is that?"

Funny you should mention this, because I was speaking to a police detective about the strict stalking laws in California (I live in California). He stated that spurned and revenge minded exs are using the stalking laws against their exes. Now when someone goes in for a restraining order for stalking, THEY get checked out! The police have found that a lot of these "stalkers" are actually being harassed by the oness filing the claims! I was FLOORED when I heard this. This also happens a lot with custody cases and claims of sexual abuse.

Anonymous said...

It's funny to me how often we start out with a very serious topic and by the end of it it's kind of a joke.

Steve Salerno said...

People use humor in many different ways, Anon. None of this is a "joke," per se. No more than the routines of George Carlin, Dennis Miller and Bill Maher are "jokes," per se. The comments that such people make on the foibles of postmodern society are as savvy and devastating as anything you're likely to read in some self-righteous, overbearing screed like...well, like many of my original posts. :)

Anonymous said...

I have been a prosecutor in both juvenile and adult courts in a couple of small northeastern cities for quite a few years. I am quite cynical about the effectiveness of rehabilitation and treatment programs. Bottom line, they don't work any better than incarceration with education.
Serious juvenile offenders generally wind up as serious adult offenders, and there is no effective way to change this fact. It makes sense to be able to charge serious juvenile offenders as adults and give them adult sentences. Otherwise, they wind up back on the street far too soon. Some street gangs deliberately use juveniles to commit serious crimes because they understand that the risk of a long sentence is less for a juvenile.

Having said that, there is also a disturbing trend for schools to criminalize the most trivial juvenile behavior imaginable rather than dealing with difficult students themselves. The worst example of this I have seen was an 11 year old arrested for assault with a dangerous weapon (a five year felony) for shooting a rubber band at a classmate.

Steve Salerno said...

Thanks for giving us a more professional slant on all this, "anonymous prosecutor." If you're still with us, I'm curious, for tracking purposes: Did you find SHAMblog through one of the several "judicial" forums on which I posted a link today?

Anonymous said...

I saw your post on the WSJ law blog.

RevRon's Rants said...

Anonymous Prosecutor - Judging purely from headlines and stories I hear from a friend in the police department, your cynicism is certainly understandable. Knowing how incredibly busy most prosecutors are, however, I was wondering whether you had the opportunity to follow up on the subsequent activities of many of the individual cases that had passed through your department, or whether your workload pretty much restricted your attention to those who went on to become repeat offenders.

This is certainly not an attempt to invalidate your cynicism, but in truth, everybody's perspective is formed by their own experiences of a situation, and I would imagine that cynicism would be inevitable to one whose primary function was to process an unending flow of recidivists. I can't imagine that very many who successfully turned aside from their first experience in the criminal justice system would have come back and let you know how they were doing. If these presumptions are accurate, I acknowledge that in the same position, my own outlook would probably be as cynical as yours.

Obviously, I agree that the current infatuation with "zero tolerance" is both absurd and destructive. No human being is perfectly behaved, and to take even good kids and label them criminals for one stupid act ensures that the only factor separating the law-abiding and the criminal is random, dumb luck. And that is sad.