By Sarah Krantz, Esq.
According to the Campaign for Youth Justice, 250,000 youth are tried, sentenced, or incarcerated as adults each year in the United States. While charging youths under the age of 18 may seem counterintuitive, the practice is fairly common. There is currently one state—North Carolina—where juveniles as young as 16 are automatically charged as adults. There are also five states—Georgia, Michigan, Missouri, Texas, and Wisconsin—that charge all 17-year-olds as adults. To make policies uniform across the country, the Raise the Age movement—amending current state legislation that to ensure that most youth are no longer tried in juvenile delinquency proceedings, rather than adult criminal court was— was born.
Current State of the Law
In the mid-1990s, there were 14 states that designated the age of criminal responsibility below 18. In the 10 years that followed, half of those states abolished this practice. Since 2007, Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire, and South Carolina have all passed laws to raise the age, with exceptions for serious crimes.
In recent years, the raise the age movement has been gathering momentum in certain states, such Missouri and Texas, where the age of criminal responsibility is 17. This year, a bill was introduced with bipartisan sponsors in the North Carolina House of Representatives to raise the age from 16 to 18. North Carolina Governor Ray Cooper has expressed his support for the bill and has issued a budget that included the initial funding necessary for implementation.
Yesterday, a bill that was passed in New York that allows 16- and 17-year-olds charged with misdemeanors to have their cases handled in Family Court. However, there are still concerns over the actual wording of the bill and how 16- and 17-year-olds will be treated under the new law. If arrested for a felony, the case would go to a new section of criminal court called Youth Court, where the case would be heard in front of judges trained in family law. If a 16- or 17-year-old is charged with a violent felony, the offender could be diverted from the Youth Court if he or she passes a three-part test that takes into consideration whether the victim sustained significant physical injury, whether the offender used a weapon during the commission of the crime, and whether the offender engaged in criminal sexual conduct. The new law also changes the rules for detention of juveniles by barring offenders under the age of 17 from being held in county jails.
Why Raise the Age?
In Reforming Juvenile Justice: A Developmental Approach, the National Research Council of the National Academy of Sciences promoted the “long-standing legal tradition of holding juveniles accountable in a separate juvenile justice system.” A juvenile justice system is developmentally appropriate and its resources are being utilized efficiently and effectively when it is able to divert as many young people as possible, while also addressing mental health concerns, reducing pretrial detention stays, as well as stays in post-adjudication facilities. By raising the age and decreasing the number of juveniles in adult facilities, developmentally appropriate juvenile justice systems are better able to comply with federal law that protects inmates from sexual violence, especially youth, which is the cohort most likely to be sexually victimized at adult facilities. Moreover, states that have raised the age have been able to better manage costs, reduce incarceration rates, utilize funding for more effective diversionary approaches, and protect public safety.
When youths go through the adult criminal justice system, they are often unable to access resources and programs best suited for rehabilitation. Conversely, when youths go through the juvenile justice system, they are better prepared to acclimate back into their communities and also less likely to reoffend. In addition, the safety of these juveniles are improved because they will be kept out of adult facilities—where they are often targets of abuse—and be placed in a juvenile facility among their peers.
While criminal justice is generally governed by state law, some reformers have argued that age disparities between states is inherently unfair; while a 16-year-old in one state may be treated in juvenile court, a 16-year-old in another state may be charged as an adult, even though he or she committed the same offense. Moreover, charging juveniles as adults disproportionately impacts people of color. When states raise the age, “the vast majority of youth who benefit from this improved system are young people of color.”
Roadmap to Raise the Age – Strategy 1: Expanding Diversionary Programs
When diversion is implemented as an alternative to arrest, states save money and juveniles have better outcomes. A study conducted in Florida, for example, found that taxpayers could save between $1,400 and $4,600 for every juvenile that is placed in a diversionary program. Juveniles who are formally arrested are more likely to recidivate, have fewer opportunities for education and job success as adults, and are more likely to be placed outside the home.
There are two main types of diversion: pre-arrest and pre-adjudication. Pre-arrest diversion, such as the issuance of a juvenile civil citation, is utilized to avoid formal arrest. Pre-adjudication diversion occurs after arrest and diverts the juvenile from the traditional justice system process to avoid a formal conviction on the juvenile’s record. Community accountability courts, restorative justice, and school-based conflict resolution programs are examples of pre-adjudication diversion.
