By Marc Schindler
Having helped lead the Washington, D.C. Department of Youth Rehabilitation Services (DYRS) – the city’s juvenile corrections agency — I know, first hand from my experience running that system and from my colleagues around the country that, Washington, D.C. can and should serve youth who are currently being transferred to the adult system in the juvenile justice system, rather than see them jailed and locked up in the adult system.
This issue has come into sharp relief for me this week, with the release of a new report: Capital City Correction: Reforming DC's Use of Adult Incarceration Against Youth. Released by DC Lawyers for Youth and the Campaign for Youth Justice, the report looks at how young people are prosecuted in the adult criminal justice system in Washington, D.C. through Direct File – a statute that enables federal prosecutors to send District youth accused of certain crimes to adult court without judicial review.
The report showed that 541 young people under the age of 18 were detained or incarcerated in adult facilities in D.C. between 2007 and 2012 and that youth spent 10,000 days – the equivalent of 27 years – in adult jail. The young people who end up on this path experience inadequate facilities, higher risk of being victimized while locked up, increased chances of solitary confinement, and often carry the long-term consequences of adult felony convictions when they leave the system. We also know from decades of research, including by the Centers for Disease Control and Prevention that transfer to adult court actually increases recidivism, with youth prosecuted as adults more likely to commit crimes upon release than similar youth handled in the juvenile system.
As a juvenile agency director who navigated the need to serve young people of all ages and offense backgrounds (one third of the youth I served were more than 18 years old, and a significant number had serious offense histories, including behaviors that could have seen them Direct Filed), I had the opportunity to review the data in D.C. and around the country. Systems are looking at youth who are being tried as adults, and the youth who are lucky enough to stay in the juvenile system, and seeing similarities between the two.
From state-to-state to the District of Columbia, the young people tried as adults do not look dramatically different from the youth who are kept in the juvenile system, and an increasing number of states around the country have taken steps that Washington, D.C. needs to take, including:
Texas: Research by the University of Texas at Austin Lyndon Banes Johnson School of Public Affairs found that youth who were tried as adults had similar characteristics to youth who had the option of staying in the juvenile system: The youth who had to be transferred were shown to have similar prior offense histories (including the proportions that had no violent histories), and had about the same number of previous referrals to a local probation department. Of the youth who were transferred, seven out of 10 had no prior violent criminal history, a third were first-time offenders, and nine out of 10 had never had the opportunity to benefit from the services of the Texas Department of Juvenile Justice — suggesting that few of them have a serious history of delinquency of any kind. (Texas recently passed legislation that encourages counties to hold youth pretrial in the juvenile justice system if a court is considering transfer to the adult system.)
Massachusetts: To help frame the issue for policymakers on why the 17 year olds from the adult court system could be served in the juvenile justice system, researchers looked at the arrests of youth under, and over 17. They found that their 17 year olds are arrested for the same, predominantly low-level, non-violent offenses as younger teens. Massachusetts recently “Raised-the-Age” so that young people will no longer be exposed to adult jails and prisons.
Oregon: Research from the Oregon Youth Authority on the young people who were transferred to the adult system found that, of all the youth in custody, those youth sent there by juvenile departments had higher risk to reoffend on an objective risk assessment than those youth who had been tried as adults. In other words, the assessment showed that transferred youth were not more “serious” than youth who stayed in the juvenile justice system. (Oregon recently passed legislation to encourage counties to hold youth in juvenile facilities, pretrial, and the state is studying the practice of transferring youth to the adult system for future legislative review.)
As a former juvenile corrections administrator, what this data says to me is, there is very little difference between the youth who are ending up being tried adults, and those youth who are remain in the juvenile system.
But under D.C.’s Direct File statute and other transfer laws, young people who could be served by a juvenile department are being exposed to an adult jail, and face all the negative outcomes that come with being in jail — higher risk of harm, isolation and lack of appropriate services.
The D.C. Council and policymakers would be well served by considering and implementing the recommendations by DC Lawyers for Youth and the Campaign for Youth Justice, including:
"Reverse transfer” motions: allow judges to review a youth's case to consider whether it should be moved to juvenile court;
End "once-an-adult-always-an-adult:" we should end requirement that youth previously charged as adults be so in the future, no matter how minor the suspected offense;
Prohibit pretrial detention of youth in adult facilities: all youth should be detained, pretrial, in the juvenile justice system, and kept out of adult jails.
Washingtonians need look no further than the “DMV” (D.C., Maryland, Virginia) to see what they might emulate here. The Virginia Legislature passed a measure that will help keep Virginia youth out of adult jails. This year, Maryland passed legislation that restores some judicial discretion to transfer youth from adult court to juvenile court (the first step taken on reforming Maryland’s juvenile transfer laws in a decade).
If Washington, D.C. made these changes, we would improve the chances that the city could deter future crime, promoting the rehabilitation of young offenders and improving public safety.
Marc A. Schindler is the Executive Director of the Justice Policy Institute, and former general counsel and interim director of the Department of Youth Rehabilitation Services in Washington, D.C.