Chairman Young, Ranking Member Glick, Ranking Minority Member Tallian, and members of the Senate Corrections and Criminal Law Committee:

My name is Alan Smith, and I am a senior fellow and Midwest Director at the R Street Institute, which is a nonprofit, nonpartisan, public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, specifically including prosecutorial reform, which is why SB 368 is of particular interest to us.

There is no more important responsibility of lawmakers than to protect their citizens, and particularly children. Sen. Tallian has authored comprehensive legislation to accomplish several objectives, which together further distinguish children from adults in the criminal justice system, based on extensive research and common sense.

First, Indiana is one of only five states that do not distinguish between adults and children insofar as competency to stand trial is concerned. It makes no sense to develop assessment measures based on mental capacity to recognize right and wrong and not apply them equally to folks whose brains are not even fully developed until their mid-20s. The International Journal of Environmental Research and Public Health reported in 2016 that up to 80 percent of incarcerated youth suffer from a mental health disorder. Rather than having an opportunity to receive the care they need, children with mental health needs and intellectual disabilities often face a juvenile delinquency process in order to obtain critical services.

Second, both research and common sense suggest that children have no place in adult jails, even while awaiting trial. However, children as young as 12 years old who are waived into adult court can be housed with adult criminals before trial. According to the American Bar Association (2016), children who are incarcerated as adults can have higher recidivism rates. Moreover, violence toward them is even more dangerous. A 2009 report by the National Prison Rape Elimination Commission (2009) found that youth in adult facilities are at a high risk of being physically or sexually assaulted. To avoid the expected assaults, often youth are placed in conditions akin to solitary confinement and the isolation begets its own brand of anti-social behavior or puts children at risk of depression, self-harm, and suicide. Making matters worse, youth in adult facilities often have little to no access to developmentally-appropriate services suited to the unique needs of children.

For all of the reasons above, the bipartisan reauthorization of the Juvenile Justice and Delinquency Prevention Act in 2018 was specifically enacted by Congress to prevent this. Indiana will lose hundreds of thousands of dollars in federal funding if this change is not made in the 2021 legislative session.

We at R Street also support the removal of juvenile life without parole. The American Bar Association has overwhelmingly voted to abolish any juvenile sentence to life without parole, as has a clear line of U.S. Supreme Court cases. As in many other places in the criminal justice system, which is under intense review in every state, there is also a troubling equity issue. Research published in 2021 by the Campaign for the Fair Sentencing of Youth reveals that African American youth are sentenced to life without parole at ten times the per capita rate of white youth.

Lastly, automatic expungement of juvenile records may be the critical pivot point in a minor’s life because of the lasting impediment to employment, housing, education, financial aid, military service and many other types of vocational training. Currently, there is a wide discretion invested in courts regarding what convictions are expungable and uniformity would serve the public much better. It is also true that the burden of a conviction is often carried in perpetuity merely because of the hurdle of hiring legal counsel to perform the action.

There are other technical provisions in the bill and we endorse them all, but clearly the above features are most important for a modern system of juvenile justice.

I respectfully request this letter to be included as part of the public hearing record.

Alan Smith
Midwest Director and Resident Senior Fellow
R Street Institute
[email protected]