Sentencing Youth as Adults Harms Us All


On August 15, 2012, when most teenagers were enjoying the last few weeks of summer vacation, 16-year-old Fernando Garibay-Benitez was shot in the head outside an apartment complex on Rolling Green Court in Raleigh, N.C. A rising sophomore at Millbrook High School who played soccer, Fernando was dead when police arrived.

By the end of the next day, a 13-year-old and a 15-year-old had been arrested in connection with the shooting. Their names have not been released, because state law requires that juvenile court records be withheld from the public absent a court order. The juveniles have been charged with first-degree murder. If the state demonstrates at the next hearing that there is “probable cause” or a reasonable ground to suspect that the youths committed the crime, they will be tried automatically as adults in state superior court. Consistent with the recent U.S. Supreme Court decision in Miller v. Alabama, if convicted they will face sentences of either life without parole or life with the possibility of parole after 25 years imprisonment.

It has not always been possible for kids as young as 13 to be prosecuted as adults in North Carolina, but a single case two decades ago brought about a change in the law.

When 13-year-old Gregory Gibson brutally murdered an elderly widow in 1992, he was given the harshest penalty available at the time: commitment to juvenile prison (formally known as “training school” or “youth development center”) until his 18th birthday. As a result of public outcry over the state’s inability to try Gibson as an adult, the Legislature subsequently lowered the minimum age of transfer to 13.

North Carolina is not alone in its ability to try very young teens in adult criminal court. In fact, more than 30 states allow for this type of “transfer” to occur at age 13 or younger, with approximately 20 states not imposing any age restriction at all for certain offenses.

Although there have been a number of promising reforms over the past five years in which states have amended their laws to keep more young offenders in the juvenile system, an estimated 250,000 youth under 18 are prosecuted in the adult criminal justice system each year. Yet, research shows that the consequences of an adult conviction are serious, long-lasting, and potentially life-threatening for young offenders and that laws allowing such prosecutions are ineffective at deterring crime and reducing recidivism.

The question remains: Why do most states continue to prosecute, try, sentence, and incarcerate juveniles as though they were adults?

After reading an online article about the recent Raleigh shooting, I scanned the comments.  Most were extremely hostile toward the young defendants, expressing a variation of the following: “You do the crime, you do the time,” “Even seven-year-olds know that murder is wrong,” and “Their mothers are to blame.” A few readers even demanded: “Fry them.”

My initial reaction was cerebral. We can’t “fry them,” I thought, because the U.S. Supreme Court in Roper v. Simmons held that capital punishment for juvenile offenders violates the Eighth Amendment. Adolescents may “know” something is wrong, but they are impulsive, vulnerable to peer pressure, and unable to appreciate the consequences of their actions; as a result, they make bad decisions that can end in tragedy. If mothers are to blame, what about fathers, teachers, and neighbors? Besides, what is the point of blaming anyone for the actions of an adolescent? Don’t we all share responsibility when something like this occurs?

Soon enough, however, my rational response devolved into frustration and despair at the insensitivity and ignorance expressed in the comments. Why do we demonize young offenders? Why do we persist in treating them as “other”? Why is it that Norway sentences Anders Behring Breivik, a 33-year-old who admitted killing 77 people in a shooting massacre last year, to 21 years in prison, while the United States incarcerates people for 50, 60 and 70 years for crimes committed when they were teenagers?

I tried to imagine how I would feel if someone I loved were murdered by a juvenile. Anger, horror and devastation, of course, but would these feelings be lessened by the knowledge that the offender would be prosecuted in adult court and incarcerated for many, many decades? Upon learning of Breivik’s sentence, the most severe allowed under Norwegian law, the father of one of his victims was satisfied. “Now we won’t hear about him for quite a while. Now we can have peace and quiet,” said Per Balch Soerensen, whose daughter was killed by Breivik.  “He doesn’t mean anything to me, he is just air.”

These words reminded me of those recently expressed by Mary Johnson, an American mother whose son had been murdered by a teenager who served less than 20 years for the crime. She has learned to forgive and ultimately befriended her child’s killer, O’Shea Israel.

She has come to recognize that the 35 year-old man standing beside her is no longer the 16 year-old boy who had taken her son’s life.  She supports and publicly advocates for fair prison sentences for youth.

Mary Johnson has found peace.

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Tamar Birckhead

Tamar Birckhead is an associate professor of law at the University of North Carolina at Chapel Hill and a criminal defense attorney with more than 20 years of experience. She is a faculty supervisor of the UNC Juvenile Justice Clinic, an academic program in which third-year law students defend children charged with criminal offenses in juvenile delinquency court. Professor Birckhead’s research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, and indigent criminal defense; her scholarship has been published in numerous law journals, and she co-edited the third edition of a law school casebook, Children, Parents, and the Law, with Professor Leslie J. Harris. She also regularly writes commentary, which has been published in the Los Angeles Times, and she recently launched the Juvenile Justice Blog. Prior to joining the UNC faculty in 2004, Professor Birckhead practiced for 10 years as a public defender, representing indigent criminal defendants in the Massachusetts trial and appellate courts and in federal district court in Boston. Professor Birckhead has defended clients in a wide variety of criminal cases, from violent felony offenses in state court to acts of terrorism in federal court. Among her clients was Richard Reid, the attempted "Shoe Bomber" prosecuted in the First Circuit under the U.S.A. Patriot Act. Licensed to practice in North Carolina, New York, and Massachusetts, Professor Birckhead has been a frequent lecturer at continuing legal education programs across the United States as well as a faculty member at the Trial Advocacy Workshop at Harvard Law School. She received her B.A. degree in English literature with honors from Yale University and her J.D. with honors from Harvard Law School, where she served as Recent Developments Editor of the Harvard Women's Law Journal.

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