In Some States, Raising the Age for Adult Court Is the Easy Part
But in South Carolina, making the juvenile system more humane will be much harder.
by Eli Hager, The Marshall Project
September 27, 2016
It has become a national trend: raising the age at which teenagers are tried in adult court. In just the last few years, Connecticut, Illinois, Mississippi, Massachusetts, and New Hampshire have all passed laws to shift the dividing line between juveniles and adults, usually from 17 to 18. And this summer both Louisiana and South Carolina joined the list, bringing the total number to 43.
Yet it’s one thing to raise the age, and quite another to prepare the juvenile system to respond. South Carolina, where the treatment of young people has been under a particularly harsh spotlight, is thus poised to become an intensive laboratory of change over the next couple of years.
The state’s new law, which passed easily and was signed by Governor Nikki Haley in early June, would transfer 17-year-olds from the unforgiving adult system into a juvenile system intended to promote their rehabilitation and education. That shift, however, will not take effect until 2019, because corrections officials need time to figure out how many of these 17-year-olds there are—and how much it will cost to relocate them.
As it stands now, the juvenile system is in no position to offer the kind of substantially better environment that the raise-the-age movement had in mind.
“The same people who sat at the table to get the law passed, they now have to answer the question, Hey, what’s it going to take to make this work?” said Sue Berkowitz, the director of the South Carolina Appleseed Legal Justice Center, one of the chief proponents of the bill. “We’ve got to concretely say, OK, we’re going to have X number of 17-year-olds now, what do we need to do next?”
Part of the answer to that question, advocates and legislators say, will be preparing the juvenile system to be less like the adult system, which will take considerable work.
In February, the state’s main juvenile detention center, the Broad River Road Complex in Columbia, was wracked by violence for the fourth time in six months. Boys—some in gangs but many also enraged by the conditions they were being held in—set fires, tore out sinks and smashed them into windows, and climbed onto the roof. In another incident, a boy nearly destroyed a dorm with a baseball bat; in 2013, one correctional officer broke a boy’s leg and another stabbed a girl with a fork.
“Is DJJ in crisis? Yes. Am I afraid? Yes. Is there an escalation of violence? Yes,” said Catherine McKnight, an employee of the juvenile justice department, to a legislative oversight committee in March.
Meanwhile, at least 20 percent of the about 100 juveniles held at the Broad River Road facility are confined in its “Crisis Management Unit”—in other words, in solitary confinement. For about 23 hours a day (leaving one hour for recreation, education, and showers), they live in small, concrete cells with a painted-over window, a food slot and a crack under the door to speak through.
Many of them have been held in isolation for months at a time, according to affidavits from juveniles, interviews with monitors authorized by law to observe the conditions, and records from oversight hearings of the state legislature.
They are also shackled (at the wrists, waist, and ankles) for most movement outside their cells. That includes when they are playing basketball and sometimes taking showers, said Phyllis Ross, an advocate for Protection and Advocacy, the disability-rights group that has been monitoring the facility for over a decade. “If you haven’t seen that, it’s a pretty mean feat to shoot a basketball in handcuffs,” she added.
But under South Carolina’s new law, there is no formal requirement that problems in the juvenile system be addressed as part of the raise-the-age process.
Court officials must first collect data on how many 17-year-olds are in the system, and report it to the legislature by Sept. 1 of next year. Next, based in part on that number, the Department of Juvenile Justice will request some amount of additional funding to handle all the new teenagers. At that point, advocates and corrections officials say, the Department of Juvenile Justice would convene a working group—composed of DJJ staff, adult corrections officials, public defenders, prosecutors, and probation officers—to review how or in what way the system might be improved. (By contrast, Louisiana, the other state to raise the age this year, chose to evaluate its juvenile system before passing its law.)
As of now, the juvenile justice department supervises about 1,000 young people—some of them as young as five, though only 11-year-olds and older are held in secure detention—across a half-dozen facilities.
