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Roger Cossack: Juvenile offenders and California's Proposition 21

Roger Cossack is a CNN Legal analyst and co-host of CNN's half-hour legal show, Burden Of Proof.

Q: Why is the alleged 15-year old shooter in California being charged as an adult?

COSSACK: The issue here is that California passed Proposition 21 about a year ago. Proposition 21 mandated that certain minors who are accused of certain crimes be treated as an adult and really took the decision away from the judiciary. The whole state voted on it. Here this young man is charged with multiple murders, and that would do it.

MESSAGE BOARD Violence in America     GALLERY Images of the aftermath of the Santana High School shooting in Santee, California    VIDEO Suspect's grief-stricken mother comments on her son and the Santana shooting Play video (QuickTime, Real or Windows Media) Officials discuss the shootings at Satana High School (QuickTime, Real or Windows Media) PART 1 PART 2 PART 3 PART 4 More Video   AUDIO Santana High School student John Schardt gives his account of the shooting 1.3MB/62 sec. AIFF or WAV sound A female student gives her account of the shooting on Monday at Santana High School 1.3MB/62 sec. AIFF or WAV sound   RESOURCES Diagram of the shooting scene List of victims Timeline of recent school shootings Risk factors for school violence Talking about school violence Santee, California, and Santana High School profiles Gallup Poll: Parents on school shootings

Q: What are the key provisions in Proposition 21? How does it get tough on teenagers?

COSSACK: The key provision is that it takes the ability away from the judge in determining whether or not an individual should be tried as a juvenile or tried as an adult. And it takes that power away from the judge. And now under certain circumstances there is no more decisions, young people will be tried as adults. So you have a 15-year old boy, no questions about it, he will be tried as an adult.

Q: What are some of the circumstances that you're talking about?

COSSACK: There are a lot. There are several on a list of crimes that would do that. I think the most important thing is to understand the difference between being tried as a juvenile and being tried as an adult. If you're tried as an adult that means you are tried in adult court, with a jury and treated as an adult. In juvenile court, it's not tried under the criminal law. It's tried under what’s called the Welfare and Institutions Code. Usually the worst penalty available is to put someone in some kind of reform school or the youth authority until they’re 18 years old. There’s a judge who sits as a referee in the matter and the judge is the one who makes the decisions. And not all the traditional constitutional rights that we think of apply in a juvenile proceeding. It’s really for what the best interest of the juvenile is. Whereas, in a criminal courthouse, when people are tried as an adult and looking at this particular case, I suppose depending on what the district attorney decides, this kid could be eligible for the death penalty.

Q: If convicted, what kind of prison facility would he serve at, and could you discuss how he might be eligible for the death penalty?

COSSACK: Well it depends on whether or not the district attorney asks for the death penalty in this case. But certainly he would fall under what he’s alleged to have done. It’s multiple murders. I mean if the allegations are that he brought the gun to school, he knew what he was doing and it was premeditated. It looks like murder one. And with multiple murders he would be eligible for the death penalty. Now, that doesn’t mean that the district attorney’s going to ask for the death penalty. But he could be looking at, easily, life without possibility of parole. And he would go to the California Youth Authority until he’s eighteen years old. And then would be transferred to an adult authority.

Q: Is the measure controversial? Are there any legal challenges?

COSSACK: No, I don’t think there are legal challenges. The controversy comes between social scientists and criminologists. There are many people in this country who believe that you cannot have a rule that applies for everybody. That when you’re dealing with children, the notion that every kid be tried as an adult based on what they did really isn’t the solution to the problem. And the judges, people we expect to make these kinds of decisions-- the judiciary-- should be able to hear evidence and make the decision as to what’s in the best interest of the community and what’s in the best interest of the defendant. That choice has been taken away. It’s not illegal to do that, but it is clearly a controversy among social scientists as to whether or not this is a good thing.

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