“The Central Park Five,” the powerful documentary by Ken Burns and his daughter, Sarah, recounts the police trickery and intimidation that led a group of innocent youths aged 14 to 16 to confess to the brutal 1989 rape of a young investment banker jogging in Central Park. The natural reaction from many viewers was: “How horrible things used to be.” Sadly, the reaction of most of us in the juvenile justice community has been: "When will it ever change?"
Before the dawn of DNA fingerprinting, confessions served as nearly ironclad evidence for the prosecution. But we now know that many people confess to crimes they did not commit. While they do it for a host of reasons, the pressure of plea bargaining is a common cause.
This problem is particularly egregious among young people, who are more susceptible to giving false confessions than adults. The American Academy of Child & Adolescent Psychiatry recently issued a statement calling for special protections for minors when being questioned by police. It recommends the presence of an attorney, the use of terms and concepts that match the developmental ability of the youth, and the video recording of questioning.
These are good ideas. A major 2004 study found that of 125 cases of proven false confessions, 63 percent occurred when the accused was under the age of 25, and 32 percent were from suspects under 18. While the numbers may be shocking, it should not be surprising that youths are more easily intimidated and less adept at understanding the ramifications of their statements.
I encountered one vivid example of this with a boy I represented when I first started practicing law. He told me he was innocent and, as I investigated the case, I found that all the evidence was strongly in his favor. I knew that I could get his case dismissed within two or three days. But then a plea was offered by the prosecutor and, suddenly, I faced a client who desperately wanted to plead guilty so that he would get released immediately. Why? It was Halloween and he didn’t want to miss out on trick-or-treating with his friends.
Young people who are treated as adults and processed in the adult criminal system are particularly vulnerable to making false confessions, yet in many circumstances children are automatically processed in the adult system. New York sets the age of adult criminal responsibility at 16, no matter how minor the offense, as does North Carolina.
My state, Massachusetts, sets it at 17, along with eight other states. Even in the 39 states that set the age at 18 for most crimes, there are too many circumstances that allow much younger kids to be sent to adult courts and adult prisons. Often a prosecutor, not a judge, decides whether a child will be tried as an adult.
Trying kids as adults is disastrous for them and for society. It is well documented that recidivism rates are lower when kids remain in the juvenile justice system, where they must participate in age-appropriate education and counseling. An adult record is a barrier to many of the key stepping stones to a successful future, such as college admission, employment, and military service. Confinement in adult facilities also puts minors at high risk of suicide and physical or sexual assault.
These are just some of the many good reasons why kids who have broken the law should be held accountable for their actions in the juvenile justice system rather than the adult system. But there is an even more fundamental reason for raising the age of adult responsibility: When we try kids as adults, the risk of convicting the innocent is unacceptably high.
Most states require that a parent be present when a young person is brought into their juvenile systems. But when state law labels a child an “adult” for the purposes of criminal prosecution, parents don’t even need to be notified of an arrest.
Fortunately, momentum has been building in states to raise to 18 the age when youths are treated as adults in the criminal justice system. Here in Massachusetts and in every other state where the age is lower than 18, advocates are working to raise it. Kids are different from adults in lots of ways that have a direct impact on how justice is ensured in America. Kids focus on short-term “fixes” and are not particularly good at seeing the long-term consequences of their actions. That’s why lawyers who represent teens want a parent in the room.
My client did not go trick-or-treating that night. I don’t take credit for that; his mother stepped in to stop her son from making a disastrous decision. That’s what parents do. They use their maturity and experience to protect their children. The law should never prohibit them from doing so.
Lael Chester is the former executive director of Citizens for Juvenile Justice.