What Is Justice For A Sixth-Grade Killer?

By CHARLOTTE FALTERMAYER

I hope your boy gets raped in jail and killed." The words, angry and exasperated, from an anonymous caller, burn into the ears of Jackie Golden, grandmother of Andrew Golden. For a moment she is too shaken to speak. "I know people have been killed," she says, trembling from the venom. She knows it is widespread. But, she says, Andrew is still my grandson.

The tough talk that Jackie Golden fears travels fast in an area like Jonesboro, Ark. The voice at the Waffle House just off Highway 63 in nearby Bono is typical. An elderly man sips coffee at the counter and snaps, "I don't care how old they are; if they kill somebody, they ought to die. I don't care if they're five years old. The Bible says an eye for an eye and a tooth for a tooth. They need to change the law."

Under state law, Mitchell Johnson, 13, and Golden, 11, will not face the death penalty. They will not spend the rest of their lives in prison. In fact, if convicted of killing five and injuring 10, they are likely be out of prison at age 18. In Arkansas children under 14 cannot be tried as adults, and juveniles face a maximum sentence described by state law as "indeterminate," which means not to exceed their 21st birthday. And, says Gerry Glynn, law professor at the University of Arkansas at Little Rock, "most children are released at age 18 because the state does not have the facilities to hold them longer." (The Justice Department is looking into whether federal charges can be brought against both boys, and whether it can charge the older boy as an adult, which would keep Mitchell Johnson behind bars until age 21. Sources say the latter is unlikely.)

In many states, though, age is no barrier to punishment. Twenty-seven do not have age restrictions in prosecuting juveniles as adults (see chart). On Friday the Indiana Supreme Court upheld a department of corrections decision to house Donna Ratliff in an adult prison. At 14 she burned down her parents' house as retribution for alleged sexual abuse by "family members since the age of four." In 1996 a judge had recommended that Donna be sent to a juvenile facility.

Many are asking: If the law cannot effectively go after the kids, can it not punish the parents? According to the National Conference of State Legislatures in Denver, 42 states have enacted laws making parents responsible in one form or another for their children's crimes. Of those states, 17 make parents criminally liable, sometimes with the threat of hefty fines and jail time. California's 1988 antigang law is one of the toughest. The state's Parental Responsibility Act makes parents liable for inadequate supervision, with penalties of up to a year in jail and $2,500 fines. Arkansas adopted a parental-responsibility law in 1995, under which courts can order parents or guardians to attend a "parent responsibility training program." Parents must complete the program and pay for its cost or be sanctioned for contempt. According to Glynn, Arkansas can also bring a criminal prosecution against a parent "whose gross neglect of parental duty" leads to the criminal acts of a child. Under that statute, however, parents face only a maximum $250 fine with no jail time.

Indeed, legal experts are hard pressed to cite examples of cases in which parents have suffered harsh penalties. Under a St. Clair Shores, Mich., ordinance, for example, a couple was fined $2,200 in 1996 after their son pleaded no contest to breaking and entering a church and drug-related charges. Their convictions were later overturned. Says Barry Krisberg, president of the National Council on Crime and Delinquency in San Francisco: "Parental-responsibility law is a gray area. It's a toothless tiger. We have no research on the laws' effectiveness at all."

Much harder to dismiss are child access prevention laws (or CAP laws), which hold adults--often parents and legal guardians--accountable if they allow guns to fall into underage hands. Shannan Wilber, attorney at the Youth Law Center in San Francisco, says that unlike parent-responsibility laws, CAP laws draw a direct causal relationship between adults and the crimes committed by juveniles. "Where there is a closer connection," she says, "such as a parent's possession of firearms and failure to keep them away from their kids, it's easier to connect that to a subsequent criminal act by the child. It's more concrete." Florida passed the first CAP law in 1989, and 14 other states have enacted similar legislation (see map). CAP laws are pending in Massachusetts, Illinois, New York, Missouri and South Carolina. In Connecticut, California and Florida, violation is a felony. In Florida adults can face five years in prison and a $5,000 fine if a minor obtains a firearm and uses it to inflict injury or death.

Critics of CAP laws say they are open to too much prosecutorial discretion and interfere with the way parents maintain control over their households, adding more grief, for example, after accidental fatal firings. Joe Sudbay, director of state legislation at Handgun Control Inc. in Washington, says that's nonsense: "The whole point of these laws is not to punish. The point is to prevent." Do they? According to a study published in the Journal of the American Medical Association last October, unintentional deaths dropped 23% among children younger than 15 years old in the years covered by CAP laws.

The Arkansas schoolyard deaths have given CAP laws a national push. Partly in response to the Jonesboro shootings, Senator Richard Durbin of Illinois this week will introduce federal CAP legislation. Says Durbin: "It's time for the adults who own the guns to act responsibly, to store them safely and to take responsibility for the guns in their possession."

That will not satisfy Mitchell Wright, whose wife Shannon was killed in Jonesboro. "It doesn't matter to me that these were boys," he says hesitantly. "Their age has nothing to do with the fact that they murdered my wife and four others. Kids do things on the spur of the moment. What these boys did was not a spur of the moment thing." For Wright his wife's death is likely to be a crime without true punishment.

--With reporting by Lissa August/Washington, Julie Grace and Sylvester Monroe/Jonesboro, Margot Hornblower and James Willwerth/Los Angeles and Richard Woodbury/Denver

With reporting by Lissa August/Washington, Julie Grace and Sylvester Monroe/Jonesboro, Margot Hornblower and James Willwerth/Los Angeles and Richard Woodbury/Denver