Many states have implemented diversionary programs as a way of keeping juveniles from overwhelming the juvenile justice system. By making diversion an important part of a juvenile justice system, states can increase the system’s effectiveness and provide juveniles with more opportunities for retribution with decreased risk of recidivism.
Roadmap to Raise the Age – Step 2: Effective Probation and Aftercare
Probation and aftercare should be aimed at helping a juvenile to change behaviors with developmentally appropriate techniques. Probation and aftercare are most effective when it utilizes a therapeutic approach that focuses on changing behavior by focusing on interventions and strategies to prevent further delinquency. Probation and aftercare programs that are centered on paying fines, curfews, and community supervision are not as effective.
When states make these changes, they see a difference with their juveniles. In Louisiana, for example, some parishes have worked to actively engage youth in its programs, improved how screening tools and assessments are used, and created more strategic plans for its programs. Before making these changes, Jefferson Parish, for instance, had a recidivism rate of 53 percent for youth on probation in 2009; after changes were implemented, the rate dropped to 20 percent in 2002. Between 2009 and 2012, New York City moved towards an improved juvenile probation approach and, as a result, experienced a 45-percent decrease in violation of probation (VOP) rates. After changing policy to ensure that juvenile probationers were enrolled in rehabilitative programs, Texas saw a reduction in recidivism by 12 percent between 2005 and 2012.
All of these small steps demonstrate that the system is working better and it saves money. VOPs are not only harmful to juveniles, but they also add additional cases to an already overburdened judicial system and can lead to expensive incarceration fees or group home costs when sanctions are imposed.
Roadmap to Raise the Age – Step 3: Addressing Mental Health
When appropriate, providing mental health services and treatment for juveniles can be an effective approach to juvenile delinquency. If the juvenile justice system fails to provide necessary mental health care, the consequences can be severe and have long-term effects. Mental health treatment can be provided inside youth facilities or to those on probation and/or aftercare by public health systems within the community. When provided in the community, rather than in correctional facilities, the services are more effective and state or federal funding can be spent more cost-effectively.
For example, Massachusetts is one of a handful of states that provides access to mental health workers for guidance and evaluation inside its statewide juvenile court clinic system. Texas, a state that has not raised the age, has seen a change in some counties that have set up a “system of care” model that encourages the reduction of juveniles in the justice system by providing services, including mental health treatment, to those in need. Addressing mental health concerns early and effectively helps keep kids out of the system and ensures that raise-the-age state’s juvenile systems are not overburdened.
Roadmap to Raise the Age – Step 4: Reduction of Pretrial Detention
It is reasonable for the court system to expect juvenile defendants to show up for hearings, but detaining them in a juvenile facility is not the best way. Pretrial detention should only be used with a juvenile that is a real flight risk or community threat. Releasing more juveniles after arrest will save money, spare youths the traumatic experience of detention, and reduce recidivism.
When a juvenile spends even a few nights in a detention center prior to trial or release, the consequences can be devastating. A study conducted in Florida found that juveniles are three times as likely to end up in a correctional facility if they are detained pretrial compared with those who were released to their homes/community pending trial. Another study conducted by the Arnold Foundation in 2013 found that “adults were four times more likely to be sentenced to jail or three times more likely to be prison” if they had been incarcerated for their entire pretrial time compared to those released.
Many raise-the-age states have been able to reduce the use of juvenile pretrial detention, which insures that youths get the services that they need at home. Services are provided to juveniles based on screenings that are conducted following the arrest. There are also supports in place to ensure that juveniles are successful at home. Implementing these changes allowed Massachusetts to experience a 54-percent reduction of juveniles in pretrial detention between 2007 and 2014. When the state rose the age of criminal liability, there was an even greater reduction in pretrial detention for juveniles. In New York, the use of pretrial detention of juveniles has been reduced by 38 percent statewide. By reducing its reliance on detention and confinement, New York has already taken steps to make room for raise-the-age reform, which also makes the system more effective and able to handle its juveniles.
Roadmap to Raise the Age – Step 5: Increasing the Use of Community-Based Approaches
These reforms allow juvenile justice systems to increase their reliance on community-based services that provide assistance throughout the legal process. The effect is a decrease in juvenile incarceration, the development of options to reduce reliance on confinement, and the saving of taxpayer money.
