In 2019, when new laws passed by New York and North Carolina that raise the age for automatic transfer of teenage lawbreakers to adult justice system will fully be implemented, according to a new report published this week by the Campaign for Youth Justice, it will be the first time since the creation of the juvenile court more than a century ago, that no state in the country will automatically treat 16-year-olds as adults in the criminal justice system solely because of their age.
The report also tracks a number of ways that, in the past decade, there have been dramatic legislative changes away from the trend toward trying children as adults that became tragically fashionable in the mid-1980s and through the end of the 20th century.
The Bad Old Days
In the year 2000, California passed one of its strictest laws pertaining to juveniles with Prop. 21, a ballot proposition approved by the state’s voters on March 7 of that year. The new law dictated—among other things—that prosecutors, at their sole discretion, could “directly file” charges against juvenile offenders in adult court in a wide variety of circumstances, without the kid going through any kind of “fitness” hearing in juvenile court to determine if trying him or her as an adult was appropriate or wise.
Prop 21 also decreed that kids who were 14-years-old or older who were charged with committing certain types of murders or a serious sex offenses, were no longer eligible for juvenile court at all, no matter the circumstances.
As a consequence of Prop. 21 and similar laws passed in states all over the nation, by 2005, 250,000 American children a year were prosecuted as adults.
That same year, however, a parent whose 17-year-old son had been charged as an adult decided to launch Campaign for Youth Justice (CFYJ) with the “singular goal of removing youth from the adult criminal justice system.” Since that time CFYJ has been active in supporting state and federal advocacy efforts that keep youth out of the adult system.
CFYJ’s timing was fortuitous. As more and more research surfaced indicating that the human brain is still developing all through adolescence, and also that adolescents are statistically much more prone to risk taking behavior than adults, advocates like those at CFYJ began making real progress in persuading state legislators to reverse some of the laws passed during the law-and-order hysteria of the late 1980s and beyond.
As a consequence, since 2005, 36 states and Washington, D.C. have passed 70 pieces of legislation to move youth out of the adult criminal justice system.
The statistical effects of the legislation showed up fairly quickly, according to CFYJ’s report. A mere two years later, in 2007, the numbers dropped from 2005’s 250,000 kids tried as adults, to approximately 175,000 youth who were excluded from the juvenile court system. By 2014, seven years later still, five more states had raised the age, which dropped the number of kids tried as adults to 90,900 youth.
Now, with the passage of raise-the-age legislation in four additional states, the number of youth automatically tried as adults is expected to again be cut in half, according to this week’s report.
Once the New York and North Carolina laws are fully implemented in 2019, the number of kids prosecuted as adults should drop further still.
Can Kids Be Safely Housed in Adult Prisons?
In addition to raising the age legislation, CFYJ’s report tracked other related legislative trends. There is, for example, also the matter of housing kids in adult jails and prisons. In its 2016 report, the National Council on Crime and Delinquency released survey results collected from members of the Association of State Correctional Administrators (ASCA). The survey asked its members about on their ability to safely house youth, particularly girls, in adult prisons. Of those who responded, 59.1 percent essentially said no.
According to CFYJ, some progress has been made in that arena since 2005, in that 17 states and the District of Columbia have limited or removed youth from adult jails and prisons. But more much progress is needed.
Mandatory Transfer to Adult Court
in 1970, before the rise of the now-debunked super-predator myth, only eight states had had laws on the books that required kids to be transferred to adult court, no matter the mitigating factors— because of their age and offense. Now 28 states have laws that statutorily exclude youth from juvenile court.
But there has also been forward movement on this issue, according to the report: States like Connecticut, Kansas, and New Jersey have reduced the number of offenses that trigger an automatic transfer to adult court. And Texas has made it easier for youth to appeal their transfer away from the juvenile system.
Getting Rid of Direct File
The final trend that the CFYJ tracked pertained to the various state laws, like California’s Prop 21, that gave prosecutors the ability to “direct file.”
They described how, for California, getting rid of direct file was a two-step process.
Fifteen years after Prop 21 gave prosecutors the power to shove kids into adult court in a great many instances, the California state legislature took the first step to correct that conflict-of-interest-ridden mistake when, on September 1, 2015, SB 382 went into effect.
SB 382 was a bipartisan bill that revised how courts evaluate youth for transfer to the adult system. After its passage, when evaluating whether to transfer a juvenile to the adult system, the court must take into account age, maturity, intellectual capacity, physical and emotional health, any significant trauma that the youth may have experienced and the consequences of that trauma, the minor’s potential to grow and mature, the minor’s previous delinquent history, and more.
In 2014, before SB 382 was enacted, juvenile court judges were finding California youth “unfit” for the state’s juvenile justice system 66.7 percent of the time. The year the law changed, that number dropped to 55.6 percent.
Perhaps more importantly, according to CFYJ, this bill was critical to the success of Proposition 57, passed in November 2016, which ended direct file in California altogether.
Prior to its passage, since 2003, according to the report, more than 10,000 youth in California were prosecuted in adult court, and nearly 70 percent of them were direct filed by prosecutors.
Proposition 57 not only eliminated the ability for prosecutors to direct file youth to adult criminal court, the proposition also requires that every youth have a transfer hearing in front of a juvenile court judge effectively ending any and all statutory exclusion from the juvenile system.
With Proposition 57, California joins the few states that only use judicial discretion to transfer youth to the adult system.
The passage of Proposition 57, wrote the CFYJ report’s authors, also marked the first significant “transfer” reform effort through a ballot initiative.
And Now the New Bad News
We have known for some time that research and statistical evidence overwhelmingly indicates that trying and treating youth as adults in the criminal justice system leads to higher rates of suicide, higher experiences of abuse when locked up, and higher recidivism after release.
But what is particularly concerning in the new data, according to CFYJ, is new research showing that while the number of youth being transferred to the adult system by juvenile court judges has decreased, the percentage of youth transferred who are black is the highest it has been in nearly 30 years.
Furthermore, CFYJ cites research showing that, in states, like Florida, that have high transfer numbers, once black kids are in the adult system, they are more likely to be incarcerated with longer sentences than their white peers.