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N.C. Raise the Age Supporters Hope for Change in Law

DURHAM, N.C. — David Johnson was 16 years old when he faced his first criminal charge in a North Carolina court that considered him an adult.

He remembers being overwhelmed by the proceedings, uncertain of what it would mean to take a plea or to spend years in prison — and to end up with a permanent criminal record. After all, he says, he was just a kid.

“I didn’t realize the consequences that it could have for me down the line,” he said.

Today, Johnson is an outreach worker with Bull City United in Durham, where he focuses on discouraging violence in the neighborhoods where he grew up. He tells teenagers about how he picked up his first adult charge for a stolen car, then at 17 was charged with assault with a deadly weapon and served nearly 10 years in prison.

Johnson says he talks to the teenagers he works with all the time about what could happen if they come in contact with the criminal justice system. He wants them to know that in North Carolina, 16- and 17-year-olds are charged as adults, not juveniles, a reality he says makes it harder for young people to get access to the programs they need to get on a healthy path.

“You’re killing my life before I even get a chance to live it,” he said.

North Carolina and New York are the only two states where 16-year-olds are routinely charged as adults for any offense, from petty misdemeanors to violent felonies. And only a handful of states do the same for 17-year-olds.

Across the country, keeping teenagers in the juvenile system until their 18th birthday has become the norm, with ways for prosecutors to send teenagers into the adult system if they think the crime requires it.

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In 2016, South Carolina lawmakers swiftly and unanimously passed legislation to keep teenage offenders in the juvenile system until age 18, rather than automatically sending them to adult court. Louisiana lawmakers did the same with only a handful of dissenting votes. Since 2009, Connecticut, Illinois, Massachusetts and New Hampshire also have “raised the age.”

North Carolina lawmakers have debated for years whether they also should make the change. Now, supporters of raising the age in the state say 2017 could be their year, as traditional opponents such as police and prosecutors have shown greater support than ever before, and a state commission on judicial policy led by Supreme Court Chief Justice Mark Martin has endorsed the change.

“It just feels like a changing tide,” said Susanna Birdsong, policy counsel at the ACLU of North Carolina.

Supporters argue that 16- and 17-year-olds belong in the juvenile system because they still are maturing — and are therefore less culpable and more primed for rehabilitation than older offenders.

In addition, they say adolescents charged as adults must deal with criminal records that limit their educational and employment opportunities — and put them at a disadvantage compared with their peers in other states. Plus, the small number of teenagers charged with serious crimes who spend time in adult facilities are particularly vulnerable to physical and sexual assault.

Rodney Robbins knows well the way a criminal record can follow a family for years.

Twenty-one years ago, his 16-year-old son was part of a group of teenagers charged in a car-vandalizing spree. His son, who also has developmental disabilities, has struggled to find work, even losing a job when a post-hiring background check turned up his misdemeanors.

Convellus Parker, 34, right, an outreach worker with Bull City United, canvasses a Durham neighborhood in support of the group's anti-violence initiatives. Parker, a former offender who was charged as an adult at 17, supports raising the age of juvenile jurisdiction in North Carolina.

The family had mistakenly thought he didn’t need to disclose his record because of his age at the time of the offense since juvenile records typically are sealed.

And, there are the what-ifs. Robbins often thinks about what he could have done differently after his son was charged. Should he have hired a private attorney, rather than relying on a public defender? Should he have mentioned his son’s developmental disabilities to the court?

“We continue to live this every day. It’s tiring, it’s relentless,” he said.

Robbins testified last year, one of dozens of children’s advocates and parents who did so at public hearings across the state, one sign of the growing momentum to change the state’s policy.

Legislative action possible

In the past, raising the age in North Carolina has had support from organizations across the political spectrum, from the conservative John Locke Foundation to the liberal American Civil Liberties Union. But legislation always stalled, often as detractors cited concerns about costs as well as public safety.

This year though, traditional opponents of the measure, including law enforcement and prosecutors, also have given qualified support to raising the age. And, the North Carolina Commission on the Administration of Law and Justice, headed by Martin, was expected to release a report in February (not available at press time) that includes a committee’s recommendation to raise the age.

At the group’s final meeting, Martin said he plans to work with the legislature and governor to pass such a measure.

“Let’s get to work and get it done in the long session,” he said.

State Rep. Duane Hall, a Democrat, said in early February that he expected to introduce bipartisan legislation that largely tracks with the commission’s recommendations during the upcoming session.

Hall, who has co-sponsored raise the age legislation in the past that cleared the House, said costs have typically been the biggest stumbling block in recruiting lawmakers to support raising the age. While the change would have significant start-up costs, other states have saved money in the long term because of decreases in recidivism and reduced facility costs.

“Once you get it going, it’s cheaper to have 16- and 17-year-olds in the juvenile system. People are just fearful of the upfront costs,” he said.

