OP-ED: When Reform Fails on the State Level, Turn to Local Advocates

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North Carolina is the only state in the U.S. that treats all 16 and 17-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Although New York also ends juvenile court jurisdiction at 16, it has a law that allows judges, in certain circumstances, to seal the criminal conviction of a 16 or 17 year old and sentence her to probation. Only nine other states end juvenile court jurisdiction at age 17, with the vast majority prosecuting everyone under 18 in juvenile court. Despite the fact that child welfare advocates, scholars and some lawmakers in North Carolina have repeatedly backed legislative proposals to extend jurisdiction to ages 17 or 18, they have consistently been defeated on the state level.

Why does the upper age of juvenile court jurisdiction matter? The main reason is that young people who are convicted of criminal offenses face significant barriers when attempting to secure jobs or gain access to higher education. Employers in most states can deny positions to — or even fire — anyone with a criminal record, regardless of the individual’s history, the circumstances or the relationship between the job or the license sought and the applicant’s criminal record. Employers in most states can also deny jobs to people who were arrested for, but never convicted of, a crime. While all states have the power to lift bars to employment by issuing “certificates of rehabilitation,” only a handful offer this option, and North Carolina is not among them.

As for higher education, increasingly U.S. colleges and universities are using criminal history background checks in the admissions process and then developing exclusionary policies to deny admission to certain categories of applicants — despite the fact there is no evidence that such policies increase safety on college campuses or that an applicant’s prior criminal record is a relevant risk factor when assessing future dangerousness.

Likewise, the harmful impact of having a criminal conviction extends far beyond employment and higher education to immigration status, access to public housing and benefits, and exclusion from military service.

In short, because all 16- and 17-year-olds charged with crimes are automatically tried and sentenced as adults (and eventually imprisoned with them), tens of thousands of young North Carolina residents are burdened with these consequences each year and denied the rehabilitative services and programs offered by the juvenile justice system. Although this particular policy is specific to my state, nearly every state can transfer minors to adult court for relatively minor offenses, forcing adolescents across the country to confront similar hurdles.

What can be done when state representatives fail to act? Recently, the chief district court judge in Durham County, Marcia Morey, has taken a bold step — the first of its kind — to help young people avoid arrest and what she calls the “tattooing” effect it can have on their futures. In January, Judge Morey initiated a program, the Misdemeanor Diversion Project, for 16- and 17-yearold first-offenders charged with non-violent misdemeanors. If the law enforcement officer agrees, the teen will be directed to a community-based program instead of jail. The conditions imposed might include conflict resolution or mediation, restitution and community service, or substance abuse or mental-health counseling. The Project will also include meetings at the courthouse that teach teens about the legal system and the unintended consequences of breaking the law. Excluded from eligibility are crimes that involve firearms, sex offenses, motor vehicle violations or gang activity. Successful completion of the Misdemeanor Diversion Project, which has the backing of the local police chief and district attorney, will result in no criminal charges being filed and a clean record.

In 2012, more than 600 16- and 17-year-olds in Durham, N.C., were charged with misdemeanors, including possession of marijuana, shoplifting, larceny, disorderly conduct and trespassing. Judge Morey estimates that the Project will be able to help about 500 of these teens each year. It’s not a large number, but it’s a good start. When it comes to the impact of the criminal justice system on our young people, whether in the Tar Heel State or beyond, we have nowhere to go but up.

Tamar R. Birckhead is associate professor of law and interim director of clinical programs at the University of North Carolina School of Law.

2 thoughts on “OP-ED: When Reform Fails on the State Level, Turn to Local Advocates

  1. Great story of leadership at the local level. I agree with John’s assessment and this can be the beginning of growth to expand as they work these first steps. We started in Clayton in 2003 with “Focused Acts”–targeting just a few misdemeanors, but over time that practice consumed all misdemeanors and low level felonies resulting in an 83% decrease in school referrals. This practice eventually was accepted into the adult domain for youthful offenders which begins at 17 in Georgia with what our prosecutor calls the “Deferred Prosecution Program.” I am glad to report that I will be speaking to the judges in May at the UNC School of Government at Chapel Hill and I will be in Charlotte NC as the consultant for the National Council of Juvenile and Family Court Judges School Pathways Project to reduce school referrals. They are one of 16 recipients of the project. I offer this to show that the leadership in North Carolina is present and this makes it very promising. I also want to give a shout out to my friend and colleague Judge Louis Trousch in Charlotte who I serve alongside on the Board of Trustees of the NCJFCJ. He is one among many champions of leadership in North Carolina.

  2. Kudos to the judge, D.A., police chief and other officials who have taken this bold (and common sense) step to correct an obvious flaw in the system. As you say, there is nowhere to go but up. These types of options could conceivably be given to a wider array of folks, including for more crimes and a higher age range. I love seeing this kind of progress. I am reminded of Judge Teske’s question, “How do we bring the anarchist out of the judge?”