Keeping Youth Out of the Adult Criminal Justice System
By Marcy Mistrett
Olivia B. was a 17-year-old high school student in North Carolina when she had her first contact with the adult criminal justice system. She was arrested for a fight at school and charged as an adult. Despite the fact that she had been on track to graduate early, Olivia was expelled from her high school and had to attend an alternative school.
The charges against her were misdemeanors, and she’d had no previous trouble with the law. Yet because she was charged as an adult, her record made it hard for her to find a job following graduation, and the court proceedings she went through delayed her plans to study to become a psychologist in college—plans she hoped would lead to a career helping other young people.
Thankfully, the system that slowed Olivia’s pursuit of her dreams is changing.
In 2005, some 250,000 children were prosecuted as adults. That same year, the Campaign for Youth Justice was launched with the singular goal of removing youth from the adult criminal justice system. Since that time, 36 states and Washington, D.C., have passed 70 pieces of legislation to move youth out of the adult criminal justice system. And the number of youths prosecuted as adults has been cut nearly in half.
North Carolina is one of those states. Had Olivia been arrested after its new law had been implemented, she would have been charged as a juvenile. Her record would be closed to the public, and the court would have had the option to divert her from the system after completing services to help her develop alternative conflict resolution skills.
This progress has been captured in a new report, Raising the Bar: State Trends in Keeping Youth Out of Adult Courts (2015–2017), released by the Campaign for Youth Justice in conjunction with Youth Justice Action Month. The report covers four legislative trends: raising the age of juvenile court jurisdiction so that 16- and/or 17-year-olds are not automatically treated as adults, removing youth from adult jails and prisons, limiting pathways to the adult court, and restoring discretion to juvenile court judges to make transparent and individualized decisions on transferring youth to the adult court.
Since 2015, 19 states and Washington, D.C., have passed laws on these fronts—progress fueled by research on brain development, youth development, and recidivism, which has helped illuminate what works to rehabilitate youth and what does not.
The most dramatic policy change is reflected in the number of states that have raised the age of juvenile court jurisdiction. In 2007, approximately 175,000 youth were automatically excluded from juvenile court because they lived in one of fourteen states that treated them as an adult because of their age. In 2014, after five states raised the age, that number dropped dramatically—to 90,900 youth. And with passage of raise-the-age legislation in four additional states since 2014, the number of youth automatically tried as adults is expected to be cut in half yet again.
When New York and North Carolina fully implement their legislation in 2019, 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 solely because of their age.
Raising the age of criminal responsibility is a winnable fight; there remain only five states in the country who set the age of criminal responsibility at 17 years: Georgia, Michigan, Missouri, Texas and Wisconsin. And in 2016, all five of these states were actively debating legislation challenging this policy. With continued vigilance and resources dedicated to this issue, this is a reachable goal for state advocates.
There has been comparatively less media attention paid to issues related to the transfer of youth from into adult courts. But there have been significant wins on this front too. Half of the laws that changed between 2015 and 2017, for example, rolled back transfer laws—and two states, California and Vermont, simply ended the direct transfer of youth into the adult system. These laws now require a judge to review the circumstances of a case before determining whether a child can be transferred—a critical step for children.
Alton P. is a representative example. Alton was a senior in high school in a tough Los Angeles neighborhood known by some as the “jungle.” Alton was used to police presence in his neighborhood, and his encounters with the police weren’t infrequent. But Alton was shocked to find himself arrested for a series of serious felonies and charged as an adult.
For more than two years, he fought the charges, declining to admit to something he didn’t do. He did this despite the district attorney’s offer to reduce his charge to a lower-level felony in exchange. Once Alton went in front of a criminal court judge, the judge dismissed his charges, and Alton went home.
This is why judicial review is so important before charging youth as an adult. States have also returned discretion to juvenile court judges, and raised the floor—prohibiting younger children to be automatically excluded from juvenile court.
Despite these impressive accomplishments, however, advocates must not get complacent. The Campaign for Youth Justice report highlights critical policy recommendations for the next phase of reforms. Children of color are still being transferred, sentenced, and incarcerated as adults at much higher rates than their white counterparts.
Furthermore, states continue to automatically exclude children charged with crimes of violence, without a case-by-case review. This is unacceptable. In states such as Maryland and Connecticut, which allow for review of individual cases prior to transfer, children are being returned to juvenile court in large numbers.
Advocates need to do more to build on the synergy between litigation and legislative strategies, bolstering these partnerships over the next several years to maximize impact and accelerate reforms.
Philanthropy has a unique opportunity to work with state and national partners to continue to advance reforms. Locally, states need community organizing, and fiscal and communications support, to get these policy changes over the finish line. Funders can also invest in implementation efforts to ensure that reforms are enacted as intended. National partners also need funding to scale innovative approaches, highlight effective legislative strategies, advocate for federal investments in reforms, and create technical assistance to states with limited resources.
Together, these partnerships could permanently block pathways of children into the adult system, contributing to some of the biggest criminal justice reforms yet.
The Campaign for Youth Justice is a grantee of the Open Society Foundations.
Marcy Mistrett is chief executive officer of the Campaign for Youth Justice.