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COMMENTARY: Judges should decide whether youths are tried as adults

COMMENTARY: Judges should decide whether youths are tried as adults

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The Virginia House of Delegates just voted 99–0 to approve a bill from Del. Elizabeth Guzman (HB 477) to limit the authority of prosecutors and legislators to make decisions about whether youthful offenders should be tried as adults.

The bill raises the minimum age of the alleged offender from 14 to 16 for cases that might result in “automatic” transfer to Circuit Court, and for cases over which commonwealth attorneys currently are able to determine where a youth should be tried.

In making these changes, the legislation restores to Juvenile and Domestic Relations Court judges the authority to make the weighty decision about whether to expose 14- and 15-year-olds to the hardships of the adult criminal justice system and the lifelong stigma of an adult felony conviction.

It is not a surprise that the legislation drew such strong support from across the political aisle. The bill aligns with what science tells us (and what we know intuitively) about kids—that they are different from adults in important ways, including their capacity for change. It recognizes that the fairest way to address complex and weighty legal decisions is to let judges make them—rather than legislators or prosecutors.

Last but not least, the legislation creates needed checks and balances for a system that makes it too easy for children to inappropriately end up in the adult criminal justice system. For example, state data shows that more than half the time, Circuit Court judges do not deem it necessary to even send transferred youth to the Department of Corrections, and that troubling racial disparities exist in the number of youth who are tried as adults.

The other change to the law that the bill proposes is to require that before prosecutors elect to use their remaining discretion to certify 16- and 17-year-old offenders to Circuit Court, they must first obtain and review a comprehensive report about the youth in question. Under the current system, prosecutors lack time, and often information, about the youth before making the decision to certify them to Circuit Court.

Taken together, these changes move Virginia towards a more fair and effective juvenile justice system. Cases involving youth aged 14 and 15 will still be eligible to be moved to the adult system, but only after an impartial judge, who has heard evidence from both sides, makes the decision.

And prosecutors, for those remaining cases where they still exercise discretion, will have the time and information they need before they exercise such grave authority.

Some might reasonably claim that the bill does not go far enough, and that Juvenile and Domestic Relations Court judges should make all decisions regarding whether youth are tried as adults. After all, they get special training for their jobs and are already in the business of making some of the legal system’s hardest and most important decisions about children in cases ranging from custody disputes to domestic violence to juvenile delinquency.

In addition, unlike prosecutors, they make their decisions only after hearing evidence and arguments from both sides.

The question of whether to change the law further, however, will now be left to the Senate when the House bill comes over, or to future legislative sessions.

This paper ran an editorial on Jan. 29 [“Teenage killers should be tried as adults”] opposing Delegate Guzman’s bill. It did so, perhaps, without a full understanding of the changes the legislation proposed, or full recognition of the fact that children, even those who commit very serious crimes, are often capable of rehabilitation and redemption.

Exposing children to the adult criminal justice system, with its attendant risks and lifelong limitations, should always be a last resort, and should only be done after full and careful consideration of not only the charges against them, but also the circumstance of their lives and their potential for change.

Delegate Guzman’s bill rightly moves us closer to that goal.

Andrew Block is the director of the State and Local Government Policy Clinic at the University of Virginia School of Law, and the former director of the Virginia Department of Juvenile Justice. The views expressed here are his alone, and not those of the University of Virginia.

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