Children do not belong in prison

We must curtail the power of prosecutors to try kids as adults

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In phone calls from the Northern Neck Regional Jail in Virginia, on his way to the U.S. Penitentiary-Coleman in Florida, Rob Barton discusses with collaborator Pam Bailey the practice of charging juveniles as adults. His comments appear in italics.

Four months after I turned 16, I was charged as an adult with murder. Yet, as a psychologist told the court, I was highly influenceable. I was still a child, still developing, and could have been directed down a different path.

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Rob, founder of More Than Our Crimes, will participate via recorded statement.

Instead, the prosecutor handling Rob’s case chose to charge him as an adult. As he awaited trial and then sentencing, he received no educational programming, got no counseling and was allowed minimal interaction with his family.

In the adult system, it is essentially just a warehouse. It’s violent. You’re watching the adults and you kind of get indoctrinated into how to do time in that fashion. And the guards never intervene.

Today, it’s not as bad. Juveniles charged as adults in D.C. are sent to the New Beginnings Youth Development Center — high security, but with programming and support appropriate for children and youth. Still, the next step is not release once the youths hit adulthood, but transfer into the federal prison system — to which D.C. outsources its offenders — for sentences that are often decades-long. Although he was not the shooter, Rob was sentenced to 30 years to life.

As a young teen, you’re just barely coming into your own, and you don’t really have a concept of what it all means. I was still growing, still developing, still figuring out who I was. Sending me to an adult penitentiary cut that all short, and I had to learn to survive in a jungle.

According to a fact sheet compiled by Marcy Mistrett, CEO of the Campaign for Youth Justice, D.C. is:

One of 13 jurisdictions in the country that grants prosecutors the power to decide in which court (juvenile or criminal) a child is charged.

One of four that grants prosecutors this authority without any mechanism for the courts to “reverse waive” a child back to juvenile court.

The only jurisdiction in the country in which a federal agency (the U.S. Attorney’s Office) has exclusive authority to send a child to criminal court, without any judicial review. (This is because D.C. has not yet been granted the rights of statehood.)

Between 2015–2019, 175 children were sentenced as adults in D.C., and all but 16 were Black (only two were categorized as white). D.C. minors are tried as adults on criminal charges three times more often than the national average.

Beginning with United States v. Bland in 1972, appellate courts have upheld the constitutionality of D.C.’s direct-file law, known as Title 16. In a dissenting opinion in that case, U.S. Judge Skelly Wright eloquently wrote: “I am confident that a child is unlikely to succeed in the long, difficult process of rehabilitation when his teachers during his confinement are adult criminals. I am sure that playing fast and loose with fundamental rights will never buy us ‘law and order.’”

Mistrett points out that California, Colorado, Vermont, Utah and Virginia have all rolled back or eliminated their own direct-file statutes in the past decade, while keeping violent crime among youth at 40-year lows. However, without statehood, D.C. cannot follow suit; only the U.S. Congress may do so.

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Background

V. Noah Gimbel, formerly editor in chief of The Georgetown Law Journal, provides this very instructive backdrop:

Over the first half of the 1960s, crime rates in D.C. began to increase dramatically — especially among juveniles. Black children comprised 93% of juvenile offenders by 1966. President Lyndon B. Johnson created an executive commission to study the issue, reinforced by teen participation in the race riots that erupted in the wake of Martin Luther King Jr.’s assassination in April 1968. Prevailing white opinion seemed to be that “black boys are not children, they are threats.” Richard Nixon was elected months later after campaigning on a platform of law and order. D.C. — racially and economically polarized without a local government of its own — “was the perfect test lab for his policies.” The result was the passage of the District of Columbia Court Reform and Criminal Procedure Act of 1970, formalized in Title 16 of the D.C. Code.

The U.S. Attorney in D.C. now has the authority to charge minors as adults if they are accused of committing murder, first-degree sexual abuse, burglary in the first degree, armed robbery or assault with intent to commit any of these offenses. Only the low threshold of probable cause is required for a grand jury, and no appeal is permitted.

Developing brains warrant different treatment

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Yet, as Mistrett points out, research on adolescent brain development shows that youth are more likely than adults both to respond positively to rehabilitation programming and to be permanently traumatized by the harsh realities of prison. (In fact, the United Nations Special Rapporteur on Torture has explicitly stated that subjecting juveniles to solitary confinement — a practice imposed on an estimated 20% of residents of state and federal prisons every year — is a violation of international human rights law.)

Gimbel summarized volumes of scientific research when he wrote, “Recent advances in neuroscience have shed light on how juveniles’ developing brains render them susceptible to impulsive decision making and less able to rationally weigh the consequences of their behavior.”

On top of that, he added, “adult treatment fails to deter delinquency both generally in the community and specifically among individual offenders.”

Reform needed

What I want to tell people is that you need to take into consideration what leads kids to pick up a gun to solve their problems. There’s a lot of trauma that happened to me and other kids like me. But we can change, and we do if given the opportunity and support.

Rob believes children should never be charged as adults. But there is an interim step: to mandate a “transfer waiver” hearing in front of a judge before a child can be charged as an adult. But that requires an act of Congress (in which District residents lack even a single voting representative) — or statehood for D.C.

“The Home Rule Act’s circumscription of the democratic self-rule of D.C. residents takes the control over the future of D.C. youth out of the hands of the community and places it in the hands of an unaccountable Congress,” concludes Gimbel. “Pleas to provide more humane pathways to rehabilitation for D.C. children — especially Black children — are answered by the steely echo reverberating from the 1970 Nixonian crime-fighting Congress: There are no children here.”

It’s time for that to change.

Written by

Rob Barton has been incarcerated for 25 years. Pam Bailey is his collaborator/editor. Learn more at MoreThanOurCrimes.org

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