But Hall said costs shouldn’t be the only consideration. Teenagers’ capacity for change and their safety also should drive the decision to raise the age.

“It’s the right thing to do,” he said.

Despite the greater consensus around raising the age, supporters warn it’s hardly a done deal. They expect some lawmakers will have objections about costs, as well as public safety.

David Johnson, an outreach worker with Bull City United, canvasses a neighborhood in support of anti-violence initiatives. Johnson was charged with assault as an adult in 1998 when he was 17-years-old. He supports raising the age of juvenile jurisdiction so that 16- and 17-year olds in North Carolina don't automatically land in adult court.

For example, in a letter to the North Carolina Courts Commission, which also has endorsed raising the age, recently retired state Rep. Paul Stam, a powerful Republican, said he has concerns that young offenders’ crimes would be shielded from the public because they would have juvenile, rather than adult, records.

“To take that away is a real mistake. There are multiple felony offenses that the public, future spouses and employers may never hear,” he wrote.

Stam also said he has concerns the change could encourage gangs to use 16- and 17-year-olds for certain crimes, knowing they likely won’t be tried in adult court and will face lighter penalties.

No violent felonies

One of the notable characteristics in the committee’s recommendation is what it excludes. As is the law in some states, the group set apart some serious, violent felonies, meaning 16- and 17-year-olds charged with crimes such as murder or rape would still be considered adults after a finding of probable cause or indictment.

Prosecutors also would retain the ability to petition a judge to send other teenagers to adult court if they think it necessary.

Few of the young offenders in North Carolina are convicted of violent offenses. In 2014, only 3.3 percent of the 5,689 16- and 17-year-olds convicted were charged with the violent crimes that the group recommended excluding. Another 80.4 percent were convicted of misdemeanors and 16.3 percent of nonviolent felonies.

Bob Simmons, executive director of the Council for Children’s Rights in Charlotte, said he ultimately would like to see all adolescents under 18 remain in juvenile court, but the recommendation is a strong step in the right direction.

“We, as advocates for children and as juvenile defenders, believe children should be treated as children regardless of the severity of the offense because the brain science about their ability to control their impulses doesn’t differ based on that severity,” he said.

The recommendation also stresses the importance of information sharing among state agencies and full funding to implement the changes, a point that was critical to gaining the support of the North Carolina Sheriffs’ Association.

“Previous legislation that has been vigorously opposed by the Association merely deleted the number 16 and replaced it with the number 18,” the association wrote in a letter to the commission indicating their support. But the committee’s recommendation takes into account “practical real world concerns” identified by the sheriffs, they said.

The North Carolina Conference of District Attorneys also wants to see the Legislature put adequate training and funding in any bill before they can support it, said Peg Dorer, director of the group.

Prosecutors also have said they want more authority to decide which juveniles get sent to adult court without having to go in front of a judge. But Dorer said the main priority for the group is adequate funding.

“There’s a lot of interest, and I do think it stands as good a chance as it ever has if the General Assembly is willing to put the resources to it,” she said.

States Consider Options for Young Adults in Justice System

All of Roca’s programming is tailored for high-risk young people who are not yet ready, willing or able to participate in group programs. High school education classes, workforce readiness and cognitive behavioral skills are taught in one-on-one classes and in small groups.
All of Roca’s programming is tailored for high-risk young people who are not yet ready, willing or able to participate in group programs. High school education classes, workforce readiness and cognitive behavioral skills are taught in one-on-one classes and in small groups.

WASHINGTON — For more than a decade, juvenile justice reformers have used developments in adolescent brain science and psychology to make their case for a system that emphasizes rehabilitation and second chances for young offenders.

Those same developments now are helping fuel an interest in how the criminal justice system treats young adults. This population has plenty in common with their younger counterparts because they, too, are still maturing, researchers and policymakers say.

And, because young adults ages 18 to 24 are disproportionately likely to commit crimes and to reoffend, they’re a prime target in the quest to reduce mass incarceration, they add.

“We don’t want crime. We don’t want victims. Our goal is to protect society. So, where do we look next?” said Lael Chester, a research fellow in the Program in Criminal Justice Policy and Management at Harvard’s Kennedy School, which has promoted the idea that young adults are a population worth paying attention to.

Jurisdictions across the country have recently began rolling out experiments related to young adults, with more action expected this year and beyond:

  • A community court in Cook County, Illinois, will focus on young adults ages 18 to 26, using restorative justice techniques that emphasize healing relationships between victims and offenders;
  • Five counties in California will have the flexibility to allow some young adult offenders ages 18 to 21 to serve their time in juvenile correctional facilities.
  • The federal government has provided $31 million in grants to organizations that can design programs to help young adults re-enter the community after serving their time in prison; and
  • Lawmakers in Connecticut are expected to debate once more this spring whether to raise the age of juvenile jurisdiction, so that youth remain in the juvenile system until age 21 rather than age 18. Gov. Dannel P. Malloy, a Democrat, has championed the headline-grabbing proposal.

