Thursday, January 26, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part II of II)

Read Part I here.

Transfer Rules from Juvenile to Criminal Court

Despite the establishment of more than 3,000 juvenile tribunals and an Office of the Juvenile Court by the Supreme People's Court there remains to be no unified system of juvenile courts in China. The transfer of serious cases involving juveniles to criminal courts in the US might become an issue in China if a more robust Chinese juvenile justice system arises to address the recent spate of violence among very young offenders. In the early 2000s, US juvenile judges began re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.

The 1966 US Supreme Court opinion in Kent v. United States lists eight factors that a juvenile court should consider in determining whether to transfer a case. The factors include the seriousness of the offense, whether the crime was against person or property, the juvenile’s background, and likelihood of rehabilitation. However, in the decades immediately following the Kent decision many states enacted laws to bypass these factors, allowing prosecutors—instead of judges—to decide whether to transfer juveniles. (Some states even allow for automatic transfer.) The states that allow prosecutors instead of judges to file juvenile cases in criminal court, as of the end of 2011, are listed in Chart 2.

Chart 2. States Allowing Prosecutors to File Juvenile Cases in Criminal Court.
Chart source: OJJDP
Several recent laws—many passed during the November elections—re-invigorate judges’ authority to make transfer decisions and rely on factors like those pronounced in Kent. In California, prosecutors were previously allowed to file juvenile cases directly in adult criminal court if they determined that the crime was not appropriate for the juvenile system. But in November, California voters approved Proposition 57, which eliminates direct filing and requires juvenile court judges to determine whether a juvenile will be tried as an adult. The California law also speeds up parole consideration for non-violent felons. In Nevada, new state laws provide that juvenile courts should have exclusive jurisdiction over anyone younger than 16 who is charged with serious crimes like attempted murder; previously, those youths would have been tried in criminal court.

Similar changes have also occurred in other parts of the country: at the age of 12, Paul Gingerich became the youngest person sentenced in adult court in Indiana history, sparking outrage from child welfare advocates. The outrage over Gingerich’s transfer to criminal court likely spurred legal changes that now allow Indiana judges to re-sentence juveniles previously transferred and sentenced to prison terms. With the population of juvenile girls rising, gender also might become a factor for judges to consider during transfer proceedings. As prison policy and practice were designed for adult men, juvenile girls present unique challenges to legal officials; girls in conflict with the law have historically disproportionately high rates of sexual abuse victimization, contributing to high rates of mental health problems. A recent report indicates that such girls have a high need for services but present a disproportionately low risk to the community.

Confidentiality of Juvenile Records and Court Proceedings

Reducing juvenile recidivism also relies on ensuring youthful offender’s successful reintegration into society, whether by protecting their opportunities to complete education or obtain access to employment. In achieving these goals, it is critical that judicial authorities enhance the confidentiality of court hearings and expunge juvenile court records, however the practice of these two procedures vary among American states.

Chart 3. Confidentiality of Juvenile Court Hearings, By State (2011)
Chart Source: OJJDP
The earliest American juvenile courts held public hearings, but by the 1950s, many states restricted public access and media reporting on juvenile court proceedings to prevent juvenile stigma. However in late 1980s, many juvenile courts re-opened their doors to the public amid concerns about rising juvenile crime rates (see Chart 3, above). However, some states continue to close court hearings when a defendant is below a certain age, properly recognizing that confidentiality is an even greater concern when the suspect is very young.

Chart 4: The Sealing of Juvenile Court Records, By State (2011)
Chart Source: OJJDP
Regarding juvenile record sealing, 31 states mandate that juvenile court records cannot be sealed, expunged, or deleted if the court finds that the offender has subsequently been convicted of a felony, misdemeanor, or statutorily-specified juvenile offense (see Chart 4, above). Despite these restrictions, 33 states allow record sealing or expungement in some form, and since 2012, several states have enacted laws to allow juveniles to petition for expungement of records.

Dui Hua has noted in previous collaboration with China’s courts that juvenile offenses can follow a person through life, leaving a lasting impact both on the young offender and on the broader society that collectively bears the repercussions of recidivism. Further policy changes allowing for the appropriate closing of juvenile court proceedings to the public and for juvenile record sealing could prove valuable to US and Chinese policymakers.


Recent trends in US juvenile justice recognize that American juvenile policy in the 1980s and 1990s was based on several mistaken assumptions about the nature of the adolescent brain and the effectiveness of harsh punishment against juveniles, especially those aged 16 and younger. Current Chinese juvenile court reformers would do well to avoid the same mistakes made in the US during the 1980s and 1990s.

An important first step would be to acknowledge, in light of recent advancements in adolescent neuroscience, that children are not simply small adults. As retired California Superior Court Judge Leonard Edwards writes, progressive juvenile justice reform requires expanding the role of the juvenile judge, who possesses higher quality and quantity of information relative to police or prosecutors. Hence, judges are in “the best position to determine whether a child should be prosecuted as an adult or retained in juvenile court.” Since the beginning of the 2000s, American judges have dramatically increased the implementation of non-custodial measures, helping to limit the transfer of juvenile offenders from juvenile to criminal court.

From this perspective, limiting juvenile incarceration is a “win-win” for those seeking more humane treatments for juveniles as well as for those most interested in lowering the costs of government programs. The cost effectiveness of reducing juvenile incarceration coupled with a deeper understanding of the adolescent brain and the community-based interventions that elicit favorable responses from juveniles should lead to fewer young people housed in state institutions. Conversely, if juvenile recidivism is allowed to increase, harmful effects will only be more severe as the chances of criminal behavior multiply into adulthood.

