By Miriam Aroni Krinsky and Marcy Mistrett
Among the impressive reforms that Los Angeles County District Attorney George Gascón announced upon taking office was the commitment to stop prosecuting children as adults, joining San Francisco District Attorney Chesa Boudin in committing to end this practice, also known as juvenile “waiver” or “transfer.” Yet, every state still permits children to face harsh sentences that don’t reflect the realities of adolescent development — in 17 states and Washington, D.C., this includes children ages 10 and younger.
As we face a challenging holiday season unlike any other, we must remember the children behind bars experiencing profound danger and hardship, particularly in the wake of the rapid spread of COVID-19 in jails and prisons. It’s time for our leaders to do better and end the practice of prosecuting children as adults.
As of 2015, almost 76,000 children were prosecuted in adult courts; the vast majority had no independent judicial review before being charged as an adult. In 2018, more than 4,000 children were locked in adult prisons or jails on any given night. Yet as the Supreme Court has recognized, kids are fundamentally different from adults.
Most of us recall times growing up when we engaged in risky behavior or made decisions without considering the consequences. Brain science research tells us this is because young peoples’ brains aren’t fully formed. Indeed, the vast majority of youth who come in contact with the criminal legal system — including those who commit serious crimes — will mature, as we did, and outgrow this behavior.
Meanwhile, adult jails and prisons are dangerous places. Kids in these facilities are often subjected to violence, including physical abuse and rape, and are substantially more likely to commit suicide than those in youth facilities. They are frequently held in solitary confinement, in some cases ostensibly for their own protection, despite the fact that the United Nations considers solitary confinement of children to be a form of torture.
These burdens fall overwhelmingly on kids of color. While racism is prevalent throughout the criminal system, there are few areas where racial disparities are starker than among children. Research shows children break the law at the same rate, regardless of race, but from 2005 to 2018, the percentage of Black children transferred to adult court by a judge rose from 39.1% to 51.7%, while the percentage of white children dropped from 45.2% to 32.2%. Moreover, though 60% of the broader youth population is white, 88% of children in adult jails and prisons in 2012 were youth of color.
California has led the nation and is now one of only six jurisdictions that require a juvenile court judge to review and make an individual determination before a child is waived and the only state that blocks transfers for children under the age of 16. The results show: The state has gone from directly filing more than 1,000 children into adult court, to last year transferring fewer than 50, without any significant increases in crime.
Prosecuting children as adults doesn’t make communities safer. Rather, research shows it leads to significantly higher recidivism rates. When young people come in contact with the criminal legal system, community-based interventions achieve the best outcomes, including the lowest re-offense rates and the greatest rates of high school completion, even among those who have committed serious crimes. Incarcerating children in adult correctional institutions also denies them access to developmentally appropriate programming and supports that would prepare them to successfully rejoin their community.
In the face of overwhelming evidence that treating children as adults is destructive for both kids and communities, there have been substantial reforms. Forty states and the District of Columbia have adopted legislation to make it less likely that kids will be treated as adults, while 24 states have rolled back automatic transfer provisions that required certain cases to be sent to adult court, and nine have completely repealed at least one type of automatic transfer. The number of children charged as adults has decreased by more than two-thirds over the past 15 years. Nevertheless, racial disparities have increased during this time, and there are still thousands of children across the country experiencing the harsh repercussions of adult court prosecution.
Further legislative changes are needed to keep kids out of adult courts and prisons. Elected prosecutors — who have a responsibility to promote sensible reforms and protect communities from the poor public safety outcomes that these practices produce — should be leading voices for change. And until laws are changed, they should follow Gascón and Boudin by committing to not prosecute children as adults.
Many families are already spending the holidays apart this year, but in future years, when we are all able to be with loved ones again, let’s ensure justice-involved children also see better days: close to home, with the care they need, and in settings that keep them safe and help them grow into healthy adults.
Miriam Aroni Krinsky is founder and executive director of Fair and Just Prosecution and a former federal prosecutor. Marcy Mistrett is CEO of the Campaign for Youth Justice. Originally published in the San Francisco Chronicle.
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