"Treat Kids as Kids: Why Youth Should Be Kept in the Juvenile Justice System"

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Treat Kids as Kids
Why Youth Should Be Kept in the Juvenile System
Recent developments
in law and science affirm what we have long known:
Young people are not miniature adults. Since 2010, the United States Supreme
Court has reiterated this common sense conclusion in three separate cases, all
of which rejected the application of an adult standard to youth who transgress
the law.
(Graham v. Florida,
2010;
JDB. v. North Carolina,
2011; and
Miller v. Alabama,
2012).
BY ESTIVALIZ CASTRO, DAVID MUHAMMAD, AND PAT ARTHUR
The juvenile justice system
was
indeed
founded more than a century ago on the premise
that children require a different system to
effectively hold them accountable and to redirect
them from crime. In 1899, the nation’s first “juvenile
court” was created in Chicago specifically to
separate transgressing youth from the adult
criminal justice system, and to create a more
rehabilitative system for young people (Deitch,
Barstow, Luckens, & Reyna, 2009; American Bar
Association, n.d.).
But since the creation of the juvenile court, policies
and practices that deviate from the original
rehabilitative goals of the juvenile justice system
have proliferated. The 1980s and 1990s were
marked by a wave of efforts in many states to
return youth to the punitive adult system (Addison
& Addie, 2012; Fagan & Liberman, 2007). From 1990
Violence and Juvenile Crime Prevention Act,” also
to 2004, the number of youth held nationwide in
known as Proposition 21. This allowed children as
young as 14 to be tried in the adult system in
adult
jails
and
prisons
California and added several crimes for which
increased
by
208
percent
California provides a perfect
youth could be charged as adults. Prop 21 also
(Fagan, 2008).
example of a state that in
allowed prosecutors instead of judges to decide
Currently,
about
250,000
whether a youth should be tried as an adult.
recent decades intensified
children
each
year
are
prosecuted,
sentenced,
or
After the passage of Prop 21, the average number of
its punitive treatment of
incarcerated as adults in the
youth charged as adults skyrocketed in California.
United States (Arya, 2011).
From
2003
to
2010,
California’s
rates
of
justice-involved youth.
African American and Latino
prosecutorial direct file – cases in which the
prosecutor makes the decision to file a case in adult
youth
suffer
most
from
instead of juvenile court – approximately doubled
policies that allow youth to be sentenced as adults –
they are disproportionally punished in the adult
(Males & Teji, 2012).
justice system, and are more likely to be sentenced
The Myth of the “Superpredators”
to adult prisons (Hartney & Silvia, 2007; Daugherty,
2011). In California, an estimated 6,500 individuals
The widely held myth that juvenile crime was
are incarcerated in an adult prison for a crime they
increasing, and that it accounted for most of the
committed under the age of eighteen (Fair
nation’s crime, fueled the nation’s reversion to
Sentencing for Youth, 2013). And roughly 1,000
treating youth as adults. In the 1990s, this myth was
children are subject to the adult criminal justice
advanced by several prominent researchers who
system in California every year.
believed the upcoming generation of youth would
include a large group of “super-predators” that
California provides a perfect example of a state that
would generate a dramatic increase in national
in recent decades intensified its punitive treatment
crime rates (Campaign for Youth Justice [CFYJ],
of justice-involved youth. In 2000, in response to a
2007). This belief influenced public opinion, making
now discredited myth that youth violence was on
it easier for people to support the idea of treating
the rise, California voters passed the “Gang
youth as adults, and led to passage of many state
P1
Treat Kids as Kids
Why Youth Should Be Kept in the Juvenile System
Recent developments
in law and science affirm what we have long known:
Young people are not miniature adults. Since 2010, the United States Supreme
Court has reiterated this common sense conclusion in three separate cases, all
of which rejected the application of an adult standard to youth who transgress
the law.
(Graham v. Florida,
2010;
JDB. v. North Carolina,
2011; and
Miller v. Alabama,
2012).
BY ESTIVALIZ CASTRO, DAVID MUHAMMAD, AND PAT ARTHUR
The juvenile justice system
was
indeed
founded more than a century ago on the premise
that children require a different system to
effectively hold them accountable and to redirect
them from crime. In 1899, the nation’s first “juvenile
court” was created in Chicago specifically to
separate transgressing youth from the adult
criminal justice system, and to create a more
rehabilitative system for young people (Deitch,
Barstow, Luckens, & Reyna, 2009; American Bar
Association, n.d.).
