Crime and punishment: The United States cracked down on young offenders years ago. Now Canada is being pressured to follow suit. Studies suggest the get-tough approach does more harm than good

Tough love or tough luck?

He's 70 years old, he looks remarkably like the younger brother of 60 Minutes' Andy Rooney, and he's not very happy about where the world is heading. But Jerry Miller isn't the sort of senior citizen who grumbles about "young punks" and the crimes they commit. In fact, what bothers Miller are the politicians, journalists and victims' rights activists who think communities can be made safer by getting tough on young offenders.

"It's an insane argument," he says, with just a little more sorrow than anger.

In the field of youth corrections, Miller is a legend. As an American author, professor and head of youth services in three states, he has dealt with what used to be called "juvenile delinquents" since the days of the Johnson presidency. But it was a single, revolutionary act that made his reputation: In 1970, as chief of the Massachusetts Youth Department, Miller shut down every young-offender facility and sent the 2,000 inmates back into communities across the state.

"We hired a lot of young, college-age staff and we went on a crash program to find and develop alternatives," he recalls. "We came up with about 250 different programs that had never been there before." Sometimes they asked private agencies and groups whether they could take a few kids. They called companies that advertised educational programs on the backs of matchbook covers. Anything to get the teens out of lockup.

Only 100 of the teens were kept in a secure, supervised environment. The other 1,900 were handed their freedom. It was a daring act at the time. Today, it sounds like pure fantasy.

Helping Hand Turned Into Back of Hand for Young Offenders in U.S.

Not long after Miller's mass jailbreak, the United States began a profound shift toward more punitive criminal-justice policies. Public attitudes toward offenders grew increasingly bloody-minded and punishments more severe. Prison populations exploded.

For young offenders, the new get-tough attitude meant the helping hand was replaced with the back of the hand. Cities imposed youth curfews. Schools introduced zero-tolerance policies on violence that led to automatic expulsions and an increased reliance on the police to settle schoolyard scraps. "Boot camps" put young offenders in uniforms to be shouted at by pseudo-drill sergeants. But the most profound change involved "adult time for adult crime" -- more and more young offenders were handed adult sentences for certain serious crimes.

So far, Canada's federal government has largely rejected the fear-and-punishment approach that has prevailed south of the border. But there are many people working hard to change that.

The Canadian Alliance party, various police associations and a handful of populist journalists are all demanding Canada follow the American lead. The government of Ontario has also been pressing Ottawa to adopt U.S.-style policies, and has implemented such policies where it has jurisdiction.

The tough-on-crime movement is based on a simple idea. "I think there are some young people out there," says David Young, the Conservative attorney general of Ontario, "who are prepared to take risks ... because the consequences of their aberrant behaviour are minimal. And we'd like to send a message to those young people and all young people that if they commit serious crime, there will be consequences." In this view, tougher punishments will convince more young offenders to give up crime and deter potential offenders.

In pursuit of that philosophy, Ontario has implemented zero-tolerance policies in schools and, in 1997, the province opened Canada's first "boot camp." The Tory government has also demanded Ottawa change the young offender law so teens charged with some serious crimes would be automatically tried and punished as adults, regardless of their individual level of maturity.

All of these ideas were invented in the U.S. and they're all terribly wrong, says Miller.

Miller's views are based in part on the results of his own little revolution in Massachusetts. The police, of course, had warned that closing the institutions would mean chaos in the streets. It didn't happen. "We didn't have a single major incident, in terms of a major crime of violence," Miller says. And the overall rate of juvenile crime, which had been dropping, continued to fall.

Studies confirmed the experiment was a success. Generally, the research showed that releasing the young offenders had no effect on crime rates. But a long-term study by the U.S. National Council on Crime and Delinquency concluded the reform actually reduced recidivism in a subtle way.

"It tended to de-escalate the seriousness of the crimes," Miller says. "In other words, a kid that was coming out of a reform school ... when they get in trouble, it's a more serious crime. The kids coming out of the community-based (programs) might get in trouble, but (for) lesser things."

But Miller's approach was left in the dust of American history. And since we usually think of abandoned ideas as bad ones, it's difficult not to assume he must have been proven wrong at some point. In fact, there is no such evidence. If anything, the experience and research of the last three decades have confirmed fear, pain and punishment are not effective at reforming young offenders.

Zero-Tolerance Policies Haven't Improved School Safety, Report Says

Zero-tolerance policies have been in place for more than a decade. As a result, suspensions and expulsions of students have soared. It hasn't done any good. A recent report on zero-tolerance policies from the Indiana Education Policy Center at the University of Indiana concluded: "There appears to be little evidence, direct or indirect, supporting the effectiveness of suspension or expulsion for improving student behaviour or contributing to overall school safety."

