« At 11th hour, more advocacy for Prez Obama to make big 11th-hour clemency push | Main | Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform »

December 7, 2016

"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"

The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:

Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.

Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era.  After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults.  Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.

Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons.  These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.

It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts.  In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections.  The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”

This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts.  Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges.  Only Connecticut, Kansas, Massachusetts, and New Mexico do not.  States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57.  Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges.  The totals stemming from other categories of transfer are not available.

From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category.  Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.

The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges.  Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts.  Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not.  Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.

December 7, 2016 at 02:56 PM | Permalink


Once again, the specter of disparity is used to address a policy choice.

The issue should be what makes sense, irrespective of the race of the juvenile. Simple possession by a kid with zero criminal history (or very minor criminal history) should rarely, if ever, go to adult court. But remember the plea--a juvenile could be busted for dealing and plead down to possession, and that double lenience may not be indicated. Also, it's pretty unfair to look at the pure fact of a conviction and deduce backward what the actual conduct was.

Collateral consequences, given advances in the Information Age, are likely far worse today than years ago--attention needs to be given to that too.

Why can't the arguments focus on right, rather than whom it affects.

Posted by: federalist | Dec 7, 2016 3:48:17 PM

While not knowing every state's laws on transfer, I would not be shocked if the statistics from my state showed that juvenile's tried as adults have a higher rate of recidivism than those who stayed in the juvenile system. The reason that I would not be shocked is because of my state's standards for transfer. While certain offenses mandate a hearing on transfer, the juvenile officer has discretion to request transfer on any felony. However, the standard for transfer requires considering the seriousness of the offense, the history of the offender in the juvenile justice system, the available programs within the juvenile justice system for "treating" the offender, and whether those programs are likely to benefit the offender. In other words, the juvenile who gets transferred to the adult system should have already demonstrated a tendency to be a recidivist and unlikely to respond to efforts at rehabilitation. If transfer "cherry picks" the worst, then it should not be a surprise that these folks have a worse record as adults.

Posted by: tmm | Dec 8, 2016 10:50:25 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB