A true tragedy, driven by a media frenzy, often provokes a misguided need to do something as quickly as possible and leads to bad public policy – like California’s Three Strikes sentencing law.
Massachusetts Juvenile Judge Jay D. Blitzman got it right when he explained in 2008 why brutal crimes so often lead to bad laws. In an article for the Barry Law Review he wrote: “As the public and media react to the crime du jour, there is an unfortunate tendency to legislate by anecdote.” Stories gain momentum, get fueled in the press, and can be used for political advantage by the powers that be, and before we know it, the need for change, and in some cases, vengeance, turns too quickly into ill-conceived laws.
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The Massachusetts Experience
This kind of political dynamite is exactly what exploded in Massachusetts this past year. First, in 2013, public outrage spread over the tragic killing of Danvers High algebra teacher Colleen Ritzer. Accused of first-degree murder and rape of his teacher, 14-year-old Philip Chism is now set to be tried as an adult, the norm for any Massachusetts juvenile charged with murder who has reached age 14.
Since 1996, the state has had this law on the books, and it is one of the harshest in the nation. It was enacted in the wake of another high profile tragedy when 15-year-old Eddie O’Brien committed a particularly vicious murder – stabbing a neighborhood friend of his mother’s, Janet Downing, 98 times. That enraged the state, but unfortunately, the reaction to the crime led to this law, which goes against best practices for sentencing youth. The nationally recognized Campaign for Fair Sentencing of Youth says such laws “ignore the science, global standards and national trends.” Keeping kids in the juvenile system has proven to be more effective in preventing a return to crime, according to a 2010 report by the Office of Justice Programs.
But families of murder victims like the Ritzers went into action in 2013, in particular, after the Diatchenko v. District Attorney for the Suffolk District decision. That was when the Massachusetts Supreme Judicial Court struck down all sentences of life without parole for juveniles. The decision stated that a juvenile first-degree lifer was to serve at least 15 years before parole eligibility – a number deemed by the court to allow a meaningful chance at rehabilitation. While this was in line with national rulings from the highest US court, there was a backlash. Families impacted by the 63 juvenile first-degree lifers behind bars claimed that this meant no justice if youth who had harmed their loved ones could ever go free. They petitioned their legislators.
State Republican Senate Minority Leader Bruce Tarr, along with Democratic Senator Barry Feingold, who at the time, represented Andover, where the Ritzers lived, proposed a bill that would set parole eligibility for juveniles like Chism at 35 years – more than twice his current age. In satisfying grieving families, legislators essentially ignored warnings that came from activists and experts like Josh Dohan, the director of the Youth Advocacy Division of the Committee for Public Counsel, who said in an interview: “Thirty five years is way past what research says is necessary to grow into law-abiding citizens.”
Pressure mounted as the District Attorneys Association threw its support behind the bill; Erin Downing, daughter of murder victim Janet Downing, collected more than 5,000 signatures to ask Governor Deval Patrick to forbid her mother’s murderer to have a chance at parole. At a hearing for the bill, Finegold read a letter from the Ritzers, and Tarr said, “We are compelled to act. . . . Not only for justice for victims’ families but also because of public safety.” Voices like that of Northeastern University Criminal Justice Professor James Alan Fox were drowned out. In a 2006 article for The Boston Herald, he said that “throwing away the key on kids . . . is not justice, but vengeance. . . . Kids know that killing is wrong, though they may not fully grasp the pain that they cause through their actions.”
The political ball was rolling. Less than a year after Ritzer’s death, “An Act relative to juvenile life sentences for first-degree murder” was signed into law. It was not quite as drastic as the Finegold-Tarr bill, but it paid little mind to developing neuroscience that shows teens are indeed different from adults, and it was legislative sausage-making at its worst. It provided for initial parole eligibility at 20 to 30 years in felony murder cases – i.e. you were there, but didn’t pull the trigger. It required 25 to 30 years in cases of premeditation – i.e. first-degree murder; and it set a mandatory 30 years to life for any murder committed with extreme cruelty and atrocity. In other words, most juveniles in Massachusetts who get sentenced for first-degree murder now will have to wait at least 30 years for a chance to go before the Parole Board. This is hardly a “meaningful” shot at parole for those who committed crimes in their youth.
It was clear that the tragedy of Ritzer’s murder had pushed legislators to pass a hastily-crafted law that goes against prevailing research that says adolescents should be held less culpable than adults. It was passed in time to effect the upcoming trial of Philip Chism.
However, no one seemed to mention to victims’ families that whatever bill was enacted into law would not be retroactive, per the Diatchenko decision.That is, it would have no impact on the crimes that had occurred or on the 63 juveniles who, by statute, are now eligible for parole after 15 years. In fact, Massachusetts has already held parole hearings for seven such juveniles and set in motion the eventual release of three, so far: Frederick Christian, Joseph Donovan and Anthony Rolon.