Many researchers are convinced suspension and expulsion are actually worse than useless. The troubled kids who are most often suspended or expelled almost always follow the same pattern: Even in elementary school, they start to fail; they find and hang around with other alienated youths; their families, which are usually dysfunctional, don't keep tabs on them, giving them more and more free time to mess around.

For that sort of adolescent, being tossed out of school is only likely to weaken the bonds with school and increase feelings of alienation. It also gives "troubled youth with little parental supervision more opportunities to socialize with deviant peers," the Indiana report notes. "For troublesome or at-risk students, the most well-documented outcome of suspension appears to be further suspension, and eventually school dropout."

And since, as research has also shown, the strength of a youth's ties to school are a good predictor of juvenile delinquency, zero-tolerance policies may ultimately increase youth crime.

Studies of "boot camps" have been almost as uniformly negative. Most recently, after the Columbine school massacre, the U.S. Congress asked the surgeon general to do a comprehensive report on how to reduce youth violence. It concluded boot camps not only fail to make a positive difference, they may even increase the rate at which their graduates commit new crimes. (A study of Ontario's five-year-old boot-camp experiment found no statistically significant evidence the camp worked better than existing facilities.)

Miller's belief that most young offenders should be in the community, not isolated in youth facilities, has been put to the test in many places.

Consider the state of Maryland and its neighbour, Washington, D.C. During the 1990s, Washington reduced its statewide juvenile detention rate by 71 per cent, while Maryland's use of youth detention increased three per cent. Over that time, Maryland saw a 15-per-cent decline in youth crime -- compared with a 55-per-cent drop in youth crime in Washington, D.C.

Another powerful comparison can be found at home, in the provinces of Ontario and Quebec.

Although the federal government writes young-offender law, the provinces implement it according to their own philosophies and priorities. Quebec has traditionally taken a liberal approach, focused not on punishment, but on helping kids overcome whatever factors had led them to crime; custody is used as a last resort. Ontario has traditionally leaned toward incarceration and punishment.

That contrast shows up in the rate at which the two provinces sentence young offenders to custody. In Quebec, it's 38 per 10,000 young people. In Ontario, it's 82 per 10,000.

If there was anything to the get-tough philosophy, Quebec should suffer for being "softer" on young offenders. But that's not the case: The rate of youth crime in Quebec is less than half of Ontario's. Quebec has half as much violent youth crime, less than half the property crime and less than one-third as many violations of other Criminal Code sections, including weapons offences.

Get-Tough Advocates Seek 'Adult Time for Adult Crime'

For tough-on-crime advocates, the ultimate weapon in the war on young offenders goes by the slogan "adult time for adult crime." In effect, it means denying young offenders are juveniles.

Across the U.S., justice systems have dramatically expanded the circumstances in which young offenders can be transferred to adult courts and sentenced as adults. One method is to give prosecutors the option to choose whether a youth will be tried as an adult or not. A more common mechanism is to list serious crimes and require that any youth charged with one of them be automatically treated as an adult.

This is what Canadian advocates of get-tough reforms want. Under existing Canadian law, youths as young as 14 can be punished as adults for serious crimes if it can be shown they are sufficiently mature to fully understand their actions and take responsibility for them.

That's not good enough for the government of Ontario, among others. The Tories want all 16- and 17-year-olds automatically tried and punished as adults if they are charged with a "serious offence" -- a list that now includes everything from murder to criminal negligence causing death.

But if the American experience is anything to go by, that wouldn't be the end of it. "The list inevitably grows," says Vincent Schiraldi, president of the Justice Policy Institute in Washington, D.C., and a leading critic of tough-on-crime reforms. The U.S. experience also suggests that after such a law is passed, the minimum age for automatic transfer to adult court is steadily lowered.

These type of reforms have had a huge impact in the U.S. "From 1992 to 1997, 47 states passed laws making it easier to try kids as adults or otherwise toughening their juvenile codes," says Schiraldi. Automatic transfers of youths to adult court are used in 28 states.

But does it reduce youth crime? All the research suggests not.

The first state to embrace this approach was New York, in 1978. Youths aged 13 or older charged with homicide were automatically tried as adults; 14- and 15-year-olds were automatically tried as adults for a variety of serious crimes; and at 16, all youths were considered adults.

Criminologists studied the impact of the New York reforms by looking at arrests of youths for the four years before the change and the six years after. They concluded the changes had had no effect on crime rates.

