Youth Justice Reimagined

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

Celeste Fremon
Written by Celeste Fremon

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.


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.”


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.

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.


Top photo of youth interrogation courtesy of Huang Rights Watch

28 Comments

  • Commit adult crimes like murder, rape, or robbery – get tried like an adult. Young thugs inflict as much devastation as older thugs. I pity Los Angeles County residents, as this Soros bought and paid for “DA” will turn his back on them to embrace criminals, to include the ranks of BLM and antifa.

  • Based on the opening paragraphs of this article, it is evident that many of these “draconian” laws were passed by your fellow LibTurd(s) politicians.

    Nonetheless, for those of you who dare not to venture outside of your protective bubble, maybe you should go and interact with some 14 year old “children” that live in South Central, East L.A., Compton and then tell me how innocent and tender these youngsters are.

    These young, impressionable, tender loving, naive youngsters “of whom are two years away from being allowed to get a driver’s license” will snatch the life out of you in a heart beat.

    So, as the cliche goes, “if you’re going to do the crime, you’re going to do the time.”

    Peace out!

    • Not only in South Central or East L.A. but in Columbine Colorado as well.

      Let’s not forget Kenosha,Wisconsin. No place is safe with juvenile crime, be it urban or suburban.

      • Kenosha? What an idiotic comment. How about Long Beach, Pasadena, San Bernardino, Pomona and the list goes on. Kenosha, LMAO.

  • Age and Maturity are two different things. Like mentioned above there have been encounters with minors of all ages and backgrounds that have shown the propensity for violence without due regard for human life. There are also those that have been manipulated by the ritual of brotherhood or family, due to their lack of leadership in their households.

    I think leaders like Gascon would be wise to look at each case independently, rather than paint a broad brush.

    • Complete 100%.
      You will see more crimes on the juvenile side, because their is a lack of consequences. Adult gang members will take advantage of this and manipulate the younger kids to commit these crimes. It’s already happening, but the advocates and politicians with connections to non-profits want to take advantage of the money available.

  • How could you be an exceptional DA when you you involve yourself in politics, making statements like these.

    Where is the open mind approach and no pre judicial judgement, negative or positive.

    Democratic Or Republican, each case should be looked independently not through a partisan filter.

  • Oh, my racist, simpleton friends.

    Dope of reality, Hungarian born? The man is a US Citizen. He emigrated to the United States and was naturalized. He is as much a citizen as you are. I guess you are against legal and illegal immigration. Or, more likely, you’re also an anti-Semite.

    You are fine with Russian interference but not Hungarian? Go figure. How about we not have a police union bought DA, as we had in Lazy and like we have in most of the US. If for no reason than it creates a conflict were they wont prosecute cops.

    Fat PatRolman, I’ve been to South Central, E.L.A and Compton, and 14-year kids there look like 14-yr kids. You are not only scared of black men but also of black boys. No doubt you’re scared little Katelyn or Brittany may across a young black boy who will catch her fancy and defile her. You know what they say, once you go black…… I know you find black males scary, but 14 year olds? Don’t be such a coward and a racist. They do not bite, unless, of course, that is what you are into. Funny how you did not mention any of the hillbilly towns where your folk dwell. I saw the documentary Deliverance and I would rather walk in South Central than along the Chattooga in S. Carolina or Georgia. That was some scary shit.

    Finally, I hope you racist gentlemen gave to Celeste this past Giving Tuesday. This site is the most meaningful thing in your empty lifes and you should support her. It gives you a place to express your racist tendencies anonymously, which is important now that the white hood is out of vogue. And, its a place to vent and let out all the anger you have bottled up inside from kids, especially white ones, spitting on you and cussing you out. It’s cheaper than therapy and I do not think its too much to ask that you donate the equivalent of a donut a week.

