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More States Need to Halt Prosecution of Youth as Adults

This month marks one year since the passage of Proposition 57, a California ballot measure that prohibited district attorneys from filing charges against youth as young as 14 directly in adult criminal court through a practice known as “direct file.” The initiative passed with 64 percent of the vote, signaling strong popular support for curtailing prosecutorial authority and expanding access to the rehabilitative benefits of the juvenile justice system.

While juvenile courts are premised on rehabilitation and required to provide young people with education, mental health and other age-appropriate services, the adult criminal justice system offers no such guarantee. Youth placed in adult courtrooms are exposed to the trauma of stigmatizing, high-stakes proceedings and may face lengthy adult sentences devoid of rehabilitative opportunities. Furthermore, youth prosecuted and convicted as adults are saddled with lifelong criminal records, severely limiting access to education, housing and employment, and potentially impacting their right to vote or their immigration status.

Research supports the notion that adult court prosecution is fundamentally inappropriate for young people. Studies comparing youth tried in juvenile courts to those processed as adults find that criminal prosecution is associated with poorer mental health outcomes, including higher rates of depression and post-traumatic stress disorder, and elevated risk of rearrest after release. Though proponents of these policies claim they are necessary to deter serious crime, research has linked direct file, transfer and waiver policies to increased levels of youth violence.

Though the burden of these laws falls most heavily on youth relegated to criminal courts, the effects also filter into the juvenile justice system, disadvantaging young people who retain their status as juveniles. In states that permit prosecutors to exercise discretion over transfer petitions or the filing of adult charges, the very threat of criminal prosecution can be used to exact unfavorable plea agreements, exposing young people, unnecessarily, to additional juvenile justice system contact.

Fortunately, decadeslong reductions in youth crime have allowed the pendulum of juvenile justice policymaking to swing towards common-sense reforms that honor youthfulness and emphasize treatment over punishment. In California, Proposition 57 ensures that youth are no longer subject to unchecked prosecutorial authority and cannot be criminally prosecuted without first receiving a transfer hearing in juvenile court.

All California youth are now presumed suitable for the treatment and care of the juvenile court, and prosecutors carry the burden of proving otherwise. By law, California juvenile court judges must look beyond the seriousness of a young person’s offense and consider the “totality of the circumstances,” including their social history, mental health, level of participation in the offense and success with prior interventions, when determining whether they can be transferred to adult criminal court. By abolishing direct file and establishing a higher standard of proof for transferring youth to the adult criminal justice system, California is expected to prosecute many fewer youth as adults in the coming years.  

Several other states have introduced reforms aimed at correcting longstanding overreliance on punitive, criminal sanctions for young people. Recently, New York and North Carolina used their budget processes to expand the age bounds of their juvenile justice systems to ensure that 16- and 17-year-old youth can no longer be automatically placed in adult courtrooms.

In Indiana, state law now permits youth to be processed in juvenile court for any remaining lesser charges if they are tried and acquitted for a more serious offense in adult criminal court. This prevents prosecutors from gaining unfettered access to criminal prosecution through overcharging. In 2016, the Vermont Legislature granted original jurisdiction to the court’s Family Division in all youth misdemeanor cases and in select youth felony cases, ensuring that most young people are processed in juvenile rather than adult criminal court.

Though incremental, these reforms have the potential to lessen criminal justice system involvement for thousands of youth, bringing the U.S. one step closer to ending the unjust prosecution of youth as adults and delivering on the full rehabilitative promise of the juvenile justice system.

Misguided and reactionary policymaking eroded the core values and protections of the juvenile justice system throughout the 1980s and 1990s. Yet relics of these policies remain, contrasting starkly with current realities. State lawmakers must heed contemporary research, record-low rates of youth crime and increasing public support for progressive justice reforms, and act now to halt the inhumane treatment of youth as adults.

Maureen Washburn is a member of the policy and communications team at the Center on Juvenile and Criminal Justice.

State Trends Show Fewer Young People Tried As Adults, New Report Says

WASHINGTON — The number of young people locked into adult jails and prisons has plummeted nearly two-thirds since 2009 and the number automatically sent to adult courts for criminal trials has fallen by nearly half from 2007 to 2014, a new report says.

The numbers of youth tried as adults will likely fall even further by 2020, when four states — Louisiana, South Carolina, North Carolina and New York — fully implement reform laws passed over the last few years, said the new report from the Campaign for Youth Justice, a Washington-based nonprofit group.

The statistics are unalloyed victory for juvenile justice reform advocates, said Marcy Mistrett, CEO of the Campaign. “We have a lot to celebrate,” she said. “We have the majority of states not only changing one law but changing a lot of laws that treat kids like kids. That is something to celebrate.”

Once New York and North Carolina implement their laws, it will mark the first time since juvenile courts were created more than a century ago that no state will automatically try 16-year-olds as adults.

Nine states and the District of Columbia all passed laws limited or barring youthful offenders from being put in adult jails. New York and Oregon banned the practice outright this year.

Mistrett’s group will release the report formally this  morning in Washington. She’ll be joined by Olivia Brown, a teenager who was charged as an adult for a school fight, and senators from two states that have recently begun ambitious reform efforts of their own — Vermont’s Dick Sears, a Democrat, and South Carolina’s Gerald Malloy, a Democrat. Brown became for many the face of the campaign to “raise the age” of adult prosecution in North Carolina.

“The science we’re familiar with now tells us we continue to grow and age beyond childhood,” Malloy said. Quoting Frederick Douglass that “It is easier to build strong children than to repair broken men,” Malloy led efforts to pass state legislation to raise the age of juvenile court jurisdiction for most crimes from 17 to 18 years old. The legislation passed unanimously but must still be properly funded, by 2019, to take effect.

“There are a mountain of things we can do. They say we save children one child at a time,” Malloy said. The reform “also tells us a little bit about who we are as a people. The idea is to try to keep children from behind the fence.”

Sears’ Vermont was hailed by the Campaign for “a number of juvenile justice reforms over the last two years,” the report says. Children under 11 will be subject to juvenile court no matter what and only those older than 16 and charged with “the Big 12” felonies, such as murder, rape, etc., will face the prospect of an adult prosecution.

“Many of these kids, they carry around the collateral consequences of crime for the rest of their lives,” Sears said. “Now they’ll be given a second chance.”

For all the good news, Mistrett said she hopes no one thinks advocates can — or will — rest on their laurels. “We still have a lot of work to do,” she said.

Among the challenges remaining are the often opaque rules about who gets to determine which children will be prosecuted as adults — and the often-shocking racial disparities that result from that opacity, Mistrett said. And the backlash politics of the Trump administration shows “just how easy it is to get back to the ‘get tough’ messaging,” she said.

Still, she is hopeful that the years of work by reform advocates has helped Americans reach a different level of consciousness about crime, punishment and young people.

“I think the general public is finally realizing that we can’t incarcerate ourselves out of the problem of crime,” Mistrett said.