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Posted by on Jul 27, 2008 in At TMV | 8 comments

Brandon McInerney: No 14-year-old deserves the threat of life in prison

Last week a California judge ruled that trying a 14-year-old boy accused of murder in an adult court does not violate the constitution:

“I cannot say that this is unconstitutional,” said Ventura County Superior Court Judge Douglas Daily.

Teenage defendant Brandon McInerney of Oxnard is charged with first-degree murder and a hate crime in connection with the Feb. 12 killing of classmate Larry King, 15, who sometimes wore makeup and told friends he was gay.

Today a Ventura County Star editorial pleads with District Attorney Greg Totten to use his discretion to rethink that decision:

The Star Editorial Board respectfully asks Mr. Totten to step out of his office, ask for counsel outside his prosecutor peers to lessen the real influence of groupthink, look at the question anew and reflect again on the circumstances before making a final decision. (His initial decision was made within just two days of the shooting and his office had left open the possibility it could change as more facts were learned.)

We hope Mr. Totten also considers the information that has come forward recently in the national discussion of whether children should be tried as adults. A November 2007 report by the Equal Justice Initiative, a nonprofit law organization in Montgomery, Ala., stated that the United States is one of the few countries in the world that allows children to be prosecuted as adults and sentenced to life without the possibility of parole.

The majority world opinion of civilized nations is that juveniles should not be subject to dying in prison — certainly not 14-year-olds.

There is science on the competence of 14-year-olds that ought to inform our legal and ethical decision as to whether or not we should declare kids adults fit for trial. William Saletan, for example, has reported:

In a forthcoming review of studies, Laurence Steinberg of Temple University observes that at ages 12 to 13, only 11 percent of kids score at an average (50th percentile) adult level on tests of intellectual ability. By ages 14 to 15, the percentage has doubled to 21. By ages 16 to 17, it has doubled again to 42. After that, it levels off. […]

Steinberg reports that on tests of psychosocial maturity, kids are much slower to develop. From ages 10 to 21, only one of every four young people scores at an average adult level. By ages 22 to 25, one in three reaches that level. By ages 26 to 30, it’s up to two in three.

Emphasis mine. The case at hand presents a psychosocial challenge that was daunting for all involved. In fact, the evidence indicates it pretty much overwhelmed all of the adults involved.

Arguably, what we have here is the scapegoating of kids for the inability of adult individuals and institutions to cope with the complexities of psychosocial challenges of our own making. We built this society; we birthed those kids; we raise and educate them!

Some of the indicators become clear in last week’s Newsweek Cover Story — no matter what your political persuasion (or perspective on the objectivity or lack thereof of the reporters of the story). Extended illustrative excerpts follow.

Larry:

Even as homosexuality has become more accepted, the prospect of being openly gay in middle school raises a troubling set of issues. Kids may want to express who they are, but they are playing grown-up without fully knowing what that means. At the same time, teachers and parents are often uncomfortable dealing with sexual issues in children so young. Schools are caught in between. How do you protect legitimate, personal expression while preventing inappropriate, sometimes harmful, behavior? Larry King was, admittedly, a problematical test case: he was a troubled child who flaunted his sexuality and wielded it like a weapon—it was often his first line of defense…His biological mother was a drug user; his father wasn’t in the picture. […]

In January, after a few months at Casa Pacifica, Larry decided to dress like a girl. He went to school accessorized to the max, and his already colorful personality got louder…he told a teacher that he wanted to be called Leticia, since no one at school knew he was half African-American. The teacher said firmly, “Larry, I’m not calling you Leticia.” He dropped the idea without an argument.

The staff at E. O. Green was clearly struggling with the Larry situation—how to balance his right to self-expression while preventing it from disrupting others. Legally, they couldn’t stop him from wearing girls’ clothes, according to the California Attorney General’s Office, because of a state hate-crime law that prevents gender discrimination. Larry, being Larry, pushed his rights as far as he could…In the locker room, where he was often ridiculed, he got even by telling the boys, “You look hot,” while they were changing, according to the mother of a student. […]

Joy Epstein was one of the school’s three assistant principals, and as Larry became less inhibited, Epstein became more a source of some teachers’ confusion and anger. Epstein…was openly gay to her colleagues, and although she was generally not out to her students, she kept a picture of her partner on her desk that some students saw. While her job was to oversee the seventh graders, she formed a special bond with Larry, who was in the eighth grade. He dropped by her office regularly, either for counseling or just to talk—she won’t say exactly. “There was no reason why I specifically started working with Larry,” Epstein says. “He came to me.” Some teachers believe that she was encouraging Larry’s flamboyance, to help further an “agenda,” as some put it. One teacher complains that by being openly gay and discussing her girlfriend (presumably, no one would have complained if she had talked about a husband), Epstein brought the subject of sex into school. Epstein won’t elaborate on what exactly she said to Larry because she expects to be called to testify at Brandon’s trial, but it’s certain to become one of the key issues. […]

