By LaToya B. Powell

Yesterday, lawmakers returned to Raleigh for the 2017 long session. Among the many important issues the legislature is expected to consider this year, “raise the age” will likely once again be included. Since 1919, N.C. law has required that minors be prosecuted as adults for all crimes beginning at age 16. There has been a long-standing campaign to raise the juvenile age but legislative proposals attempting to do so have repeatedly failed. New York is the only other state in the nation that automatically prosecutes 16-year-olds as adults, although that state allows “reverse waiver” which permits transfer from criminal to juvenile court.

One of the reasons often cited for the legislature’s reluctance to raise the age is the strong opposition of law enforcement officers and prosecutors to such reform. That assertion is no longer valid, at least in part. The N.C. Sheriffs’ Association and several other law enforcement groups have publicly endorsed a new raise the age proposal by the Criminal Investigation and Adjudication Committee of the North Carolina Commission on the Administration of Law and Justice (NCCALJ). The proposal recommends that North Carolina raise the age of juvenile court jurisdiction to include 16- and 17-year-olds for all offenses, except high-level felonies and traffic offenses. Youthful offenders (16- and 17-year-olds) who commit Class A-E felonies would be automatically transferred to adult court upon a finding of probable cause or an indictment, alleviating public safety concerns held by law enforcement officers and prosecutors about violent juvenile offenders.

The proposal reflects a collaborative effort by a diverse group of stakeholders which began in September 2015, when Chief Justice Mark Martin convened the NCCALJ. The Chief Justice charged the commission’s five committees to evaluate the court system and make recommendations on how to strengthen it. The Criminal Investigation and Adjudication Committee quickly identified “juvenile reinvestment” (or raise the age) as one of the four topics it would consider. That committee invited additional experts and stakeholders to join a Juvenile Age Subcommittee to provide relevant research and expertise in juvenile law. What followed was a comprehensive, thoughtful discussion about raise the age informed by research, evidence, and input from all relevant stakeholders, including representatives of the N.C. Sheriffs’ Association, N.C. Police Benevolent Association, N.C. Conference of District Attorneys, and Division of Juvenile Justice.

The Juvenile Reinvestment Report outlines several evidence-based reasons why North Carolina should raise the age. The report references the substantial body of research on adolescent brain development which confirms that teenagers are naturally prone to make bad decisions. Due to immature brain development, teenagers are more impulsive, engage in greater risk-taking behavior, and lack the capacity to think and reason like adults. The report questions a justice system policy that holds teenagers to the same standard as adults who are fully capable of exercising good judgment but choose not to do so. It also references several recent U.S. Supreme Court decisions (Roper, Graham, Miller, and Montgomery) which rely on this same research to conclude that juveniles are less culpable for their actions and have a greater capacity for change. As a result, the report concludes that it is more developmentally appropriate to prosecute youthful offenders as juveniles than as adults.

Perhaps more persuasive to the law enforcement community is the substantial evidence which supports the commission’s conclusion that rehabilitating youthful offenders in juvenile court will reduce crime and increase public safety. North Carolina data shows that youthful offenders who are rehabilitated in the juvenile justice system are less likely to reoffend than those who are prosecuted as adults. This data is consistent with national recidivism studies and research finding that intensive rehabilitation and treatment in the juvenile justice system is far more effective in changing a juvenile’s behavior than punishment and incarceration in adult facilities. Lower recidivism means less crime and safer communities.

The report also notes that lower recidivism is likely to result in a significant economic benefit to N.C. taxpayers due to less victimization and less money spent on the future prosecution and incarceration of these offenders. Removing the burden of a criminal record will also increase the future earning potential of many youthful offenders and allow them to become contributing members of society. In 2009, the Governor’s Crime Commission Juvenile Age Study concluded that North Carolina could experience a net benefit of $7.1 million by raising the age. A separate study completed in 2011 by the NC Youth Accountability Task Force estimated that the net benefit could be as much as $52.3 million.

To address additional concerns of the law enforcement community, the proposal is contingent on several other provisions:

  1. that the current procedure in G.S. 7B-2200 authorizing the transfer of juveniles to superior court is maintained, except that 16- and 17-year-olds who commit Class A-E felonies will be automatically transferred upon a finding of probable cause or an indictment;
  2. that the Juvenile Code be amended to give law enforcement officers greater access to information about juveniles to assist them in exercising their discretion to make decisions about custody, release, and filing a complaint;
  3. that the Juvenile Code be amended to require juvenile court counselors to track consultations with law enforcement officers about juveniles and to provide more information to victims and complainants about juvenile complaints;
  4. that the Juvenile Code be amended to give victims the right to request that a prosecutor review a juvenile court counselor’s decision not to approve the filing of a juvenile petition;
  5. that prosecutors and juvenile defenders be provided greater access to electronic juvenile records; and
  6. that the legislature provides full funding to implement these recommendations.