“If we get it right with this age group, if we intervene and significantly change their behavior for the better, we can use this as a way to improve public safety,” said Brent Cohen, senior advisor to the assistant attorney general in the Office of Justice Programs at the Justice Department.

As reformers consider if and how to change the justice system for  young adults, they will have to grapple with plenty of hard questions, including how to tailor services to the needs of young adults and how to explain to elected officials and the public the need for a new focus.

Marc Schindler, executive director of the Justice Policy Institute, said the juvenile justice field likely will have plenty of advice to offer about how to take a developmentally appropriate approach to reform.

“I would hope those who are leaders in the juvenile justice field see themselves as resources to share their knowledge and their experiences of what’s worked and what hasn’t worked,” he said.

Roca’s youth workers reach out dozens of times to high-risk young people over weeks and months, and keep coming back until they build trust and are able engage in harder conversations and push behavior change.
Roca’s youth workers reach out dozens of times to high-risk young people over weeks and months, and keep coming back until they build trust and are able engage in harder conversations and push behavior change.

Crafting appropriate responses

Discussions about tackling the young adult population draw on the fields of adolescent brain science and psychology. Scientists have shown teenagers have less control of their emotions and are more willing to take risks, findings that have propelled the idea that “kids are different” when it comes to their culpability for crime and potential for rehabilitation.

“Adolescents just aren’t as good as adults at putting on the brake,” said Elizabeth Cauffman, a professor of psychology and social behavior at the University of California-Irvine.

However, as researchers have charted for the past two decades the way adolescents develop, they also realized there’s no that separates a teenager from an adult, arguing that development continues into a person’s mid-20s.

“You can’t with a straight face say that 18-year-olds are adults and 17-year-olds are not. You just can’t,” said Lisa Jacobs, program manager at the Center for Criminal Justice Research, Policy and Practice at Loyola University in Chicago, which has a young adult research initiative.

But the fact that maturation is a process means a 15-year-old is not identical to a 20-year-old, not when it comes to their exact developmental stage, and not when it comes to the programs they need to thrive in society after criminal justice involvement.

“What a 21-year-old needs and what a 16-year-old needs and what a 10-year-old needs are not the same,” Cauffman said.

For example, the education, housing and social needs — the very things policymakers will have to consider when they craft programs — could all differ for young adults compared with their younger counterparts.

When Connecticut first mulled raising the age to 21, a group of prominent adolescent researchers warned that the science wasn’t settled on whether young adults’ brains were so immature that they deserved the same treatment as teenagers.

Jacobs said that’s a fair point — that there are thorny questions about how to make programs work for young adults, especially if reformers use a juvenile justice framework as their starting point. But that’s not a reason to abandon the effort before it even begins, she said.

“You don’t have to use the same system, you don’t have to use the same program, but there are things we can learn,” she said.

Mike Lawlor, undersecretary for criminal justice policy and planning in Connecticut, said a common worry he heard when the legislature considered raising the age to 21 was that young adults didn’t belong in the same facilities as much younger teenagers.

He’s replied that the proposal isn’t intended to suggest that 20 years old is the same as 16 years old, or that young adults and teenagers should live in the same spaces while detained. The motivation instead is that the rehabilitative, community-based and developmentally informed approaches that have guided reforms for juveniles are worth looking at for older offenders.

“That mechanism is what we’re trying to take advantage of,” he said.

Schindler, at JPI, said researchers heard a similar idea last year when the think tank held stakeholder roundtables on potential young adult reforms with leaders from law enforcement, juvenile and adult corrections, the courts and community-based organizations, researchers and formerly incarcerated young people. No one suggested the juvenile system was perfect but they thought it could be a starting point.

And for the most part, the roundtable participants did not support creating a third system just for young adults but instead applying what works in juvenile justice to young adults in the criminal justice system, with a focus on community-based programs.

In their final report on the roundtables, JPI wrote that the field also should be aware of the potential pitfalls of using brain science research to guide reforms for young adults.

“This conversation should not lead to the limitation of other legal rights, such as voting, or influence policies in other areas, like family planning,” the report said.

JPI also noted that the arguments rooted in adolescent brain development have been successfully contested in lower courts, which could limit their use in criminal justice reform.

Roca participants and their crew supervisor clean the streets of Chelsea, Massachusetts, as part of Roca’s contract with the city. The young men are in a transitional employment program, where they gain real wages for real work while learning critical job skills.
Roca participants and their crew supervisor clean the streets of Chelsea, Massachusetts, as part of Roca’s contract with the city. The young men are in a transitional employment program, where they gain real wages for real work while learning critical job skills.

What’s next?

Emily Morgan, a senior policy analyst at the Council of State Governments Justice Center, also has been watching as states tinker with supervision and services for young adults, including in a report that outlines opportunities and difficulties jurisdictions could encounter.

