Should 14-and-15-Year-old Kids be tried as Adults? New LA DA Gascón says No, as a Case That Could Permanently Decide the Question Goes to CA Supremes

On Tuesday, December 1, the California Supreme Court heard a much-watched case having to do with whether 14- and 15-year-old kids should be tried as adults.

Specifically, the court was being asked to decide whether SB 1391, a law passed by the state legislature in 2018, and signed into law by then Governor Jerry Brown, was constitutional.

SB 1391, coauthored by Senators Ricardo Lara (D-Bell Gardens) and Holly Mitchell (D-Los Angeles, and now LA County Supervisor-elect), prohibited the transfer of fourteen and fifteen-year-olds to adult court.

If the Cal Supremes find that the 2018 law unconstitutional, that will mean that kids, some of whom are two years away from being allowed to get a driver’s license, can once again be tried as adults, and sentenced to adult prison.

The question of the law’s constitutionality is complicated and has to do with Proposition 57, the ballot initiative passed in 2016 that, among other justice reforms, vested the authority to transfer juveniles to adult court solely in the hands of juvenile court judges, instead of district attorneys, who have been able to “direct file,” for the past 16 years.

For those unfamiliar with the historic and slightly laberinthine sequence of events, here’s the deal.

From 1961 to 1994, prosecutors could send only kids who were 16 or older to adult court. But in 1994, during the tough on crime, super predator mania that began in the mid-1980’s, legislators pushed through a bill that lowered the age of adult court jurisdiction to 14.

Even so, there still had to be a “fitness hearing,” which allowed a juvenile court judge to hear the particulars of a youth’s case, including the kid’s background, past experiences, and other mitigating circumstances, before deciding whether the youth was “fit” for the juvenile system.

Then in 2000, voters passed the deceivingly-written Proposition 21, which — among other draconian changes — allowed prosecutors alone to send teenagers, including 14- and 15-year-olds, to adult court if they were accused of any of a set of specific serious felony offenses, no matter the extenuating circumstances, or ameliorating factors.

And so it was until 2016, when Prop. 57 eliminated the ability for prosecutors to direct file on youth in adult court, returning the decision to judges, while also requiring that every youth have a transfer hearing in front of the relevant judge.

Prop 57, the Public Safety and Rehabilitation Act of 2016, which instituted several other justice reforms having to do with adults, still allowed 14-and 15-year-olds to be transferred to the adult criminal justice system in certain instances.

Two years later still, however, the state legislature acted to further reform California’s juvenile justice system with the passage of SB 1391.

The law took effect January 1, 2019.

Since that time, the state’s courts have seen a series of cases brought by various district attorneys who were not at all pleased with SB 1391, maintaining that it was unconstitutional.

Initially, six different challenges to SB 1391 were shot down by the courts, who found the newer law to be quite constitutional.

And, although the various DA’s tried to take the matter further up the appellate line, the California Supreme Court initially declined to review the question

Then on September 30, 2020, CA’s Second Appellate District, Division Six, went the other direction.  When the question was brought before the court by the Ventura County DA’s office, the appellate judges found SB 1391 quite unconstitutional,

Now that there was officially a conflicting appellate opinion, the Cal Supreme Court finally broke down and agreed to  hear the question of SB 1391’s constitutionality after all,

If they didn’t weigh in, wrote Jennifer Hanson of the Los Angeles office of the California Appellate Project, in a petition for the high court to review the issue, “individual trial courts are free to ‘make a choice between the conflicting decisions’ as to whether or not 14- and 15-year-old juveniles can be punished in adult court.” a situation that is “untenable, leading to unpredictable and divergent results for juvenile offenders across the state.”

Which brings us to the  Tuesday, December 1, hearing where Hanson argued before the court, representing an unnamed Ventura youth client (identified only as O.G.).

On the other side, was the Ventura District Attorney’s office, represented by Deputy District Attorney Michelle Contois, who argued against the constitutionality of SB 1391, writing that one of the intents of Prop. 57 was ” to provide prosecutors the discretion to seek transfer of certain juveniles aged 14 and older” to criminal court.

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Constitutional or not constitutional. 

The issues presented on Tuesday, were also laid out in a series of Amicus Curiae briefs for each of the sides.

Those that spoke to the constitutionality of the law included a brief from the office of California Attorney General Xavier Becerra, and briefs from various groups of public defenders, from a groups of justice advocates, including Human Rights Watch, the Anti-Recidivism Coalition, and the W. Haywood Burns Institute, and more.

“Proposition 57 reflected a public will to cut back on youth incarceration, to keep youth out of adult prisons and to reduce the extended sentences they would face there,” wrote attorneys for Human Rights Watch, et al.

“In passing Proposition 57, California voters not only endorsed, but also expanded, the State’s extraordinary shift toward a more rehabilitative approach. The voters recognized what the Real Party in Interest does not: That achieving true public safety requires a more complex, compassionate approach than simply locking young people away for decades on end. By prioritizing the rehabilitation and reintegration of young people, Proposition 57 creates safer communities for all Californians.”

