Kids can change: reforming South Dakota's juvenile transfer law to rehabilitate children and protect public safety.

• Author: Hess, Wendy N.

"[N]o child is a finished product, every child has the potential to be redeemed, and if given the opportunity many will accomplish great things."

--Amicus Brief of Former Juvenile Offenders in Graham v. Florida (1)

"[C]hildren cannot be viewed simply as miniature adults."

--Justice Kagan, United States Supreme Court Justice, in Miller v. Alabama (2)

1. INTRODUCTION

   In many ways, the law recognizes that juveniles are less mature than adults and therefore need protection from the consequences that would result if they were able to make adult decisions on their own. For example, both federal and South Dakota laws restrict minors' abilities to enlist in the military, (3) vote, (4) marry, (5) get a driver's license, (6) enter into a contract, (7) obtain an abortion, (8) or get a tattoo. (9) Yet, South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. (10)

   The following story is an example of just one of the estimated 250,000 children under age eighteen who are sent to the U.S. adult criminal system every year. (11) Andrew, a slightly built, Native American youth from Western South Dakota, was a well-adjusted child; he was a good student with long-established friendships. (12) At the age of fourteen, however, Andrew's support system started to fall apart when his parents divorced, his grandparents divorced, his aunt and uncle divorced, and his cousin and his favorite uncle died. (13) His family was too preoccupied to meet his needs at the time he most needed their help. (14) Andrew turned to an inappropriate support group by joining a gang and also began abusing alcohol and marijuana. (15) He had a few relatively minor run-ins with the juvenile system which included: an unidentified "disturbance at a school at age sixteen; running away from home twice (while on probation for the school incident); and two occasions where he was in possession of alcohol. (16) He eventually dropped out of school at age sixteen. (17)

   At age seventeen, after a night of drinking, Andrew and his friends, Sloane (age seventeen) and Anthony (age twenty), held up the Loaf 'N Jug convenience store with a B.B. gun and stole two cases of beer, cash, and cigarettes. (18) Sloane pulled the B.B. gun, which resembled a real handgun, on the store clerk. (19) As Andrew and his friends left the store, the clerk followed them out and Andrew's friends beat the clerk up, breaking his nose and causing massive bruising and lacerations, as well as memory loss. (20)

   A psychologist who evaluated Andrew after the incident concluded that Andrew had poor judgment and was somewhat immature, very needy, and impressionable--a follower rather than a leader. (21) Andrew was charged in adult court with first degree robbery and simple assault. (22) He asked the court to send his case to the juvenile court but, after holding a hearing, the lower court denied his request. (23) The lower court reasoned that it was in Andrew's and the public's best interests to keep Andrew in the adult system because long-term recovery was highly unlikely within his remaining time in the juvenile system--until he turned twenty-one. (24) Andrew pleaded guilty to first degree robbery and was sentenced to ten years in adult prison, with six years suspended. (25)

   Andrew's case exemplifies several of the issues addressed in this article. For example, his behavior and the results of his psychological evaluation illustrate young people's susceptibility to peer pressure and tendency toward recklessness and impulsivity. His Native American heritage is a reminder of the overrepresentation of minorities in the criminal justice system.

   In addition to his personal characteristics and behavior, the outcome of Andrew's case also typifies certain juvenile transfer issues. The lower court's conclusion that the public interest is best served by sending Andrew to the adult system is a concern that has been raised in other cases; judges worry that young people may not be rehabilitated by the time they age out of the juvenile system. Finally, Andrew's adult prison sentence raises the issue of what may happen to juveniles who are sent to adult prison. A juvenile who is sentenced to the adult prison system: can be housed with adult prisoners, is not entitled to rehabilitative services, is subjected to more violence than in the juvenile system, leaves prison with a criminal record, and is more likely to return to prison than if he had been kept in the juvenile system.