The same results were found when Florida introduced similar reforms in the 1980s. In fact, a comparison of youth crime trends in the two trail-blazing states shows no difference from youth crime trends in the nation as a whole. In fact, both states continued to lead the pack in youth crime. "For most of the 1990s, New York had the highest rate of juvenile crime in the country," notes Schiraldi. "Florida had the second-highest rate."

In Florida, prosecutors decide whether a teen will be tried as a juvenile or an adult, with practices varying by county. Researchers compared similar teens who had committed similar crimes, but had been sent to different county courts. They found 30 per cent of teens sent to adult court had re-offended within two years, compared with 19 per cent of those sent to juvenile court. Teens put in adult court also re-offended sooner and at a higher rate than those who had stayed in the juvenile system. They were also more likely to have been re-arrested for serious offences.

These studies, and many others like them, were reviewed by the U.S. Surgeon General's office in its 2001 report on youth violence. The conclusion was blunt: Treating young offenders as adult criminals is a terrible mistake. "Evaluations of these programs suggest that they increase future criminal behaviour rather than deter it, as advocates of this approach had hoped."

Deterrents can't work if young don't know about them It's easy to understand why tougher punishment doesn't work.

For one thing, punishments act as deterrents only if young people know about them. But consider that in a recent poll, 91 per cent of adult Canadians described their knowledge of the criminal justice system as moderate to poor. Why would we expect badly educated, alienated teenagers to be far better informed?

"The right wing keeps saying young offenders know the law," says Graham Stewart, executive director of the John Howard Society, a prisoner-support group. "They have this idea that every scruffy, snot-nosed kid that gets into fights in the street actually spends his weekends in the library poring over law books so he knows exactly what he can get away with."

Teenagers are also unlikely to be deterred by severe punishments because they are, after all, teenagers. By definition, they are immature. They are vastly more impulsive than adults. That isn't a criticism of teenagers, it's a physical reality: Scientists using brain-imaging techniques have discovered teenaged brains are still developing; their wiring is incomplete.

So when does a teen become mature enough to bear full responsibility for his or her acts? It varies from individual to individual. Which is why Canada allows teens to be treated as adults for certain serious crimes -- but only if a judge decides the youth is mature enough to bear the responsibility. The get-tough approach erases this case-by-case method ... no matter how immature they may be.

Another key factor in the failure of punishment is the background of the youths who are most likely to get heavily involved in crime. Overwhelmingly, they come from poor, fractured, abusive homes. "They've been banged off the wall half their lives, or they're living on the street," says Miller. For them, punishment and pain are a fact of life, like the weather. Worse, the punishment has often been arbitrary and unfair. In their experience, it's simply not true that if you behave well, things will get better. Punishment is something somebody with power inflicts on you. When the justice system punishes these kids harshly, they aren't likely to see it as any more meaningful than a beating at the hands of a drunken stepfather.

And punishment can be worse than meaningless. When a teenager is sent to a youth justice system that emphasizes help over vengeance, he is told, in effect,he has problems that must be straightened out. But if he's convicted and imprisoned as an adult, he's told he's simply a no-good criminal who must be isolated and punished.

Sociologists call this "labelling" and it's particularly harmful for teenagers who are already alienated from school, family and community -- precisely the sort of teenager who often gets in trouble. "You get the system saying the best thing to do with this guy who doesn't feel bonded (to society) is to tell him he's a complete and utter asshole," says Stewart of the John Howard Society. "All that does is continue to build that sense of not belonging." From that comes more and more anti-social behaviour: A true criminal is born.

United States Model Shouldn't Be Emulated, Get-Tough Critic Says

Neither the evidence nor the explanations have made the slightest difference in developing public policies in the U.S. Its politicians have completely overlooked the research, Miller says. And when criminologists have objected, they have been dismissed out-of-hand or ignored.

The same disregard for evidence can be seen in Canada. Young, the attorney general of Ontario, said he had no proof to support the U.S.-style, get-tough reforms the province has urged the federal government to adopt.

For Miller, these accounts are familiar and depressing. "Of all countries to go to look for a model, my God, to go to the United States is bizarre."

Miller has been fighting and losing to the get-tough American model for 30 years, but he's not giving up. He continues to write and work at his home in the mountains of Virginia. "In the juvenile area, I have no doubt at all that 90 per cent of the kids in institutions could be in a community setting if we attach to them the amount of money that we are spending on them in the institution."

Not many young offenders have benefited from Miller's vision, but 2,000 kids in Massachusetts did. Many have been in touch.

"A lot of them called, or I got letters over the years," he says, smiling like a grandfather. Then the smile turns to a grin, like Andy Rooney preparing a punch line. "One's an FBI agent," he says laughing.



Dan Gardner
Southam Newspapers; Ottawa Citizen

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