by Dan Ophardt and Marisa Ordonia, TeamChild staff attorneys

Last month, at a private, $500 per-head, fundraiser in South Carolina, Black Lives Matter activist Ashley Williams reminded the nation of a 20 year-old statement from then-First Lady Hillary Clinton.  Speaking in 1996 in support of the 1994 Violent Crime Control Act and other White House criminal reform, Ms. Clinton said of juvenile crime, “They are not just gangs of kids anymore. They are often the kinds of kids that are called ‘super-predators.’ No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel.”

This disturbing rhetoric animalizing children was not unique at the time. These words were based on a theory advanced by John Dilulio in a 1995 Weekly Standard article, claiming that “On the horizon, therefore, are tens of thousands of severely morally impoverished juvenile super-predators. They are perfectly capable of committing the most heinous acts of physical violence for the most trivial reasons. . . So for as long as their youthful energies hold out, they will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

The problem with Mr. Dilulio’s super-predator theory and the laws and practices that it fueled is not just that it has had devastating and disproportionate effects on children and communities of color.  Its most fundamental problem was that it was not at all correct, as Mr. Dilulio admitted just a few years after publishing it.  His predicted cadres of natural-born violent offenders never appeared.  Even by the time Mr. Dilulio first stated his theory, the juvenile crime rate had already begun to fall from its peak in 1994, the year before Dilulio’s article.  In 1996, the overall juvenile arrest rate began to decline and continued to decline every year through 2014, when it was less than half of the rate it was in 1980.  This rise and fall mirrored that of the adult arrest rate, and it occurred uniformly across states, whether or not they had tough laws that sent children through the adult criminal justice system. Today, we remain with entire communities devastated by the overcrowding and disproportionate representation in U.S. prisons.

The super-predator theory gained traction at a time when getting tough on crime was already popular. In 1994, the Violent Crime Control and Law Enforcement Act passed with bi-partisan support.  It authorized $9.7 billion for federal prisons, created 50 new federal offenses, added a federal three-strikes rule, and effectively eliminated in-prison education funding.  It is often credited with being a large part of the cause of today’s overly crowded U.S. prisons.  Furthermore, the fear instigated by the super-predator theory caused many states to charge more youth as adults instead of handling their offenses in juvenile court.  Between 1992 and 1997, 44 states and the District of Columbia passed laws facilitating more transfer of juveniles to adult criminal court.

Much of the justification for sending more youth to the adult criminal justice system relied on the belief that juvenile court was too soft to deter youth from the type of crime predicted by Mr. Dilulio.  However, two retrospective studies comparing the increase of prosecuting juveniles in adult criminal courts in Idaho and New York, two states that had passed new “auto-decline” laws to transfer jurisdiction of more juvenile charges to adult criminal court, showed no evidence of general deterrence of juvenile crime in comparison to similar states around them that had not passed similar auto-decline laws.  Furthermore, a study in Florida in the mid-1990s, showed evidence that increased transfer of juveniles to adult court actually promoted recidivism, rather than deterring it.  A more recent study in Washington by the Washington State Institute for Public Policy, completed in 2014 and using data going back to 1994, compared the recidivism of youth charged in juvenile court to youth who were sent to adult criminal court.  The study found a statistically significant correlation between charging youth as adults and future crime. For those 20 years studied, prosecuting youth in adult criminal court did not have a deterrent effect, but rather increased recidivism, costing taxpayers approximately $82,824 extra per youth charged in criminal court.

Youth and communities of color have borne a greater share of the harsher treatment and increased criminalization of youth.  In 2013, almost 75% of youth automatically transferred to adult criminal court in Washington were Black or Latino.  For comparison, youth of color made up only 34% of Washington’s general age 10-17 population. In King County, Black youth make up about 10% of the age 10-17 population, but accounted for over 58% of admissions to secure detention in 2015. These stark numbers have led many community members to the conclusion that ending youth incarceration is the only way to end racial disproportionality in the juvenile justice system. Yet in response to this call for a different approach, we have heard all-to-familiar rhetoric from our elected officials.  Statements like an end to youth incarceration “can only happen when there is no one under the age of 18 committing rape, robbery and murder,” and highlighting youth charged with “shooting someone multiple times, robbery at gunpoint or rape,” invoke the imagery of the juvenile super-predator and a fear-based reaction. While it remains a fact that a small number of youth do commit very serious crimes, it is also a fact that, last year, less than 17% of the youth admitted to King County juvenile detention were charged with violent offenses.

Right now, King County has a chance to use data, research, and the input of those most affected by the juvenile justice system to adopt policies and practices that can work to rebuild from the devastation caused by the over-criminalization of youth and people of color during the super-predator and tough on crime era.  Using the money from the Best Starts for Kids Levy, and the Mental Illness and Drug Dependency (MIDD) sales tax, King County should follow the City of Seattle’s lead and invest in identifying, implementing, and sustaining community-based supports and alternatives to detention.  Successful alternative programs exist across the country, as documented in the Safely Home report, and, recently, in a Seattle Times article that compares Connecticut’s approach to juvenile justice to Washington’s approach.  We know that the use of juvenile detention leads to negative outcomes for youth and communities, and we must move away from a system that was built on unsubstantiated fear and designed to bring youth of color to heel.

While it appears that Ms. Clinton’s 20-year old statement was only a short moment of political liability in a long marathon of an election season, it should stand as a bigger reminder to us.  If Ashley Williams’ quiet protest at that swanky fundraiser last month does nothing else, let it remind us of the dangerous power of rhetoric to often cloud good judgment and science.