    • Ah, yes, cf (Childish Fool) is back with pearls of wisdom. When you have nothing – just call somebody a racist or anti-semite. Your “point” about Soros being naturalized is excellent; it’s an element of charging him with treason for his overt acts to subvert the government. Soros himself would be the anti-semite for what he did to his fellow Jews (turned them in to save his own skin while pretending to be a Christian).

      And your Russian interference comment just displays your refusal to recognize that your democrat coup attempt failed.

    • CF your rants belong in a social media website for adolescents. You should consider seeing a therapist, too. Your “I’ve been to South Central, E.L.A and Compton” line was hilarious and screamed privileged life to those of us that actually lived in one of those neighborhoods.

  • CF…”Childish Fool”….how fitting….

    Gascon just graced us with his plans for a “Reimagined” DA’s Office. The takeaway is for LA County police departments is not to arrest anyone commiting a low level misdemeanor crime as it is not worth the risk as they will no be prosecuted but “diverted”. His DA’s will be instructed not to charge the “justice involved” with multiple charges or sentence enhancements. Get rid of cash bail even though the voters want it to cintinue. Just as King Newsome abolushed the death penalty in defiance of the voters

    Oh and as an afterthought..let’s try and see what the victims of “misunderstandings” want by way of justice. Forgiveness, restorative justice, diversion and turn the other cheek you know.

    Looking forward to a “Reimagined Los Angeles” as it turns into a duplicate of that exemplary ran city by the bay, San Francisco that he and his comrades did such a great job everybody is leaving.

  • So Gascon has decided to turn our county into Dodge City, what a total POS this guy is. Whose going to pay the most for his idiotic policy decisions Celeste? Want to debate me on it? Of course not. I’m sure you’ll be on top of this soon. We already got the word,
    More Blacks and Hispanics will be killed thanks to the crimes he will no longer let his deputies file because he is a horrible piece of scum who cares nothing about the lives of those in our most at risk areas, not a damn thing. Or anyone else.
    More officers will be at risk, over 280 have been shot this year nation wide as it is, with he doing his best to make sure pretty much nobody goes to jail. No death penalty or lwop, oh this guy is the thugs best friend. You admire him though right?
    This year we’ll see the highest rise in the country in homicides that we’ve seen in decades. Know what, most victims and suspects, look nothing like me or you Celeste and that trend will continue and you Lefists will blame who for that? Trump will be gone, Barr as well.
    You started this with Obama, brought in a bunch of DA’s that let the criminal element go crazy and now, we got this crazy fool. In our neck of the woods.
    Think you’re safe? Think again.
    I’m looking, as are a lot of people like me, at San Bernardino S.O., City, Riverside, yep, this county has gone too far. Going to lose a lot of good people all over the place, DA’s office as well.
    Look to CF for help, I’m sure he’ll be all over it. Because response times are going to be not so good.

  • Ladies, relax, the sky is not falling. How many more people will be killed? Please share your research. If you cared so much about people dying you would want Captain Orange removed from office and charged. We have more people die from COVID that will be murdered in the next 10 years. But, alas, you are probably one of those yokels that will not let the government tell them they have to wear a mask, or you think its just the flu. Ignorant hypocrites.

    Fifi, as if you cared about the black or brown people that will be the victims of crimes or who will be murdered. They are the same ones riding bike that you stop and harass, the same ones that you claim are in gangs, the same ones that get overcharged or shot by scared shitless cops, the same ones you rant about. Stop it, my portly friend. Not even you believe that nonsense, and Celeste is not ignorant as to even consider that is even remotely true.

    And, what do you mean the suspects and victims do not look like you or Celeste. Celeste I may believe, but I’ve seen Cops and there are plenty of overweight white men committing crimes.

    Finally, Fifi, what makes you think that Celeste would debate you? Surely you jest. You are an intellectual midget. No doubt you realize someone like Celeste probably considers you an embarrassing, racist intellectual midget. I do not know her, but I suspect she is a little embarrassed of the people attracted to this site, me included. But you ladies take the cake. You are everything she is against, and everything she deplores, as evidenced by the pieces she posts. But, you ladies love a good thrashing and keep coming for more. You rant, but never does she stoop so low as to respond, that would be beneath her. As the saying goes, you cannot wrestle with a pig (no pun intended) and not get dirty.

    • Portly, wrong guy to use that overused bullshit remark with. Intellect, Celeste is a one trick pony, same as you. You attack but never say anything. You do what exactly besides talk shit here?
      Hey here’s good new you gutless little worm. Our L.A. Judges just told Gascon to shove some of his new rules up his ass. DA’s can file gang enhancements and other things in their courts and they’ll accept them, they have taken a stance. His deputies voiced their displeasure to him and he told them to pound sand but he doesn’t control the judges.
      CF, you’re a puss, where I am an actual tough guy that could beat you anytime we met, yep, a total Bad Ass. Plenty of us around. You’re an ankle biter, nothing more. But I’m fair, just am.
      Now keep talking it’s all you have Little Guy. Oh, and I’d destroy Celeste in a debate, back to the can collecting troll.

  • Your racism is an embarrassment dude, that Celeste allows it speaks to something else. You can’t point to any racist comment I’ve ever made. Hate drives your entire reason for being here. Get stronger meds.

  • It’s not difficult to destroy liberals in a debate and Celeste is no different.
    See all the “celebs” who praised Gas-con. Easy to cheer bad decisions from your gated community and private security.
    The victims of this horrific “reform” will be the same as always…low income, people of color.

    Self inflicted as they continue voting for the same people and policies that keep them as slaves to the liberal left.
    But as CF continues to point out, we’re all white racists.
    So why should we care exactly?
    LA gets exactly what they deserve and I’m pumped to see it play out.
    San Francisco is a zombie apocalypse…
    LA, hold my beer.

  • As of yesterday Gascon had not yet met with the people assigned to his private security detail, won’t let them in his office or speak to them. Haven’t heard about anything today. Unlike the troll CF I actually have friends in law enforcement, imagine that. This jackass knows how hated he is. CF probably does as well.

  • Why would any self respecting peace officer work on a detail to protect Gas-con or Gruesome?

    They should all transfer immediately.

  • RealLOL, let me answer your question. A self-respecting officer who talks crap, like you and your ilk do, would not work for Gascon. But, there are no self-respecting officers that talk crap. Most, if not all, are cowards and they keep their mouths shut because that is the best job they will ever have, as much as they hate it. They will keep their mouth shut, like you do, because there is nothing else you can do that pays as well. They talk crap on some blog where they are anonymous but in person they will shine Gascon’s shoes, if that is what they have to do to get paid. Funny how we never hear of some cop resigning on principle. They will go out once vested, bitching of course, but they will take it where ever they have to, because that is all they have and Walmart does not pay as well. So, to answer your question, there are no shit-talking self-respecting cops. They will kiss Gascon’s or Moore’s or anyone else’s ring they have to kiss to keep the job and the pension.

    • Childish fool is an ex lasd reserve who couldn’t get accepted as a full time real cop. This latest comment reveals the the rage and resentment he still harbors. He only masquerades as a liberal, he’s coming from a much darker place.

  • In a case where a parolee, his crime was attempt murder, tried to kill another guy, was looking at life, was given a 35 year offer, due to Gascon’s new rules that was reduced to 5 years. Guy didn’t look like me who was the shooter or victim, couple of gangsters, go figure. In another case, a retrial, judge wouldn’t allow dismissals of enhancements, good for him.
    Gascon is the Anti-Christ. You see that picture of him being sworn it, what was that they used, an I-Pad?
    You like how safe he’s making the minority community Celeste? CF?

  • “super predator mania”? excuse me? do u not recall how bad l.a was at that time? gang shootings daily! idk how many of my school mates were murdered by… yes.. predators!

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