On October 14, 1982, Ronald Reagan officially declared the war on drugs, a policy that would send millions of people to prison for low-level drug offenses and lead to a quadrupling of the number of people incarcerated between 1980 and 2008.
States across the country passed mandatory minimum laws for nonviolent drug offenses – by 1983, 49 states had mandatory sentencing laws. The Anti-Drug Abuse Act, passed in 1986, established five- and ten-year sentences for people caught distributing or importing drugs, further increasing the number of people serving long sentences.
Most of them would be African-American and Latino – the groups together comprised 58 percent of all prisoners in the United States in 2008, even though they were only about 25 percent of the general population.
Less widely documented is the role that drug arrests have played in juvenile incarceration. According to the Juvenile Justice Information Exchange, drug arrests are now the leading cause of youth confinement.
The recent calls for mandatory minimums for gun possession in light of the shootings in Newtown, Connecticut and the rising urban violence Chicago have led some advocates to wonder what effect this will have on the trend away from incarceration in juvenile justice reform.
“What this push speaks to in general is the desire for more penalties and increased criminalization as the answer to gun crime,” said Angelo Pinto, campaign manager for the juvenile justice project at the Correctional Association, which advocates for a “more humane” justice system.
“It doesn’t address how guns are getting into the hands of young people, and it doesn’t really address the issue of violence,” said Pinto. “And when they come out of being incarcerated, they are not rehabilitated.”
Pinto and the Correctional Association are one of the groups at the forefront of a “raise the age” bill in New York State, which would mandate that 16- and 17-year-olds would be tried in juvenile courts, regardless of their crime. Under current law, only New York and North Carolina still automatically transfer youth under the age of 18 to criminal court.
Identical legislation that “raises the age of criminal responsibility to eighteen years of age” was introduced in New York State’s House and Senate. Another bill introduced in the most recent legislative session proposes to change the juvenile delinquent state age from 16 to 17 years of age.
Pinto says that the push for mandatory minimums, and the damage that harsh legislation can do on the state level, can be seen in the effects of the Rockefeller drug laws, put into place under Gov. Nelson Rockefeller, which swept New York in the early 1970s.
Following a rise in drug use and a trend toward hysteria around drug-related crime, New York enacted mandatory minimum sentences that made the sentence for possession of some drugs equivalent to the sentence for second-degree murder. Someone caught with four ounces of drugs would face from 15 years to a life sentence behind bars.
New York saw drug offenses behind bars surge and took away judges’ ability to exercise discretion. Former New York Gov. David Paterson, during a State of the State address, said, “I can’t think of a criminal justice strategy that has been more unsuccessful than the Rockefeller Drug Laws.”
The gun control legislation being put forward by groups like Mayors Against Illegal Guns, an organization of mayors promoting tougher federal, state and local gun regulations, includes some calls for mandatory minimums. Mayors Against Illegal Guns did not respond to repeated requests for comment.
New York passed a bill that some have called “the toughest gun control measure in the country,” and which includes increasing prison sentences for using guns in certain crimes or taking them onto school grounds.
A bill recently introduced in the Illinois General Assembly would increase penalties for, among other things, the “unlawful possession of a firearm by a street gang member,” and mandate that “a street gang member shall receive no more than 4.5 days of sentence credit for each month of his or her sentence of imprisonment.”
Nation Inside, an organization working to change the US justice system, said the Illinois bill would only allow “legislators pretend to address the problem of gun violence by sweeping more young people in prison. HB2265 would spike the prison population by thousands in just a few years, for no public safety gain.”
Chicago police have also been accused of applying the term “street gang member” to a person linked with any shooting or death that take place in low-income neighborhoods, which residents say undermines the complexity of the causes of gun crime and could lead to harsh penalties applied to those deemed “gang members,” with little oversight.
Peter Leone, executive director of the Justice Policy Institute, says that while he understands the recent worry over gun violence, zero-tolerance policies aimed at juveniles have been proven to have negative effects.
“I don’t have any problem with schools putting in policies that keep students safe,” he told Truthout, “but it belies the extremely low rates at which guns and other weapons are brought into schools.”
