OP-ED: What If We Made Juvenile Justice Decisions Without Politics of Fear?

February 17, 2015

Who are we fooling when systems place more weight on the emotion of the crime than on the needs of the youth when deciding incarceration? I get it that humanity, despite our intellectual capacity, are creatures of emotion and subject to irrational decisions when confronted by hurtful events that inflame our hearts with anger.

We may be able to land humanity on the moon, but let’s not forget that it’s the same humanity that can lose its collective temper and kill in a moment of passion. The Salem witch trials and mob lynchings, plus literary and filmography masterpieces like “To Kill a Mockingbird” and “The Ox Bow Incident,” show the extent to which humanity can sink when our passions are not in check.

Even the somber atmosphere of a courtroom can still succumb to impassioned emotions that seep into our handling of juvenile cases. Let’s not be fooled by our commitment to the rule of law and the majestic appearance of robed judges. These appearances may mask our ignorance of what's the right thing to do — to embrace objective tools to identify risks and needs for the most effective disposition of a youth.

A kid may have done a horrible thing, but what we do to that kid must be decided by the totality of his circumstances — not on the crime alone. Our justice systems are only as good as our willingness to recognize our weakness against the politics of fear and our courage to embrace empirically researched proven assessment tools and best practices.

We are in the risk-taking business. Our rehabilitative success is directly proportional to our understanding of the law of probabilities. We do the best we can to minimize those risks using the best practices, but bad things will happen despite these best practices.

Humanity is prone to runaway minds like a train speeding down the track without an engineer. We imagine the worst-case scenarios if we were to keep the kid in the community. The engineer — analogous to the body of empirical evidence — has a hand on the throttle, pulling it back to slow the train down.

This reminds us that in many instances incarceration brings safety for a moment, but that everyone returns home worse off than when they left. This is similar to the logic found in the saying, “He who fights and runs away may fight again another day,” except another day in our existence will likely result in a bigger monster — and one we can’t slay.

There is a reason we call it best practices. Behavioral sciences and perfect practices are not synonymous. Doing what is right is doing what is best, and what is best always involves some risk. The differential between “best” and “perfect” practices represents the unknown risks, which are far fewer than the differential between “perfect” and “intuitive” practices.

It’s like coming to a fork in the road and asking, “Which one is the safest?” while knowing full well that safest is not perfect, and may be a longer road.

At the core of best practices is the ability to separate the sheep from the wolves at the front door of the system. This is done by calculating the probability of future recidivism — those most likely to reoffend.

When we fail to target the wolves for intensive services while simultaneously failing to divert the sheep from the wolves, the justice system becomes a system of misfeasance in which our lawful authority is injurious to others. It’s egregious enough that our good intentions to reform kids fail, but there is no excuse when our neglect makes more victims out of innocent citizens.

What we seldom discuss is the white elephant in the room called the politics of fear that the appearance of being soft will cost me my job; or worse, that one of those kids pulled from the deep end goes on to seriously hurt or kill someone.

There is risk either way, but which way is the safest? It is a “damned if you do and damned if you don’t” scenario. But it doesn’t have to be that way if we are informed by best practices and the law of probabilities to reform juvenile justice.

One more thing: We must agree to stop sensationalizing bad events when they do happen, knowing fewer occur in a best practices system than a strict “get tough” system.

Since creating our “deep-end” program in 2010, 48 kids who were recommended for Georgia youth prison have graduated and only 6 percent have reoffended — but of all kids sent to prison, 65 percent reoffended. The law of probabilities tells us that had I sent the 48 to prison, 31 would have returned home to victimize others and probably in ways more harmful than before due to their harsh experience while incarcerated.

This also means that the risk of serious harm of an innocent citizen is greater where we fail to identify the kids best suited for intensive community-based services as opposed to prison. Here is the rub: The media in all its sensationalism crucifies the judge who kept the “killer” out while overlooking the greater number who will hurt others upon release from prison, including murder.

Understandably, we can be quick to say that if the judge had sent him away, this wouldn’t have happened. But the law of probabilities, when we do best practices correctly, informs us that we should also be asking whether, if he had been placed in an effective community program, this probably wouldn’t have happened.

Both scenarios are true, except one occurs more often than the other.

Which road will you choose?

Steven Teske is chief judge of the Juvenile Court of Clayton County, Ga., and vice chairman of the Governor's Office For Children and Families. He is a past president of the Council of Juvenile Court Judges and has been appointed by the governor to the Children & Youth Coordinating Council, DJJ Judicial Advisory Council, Commission on Family Violence and the Governor's Office for Children and Families.

This is originally posted on Juvenile Justice Information Exchange. It is reprinted here with permission.

Judge Steve Teske