When, two years later, the legislature passed SB 1391, the group continued,  in practical effect, the bill “furthers the stated purposes of Proposition 57, including emphasizing rehabilitation for juveniles and protecting and enhancing public safety. SB 1391 also ensures that Proposition 57’s purposes are achieved equitably in populations across the state, including among Black and Latino communities.”

In other words, to shoot the law down would be to move backward to the bad old days.

Perhaps the most famous of those filing as amici was civil rights attorney Bryan Stevenson of the Equal Justice Initiative, and author of the best-selling 2014 memoir,“Just Mercy: A Story of Justice and Redemption.”

The 65-page brief from Stevenson and his EJI colleagues, is too long to summarize here, but is a master class in the many complex factors surrounding the issue of whether or not kids should ever be tried as adults.  It doesn’t really attempt to argue the constitutionality of SB 1391.  Instead it lays out the answers to the far deeper questions that are being asked here.

In any case, on Tuesday, when attorney Jennifer Hansen spoke before the court, she neatly wrapped up many of the best points made by others.

“By further narrowing the pipeline of juveniles that are sent to adult court and returning California to the minimum age for transfers as 16 years old, where it was previously for more than 30 years,” she concluded, “AB 1391 is consistent with and furthers the intent of Proposition 57, thus it’s a lawful amendment.”

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New attitude at the LA DA’s office

One of the prominent amici on the side of the Ventura District Attorney’s office and others who want SB 1391 eliminated was Jackie Lacey and the Los Angeles DA’s office, with a brief written by John Niedermann,  Lacey’s Assistant Head Deputy District Attorney.

Lacey and Niedermann’s is a clever argument, which suggests that a decision finding that SB 1391 is lawful would set a problematic precedent, which would “open up to legislative action many policy areas where the voters believe they have, up to now, restricted the Legislature’s ability to act.”

In other words, if the court rules that SB 1391 is constitutional it will open the door to the legislature being able to blithely overturn the will of the voters, nearly at will, in the future.

Yet, for this argument to work, SB 1391 needs to have enacted something that runs contrary to the overall intent of Prop 57, which doesn’t appear to be the case.

To buy the argument of the LA DA’s office, this would mean that Prop. 57, a ballot initiative that is meant to ameliorate the harm done by previous overzealous laws and ballot initiatives, such as 2000’s Prop 21, would instead stand in the way — permanently — of additional reform-minded laws, particularly in the realm of youth justice. Everyone familiar with Prop. 57’s provenance, knows that this is quite the opposite of what its authors intended.

As the Amicus brief from the office of AG Becerra put it, the “[Ventura] District Attorney disagrees with the Legislature’s determination that SB 1391 is consistent with and furthers the intent of Proposition 57. His arguments are incorrect for [a variety of reasons listed]. But they are also fundamentally incorrect because they take an initiative clearly intended to limit prosecutorial power, increase rehabilitative opportunities for youth, and reduce prison spending, and recharacterize it as a law,” which has the opposite intention.

In fact, according to the AG’s office brief, the DA’s arguments “are policy disagreements that Proposition 57 allows the legislature to resolve…”

(Interestingly, for those who may not remember, it was Jerry Brown who caused Prop. 57 to be written, and it was also Brown who signed SB 1391 into law, facts that would suggest that the Brown-approved bill passed by the state legislature didn’t violate the intent of the voter-passed ballot proposition that he helped to shape.)

And, in an another interesting turn of events, prior to Tuesday’s hearing, Los Angeles District Attorney-elect George Gascón tweeted that he had “just informed the CA Supreme Court of my intent to withdraw a brief filed by @LADAOffice supporting the transfer of young teens to adult court. Brain development continues into our mid 20s – for too long our criminal justice system has failed to treat kids like kids.”

So, apart from the legal arguments made by the Jackie Lacey brief, its underlying raison d’être is about to be rendered inoperable.

I have just informed the CA Supreme Court of my intent to withdraw a brief filed by @LADAOffice supporting the transfer of young teens to adult court.

Brain development continues into our mid 20s – for too long our criminal justice system has failed to treat kids like kids.

— George Gascón (@GeorgeGascon) December 1, 2020

This is a good thing.

As SB 1321’s author Ricardo Lara wrote before the bill’s passage two years ago, “the juvenile justice system, with its emphasis on rehabilitation and promoting positive development, is better equipped to provide youth with the skills and supports necessary to become productive adults. With the benefit of the services provided in the juvenile justice system, youth are much less likely to re-offend, lowering the burden on courts, prison, and society overall.”

So, to briefly recap the present situation:  in six cases, California courts found that SB 1391 met the constitutional conditions for a valid statutory amendment, while one court of appeals found the opposite to be true.

So how will the state’s Supreme Court justices decide the question?

They have 90 days to render an opinion, so we may not know the fate of SB 1391 until late in February 2021, which means that other courts may face the question before the Cal Supremes finally resolve this extremely critical argument, pertaining to whether children are really children.

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Top photo of youth interrogation courtesy of Huang Rights Watch