Over the last decade, 23 states have enacted laws that aim to keep juveniles out of adult prisons and court systems. The shift is a reversal of the tough-on-crime legislation of the 1980s and 1990s. The new laws stem from concerns about teenage suicides in adult jails and new research showing that young people held in adult courts are more likely to be repeat offenders than juveniles not held in adult jails. But some state attorneys are against the change. They say the legislation adds unnecessary delays to prosecution and are an insult to victims. Join Diane and a panel of guests for a discussion on these new laws that aim to keep youths out of adult prisons and courts.

Guests

  • Dan May district attorney, Colorado Springs, Colo.
  • Liz Ryan president, Campaign for Youth Justice.
  • John Schwartz national correspondent, The New York Times.

Transcript

  • 11:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Over the last decade, almost half of states have enacted new laws aiming to keep juveniles out of adult prisons and court systems. Here to talk about the impact the legislation is having around the country: Liz Ryan, president of the Campaign for Youth Justice, joining us by phone in New York, John Schwartz, a reporter with The New York Times, and, by phone from Colorado, Dan May, a district attorney in Colorado Springs.

  • 11:07:29

    MS. DIANE REHMI invite you to offer your own thoughts and opinions. Give us a call, 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Welcome to all of you.

  • 11:07:50

    MS. LIZ RYANGood to be here, Diane.

  • 11:07:50

    MR. JOHN SCHWARTZThank you.

  • 11:07:51

    MR. DAN MAYGood morning.

  • 11:07:51

    REHMLiz -- good to have you all with us. Liz Ryan, tell me a little about the Campaign for Youth Justice, what it does, and how you became involved.

  • 11:08:04

    RYANThe Campaign for Youth Justice is a national organization dedicated to ending the practice of trying, sentencing, and incarcerating young people in the adult criminal justice system. We got started by a family member whose child was being prosecuted in adult criminal court, and we felt that this issue needed national attention and to elevate the voices of families and young people who are directly affected.

  • 11:08:25

    REHMAnd, John Schwartz, I gather nearly half the states in the country have new laws that are designed specifically to keep youths out of adult prisons. Talk about these laws, how they got underway, and what they do.

  • 11:08:44

    SCHWARTZWell, Diane, there are about 40 of these laws around the country. It's a real success story for the advocacy -- the 40 piece of legislation in 23 states. And they've -- in many of these states, you've got people whose kids were put through the adult system and had a bad result. And in other states these organizations, very much like Youth Justice, you know, local areas, got together and said, you know, we need to actually show what's going on with these kids.

  • 11:09:15

    SCHWARTZBecause in -- for instance, in Colorado, where I went for my story, the general idea was that if a kid is tried as an adult, this is probably the worst of the worst. The group in Colorado that was pushing for reform was able to show through its research that a lot of these kids were not the worst of the worst, in fact, that there were a lot of kids getting put through the adult system, really didn't need to be there, and they might have better results in a juvenile system (unintelligible).

  • 11:09:42

    REHMHow do you define a bad result? What do you mean?

  • 11:09:49

    SCHWARTZWell, the case -- there are cases in Colorado that are the worst result imaginable. A lot of the activism in Colorado focused on the suicide of kids like James Stewart. James Stewart was a kid who got drunk, had a car accident, and someone ended up dying. And in the -- for the time he was in the juvenile system, he was, according to his family's reports, in good shape. He was saying that he had something to look forward to, that he was going to work with kids, warn about drunk driving. He saw a future for himself.

  • 11:10:27

    SCHWARTZHe was then moved into the adult system, put in adult jail and became deeply depressed, and then at one point was put into a cell alone. He'd been rooming with another kid, and they separated them. And he said, please don't leave me alone. Please don't leave me alone. And they did. The family calls this solitary. Technically, it's, you know, just that he was alone in the cell, but left alone without resources and without enough observation. He killed himself.

  • 11:11:01

    REHMOh...

  • 11:11:01

    SCHWARTZAnd this is the kind of tragedy that these laws are designed to prevent.

  • 11:11:07

    REHMAnd I gather, Liz, you've conducted some nationwide polls. What did they show?

  • 11:11:14

    RYANThe polls show that the public strongly favors rehabilitation and treatment of young people who come into conflict with the law. The public rejects automatically prosecuting young people in the adult criminal court and placing young people in adult jails and prisons. The public wants to see more fairness and humaneness in the justice system.

  • 11:11:34

    REHMAnd turning to you, Dan May, as a district attorney in Colorado Springs -- you're a prosecutor -- you oppose this shift. Talk about why.

  • 11:11:48

    MAYWell, first of all, I don't necessarily oppose the general shift that Liz just talked about. I got to tell you modern prosecution is shifting towards rehabilitation programs, better methods of dealing with adults and kids that have successful outcomes. And I'll tell you, in my office, we have adult diversion, juvenile diversion. We have a mediation program. We have a veteran's court, domestic violence court. I mean, you just see this -- mental health court.