In a letter attached to the Juvenile Reinvestment Report, the N.C. Sheriffs’ Association explained that it fully supports the current proposal to raise the age but emphasized that its support is contingent upon the implementation of the above-referenced six provisions. The association commended the Juvenile Age Subcommittee and its leaders for genuinely listening to the concerns of the law enforcement community and for their “willingness to address the practical real world concerns identified by the sheriffs’.” The association previously opposed this reform because past raise the age proposals did little, if anything, to address their concerns.

In addition to law enforcement support, the NCCALJ’s proposal has broad bipartisan support from many other stakeholder groups, organizations, and the public. The vast majority (96 percent) of public comments on raise the age indicated support for the proposal. A broad range of groups has publicly endorsed the proposal, including:

  • Conservatives for Criminal Justice Reform
  • John Locke Foundation
  • N.C. Association of Chiefs of Police
  • N.C. Chamber Legal Institute
  • N.C. Division of Adult Correction and Juvenile Justice
  • N.C. Magistrates Association
  • N.C. Police Benevolent Association
  • N.C. Sentencing and Policy Advisory Commission
  • N.C. Sheriffs’ Association
  • Office of Indigent Defense Services

The N.C. Conference of District Attorneys is one stakeholder that has not endorsed the proposal. Prosecutors expressed concern that the juvenile justice system lacks appropriate consequences for violent juvenile offenders and that full funding is needed to implement raise the age. In exchange for its support, prosecutors requested the sole discretion to transfer juveniles to superior court for Class A-E felonies, beginning at age 13, without a transfer hearing – a process referred to as “direct file.” Currently, G.S. 7B-2200 authorizes the transfer of juveniles beginning at age 13 but only by a district court judge and only after a hearing (transfer is mandatory for Class A felonies upon a finding of probable cause). The Committee declined to adopt this request, citing statewide data which shows a 58 percent prosecution success rate for transfer of 13, 14, and 15-year-olds, which increases to a 65 percent prosecution success rate when limited to 15-year-olds. The committee also favored maintaining the existing policy which vests transfer authority in a judge, a neutral decision maker, to promote procedural fairness in transfer decisions.

The Juvenile Reinvestment Report also cites a recent report by the National Conference of State Legislatures discussing a national trend in reforming transfer, waiver, and direct file laws to limit the transfer of juveniles to adult court and “plac[e] decisions about rehabilitation and appropriate treatment in the hands of the juvenile court.” The State Legislatures report indicates that a 2015 Illinois law eliminates automatic transfer for 15-year-olds and only transfers 16- and 17-year-olds for certain serious offenses. The same report indicates that Connecticut raised the age for transfer to 15 and New Jersey raised the age for transfer to 16.

In November 2016, California voters approved Proposition 57 which eliminated direct file authority by prosecutors and gave all juveniles the right to a hearing before being transferred to adult court. More recently, the Ohio Supreme Court ruled in State v. Aalim, __ N.E.3d __ (Ohio, Dec. 22, 2016), that the mandatory transfer of juveniles to adult criminal courts violates a juvenile’s right to due process under the Ohio Constitution. The court noted that juveniles are given a “special status” under the state constitution which is consistent with U.S. Supreme Court decisions mandating that juveniles be treated differently than adults for purposes of sentencing. The court concluded that “all children, regardless of age, must have individual consideration at amenability hearings before being transferred from the protections of juvenile court to adult court[.]”

Raise the age proponents will likely disagree with the automatic transfer provision of the NCCALJ’s proposal. However, if the legislature adopts the recommendation, it means that the vast majority of youthful offenders will be removed from adult criminal courts since only 3.3 percent of 16- and 17-year-olds are convicted of violent felonies. Most of them, 80.4 percent, are convicted of misdemeanors, while 16.3 percent are convicted of non-violent felonies, according to a report from the N.C. Sentencing and Policy Commission.

Despite the broad public support for the commission’s proposal, there is no guarantee that a raise the age bill will be approved this session. And, even if the legislature considers the NCCALJ’s proposal, any resulting legislation could look vastly different. For more information about the NCCALJ’s raise the age proposal or to read about the commission’s other recommendations, click here.