   Part II of this article will describe how the juvenile transfer mechanism developed--both generally and in South Dakota--as well as how it operates today. The mechanism which allows prosecution of a child as an adult is referred to as "juvenile transfer," because the juvenile court's jurisdiction over the child is transferred to the adult criminal court. (26) A juvenile who is transferred to adult court is treated just like an adult--she is prosecuted in an adult criminal court and sentenced in the adult corrections system. She has no right to the rehabilitative services offered to a child in the juvenile justice system.

   Part III of this article will explore the research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn more about youth development. For example, in 2012, the U.S. Supreme Court decided Miller v. Alabama, (27) where it held that the Eighth Amendment prohibits sentencing juveniles to life imprisonment without parole. (28) The Court's decision was based, in part, on emerging scientific evidence about juvenile brain development and the fact that youth have greater capacity for change than adults. In addition to the research about youth development, Part III will discuss research about the relative inefficacy of juvenile transfer as a response to crime as well as the disproportionate impact juvenile transfer has on youth of color.

   Part IV of this article makes four recommended changes to South Dakota's juvenile transfer laws. First, the decision to transfer a juvenile to the adult system should be returned to the discretion of the juvenile court and made on a case-by-case basis. Second, greater emphasis must be placed on the best interests of the child in transfer proceedings because it is more likely to accomplish the State's public safety goals. Third, children's development and capacity for change need to be taken into account as courts make transfer determinations. Fourth, additional procedural protections should be put in place for a juvenile facing transfer to the adult system.

2. THE EVOLUTION OF JUVENILE TRANSFER IN SOUTH DAKOTA

   Like many other states, South Dakota created a separate juvenile court system in the early 1900s to better meet the unique needs of children who have committed crimes. And, also like many other states, South Dakota passed laws in the 1990s which made it significantly easier to charge children as adult criminals. This Part explains the genesis of the juvenile delinquency court and then explains the evolution of juvenile transfer in South Dakota and its present day application.

   1. CREATION AND PURPOSE OF THE JUVENILE COURT

      The nation's first juvenile court--a court designed specifically to address children's needs--was established in Illinois in 1899. (29) Other states soon followed, and by 1925, all but two had courts designed to address the unique needs of children. (30) The key focus of the juvenile court system was to rehabilitate rather than punish the child. (31) The mission of the juvenile court, as articulated by early proponents, was to understand the child "physically, mentally, morally" and "not so much to punish as to reform ... not to make [the child] a criminal but a worthy citizen." (32)

      South Dakota passed its first juvenile delinquency law in 1909, which, consistent with the national trend, sought to treat an offending child "not as a criminal, but as misdirected and misguided and needing aid, encouragement and assistance[.]" (33) If a child could not be properly cared for at home or with the assistance of a probation officer, the law provided that the child "may be placed in a suitable institution where [the child] may be helped and educated and equipped for industrial efficiency and useful citizenship." (34)

      Even now, more than one hundred years after its creation, South Dakota's juvenile court remains oriented toward the rehabilitation of a child. For example, South Dakota law provides that juvenile delinquency proceedings "shall be in the best interests of the child," (35) and that juvenile delinquency statutes "shall be liberally construed in favor of the child, the child's parents, and the state for the purposes of ... affording guidance, control, and rehabilitation of any ... delinquent child." (36)

   2. JUVENILE TRANSFER TO ADULT CRIMINAL COURT: DISCRETIONARY JUDICIAL & AUTOMATIC STATUTORY TRANSFER MECHANISMS

      Under current general South Dakota law, the juvenile court has original jurisdiction over all juvenile delinquency proceedings. (37) A delinquent child is defined as a minor who is at least ten years of age and has violated a law for which there is an adult criminal penalty. (38) If the juvenile court adjudicates a child as delinquent, the juvenile court and corrections systems have jurisdiction over the child until she reaches the age of twenty-one. (39)

      A significant exception to the juvenile delinquency laws is the juvenile transfer mechanism, which permits a child to be prosecuted as an adult in the adult criminal system. There are currently two different methods in South Dakota by which a juvenile can answer for an offense in adult criminal court: discretionary judicial transfer and statutory automatic transfer. The following describes how those methods have developed in South Dakota as well as their current status.

      1. Discretionary Judicial Transfer

         Even in the early twentieth century...