Of course, many of the hundreds of new 17-year-olds set to enter that system will be facing lower-level charges and, therefore, will not be headed to Broad River Road. Most will be placed in smaller, closer-to-home, treatment-focused facilities, and almost all will face much shorter terms of confinement than they would have been sentenced to in the adult system.
Patrick Montgomery, director of public affairs for the department, said that for these reasons, they are prepared for the arrival of any new population, and to treat everyone humanely.
Isolation, he said, will continue to be an “absolute last resort to ensure the safety and compliance of the juvenile” and won’t ever be used as punishment. “We want to get the juvenile into [isolation] as soon as possible when they are a threat to themselves, other juveniles or staff…but we try not to have them in there for weeks,” he said, adding that shackling is only used when they are outside their cells (for recreation and transfers) and that the paint covering the windows is being removed.
Montgomery also noted that the department has “completely overhauled” its disciplinary system for juveniles, including new “aggression replacement training”; installed “Lexan break-resistant windows,” perimeter fences, and surveillance cameras around the detention center; and redeployed its Special Response Team for crises.
Then again, the other states that have raised the age recently also had reasons for concern before doing so. Prosecutors and corrections officials worried that the juvenile systems, with all their existing shortcomings, would be unable to handle all the new teenagers coming in — at least not without building more youth prisons and resorting to more punitive disciplinary measures.
“People always think, ‘Oh no, all these new kids are going to be in the juvenile system now, are they ready for it?’” said Marcy Mistrett, CEO of the Campaign for Youth Justice, which supports raise-the-age legislation around the country.
But instead, many of the states ended up using the rise in age as an opportunity to address any existing problems on the juvenile side, like those South Carolina’s system is facing now.
In Massachusetts, instead of the raise-the-age-related influx of 1,637 new teenagers that the state’s department of youth services had feared, only 856 materialized—thanks in part to a concerted effort to place more boys and girls in diversion programs and treatment centers instead of confinement. In Illinois, where Chicago’s state’s attorney had predicted that raising the age would create a need for three new courtrooms and nine extra prosecutors, the total number of juveniles in detention has actually dropped every year since 2010; three of the state’s youth prisons have now been closed.
“The sky didn’t fall,” said Mistrett. “Part of phasing in the new group of kids was an effort to make sure that what happened to them in the adult system wouldn’t happen in the juvenile system.”
But in South Carolina, the challenge of realizing the raise-the-age law’s full potential is perhaps steeper.
“I feel like all of my freedom, confidence and dignity has been taken away from me, and DJJ the one who took it,” wrote one juvenile, in a recent affidavit, about the existing problems in the juvenile system. He added that he’d had shackles on for so long that he now instinctively holds his wrists together even with the cuffs off.
And beyond the crisis in secure detention, South Carolina is also an outlier in how it pushes young people out of school and into the justice system—especially through its “disturbing schools” law, which punishes students who “act in an obnoxious manner” with up to 90 days in jail. (The issue came into focus last year when a Columbia-area police officer tackled a female student, on a video that went viral, for refusing to put away her cell phone.)
The result: large numbers of youths coming into the system, especially from schools and for age-based offenses like drinking and truancy. But meanwhile, since the recession, several group homes for kids and other “community-based” facilities have been shuttered. That combination—lots of juveniles but nowhere to put them—has left the state’s judges no option but to send everyone to the violent Broad River Road Complex or to one of the juvenile justice department’s three “residential evaluation centers,” which are jail-like facilities where young people can be held for up to 45 days as their cases are decided.
That’s why in South Carolina and the six other states now considering their own legislation to raise the age, making space for all the new 17-year-olds—and ensuring they are rehabilitated as intended by the raise-the-age movement in the first place—may entail fixing the juvenile system, too.
Eli Hager is a staff writer for The Marshall Project, and his work has appeared in the Washington Post and elsewhere. He also solicits, collects, and edits journalism by incarcerated writers for the “Life Inside” feature. He is a graduate of the University of Michigan and Columbia University.
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