Photo Courtesy of Dylan Snyder, P.A.

As people across the country know by now, Massachusetts is waiting for the verdict in the trial of Philip Chism, the juvenile accused of murdering and raping Danvers High School teacher Colleen Ritzer. This was a horrendous tragedy, and as someone who has paid close attention to the case, about as awful as one could imagine for the families involved. The crime was horrific, and nothing can bring back the young woman who was beloved by many.

The question of whether or not Chism will be found guilty or not guilty by reason of insanity is certainly the one the jury is considering as I write this. They are swamped with exhibits and notes, images and videos, and their own view of the crime scene as they decide a verdict. But today, I am also considering another question: why are we in a situation where someone age 14 was tried as an adult?

I wrote about this two years ago for Boston Magazine where I pointed out “Since 1996, Massachusetts has had a law on the books that’s one of the harshest in the nation, according to the Massachusetts Coalition for Fair Sentencing for Youth.” We allow fourteen-year-olds accused of homicide to be automatically tried as adults.

We’re years away from the superpredator myth that kids were going to kill at every turn, and yet we still criminalize black youth. The 90’s brought lack of justice to the forefront with terrible cases against innocent kids like the Central Park Five. Since that time, Massachusetts laws have inched along, brain research has been even more linked with law, and there may be new requirements for Salem Superior Court Judge David Lowy when he gets to the sentencing phase of this trial.

As Daniel S. Medwed, professor of law at Northeastern University, recently wrote for WGBH News, we now have research from the National Institute of Mental Health to prove that “[t]he parts of the brain responsible for more ‘top-down’ control, controlling impulses, and planning ahead—the hallmarks of adult behavior—are among the last to mature.” Yes, behavior, the chief honcho, must always be accompanied by its sidekick, brain research when we think about how kids develop.

Neuroscience research won’t necessarily come into play with Chism because he’s being tried as an adult. However, should it? Interestingly, brain scans which the Defense attempted to get admitted into the trial were not allowed by the judge. Julie Maganis, writing for the Salem News said “The teen’s lawyers cannot call an expert on brain development to tell jurors that a recent MRI showed similarities between Chism’s brain and those of people with schizophrenia and traumatic injuries.”  Judge Lowy ruled against allowing the information into the trial in part because Chism had never been diagnosed with schizophrenia.

Dr. Judith Edersheim, cofounder and co-director of the Massachusetts General Hospital Center For Law, Brain and Behavior, said in an interview for Vice that, in general, diagnosing juveniles is difficult because they change so quickly.

But in my mind, knowing that a juvenile’s brain is literally different from an adult’s, as well as the fact that their behavior is different (more impulsive, more risk-taking, more influenced by peers etc.) is a core point. Trying a juvenile as an adult when a juvenile is scientifically NOT an adult is questionable. Can we hold them responsible in the exact same way we hold adults responsible?

We can’t change the fact that this case has already occurred in an adult court although, who knows, maybe appeals will come to that.

Several recent Supreme Court cases have paved the way for us to insist that juveniles be given the chance to change. As articulately explained by Susan Zalkind, “Beginning in 2005, there was trilogy of United States Supreme Court cases; Roper v. Simmons [in which the court ruled juveniles can’t get the death penalty], Graham v. Florida [in which the court ruled juveniles can’t get life without parole for a non-homicide crime], and Miller v. Alabama. Because of Miller v. Alabama in 2012, no longer can judges be compelled to impose life without parole on juveniles convicted of first-degree murder.

In Massachusetts, the Supreme Judicial Court went further in 2013 and said a meaningful opportunity for parole was necessary for such youth. Because of this ruling 63 men (no women in the cohort) who were sentenced to life without parole when they were youths, have been given the opportunity to try for parole. No guarantees for those who apply, and many are in their 40’s and some in their 50’s, but so far almost half those who have come before the Parole Board have been found eligible for parole.

In 2014, the Massachusetts Legislature passed another law. That law provides for initial parole eligibility for those juveniles convicted of first-degree murder at 20 to 30 years, depending on the specifics of the murder charge, but it calls for a mandatory sentencing of 30 years in cases of “cruelty and atrocity,” a legal term defining the means of murder.

Activists fought against this, aiming to keep the SJC’s recommended fifteen years before parole eligibility, but lost. As the state’s child advocate and former juvenile judge Gail Garinger said at a Statehouse hearing on the bill, “We can’t enact a law that only responds to the horrific crimes that are reported in the press.”

