‘Raise the Age’ Is the New ‘Ban the Box’

The effort to keep older teens out of adult courts is also winning.
(Photo: Lou Jones/Getty Images)
May 16, 2016· 3 MIN READ
Rebecca McCray is a staff writer covering social justice. She is based in New York.

Thousands of 16- and 17-year-olds across the country are poised to benefit from criminal justice reform’s latest bipartisan effort. Of the nine remaining states that automatically try 17-year-olds in the adult criminal justice system (two of them deem 16-year-olds “adults” for the purpose of prosecution), legislation pending in seven would shift those cases into the juvenile system, where penalties are not as strict, detention facilities less harsh, and opportunities for rehabilitation greater.

“I am so confident that this is moving in the right direction and rapidly,” said Marcy Mistrett, chief executive officer of the Campaign for Youth Justice, which for more than a decade has consulted with states launching “raise the age” campaigns. “We’re no longer arguing around principle on this issue. It’s just the nuts and bolts of implementation.”

Advocates of transferring the jurisdiction of older teens to the juvenile system often point to neuroscience research that suggests the adolescent brain is not fully developed until the age of 25. Cognitive development that might inhibit impulsive behavior comes later than the law acknowledges, and that later development also means teens are receptive to rehabilitation and intervention, according to the research.

As the criminal justice reform movement is increasingly heralded as a bipartisan undertaking, the success of raise-the-age campaigns has departed from other efforts in a key way. While much of the successful legislation shepherded through state legislatures by cross-party allies promises immediate cost savings to taxpayers, raise-the-age campaigns can’t make that claim. Transferring cases involving 17-year-olds from the adult to the juvenile system increases taxpayer costs, because kids in juvenile facilities are legally entitled to things incarcerated adults are not: treatment, education, and more costly supervision.

“We call it juvenile reinvestment—investing up front to get long-term benefits,” said Jessica Smith, a professor at the University of North Carolina School of Government. “But there’s a significant taxpayer cost.”

Smith, who was appointed by North Carolina’s chief justice to serve as reporter on the state’s criminal justice subcommittee, appeared Friday before the state’s Commission on the Administration of Law and Justice for a hearing on raising the age. North Carolina and New York are the two states that automatically try 16- and 17-year-olds in the adult system.

Raising the age of juvenile jurisdiction in North Carolina to 18 would cost taxpayers $49.2 million annually and the state’s justice agencies $70.9 million annually, according to a 2011 cost-benefit analysis by the reform-minded Vera Institute of Justice.

But the analysis also found that keeping these teens out of the adult system would generate $123.1 million in “reoccurring benefits to youth, victims, and taxpayers” over the next 35 years.

In other words, raising the age is not an instant-gratification game.

Yet in spite of the higher short-term price tag for housing offenders in juvenile facilities, these campaigns are seeing unprecedented success—even in conservative states like Louisiana and South Carolina. In Louisiana last week, a raise-the-age bill sailed through the state Senate and House Committee on the Administration of Criminal Justice. South Carolina’s bill passed both chambers this legislative session and is being revisited by the state Senate after a minor revision.

“They might be the first ones this session to get it in front of their governor,” said Mistrett. “This is South Carolina’s first try, it’s a conservative state, it has bipartisan support, and it’s just about over the line—this is unheard of.”

In 2010, Connecticut was the first state to pass legislation that transferred downward the jurisdiction of 16-year-olds and then 17-year-olds. Youth crime in the state dropped after the law was implemented, and recidivism rates were lowered for older teens who would previously have entered the adult system. Illinois, Massachusetts, New Hampshire, and Mississippi followed suit.

The success in these states, which Mistrett says has paved the way for other states, hasn’t been without its challenges. Formally raising the age doesn’t impede prosecutorial discretion. In some states, such as Illinois, the law dictates the automatic transfer of kids to adult court if they are accused of certain violent crimes.

“In every state, there are ways for children to be transferred to the adult system,” said Mistrett. “This is probably another reason why the opposition is not so loud.”

Illinois’ automatic transfer law permits prosecutors to try kids as young as 13 as adults if they are accused of crimes such as murder, aggravated sexual assault, or aggravated battery with a firearm. Concerned by the number of kids swept into the adult system based on this statute even after raising the age, advocates and criminal justice stakeholders in the state pushed to decrease the number of offenses in the automatic transfer category. Last August, Gov. Bruce Rauner signed a bill that limited automatic transfers to 16- and 17-year-olds accused of three kinds of serious crimes. The bill went into effect in January.

The ordeals of these early-adopting states have proved beneficial to advocates in those that haven’t fallen in line. The subcommittee Smith serves on has spent “hundreds of hours” collaborating with law enforcement and prosecutors to create a legislative proposal that meets everyone’s needs. With the chief justice’s approval, it will be introduced before the North Carolina General Assembly in 2017.

“One benefit of being among the last is you get to look at the experiences of other states, like Illinois and Connecticut,” said Smith. “There’s been a lot of give-and-take, and folks are very motivated to join the majority of states on this issue.”