The Herald Bulletin

June 17, 2013

Maureen Hayden: 'Dual sentencing' an option for juveniles tried as adults

By Maureen Hayden
CNHI Statehouse Bureau

---- — INDIANAPOLIS – Monica Foster is a longtime public defender who’s been pushing uphill in the legal system for a long time, so when she says the General Assembly is making progress protecting the rights of the disenfranchised, it’s worth stopping to listen to her.

Foster has praise for a new law set to go into effect July 1 that changes the way the juvenile offenders tried in adult court are punished for their crimes.

Called “dual sentencing,” it allows state court judges to hand down two sentences: One to be served as a juvenile and the other to be served as adult.

Under the law, the second is conditional on the first: If a young offender responds well to the intensive supervision and treatment offered in a state prison’s juvenile unit, a judge can suspend the adult prison sentence when that offender turns 18 and send him or her home – or into community corrections or another alternative short of prison.

Likewise, if that young criminal proves bad to the bone, the judge can keep him or her locked up.

To borrow someone else’s analogy: the idea is to give a young offender just enough rope to pull himself out of a life of crime, or to hang himself and wind up in prison.

Minnesota pioneered the idea almost 20 years ago and most states have followed suit.

“It’s a very well thought out and well reasoned law,” said Foster, Indiana’s chief federal public defender. “Unfortunately we see too little of that anymore.”

Foster can take some credit for making it happen – though she didn’t when I interviewed her about the new law for a recent story I wrote.

It took some hue and cry from her and other veterans of Indiana’s juvenile justice system to get the law passed.

It was Foster who helped call national media attention to the lack of sentencing options for crime-committing children tried as adults when she took on the appeals case of Paul Henry Gingerich. At 12, he made history as the youngest person in Indiana to be sent to prison as an adult.

His crime was awful – he helped a friend shoot and kill the friend’s stepfather as part of a plan to run away from home. But Foster argued he should have been tried as a juvenile, not an adult. (The Court of Appeals has ordered a legal do-over, sending the case back to juvenile court.)

Foster knows the power of a good hue and cry. In 1987, she was part of an international campaign to save 15-year-old Paula Cooper from being executed by the state of Indiana for fatally stabbing an elderly woman in Gary.

The outpouring of protests against the girl’s death sentence – including a condemnation of it by Pope John Paul II – caused a rethinking of both the sentence and the law. In 1989, after the Indiana General Assembly raised the minimum age for the death penalty, from 10 years old to 16, Cooper’s sentence was commuted to 60 years in prison.

Indiana’s new dual sentencing law might not work. There are fears it will be used to send more children into the adult criminal system. And fears, based on experience in some states, that black and Hispanic juveniles will be sent on to prison more frequently than their white counterparts.

But Foster sees the potential in giving judges more options to help juvenile offenders become law-abiding citizens. “The law,” said Foster, “is unquestionably right.”

Columns by Maureen Hayden, Statehouse bureau chief for CNHI’s Indiana newspapers, appear Mondays in The Herald Bulletin. She can be reached at Maureen.hayden@indianamediagroup.com.