A CAMPAIGN APPROACH TO CHALLENGING THE PROSECUTION OF YOUTH AS ADULTS.

• Author: Mistrett, Marcy

I didn't even know my son was being charged as an adult when he was sixteen. My son was swiftly sent to the D. C. Jail, even before having a hearing. He sat unproductively in the juvenile unit of the D.C. Jail waiting, where he was physically assaulted by a correctional officer, received zero services, and was finally shipped 1500 miles away to Devils Lake, North Dakota, to serve out his three-year sentence. Keela Hailes, parent, Washington, D.C. Help us, our lives matter. This is not the way to teach us juveniles a lesson. This is not what you call justice. 17-year-old, in a Missouri jail I. INTRODUCTION

Since the inception of the American juvenile court in 1899, children under the age of 18 have always been eligible for transfer to the adult criminal justice system. (1) At what age, for which criminal charges, and by what legal mechanism has varied over time and by state. Initially, litigation was the primary legal tool for redressing improper or overzealous use of transfer and for establishing legal protections for youth in the criminal justice system.

Led by a rapid spike in crime in the early 1990s, (2) as well as public fear driven by research on an emerging youth "super predator" who was predicted to be remorseless in his or her violence and criminal activity, state and federal legislators quickly took action. (3) Nearly every state in the nation passed laws making it easier to transfer or exclude youth from the juvenile system and to prosecute them in the adult criminal justice system. Consequently, a staggering number of children were incarcerated in adult jails and prisons--in 1997, about 14,500 children slept in adult facilities every night, (4) and state legislatures were passing laws faster than litigators could challenge them.

By the 21st century, it was estimated that 250,000 children were being prosecuted as adults each year. (5) Children were placed in horrific living conditions, spent long periods in solitary confinement, and received no rehabilitative or adequate legal services. (6) They were physically and sexually assaulted at incredible rates, (7) and some 2,500 children were sentenced to life without parole. (8) This impact was egregiously harmful to African-American children, who bore the brunt of these harmful policies and were driven into the adult system at a rate nine times higher than white children with similar criminal charges and histories. (9)

This article will explore the response of communities, advocates, and systems challenging such draconian practices. By 2004 and 2005, states began to fight back by organizing state-based campaigns challenging existing legislation, pointing to emerging science in adolescent development, poor public safety outcomes, and the inhumane treatment of children incarcerated as adults. (10) States have been winning this fight, and many have successfully turned back laws that drove the practice of treating children as adults. Thirty states have passed more than 50 laws making it more difficult to prosecute children in the adult criminal justice system. (11) The article will, however, conclude with some emerging policy issues that will need to be explored more deeply before the United States successfully redefines the boundaries of childhood.

2. BACKGROUND

   1. OVERVIEW OF CHILDREN PROSECUTED AS ADULTS

      Each year approximately 200,000 youth under the age of 18 are prosecuted, sentenced, or incarcerated as adults in the United States. (12) According to the United States Department of Justice, approximately 4,200 children sleep in adult jails and prisons every night. (13) This extraordinary use of adult correctional facilities to house youth presents numerous concerns, including serious, long-term costs to the youthful offender and to society at large. Science and research conducted over the last 20 years confirm what common sense tells us--children are different. Adolescent development and brain research has prompted leaders across the country to start looking at our juvenile justice system through a developmentally appropriate lens. (14) Such a perspective equally applies to the treatment of youth who would be eligible for adult prison sentences.