For tweens, talking about being gay isn’t really about sex. They may be aware of their own sexual attraction by the time they’re 10, according to Caitlin Ryan, a researcher at San Francisco State University, but those feelings are too vague and unfamiliar to be their primary motivation. (In fact, Larry told a teacher that he’d never kissed anyone, male or female.) These kids are actually concerned with exploring their identity… Like older teenagers, tweens tend to tell their friends first, because they think they’ll be more accepting. But kids that age often aren’t equipped to deal with highly personal information, and middle-school staffs are almost never trained in handling kids who question their sexuality. More than 3,600 high schools sponsor gay-straight alliances designed to foster acceptance of gay students, but only 110 middle schools have them. Often the entire school finds out before either the student or the faculty is prepared for the attention and the backlash. “My name became a punch line very fast,” says Grady Keefe, 19, of Branford, Conn., who came out in the eighth grade. “The guidance counselors told me I should not have come out because I was being hurt.” […]

As you talk to the teachers, many of them say they tried to support Larry, but they didn’t always know how. In blue-collar, immigrant Oxnard, there is no gay community to speak of and generally very little public discussion of gay issues, at least until Larry’s murder happened. One teacher was very protective of Larry, his English teacher, Mrs. Boldrin. To help Larry feel better about moving to Casa Pacifica, she brought Larry a present: a green evening dress that once belonged to her own daughter. Before school started, Larry ran to the bathroom to try it on. Then he showed it to some of his friends, telling them that he was going to wear it at graduation.

Brandon:

His parents, Kendra and Bill McInerney, had a difficult, tempestuous relationship. In 1993, Kendra alleged that Bill pointed a .45 handgun at her during a drunken evening and shot her in the arm, according to court records. She and Bill split in 2000, when Brandon was 6. One September morning, a fight broke out after Kendra accused her husband of stealing the ADHD medication prescribed to one of her older sons from her first marriage… In a December 2001 court filing for a restraining order against Kendra, he claimed that she had turned her home into a “drug house.” “I was very functional,” Kendra later explained to a local newspaper, in a story about meth addiction. By 2004, she had entered a rehab program, and Brandon went to live with his father. But he spent years caught in the middle of a war.

While his life did seem to become more routine living with his dad, Brandon’s troubles resurfaced in the eighth grade. His father was working in a town more than 60 miles away, and he was alone a lot. He began hanging out with a group of misfits on the beach. Although he was smart, he didn’t seem to have much interest in school. Except for Hitler—Brandon knew all about the Nuremberg trials and all the names of Hitler’s deputies.  […]

And then there was Valentine’s Day. A day or two before the shooting, the school was buzzing with the story about a game Larry was playing with a group of his girlfriends in the outdoor quad. The idea was, you had to go up to your crush and ask them to be your Valentine. Several girls named boys they liked, then marched off to complete the mission. When it was Larry’s turn, he named Brandon, who happened to be playing basketball nearby. Larry walked right on to the court in the middle of the game and asked Brandon to be his Valentine. Brandon’s friends were there and started joking that he and Larry were going to make “gay babies” together. At the end of lunch, Brandon passed by one of Larry’s friends in the hall. She says he told her to say goodbye to Larry, because she would never see him again. […]

“We failed Brandon,” a teacher says. “We didn’t know the bullying was coming from the other side—Larry was pushing as hard as he could, because he liked the attention.”

Greg King doesn’t feel sympathy for Brandon, but he does believe his son sexually harassed him. He’s resentful that the gay community has appropriated his son’s murder as part of a larger cause. “I think the gay-rights people want it to be a gay-rights issue, because it makes a poster child out of my son,” King says. “That bothered me. I’m not anti-gay. I have a lot of co-workers and friends who are gay.”

Here’s Brandon McInerney Defense Fund Information.  A coalition of gay groups including Lambda Legal, the National Center for Lesbian Rights and the Transgender Law Center, the American Civil Liberties Union of Southern California, Equality California, Gay Straight Alliance Network, Los Angeles Gay and Lesbian Center, and the National Gay and Lesbian Task Force, had urged the court to try McInerney as a juvenile.

McInerney’s arraignment is now scheduled for August 7.

RELATED: NPR’s All Things Considered did a sensitive treatment of this story on June 9.