  • 11:12:14

    MAYI mean, we have that -- it's our trend. At the same time, you can't ignore the fact that there are certain crimes and certain individuals that those things won't work for. There are, unfortunately, antisocial personalities that we deal with at times. There are some horrendous crimes where people do home invasions, pistol whipping, raping, and murdering people. And we have to deal with those also. So in my toolbox, I need to be able to deal with all the people I come up with.

  • 11:12:43

    MAYAnd, actually, the -- in ours, we call it direct file because the DA has the ability to direct file certain violent criminals who are juveniles into the adult system. But you have to have a system for that, so that we have a separate facility for juveniles. It's extremely successful here in Colorado. And my fear is when we take that away, it takes away an important tool that really can rehabilitate certain kids that otherwise we can't reach.

  • 11:13:12

    REHMYou talk about -- pardon me -- the 17-year-old who murdered 10-year-old Jessica Ridgeway. Talk about that.

  • 11:13:24

    MAYSure. That -- well, and, actually, I didn't even mention that one. That's one where -- I mean, here's a 17-year-old kid who is on the Internet. He certainly knows the consequences of his actions. He is looking up things like how to make chloroform, what are the best locations to find and kidnap people. He kidnaps a young 10-year-old girl. He had attempted to kidnap another girl before that.

  • 11:13:47

    MAYI mean, here's someone that is very planned out -- it isn't one of these impulse -- it isn't something that is not thought out -- and carries out just a horrible, horrible crime here in Colorado. And I got to tell you, Diane, when we talk about the shift of having youths go at times to adult prison, again, you have to look at the model of each state. In my state, we came in with that in 1993. Between '93 and 2012, my crimes for juveniles in Colorado went from 17,700 to 5,400 under that model.

  • 11:14:23

    REHMHmm.

  • 11:14:23

    MAYBecause we were identifying the violent youth, sending them into a different system, having them come out actually in about four or five years with the highest success rate of any system that I have.

  • 11:14:32

    REHMI see.

  • 11:14:33

    MAYMy juvenile system was failing. So if you set up a whole program around how to deal with that segment, you can be very successful and very successful outcomes.

  • 11:14:42

    REHMLiz, would you agree that violent crimes put young teenagers into a separate category?

  • 11:14:51

    RYANWell, teenagers are different than adults, and that's what the research shows. And the research shows that young people are capable of rehabilitation. So when you look at the justice system, what we're doing now is we're placing so many kids in adult criminal court for whatever offense, and those young people are less likely to get out.

  • 11:15:13

    RYANThey're being impacted very, very negatively by this. And because of that, they're more likely to reoffend. These law shifts are showing that young people are capable of rehabilitation and treatment, that when you have them in the juvenile justice system, they can become productive and successful adults.

  • 11:15:32

    REHMJohn Schwartz, would you differentiate between violent teenagers and those who are nonviolent in their offenses?

  • 11:15:44

    SCHWARTZWell, I think we differentiate automatically in such cases. But the neurological evidence shows that these choices are made very poorly by teenagers, and the brain is still developing. The thing that's interesting about what our friend, the DA, just said is that, from my research, the Colorado law doesn't make it impossible to try a kid as an adult.

  • 11:16:05

    SCHWARTZIt just means that the DA can't make that choice automatically, and it gets a layer of judicial review. So the idea that you can't possibly put somebody into an adult situation, which is the implication here, doesn't seem to me to be true.

  • 11:16:21

    REHMDan, do you want to respond?

  • 11:16:24

    MAYSure. And there's actually two points I want to make. I want to -- the kids that I put into my juvenile system, we have a -- Golden, Colorado's our youth facility, the most maximum, if you will, for the youth system. Thirty-six percent of those kids that go into that youth system will commit a felony while still either in that system or on parole.

  • 11:16:42

    MAYThirty-nine percent will get a new conviction in their first year out. If I send a kid as an adult to my -- what we call our youth offender system, which is a special program here in Colorado, 75 percent of them have already failed in that youth system. Eighty-five percent are there are on violent offenses. When they come out, I get a 6 percent recidivism rate in the first year. That's a fabulous result.

  • 11:17:04

    MAYAnd I -- and what we're doing now -- that system was set up around DA's discretion to decide when to send a violent offender there. Before, it was set up around judge discretion. Judges didn't send people. Our crime rate went up quite literally for 20 years. When DA's got discretion, yes, more kids were put into that system. It worked. My crime rate came down significantly in Colorado.

  • 11:17:27

    MAYAnd what we've done just in the last nine months is take that ability away from DAs, and we're going back to the failed system of the early '90s and the '80s. And, quite frankly, that's what's happening nationally. If you watch for evidence-based since DAs were given these powers across 33 states in the mid-'90s, crime rates for juveniles significantly dropped over the next two decades. For now...

  • 11:17:48

    REHMLiz Ryan.

  • 11:17:50

    RYANSo I want to make a couple points. I think it's really important to note, Diane, that less than 1 percent of offenses committed by young people under the age of 18 are the most serious offenses. So it just...

