Commentary: Juvenile sentencing bill is about politics, not reducing crime

It is said that the definition of insanity is doing the same thing over and over and expecting different results. Maryland is among states poised to roll back or repeal bipartisan criminal justice reforms, including reforms for children, teenagers and young adults, even when the evidence is clear that they should not.

We are former federal judges. We have seen this movie before.

When crime goes up, moral panic ensues and politicians compete with one another to enact tough-on-crime measures, such as mandatory minimum sentences, three-strikes laws and pushing more adolescents into the adult criminal justice system. This is so, even when scholars such as those who wrote “The Growth of Incarceration in the United States,” a landmark report from the National Academy of Sciences, made clear that little to no relationship exists between harsh penalties and crime rates. Yet, when crime declines, the system rarely self corrects. Politicians don’t seek lower penalties, prosecutors charge as they always have and even judges resist moderating sentences. Things remain the same — that is, until the next crime spike or celebrated offense.

This is the recipe for mass incarceration and a rate of imprisonment higher than that of any other Western country.

The politics of crime bears little to no relation to reality, evidence or facts. Politicians quiz experts about the efficacy of this or that program diverting juveniles from prison. But they never ask about the efficacy of imprisonment. Few are curious enough to ask such questions as why recidivism rates are high after imprisonment, why children should be imprisoned when we know involvement in the criminal legal system is harmful or why we continue to imprison even in the face of profound racial disparities.

Maryland is a conspicuous example. Two years ago, Maryland did something inconsistent with the usual one-way punishment cycle: It passed historic legislation to correct its rating as one of the nation’s worst human rights offenders for children and minimize the extreme disproportionate impact its policies have on children of color. Drawing upon data and the neuroscience of youth development, the new law sought to stop children younger than 13 from being charged, except when they commit violent crimes, and to keep probation times short.

The architects of the bill — a bipartisan commission of elected officials, system stakeholders and policy experts — recognized that court involvement undermines children’s educational progress and increases the likelihood that they will be returned to the justice system, compared to those who are diverted. Most importantly, they recognized that court involvement for kids does not improve public safety.

Now, Maryland is poised to do an about-face. Gov. Wes Moore supports a bill that, if passed, would bring more children ages 10 through 12 into the juvenile system rather than provide them with social services. It would expand the number of chargeable offenses for this age group, including requiring punishment for missing drug and mental health treatments. It would remove discretion from judges and intake personnel to divert kids from arrest and prosecution, thereby increasing reliance on probation and detention.

Arresting more 10-, 11- and 12-year-olds not accused of violent crime will not improve public safety in Maryland; neither will doubling terms of probation for 80% of kids. All that will happen is that more children in the state will be detained, especially Black and brown children, who will eventually be released, impaired by their experience.

Why do it? The media drumbeat, the phenomenon known as “if it bleeds, it leads,” is certainly a factor.

We have seen this movie. During the 1990s, media reports of violent crime dominated the news, accounting for more than 75% of local coverage. Even when national crime rates fell 3% from 1990 to 1998, network television reporting of crime increased to 83%. That led to harsher and harsher penalties, staggering imprisonment rates, and profound racial disparities.

In much the same way, Baltimore’s local Fox 45 news now routinely screams headlines such as, “Western Baltimore remains deadliest despite claims of crime fighting success.” Claims? Actual data shows that the city’s flagship gun violence prevention strategy drove down shootings in the Western District close to 25%. The city is, in fact, on track to report the lowest number of homicides in almost a decade.

Sadly, Maryland is not unique. The Georgia Senate recently approved a bill creating an additional 30 crimes not eligible for bail. In Vermont, the governor has proposed legislation making more teenagers eligible to be tried as if they were adults and increasing penalties for some drug crimes. California legislators are advocating making it easier to imprison those convicted of retail theft. In Louisiana, the governor seeks to reverse a bill moving 17-year-olds to juvenile courts, even though prosecutors can already make exceptions for minors accused of violent crime.

None of these new proposals is based on evidence. They are symbolic, even performative, and reflect media manipulation rather than the real world of declining crime. But even worse, they are dangerous and at odds with the scientific consensus about adolescent neurodevelopment. They risk doing more harm than good.

We have seen this movie before. It does not end well.

Nancy Gertner is a retired U.S. district judge for the District of Massachusetts. Andre M. Davis is a retired U.S. circuit judge for 4th Circuit Court of Appeals.

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