Texas, Alaska, and Idaho have made assurances for the first time; Arkansas and Utah Continue to opt out of PREA

By Marcy Mistrett

Last week, the US Department of Justice released the re-certification and re-assurance submissions for Year Two of the audit for compliance with the Prison Rape Elimination Act (PREA).

PREA, a bipartisan supported act passed more than a decade ago, was designed to end sexual violence behind bars. For youth (under age 18) who are charged and/or sentenced as adults, PREA’s Youthful Inmate Standard (115.14) offers unique protections—requiring separate housing (including common rooms and showers) from adult inmates in jails and prisons. PREA requires sight and sound separation between youth and adults outside of housing, unless the facility provides direct staff supervision when the two populations interact; that facilities must make their “best efforts” not to rely on isolation as way to meet these requirements; and finally, that facilities must offer youth large muscle exercise, comply with legally required special education services, and provide access to other programming as much as possible.

The Prison Rape Elimination Act of 2003 is a crucial law on many fronts, including for the safety of youth involved in the justice system. One of its provisions is a yearly data collection requirement, carried out by the Bureau of Justice Statistics. This year’s comprehensive statistical review and analysis of the incidence and effects of prison rape was just released, and it contains some pretty alarming numbers.

According to the report, “The number of youth held in state juvenile systems declined sharply, from 38,580 at year end 2006 to 19,095 at year end 2012. As a result, the rate of sexual victimization allegations per 1,000 youth held in state juvenile systems more than doubled, from 19 per 1,000 youth in 2005 to 47 per 1,000 in 2012.” Despite a significant decrease in the number of youth in the juvenile justice system and the tireless efforts made to widely and properly implement PREA, sexual victimizations have dramatically increased. Additionally, the report cites that 45% of the 9,500 allegations of sexual victimization reported between 2007 and 2012 involved staff-on-youth sexual victimization.

The report also highlights that LGB youth are much more vulnerable to be sexually assaulted while in custody.  LGB youth (10.4%) were more than seven times as likely as heterosexual youth (1.4%) to be assaulted by another youth.

Overall, this document shows that there is still a long way to go in the fight to end prison rape, and that one of the best tools with have to do so is the Prison Rape Elimination Act, which has surfaced the increasing prevalence of the rape and sexual assault of children in custody.  While PREA was passed in 2003, it is unfortunately not fully implemented, though it has become the new standard of care for children in custody. 

The Prison Rape Elimination Act (PREA) is a federal statute focused on sexual assault and victimization in juvenile facilities, prisons, jail, lockups, and other detention facilities. The goal of PREA is to prevent, detect, and respond to sexual abuse in detention and correctional facilities.  BJS will issue a second report on PREA in November/December 2016 that will report on the safety of youth in adult facilities.

In California, ongoing efforts backed by Gov. Jerry Brown have inched the state that much closer to eradicating the direct filing of youth into the adult justice system. Direct filing, a practice that allows prosecutors to determine whether to charge a youth in adult criminal court, has resulted in the incarceration of thousands of youth serving lengthy sentences.

A new report by the W. Haywood Burns Institute suggests that direct filing is a worsening problem in the state. Despite decreased youth crime rates, California prosecutors are increasingly using direct file. The inconsistency is apparent: there has been a 55 percent drop in felony arrests from 2003 to 2014, but 23 percent more direct files during the same timeframe. Currently, direct filing is responsible for 80 percent of youth prosecuted in the adult system. Juvenile court judges can also waive youth into the adult system, and there are certain crimes that are statutorily excluded from juvenile court jurisdiction that, by law, originate in criminal court.

The Burns Institute’s report also points out growing racial disparities with direct file. Direct files for white youth are actually declining, while direct files for youth of color are rising. In 2003, youth of color were 4.3 times as likely as white youth to be directly filed, but by 2014, that likelihood had risen to 11.3 times as likely.

The report also includes the evidence of psycho-emotional trauma experienced by youth who are subjected to the adult system. This trauma, caused primarily by intense stress associated with higher stakes prosecution, is found to increase recidivism rates among these youth.