  • 11:18:03

    REHMHow do you define most serious?

  • 11:18:05

    RYANRape and murder.

  • 11:18:05

    REHMAll right.

  • 11:18:06

    RYANOkay. So 1 percent, that's a very small number. And so it has to be looked at in terms of perspective. Also, there have been a number of studies conducted by researchers across the country, by the U.S. Department of Justice, by the Federal Centers for Disease Control Prevention, that show that when young people are tried in adult criminal court, they are 34 percent more likely to reoffend.

  • 11:18:28

    REHMLiz...

  • 11:18:28

    RYANSo it's a public safety issue.

  • 11:18:29

    REHMLiz Ryan, she's president and founder of Campaign for Youth Justice. That's a nonprofit organization. And we're going to take a short break here. When we come back, we'll talk further and take your calls.

  • 11:20:00

    REHMAnd if you've just joined us, we're talking about new laws -- new state laws that have been enacted to keep juveniles out of adult prisons and court systems. On the line with me from Colorado is Dan May. He's a district attorney in Colorado Springs, president of the Colorado District Attorney's Council. John Schwartz is on the line with us from New York.

  • 11:20:35

    REHMHe's a national correspondent for The New York Times. Here in the studio, Liz Ryan, president and founder of the Campaign for Youth Justice. Liz Ryan, do you have any estimates as to how many minors are currently in the criminal justice system, how many are being held as minors, how many are in adult court and prison systems?

  • 11:21:08

    RYANEvery year, about 250,000 young people are processed in the adult criminal court. One hundred thousand of these young people are cycled through adult jails and adult prisons. It's a large number of young people. And as we've shown with this report, states are starting to change these laws to get kids out of that.

  • 11:21:28

    REHMAnd to you, Dan, how many juvenile cases are you now seeing each year? How many of those are tried or held as adults?

  • 11:21:42

    MAYSure. Statewide, as I say, in 2012, we had about 6,400 total juveniles who were arrested for either violent or property crimes. Here, locally, I'll usually average between 2,500 and 3,500 cases that we get. I'll tell you, in my system, 1,000 of those we divert out immediately. When I get down to adult, it is less than -- actually, statewide, it's .68, so it's less than 1 percent.

  • 11:22:08

    MAYIt's six kids out of 1,000. In my particular jurisdiction, it's one kid out of 1,000 that we'll send over to adult court. And, again, it's one tool. It is not the main tool we use in juvenile. But sometimes you've got kids that do things that there is a higher accountability.

  • 11:22:24

    REHMJohn Schwartz, can you speak to that?

  • 11:22:27

    SCHWARTZWell, it's interesting. What Mr. May has been talking about and what he seemed to suggest before the break was that this is sort of loosey-goosey judges versus get-tough DAs. And it almost -- I mean, I'm sort of intuiting here a sense that this is liberal judges versus more conservative DAs. In fact, a lot of the emphasis behind laws like this, especially in Colorado where it was a coalition of Republicans and Democrats that passed the law, a lot of the emphasis here comes from conservatives.

  • 11:22:54

    SCHWARTZAnd they're just -- they want judges having this extra layer of review, not prohibiting -- extra layer of review. And their point is that the DA represents the power of the state, and the Republican member who is the sponsor of the Colorado bill said to me that she would rather see that power given -- shared between the DAs and, you know, who represent the state, the government power, and the judges who are a different branch.

  • 11:23:24

    REHMLiz.

  • 11:23:24

    RYANIt -- the public opinion polling shows us that the public favors having judges make the determination about whether or not a child should be going into adult criminal court. Because the public believes that judges are much more neutral decision makers, and they believe that there should be individual review of those cases. The case should be looked at. There should be a hearing.

  • 11:23:45

    RYANAnd what we're seeing is lots of these cases bypass juvenile court judges because prosecutors decide those kids should go to adult court, or because the law says if you're a certain age and charged with a certain offense, you go directly to adult criminal court. What these law changes are showing is that people want fairness. They want checks and balances in the system.

  • 11:24:06

    RYANThey want judges to be able to look at that child's individual case, regardless of the offense, look at that child's individual case and determine whether or not that child can be rehabilitated. And what we find more often than not is that judges believe in the capacity of young people to change and the capacity of young people to respond to appropriate interventions and treatments. And that's what we're seeing. We're going to see lower juvenile crime rates as a result of many of these changes in laws.

  • 11:24:31

    REHMSo how do you see the district attorney stepping in between that juvenile and a juvenile court judge?

  • 11:24:43

    RYANYou know, district attorneys often use the threat of sending a young person to adult criminal court as a way to get that young person to plea. And what we're seeing is lots of young people being overcharged with offenses that we know get them into adult criminal court.

  • 11:24:59

    REHMSuch as?

  • 11:24:59

    RYANSuch as a young person might be charged with a certain type of robbery. Some types of robbery can go to adult court. Some types of robbery are in juvenile court, depending on state. So what we see in a lot of states is that the prosecutor knows what kind of charge gets that young person into adult court, so they charge them with that, which is overcharging.