States that have raised the age have expanded the use of community-based approaches using a common set of strategies, including the development of fiscal incentives to encourage local communities to provide better services, the reduction of a youth’s presence in the system, the prohibition of confinement for certain behaviors, and the reallocation of funds by closing juvenile facilities that are no longer necessary.
When Mississippi rose the age in 2010, the state was able to reduce its reliance on confinement by implementing legislation that would create more sentencing options for courts. Over the last decade, Michigan has improved its community-based approaches and reduced confinement to help its juvenile justice system be able to handle older youth. During that same period of time, New York, Missouri, Texas, and North Carolina have also developed approaches to reduce reliance on incarceration and detention, which makes these states better prepared to absorb older youth into their juvenile justice systems should they pass raise the age legislation. Reducing the reliance on confinement will better serve juveniles and help states that have not yet raised the age prepare for an increase in inmates at juvenile facilities.
Roadmap to Raise the Age – Step 6: Safety under the Prison Rape Elimination Act (PREA)
Raising the age will increase safety by making compliance with PREA easier. PREA was enacted by the United States Congress in 2003 to protect inmates from prison rape, and to provide for the analysis of prison rape in federal, state, and local facilities. A person under the age of 18 incarcerated an adult facility must maintain “sight and sound separation” in the facility from adults; avoid contact with adults in shared spaces, bathrooms, and sleeping areas; avoid “isolation placement by the agency,” and be given chances to obtain exercise, education, and employment services. When a state does not comply with PREA, it can lose five percent of its federal grants. Notwithstanding, many states that place 16- and17-year-olds in adult facilities still do not comply due to a lack of finances.
When PREA was being drafted, Congress found that juveniles in adult prisons were most at risk for sexual assault and 50 percent more likely to be attacked with a weapon by an adult inmate. Raising the age allows the relocating juveniles from adult facilities into facilities that only house other juveniles or, when appropriate, returning them to the community. For example, an analysis estimated that New Hampshire could avoid spending $10 million to renovate an adult facility by raising the age and allowing 17-year-olds to be placed in juvenile justice facilities.
Roadmap to Raise the Age: Step 7- Serve Youth More Effectively
When a system uses better tools to identify troubled youth, it can prevent juvenile delinquency and save money. Effective tools that are used in the juvenile justice system include:
- Risk assessments that determine a juvenile’s risk if he or she continues on the path to delinquency. The juvenile is placed on a scale of low-to-high to help develop a plan and response.
- Needs assessments that evaluate a juvenile’s social, behavioral, and criminogenic needs. Treatment is then developed to help steer the juvenile away from further delinquency.
- Structured decision making (SDM), which provides juveniles with an assessment score that can be given to decision-makers in the juvenile justice system to help determine the best way to foster rehabilitation.
Such tools have been successful in states that have already raised the age. For example, two years before passing raise the age legislation, Connecticut, created clinical coordinator positions to identify troubled youth and create rehabilitation plans. The result was an estimated $450,000 a year in savings by reducing the length of time that juveniles stay in detention. Managing a system’s resources and more effectively serving juveniles not only helps a system run more smoothly, but it also saves money and benefits the juveniles by providing them with better outcomes.
Costs Associated with Raising the Age
Before implementing raise-the-age reforms, many state legislators were concerned that the associated costs would be detrimental to taxpayers; these costs, however, these costs never materialized. This begs the question: why are costs much lower than predicted?
To illustrate this phenomenon, after implementing raise-the-age reforms, Massachusetts spent 37 percent less than its estimated expense, which included funding for more than 30 new probation officers, eight new judges, additional clinicians, 197 new beds, and 14 new programs—costing an additional $24.57 million per year. A 2016 review reported that, instead of needing more beds, Massachusetts actually closed a 15-bed secure program for girls due to lack of need. In New Hampshire, policymakers voiced concerns that raising the age for 17-year-olds would cost the justice system $5.3 million; after implementation, raise-the-age reforms cost the state no additional money.
While explanations for the discrepancies between cost estimates and actual costs vary from state to state, there are some reasons that may explain this phenomenon:
- Governments, legislators, and policymakers are not adequate predictors of how much something will end up costing. Estimates are often inaccurate because additional costs are added that are not needed.
- There were no effective cost-benefit analyses conducted to compare how much a state would save when the reforms were implemented.
- Juvenile crime has reduced to its lowest rate in two decades. Violent crime is down 3.1 percent has dropped almost 50 percent in the past 10 years.
