Few seem to be disputing the brain science that suggests that the impulsivity of adolescence lingers well into technical adulthood. Even so, opposing camps, in both Massachusetts and California, are finding plenty to fight about as lawmakers mull a new frontier in raising the age for their juvenile justice systems again.
State lawmakers will consider whether to try most 18- and 19-year-olds in their juvenile courts and stop incarcerating them with adults. Massachusetts and California would join Vermont, which in 2018 became the first state to decide to make the same move. Despite their deeply blue state legislatures, in both states efforts to raise the age are set to draw scrutiny — and from opposing ideological directions.
In Massachusetts, a bill proposes to fold 18-, 19- and 20-year-olds into the juvenile justice system. However, a recent task force on “emerging adults” in the state’s justice system declined to recommend expanding the juvenile court’s jurisdiction, and district attorneys in particular are wary.
In California, a lobby group for chief probation officers is behind the push to “raise the age,” which has drawn suspicion from some juvenile justice reformers.
Massachusetts again mulls a ‘raise’
This year lawmakers will consider a controversial bill that proposes to expand the jurisdiction of juvenile court through age 20, after declining to pass similar legislation in 2017.
A criminal justice reform law passed in 2018 mandated that a Task Force on Emerging Adults in the criminal justice system be formed to study raise the age and report in 2019. Sens. Cynthia Stone Creem and Paul Tucker, both Democrats, chaired the group, which included district attorneys, reform advocates, Republican and other Democratic legislators, and representatives from various state agencies.
On Feb. 25 of this year, the task force released a report that made no recommendation on the big question.
“The fact [is] that the community came out and said, ‘You should do something,’ but the task force couldn’t agree what that ‘something’ should be,” said panel member Sana Fadel, deputy director of Citizens for Juvenile Justice, an advocacy group that’s leading the push to raise the age in Massachusetts. “Some of us think raise the age is going to be really helpful, and we have good, strong faith looking at the research.”
The task force’s report did highlight the benefits and feasibility of expanding the jurisdiction of the juvenile court, even as it didn’t make any direct call for the legislature to enact it.
It’s the incomplete development of their frontal brain lobes, the task force wrote in its report, that makes young adults “more likely to be more impulsive, less future-oriented, more unstable in emotionally charged settings, and more susceptible to peer and other outside influences.”
That very malleability also makes “emerging adults” — defined by Massachusetts as ages 18 to 24 — uniquely susceptible to programming that aims to rehabilitate them, the report said. It cited data showing that youth involved in the juvenile system are less than half as likely to be reconvicted as those involved in the adult system.
However, the task force limited its specific recommendations to such actions as ensuring that diversion programs for justice-involved youth are fully funded, and expanding the number of specialized housing units in the adult detention system that are designed for 18- to 24-year-olds.
The task force punted back to the legislature the big, structural question, listing the competing choices as menu items — such as raising the age for juvenile court versus creating a completely separate court system for 18- to 25-year-olds.
“I think that’s where the debate really is,” said Andrea Harrington, district attorney of Berkshire County in Western Massachusetts, which in 2019 had a population of 127,328. “For us it would be a really heavy lift to create a whole new court. I see it as being just more feasible for us to accommodate those people in juvenile court.”
She is one of only three of the state’s 11 district attorneys who have spoken publicly in favor of raising the age for the juvenile justice system. The other two are Rachael Rollins, district attorney of Suffolk County (which includes Boston), and David Sullivan, district attorney of Northwestern County.
Nine of the state’s 11 district attorneys in 2017, when the change was first proposed (including Harrington’s predecessor), signed a letter that outlined their opposition to the move. “… adopting a law,” they wrote, “that enables anyone to declare that ‘I am not responsible for my actions, my brain is!’ is something no rational parent would accept, and creates a slippery slope that cannot be limited to only those within a given age range.”
Nor does the chief justice of the state’s juvenile court favor expanding its jurisdiction. “Much of our work in the juvenile court relies on the participation of parents and guardians and others that will surround the child, support the child with ongoing success in the community,” Justice Amy Nechtem said in June:
“Very different from an adult that will come into a family-centered juvenile court, and our oversight on this young person will be absolutely different from what is happening for the younger. Their needs are different and their presence in the community is different, so it is, in my opinion, not a match for the juvenile court, I say respectfully.”
Trial Court Committee representatives from the Juvenile, Superior, District and Boston Municipal court departments will convene to review the report’s recommendations and “intend to work collaboratively with the legislative and executive branches to implement practices in the trial court to best serve the youth of the Commonwealth,” she said in an email.
Fadel believes the task force recognized that the juvenile justice system does many things better than the adult system and has headroom to allow the youngest adults to reap those benefits. Juvenile caseloads have been declining even after 17-year-olds were folded into the youth system in 2013. Her group now turns to lobbying the heavily Democratic legislature to adopt the raise the age bill.
“We’re in the business of advocating for young people and advocating for what’s going to help them transition positively to adulthood,” she said. “We have the capacity. We have the leadership. We have the expertise.”
In California, only about 700 juveniles are currently held in state juvenile detention halls, after plummeting from a peak of about 10,000 in the 1990s.