Legislating by Emotion
An outcry of emotion is often the key that leads lawmakers to overreaction and the misguided jump to making poorly thought-out policy. California’s ill-fated Three-Strikes-And-You’re-Out law shows us the worst-case scenario of reacting too quickly and with bad policy. The law was signed, sealed and delivered five months after the death of Polly Klaas in 1993, a 12-year-old who was kidnapped and murdered by a parolee with a long criminal record.
California then aimed to incarcerate the most serious and violent criminals so that such an occurrence would never happen again. But parole is a man-made system, and thus, by its very nature fallible. The 1994 misguided law was to give those who committed second felonies double the time of the first; for third strikes, the sentence would be 25 years to life. Thus, the thinking went, “bad” people would be behind bars.
According to Leonard Engel, managing associate for policy at the Crime and Justice Institute (CJI) in Massachusetts, what happened was a “disaster.” The “strikes” that triggered the so-called tough new sentences could be for any felony. For example, a man who went to prison for 10 years, could get out, get caught stealing or forging a bad check, and go back to prison for 20 more years. Prisons grew overcrowded, dangerous, expensive and filled with disease, and as The New York Times reported in 2012, California “dol[ed] out life sentences disproportionately to black defendants.”
The three-strikes law placed California at the top of the nation’s corrections ladder. That, in turn, led to years of litigation, resulting in a “cruel and unusual punishment” finding by the US Supreme Court. California was ordered to cut population in its state prisons, which it did by 2012, but the state also was forced to admit it had enacted flawed legislation – another case of a bad law passed after a brutal murder. The 2012 revised law allows a life sentence only when the third felony is serious” or violent, as defined by California law, and as a result of poor planning, courts are mired in resentencing thousands who were unjustly sent away for low-level third offenses.
Elsewhere across the country, cases of overreaction after a tragedy have also led to media frenzy and ultimately awful laws. Take the New York Central Park Jogger case. In 1989, Trisha Meili, age 29, was brutally beaten and raped. Five black and Hispanic teenagers were wrongfully convicted for the crime and sent to prison. As reported by the Campaign for Youth Justice, their coerced confessions hit the press and convinced a terrified public that there was “wilding” in the streets, where “packs of bloodthirsty teens from the tenements, bursting with boredom and rage,” roamed the city, looking for kicks. This year, the five men received a $41 million civil rights settlement, but the years they served in prison could never be repaid.
And the drastic change in laws that occurred because of this case have not been overturned so easily. Politicians used public hysteria to insist juveniles across the country be automatically tried as adults, sentenced as adults and imprisoned in adult facilities. In the 1990s, the myth of a youthful superpredator reigned supreme, and as CJI’s Len Engel said in an interview, this one case “framed policy decisions across the country.” It was later found that prosecuting kids as adults resulted in a greater return to crime, led to more sexual assault and created a greater risk for suicide. States started back-peddling, but New York is still the only state other than North Carolina that treats all youth as adults when they turn 16.
Laws Named After Girls
A quick look at some of the laws that have been created because of brutal crimes finds that many are named after children, and especially white girls. In response to brutal sex crimes, Pennsylvania has “Megan’s Law,” Florida has “Jessica’s Law,” and Massachusetts has “Melissa’s Law.” In response to violence by individuals with mental illness, New York has Kendra’s Law, and after Caylee Anthony went missing, New Jersey enacted Caylee’s Law which involves punishment for not reporting a missing child.
All these laws play on emotion. But according to Susan Sered, professor of sociology at Suffolk University in Massachusetts, this is a double-edged sword. “Women are more likely to be raped and murdered,” she said, but added, “Laws are named after girls because victims and girls are synonymous in our culture, associated in the social imagination. If there’s a girl’s name associated with the law, it’s easier to imagine the horrible things that happened to her. Horrible things do happen to woman and girls, but a lot of these laws are named after somebody because of an advocacy group.”
Laws named after children are supposedly “on the wane,” according to USA Today, but proposing new laws in the wake of brutal crimes seems to be alive and well.
New Public Policy Might not be the Answer
The anger is understandable. But anger is a bad reason to push through public policy without extensive study. As journalist Radley Balko said, writing about creating new laws with criminal ramifications, we have to consider: “Will the law actually address the problem it is intended to address? Is it enforceable? What are some possible unintended consequences of this law? Could it be abused by police and prosecutors? Laws named after the victims of brutal crimes make it difficult to ask these questions, especially for politicians.” While it is understandable that victims want to remember their loved ones, a new law might not be best for the community.
If past experience has anything to teach us, we need to take time to investigate the problem from all sides, and this can take years, not months. After a Connecticut 17-year-old, committed suicide in an adult prison, Citizens for Juvenile Justice reported that the state, led by the Connecticut Juvenile Justice Alliance, convened “legislators and leaders from area school districts, community organizations, state agencies and family advocates from around the state [and] met over the course of two years to discuss the best ways to improve outcomes for youth and communities.” This led to many stakeholders transforming the juvenile justice system so that those as young as 16 no longer are tried as adults. The keys here were both community involvement and a thoughtful plan.
Laws do not always have to be changed to improve safety. And not supporting a new law does not mean we are not supporting the family of the victim who died.