- When states estimated costs, they did not account for how much money would be saved in switching from a confinement-based system to a community-based/rehabilitative system.
Outcomes in States That Have Raised the Age
Raise-the-age states have also experienced good public safety outcomes due to new more developmentally appropriate policies. According to the Federal Bureau of Investigation’s Uniform Crime Report (UCR), between 2005 and 2015—when Connecticut, Illinois, and Massachusetts shifted to a more developmentally appropriate juvenile justice approach—juvenile property crime and violent crimes fell in these states and nationally. Since Massachusetts raised the age in 2013, the state has experienced no significant increase in the amount of youth that are charged in adult court. After Illinois raised the age, the state saw no increase in the number of youths processed in adult system.
States that have raised the age have also reduced the amount of juveniles that are confined by over 10 percent of the national average. Massachusetts saw a 64-percent decline in the amount of juveniles incarcerated compared to the 39-percent decline nationwide. Other states that outperformed the national average between 2006 and 2013 include Michigan, New Hampshire, New York, North Carolina, Texas, and Wisconsin. In other words, “the five biggest states that are close to raising the age have already reduced the number of young people in the deepest end of their justice systems, potentially freeing up some capacity to serve new populations, if necessary.”
When raise-the-age reforms are implemented, public safety is improved and taxpayers save money. By keeping juveniles out of adult prisons, the system is safeguarding itself from increased rates of crime from those juveniles. The Justice Policy has provided a clear roadmap for states to follow and many of the states that have raise-the-age legislation on the horizon have already taken many of the steps that will prepare them for the transition. Although the Justice Policy believes that Georgia, Michigan, Missouri, New York, North Carolina, Texas, and Wisconsin are ready for implementation, it is clear that there are some policymakers and legislators that are wary of the change. The best advice that can be given to them is to look at the successes in states that have already passed this legislation and to make the decision that is best for the juveniles in its state by raising the age.
 Paul Ashton, Jeremy Kittredge, Olivia Martinez, Marc Schindler, Jamille White, Keith Wallington, and Jason Ziedenberg, Raise the Age: Shifting to a Safer and More Effective Juvenile Justice System, Justice Policy Institute, at 6 (March 2017). Available at http://www.justicepolicy.org/uploads/justicepolicy/documents/raisetheage.fullreport.pdf.
 Joe Gamm, NC Gov. Ray Cooper Backs Raising Juvenile Age, News & Record (March 11, 2017). Available at http://www.greensboro.com/news/crime/nc-gov-roy-cooper-backs-raising-juvenile-age/article_4f36c32a-bc85-573f-b302-457701aa460d.html.
 Jessie McKinley, ‘Raise the Age’ Now Law in New York, Is Still a Subject of Debate, New York Times, (April 10, 2017). Accessed at https://www.nytimes.com/2017/04/10/nyregion/raise-the-age-new-york.html?_r=0.
 Richard J. Bonnie, Robert L. Johnson, Betty M. Chemers, and Julie A. Schuck, Reforming Juvenile Justice: A Developmental Approach, National Research Council of the National Academies, at 133. Available at http://www.njjn.org/uploads/digital-library/Reforming_JuvJustice_NationalAcademySciences.pdf.
 Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult System: A Report on Recommendations of the Task Force on Community Preventive Services, Morbidity and Mortality Weekly Report (2007) at 6. Available at https://www.cdc.gov/mmwr/pdf/rr/rr5609.pdf.
 Center for $mart Justice, Expansion of Civil Citation Programs Statewide Would Save Taxpayers Tens of Millions of Dollars and Improve Public Safety, FloridaTaxWatch (2011). Available at http://www.floridataxwatch.org/resources/pdf/04152011civilcitation.pdf.
 Id. at 18.
 Id. at 21.
 Id. at 21-22.
 James Bonta, Tanya Rugge, Terri-Lynne Scott, Guy Bourgon, and Annie K. Yessine, Exploring the Black Box of Community Supervision, 47(3) Journal of Offender Rehabilitation 248 (2008). Available at http://www.pbpp.pa.gov/research_statistics/Documents/27%20Exploring%20the%20Black%20Box%20of%20Community%20Supervision%20Bonta.pdf.
