Offenders under 21 would be automatically tried as juveniles under new California bill

SACRAMENTO —  California lawmakers will consider expanding the reach of the state’s juvenile justice system so that those under age 21 are automatically tried as minors — an idea backed by some state probation officers, who say teenagers aren’t mature enough to be held responsible in the same way as older offenders.

Though few details are included in the legislation introduced at the state Capitol on Tuesday, Senate Bill 889 was proposed in “recognition that people under 21 still need guidance,” said its author, state Sen. Nancy Skinner (D-Berkeley). Skinner pointed to other laws, such as restrictions on purchasing tobacco, cannabis and alcohol, that require a person to be 21 as the “adult or responsible age,” she said.

“The science says [those] between 18 and 24 have less than fully developed prefrontal cortexes,” said Brian Richart, president of the Chief Probation Officers of California, the trade association that represents probation officials across the state. “Their decision making is inhibited. They act impulsively and we know this, yet we treat them as if they are fully developed.”

“Treating 18- and 19-year-olds as adults makes no ... sense in the criminal context,” Skinner said, adding that, like previous reform efforts addressing juvenile justice, the measure would likely leave courts some discretion when dealing with the most serious crimes.

While the proposal has the backing of multiple criminal justice reform organizations, others have voiced skepticism. Daniel Macallair, executive director of San Francisco-based Center on Juvenile and Criminal Justice, said he thinks the probation chiefs association might be largely backing the idea as a way to protect jobs. Macallair points out that juvenile arrests have steadily fallen in the state for years, and many juvenile halls have few inmates — San Francisco is in the process of closing its facility for lack of use.

California arrested 17,200 minors under the age of 17 for felonies in 2018, and more than half were black and 36% Latino, according to statistics from the California Department of Justice. The same year, about 14,400 people aged 18 and 19 were arrested on felony charges. An analysis by CJCJ estimates that raising the age of those tried in juvenile courts to 20 and younger could send thousands of new inmates to fill juvenile facilities; Macallair worries those considered juveniles could be held longer than if they went to adult facilities.

“You’ve got juvenile halls that are sitting empty and they are seeking a population to fill it,” Macallair said. “I think what’s prompting this is not a desire to necessarily do things in a different way, but I think [it] is out of concern that the juvenile hall population is declining.”

Macallair said he is also concerned about holding older offenders with younger minors.

“The Legislature should slow down and really conduct an analysis to what the benefits are and what the problems are that will arise,” he said.

Larry Morse, legislative director of the California District Attorneys Assn., said his organization hadn’t yet taken a position but had questions.

“We note that when someone turns 18, the government declares them old enough to marry, to bind themselves in contracts, to vote, and most importantly, decide to put their life on the line in service to their country,” Morse said in a statement. “This bill suggests you’re old enough to make those decisions, yet not responsible enough to be held accountable for committing a violent crime. This seeming contradiction is of great concern.”

The measure builds on years of juvenile justice reform in the state beginning with efforts championed by then-Gov. Arnold Schwarzenegger. Faced with lawsuits and criticisms over harsh conditions in juvenile facilities, including mistreatment of children and confinement of up to 23 hours a day, in 2004 Schwarzenegger overhauled the California Youth Authority, which held about 3,600 children at the time. The Legislature further realigned the juvenile justice system in 2007, giving more control to county probation departments in what would later become a model for Gov. Jerry Brown’s reorganization of the adult system.

Around seven years ago, California began rethinking how it treats young offenders, moving away from a system based on punishment and focusing on rehabilitation. Since then, there has been a push from criminal justice advocates to remove minors from California’s adult correctional system.

Those efforts led the Legislature in 2013 to pass measures aimed at giving minors more opportunity for a second chance, allowing those who were convicted as adults before their 18th birthday to receive early parole hearings. The idea was expanded the following year to include those convicted prior to their 23rd birthday. Skinner in 2014 wrote legislation later signed by Brown that automatically sealed juvenile records after probation was complete.

With the passage of Proposition 57 in 2016, voters took power from prosecutors to decide which minors should be tried as adults, giving the decision to judges. The state also ended the prosecution of its youngest offenders in 2018, limiting the jurisdiction of juvenile courts to those ages 12-17 in all cases except murder and rape, and effectively ending the prosecution of children 11 and younger. The same year, another measure passed that barred minors under 16 from being placed in the adult corrections system.

Gov. Gavin Newsom also weighed in on juvenile justice in his first year, suggesting a plan to move control of state juvenile inmates away from corrections and instead place them under the purview of government health and human services officials. Currently, the state has about 700 youth offenders, compared to about 4,000 minors detained daily in county-run juvenile facilities statewide, and about 35,000 who are overseen by probation officers in their communities. State-held juvenile offenders are often those with the most serious charges and mental health needs.

Richart, the head of the probation chiefs association, dismissed the notion that the measure was a jobs bill. He said that when he was a young probation officer, a 17-year-old member of his family was incarcerated in state prison, and he witnessed the impact it had even after release. The experience “informed my own thinking on the more humane way to treat people,” he said.

“Our proposal ... is saying that in the eyes of the criminal justice system, we really need to look at the age of maturity, not adulthood,” Richart said.