Arkansas Tempers a Law on
        Violence by Children

        By DAVID FIRESTONE

            LITTLE ROCK, Ark. -- After two boys shot up their
            schoolyard in Jonesboro in March of last year,
        killing five people and riveting a nation, Paul Kelly
        feared the worst for Arkansas' juvenile justice system.
        The boys, 11 and 13, were too young to be prosecuted
        as adults under state law, and angry lawmakers seemed
        to be trampling one another in their efforts to make it
        easier to imprison youngsters.

        "There was talk about frying these kids, and anyone
        else like them," said Kelly, the senior program
        coordinator for Arkansas Advocates for Children and
        Families, a nonprofit group that supports children's
        rights. "There were legislators who wanted to be able
        to try a child of any age as an adult."

        But something unexpected happened since Jonesboro
        became a national symbol of prepubescent violence.
        Though the state was deeply traumatized by the
        shootings and many residents were furious that a harsh
        punishment could not be imposed on the killers,
        officials did not write a law that simply moves children
        into the adult justice system.

        Instead, state leaders brought in child-development
        specialists, consulted both prosecutors and defense
        lawyers, and came up with a far more tempered bill
        than anyone on either side had expected.

        The legislation removes the blanket prohibition against
        trying children age 14 and under as adults.

        But it imposes a significant burden if prosecutors want
        to charge children younger than 13 as adults. The
        prosecutors will have to show that the youngsters
        understand the criminality of their conduct and fully
        appreciate the outcome of their actions, among several
        other psychological tests. National experts say this is
        one of the most carefully drawn provisions on juvenile
        justice across the country.

        Arkansas may sometimes be seen as one of an
        undifferentiated mass of conservative Southern states,
        but it has its own stubbornly progressive streak, some
        of which was on display when Gov. Mike Huckabee, a
        Republican, signed the juvenile justice bill into law at
        a Capitol ceremony on Wednesday. There in the room
        stood Kelly, along with several other children's
        advocates who had been prepared to oppose the
        legislation.

        "They've really put some good protections in there for
        younger children," said Didi Sallings, the executive
        director of the Arkansas Public Defender Commission,
        who wrote the psychological sections of the bill at the
        behest of the state Senate. "It will be a rare kid who can
        pass the competency test and be tried as an adult, which
        is just the way I intended it."

        But notably absent from the signing ceremony were the
        prosecutors in the Jonesboro case, and the relatives of
        the four schoolgirls and one teacher who were killed
        that day, most of whom resolutely oppose the new law
        as far too weak.

        Brent Davis, the lead prosecutor in the case, said that if
        the law had been in effect at the time of the slayings, it
        would still have been impossible to try the two killers
        as adults.

        "I pity the prosecutor who has to try to figure out this
        law," Davis said. "It started out as a good effort, but
        then they let all these people from the criminal defense
        bar work on it to make it a consensus bill, and they
        loaded it up with all this psychobabble. There's no real
        likelihood this law could be used."

        Relatives of the victims have also criticized the law as
        unfair and insensitive.

        Davis, however, was the only prosecutor in the state to
        speak out against the bill; other district attorneys helped
        draft its language. The sponsor of the bill, state Sen.
        Thomas Kennedy, a former prosecutor, said the
        Legislature had to put aside the objections from people
        close to the Jonesboro case.

        "You don't want public policy to be purely reactionary
        in nature," said Kennedy, D-Russellville, which is
        northwest of Little Rock and halfway across the state
        from Jonesboro. "I like and respect Brent, but he's
        wrong. He was so close to the Jonesboro case that he
        did not necessarily approach this issue absent of
        emotion."

        In a sense, Kennedy's comments are surprising, because
        he was one of the first to demand tougher sentencing for
        juveniles the day after the shooting. "There are certain
        crimes which are so egregious that we cannot allow
        these offenders to feel anything less than the full impact
        of the law," he said that day.

        But the passage of time -- along with a lobbying blitz
        from social workers and children's advocates --
        significantly moderated his view and that of most other
        legislators.

        The juvenile crime rate is falling in Arkansas, as it is
        across the nation, and after a year, the Jonesboro
        shooting came to be seen as a fluke, however
        horrendous. Had the Legislature been in session at the
        time of the shooting, many people around the capital
        agree, the law might have been much more stringent.

        As it is, the law clearly improves the chances that
        prosecutors can try more serious juvenile crimes in
        adult courts, with adult punishments. Previously, there
        was simply no way that anyone younger than 14 could
        face long-term punishment, even if they were convicted
        of capital murder, as the Jonesboro killers were.

        The new law removes that absolute barrier, making it
        possible to sentence a child of any age to life in prison
        for capital murder, although it is progressively harder
        to impose that sentence on younger children.

        The law borrows an idea that first became popular in
        Minnesota called "blended sentencing," in which
        children who receive long sentences for major crimes
        would have their sentences reviewed by a judge at age
        18 to see if they had been at all rehabilitated. The judge
        would have the option of continuing their sentence in
        adult prison or releasing them.

        Except for capital murder convictions, juveniles could
        not receive sentences longer than 40 years, and no child
        under 16 could be sent to an adult prison. Previously,
        children 14 and older could be sent to prison if
        convicted as adults, but those convicted as juveniles
        have been released at age 18 because the state has no
        institution to hold them from the ages of 18 to 21.

        Over the last seven years, almost every state has made
        it easier for juveniles to be tried as adults, in many
        cases in response to highly publicized cases of
        violence. But though Jonesboro was the site of the most
        notorious of those cases, Arkansas' juvenile rules are
        still more lenient than those of many states.

        Some states, for example, require adult trials of
        juveniles 13 or older in murder cases. Others have no
        minimum age for which a murder suspect can be tried
        as an adult, or have a minimum age below 13.

        Dr. Laurence Steinberg, a Temple University
        psychology professor who directs the MacArthur
        Foundation Research Network on Adolescent
        Development and Juvenile Justice, said the
        psychological test required by Arkansas for those 13
        and younger was important because the adolescent
        brain is still developing at that age. His testimony and
        that of other experts before a panel set up last year by
        Huckabee was critical in getting the competency
        language inserted into the new law.

        The bill does nothing to improve the condition of the
        state's poorly managed juvenile institutions, which have
        been the subject of several newspaper exposes, or to
        limit the youngsters' access to guns. Many people in
        Jonesboro have lamented the lack of any real deterrent
        growing out of the shootings, but the strength of their
        emotions has isolated them from the mainstream
        consensus in the rest of Arkansas.

        "Everyone can understand that as victims, they feel the
        need to punish, punish, punish," said Ms. Sallings, the
        public defender. "But the Legislature agreed that you
        can't change the entire criminal justice system just to fit
        a certain set of facts, no matter how bad they happened
        to be."