And yet, one could argue, because of the Chism case, we did. Judge Lowy however, will have to sentence Chism under the old laws since they were in effect when the young man committed the crime. Chism, a child at the time of the killing, could be held in DYS until he is 18, sent to an adult prison at that time, and not get to see the Parole Board until he has lived what most kids undoubtedly consider another lifetime. Or he could be held in an adult prison and monitored one on one so the prison doesn’t violate prison rape laws to keep him from any adult contact.

Massachusetts raised the age of adulthood from 17 to 18 in 2014, and it is logical to argue that one is a juvenile until he or she is 18. Certainly the age limit for juvenile court varies, but in most states the cut off is age 18. However, Connecticut’s governor, just this past fall, has taken a leap that could be groundbreaking.  After the age was raised twice in recent years, “juvenile crime levels plummeted” said  Vincent Schiraldi, a former commissioner of probation for New York City, and senior research fellow at Harvard Kennedy School. Additionally, “the number of young people in both Connecticut’s juvenile facility and young adult prison dropped to record lows.” Now Governor Dannel Malloy wants to raise the age to 21 and if that occurs, juveniles won’t be tried as adults until they reach the age of majority.

Yes, there are crimes that are brutal and we need ways to address these horrific acts (see the Missouri Model). But sentencing children as adults isn’t the just thing to do, and as we are learning it also isn’t the way to stop crime.  Creating a just juvenile system should be a priority.

I recently attended the annual National Conference on Higher Education in Prison (NCHEP) in Pittsburgh where education and activism was a true reality. After the conference, I wrote an article for Truthout, a powerful online news magazine, entitled Higher Education Is a Key to Decarceration: Let’s Pass the REAL Act. The article aimed to clarify that we need to support the Second Chance Pell Pilot Program recently promoted by President Obama but also: We need to both help students continue their education when they leave prison and to pass the Restoring Education and Learning (REAL) Act, returning education to all. You can read more about that here.

Image courtesy of NCHEP2015

Many of the important players in developing and fighting for higher education for incarcerated and formerly incarcerated people were at this conference. They are working to give people behind bars true opportunity. On Thursday, November 6, as a prologue to the weekend, activists from the Pittsburgh community gathered to share their work. Jacqueline Roebuck Sakho emphasized how important it is to bring all parts of a community together when we are trying to solve a problem as systemic as mass incarceration. The Amachi Ambassadors, young people who have family in prison, a vibrant group I saw the first time this past summer at the Free Her Conference, put on a debate about banning the box. The box is that nasty little box that colleges and employers often use to screen out applicants who have a criminal record. And across the country college students as well as prison activists are fighting to remove it.

Image courtesy of YouTube

While the ambassadors were able to argue both sides, they clearly knew how that box impacts lives. To underscore that point, on a panel where a town hall discussion occurred, Anna Hollis with Amachi Pittsburgh said that 150 laws have been passed in Pennsylvania in the past few years, many criminalizing young people.

On Friday, November 7, some of the most interesting comments about how education changes lives came from the Indiana Women’s Prison Graduate Studies Program where three women were video-conferenced in from prison to discuss their post-graduate work. This is an amazing program organized by Professor Kelsey Kaufman which supports women’s academics at the prison. Students are working towards a PhD without the benefit of any Internet for their research, One woman said “Universities need to demystify their exclusivity.” Another said, “Education has been freedom.” These women are anything but deterred by obstacles.

On Saturday, November 8, formerly incarcerated activists talked about their work on returning Pell Grants to all (see here), and male prisoners video-conferenced in from FCI McKean in Pennsylvania described a therapeutic community and their work as educators. The idea pioneered by prisoners is to train people behind bars to become assistant teachers to students. One man emphasized that we need more men of color teaching incarcerated men. Another commented that education should be measured in terms of “how many men and women have been awakened.” Indeed, he added: “Higher education should inspire wardens to see themselves as heads of educational institutions.” This program is shepherded by a powerhouse educator at the University of Pittsburgh, Tony Gaskew.