But since the creation of the juvenile court, policies
and practices that deviate from the original
rehabilitative goals of the juvenile justice system
have proliferated. The 1980s and 1990s were
marked by a wave of efforts in many states to
return youth to the punitive adult system (Addison
& Addie, 2012; Fagan & Liberman, 2007). From 1990
Violence and Juvenile Crime Prevention Act,” also
to 2004, the number of youth held nationwide in
known as Proposition 21. This allowed children as
young as 14 to be tried in the adult system in
adult
jails
and
prisons
California and added several crimes for which
increased
by
208
percent
California provides a perfect
youth could be charged as adults. Prop 21 also
(Fagan, 2008).
example of a state that in
allowed prosecutors instead of judges to decide
Currently,
about
250,000
whether a youth should be tried as an adult.
recent decades intensified
children
each
year
are
prosecuted,
sentenced,
or
After the passage of Prop 21, the average number of
its punitive treatment of
incarcerated as adults in the
youth charged as adults skyrocketed in California.
United States (Arya, 2011).
From
2003
to
2010,
California’s
rates
of
justice-involved youth.
African American and Latino
prosecutorial direct file – cases in which the
prosecutor makes the decision to file a case in adult
youth
suffer
most
from
instead of juvenile court – approximately doubled
policies that allow youth to be sentenced as adults –
they are disproportionally punished in the adult
(Males & Teji, 2012).
justice system, and are more likely to be sentenced
The Myth of the “Superpredators”
to adult prisons (Hartney & Silvia, 2007; Daugherty,
2011). In California, an estimated 6,500 individuals
The widely held myth that juvenile crime was
are incarcerated in an adult prison for a crime they
increasing, and that it accounted for most of the
committed under the age of eighteen (Fair
nation’s crime, fueled the nation’s reversion to
Sentencing for Youth, 2013). And roughly 1,000
treating youth as adults. In the 1990s, this myth was
children are subject to the adult criminal justice
advanced by several prominent researchers who
system in California every year.
believed the upcoming generation of youth would
include a large group of “super-predators” that
California provides a perfect example of a state that
would generate a dramatic increase in national
in recent decades intensified its punitive treatment
crime rates (Campaign for Youth Justice [CFYJ],
of justice-involved youth. In 2000, in response to a
2007). This belief influenced public opinion, making
now discredited myth that youth violence was on
it easier for people to support the idea of treating
the rise, California voters passed the “Gang
youth as adults, and led to passage of many state
P1
Treat Kids as Kids
Why Youth Should Be Kept in the Juvenile System
laws that eased the transfer of youth to the adult
criminal justice system.
Despite the public’s fears, however, the theory of a
super-predator generation never materialized, and
its primary author finally admitted that his
prediction never came to pass (Becker, 2001). In
fact, data shows that in recent years the national
juvenile crime rate has actually fallen to a 30-year
low (Puzzanchera, 2013). In California, the arrest
rate for youth under age 18 has dropped to the
lowest in the state’s history since statistics were first
compiled in 1954 (Males, 2012).
The majority of youth who come in contact with the
justice system, moreover, do not commit serious
offenses, with nearly half of them appearing in the
system only once (National Research Council,
responsive to their needs. Their behaviors are not fixed, and
2013). Research furthermore shows that most youth
their values are not yet solidified (Scott & Steinberg, 2008b;
offenders naturally “age out” of delinquent
Deitch et al., 2009).
behavior as they transition from adolescence and
Recent state and federal court rulings have relied on the
early adulthood to more mature adulthood (Loeber,
research showing that adolescents are different than adults
Farrington, & Petechuk, 2013).
to strike down on constitutional
In short, the crime predictions of the 1990s that led
grounds criminal justice practices
The practice of prosecuting
to the expanded use of the adult system for youth
that fail to account for these
have been proven untrue. And our system of youth
differences. For example, in the
youth in the adult system is
justice has eroded over the past several decades to
United States Supreme Court’s
not only ineffective, it is
what it was at the turn of the century when young
2012 decision in Miller v. Alabama
offenders were seen and treated as if they were
(2012),
Justice
Kagan
wrote,
harmful – to the youth who
“miniature adults.”