This report comes in the wake of a California Supreme Court decision in favor of a ballot measure that would let voters decide whether a judge can determine if youth are processed through the juvenile or adult court, rather than a prosecutor. The ballot initiative is just part of a series of measures proposed by Brown.

Advocates and paid signature gatherers have collected more than a million signatures in support of the ballot initiative—tens of thousands more than needed. The signatures should be certified by the end of the month, which is the final step to getting the direct file reform discussion on the ballot in California this November.

 By Anne-Lise Vray, Juvenile Justice Fellow

A new report of the Office of Juvenile Justice and Delinquency Prevention analyzes the juvenile residential placement data for the year 2013, and finds that overall, more than 60,000 youth were in residential placement across the United States on October 23, 2013, a drop of over 12% compare to 2011 and of more than 44% since 2003. 

While this report shows some encouraging trends, some others are worrisome. On the same date, 2,524 youth were locked up for status offenses, i.e. for misbehavior such as running away from home, skipping school, or speaking back to an adult – actions that are not considered crimes when committed by adults. Although the number of kids incarcerated for status offenses has decreased, it still represents almost 5% of all juveniles in residential placement, which is proportionally about the same as in 1997.

The report cautions that state variations in upper age of juvenile court jurisdiction influence placement rates. It points out that if all other factors were equal, one would expect higher juvenile placement rates in states where older youth are under juvenile court jurisdiction. Juvenile placement rates are also influenced by extended jurisdiction laws and transfer laws. States with laws allowing for youth to stay in juvenile facilities beyond the upper age of juvenile jurisdiction have higher placement rates than states with stricter laws, while states with broad transfer provisions would be expected to have lower juvenile placement rates than other states.

With those caveats in mind, the report highlights the geographic disparities in juvenile placement rates on the state level. The District of Columbia, South Dakota, and Wyoming have the highest juvenile placement rate per 100,000, while Vermont, Massachusetts and Hawaii have the lowest. Nationwide in 2013, 173 juvenile offenders were in placement for every 100,000 juveniles in the U.S. population.

Today the Campaign for Youth Justice released Collateral Consequences, a new online report seeking to raise awareness on the long-lasting damages caused by the practice of trying, sentencing and incarcerating kids as adults. These consequences range from having a hard time finding a job to never being able to vote or to get education loans. 

The report also includes policy recommendations directed to the different levels of government, from local to federal representatives. 

Check out a video from Rev. Rubén Austria, the founding Executive Director of Community Connections for Youth on the damaging effects that collateral consequences can have on youth that have gone through the adult criminal justice system.

Click here to read the report and learn more about the collateral consequences of incarcerating youth in adult criminal justice system.

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Check out the new online report by the Campaign For Youth Justice, “Collateral Consequences”, and learn more about the long-lasting damages caused by the practice of trying, sentencing and incarcerating kids as adults. http://www.campaignforyouthjustice.org/collateralconsequences/ 

CFYJ’S NEW REPORT: “Collateral Consequences” highlights the long-term ramifications of incarcerating children as adults, even far after they were released. http://www.campaignforyouthjustice.org/collateralconsequences/

Each year, approximately 95,000 youth are held in adult jails and prisons.  While locked up as adults, children often face inhumane conditions including physical and sexual abuse, prolonged solitary confinement, and insufficient health and educational resources. CFYJ’S NEW REPORT: “Collateral Consequences” on the damaging impact http://www.campaignforyouthjustice.org/collateralconsequences/

VIDEO: Check out a video from Rev. Rubén Austria, the founding Executive Director of Community Connections for Youth on the damaging effects that "Collateral Consequences can have on youth that have gone through the adult criminal justice system. https://www.youtube.com/watch?v=iLCGAf-Uevk#YouthJustice

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.@justiceforyouth has new report about the long-term damages done to kids incarcerated as adults http://www.campaignforyouthjustice.org/collateralconsequences/

Incarcerating kids as adults is harmful & will hurt them their whole life. Check out a new report http://www.campaignforyouthjustice.org/collateralconsequences/