The Chief Probation Officers of California (CPOC), the lobby group comprising those responsible for youth in custody, proposed in November a framework for a raise the age bill that will be considered in Sacramento. Some criminal justice reform advocates are deeply skeptical, saying they believe the proposal is an attempt at refilling the county probation departments’ mostly empty juvenile detention halls.
“The only motivation behind this, the reason the CPOC is doing this, is their juvenile halls are operating at less than 35% capacity, and they’re trying to find a new population to fill them up,” said Daniel Macallair, executive director of the Center on Juvenile and Criminal Justice.
The executive director of CPOC, Karen Pank, said that was “absolutely not” the group’s motivation. She touted their yearslong efforts to divert youth from detention.
“Detention is always the last resort,” Pank said. “Simply because we run detention facilities does not mean that’s our primary go-to. But it is a necessary piece of the continuum, and we try to use that as little as possible.”
The bill, introduced in January by Democratic state Sen. Nancy Skinner, follows CPOC’s framework, which would expand the juvenile court’s jurisdiction to include 18- and 19-year-olds. Juveniles could remain on probation supervision up to age 24.
The legislation is likely to split the state’s 58 district attorneys, said Larry Morse, legislative director of the California District Attorneys Association.
“I would fully expect that there would be some members of our association who would support, certainly philosophically, this idea, and I’m equally certain there would be members … who would be intractably, inalterably opposed to it,” he said.
Some raise the age advocates favor the policy but are worried about the challenges of the nuts-and-bolts implementation of it, including David Muhammad, executive director of the National Institute for Criminal Justice Reform and former chief probation officer of Alameda County, Calif. He said he fears a “net-widening” process in which some young adults who wouldn’t have been incarcerated in the adult system suddenly would be under the juvenile system.
“That being said, if we were able to develop a process to ensure that that 19-year-old was otherwise going to be in the city jail, then I would much prefer that 19-year-old to be in the juvenile detention center,” he said.
Muhammad said he plans to convene advocates, researchers and representatives from probation for “sober, difficult, detailed discussions” on the legislation.
Vincent Schiraldi, who was commissioner of the New York City Department of Probation and is now the co-director of the Columbia University Justice Lab, was consulted by the chief probation officers’ lobby as they drafted their framework. He said reform advocates in California are already coming around to raise the age.
“The advocates initially were suspicious,” he said. “Now folks are saying, ‘Well, who cares who originated the idea. If it’s a good idea, we should get behind it.’”
Empire State standing pat
After a reform bill was passed in 2017 and fully implemented in October 2019, New York’s version of raise the age brought 16- and 17-year-olds into juvenile court for many offenses. But older teens were never part of the discussion. In the Empire State, lawmakers still want to track the most recent expansion before they try to incorporate anyone 18 or older into the juvenile system.
“What we were hearing from legislators was like, ‘OK, we’ve done raise the age, it was a huge lift, and let’s let it go into effect and see how it goes,” said Kate Rubin, director of policy & strategic initiatives for Youth Represent. “We got a pretty strong message that there’s not really an appetite for revising raise the age so soon after it passed.”
In New York, juvenile justice reformers are instead focused on expanding the state’s youthful offender law so that it incorporates those up to 25 and removes restrictions on those with prior felonies, Rubin said. Currently, only youth under 19 who are tried in adult court are eligible for youthful offender status, which results in their records being sealed.
Reformers are also trying to raise the age of juvenile delinquency from 7 to 12. Finally, they’re looking for the legislature to move 16- and 17-year-olds out of youth prisons run by the state’s corrections department and into juvenile facilities run by the State Office of Children and Family Services.
Advocates are also looking carefully at the most recent change, which has put 17-year-olds in the juvenile system, before they try to expand the more “interventionist” juvenile court to include those aged 18 to 20. That court can impose mandates and long-term restrictions that might not be appropriate for young adults, Rubin said.
“We need to be really thoughtful about whether we want … 20-year-olds to be part of that,” she said.
North Carolina rethinks 6-year-olds as delinquents
North Carolina was the last state to treat as adults all 16-year-olds accused of crimes and is still adjudicating 6- to 9-year-olds as delinquents.
In December the state implemented its raise the age law, which was passed in 2017 and signed by Democratic Gov. Roy Cooper. Last year, as it prepared to start adjudicating most 16- and 17-year-olds as juveniles, the legislature also considered a bill that would raise the minimum age of juvenile jurisdiction from 6 to 10.
“You just cannot appropriately address issues with children who don’t understand what a court proceeding is,” said Democratic Rep. Marcia Morey, a co-sponsor, who was previously a judge for 18 years. “To adjudicate a delinquent under the age of 10 is contrary to common sense and the best interest of the child.”
After being approved by a committee last year in the Republican-run state house, the bill was changed so that it would trigger a study rather than boost the minimum age.
A subcommittee of the Juvenile Jurisdiction Advisory Committee, which is responsible for planning the implementation of raise the age, has so far held one meeting on the legal and data issues around raising the minimum age, according to Eric Zogry, North Carolina’s juvenile defender. Morey said she is “hopefully optimistic” a new bill can pass the legislature in 2021.