She expects states will begin their efforts with low-risk, nonviolent offenders before bringing in a larger group of offenders.

Regardless of the approach though, Morgan said it’s critical to remember there’s little research on what interventions will work best with young adults. Policymakers should build in ways to track their results if they want to build a knowledge basis that goes beyond one-off projects.

“As states are pioneers in the effort everyone is going to look to them, so it’s important they know how they measure success,” she said.

States also can look to a few models of long-standing programs that may offer clues about how to provide support to young adults.

In a 2016 national scan, the National Institute of Justice identified programs across the country that focus on justice-involved young adults, including young adult courts, probation and parole programs, district attorney-led programs, community-based partnerships, prison-based programs, and advocacy and research programs.

Among the programs researchers were most frequently referred to was Roca, a community-based program in Massachusetts that has worked with young adult offenders for decades.

Roca uses an intensive model focused on young adults who leave prison and are at high risk for reoffending. For months, caseworkers will contact potential participants, stopping by their homes and calling them over and over until they can establish trust and begin to help someone rebuild their lives.

Anyone hoping to work with young adults should recognize that it isn’t an easy job, said Yotam Zeira, a spokesman for the group.

“You have to build the capacity, the culture and recognize that it’s hard. You have to provide training and support for staff to keep up with it,” he said.

But Zeira is encouraged by the conversations he hears happening about young adults.

“The world is kind of catching up,” he said.  

Report: Communities Must Switch to Local Care, Not Prisons, for Young Offenders

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WASHINGTON Many policymakers and advocates know they want to close youth prisons, where they say young offenders are often isolated, unsafe and go without the services they need to thrive when they return to their communities.

But what would the alternative look like? A new report released by The National Collaboration for Youth lays out the case for investment in a community-based continuum of care that is rooted in the needs of individual jurisdictions.

While many communities have nonresidential supports and services, they often lack the full range of programs to meet the needs of justice-involved youth in their homes and with the support of their families, the report said.

“Too many young people are incarcerated because the services they need are not available in their communities,” said Shaena Fazal, lead author of the report and national policy director at Youth Advocate Programs.

The authors set out guiding principles to create those continuums, which will only work if they safely decarcerate secure youth facilities, the report said. It also outlines strategies for planning and funding a continuum of care.

The guidelines include defining public safety as more than law enforcement, ensuring that services are family-centered and identifying communities’ strengths and assets. Services that are available could include helping families meet basic needs, behavioral health, substance use and economic development programs, and gang intervention and restorative justice approaches.

Hernan Carvente, 24, an analyst at the Vera Center on Youth Justice who spent four years in prison as a youth, said the change in strategy is essential. Four years after serving his time, he still feels the collateral consequences of his time locked up, including a sense that he is “bottled up.”

“Being incarcerated is not an environment or space where growth can happen in a healthy or positive way,” he said.

Individualized service plans

In the report, the authors also call for the creation of individualized service plans for youth that would deal with legal issues and youth accountability, as well as education, health, financial and emotional well-being. Those plans would depend on:

  • a wraparound planning process;
  • credible messengers, trusted community members who understand youth and their neighborhoods;
  • family advocacy;
  • flexible funding to access services for youth that fall outside the continuum; and
  • crisis and safety planning.

The report cautions there are few examples of robust continuums of care around the country but pointed to successes in Lucas County, Ohio, and Tarrant County, Texas, as models.

In Lucas County, officials have developed an assessment center staffed by social workers rather than correctional officers where young people who do not need to be detained or committed to facilities can get the services they need.

Since 2013, the county has diverted 3,000 young offenders, said Deborah Hodges, the county’s court administrator. The county also has seen a steep drop-off in the number of young people booked for school-based charges, down from 204 in 2012 to just three so far in 2016, she said.

The research shows the direction jurisdictions should take, but officials have to be bold and accept that the path will not be entirely smooth, she said.

“We must get comfortable with kids falling down. They will make mistakes, just like our children do,” Hodges said.

The next step for Lucas County will be to move programming out of the courthouses and into the neighborhoods where the young people they see live, she said.

As jurisdictions try to shift from a youth prison model, they also should be mindful of how they communicate the research and data behind it to the public, said Clinton Lacey, director of the District of Columbia’s Youth Rehabilitation Services.  Long-lasting success will come when communities understand what’s behind reforms, not just if they trust one charismatic leader or effective organization, he said.

“I think there needs to be a real conversation and that comes through a relationship with community,” he said.

New Resources Released to Help Justice-involved Youth Transition Back to School

WASHINGTON — A new set of resources from the federal Education Department aims to help justice-involved youth transition back into school and avoid further offenses.

The department released Friday a guide for students and an updated transitions toolkit for administrators and practitioners who work with youth, emphasizing for both the importance of early reentry planning.