“[Children] are constitutionally
need positive and age-
different from adults for purposes
Adolescent Development and Youth Justice
of sentencing . . . Juveniles have
appropriate redirection,
Research consistently finds that treating youthful
diminished
culpability
and
offenders as adults is inappropriate, detrimental to
greater prospects for reform.”
and to society.
their development, and ineffective as a deterrent to
Applying
this
reasoning,
the
crime (Peerman, Daugherty, Hoornstra, & Beydler,
Court invalidated mandatory life
2014; Redding, 2010). Recent studies have shown
without parole sentences for youth under the age of eighteen
that
adolescents
experience
significant
at the time of their crimes.
psychological change and brain development that
These same principles compel the conclusion that all young
affect their ability to react appropriately to certain
people who violate the law are more effectively treated and
situations (Arya, Ryan, Sandoval, & Kudma, 2007;
held accountable in an age-appropriate system of justice.
Scott & Steinberg, 2008a). While intellectually
similar to adults, adolescents are more likely to act
The Harms of Prosecuting Youth as Adults
impulsively, more susceptible to peer influence, and
The practice of prosecuting youth in the adult system is not
are prone to risky experimentation as a part of their
only ineffective, it is harmful – to the youth who need
identity formation. Teenage impulsiveness and
positive and age-appropriate redirection, and to society. In
experimentation
can
lead
to
negative
and
adult jails and prisons, youth are often isolated from adults
sometimes
criminal
behaviors
that
do
not
for their own protection. This puts them at danger of
necessarily reflect deficiencies of character, but
experiencing severe depression and other mental health
rather their stage of development (Scott &
issues, and increases their risk for committing suicide (CFYJ,
Steinberg, 2008a).
2007). In fact, one study found that youth are 36 times more
Though the developing minds and identities of
likely to commit suicide in an adult jail than in a juvenile
young people lead to risky and sometimes criminal
facility (CFYJ, 2014). Adult prison and jail staff are ill-
behavior, their formative stage of development also
equipped and unprepared to give youth the age-appropriate
makes them more responsive to positive influences
support and services they need. For example, adult facilities
and capable of change. Youth are especially capable
offer fewer counseling services, educational and job training
of learning, growing, and changing when placed in
opportunities, and treatment options than juvenile facilities
positive,
age-appropriate
settings
that
are
(Peerman et al., 2014).
P2
Treat Kids as Kids
Why Youth Should Be Kept in the Juvenile System
66
%
of sexually abused youth
were victimized more than once
of all inmate-on-inmate
79
sexual violence in adult
%
of sexually abused youth
were physically forced into sexual contact
prison are youth victims
28
%
of sexually abused youth
were injured after the incident
The negative effects of an adult conviction
assault by staff. The lack of needed
extend
beyond
the
physical
and
programs and services for youth in adult
psychological damages inflicted in prison.
facilities compounds the risk of harm.
Youth sentenced in the adult system
One
case
that
was
instrumental
in
experience
lifelong
consequences
influencing Congress to pass the Prison
associated with an adult record (Mauer &
Rape Elimination Act (PREA), a case that is
Chesney-Lind, 2010; Legal Action Center,
not atypical, is that of Rodney Hulin. In
2004).
The
Vera
Institute
of
Justice
1996, Rodney was a 16-year-old boy from
estimates that youth with an adult criminal
Texas who was sentenced to adult prison
record will earn an average of $61,691 less
for setting a dumpster on fire. While in
over the course of a lifetime due to lost
prison, he was repeatedly raped in his cell
employment opportunities (Henrichson &
(The Prison Rape Reduction Act of 2002:
Levshin, 2011).
Hearing before the Committee, 2002). After
When youth are placed in adult facilities,
And punishing youth as adults does not
Rodney was raped once, he requested to be
moreover,
they
are
disproportionately
make the community safer. In fact,
sent to another facility. His request was
likely to be victims of sexual abuse. The
evidence suggests that it decreases public
denied and he was assaulted several more
Bureau of Justice Statistics reported that in
safety. Studies have shown that youth tried
times. Rodney sent a note to the warden of
2005 and 2006, although youth only made
in adult criminal courts have higher
the facility begging to be moved:
up 1 percent of adult jail inmates, they
recidivism rates than when they are tried
accounted for 21 percent of victims of
“I have been sexually and physically assaulted
in juvenile courts (Redding, 2003). The
inmate-on-inmate sexual violence (Beck, &
several times, by several inmates. I am afraid to
experience of being tried in an adult
Harrison, 2006). Similarly, a 2013 DOJ
go to sleep, to shower, and just about
courtroom alone may induce feelings of
study found that out of the youth who
everything else. I am afraid that when I am
were sexually abused, 66 percent were
doing these things, I might die at any minute.
