Thursday, March 05, 2015

Pragmatic arguments the strongest for 'raise the age' proposal

In politics, wisdom counsels humility when one's opponents make true, valid arguments undermining one's position. So let's acknowledge the truth of criticisms regarding the proposal to raise the age of criminal culpability in Texas from 17 to 18, a measure endorsed in the House Criminal Jurisprudence Committee's interim report.

Over at the Texas Tribune, the Marshall Project's Maurice Chammah has a feature story on the topic, which he's covered before. Like an Austin Statesman editorial earlier this week, Chammah pins the bill's fate largely on the shoulders of Senate Criminal Justice Committee John Whitmire, a critic of the idea who recently told the Houston Chronicle, "I think at 17 you should know right from wrong.”

And you know what? Whitmire's right. I laughed aloud when I read that quote, not at the senator but at my own expense. A couple of weekends ago, my granddaughter was visiting. Following an uncharacteristically rude display toward another child, and a self aggrandizing attempt to justify it, I told her, near verbatim, "You are eight years old, you know right from wrong." And so admonished, she trundled back to issue a half-hearted apology to the slighted party.

So I'm not one to accept such excuses from kids. If I won't tolerate it from an eight year old, I've even less sympathy when you're 17 (barring mental illness or developmental disabilities). But to me, that's beside the point.

At 17, the issue isn't whether you know right from wrong, it's that you think you're right about everything, even if you're profoundly wrong. A combination of incomplete brain development and a lack of personal experience combine to create a strongly held but myopic worldview (a.k.a., immaturity).

But the most compelling reasons Texas should "raise the age" have nothing to do with one's sympathy for the defendants. Being out of kilter with federal law creates looming, practical problems: For example, Texas county jails face potentially budget busting civil litigation if they fail to comply with the strictures of the Prison Rape Elimination Act, which would require adult jails to renovate and staff up portions of their facilities where 17 year olds are held to meet the more stringent juvie standards.

Numerous other situations arise, big and small, where the disjuncture between state and federal law creates problems for front-line practitioners. In recent years, perhaps the most prominent example has been on capital punishment, where Texas having a different age from the feds has created tremendous, ongoing legal complications. The law would be cleaner and simpler if state and federal law were in synch.

Finally, I think most voters will find the normative argument put forward by the Houston Chronicle compelling: “In Texas, you have to be 21 to apply for a concealed handgun, 18 to play the lottery and 18 to get a body piercing without a parent’s consent. Yet a nearly century-old Texas law treats a 17-year-old who shoplifts an iPhone as an adult criminal.” When you can be charged with a felony as an adult but still aren't old enough to get your ears pierced without parental permission, something's amiss.

Prosecutors can always seek to certify 17 year olds as adults if they commit very serious crimes. But for the workaday stuff, it makes more sense to treat them through the juvenile system, just like the overwhelming majority of other states and prevailing federal law. Not because they don't know right from wrong, but because we do.

10 comments:

  1. "The law would be cleaner and simpler if state and federal law were in synch."

    Why isn't this argument/logic applied with marijuana legalization? The feds do not believe in legalization of marijuana and probably never will. They are right.

    Even if this statute changes, I betcha' Whitmire would prefer if it did not change.

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  2. There are different levels of maturity. Some kids handle peer pressure, others not so well. Knowing right from wrong doesn't help you understand the far-reaching consequences of getting caught shoplifting that bra and thong ensemble.

    Lastly, every defense attorney practicing for more than a month can tell you that most 17-year-olds think they will be prosecuted as juveniles. Never met one yet who thought he'd be treated as an adult. They probably don't read GFB yet...

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  3. At 17, the issue isn't whether you know right from wrong, it's that you think you're right about everything, even if you're profoundly wrong. A combination of incomplete brain development and a lack of personal experience combine to create a strongly held but myopic worldview (a.k.a., immaturity).

    It not just 17. They still immature even when they 47.

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  4. @5:55, pot creates no such practical problems because the feds have decided not to supercede state law, even if technically they could. If you can get the feds to decide not to implement PREA (good luck), maybe the analogy would work.

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  5. The "Raising the Age" and "PREA" topics have received a lot of debate over the past few years. I believe from a philosophical standpoint it is sound. However, from the standpoint of practicality money drives everything. Some areas are equipped to be able to take this added population into the juvenile system but MANY more are not. Looking only at the funding issue it is much more costly to handle the 17 years under current statutes in the juvenile system. You won't find many out there that will argue loudly that 17 year olds should not be treated as a full all out adult but dropping them into the juvenile system will create a financial burden. The LBB should be tasked to provide a fiscal note on this subject I would assume and that study will be key in garnering support for or against raising the age.

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  6. I agree, 8:09, good analysis. The flip side, though, is that county jails must now renovate and staff up to meet PREA standards for 17 year olds and that costs money, too. So both routes will cost locals more money - they're screwed either way.

    Also, if they close more juvie units they'll free up money to shift downstream to help with that.

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  7. And why again is it that we have to follow the Feds lead on everything? Oh, I'm sorry. I forgot that's how liberals like it. See, e.g., Obamacare.

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  8. @10:37, the answer is because PREA creates civil liability for agencies that don't follow it and counties don't want to raise taxes to pay for loser lawsuits.

    You may think it's fine to roll the dice, but managers have to actually consider the real world consequences of foolhardy choices.

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  9. @10:37 The Prison Rape Elimination Act was signed by President Bush in 2003.

    Some people will automatically blame Obama for anything.

    Stubbed your toe? Thanks Obama!

    Bit your tongue? Thanks Obama!

    Wife left you? Thanks Obama!

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