 John S. Ryals, Jr. and Stephen Phillippi, Effective Tools for Local/State Probation Offices, Innovation Brief (December 2014) at 3. Available at http://www.modelsforchange.net/publications/668/Innovation_Brief_Effective_Tools_for_LocalState_Probation_Officers.pdf.
 Tony Fabelo, Nancy Arrigona, Michael D. Thompson, Austin Clemens, and Miner P. Marchbanks III, Closer to Home: An Analysis of State and Local Impact of the Texas Juvenile Justice Reforms, Council of State Governments Justice Center (2015). Available at https://csgjusticecenter.org/wp-content/uploads/2015/01/texas-JJ-reform-closer-to-home.pdf.
 Beth A. Stroul and Robert M. Friedman, Effective Strategies for Expanding the System of Care Approach: A Report on the Study of Stategies for Expanding the System of Care, (September 2011). Available at https://gucchdtacenter.georgetown.edu/publications/SOC%20Expansion%20Study%20Report%20Final.pdf.
 Richard Mendel, Beyond Detention: System Transformation Through Juvenile Detention Reform (Baltimore, MD: The Annie E. Case Foundation, 2007). Available at http://www.aecf.org/m/resourcedoc/AECF-BeyondDetention-2007.pdf.
 Laura and John Arnold Foundation, Pretrial Criminal Justice Research, (November 2013) at 2. Available at http://www.arnoldfoundation.org/wp-content/uploads/2014/02/LJAF-Pretrial-CJ-Research-brief_FNL.pdf.
 New York State Division of Criminal Justice Services, Juvenile Justice System Trends, JJAG Meeting (June 2016). Available at http://www.criminaljustice.ny.gov/crimnet/ojsa/jj-reports/JJAG-Presentation-June-2016.pdf.
 Mississippi Code Ann. § 43-21-151; 105; 157; 159; 401; 555; 605.
 National Prison Rape Elimination Commission Report, National Prison Rape Elimination Commission (2009). Available at http://www.justicepolicy.org/uploads/justicepolicy/documents/raisetheage.fullreport.pdf.
 Marc Levin, New Hampshire Ripe for Raising the Age, Josiah Bartlett Center for Public Policy (2014). Available at http://www.jbartlett.org/wp-content/uploads/2014/04/NH-Ripe-for-Raising-the-Age.pdf.
 Gina M. Vincent, Laura S. Guy, and Thomas Grisso, Risk Assessment in Juvenile Justice: A Guidebook for Implementation, MacArthur Foundation (2012) at 5-6. Available at http://njjn.org/uploads/digital-library/Risk_Assessment_in_Juvenile_Justice_A_Guidebook_for_Implementation.pdf.
 Department of Youth Rehabilitation Services Office of Research and Quality Assurance, DYRS 2011 Annual Performance Report, Department of Youth Rehabilitation Services, (2011) at 56. https://dyrs.dc.gov/sites/default/files/dc/sites/dyrs/publication/attachments/2011%20DYRS%20Annual%20Performance%20Report.pdf.
 Id. at 41.
 Id. at 46.
 Shay Bilchik and Marc Schindler, An Effective Approach to Youth Justice will Help Enhance Public Safety, The Huffington Post, Oct. 4, 2016. Available at http://www.huffingtonpost.com/entry/57f41a1ae4b0ab1116a54b1c?timestamp=1475617015995
 Id. at 53 citing U.S. Department of Justice, “Table 69: Crime in the United States 2005,” Federal Bureau of Investigations Annual UCR data, Available at https://www2.fbi.gov/ucr/05cius/data/table_69.html. See U.S. Department of Justice, “Table 69: Crime in the United States 2015,” Federal Bureau of Investigations Annual UCR data, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-69. All forthcoming analysis of state comparison of juvenile arrest data was derived from the 2005 and 2015 FBI Uniform Crime Report.
 Id. at 53.
 Raising the Age of Juvenile Court Jurisdiction: The Future of 17-Year-Olds in Illinois’ Justice System, Illinois Juvenile Justice Commission (2013) at 6. Available at http://ijjc.illinois.gov/sites/ijjc.illinois.gov/files/assets/IJJC%20-%20Raising%20the%20Age%20Report.pdf.
 Placement Status by State, Easy Access to the Census of Juveniles in Residential Placement: 1997 – 2013 (2006). Available at https://www.ojjdp.gov/ojstatbb/ezacjrp/asp/State_Adj.asp.