VIDEO: @rubenaustria of @CC4Y on collateral consequences of having youth in the adult criminal justice system https://www.youtube.com/watch?v=iLCGAf-Uevk

On February 1st the Louisiana legislature released a report supporting the need for, and impact of, raising the age of juvenile court jurisdiction. This report was commissioned by the legislature through Resolution No. 73 in 2015 and completed by The Institute for Public Health and Justice  at the Louisiana State University’s Health Science Center. The ultimate recommendation of this comprehensive report is that Louisiana should raise the age of juvenile court jurisdiction to include 17 year old offenders. Louisiana remains one of nine states that fails to recognize that youth under 17 year olds should not be prosecuted automatically in the adult criminal justice system.
The three big findings that the report made are:
1) 17 year olds are developmentally different than adults and should be treated as such;
2) the Louisiana juvenile justice system has the capacity to manage and rehabilitate added 17 year old youth;
3) other state have found that raise the age impact has had substantially less of an impact on their systems than was predicted and Louisiana should be the same and may even have substantial fiscal savings

It further recommends that a five year comprehensive plan be developed to address a variety of issues specific to youth such as transition, community based interventions, services while in detention, and other ways to ensure that youth are rehabilitated and do not recidivate.

The report notes that the state of Louisiana has not reviewed the age of juvenile jurisdiction in more than 100 years. Due to the growth of the law, social science, and brain science it is important for Louisiana to raise the age to ensure that its juvenile justice system is not stuck in the past. “Louisiana’s successful juvenile justice reforms, and an overall decline in juvenile crime reflective of national trends, have opened up system capacity for raising the age that may not have previously existed.”
The report highlights current brain science on adolescents and specifically how 17 year olds are unable to consistently reason and make responsible decisions. Due to this increased awareness of how adolescent brains work, the courts, including the Supreme Court, have recognized that treating 17 year olds the same as adults is not appropriate. The data shows that 17 year olds are capable of change when rehabilitated and generally stop reoffending. Most delinquent behavior does not follow the youth into adulthood.

The effects of the adult system on youths are troubling because rates of juvenile recidivism rise when placed in adult facilities. Additionally, youth are subject to a variety of harms both physical and psychological when they are subject to adult courts and facilities. To address the issue of placing 17 year olds in adult facilities the report examined the capacity of existing juvenile facilities. The report found that on any given day only facilities are only 56% filled, “…it can be estimated that 258 beds could be available on any given day in Louisiana’s juvenile detention facilities.” The addition of 17 year olds would not cause the current facilities to be overburdened.
The Louisiana Center for Children’s Rights (LCCR) has been a vital advocate for Raise the Age Reform and helping shepherd a bill into law. Raise the Age Louisiana Act, SB 324 will ensure that 17 year olds are under the jurisdiction of the juvenile courts. LCCR has reported that, “polling by LSU shows that 66% of Louisianans – a majority of both parties – believe that 17-year-olds should be included in the juvenile justice system.” On March 15, Louisiana Governor John Bel Edwards has announced that he supports SB 324 and raising the age. Widespread support from Louisianans will ensure that legislators know that their constituencies want what is best both for communities and for adolescents, to raise the age.

For more information on how to get involved in Louisiana's reform efforts, follow us on Facebook and check out the links below:

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Full Text of SB 324

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Written by: CFYJ policy intern Nils Franco

In five states, legislators and governors alike are calling for new action this year to allow 16- and 17-year-olds back into the juvenile justice system, where youth can receive much-needed, age-appropriate rehabilitative or educational services. In two more states, lawmakers recently proposed including young adults under 21 in the juvenile justice system.

In nine states across the country, the juvenile justice system has an unusual upper age limit – that is, the juvenile system entirely excludes youth after their 17th or even 16th birthday. No matter the crime an older child is accused of committing in these states, the state handles the case entirely in the adult justice system.