  • 11:25:18

    RYANAnd then what we see is a plea arrangement because that kid is threatened with the prospect of adult prison, so the young person pleas. And what you see is that young person is convicted of something that they never would have been in adult court in the first place. And so this is a way to check that power of prosecutors.

  • 11:25:36

    REHMDan May, do you want to comment?

  • 11:25:39

    MAYWell, I feel I'm being profiled right now, just to let you know that, Diane. It didn't get to...

  • 11:25:44

    REHMI'm sorry you feel that way. I'm just trying to get various opinions here.

  • 11:25:48

    RYANMr. May, do you need a hug?

  • 11:25:49

    MAYOh, I mention -- we'll get you fired up here. Yeah, it is liberal conservative. I have 22 elected DAs that are both Democrats and Republican. One of the most outspoken of the -- against the changes was Don Quick, who will be the Democrat AG candidate this year this fall for the state of Colorado because we're here for justice.

  • 11:26:08

    MAYI mean, DAs are committed to justice. We get to know cases better than a judge ever does. They're running, you know, 100 cases in two hours through a docket and trying to make decisions on what's given to them in literally two to five minutes and maybe a written report. We're making decisions on cases where we have the thorough background. We know the victims. We know the defendants. We know their social settings. We know their gang affiliations.

  • 11:26:31

    MAYAnd we're trying to make -- how can I change this kid? What's the right accountability to get a safer society that will also work for this kid? Our whole system of juvenile is set up around what's the benefit of the children, and that's that group. But in the end, you know, when we're talking one kid out of 1,000 that we're saying this one ought to be considered for adult court, you can't say DAs are abusing their discretion. And, quite frankly, when I make those decisions, I'm up for election. People can vote me in and out.

  • 11:26:58

    REHMSure.

  • 11:26:58

    MAYWhen a judge makes the decision, you don't get that. A, they have less information. They don't have the entire background. And the case study itself shows when judges had the total discretion back in the '70s, '80s, and '90s, our violent crime and property crime rates of juveniles exploded. When you turn that over to DAs who are accountable to the public and accountable to those families on both sides of the case, it significantly came down, and it works. When going back to the old system...

  • 11:27:25

    REHMAll right. John Schwartz, do you want to comment?

  • 11:27:29

    SCHWARTZWell, I'd simply point out that the historical context he's looking at showed an across-the-board decrease in violent crime in the country. And so, you know, citing one point or their wonderful, you know, success of DAs sort of obscures the historical background a little bit. But, you know, the other problem, again, in the state that I looked at for my story, 85 percent of the direct file cases involved middle to low-level felonies.

  • 11:27:53

    SCHWARTZSeventy-five of the cases that were dismissed involved white youth. There was a disparity where white youth seemed to get a better deal ultimately, and 95 percent of those direct file cases ended up plea bargained. So as Liz was saying, you end up with a lot of these kids being then subjected to an adult system with mandatory minimums and the kind of punishments that you simply don't want to see if a kid has the opportunity to learn and change.

  • 11:28:23

    REHMLiz, I want to go back to the case of James Stewart. He was, I gather, put into isolation for his own safety. Was he not?

  • 11:28:36

    RYANThat's true. And that happens in a lot of cases where the sheriff, the jailers, or prison officials know that by placing young people into the general population with adults or into cells with adults subjects them to the possibility of abuse and harm by staff or by other inmates. So oftentimes what you'll see is a young person is placed in a cell by themselves. And our belief is that is solitary confinement.

  • 11:29:04

    RYANYou can -- it might not be called solitary confinement by the sheriff, but it ends up being solitary confinement because that young person's in a cell for 23 1/2 hours to 24 hours a day. They get out once a week possibly for a shower. And in the case of James Stewart, he was crying out to be in a cell with another young person. He wanted that human contact. And young people are harmed in that situation and would rather commit suicide than be in that situation.

  • 11:29:32

    REHMJohn Schwartz, I gather that James Stewart's sister became an activist and eventually helped to change Colorado's law on youth offenders. Tell us about that.

  • 11:29:46

    SCHWARTZWell, Nicole Miera is the sister, and she's really impressive. And she, like the rest of the family, was devastated by her brother's death. She talked to -- her father was dying at the same time. She told me that it was his death bed wish that she go out there and try to get the law changed. She worked with local advocacy groups in the state of Colorado, and they did -- they had prepared the report that I talked about that had all the statistics on how, you know, these weren't the worst of the worst.

  • 11:30:23

    SCHWARTZAnd between the advocacy group and her very compelling personal story, they were able to get the law changed in Colorado. It's that one-two punch of advocacy and a foundation of fact that moved things forward.

  • 11:30:37

    REHMAnd, Dan, question: How do the victims feel about these cases where a juvenile is sent to juvenile court as opposed to adult court?

  • 11:30:55

    MAYYou know, every victim is different. And we work very closely with victims. Certainly when you have a horrendous crime, like a first-degree murderer or what Sigg did to Jessica Ridgeway, certainly society, not just the victims, see punishment at a whole different level than you would for a juvenile. At the same time, you know, I guess I will take offense a little bit to calling armed robbery a low-level crime.