Studies have shown that
victimized more than once, 79 percent were
Please sir, help me”
physically forced into sexual contact, and
youth tried in adult criminal
(The Prison Rape Reduction Act of 2002: Hearing
28 percent were injured after the incident
before the Committee, 2002).
courts have higher recidivism
(Beck et al., 2010). Additionally, a study
found that youth are five times more likely
His plea went unanswered, and Rodney
rates than when they are
to be sexually assaulted and two times
committed suicide in his cell at age 17.
tried in juvenile courts
more likely to be beaten by staff in adult
Rodney is only one of the many youth who
facilities than in juvenile facilities (Mulvey
are victims of sexual abuse in adult
(Redding, 2003).
& Schubert, 2012). The National Prison
facilities. As the National Rape Elimination
Rape
Elimination
Commission
Report
Commission reported, “More than any
other group of incarcerated persons, youth
injustice, lead youth to internalize criminal
incarcerated with adults are probably at
Youth are five times more
identities, and exacerbate delinquency
the highest risk for sexual abuse” (CFYJ,
likely to be sexually
tendencies (Redding, 2010). An analysis of
2014).
recidivism rates for 12- to 18-year-olds
assaulted and two times
In September 2014, Zachery Proper killed
found that youth who received adult
himself in his cell after being sentenced to
sentences were 2.3 times more likely to be
more likely to be beaten by
35-80 years in adult prison. Zachery was
rearrested and 4.9 times more likely to
staff in adult facilities than in
charged and sentenced as an adult at 13
recidivate than those who received juvenile
years old for killing his grandparents.
sanctions
(Mason
&
Chang,
2001).
juvenile facilities.
According to reports, Zachery was also a
Similarly, the Centers for Disease Control
good student, a member of his school's
and Prevention recommends against using
football team, and enjoyed swimming,
transfer mechanisms as a tool to reduce
(2009) concluded that juveniles confined
camping and canoeing with his family. But
violence,
concluding
that
generally,
with adults are probably most vulnerable
Zachery was also a victim of childhood
transfer of youth to adult courts increases
to
sexual
assault
of
all
confined
abuse
and
suffered
from
depression
rather than prevents violence (McGowan et
populations, and that girls confined in
(Levick, 2014).
al., 2007).
adult facilities are at especially high risk of
P3
Treat Kids as Kids
Why Youth Should Be Kept in the Juvenile System
Black youth
represent:
of youth who are arrested
of youth who are
Racial Inequities in Adult Court Prosecutions
prosecuted in adult courts
Youth of color are more likely to suffer the damaging
consequences of prosecution in the adult system. African
general
9X
American and Latino youth are overrepresented at every
population
stage of the juvenile justice system, and are more likely
than white youth to be tried as adults (Hartney & Silvia,
more likely to be sentenced to
2007). Black youth represent just 17 percent of youth in
adult prison than white youth
the general population, but are 30 percent of youth who
are arrested, and 62 percent of youth who are prosecuted
in adult courts. They are 9 times more likely to be
of those youth filed on as adults back to the juvenile court
sentenced to adult prison than white youth (CFYJ, 2012).
system (Daugherty, 2013). Colorado and Indiana passed
Latino youth are 43 percent more likely than white youth
legislation limiting the offenses for which prosecutors
to be transferred to the adult system, and 40 percent more
could directly file juvenile cases in adult court, and
likely to serve time in adult prison (Arya et al., 2009).
Colorado eliminated the use of direct file entirely for youth
These disparities are not explained by differences in
ages 14 and 15 (Daugherty, 2013). Five states also expanded
criminal behavior, and suggest trends of accumulated
the use of “reverse waiver” or “reverse transfer” hearings,
disadvantage, where youth of color are treated more
which allow judges to consider moving cases filed in adult
harshly at each decision point in the juvenile justice
court back to juvenile court for youth under 18 (Arya, 2011;
system – from arrest to sentencing (Hartney & Silvia,
Daugherty, 2013).
2007).