      Despite this research, the United States continues to lead the industrialized world in its incarceration of youth. (15) While incarcerated, children face violent conditions that lead to exceedingly high rates of sexual and physical abuse--even suicide. (16) To help protect against abuse, prison officials also make the decision to segregate youth from the general population, placing them in solitary confinement. (17) While in solitary confinement, youth can spend 22 or more hours per day alone in a small cell where they are physically or socially isolated for weeks or months at a time. (18) Youth placed in solitary are "frequently denied access to treatment, services, and programing adequate to meet their medical, psychological, developmental, social, and rehabilitative needs." (19) Solitary confinement can cause or exacerbate mental health problems and has been associated with issues of anxiety, rage, and insomnia. (20) The American Journal of Preventative Medicine recently found that mortality rates for youth offenders are 1.5 times higher than that of the general population. (21)

      Beyond the violence and abuse faced by youth in adult facilities, this public policy is ineffective in advancing public safety. Youth sentenced as adults are 34% more likely to recidivate with more serious crimes than their counterparts in the juvenile justice system, making communities less safe. (22) Additionally, the collateral consequences have lifelong impact on these youths and their communities. An adult conviction leads to severe restrictions in housing, education, and job opportunities. Lifelong bans on voting in many states are also common, permanently restricting these young people from participating in the democratic process. (23)

      Finally, charging children as adults is an unfair practice, primarily because youth of color are treated more harshly than their white counterparts when charged with the same crime. African American youth are nine times more likely to receive an adult prison sentence; Latino youth four times more likely; and Native youth nearly twice as likely as white youth to receive an adult prison sentence. (24) These statistics present incredible disparities as youth of color made up 60% of those incarcerated in adult state prison in 1997, and in 2012, that number had increased to 80.4%.

   2. BRIEF HISTORY OF CHILDREN IN THE ADULT SYSTEM

      Until the late 1800s, children who committed crimes in the United States were subject to criminal court penalties. (27) At the turn of the 19th century, the first separate juvenile court was established in Cook County, Illinois. The creation of the juvenile court was recognition that with appropriate supports and treatment children could be rehabilitated. (28) As a result, juvenile court judges were provided access to all aspects of a child's life--such as family, housing, and education--so they could act in parens patriae to intervene in ways they thought appropriate to help rehabilitate the child. (29) Juvenile courts were focused on the offender, not just the offense; thus they were provided with greater flexibility but with fewer procedural protections for the young person. By 1950, every state in the country had established a separate juvenile or family court. (31)

      Despite establishing separate courts focused on the rehabilitation of children, every state in the country retained at least one mechanism that allowed the transfer of children who were unmanageable or who had committed serious crimes. (32) Judicial waiver was the primary mechanism, with nearly every state having such a provision by the 1950s. (33) The age at which a child was considered criminally responsible for his or her behavior was determined on a state-by-state basis, which varied from not having a minimal age at all to seven or eighteen years old. (34) State legislatures tinkered throughout the 20th century as to what crimes were eligible to be transferred or excluded permanently from the juvenile court. (35) Prior to 1980, only eight states automatically excluded youth from juvenile court based on their age; only seven allowed for direct file. (36)

      The lack of procedural protections for children in juvenile courts was eventually challenged in the United States Supreme Court. Lawyers found that children in the juvenile courts were frequently kept in dire conditions, with no legal recourse and no representation. (37) A series of Supreme Court cases were passed to extend some of the procedural protections of criminal court into juvenile courts. One notable example was Kent v. United States, (38) which required basic due process protections for youth waived to the adult system. (39) An additional example is In re Gault, (40) which found that the juvenile court had to comply with the requirements of the 14th Amendment and provide youth with adequate notice of charges, right to counsel, safeguards against self-incrimination, and the opportunity for confrontation and cross examination. (41) After these Supreme Court decisions underscored the need for procedural protections for youth waived to adult court, judicial waiver (which requires a case-by-case review) remained the predominant mechanism by which children arrived in the adult court until the 1970s with extensive expansion of transfer mechanisms from 1992 to 1999. (42)

      In 1974, Congress passed into law the Juvenile Justice and Delinquency Prevention Act ("JJDPA"), which established core protections for youth in custody. (43) The law established incentives for states to create plans to deinstitutionalize status offenders by keeping children who are truant or breaking curfew out of detention. (44) It also established an incentive for states to include a plan to keep youth who are charged with delinquency petitions separated from adults in...