The juvenile court policies discussed here are but a small sample of a complex and extensive topic. Please investigate the links above to explore other important juvenile policy issues including: access to counsel, conditions of confinement, and status offenses like truancy—the proper handling of which are critical to the long-term reduction of crime and societal tension.

Wednesday, January 25, 2017

Juvenile Justice Trends in the US Could Provide Lessons for China’s Courts (Part I of II)

A young offender confined in the US. Image credit: Juvenile in Justice Project.
Amid high-profile reports of violence among children under the age of 14 in China, voices from several corners of Chinese society have called to lower the age of criminal responsibility. However, some Chinese legal experts remain opposed to adopting a more punitive juvenile justice regime and a look into the recent history of the US juvenile justice system supports a more cautious approach. Since 2000, legislatures throughout the United States have been scrambling to correct excessive punishments imposed upon young offenders in the 1980s and 1990s. Since 2000, several states have enhanced the authority of their juvenile courts, and by 2015, 41 states had raised to 17 the maximum age for transferring offenders to criminal court (often called “adult court”).

In China, we are seeing developments that mirror the turn the US took in the 1980s and 1990s against a rehabilitative and developmental approach to juvenile justice, likely also driven by an upsurge in media reportage of violent cases among the very young. By the mid-1990s, some experts infamously began referring to American juvenile offenders as “super-predators”; the number of incarcerated youth soared, states across the US lowered the minimum age to transfer juveniles to criminal court, imposed mandatory minimum sentences on juveniles, and even allowed for juveniles to face life without parole (which was ultimately reversed in 2012 by the US Supreme Court).

The more recent attempt in the US to reverse decades of excessive juvenile punishment could prove instructive for Chinese legal officials contemplating various reform “models” for their country’s juvenile justice tribunals. The following sections discuss three major categories of state-level court reforms designed to rein in costly and unnecessary juvenile incarceration in the US: (1) implementing non-custodial measures for juvenile offenders; (2) increasing judicial authority over the transfer of juveniles from juvenile court to criminal court; and (3) enhancing the confidentiality of juvenile records and court proceedings.

Non-Custodial Alternatives to Juvenile Incarceration

Perhaps the most important method of limiting juvenile incarceration and recidivism put forth is the implementation of non-custodial alternatives to incarceration. The recent proliferation of non-custodial measures in the US is in part the result of scientific advancements in the fields of adolescent neurology and developmental psychology that were unknown to policymakers in the 1990s. The findings indicate that the prefrontal cortex of the adolescent brain is not fully developed, inhibiting their decision-making abilities and mitigating the culpability of very young juvenile offenders. Chart 1 lists nine “Comeback States,” as identified by the National Juvenile Justice Network, which since 2001 have been particularly successful in implementing non-custodial alternatives for juveniles in response to new findings in neuroscience.

Chart 1. Changes in Juvenile Confinement in American “Comeback States” Since 2001.
“Comeback States” that have seen dramatic declines in juvenile incarceration.Source: NJJN
In these “comeback” states, scientific advancements have spurred changes aimed at rehabilitating juvenile offenders, especially those under 16, while also reducing the risk to society with lowered juvenile recidivism rates. For example, in Ohio, juvenile court judges can sentence offenders to non-custodial measures including “supervised release programs…home detention, electronic monitoring, day and evening reporting centers, and local treatment programs.” In Connecticut, a 2004 law, requires officials to create a continuum of community-based services, including substance abuse and mental health treatment, that juvenile courts can implement to address problems facing young offenders without resorting to incarceration. In California a 2014 law ensures greater access and usage of non-custodial alternatives by requiring juvenile court judges to consider factors including age and mental health status before deciding whether to transfer a juvenile offender to the criminal court system.

Advancements in scientific research have also helped limit harsh penalties such as solitary confinement on juvenile offenders. Because of its proven to be severe effects on the very young, solitary confinement should not be used for punishment of young offenders, and non-punitive solitary confinement should only be used when a youth is engaging in behavior that creates an imminent risk of serious harm.

With more than 65 percent of the 2 million youth arrested each year in the US suffering from some form of mental health disorder, the use of mental health rehabilitation as a non-custodial measure has become increasingly widespread. For example, in 2005, the state of Washington expanded mental health services to address treatment gaps among juvenile offenders and a Colorado law now allows juvenile judges to impose suspended sentences to allow rehabilitation and treatment for juveniles with developmental disabilities or mental illness. Alongside mental health issues, the intersection of gender is a worthy consideration in developing a juvenile justice system that emphasizes non-custodial measures. Juvenile girls tend to be at greater risk in developing serious mental health problems, as noted in a 2012 Department of Justice report stating that adolescent “girls are more likely than boys to attempt suicide and to self-mutilate.” Further, juvenile girls are also less likely to pose a significant public safety risk than their male counterparts and “would be far better served in nonresidential treatment facilities close to their own homes." The fact girls are more likely to suffer from serious mental health issues while also posing a significantly lower public safety risk suggest gender might be another factor for juvenile judges to consider in deciding on penalties for young offenders.

Evidence-based measures have provided juvenile court judges with several community-based intervention options to reduce incarceration rates, without increasing public expenditure. American states are finding new ways to fund community-based alternatives. In Georgia, for instance, the ability of courts to impose non-custodial sanctions has been supported by an incentive grant program to distribute federal and state funding to counties serving the state’s at-risk youth. Provisions in Ohio and other states save scarce public funds by shortening juvenile detention time.

Read Part II here.