  • 11:31:17

    MAYWhen I have a home invasion, which is one of my direct files that I have currently, where the kids break in with guns and they're pistol whipping people and they're stealing stuff -- and in some cases, I had one where they sexually assault during that -- that's not just a low-level crime. That's a very serious crime.

  • 11:31:33

    MAYBut, again, I find most victims, they want justice, but they would also like to see that child be rehabilitated. And you have to look at each individual state system. Most of my kids are going to go into what we call a YOS program, a whole totally different separate facility. It has a high school there. It has college credits there. It has trade programs there.

  • 11:31:55

    MAYAlmost every kid there comes out with a high school degree, most of them with about 30 to 60 hours of college credits, most of them with a trade, and that's where I get a 6 percent recidivism after they're there four years. That's a tremendous program. And I think that it's being disingenuous to just say they're being thrown in with adults.

  • 11:32:12

    MAYIt's against the law to put kids with adults. That's not happening anywhere in this country. Solitary is a whole different issue. And I agree there's been some fabulous studies have come out about solitary confinement. And we're seeing some changes. That's really for the prisons and the jails to know that research and to know how to handle adults and kids because the effects are on both. And I...

  • 11:32:31

    REHMDan May is district attorney in Colorado Springs. And you're listening to "The Diane Rehm Show." Dan, you mentioned Sigg, and you were referring to Austin Sigg who murdered the young 10-year-old Jessica Ridgeway. Tell us about the controversy over his recent sentencing hearing.

  • 11:33:02

    MAYWell, I don't know. You know, it is interesting that the defendant Sigg actually saw that he needed to have some punishment. His attorneys wanted him to go to trial. And over his attorneys' recommendations, he pled guilty to the crime and took the accountability where he's essentially gotten a life sentence. But, again, his crime is, again, one of those one out of 1,000 type crimes or one out of a 10,000 type crime where you got a kid who was planning, plotting, carrying it out, you know, where he's dismembering this child.

  • 11:33:32

    MAYHe's kidnapping a 10-year-old. I mean, that's just a horrible crime that needs a much higher penalty than most juveniles. Most juveniles we want to deal with through diversion, most of them through probation. How do we keep their records clean so they can get jobs someday, that they can get into college, that they can go further in life yet hold them accountable? Unfortunately, we need a tool, though, for those kids, or even adults in some cases, that normal things are not going to rehabilitate them.

  • 11:33:58

    REHMAll right. Liz.

  • 11:34:00

    RYANA couple facts I want to correct here, something that Dan mentioned about young people not being put in adult jails and prisons with adults, and that's simply not true. I mean, young people across the country are put into adult jails and prisons with adults, and there's been a recognition now that that's not how young people should be treated by the system.

  • 11:34:19

    RYANSo the U.S. Attorney General's Task Force on Children Exposed to Violence recommended that children not only not be put in adult jails and prisons but not be tried in adult criminal court. We've seen these state law changes to get kids out of that situation. So it is still happening, and it's happening all over the country. It may not be happening in Colorado, thanks to the good work of Nicole Miera, Kim Dvorchak and others, but it is happening in many, many states.

  • 11:34:45

    RYANAnd we get calls from family members all the time whose children have died in these facilities and whose children have been harmed. The other point I want to make is that when a young person is tried in an adult criminal court, even if they get out of a youth offender facility like the one that Dan is describing in Colorado, that young person carries the stigma of an adult criminal record for the rest of their life.

  • 11:35:08

    RYANIt bars their employment opportunities. It keeps them from getting education. Those young people are very much more likely to recidivate because of that. So the stigma of that criminal record and those barriers that those young people face are almost insurmountable in many cases.

  • 11:35:24

    REHMAnd, John Schwartz, you talked about many of these laws being passed around the country in both red and blue states. Explain what's going on.

  • 11:35:38

    SCHWARTZWell, when you see -- as I was starting to say before, the conservative movement to do some criminal justice reform is often based on a number of factors. One of the factors is a kind of distrust of government authority and trying to bring things back to a more neutral adjudicator, right, as a judge. But also they're looking to save money, to go through services that are not quite as expensive, say, as a big, you know, as putting people in the big prison system.

  • 11:36:14

    SCHWARTZAnd, you know, looking at cutting recidivism as a way for society to save money, not just prevent tragedy in the future, but check the bottom line. And so you're seeing these bipartisan coalitions passing these laws. It's one of the more interesting developments in legislation around the country. Folks like state legislatures are really looking at this closely.

  • 11:36:39

    RYANAnd I would say that, as we're looking at what's happening around the country, that lawmakers are responding to what the public wants to see. The public wants to see more fairness in the system, checks and balances on unfettered discretion of prosecutors, and they want to see young people get rehabilitated. And that's the bottom line, Diane. We have a choice to make as a society. If we respond to young people who come into conflict with the law and we send them into adult court, we dramatically increase the likelihood that they'll reoffend.