These counterproductive state-based policy changes occurred in the late 1990’s, and reform took root just a few years ago. Five states have raised the age of juvenile jurisdiction to cover all ages under 18 in seven years. Connecticut started the trend in 2009, and Mississippi, Massachusetts, Illinois, and New Hampshire followed in 2010, 2012, 2013, and 2014, respectively. This year, with a strong basis for action, so-called “Raise the Age” reform seems to be spreading quickly.

Lawmakers in five of the remaining nine states – Louisiana, Wisconsin, New York, Michigan, and South Carolina – have proposed legislation to bring 16- and 17-year-olds back under the jurisdiction of the juvenile justice system.

In Connecticut, the same governor who oversaw the state’s 2009 Raise the Age reform now calls to further expand juvenile jurisdiction up until a young adult’s 21st birthday. In Illinois, which also implemented Raise the Age reform, a four-committee hearing on raising the age further to 21 prompted Rep. Laura Fine to sponsor one bill to bring misdemeanor cases for young adults under age 21 to juvenile court, and another to bring all cases for adults under age 21 to the juvenile system.

After Louisiana Senator JP Morrell introduced Raise the Age legislation (SB 322) last week, Governor Edwards and Louisiana Chief Justice Johnson announced their support for the bill. Edwards included the bill in his 2016 legislative agenda, and Johnson argued favorably for the bill in her State of the Judiciary address. This reform comes after years of advocacy from a coalition of state-based groups, and after the state’s legislature asked Louisiana State University to study the problem last year. That report published in February and found that reform “would benefit public safety, promote youth rehabilitation, and create long-term savings.”

Governor Cuomo of New York (where juvenile jurisdiction ends after a youth’s 16th birthday) proposed Raise the Age language in his budget proposal and listed raising the age among his State of the State priorities for the coming year. Jennifer March, executive director of the Citizen’s Commission for Children of New York, hailed the governor’s advocacy, noting the state’s age-inappropriate jurisdictional age limit “increases recidivism and reduces the chance for youth to turn their lives around. We can and must do better for our youth and our communities.”

Reform also made its way to South Carolina, where Senate Bill 916, introduced by Democratic Senator Gerald Malloy, will raise the age to 18 and expand the rights of youth to have their case reviewed. That bill was recently referred to a subcommittee chaired by Malloy, who in February discussed past work to separate minors from adults in adult facilities. “We just have to keep changing minds,” Malloy remarked at a panel event.

Missouri’s legislature will also consider Raise the Age legislation among five other bills in both the state house and state senate. The Raise the Age bill, HB 1812, was introduced by Republican representative Ron Hicks. Hicks also successfully passed Jonathan’s Law, another CFYJ-supported bill, unanimously in the 2013 House session.

In Michigan, an impressive 20 bills introduced in this session of the House of Representatives would reform the transfer of youth to the adult criminal justice system. Taking a piecemeal approach, eight of these bills would raise the age of juvenile jurisdiction in the state from youths’ 17th birthday to their 18th birthday.

The editorial board of The Detroit News describes the bills as “an important step in the quest to reform Michigan’s criminal justice system.” Noting that Michigan Governor Rick Snyder has not yet endorsed the package, the board reminds readers that “what Michigan has been doing in terms of juvenile justice is not working.” A similar editorial from the Battle Creek Enquirer calls Raise the Age “a rare issue that can unite Republican and Democratic lawmakers.”

Across Lake Michigan, Wisconsin legislators moved this year to capitalize on that rare bipartisan momentum, introducing bicameral legislation to stop sending first-time, nonviolent 17-year-old offenders automatically to the adult justice system.

This year’s reform opportunities offer states a unique ability to limit children’s needless exposure to trauma, abuse, and criminality in adult prisons and jails. The juvenile justice system offers youth the resources needed to overcome traumatic experiences and rehabilitate after committing an offense. 

Children have a particularly strong psychological capacity to learn from past decisions, if the opportunity is allowed. Creating more childhood trauma in a prison setting will do the opposite. Raise the Age legislation is therefore common sense: children cannot be funneled into the adult criminal justice system without long-term consequences to the youth, their communities, and to public safety.

