Kids Are Kids: Let's Treat Them That Way

April 3, 2017

By Patricia Soung

On March 20, 2017, Los Angeles-area Senators Holly J. Mitchell and Ricardo Lara introduced a package of eight criminal justice reform bills – four of those rest on the fundamental premise that children are developmentally different than adults. Science, decisions by the US Supreme Court and lower courts, and common sense and experience have all repeatedly reaffirmed that youth are cognitively and psychosocially vulnerable and disadvantaged in criminal justice processes; and the law should treat them as such.

Children's Defense Fund-California is supporting each of the four youth justice bills:

  • As lead sponsor of SB 439 – which would exclude children age 11 and younger from juvenile court prosecution.
  • As a co-sponsors of SB 394 – which would effectively eliminate all life without parole sentences for youth.
  • As a co-sponsors of SB 395 – which would provide youth under the age of 18 with an attorney to consult before they waive their constitutional rights in custodial interrogations.
  • As a supporter of SB 190 – which would end the harmful, unlawful and costly assessment and collection of administrative fees against families with youth in the juvenile justice system.

Each bill corrects laws and practices that harm youth and their families in the long run, and aims to better protect their rights and well-being through alternative measures that emphasize prevention, rehabilitation and maintaining family cohesion. All four bills have passed out of Senate Public Safety Committee and will head next to the Appropriations Committee.

On April 4, I, along with attorney Michael Harris from the National Center for Youth Law (NCYL), testified in support of SB 439 before the committee. NYCL is a co-sponsor as well as Center on Juvenile and Criminal Justice, Youth Justice Coalition and Haywood Burns Institute. For about a year, CDF-CA has worked with NCYL and interdisciplinary scholars with the University of California Consortium on Criminal Justice and Public Health to collect quantitative and qualitative data on laws governing prosecution of youth children.

Nineteen states in the United States have set minimum ages for prosecuting youth in juvenile delinquency court. Internationally, the United Nations Convention on the Rights of the Child advises that each country set a minimum age for prosecution; the Committee on the Rights of the Child recommends that the absolute minimum be 12 years old, and that countries should consider going higher. The majority of Western European countries have adopted the 12-year-old standard, and many others have set the minimum age of juvenile justice jurisdiction even higher. Professional associations get the logic – it is why the American Academy of Pediatrics, the American Bar Association, the National Academy of Sciences and the United Nations' Convention on the Rights of the Child each have recommended that states adopt minimum age reforms that conform to the science of child development.

Instead of relying on prosecution to address young children's misbehavior, the senators and supporters of SB 439 believe both public safety and children accused of violating the law are better served through alternative child-serving systems and community-based responses that rely on education, mental health treatment, welfare support and other services. They also believe that formal justice system involvement – including arrest and initial processing – can lead to negative and adverse impacts on children's health and future chances of success. In addition, the stunning racial disparity in referring and prosecuting youth under 12 calls into question how bias might operate at early on and throughout criminal justice processing. In 2015, youth of color comprised 77 percent of total referrals across California.

I know from being a defense attorney how nonsensical the prosecution of young children can look on the ground. The cases are rare, but a troubling reflection on our system. One 11-year-old child who was referred to me was facing sexual assault for touching a girl's butt at a drinking foundation at school. Another 10-year-old child was prosecuted for inappropriate sexual touching on the playground, accused by three other 10-year-old children. When I sat to interview him, his head barely came above the table and his feet dangled above the ground. After 30 minutes, his attention dissolved and he showed me animae on his phone and then put his head on the table, closed his eyes in want of a nap. It was clear to me after multiple attempts with him to reconstruct anything close to resembling a linear narrative of what happened on the playground, of his life, and of his interactions with police during the arrest and interrogation, that this boy did not fully appreciate what happened, who I was and there to do for him, or the gravity of what he was facing.

Each of these proposed bills are important to protecting our youth and families.