For more information, check out the JJIE Resource Hub | Re-entry

Research has found successful transitions back to school can increase the likelihood youth graduate from high school and reduce recidivism. But too few justice-involved youth do transition successfully: More than a quarter drop out of school within six months and half of youth released from juvenile justice facilities are locked up again within three years, the department said.

In addition, fewer than half of states track outcomes for youth, only 11 states have staff dedicated to public school reentry, and many justice-involved youth across the country are re-enrolled in alternative schools, many of which have poorer student outcomes than traditional schools, according to the department.

“It is in the interest of every community to help incarcerated youth who are exiting the juvenile justice system build the skills they need to succeed in college and careers and to become productive citizens,” Education Secretary John B. King Jr. said in a news release. “Unfortunately, many barriers can prevent justice-involved youth from making a successful transition back to school. We want to use every tool we have to help eliminate barriers for all students and ensure all young people can reach their full potential.”

The “You Got This” transition guide gives students information on school choice and a re-enrollment checklist, along with a Student Bill of Rights and information on filing a civil rights complaint.

The department recommended that those who work with youth provide the guide to juveniles as soon as they enter the justice system, so they can begin preparing immediately for reentry into their community.

The department also released a technical assistance website on improving outcomes for justice-involved youth with disabilities, and a fact sheet on education in juvenile justice facilities and students’ civil rights while housed in them.

Sen. Cotton Blocks Move to Pass JJDPA Again

WASHINGTON — A long-shot attempt to pass key juvenile justice legislation this year failed Wednesday when a lone senator once more objected to the bill.

Senate leaders tried to move a bipartisan reauthorization of the Juvenile Justice Delinquency and Prevention Act (HR 5963) using a fast-track procedure that requires the support of all senators.

For more information about evidence-based practices, go to JJIE Resource Hub | Evidence-Based Practices

But Sen. Tom Cotton, R-Arkansas, who has opposed the reauthorization throughout the year, would not consent because of a provision that would limit judges’ authority to lock up some young offenders.

The JJDPA sets the core safety standards for juveniles that states must follow in order to qualify for federal grants. It also aims to prevent delinquency and curb racial and ethnic disparities in juvenile justice systems.

One of those core protections prohibits the detention of juveniles for so-called status offenses, behaviors such as truancy or running away that are only considered crimes because of a youth’s age. The reauthorization would phase out the valid court order exception that does allow youth to be detained for status offenses if they violate a valid court order issued by a judge.

If “a juvenile flouts the authority of the judge, that judge needs some mechanism to enforce his orders. That is no longer a status offense, that is contempt of court,” Cotton said.

The bill that was under consideration would allow states to apply for hardship extensions from the phaseout of the valid court order exception. The House passed its version of the long-awaited reauthorization in October.

The JJDPA has not been reauthorized since 2002. Since then, a growing body of research has pointed toward new evidence-based policies that would benefit adolescents and should be included in the law, supporters say.

“What we heard from juvenile justice practitioners around the country is that a lot of the policies that had been in place for dealing with juvenile offenders were stale and ineffective, that there were better ways to do business than were currently being supported,” said Sen. Sheldon Whitehouse, D-Rhode Island, who has championed the reauthorization in the Senate along with Judiciary Chairman Charles E. Grassley, R-Iowa.

The Act4JJ Coalition, which represents more than 180 national youth development and juvenile justice organizations, said it was “profoundly disappointed that one senator can stop the passage of this critically important bill.”

The coalition’s co-chair, Marcy Mistrett, also CEO of the Campaign for Youth Justice, said in a release, “More than half the counties in Arkansas don’t even use the valid court order exception anymore; only five are responsible for more than half the detention of status offenders on a violation of a court order. Five counties should not drive federal policy for the entire country.”

The action on the Senate floor was a repeat of an earlier attempt in February to pass the Senate’s version of the JJDPA reauthorization. Since then, advocates and lawmakers have urged Cotton to change his mind.

Cotton said he would consider tweaks to the valid court order phase-out, such as a minimum age for detaining status offenders, but those ideas are unlikely to find favor with supporters of reform.

This story has been updated.

Report: Youth Lack Access to Quality Defense Attorneys

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WASHINGTON — Better data collection, improved efforts to attract juvenile defenders and well-funded, well-organized defense systems are among the ways to ensure youth charged with an offense have a lawyer by their side when they enter a courtroom, a new report says.

The National Juvenile Defender Center released an analysis that details how the group believes federal, state and local officials, as well as law schools and others, could help ensure more juveniles have access to legal counsel.

The recommendations include appointing counsel for all juveniles without requiring a finding of indigence, requiring a juvenile to meet with an attorney before waiving their right to counsel and implementing new training standards for juvenile defenders.

For more information, visit the JJIE Resource Hub | Juvenile Indigent Defense

The report also highlights why the current system isn’t working, including lack of funding, an insufficient number of attorneys who understand adolescents and a complicated judicial process that means juveniles often waive their right to counsel before ever speaking with an attorney.