I was fortunate enough to present with Karter Reed who I will write much more about in the coming months. When we first met, it was by mail in November 2007, and the encounter was a fluke. Being an avid reader, Reed found a book I had written in the Shirley Massachusetts prison library: Shakespeare Behind Bars: The Power of Drama in a Women’s Prison. He wanted to know if I could help his friend, a female prisoner who wanted information about parole.  One hundred letters and six years later, we had learned about each other’s lives and influenced each other in powerful ways. Through his video clip (he is out of prison but could not attend the conference) and my presentation, we talked about how letters are a particular kind of educational tool. They give hope, provide connection, and allow a way to share ideas, feelings, and dreams for those behind bars. Through our letters, I learned about issues and more about the truth of incarceration, and I became an activist.

Photo by Eileen MacDougall

It is always impressive to see how education inspires activism and this conference underscored that point. The idea of turning prisons into schools has been around for awhile, but to see how much education can mean is impressive: access, hope, knowledge, understanding, a political grasp, skills, and a sense of history.

Andrea James, Photo by Hasna Muhammed

When I taught in prison, I memorized this fact: More than two-thirds of women in state prisons are mothers of a minor child. I memorized it because I saw woman after woman who could not manage visits with her kids—families lived miles away from the one state prison for females in Massachusetts. Some women could not afford to pay for their children’s transportation; others had no one to drive the distance. These moms suffered with each flu, bad grade, or neighborhood bully. They felt the mixed blessing of each child’s christening, birthday, or graduation. They cried themselves to sleep; they metaphorically clung to their kids when they made phone calls. They talked about them in classes, to each other, in letters, and to their loved ones. Women without their children leads to a kind of loneliness behind bars that has a painful tenderness to it, a pulse, a deep shade of the color blue.

This past August, Tess Domb Sadoff of the Vera Institute wrote an article entitled “Gender and Justice in America: Alternatives to Incarceration for Moms Aim to Strengthen Families.” Her comments underscore my point: “When mothers who act as primary caregivers serve time in prison, the loss of emotional and tangible support they provide—in the form of regular caretaking, income, housing, and more—can have a traumatic and disruptive impact on their families and communities.” There are also collateral consequences. The Women’s Prison Association reported that children of incarcerated parents are “five times more likely than their peers to end up in prison themselves. One in ten will be incarcerated before reaching adulthood.”

In recent years, diversion programs across the country have sprung up as an important and necessary alternative to incarceration for convicted mothers. Oklahoma, Oregon, and Washington have created or passed initiatives to that effect. Now, Massachusetts has House Bill H.1382, and on October 14, at a hearing before the Judiciary Committee, An Act to Create Community-Based Sentencing Alternatives for Non-Violent Primary Caretakers of Dependent Children was heard.

           Formerly incarcerated woman and advocates; photo by Hasna Muhammed

Lead sponsor for the Bill is Rep.Russell Holmes of Boston, and lead advocates, the indomitable Andrea James, and Families for Justice as Healing, formerly incarcerated women who aim to end the incarceration of women. Sociologist Susan Sered, author of Can’t Catch a Break, described the House Bill in her blog, “This bill would require a sentencing judge to determine whether a person is a custodial, primary caretaker of a dependent child, and eligible for…a non-incarcerating sentencing alternative.” Alternatives would be based on “individual assessments,” noted Sered, and could include services such as counseling, relapse prevention, domestic violence, vocational or educational groups.

The women who testified for the bill spoke passionately. Ayanna (standing behind Andrea James) said how difficult it was to be away from her father, her primary caretaker, and that visiting parents inside doesn’t help heal the wounds of incarceration. Diane (far right) said why primary caretakers should be allowed to stay in their communities. Her child was born in prison, and all of her kids went to foster care. It took quite a while for her to get her children back. Marianne Bullock (below), founder of the Prison Birth Project, gave birth to her oldest after incarceration. Now she works with incarcerated women throughout their pregnancies, and noted how painful that separation is, when mothers have to have a family member, or worse, a stranger raise their child.

                                Photo by Hasna Muhammed

Leslie Walker, Director of Prisoners’ Legal Services of Massachusetts, said that there is 392 percent overcrowding at Framingham MCI’s awaiting trial unit, and that “it’s a preventable train wreck.” Drug treatment is far better in the community, she added, where it is cheaper and more effective than in the women’s prison. Patsy Ryan of the ACLU added that two-thirds of the women also have open mental health cases.

The goal of this legislation is to alleviate “harm to children and their parents or caretakers caused by separation due to incarceration, while reducing recidivism and strengthening family unity and communities.”

Certainly we do not need more punitive responses to crime, but working, evidence-based alternatives that keep families together. This legislation can help us take steps to save the next generation from ending up behind bars or from the kind of despair that fills our women’s prisons.