“One of the problems that has happened over the last 15 or 20 years with zero-tolerance policies that schools have implemented is they have often swept up many kids in a system that has unfairly affected low-income and minority youth, and whose education careers have been upended by policies supposedly designed to protect children,” said Leone.
Youth of color deal with disparities in several areas. In schools, they are more likely to receive harsh discipline. Black and Hispanic students make up more than 70 percent of juveniles who are referred to law enforcement through their schools.
Black youth make up more than 17 percent of the young people in the United States, but they are 30 percent of juveniles arrested and 62 percent of minors tried in the adult system, the Campaign for Youth Justice found.
In the case of drug use, for example, youth of color use and sell drugs at similar rates to those of white youth, according to Human Rights Watch, but are significantly more likely to be arrested for drug offenses.
Leone also notes that research has found harsh penalties don’t deter youth from committing crimes, but that counseling and support are more likely to help.
“Zero tolerance totally misses the developmental differences between children and adults,” he said. “If children make mistakes, particularly if it involves guns or weapons, zero-tolerance policies make it very difficult for them to ever recover.”
Research has shown that the effects of strict laws for juveniles do little or nothing to result in lower crime rates.
When Malik Gardner was 15 years old, he stole an iPod. And when he stole that iPod, along with his brother, he says, he beat up the kid he stole it from. Gardner was given a felony, charged with robbery and assault. But because he was only 15, the state gave him youth-offender treatment.
If he had been only one or two years older, he could have gone into the adult system.
“That was the first time I ever committed a crime,” he said. “Just because you commit a crime, that doesn’t mean you are a criminal. It might be just that one crime, you need to get that money, some people’s parents are out of work.”
Gardner says says many juveniles who commit crimes don’t realize that it could haunt them for life.
“At that age, we don’t really know what’s going on,” he said. Many of his peers “don’t know that if they commit a crime, they can get that felony.”
And with that, said Gardner, “I would say in my head, Man, I can’t get a job with this felony, people are going to think I’m a career criminal.”
Gardner says he hasn’t been in trouble with the law since his first arrest – and he doesn’t plan to be. He is attending the Borough of Manhattan Community College, where he is taking classes in criminal justice.
His narrow escape has also helped make him an activist, he said.
“I want to be able to help people out, speak up.”
The number of juveniles behind bars has dropped by about a third since 1999, when it reached a high of 107,000 young people confined, according to a recently released report by the Justice Policy Institute.
These changes can be attributed to breakthroughs in how juvenile psychology is understood, the high cost of detention, and a shift in the national discussion around crime and punishment.
“I think that we swung so far one way that it was almost inevitable that we would come back,” said Spike Bradford, a senior research associate at the Justice Policy Institute, about the harsh laws instituted in the 1980s and 1990s.
“It’s really expensive to treat youth as adults in the justice system, and as more and more research comes out and shows that treating young people as adults in the justice system is really counterproductive, laws have responded to that.”
At the state level, the majority of states have changed their juvenile justice laws to either bring most youth under age 18 into the juvenile system or grant judges discretion to bring juveniles to family court instead of criminal court.
Several Supreme Court decisions over the past seven years have also changed the way the law sees juveniles. According to The New York Times, these are: “a ruling that barred the death penalty for juveniles in 2005; one that banned life in prison for juveniles convicted of crimes other than homicide in 2010; and now [a] ruling that rendered invalid state laws requiring youths convicted of homicide as well to die in prison.”
Leone, with the Justice Policy Institute, says he would like to see an alternate way of dealing with juveniles.
“There is a lot of evidence that intervening early and proactively finding supports that can prevent kids from getting in trouble, and keeping guns out of the hands of children in general,” is the right way forward.
“If you read the literature about the implementation of zero tolerance, that should give pause to anyone who wants to implement policies that removes kids from school and positive pro-social environments.”
He also hopes that the push for harsh measures won’t take away discretion from judges, the way it happened with the drug laws of the 80s and 90s.
“Discretion is everything,” said Leone.
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