In Illinois’ statehouse, legislators are debating a proposal that would give judges the power to determine whether kids should be tried in juvenile or criminal court, regardless of the crime they are accused of committing. This would change Illinois’ current law that empowers prosecutors to automatically transfer kids they charge with certain violent offenses to adult court, without the possibility of judicial review.
As most states in the country have similar laws that make it easier to try kids as if they were adults, this proposal deserves national attention, as it represents good policy and needed change.
While our justice system must be able to handle the small number of young people who commit violent offenses, the only purpose that laws like automatic transfer serve is to undermine the possibility of principled discretion in cases in which it is most required.
Just like mandatory minimum sentences, automatic transfer stems from a wish to impose certainty on the justice system by removing the interference of discretion and assigning the most severe punishments to the most serious crimes.
The fundamental problem with this wish is that it’s based on a dangerously flawed understanding of how the judicial system works. As the great criminologist Norval Morris once explained, in the courts “discretion” [is] like matter … it cannot be destroyed, it can only be displaced.”
While automatic transfer is intended to eradicate the uncertainty that stems from the exercise of discretion, it only displaces that power onto prosecutors, who are responsible for charging cases.
This is not a mere technical issue. While judges exercise discretion openly from the bench with clear guidelines, and their decisions are reviewable by higher courts, prosecutors decide how to charge cases behind closed doors with no clear guidelines, and their charging decisions are unreviewable.
Research has consistently shown that giving this kind of unchecked authority to prosecutors not only increases their powers beyond their proper roles at the expense of judicial oversight, but also produces profound racial, geographical, and sentencing disparities.
This is precisely what my organization, the John Howard Association, has found. Through funding provided by the MacArthur Foundation, we have been working with kids charged as adults in Cook County and tracking their experiences as they move into the state’s adult prison system. As we’ll detail in a forthcoming report, all of the people we interviewed have been accused or convicted of serious offenses as juveniles that involve threatening or inflicting harm on another person. The overwhelming majority of them are African Americans from a small handful of Chicago’s poorest neighborhoods. All of them come from backgrounds of significant trauma. Many of them have been diagnosed with some form of mental illness and have significant learning disabilities. It is rare to talk to someone who has had meaningful contact with his or her attorney or who possesses a basic understanding of criminal law and procedure.
Take, for instance, Emma, a young Chicago woman who was prosecuted as an adult when she was a juvenile and is now serving a 10-year prison sentence. To protect her identity, I have changed her name and some of the minor details of her case, but have not altered the essential facts of her story.
Prosecutors transferred Emma’s case to adult court after she and her friend were arrested for robbing a cab driver with a weapon.
At first blush, this case would seem to be a straightforward argument for automatic transfer. As proponents of the law have correctly noted, Illinois’ juvenile courts can only send kids to the state’s juvenile prison system until they are 21. Why should we abolish automatic transfer and risk having violent offenders like Emma released from custody after spending only a handful of years in a juvenile facility?
However, the more we heard of Emma’s story, the more complicated and troubling it became.
First, we learned that even though Emma’s friend committed the same crime, she avoided being automatically transferred to adult court because she was about a year younger than Emma and just below the statutory age threshold. This slight difference in age led to a dramatically disparate result in sentencing. While Emma was in adult court, her friend was given probation.
As we talked with Emma, we also learned about the events leading up to her arrest. She told us that that a few weeks earlier she had been gang-raped. After her sexual assault, she started getting drunk and high to forget about what had happened to her. One night, she was left at a party with no money and no way home. Although she had never committed a crime before, she said that in her state of mind robbing a cab driver seemed like the only thing she could do.
When we asked her if the judge considered any of these facts before she was sentenced, she told us that our interview was the first time she told anyone about what had happen to her. The prosecutors who automatically transferred her to adult court never asked about her life, and she only had a handful of visits with her attorney before taking the plea deal that sent her to prison.
I don’t know how it’s possible to argue that Illinois’ automatic transfer law led to a just result in Emma’s case.
Of course, not every kid charged with an automatic transfer offense has a story like Emma’s, but that’s why abolishing this kind of law is so important.
The proposal currently pending in Illinois statehouse is not about giving all kids charged with violent offenses shorter prison sentences.
It’s about letting kids like Emma tell their story before a judge, who can then weigh the need to protect public safety alongside relevant facts about their lives and then determine whether it’s appropriate to try them as a juvenile or an adult.
It’s about whether we can trust ourselves to use wise discretion in difficult cases instead of continuing to sacrifice kids like Emma on the altar of false solutions and failed policies.
John Maki is the executive director of the John Howard Association, Illinois’ only juvenile and adult prison watchdog.