Removing Youth from Adult Court: Much to Celebrate, More to Fight For

Guest Blog by Marcy Mistrett, CEO of the Campaign for Youth Justice

In its Blueprint for Youth Justice Reform, the Youth Transition Funders Group (YTFG) laid out a ten point plan to reduce youth justice involvement and improve outcomes for youth up to age 25.  Point six in the plan calls for “keeping youth out of adult court, jails and prisons; a policy that is dangerous, ineffective, harmful and costly.”  

The Campaign for Youth Justice (CFYJ) has spent the past ten years advocating to end the practice of prosecuting, sentencing and incarcerating youth in the adult criminal justice system.  In partnership with state advocates, impacted youth and families, federal agencies, national partners, researchers, and youth development providers, CFYJ has seen significant reform.  Nearly 2/3 of states (65%) have passed at least one law making it more difficult to treat children as adults; almost half of them have passed two or more laws keeping children out of the adult system.

CFYJ state-movement-2

 The federal government has also moved to protect young people by passing laws such as the Prison Rape Elimination Act (PREA). In particular, PREA’s Youthful Inmate Standard requires all adult correctional facilities to keep children under 18 separated from older inmates and out of solitary confinement.  There is a bipartisan bill to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA), which would require states to house children charged as adults in youth facilities.  The Attorney General has called for reducing the use of transfer in its Defending Childhood Initiative.  Finally, President Obama declared last October Youth Justice Awareness Month and called on us to “rededicate ourselves to preventing youth from entering the juvenile and criminal justice systems and recommit to building a country where all our daughters and sons can grow, flourish, and take our Nation to new and greater heights.”   

While reforms are keeping thousands of youth under age 18 out of the adult system each year, most have not gone far enough.  Many children are still ending up in the adult system without the benefit of adequate (or any) counsel, are still co-located with adults in jails and prisons, are overcharged by prosecutors with no opportunity for judicial review, and face extremely long and punitive sentences.

Since 2000, the number of youth in adult jails and prisons has dropped dramatically.  The one day count of youth is down 73% in adult prisons and 40% in jails.  Drops in this detained youth population can partially be tied to the 13 states that have passed laws allowing for children to be removed from adult jails and prisons.  PREA has also been a great tool in advancing this reform. While this drop shows the impact that reforms are having, it also reflects the overall drop in youth arrests, and is still nearly twice what it was in the 1970s. Each night in 2013, 4,700 youth still slept in adult jails or prisons; estimated at 95,000 a year.  

States with ages of criminal responsibility lower than 18 years are the biggest drivers of youth into the adult system.  A decade ago, there were 14 states that considered all youth criminally responsible at ages 16 or 17; today there are only seven.  In 2016 alone, both South Carolina and Louisiana have raised their ages of criminal responsibility, and Michigan has a strong bill still pending.

The impact of this reform is just being felt.  In Connecticut, which raised its age in 2008, the Judicial Branch of the state of Connecticut found that  just under 20,000 youth over 5 years were removed from the criminal justice system.  This significant drop is paired with a continuing decline in youth arrests, and a drop in arrests of young adults ages 20-24.  

Despite these positive results, there are still two states, New York and North Carolina, that embrace sending all children ages 16 and older to adult court, no matter the offense. Furthermore, laws in all 50 states allow for some children, depending on their age and the nature of their charge, to be tried as adults.

Transfer reform has also made unprecedented progress; 18 states have reformed their laws making it harder to directly file youth into adult court or statutorily exclude youth from juvenile court.  Most recently, Vermont ended the direct filing of youth into adult court, requiring a judge to review the case before waiving a child into the adult system. California has a major ballot initiative pending that would end direct file for thousands of youth each year.  Colorado, one of the earliest states to reform its transfer laws, also demonstrated that treating children in juvenile court, even those who commit violent crimes, are better served in juvenile court.  

Despite these hard fought wins, the US remains a place where children are sent to adult jails and prisons to face tremendous physical and emotional harm.  Whether as a result of isolation or the high rates of physical and sexual assault they are exposed to—children in adult facilities do not fare well.  We need, at a bare minimum, to protect children by housing them in youth facilities until they reach the extended age of juvenile court jurisdiction.   

Furthermore, we need to acknowledge and end the gross racial and ethnic disparities that exist when transferring children into the adult system.  In states where prosecutors make the decision on who to charge, these disparities increase, yet another argument for ensuring that children get the benefit of a judicial review before they are waived into the adult system.  

Finally, we need to address our inability to balance public safety and punishment.  While study after study shows that public safety is threatened by our exorbitantly high incarceration rates, we have just started to discuss what developmentally appropriate justice looks like, as opposed to “justice” based solely in punishment.  With ten years of strong progress in remediating youth in adult courts, we need to be vigilant in ensuring that all ten tenets of reform in the Blueprints document are realized to ensure our children are achieving the strongest outcomes possible.