Meanwhile, two remaining states – North Carolina, and Texas – are likely to introduce reforms in upcoming legislative sessions, especially as local organizations continue to underscore the unjust and counterproductive effects of nonstandard jurisdictional age limits.

On the other hand, Georgia’s legislature and governor have not yet acted or expressed interest in moving toward reform. In contrast with the leadership shown across the country by other states, Georgia’s leaders stand out in their inaction.

This article was updated on March 22nd to include new actions from Louisiana's legislature, governor, and chief justice.

On February 23^rd the National Council of Juvenile and Family Court Judges brought together a panel of judges to speak about the judge’s role in creating communities of healing. Judge Karen Adam shared about the ACEs (Adverse Childhood Experiences) Study, which looks at childhood trauma indicators. The ACE Study have been able to link the number of childhood traumas a person experiences to risky and rule-breaking behavior and serious health problems.  By acknowledging trauma and engaging in training around creating trauma-responsive court rooms, judges can better sever juveniles and their families.

Judge Deborah Schumacher spoke about the unique issues concerning children who receive special education services or have special needs and their interactions with the court. Judge Schumacher discussed the challenges of placing children who have come into contact with the juvenile justice system but also have specific needs that cannot necessarily be met in typical rehabilitative settings. Noting that students with special-needs associate schooling with failure, Schumacher stressed that punishing these children for frustration just further compounds the problem. Judges must think creatively to effectively ensure that children with special education are rehabilitated and can function in the community.

Judge Richard Blake spoke about his experience as a tribal court judge. Judge Blake has focused on raising the graduation rate at the local high school by ensuring that the students who he sees in his court are in school. Juveniles’ probation officers focus on student attendance, grades, and behavior. Judge Blake spoke with students about the reasons that they were not attending or succeeding in school, and he worked with the school to create a better environment for all students.

Judge Darlene Byrne stressed the importance of a, “do no harm” mindset in working with juveniles in the court. Judge Byrne approaches every case differently depending on the needs of the child. Cases with dually involved youth require unique services and rehabilitation in order to ensure that courts address rather than ignore underlying trauma. Without addressing a child’s trauma, he or she will struggle to successfully exit the justice system.

The panel all agreed that juvenile judges can and should be a leading force in reforming and rethinking the way that juveniles are treated in the justice system. The ACEs study connects the central role of trauma on both heath and behavior. Considering trauma as a cause of delinquent behavior must be a consideration of all of those who are involved with children in the justice system, including prosecutors, judges, defense, corrections officers, service providers, and families. 

Reforming Florida’s direct file system will improve public safety outcomes and help sustainably balance the budget, according to a new policy brief entitled “No Place for A Child.” Prosecutors in Florida transfer more youth to the adult criminal justice system, without any checks or balances, than in any other state in the country.

The new research came out the same morning the Florida senate moved forward on direct file reform legislation. On Thursday, Senate Bill 314 earned a second unanimous vote of support from the Florida Senate Appropriations Subcommittee on Criminal and Civil Justice. The Republican subcommittee chairman thanked the researchers for their work after hearing from Floridian judges and advocates who support the bill.

The authors of the brief, researchers from the free market–oriented James Madison Institute and the Florida State University Project on Accountable Justice, gathered FY2010 data from the Florida Department of Juvenile Justice (DJJ) and Department of Corrections (DOC) to provide unique insights into the fiscal and social impact of reining in direct file. Their research complements a recent website with specific stories of direct-file Florida youth.

Direct file – a unilateral transfer performed by prosecutors before any hearing or due process can occur – accounts for 98% of the state’s cases of minors in the adult system, which remarkably totaled more than 10,000 cases in the past five years. Ending or reforming the practice of direct file would allow youths’ cases to be more fairly considered by a judge for transfer, and would greatly reduce the total number of transferred youth in the state.

This decrease of youth in the adult system would move more children back to a system that focuses on rehabilitation, which is especially appropriate because both DOC and DJJ data suggest that direct-filed youth would pose a low risk in the juvenile justice system. In fact, the researchers use government risk assessment tools and find that if direct-filed youth were processed in the juvenile justice system, fully 87% would not be placed in secure detention.