  • 11:37:07

    REHMLiz Ryan, she's president and founder of Campaign for Youth Justice. John Schwartz is with The New York Times. Dan May is a district attorney in Colorado Springs. When we come back, it's your turn, your questions, comments. I look forward to hearing from you.

  • 11:39:58

    REHMAnd welcome back as we talk about the juvenile prison and court system. Several states around the country nearly have or now changing the law so that juveniles do not go into adult courts or adult prisons automatically. Here's an email from Abby, and John Schwartz, I don't know whether your reporting has done anything on this. "Could your guests talk about brain development in juveniles? If youth are treated as adults does this mean their brains are fully developed at 18?"

  • 11:40:45

    SCHWARTZWell, the brains are clearly not fully developed at 18 and this is a point that the Supreme Court has made and underscored in a number of cases. It's why we no longer allow in this country death penalty for youthful offenders. It's why in Miller, Alabama we got rid of the life without parole for youth who commit non-homicide offenses, that the Supreme Court has done a lot of study on brain science and the rest of us need to catch up.

  • 11:41:20

    REHMAll right. Let's open the phones and go first to...

  • 11:41:25

    MAYMay I comment on that, Diane?

  • 11:41:26

    REHMOh, certainly, Dan.

  • 11:41:27

    MAYThis is Dan May, yeah. Number one, actually you can't have life without parole. You just have to evaluate the case for it. It's just not automatic. But number two, in my case or all DA's, we don't deal with generalities. We don't deal with profiling kids and saying we're going to treat them all the same. I deal with individuals and there are some kids who have impulsive acts who are immature. And that's why you see in our system 99.9 percent of the kids are dealt with in the juvenile system.

  • 11:41:57

    MAYWhen I deal with individuals there are some kids who have developed brains and that's what I deal with is each individual case, what's the outcome that is justice in this case. And there are kids who are very deliberate in their actions, very planned, know exactly what they're doing like Mr. Sig. And the consequences have to be different.

  • 11:42:16

    REHMDan, let me ask a follow-up question there. Are these juveniles that you say you know are fully developed in terms of their brain capacity, are they examined by psychiatrists? Is that what you base your decisions on?

  • 11:42:39

    MAYWell, I'll tell you, the part of it -- that's a good question, Diane. I mean, most kids that we get are going to be doing your shoplifting or maybe they walk into the neighbor's house, it's technically a burglary and they take the change jar. Quite frankly we'll do some psychological background but we know that we want to put that kid on some accountability, make them apologize. In my system we make them get a job and pay the restitution. We dismiss the case, we seal the record and we want them to move on in life. And actually I find 85 percent of those kids we never see back again.

  • 11:43:07

    MAYWhen you get into a very serious situation though, when you get into the rapes and the murders and the violent armed robberies, you betcha, there's a lot of psychological testing that is done and presented.

  • 11:43:17

    REHMYes.

  • 11:43:18

    MAYAnd so we can really individualize to that kid.

  • 11:43:21

    REHMAll right. Liz...

  • 11:43:21

    SCHWARTZDiane, if I could jump in for a second as well.

  • 11:43:23

    REHMSure, go ahead, John.

  • 11:43:25

    SCHWARTZWell, I think Mr. May is suggesting that the advocates in these cases believe that no one should be punished. And I think that's a sort of extreme suggestion. When I talked to Nicole Nara (sp?) , she said that of course there are cases in which somebody should be punished and punished severely. She doesn't think that you're absolved of any action that you take just because you're young. But she became an activist because in her brother's case she felt it simply wasn't the case.

  • 11:43:54

    REHMLiz.

  • 11:43:54

    RYANWe think there should be consequences for a young person when they get into conflict with the law. But the question is whether those consequences facilitate reoffending or whether those consequences help that young person get back on track. And that's really where the public is. The public believes in the power and capacity of young people to change. The brain science shows that young people are capable of change. And so when you keep young people in the juvenile justice system, you're believing and investing in that capacity of young people. And we're seeing good results from that.

  • 11:44:30

    REHMBut surely you're not disagree with Dan May as far as the really serious and even horrendous crimes committed by juveniles?

  • 11:44:41

    RYANWell, what's interesting about what the research shows is that the rehabilitation has less to do with what offense that young person committed. That young people, whether they've committed a very violent crime or a minor offense, are capable of rehabilitation. And there are instances, very, very extreme instances like the one that Dan mentioned. The public believes that a judge should make that determination, not a prosecutor and that the case should be looked at very, very carefully.

  • 11:45:08

    RYANAnd they see the prosecutor as not a neutral decision maker in that situation. So we're not saying there shouldn't be accountability. We're saying that there should be. But we are saying that young people should have that opportunity to be seen by a judge and have their case reviewed.

  • 11:45:22

    REHMAll right. Let's go to Scott in Indianapolis. You're on the air.

  • 11:45:28

    SCOTTThanks, Diane. Great show.

  • 11:45:30

    REHMThanks.