“Children are arrested for what is mostly normal youth conduct and can be separated from their families and incarcerated without even the most rudimentary attempts to protect their rights,” said Mary Ann Scali, the acting executive director of NJDC, in a news release. “Our most vulnerable defendants are the least likely to have an effective attorney in our courtrooms.”

The report released Monday comes in the midst of the organization’s yearlong campaign “Gault at 50,” which seeks to improve access to quality legal counsel for juveniles in the leadup to the 50th anniversary of the Supreme Court’s 1967 In re Gault decision. The ruling said young people in juvenile court have many of the same rights as adults in criminal court, including the right to counsel.

A 2003 survey by the federal Office of Juvenile Justice and Delinquency Prevention found only 42 percent of youth in custody reported having a lawyer.

The report focuses not just on the legal right to counsel but on the recent changes to juvenile justice that are built on the idea that the system must recognize the developmental differences between adolescents and adults.

Adequate juvenile defense is part of building that developmentally responsive system, the report said.

“Research indicates because of normal developmental changes — social, emotional, physical, and neurological — when faced with the same circumstances, adolescents respond differently than adults," said Antoinette Kavanaugh, a Chicago-based board-certified forensic clinical psychologist, in a news release. "As a result, adolescents need lawyers from the point of arrest until they are released from the legal system to help them successfully navigate and make legal decisions.”

Supporters Gear Up for New California Law That Eliminates Direct File

A new California law that gives all juveniles the right to a hearing before they can be transferred to adult court will require training and vigilance across the state to put in place, supporters say.

Among the many boxes to check off: Many defenders, prosecutors and judges have to learn how to apply the law’s intricacies. The juvenile system as a whole has to prepare to offer services to teenagers who likely would have ended up in adult prison. And the legal community will have to grapple with whether the law applies to cases already in the works.

“The rules are going to be very different,” said Sue Burrell, policy and training director for the Pacific Juvenile Defender Center, which supports the changes.

After voters approved Proposition 57 by 64 percent on Tuesday, Burrell sent out guidance to the state’s juvenile defender community about implementation. Just a day later, she had dozens of replies from attorneys eager to make the most of the law.

The measure reverses a policy enacted in 2000 that gave prosecutors authority to bring charges against some juveniles in adult court rather than making the case for a transfer before a juvenile judge, a process known as direct file.

Proposition 57 puts power back in the hands of judges where it belongs, rather than with prosecutors, said Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice.

“It allows a more deliberative approach, a more thoughtful approach and that’s the way it should work. It shouldn’t be a quick decision, made sometimes in as little as 48 hours, often with scant information,” he said.

The measure also changes the parole system for adults, provisions that were strongly opposed by some in the law enforcement and prosecutor communities. Some also argued against the end of direct file, saying it would eliminate a valuable tool to promote public safety.

A spokeswoman for the California District Attorneys Association said the organization will be reviewing the measure’s implications and deciding on the most appropriate way to offer training and resources to their members.

Every state has ways to transfer a juvenile to adult court, most commonly by a judicial hearing. But some states also give prosecutors discretion to decide who ends up in adult court or include in state law a list of serious crimes that must be charged in adult court. Other states, including Vermont and Indiana, also are reforming their transfer policies, though California’s new policy is among the most ambitious.

Under the new law, the only way for a juvenile in California to end up in adult court will be if a judge decides that is the most appropriate setting for him or her. The judge will have to consider criteria that take into account teenagers’ ongoing development and potential to change before sending him or her to adult court.

The criteria, which were expanded under an earlier law and included in Proposition 57, are an improvement that will give judges a fuller picture of a youth’s situation, Burrell said.

“The things that a court will look at are much more helpful to teenagers than the previous criteria were. They’re much more developmentally appropriate,” she said.

In addition, the law no longer places the burden on juveniles to prove they deserve to stay in juvenile court, said Frankie Guzman, a staff attorney at the National Center for Youth Law. Prosecutors instead will have to make their case to a judge.

Analysts and supporters expect the changes will result in fewer juveniles ending up in adult court. But that means the juvenile system has to be prepared to handle more teenagers charged with serious crimes, who likely need significant services and treatment, Guzman said.

“We also have to make sure the programs and services line up and actually meet the increased demand because we’re going have more high-needs kids. If we’re going to serve public safety well, we have to serve them well,” he said.

The state should focus on improving behavioral and mental health services, mentoring programs and other interventions that can put young people on a healthy path, Guzman said. Locking teenagers up, albeit in the juvenile rather than the adult system, is not a solution for most young offenders, he added.

“The continuum of care needs to be monitored and invested in; we should not allow prosecutors and law enforcement to use the next most harmful option,” he said.

Another question for the justice system will concern whether the new law applies retroactively to active cases, a question Proposition 57 is silent on. Supporters intend to argue it does, potentially sending hundreds of cases to a hearing, Burrell said.