Moreover, the policy brief finds that keeping direct file–eligible youth in the age-appropriate juvenile justice system would save the state $12.6 million in ten years, with annual savings accumulating annually just four years after the reform. The authors point out that placing youth in the adult system demonstrably harms rehabilitation; in their words, “the adult system sets children up to fail.” Nonetheless, another decade of the status quo would cost Floridian taxpayers more than $175 million dollars.

Similar to adults’ cases, almost all of children’s cases in Florida’s adult system end in plea bargains, the brief finds. When a plea deal or a sentencing decision leads to probation for youth, which occurred in 72% of children’s cases in FY2010, 53% of youth on probation ended up in prison, either for a felony (70%), or for a probation violation (30%).

Without access to the rehabilitative services offered by the juvenile system, the authors note, youth have no developmentally-appropriate guidance to reform their behavior. Poor outcomes with adult-system probation reflects near-certain causative evidence that placing children in the adult system significantly raises transferred youths’ recidivism rates.

The researchers call for reform of direct file after concluding that the practice negatively affects public safety, children’s mental health and potential to reform, and the state’s budget. Finding a way to offer more due process and rehabilitative opportunities for children, they say, will be “unambiguously positive” for the state, its government, and its young adults.

A direct link to the research is available here.

You can read more about the lives affected by direct file practices in Florida by visiting www.noplaceforachild.com.

Brittany Harwell, CFYJ Policy Fellow

Direct File occurs when a state has given the prosecutor power to file charges against a juvenile directly in adult criminal court. When a prosecutor exercises their discretion by choosing to file directly to adult criminal court they effectively override any juvenile or family court jurisdiction over a case. Direct file allows the prosecutor to hold all of the power in determining where to bring charges and what type of sentence a youth may receive if convicted.

Allowing the prosecutor to direct file is problematic because many prosecutors want to go for the most severe punishment and do not fully take into account important considerations for unique to each youth in the same way that a judge who could allow a transfer would consider.This lack of individual consideration is exacerbated by, “…wide variation among the States regarding criteria for direct file treatment, with some emphasizing offense categories, others the age of the juvenile involved, and still others the extent and seriousness of the juvenile’s offending history.” 

A majority of states do not allow their prosecutors direct file capabilities. This does not mean that a youth cannot be transferred to an adult court but rather that a judge considers several factors before allowing a transfer requested by the prosecutor. Youth can also be tried in adult criminal court through mandatory transfer. Mandatory transfer is not the same as direct file, mandatory transfer occurs when certain crimes have been deemed by statute to require a juvenile to be tried in adult court.

Some states that previously had a direct file systems chose to discontinue the practice because, “not only does direct file omit a disinterested arbiter for the child’s best interests, it plunges youngsters — and increasingly those charged with nonviolent crimes — into the much more punitive adult system.”
Additionally, it has been found that direct file has had little effect on violent juvenile crime. If these direct file capabilities of the prosecutor fail to affect juvenile crime then why are they needed in the first place?

Currently, 16 states still allow direct file while the rest of the country has moved away from the practice. The states that continue to allow prosecutors to direct file youth into adult court are: CA, MI, DC, FL, LA, GA, PA, MT, NE, OK, VT, WY, VA, AZ, AK, CO. Of the state that currently allow direct transfer both California and Florida lawmakers are considering a move towards a more equitable juvenile justice system by ending direct file. California has made progress towards creating a more just juvenile justice system over the last few years, but moving away from direct file ability will ensure that judges, not prosecutors are making transfer decisions for youth after a consideration of several different factors. In 2014, 393 juveniles were transferred to adult court in California and 1607 juveniles were transferred to adult court in Florida. These numbers include both judicial waiver and prosecutorial direct file but. A recent study from Human Rights Watch found at 98 percent of the juveniles who end up in adult court are there do to “direct file” of a prosecutor.This means that over 1500 children in one year alone would benefit from direct file reform in Florida.