  • 11:45:31

    SCOTTAlways. The guests make excellent points on both sides of the fence. My question though, Diane, is this is not a new issue. There's been volumes of books written. But I guess what I don't her anyone addressing that I thought I would hear is how it seems like society is almost farming or raising cattle to feed its system. So what the question is, is what happens to all of the children who end up in back of the class and get the Ds and the Fs who don't go to college who end up committing these petty crimes and end up in the system?

  • 11:46:23

    REHMJohn Schwartz.

  • 11:46:23

    SCOTTMuch of that is an educational issue that's already been...

  • 11:46:30

    REHMWell, I mean, I think that gets into a whole other subject, Liz.

  • 11:46:36

    RYANYeah, one of the things we haven't talked about here today, Diane, that the caller is touching on are how young people end up in the justice system. And what we're seeing are young people literally going from schools to prison. And those of us in the advocacy community call this the school to prison pipeline. This is happening to many children across the country but disproportionately to black and brown children. There are huge racial and ethnic disparities in the justice system where young people of color are 4, 10, 20 times more likely to be prosecuted in adult criminal court when charged with similar offenses as white youth. And this is a civil rights issue that needs to be addressed.

  • 11:47:17

    REHMJohn Schwartz, did you find that in your own reporting?

  • 11:47:21

    SCHWARTZWell, in talking to Kim Dvorchak at the Colorado Juvenile Defender Coalition, what they found was that there is a racial disparity in the way cases are treated. That -- I think I mentioned that 75 percent of the cases that get dismissed that don't move forward involve white youth. And so you ended up 82 percent of the kids put into the youth services program, that Mr. May was talking about, are black and Hispanic youth, that these figures assembled were part of what convinced the Colorado legislature that maybe they needed to make some changes.

  • 11:48:00

    SCHWARTZAgain, not to eliminate YOS, it's still there. Not to eliminate filing and punishing -- you know, prosecuting kids as adults and punishing them if necessary, but adding the layer of review by the judges. So, you know, that disparity I think is one of the arguments that move things in Colorado.

  • 11:48:19

    REHMDan May.

  • 11:48:20

    MAYSure. And, John, I assume you really know some of those studies. There's no question that minorities are overrepresented within the justice system. But when you go back and you look at the victims are also over representative of minorities within the system, at the same time when you go back and let's say you look at an armed robbery and you say, how many people did an armed robbery and how did the victims describe them. And then you look at who's on probation and who's in prison, it almost matches exactly with who's being identified as the perpetrator of who's in prison by percentages.

  • 11:48:53

    MAYSo our society has an overrepresentation within the justice system of minorities and we need to deal with that. Those are some huge issues. But the justice system itself actually is very fair across that board and that's what the studies have consistently shown. I know actually in my diversion program where we dismiss and divert out, I have even -- I have an increase in the number of minorities that we have in that. So -- but that's what the Colorado State -- I don't know the 75 percent -- that can't be Colorado and I don't know what state you're talking about there, John.

  • 11:49:24

    MAYWe do have an issue and quite frankly when you look at prevention it comes back to family structure, it comes back to use of alcohol and drugs, it comes back to education in the economy. And those are some significant societal issues that we're trying to deal with.

  • 11:49:38

    REHMAll right. John?

  • 11:49:40

    SCHWARTZOh, I was simply citing figures that were put together by the Colorado Juvenile Defender Coalition, that's Kim Dvorchak's group. And you can dispute the study or not. Apparently, as I said, the legislature used that data to move forward and change the law.

  • 11:49:55

    REHMLiz Ryan.

  • 11:49:56

    RYANThere are many studies that are showing that black and brown youth are treated much more harshly by the justice system than white youth who've committed the same offenses. And we're seeing this all over the country. In fact, the U.S. Department of Justice's Civil Rights Division files a suit in Shelby County, Tennessee showing a figure that's a staggering figure. I think 98 percent of the kids transferred to adult criminal court were African American youth. And we know that they are not committing more offenses than white youth. They're simply treated by the justice system in a much more harsh impunitive way.

  • 11:50:29

    REHMAll right. To Kristina in Durham, N.C. You're on the air.

  • 11:50:35

    KRISTINAOh, thank you so much. I actually have a couple quick questions, if I may.

  • 11:50:39

    REHMSure.

  • 11:50:40

    KRISTINAThe first one was about the statistics that have been cited on recidivism in adult court versus juvenile court. And my question is, are we really comparing apples to apples or is this more of a selection effect? Because the DA has so much discretion and will that just continue when we have the judge review?

  • 11:51:01

    RYANThe recidivism studies that I mentioned earlier are studies that have been conducted all over the country and are trying to look at comparing juveniles in the juvenile justice system and in the adult system. And those studies factor out any sort of bias or apples-to-orange kind of effect. Those studies have been conducted by the U.S. Department of Justice, by the Federal Centers for Disease Control and Prevention. They've done numerous, numerous looks at this. And there has been no study showing the other effect.

  • 11:51:30

    KRISTINASo they're comparing exactly the same crimes then?

  • 11:51:31

    RYANThat's exactly right. In fact, let me give you an example. So in New York and New Jersey, which are right next to each other, there's a river that divides them. They looked at youth on one side of the river and youth on the other side of the river. And they said that the young people who are in juvenile court in New Jersey versus the youth who are in adult court in New York charged with the same offenses have a completely different outcome. So those young people in juvenile court in New Jersey much less likely to reoffend.

  • 11:51:58

    REHMAll right. And to Alisha here in Washington, D.C. You're on the air.

  • 11:52:05

    ALISHAHi. I'm so happy to be able to speak on this issue because this is an issue that's very dear to my heart. When I was 16, I was Title 16 and held over D.C. jail on solitary confinement for two-and-a-half years. And in this two-and-a-half years this entire period, I received absolutely no education resources at all and very limited mental health help. And I do not agree with the DA at all that a child is placed in an adult system to be held accountable for their actions. I totally believe that it's barbaric and they're placed there strictly for punishment because there's no rehabilitation sources or resources or help there at all.

  • 11:52:50

    ALISHAAnd so I think that the only way that we'll be able to change this system is to go directly through congress and try to get these kids in juvenile court before they're just thrown in place in an adult court.

  • 11:53:01

    REHMAll right. Alisha, thanks for sharing your experience. And you're listening to "The Diane Rehm Show." What do you think of that, Dan May?

  • 11:53:13

    MAYActually I agree with her on that point. If you're thrown into a system that they're doing nothing for you, that is barbaric. And I agree 100 percent. When Colorado in '93 changed our system to allow DAs to sentence people, we at the same time funded what we called our Youth Defender System, which is that facility I'm talking about in Pueblo, Colorado. You have to put money into that. You know, when you've got a high school there, when you've got trade programs, those are the type things that you have to do. And that's why here we've been so successful.

  • 11:53:41

    MAYThat's why, again, when I say if I put a kid in the juvenile system, almost 40 percent of them will reoffend when they -- in the system. If I put a kid into the adult prison itself, 51 percent of them will reoffend within the year. When I take the worst of the worst and put them into our program, 6 percent come out. I do want to say, Liz, I agree with you also that I think we do see a rise in recidivism in about the 5-year point with people with permanent convictions. I agree with you that we need to put in a system of sealing somebody's record after a couple years out and they've been successful to keep them successful throughout their life.

  • 11:54:17

    MAYBut those are tinkering. That's not throwing out the bathtub, which is what people are suggesting. And, again, you have to look at the individual system. You just can't use these blanket things of adult system and what does it mean. And she's right, you have to have programs for our youth. That's where we need to spend our money. And if congress just passes law without giving the money to help the kids, it will have no effect.

  • 11:54:38

    REHMLiz.

  • 11:54:39

    RYANYou know, one point that I think we should also make here is that the juvenile justice system is also being transformed at the same time that these laws keeping kids out of adult court have been happening across the country. So we know that the Juvenile Justice System, when it was founded in 1899, the concept was rehabilitation in young people and keeping them out of adult jails and prisons. And that's eroded overtime. So at the same time that we're pushing to keep kids out of adult court, we're also pushing that the Juvenile Justice System be stronger and keep lots of kids out of that system as well. So these kinds of efforts have been going in tandem with each other.

  • 11:55:15

    REHMJohn Schwartz, what about the privatization of the prison system? Has that played any role at all here?

  • 11:55:25

    SCHWARTZWell, it's a separate set of issues. There was some discussion in the Colorado case about that but I really don't feel confidant to talk about it. I'm sorry.

  • 11:55:33

    REHMLiz.

  • 11:55:34

    RYANI'll mention one case in Mississippi. There was a facility that was run by the GO group. And that facility was designed for young people who are tried in adult criminal court. And it was so horrific that the State of Mississippi has banned that group from having any facilities like that in the state. And that facility -- the people that run that facility actually lobbied to make it easier to try kids in adult court to fill their prison.

  • 11:56:01

    REHMLiz, do you go completely to the idea that no juvenile, no matter what the crime, should be tried in adult court?

  • 11:56:15

    RYANThat's the mission of our organization, Diane. We believe that this practice should end. Where the public is on this is the public goes sort of a step before that believing that there are some instances where a young person could be tried in adult court and that a judge ought to look at that case. There ought to be a hearing. There ought to be fairness added to that. So we see where the public is. Where we are is we want to eliminate this extreme practice because we know the harm that happens. And we hope to see that some day and these state trends get us on the path to that.

  • 11:56:51

    REHMLiz Ryan, president and founder of Campaign for Youth Justice. John Schwartz. He's national correspondent for the New York Times. Dan May. he's a District Attorney in Colorado Springs, president of the Colorado District Attorney's council. Thank you all for being with us.

  • 11:57:17

    RYANThank you so much, Diane.

  • 11:57:18

    MAYThank you, Diane.

  • 11:57:19

    SCHWARTZThank you very much.

  • 11:57:20

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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