Fernale McAtee remembers how abruptly things changed, how his minor scrapes with the law suddenly began having major consequences. To him, it seemed a bit opportunistic.
"When I turned 17, it was like, 'Now we got you!" says McAtee, who lives in Madison and works for Operation Fresh Start, a local youth intervention program. "Now we can charge you as an adult."
In Wisconsin, 17-year-olds are treated as children in almost every respect. They are too young to drink, vote or sign a legally binding contract, too young to marry or join the military without parental consent. But when they are accused of breaking the law, they are considered adults, tried in adult courts and sent to adult institutions.
In 1996, Wisconsin became one of just 13 states to take this hard-line approach. Now, there is growing sentiment that this was the wrong way to go.
Research over the last 10 years, spearheaded by the National Institute of Mental Health, affirms that the adolescent brain is different, making it more likely that young people will engage in impulsive behavior and exercise poor judgment. And a recent state study shows that Wisconsin 17-year-olds treated as adults are more likely to end up back behind bars.
In "Rethinking the Juvenile in Juvenile Justice," the Wisconsin Council on Children and Families argues that 17-year-olds need juvenile programs, not adult detention. The report recommends making use of new findings about the workings of the adolescent brain to develop more effective intervention programs - not continue trying to teach kids lessons by inflicting punishment.
A growing number of lawmakers favor restoring the age of legal adulthood for criminal justice purposes to 18.
"At first, there was not a lot of support," admits state Rep. Tamara Grigsby (D-Milwaukee). But then the measure drew support from Republicans including Rep. Don Friske of Merrill. Grisby calls it a "more effective way to deal with juvenile justice issues and reduce recidivism."
And while the bill appears to have died in the current legislative session, prominent players on both sides of the criminal justice system agree on its merits.
"We know these kids are not adults, that they don't have impulse control," says Catherine Dorl, who heads the state Public Defender's Madison office. Besides, "Over the long term, the juvenile system has to have a lower recidivism rate than pushing a 17-year-old into the adult system for minor infractions."
Dane County District Attorney Brian Blanchard believes in "building criminal histories [to] hold people accountable for their behavior." But he calls the adult criminal justice system a "blunt instrument" that doesn't provide the range of services that can benefit juvenile offenders - most of whom don't pose a significant public safety threat.
"Philosophically, other DAs agree with the change as well," he says. "But I'm not convinced there would be sufficient funding in the Wisconsin juvenile system to support it, which is not a trivial point."
Others flatly oppose such a change.
"Many kids making bad decisions at 17 would probably be making the same bad decisions at 18 or 19," says state Rep. Robin Vos (R-Racine). "If we had unlimited resources, it might be a worthy discussion. But we have to balance competing demands."
Showing kids who's in charge
During the mid-1990s, sensationalized accounts of teenage "super-predators" committing heinous crimes swept the country. Members of the public demanded to be kept safe from these baby-faced murderers, and politicians saw these fears as an opening to create tougher crime legislation.
Southeastern Wisconsin served as ground zero for the 1996 law. A Racine County Judge, Dennis Barry, served on the commission that recommended reducing the age to 17, largely in response to problems with gangs.
"Racine was more in the mode of 'show kids who's in charge,' and was using secure corrections a lot more," says Ken Streit, a UW-Madison law professor and juvenile justice expert. "Barry was a proponent of putting kids into secure protection, which was contrary to actual research."
Streit says no large-scale studies established real trends in juvenile crime. Politicians routinely cited a 500% increase in teen crime. But in fact, the number of so-called super-predator crimes was low to begin with, so even a mild uptick could produce a 500% increase.
What research did exist, he says, showed that locking up young people in detention centers and the like "didn't have any long-term effect. Kids ended up hanging out with the wrong kinds of kids, and [the experience] interrupted prospects of getting them back into school."
According to a Legislative Audit Bureau study released last month, an average of nearly 30,000 Wisconsin 17-year-olds were arrested each year between 2001 and 2005. About a third of these arrests involved property crimes; only 15% involved crimes against people. The study also found that the incarceration rate for African Americans charged with felonies was 21% for one five-year period, compared to 19.4% for Hispanics and 4.2% for whites.
The main engine driving Wisconsin's policy is that if teens commit "adult" crimes, they ought to be serve adult time. This assumes they are adult enough to grasp the corrective power of punishment - and be scared straight.
But the Audit Bureau study suggests this isn't happening. It found that 17-year-olds released from prison in 2002 and 2003 were re-incarcerated at more than twice the rate of adult offenders released during those years, and at nearly twice the rate of offenders released from juvenile institutions. And only half of the 10,500 17-year-olds sentenced to probation between 2002 and 2006 completed it successfully.
A national assessment by the MacArthur Foundation reached a similar conclusion: In states where teens are processed in the adult system, recidivism is high. A recent audit in Florida revealed that juveniles in the adult system had a 49% recidivism rate.
Professor Streit suggests sending 17-year-olds to adult prison undermines their rehabilitation: "Recidivism is high in adult facilities, and therefore, concepts of accountability are lower." Kids come out hardened, less able to reintegrate into society.
The shame of it, notes Streit, is that "It wasn't necessary to change the age from 18 to 17 to begin with, because waiver into the adult system has always been a legal option for kids who showed a clear pattern of a 'career' of crime."
No longer a kid
As an adolescent, Fernale McAtee had a few brushes with the law - things like truancy, and getting into fights. That's not surprising, given his circumstances.
The Beloit native, who'll turn 19 this summer, says his father has been incarcerated since he was 9 years old; his mother has problems with drug and alcohol abuse.
In July 2006, one month after his 17th birthday, McAtee was charged with felony possession of marijuana with intent to deliver in Chippewa County, where he was living at the time. In the end, this charge was dismissed, and McAtee was found guilty only of noncriminal possession, for which he paid a small fine.
That September, when McAtee was 17 years and three months old, he was charged with multiple criminal counts, including one felony, for intimidating a witness. He says it was over an incident in which he slapped a cell phone out of someone's hand while they were talking to the police. The felony charge was dismissed, but he was convicted of misdemeanor battery and disorderly conduct, and given a 12-month suspended sentence. He says he only spent about 10 days in jail.
"It was life that helped me to change," he reflects. "It wasn't the jail. Jail makes you look at stuff in a different way, but it doesn't change you. And sometimes when you're sitting up in there, it makes you think of things in a worse way. [And] when you get out you're just back to the same thing."
McAtee successfully completed his probation and has not gotten in trouble since. (He also has a few ordinance violations from mid-2006, including, ironically enough, being cited as an adult for underage drinking.) He remains eligible for expungement, the one break Wisconsin still provides to young people.
Because he's under 21 and was convicted only of misdemeanors, he can have his convictions dismissed. His arrests would still be a matter of public record, but he could truthfully contend, on a job application for instance, that he was never convicted of a crime.
All that fighting with authority figures aside, adolescents may be their own worst enemies. A boy might not see any downside to skateboarding off a roof. A girl might think, "There's no way I'll get pregnant" while deciding to have unprotected sex.
Bad judgment? You bet. But they may not be able to help themselves.
Teenagers use an immature intellectual process to determine whether or not a behavior is risky. The front matter in the brain is still maturing - more slowly in boys than in girls. As a result, a teen's assessment of risk versus reward is highly skewed toward risk, especially if the outcome is unknown.
For example, "If I do my homework, I'll get an A in biology," is less meaningful as a reward because the outcome is known. On the other hand, "What would happen if I skateboarded off this roof?" has an unknown outcome, making the prospect more enticing to the adolescent brain.
"The areas of the brain involved in rewards develop earlier than those in decision-making and executive control, so there is a mismatch," says Dr. Sarah-Jayne Blakemore, a cognitive neuroscientist and research fellow at the Institute of Cognitive Neuroscience in London. "That's why adolescents are bad at controlling their emotions."
As adolescents become adults, they learn to create shorthand scenarios to help make better decisions. An adult contemplating the skateboard/rooftop scenario would likely form a mental picture of himself splattered on the sidewalk. (That may be in part because, as an adolescent, he gave it a try.)
A paper published in the July 2007 issue of the Journal of Neuroscience provided a fascinating twist to the teen risk-taking scenario. A team of researchers headed by Laurence Steinberg, professor of psychology at Temple University, reported that teens are more likely to take big risks in the company of their peers. When left to their own devices, they are more likely to make reasonable choices.
These scientific findings are not intended to excuse bad behavior, but to understand it, and find creative solutions to intervention based on this knowledge.
Dr. Blakemore, for her part, is cautious about using science as the basis for determining adulthood. For one thing, the relevant brain matter changes tend to occur in boys about two years later than girls. For another, "There is individual variability, with some changes being seen in the gray matter up to age 60."
In other words, there is no "magic age" at which one can be scientifically labeled an adult.
But the law does impose such labels, and the attendant consequences. To the extent that these policies are instructed by science, the obvious conclusion is: The later, the better. And raising the age to 18 at least brings it into balance with other socially established American rites of passage, like voting and contract rights.
Paying for it
As in other areas, Wisconsin is more of a follower than a leader when it comes to rethinking its decision to treat 17-year-olds as adults. Connecticut plans to raise its age from 16 to 18 in early 2010. Similar changes have been debated in Missouri, New Hampshire, Illinois, North Carolina and New York.
In Wisconsin, a bill to raise the age back to 18 went down in flames in 2005, largely due to concerns over money. Funding remains a key obstacle. According to the Audit Bureau, making such a change could cost counties as much as $82 million. (The state system foots the bill for 17-year-olds treated as adults.)
Juvenile detention programs are paid for by counties out of the Youth Aids fund the state administers through the Department of Corrections. Different counties receive different amounts based on a state-determined formula.
The problem, notes Rep. Friske, is that the daily rate paid by counties "has grown faster than the Youth Aids formula" paid by the state. And if 17-year-olds are put back into the juvenile system, counties will feel an additional strain.
Lynn Green, director of Dane County Human Services, estimates it will cost roughly $3 million for the county to reabsorb 17-year-olds back into the juvenile system. "It's possible," she says, "that legislators will actually want to vote for the age change, but will vote against it anyway if they don't see that there's an appropriate funding mechanism in place."
