Youth Justice: Healing Not Punishment

A look at how the CA Supreme Court came to rule unanimously that 14 & 15-year-old kids can’t be tried in adult court

Celeste Fremon
Written by Celeste Fremon

On Thursday morning, February 25, the California Supreme Court ruled in a very strongly-worded opinion that 14 and 15 year old kids cannot be transferred to adult court under California state law, contrary to the claims of a great many prosecutors around the state, including Santa Clara District Attorney. Jeff Rosen, Ventura D.A. Erik Nasarenko, and former Los Angeles D.A., Jackie Lacey.

Associate Justice Joshua Groban wrote the 27-page ruling for the high court, which concluded that SB 1391 — a bill that raised the age at which kids may be tried in adult court to sixteen — was quite constitutional, despite arguments presented by a list of the state’s district attorneys.

Not all of California’s prosecutors were against the raise-the-age bill, which was signed into law in October 2018 by then Governor Jerry Brown.

LA District Attorney George Gascón announced after taking office, that he was withdrawing the Amicus Brief that his predecessor, Lacey, had filed supporting the attempt to do away with the law.

The state’s top prosecutor,  Attorney General Xavier Beccera, was also determined to save the 2018 statute, and produced his own Amicus Brief defending SB 1391.

Yet, before we go farther into the decision, and the many reactions to it, it helps to understand the historic and slightly labyrinthine sequence of events that led to the case and to Thursday’s ruling.

The question of when kids are adults

During the 33 years between 1961 and 1994, California prosecutors and judges could send only kids who were 16 or older to adult court. Any boy or girl below that age was considered too young.

Then, in the early 1990’s when gang crime was at its height in Los Angeles, Princeton criminologist, John DiIulio, coined the term “superpredator,” with the inspiration of his mentor, James Q. Wilson, who had been warning for a while about a new breed of young, male, predominately Black conscience-free teenagers.  And the concept spread.

Legislators terrified of being seen as soft on crime pushed through, among other laws,  AB 560, a 1994 statute that, for the first time in state history, lowered the age of adult court jurisdiction to 14.

Even so, for a kid to be transferred, there still had to be a “fitness hearing,” which allowed a juvenile court judge to be presented with the particulars of a youth’s case, including the boy or girl’s background, past experiences, and other mitigating circumstances that might help the judge decide whether the youth was “fit” to stay in the juvenile system.

DiIulio, Wilson, and James Alan Fox, another criminologist who was a vocal fan of the superpredator theory,  later admitted that their views had turned out to be completely wrong.  But the damage was done.

Although youth crime was already rapidly diving by 2000, that year the California voters passed the deceivingly-written Proposition 21 that — 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 any other ameliorating factors.  The earlier fitness hearing structure was no longer deemed necessary.

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 before any decision was made.

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

The ballot proposition did, however, have a very brief provision within its text  indicating that it could be amended by the state legislature if the amendment was “consistent with” and furthered “the intent of this act . . .”

With this clause in mind, in 2018,  two years after the passage of Prop. 57, the state legislature passed SB 1391.  As noted above, the bill amended Proposition 57 to prohibit minors under the age of 16 from being transferred to adult criminal court.

The law — coauthored by Senator Ricardo Lara (D-Bell Gardens) and then-senator Holly Mitchell (who is now a member of the LA County Board of Supervisors) — went into effect on January 1, 2019.

Yet, days after Senate Bill 1391 passed in 2018 and was signed by Jerry Brown, the state’s courts began seeing challenges to the law brought by various district attorneys who were not at all pleased with the new statute.

The legal argument used by the challengers was that the new statue was not constitutional since it made a change in Prop 57, without said change going in front of the voters — never mind that the ballot proposition had that small but relevant provision for amendments written into its text.

Initially, seven different challenges to SB 1391 were shot down by various appellate courts, which found the new law to be quite constitutional, thanks very much.

After getting their cases spiked, various DA’s tried to take the matter still further up the appellate line, to the California Supreme Court, but the CAL Supremes initially declined to review the matter each time they were asked.