An analysis by the district attorney’s association says the provisions may not apply retroactively but argues it may be easier, and less risky, to allow for a hearing, at least in adult court.

Meanwhile, voters in a number of other states also considered justice reform measures on the ballot, including changes in Oklahoma. Voters there approved reclassifying some drug and property felonies as misdemeanors. Any financial savings will be reinvested in substance use and mental health services.

Advocates Hope for JJDPA Action Post-Election

 

U.S. Capitol Building

WASHINGTON — Advocates are hopeful a reauthorization of the key federal legislation that protects juveniles in state and local custody will be on the agenda when lawmakers return after Tuesday’s election.

A lame duck session is scheduled to begin next week, and lawmakers will have to contend with must-pass items, such as a budget deal to fund the federal government.

But supporters of dozens of other issues also will be lobbying hard for their priorities to make the cut before the legislative session expires. The list includes an update to the Juvenile Justice Delinquency and Prevention Act, a law that sets standards for the treatment of juveniles that states follow to qualify for federal funding.

The House passed a reauthorization bill, the Supporting Youth Opportunity and Preventing Delinquency Act (HR 5963), by a vote of 382-29 in September. Now, supporters will be watching the Senate closely to see if the bill can reach the floor there.

“There should be no more excuses. This needs to get done,” said Marcy Mistrett, co-chair of the Act4JJ Coalition, which represents more than 180 national youth development and juvenile justice organizations, in an emailed statement.

Mistrett pointed to the strong, bipartisan House vote, the backing of a wide variety of stakeholders, the evidence-based policies included in the bill and strong support in the Senate as evidence for why the bill should move forward.

“There is no reason this law can't pass in the lame duck. Everything is aligned,” said Mistrett, who also is CEO of the Campaign for Youth Justice.

A Senate version of the reauthorization (S 1169) stalled early in 2016 after Sen. Tom Cotton, R-Arkansas, objected to a provision that would eliminate judges’ ability to send juveniles to lockup for status offenses.

The JJDPA prohibits the use of lockup for status offenses — actions such as truancy or running away from home that are only considered offenses because of the juvenile’s age — unless a judge issues a valid court order.

A spokeswoman for Cotton said he is concerned that the reauthorization proposals would eliminate judges’ ability to order secure confinement “in instances where a status offender openly flouts the judge’s order for him to enter rehabilitation, counseling, or take part in other treatment and services.”

“In such circumstances it is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option to ensure that the juvenile receives the help he needs,” she said.

Though the House and Senate bills differ slightly, senators championing the bill have indicated they will support the lower chamber’s version.

However, because of Cotton’s objection the bill cannot pass by a fast-track procedure that requires the unanimous consent of all senators. Instead it would have to move to the floor as a stand-alone bill or be attached to another piece of legislation.

Details about if and how the bill would move are not expected to become clear until the election results are in.

The JJDPA has not been updated in 14 years. During that time, best practices in the juvenile justice field have shifted significantly — and need to be incorporated into the law, supporters say.

Among its provisions, the House JJDPA reauthorization would update core protections in the law, give states new tools to prevent delinquency and gang involvement, and provide guidance on curbing racial and ethnic disparities in the system.

Next Administration Needs to Close Youth Prisons, Experts Say

Young man in handcuffs

WASHINGTON — The next presidential administration should build on the momentum researchers, advocates and policymakers have created to close youth prisons, experts say.

They are hopeful a new report that lays out the case for investing in community-based alternatives to incarceration will be a valuable guidepost as the transition to a new administration begins after the election.

“Maybe having this teed up early on will make it a priority. They have a tremendous opportunity to be successful,” said Vincent Schiraldi, a co-author of the report and a senior research fellow at the Harvard Kennedy School’s Program in Criminal Justice.

The report released Friday at the Department of Justice highlights problems with incarceration for juveniles, including poor facility conditions, abuse scandals, stubborn recidivism rates and high costs.

Youth would be better served in a system that drastically limits the number of juveniles who are incarcerated, expands community- and family-based programming, and reinvests money in additional prevention and alternative strategies, the authors said.

While a small number of juveniles may need to be housed in secure confinement, those facilities should be reimagined as smaller and closer to juveniles’ homes, as well as better prepared to offer the rehabilitative programming that will put youth on a healthy path, they said.

[Related: Prosecuting Youth As Adults Creates Racial Disparities and ‘Justice-By-Geography’]

“The time has come — in fact it’s way past time — to recognize the justice, the rightness and the inevitability of a simple idea: We need to and we can close every youth prison in America,” said Patrick McCarthy, president and CEO of The Annie E. Casey Foundation, who co-authored the report with Schiraldi and consultant Miriam Shark.

Youth detention policies generally are set at the local and state level, but the federal government offers guidance and regulation tied to funding for states that can help determine the direction of those policies.

Liz Ryan, president and CEO of Youth First, a national advocacy group that campaigns to close youth prisons, said the report makes an “airtight” case for a community-based approach.