Friske and state Sen. Jon Erpenbach (D-Middleton) have proposed paying for the change by imposing a 1% tax on video games. This idea has been widely criticized, and Streit agrees it is inadequate: "It's like putting bubble gum on an Indy 500 tire. We've totally dropped the ball on these kids, and now we're trying to do it at no cost."
But Friske says advancing a funding mechanism, however imperfect, has at least got people talking about the need for reform. He's now proposing to split the cost of caring for juvenile offenders. The state would pay to maintain the facilities, and the counties would pick up other costs.
Such a move could also lead to cost savings.
Jim Sanders, deputy director of Operation Fresh Start, says that when the state prison system locks up 17-year-olds, it still must comply with state laws requiring that they get an education. And so "they end up hiring a teacher for the kid while he's in an adult facility." And that's a waste, since educational continuity is built into the juvenile system.
Friske agrees: "The taxpayers are paying for these programs anyway, but we're not using them because 17-year-olds are in the adult system. If we're going to fund facilities that provide those educational opportunities and programs, we ought to be utilizing them to their full extent."
If treating juvenile offenders as adults does not work, what about treating them as children? That approach also has drawbacks, and risks for public safety. But a high-profile case in Pennsylvania suggests it can work.
In 2001, Pennsylvania Judge Kenneth Biehn made a risky decision to entrust 14-year-old Kareem Watts, a confessed killer, to his state's juvenile justice system, instead of sending him to adult prison. Judge Biehn thus empowered the juvenile system to attempt to rehabilitate Kareem.
It was a gamble that, so far, has worked. Kareem has reformed and now counsels other at-risk youth. But it's still a gamble.
The majority of crimes committed by young people are nonviolent - things like retail theft and drug possession. The Audit Bureau study found that robbery was the crime that most often landed 17-year-old offenders in prison.
Yet legislators across the country have to make tough choices for which they may be called on to answer by their constituents. Many people believe that treating juveniles as kids allows them to beat the system, to commit crimes and avoid consequences, to "get away with it."
Rep. Vos shares this concern.
"If Wisconsin changes the age back to 18, there is a fear that this will increase cross-border gang-related activity," he says. "Offenders will know that they can come from northern Illinois, commit a crime in Wisconsin, and won't be put in jail or prison for it because they will be subject to Wisconsin's more lenient laws."
That's a good argument, but perhaps more effective in the abstract than the particular. For instance, it's hard to see what harm would have come from treating Fernale McAtee as a juvenile for one more year.
McAtee is now working through AmeriCorps for a contractor on housing projects. He lives with his aunt in Madison, but hopes to soon move in with a coworker. He's going to become a father in April, and knows that means accepting new responsibilities. He's working on getting his G.E.D., and hopes to go to MATC to learn car detailing, with a long-term goal of owning his own auto body shop.
"I'd like to start my own business, have a good, all right life," he says. "One where I'm not struggling, my kid isn't struggling." He also hopes to show his mother, who still wrestles with her demons, "a different way of life, instead of partying all the time."
At 18, he's grown up enough to want to help his mom make better choices. Perhaps that, more than anything, qualifies him as an adult.
What other states are doing
As Wisconsin weighs whether to stop automatically treating 17-year-olds as adults, it's worth noting that other states are making significant changes to their juvenile justice systems.
In 2007, California and Texas changed their statutes so their state facilities no longer accept youth convicted of the least-serious offenses.
Mississippi's Juvenile Delinquency Prevention Act of 2006 set comprehensive standards for detention centers, increased reliance on community-based alternatives to incarceration, and developed a $5 million grant program to reduce the number of youth in detention placement.
In 2006, Oklahoma created a new Office of Juvenile Affairs to coordinate and oversee programs and services for delinquent youth, or youth in need of services. That same year, Illinois developed a new juvenile corrections department, separating this function from the adult corrections system.
Source: The MacArthur Foundation, "The Accelerating Pace of Juvenile Justice Reform."
What the public thinks
A national survey revealed the following attitudes toward juvenile justice reform:
89% of those surveyed agreed that "almost all youth who commit crimes have the potential to change," and more than seven out of 10 agreed that "incarcerating youth offenders without rehabilitation is the same as giving up on them."
The public supports providing counseling, education and job training programs to youth offenders. Eight out of 10 favor reallocating state government money from incarceration to programs that seek to help young people become productive citizens.
Treatment and services are widely seen as more effective than locking people up. Less than 15% of those surveyed thought incarceration was a "very effective" way to rehabilitate youth.
More than three-quarters of the public favors keeping nonviolent youth in small facilities in their own communities; six in 10 favor community supervision for nonviolent youth.
The public believes the juvenile justice system treats low-income, African American and Hispanic youth unfairly. Almost two-thirds of respondents said poor youth receive worse treatment than middle-class youth who get arrested for the same offense.
Source: The MacArthur Foundation, "Potential for Change: Public Attitudes and Policy Preferences for Juvenile justice systems reform."