No (More) Youth in the Criminal System

By Barbara Fedders

In its upcoming legislative session, the North Carolina General Assembly is poised to again take up a Republican-sponsored bill that would expose more youth to criminal prosecution in the adult system. All who care about public safety and fair treatment of youth should oppose this and any other efforts to prosecute more young people in that system.

Presently, for serious and violent felonies other than murder, which is automatically prosecuted in the adult system upon a judicial finding of probable cause, youth between ages thirteen and fifteen may be transferred only after a hearing before a judge who decides whether transfer is necessary to ensure the protection of the public and to meet the needs of the child. The current statute requires judges to consider: age, maturity, and intellectual functioning of the child; any prior record; whether prior attempts at rehabilitation have been made; available services in the juvenile court; whether the offense was premeditated or violent; and the best way to assure the public interest.  A judicial transfer hearing is a check on what would otherwise be unbridled prosecutorial discretion.  Such a check is essential, given that tough-on-crime prosecutors may otherwise find it politically expedient to transfer large numbers of minors to the adult system, with insufficient regard for whether transfer is necessary.

In the last legislative session, Representatives Paul Stam and Lee Faircloth proposed House Bill 217 (HB 217).  In its original version, this bill would have permitted prosecutors to transfer to Superior Court any juvenile charged with a Class B1 through Class E felony upon a finding by the judge of probable cause.  That bill included all juveniles, with no minimum age.  A less sweeping but still pernicious version emerged from debates in the House. This version would permit prosecutorial transfer for youth beginning at age fifteen who are charged with a Class B1 through Class B2 felony. In its modified version, HB  217 passed three readings in the House and one reading in the Senate.

The General Assembly should not pass this bill. Trying youth in the adult system is ineffective, unjust, and expensive. Studies show that youth prosecuted in the adult system are more likely to reoffend than youth prosecuted for those same offenses in the juvenile system.  It is not hard to understand why.  In the juvenile system, youth are able to receive counseling and educational services unavailable in the adult system. Juvenile court judges are specially trained in issues of adolescent development that are germane to offending and punishment. Their dockets are typically smaller than their Superior Court counterparts, and they are better able to provide close and frequent supervision of offenders.

Second, neuroscientific and psychological studies establish that youth are less able to plan, or to understand the consequences of their actions, and that they find it more difficult to resist peer pressure than do adults.The Supreme Court has recognized that youth are as a result categorically less culpable than adults. States across the country are changing their laws to make it harder to try youth as adults, rather than easier. We already have the lowest age for criminal jurisdiction of any state in the nation.

Transferring kids to the adult system is expensive.  Youth in adult court wait for longer periods than they would have in juvenile court for their cases to be heard. They frequently wait in detention, which costs taxpayers. Victims and witnesses must come to adult court for more appearances than in juvenile court; other court costs, for attorneys, stenographers and juries — not part of the juvenile system — are higher as well. Additional transfers will also undoubtedly add to the racial disproportionality that plagues our juvenile and criminal system.

One of the myths that the Bill’s sponsors put forward is that juvenile crime is up. Last April, in the discussion of HB 217 at the House Judiciary Committee, Wake County District Attorney Colon Willoughby (now retired) argued that the bill was necessary for precisely that reason. However, these claims are simply and demonstrably false.

For the last five years for which data are available, the juvenile delinquency rate (juvenile crime) in the State of North Carolina has decreased. Over that five-year period, the State has experienced a 28% decrease in juvenile delinquency. This trend is consistent with data indicating decreases in juvenile crime nationwide.

This bill will have negative consequences for young people, their families, and the public. North Carolina voters should urge their representatives to reject it.

Barbara Fedders is a Clinical Associate Professor at the University of North Carolina School of Law

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