Case eight, its opponents and supporters

There was however, one more challenge.  This one was brought by the Ventura County District Attorney’s Office, very shortly after SB 1391 passed, as they had filed to transfer a 15-year-old who was accused of two murders to adult court.

Yet with this eighth case, when the question was brought before the state’s Second Appellate District, Division Six, the Second District went in a direction opposite to that of the other seven appellate rulings.

This time the court found SB 1391 to be unconstitutional.

Now that there was officially an appellate opinion conflicting with the other seven rulings, the state’s highest court was finally persuaded to hear the question of SB 1391’s constitutionality.

If the high court didn’t weigh in, wrote Jennifer Hanson of the Los Angeles office of the California Appellate Project, in the LACOP’s petition to the Cal Supremes 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.”

(Hanson was representing the boy accused of two murders that Ventura wanted to try as an adult.)

And so it was that on Tuesday, December 1, Hanson argued before the state’s highest court, representing the 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 that the intention of Prop. 57 was “to provide prosecutors the discretion to seek transfer of certain juveniles aged 14 and older” to criminal court.

As is usually the case in such situations, the opposing views argued last December were also supported by a series of Amicus Curiae briefs for each of the sides.

Those that spoke to the constitutionality of the law, which dictated that California’s fourteen and fifteen-year-olds could not be tried as adults, included Becerra and his office, briefs from various groups of public defenders, such as LA’s Independent Juvenile Defender Program, headed by attorney Cyn Yamashiro, along with groups of justice advocates, including Human Rights Watch, the Anti-Recidivism Coalition, the W. Haywood Burns Institute, and more.

Perhaps the most surprising of all the briefs was that from internationally known civil rights attorney, Bryan Stevenson, and his colleagues at the Equal Justice Initiative.  The EJI brief consisted of 65 heavily-footnoted pages that lay out the case as to why it is in the best interest of public safety and the health of the nation’s communities not to try 14 and 15-year olds as adults.

(Note:  Stevenson has argued and won multiple cases before the U.S. Supreme Court, resulting in such landmark decisions as Miller v. Alabama, which asked if the imposition of a life-without-parole sentence on a fourteen-year-old child violates the Eighth and Fourteenth Amendments’ prohibition against cruel and unusual punishment? [Weirdly, superpredator authors DiIulio and Fox, perhaps in some sort of penance,  were  were among the criminologists who submitted an amicus brief in support of the petitioners in Miller v. Alabamawhen Stevenson was arguing the case before SCOTUS] 

He also argued and won in Sullivan v. Florida, which asked whether the Eighth Amendment’s ban on cruel and unusual punishment and the Fourteenth Amendment prohibit sentencing a juvenile convicted of a non-homicide offense to life imprisonment without the possibility of parole. Bottom line, wherever you stand on these issues, the EJI brief, which you can read here, is a master class on the topic of trying kids as adults.)

On the opposite side of the fence, there was a brief from The California District Attorneys Association, which sided with the Ventura DA, along with other briefs by those who were seeking to knock down SB 1391.

The ruling and the reaction.

Thursday’s ruling is a big deal.

And the text of the ruling itself, written by Associate Justice Groban, makes it very clear on how he and his fellow justices came to their unanimous conclusion.

“The major and fundamental purpose of Proposition 57’s juvenile justice provisions,” Groban wrote, ” — as evidenced by its express language and enumerated purposes, the ballot materials, and its historical backdrop and the changes it made to existing law — was an ameliorative change to the criminal law that emphasized rehabilitation over punishment.”

And then later. “Like Proposition 57, Senate Bill 1391 continued California’s return to the state’s historical rule on juvenile justice,” and undid a policy enacted at “a time in California history where the state was getting ‘tough on crime,’ but not ‘smart on crime.’ Senate Bill 1391, accordingly, moves the law in the same direction as Proposition 57 — toward the historical rule placing minors under 16 within the exclusive jurisdiction of the juvenile courts.”

And later still. “It does not matter if the District Attorney’s Office has a different view as to whether Senate Bill 1391 advances public safety or Proposition 57’s procedural scheme. The District Attorney’s Office seeks to turn the applicable standard on its head and argues that any doubts whether such a reasonable construction exists should be resolved in favor of precluding changes to the initiative. That is not the standard.”

In other words, SB 1391 is lawful and does not violate Prop 57.  In fact, it extends the the ballot proposition’s reach while staying within its intent and purpose.

“I applaud today’s Supreme Court ruling,” said LA DA Gascón in an emailed statement in response to the decision.

“We know from science that young people have the capacity for growth and development that increases their likelihood of rehabilitation. Research shows that rehabilitation works and by rehabilitating our children, we will make it less likely that they will commit new crimes, thereby preventing victimization in the future and promoting healing in our communities.”

Cyn Yamashiro, head of the Independent Juvenile Defender Program, was equally enthusiastic in an email to WLA.

“It is gratifying to read the Supreme Court affirm the wisdom of California voters and the state legislature by relying on well-established science differentiating the cognitive functioning of children and adults,” he wrote.  “Today’s ruling is notable as it, in a single stroke, recognizes the failure of ‘tough on crime’ policies that were poorly conceived, politically expedient, and counter to virtually all research related to keeping communities safe.”

Supervisor Holly Mitchell who, as mentioned above, was one of the co-authors of SB 1391, tweeted about the top court’s decision after the news of the ruling broke, sounding almost giddy.

“This is a victory in the movement to create a more just & equitable public safety system,” she wrote. “When I authored SB 1391, it was to address the overreach in our justice system that lead to our prisons being overcrowded & youth being treated as irredeemable.”

Jennifer Hanson of the Los Angeles office of the California Appellate Project — the person who brought the case to the California  Supreme Court in the first place — said she wasn’t really surprised by the ruling.

“Seven courts of appeal found it constitutional.  Division six was the only one that found it unconstitutional,” she told us. “And the Attorney General was on our side.”

The bottom line, according to Hansen, was that returning the minimum age to 16, was in line “with the intent of the proposition.”

She hoped, she said, that the “resounding” opinion, “would prevent further attempts to frustrate the purpose of the amendment clause in Prop. 57.”

Interestingly, Ventura County District Attorney Erik Nasarenko, whose office had brought the legal challenge to SB 1391 that ultimately led to Thursday’s ruling, didn’t seem all that surprised either, as evidenced by his statement to the Ventura County Star.  He was disappointed with the outcome, Nasarenko told the Star, but he understands the reasoning.

His office does not intend to appeal the ruling.

Top image from The Equal Justice Initiative/Twitter


  • Don’t celebrate to much. It’s just representative of a sick and twisted mind that feels a “young mind” can never be capable of horrific violence. I’m sure many a socio-paths one psycho-paths had their beginnings evidenced at an early age, say 14 or 15. Just because you or someone you are close to has ever been the victim of a horrible crime committed by, say a 14 or 15 year old explains why you and your SJW comrades can celebrate this decision. A wind for criminals and a loss for true victims, their families and society. You, your SJW comrades and Gascon are representative of a sick “woke” mentality which lacks empathy or sympathy for crime victims and is far removed from the reality that some 14 or 15 years are fully aware of their actions, evil, irredeemable and unable to be rehabilitated.

    Also remember, just as the US Supreme Court picks and chooses what cases it wants to hear and potentially create new precedents, the decision is but a moment in time just waiting to be overturned when the political and societal winds blow the right way.

  • I totally agree with your “woke” and “SJW” comments. This columnist is an emotional mess, “thanks very much”.
    I am, however, on the line when it comes to trying 14/15 year-olds as adults. I am of the thinking that they can do the “juvenile life” sentences, then be released into society with the convict stigma for the rest of their lives.

  • Commit adult crimes; suffer adult penalties. Gangs have and will continue to exploit this liberal loophole by having their young prospects do their dirty work and kill rivals, commit robberies, sell dope.

  • Dope of Reality – I think you just saw Colors with Sean Penn. Tell me, of the 100,000 alleged gang members law enforcement claim there are in LA. How many underage kids killed someone else? You are more likely to die from the virus you and your ilk claim doesn’t exist.

  • Childish Fool,

    Yet again you come out from under your liberal rock. Juvenile Hall has quite a few juvies who murdered people. And you are more likely to be struck by lightening than have a coherent thought.

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