“I think the next administration could really take this and figure out how to invest in states and help them to close youth prisons,” she said.

Karol Mason, assistant attorney general for the Justice Department’s Office of Justice Programs, urged reformers to continue pushing federal officials to support overhauling the juvenile justice system. Relentless advocacy does make a difference, she said.

“No matter who has my seat, you need to be demanding things from him or her,” she said.

Schiraldi and McCarthy said the field is at a key moment. The number of juveniles in custody has declined significantly, the science of adolescent development that supports a new system has wide support among policymakers and lawmakers, and there’s a body of evidence about what works best for young people.

“Now is not the time for half-measures. We don’t know when there will be a similar scientific, political and policy alignment,” Schiraldi said.

As cities, states and the federal government decide if and how to enact policy changes, young people and families who have had contact with the system must be part of coming up with a new system, said Tracey Wells-Huggins, associate director of Justice for Families.

It’s not enough to invite families to one conversation or meeting, she said. Engagement is a constant, evolving process that requires all participants to acknowledge families are a valuable part of their children’s lives and do have skills and resources to help them, she said.

“Families and youth are the experts on their own experiences, on their own lives and on the plans for their success. We can’t define that,” she said.

This story has been updated.

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Advocates Working to End Harsh School Discipline That Leads to Dropping Out, Jail

Youth in St. Louis marched on Sunday from a local high school to the police department to raise awareness about school pushout during Dignity in Schools’ National Week of Action.
Youth in St. Louis marched on Sunday from a local high school to the police department to raise awareness about school pushout during Dignity in Schools’ National Week of Action.

Activists concerned about disciplinary policies that force students out of school and into the justice system will gather in cities across the country this week to make their case for reform.

In Boston, they plan to fan out to ask their peers about their experiences with school discipline, results they will pass on to city school administrators.

In Miami, the community will gather for a Forum on Black Lives focused on local county and school board races to ensure school discipline is on the agenda.

And in Dayton, Ohio, organizers will release report cards that show how every school system in the state is performing on disciplinary measures, data that’s collected but not publicized by state officials.

The events are part of the Dignity in Schools Campaign’s 7th annual Week of Action to raise awareness about school pushout.

The campaign’s supporters argue schools are too quick to punish students harshly, especially students of color, students with disabilities, and students who identify as lesbian, gay, bisexual and transgender.

In Pittsburg, supporters of the Solutions Not Suspensions Campaign spoke on Monday at a school board meeting about the importance of ending school push out.
In Pittsburgh, supporters of the Solutions Not Suspensions Campaign spoke on Monday at a school board meeting about the importance of ending school push out.

Suspensions and expulsions can cause students to leave school and lose direction in their lives, ultimately ending up in the criminal justice system, a phenomenon known as the school-to-prison pipeline, they say.

This year, the national campaign will stress five key reforms:

  • Shift funding from school police officers to counselors and peace workers;
  • Fund and use restorative justice and mediation practices;
  • Stop arresting and pushing students out of school, especially students of color, LGBT youth, youth experiencing homelessness and students with disabilities;
  • Make sure officials focus on a healthy school climate as required by the federal Every Student Succeeds Act; and
  • End paddling and other physical punishment.

Since the campaign launched a decade ago, communities are increasingly aware of the importance of paying attention to disciplinary policies, said Nancy Treviño, a spokeswoman for the campaign.

The federal government has released recommendations on discipline, cities and states have adopted new policies and media organizations are more likely to tell the stories of communities concerned about school pushout.

But, much work remains to be done, organizers say. The politics of every community vary, making the implementation of policies that stress alternatives to suspension or promote restorative justice the next hurdle for advocates, Treviño said.

Ten years ago, school administrators had to be introduced to concepts like school pushout, said Ruth Jeannoel, lead organizer at Power U Center for Social Change in Miami. Now they know more but still sometimes have to be prodded into following through on proposed policies or informing students of their rights, she said.

“There’s a lot of work that has happened, but of course there’s a lot more to do,” she said.

In Boston, advocates long have enjoyed a good relationship with city school officials, said Tina-Marie Johnson, a youth worker at Youth Organizers United for the Now Generation.

Each year, advocates share their findings from the surveys youth take of their peers to make the case for where reforms still are needed. And organizers update the survey each year, to be sure they’re addressing new issues that may have arisen and capturing as much data as they can about whether some populations of students face harsher consequences than others.

“We want the conversation to be inclusive of all members of the school community, especially those who [are] affected the most,” Johnson said.

Hashim Jabar, director of the West Dayton Youth Task Force, said data is critical for making the case to school, local and state officials, but he also wants families to spend time understanding what’s happening in their local schools.

“The community as well needs to know more and stand up for themselves and take the information and use it to be empowered,” he said.

In additional to the local events, a national event with speakers and music is planned for tonight in Pittsburgh, with a livestream available for those in other locations.