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Reducing Over-Incarceration Isn't Just a Grown-up Problem

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Co-written with Marsha Levick, Deputy Director and Chief Counsel at Juvenile Law Center

The United States leads the world in its rates of incarceration. Attorney General Eric Holder recently took an important first step in reducing the federal prison population when he announced that he will instruct United States Attorneys to avoid charging low-level, nonviolent drug offenders with crimes that trigger severe mandatory minimum sentences.

The next obvious step is to bring the United States in line with a series of recent U.S. Supreme Court decisions that recognize juvenile offenders as being immature, impulsive, and highly susceptible to peer pressure, and therefore less culpable than adult offenders. Unfortunately, most states still punish youth without regard to these findings. Attorney General Holder should now tackle the extreme sentencing of youth.

In the late 1980s and early 1990s, a surge in violent youth crime led crime control conservatives to predict a "coming Armageddon" of "superpredators" -- remorseless, juvenile criminals who would run wild in the streets raping, killing, and maiming anyone who got in the way. This prediction seduced politicians from both the left and the right, and led candidates to adopt popular tough on juvenile crime slogans like "adult crime, adult time." Fear of superpredators and sensationalized media coverage led the federal government to increase its involvement in juvenile crime matters and promote grossly inappropriate sentencing guidelines for youthful offenders.

Although the federal government prosecutes only a small number of juveniles each year, it can play a leading role in shaping criminal justice policy by providing incentive grants to states that pursue its policies. The superpredator-theory led Congress to condition the receipt of federal money upon states cracking down on youthful offenders. Between 1993 and 1999, virtually every state in the country enacted new laws aimed at prosecuting more juveniles as adults. At the same time, states increased "adult time" by requiring increased mandatory minimum sentences, "truth in sentencing," gun enhancements, "three strikes" and the abolition of parole. Between 1990 and 2000, the number of persons incarcerated in state prisons nearly doubled, rising from around 700,000 inmates in 1990 to more than 1.2 million inmates in 2000, and costs to state taxpayers rose sharply, almost bankrupting some states.

In the case of juveniles, the federal incentives were premised on faulty information and false fears. Instead of confronting a new generation of superpredators, juvenile violent crime plummeted to record lows. By 2001, then Surgeon General David Satcher declared the superpredator threat a myth. Even its most vocal proponent, John DiIulio, backtracked, saying that Congress distorted his message and that he never intended for legislatures to pass such punitive laws against juvenile offenders. Recently, Mr. DiIulio backed up his words with action, supporting the successful challenge to life without parole sentences for juvenile offenders in a case before the Supreme Court.

Now that the superpredator-myth has been discredited, the attorney general should revisit the draconian laws that were passed in its wake. He should follow the Supreme Court's lead and declare what science and common sense teach: The actions of teens should not be treated the same as adults. He should be clear that juveniles will be held accountable, even occasionally punished as severely as adults for certain rare, horrific crimes -- but he should give judges the option of punishing other youth less severely, based upon their individual circumstances. He should reward states with incentive grants for passing laws that keep more youth in juvenile court where they belong and that give judges the discretion to opt out of mandatory minimums, gun-enhancements, "truth in sentencing" and other "automatic" adult sentencing schemes that continue to fill our adult prisons with young people.

Now is the right time for Attorney General Holder to lead the way and speak up for America's children, not only to remedy past mistakes but to make sure those mistakes and injustices are not continued.

Steven A. Drizin is a Clinical Law Professor at Northwestern University School of Law.

Marsha Levick is the Deputy Director and Chief Counsel at Juvenile Law Center