During my 22 years as a judge, I didn’t discuss legislation being debated at the state Capitol. Judges are supposed to mete out justice using the laws on the books, and we avoid involvement in debates about legislation we may later have to enforce in our courtrooms.
But now that my days on the bench are behind me, some of what I learned in and out of courtrooms may help policymakers considering legislation that would give juvenile court judges the responsibility of deciding which children charged with serious crimes should be tried in a criminal court and subject to extremely long prison sentences given to adults or which children should remain in juvenile court with an emphasis on life changing rehabilitation.
It is a most serious and difficult decision to make. Current state law does leave transfer of some cases — those of especially young defendants or older teens charged with less serious crimes — up to the discretion of the juvenile court judge. I have made those decisions after hearing arguments from both sides and based on several factors including the child’s history and the degree of participation in the alleged offense.
If a prosecutor disagreed with those decisions on transfer to adult court, my decision could be appealed. But in cases where prosecutors alone decide whether to transfer to adult court, there is no public hearing; there are no criteria for the prosecutor to weigh before determining whether the child should be prosecuted as an adult; and there is no appeal process.
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Additionally, a child is deprived of the opportunity to have an attorney assigned to juvenile court, often one who has special training in adolescent development, gather pertinent information about the child’s physical and emotional development, whether he or she has received special education services, or psychological/psychiatric treatment or whether he or she has been treated in a residential treatment facility or is a ward of the Department of Children and Family Services as a result of being abused or neglected. All of these factors are critical in determining whether a child should be prosecuted in the juvenile justice system or transferred to the adult criminal justice system.
Prosecutors often have used that kind of unbridled power as a tool to induce something called “plea bargains.”
Here’s how that works and skews justice: First, the state’s attorney charges the child as an adult, but negotiation about the charge with the child’s attorney begins before the child goes to trial. Sometimes, in spite of the child’s actual criminal activity and involvement in crime, rather than go through an expensive trial that might result in a long prison sentence, the child agrees to plead guilty to a lesser charge — the kind of crime that could not be transferred automatically to adult court. The lawyer trades the risk of a harsh sentence, regardless of the facts and guilt, for a guaranteed more lenient sentence.
These are life-changing decisions that should be made in the open after careful consideration of facts from both sides. Automatically transferring a child to adult court does not improve public safety and might even threaten it. Research by the U.S. Department of Justice’s Office of Juvenile Justice and Delinquency Prevention has found that transfer laws have little to no deterrent effect, and there’s ample evidence that children sent to adult courts have a higher recidivism rate, making communities less safe.
By eliminating automatic transfer of children to adult court and creating a process for an open judicial review, House Bill 172 would bring more fairness to our court system and better protect our communities.