Two recent law changes in California reflect considerable
Youth of color in California are sentenced to the adult
progress in reversing the damaging trend of treating youth
system at rates shockingly out of proportion with their
as adults. SB 9, enacted in 2012, provides most individuals
share of the youth population. While black youth were
sentenced to life without the possibility of parole who were
only 6 percent of California’s adolescent population (ages
under the age of 18 at the time of their crime the
10 – 19) in 2012 (California Department of Finance, 2014)
opportunity to petition their sentencing court for a new
they were more than a quarter (26%) of youth given adult
sentence. Because this legislation is also retroactive, it
court dispositions (California Department of Justice,
provides roughly 227 youth offenders sentenced to die in
2012). Juvenile judges were more likely to find black and
an adult prison the ability to petition for their parole
Latino youth unfit and transfer them to the adult system.
(Duda, 2011).
More than three-quarters (80%) of fitness hearings for
Latino youth and more than 75 percent of fitness hearings
One year after the passage of SB 9, the California
for black youth resulted in transfer to the adult system,
Legislature followed up with SB 260. Signed into law in
while just over half (58.3%) of fitness hearings for white
2013, SB 260 creates a new parole procedure for youth
youth resulted in transfer (California Department of
sentenced as adults who were under 18 at the time of their
Justice, 2012).
crime. This new procedure requires the state Board of
Parole Hearings to review the cases of these youth
Recent Progress
sentenced to more than 15 years in prison and to give
There have been some encouraging policy and law
“great weight” to the fact that they were children when
changes in recent years reversing the trend to treat
they committed their crime. SB 260 gives about 1,500
transgressing youth as adults. As noted earlier, there have
California prisoners who committed their crimes as minors
been three United States Supreme Court decisions in the
and who served at least 15 years by January 2014 the ability
span of just four years that reverse criminal practices and
to petition for early parole hearings (Thompson, 2013).
sentences that do not account for the differences between
adolescents and adults. At the state level, since 2006, 23
These changes represent a slow yet positive trend to
states have passed laws to keep youth from being tried as
eliminate the imposition of adult punishment on youth.
adults and placed in adult facilities (Daugherty, 2013).
But there is still much work to do. The brain science, the
Additionally, 11 states have passed laws that limit youth
research on the detrimental effects of the adult system on
from being placed in adult jails and prisons. Eight states,
youth, the racially discriminatory use of the practice, and
including California, have changed mandatory minimum
the negative effect on public safety all make it clear that we
sentencing for youth being tried as adults. Four states
need to completely reverse the ill-conceived trend of
have given juvenile courts more power to transfer cases
prosecuting youth as adults.
P4
Treat Kids as Kids
Why Youth Should Be Kept in the Juvenile System
Policy Recommendations for California:
California should
ultimately end the
practice of prosecuting
youth in adult courts.
Toward that goal, we
recommend the
following changes in
law:
Eliminate Direct File.
1
Proposition 21 gave prosecutors broad discretion to
file juvenile cases in adult courts, without a fitness hearing. It also expanded
mandatory direct file provisions. Use of direct file has caused the rates of youth
prosecution in the adult system to skyrocket, led to significant geographic
disparities in adult court prosecution, and has had no measurable impact on
public safety. Discretionary direct file is vulnerable to prosecutor abuse of power.
Both mandatory and discretionary direct files should be disallowed.
2
Collect and Publish Better Data.
California law does not currently
require the collection of comprehensive information about the prosecution and
incarceration of youth in the adult system in California. The collection of data and
reporting on the number of youth held in state prisons who were under 21 at the
time of their offense should be statutorily required. In addition, the Department
of Justice should be mandated to collect and report on the number and outcomes
of fitness hearings in juvenile courts, the number and outcomes of direct files, and
the number and outcomes of all cases where youth are tried in adult court, all
cross-referenced with gender, age, and race of the defendant and county of
prosecution. Information on youth charged as adults prior juvenile adjudication
history should also be reported.
3
Restrict Judicial Waivers.
Approximately 25 percent of youth sent to the
adult system in California in 2011 were a result of a judicial waiver after a
“fitness” hearing. But of the youth who faced fitness hearings, an alarming 75
percent were waived to the adult court. Laws should be enacted prohibiting the
use of judicial waivers for all first-time offenders. Additionally, presumptions
regarding fitness hearings for youth charged as adults should be changed. Youth
should be presumed fit to remain in the juvenile court and have to be found unfit
by the court. Moreover, the rule that youth must be found fit in all of the five
current criteria of the fitness hearings should be changed so that they must be
found fit by a majority of the factors.
P5
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