Northam’s proposed criminal justice reform agenda includes a small, but crucial reform for juvenile offenders
Last month, Virginia Gov. Ralph Northam announced a criminal justice reform agenda for the coming legislative session. The proposed reforms include marijuana decriminalization, parole reform, and increased support for public defenders. One item on the list that might be easy to miss but would make an enormous difference is raising the age of direct file from 14 to 16.
Under direct file (also called “prosecutorial waiver”), prosecutors are granted the unilateral authority to place a young person’s case directly into the adult criminal justice system instead of the juvenile justice system. When a prosecutor chooses to direct file a child, it means the child does not receive a hearing in front of a judge — a disinterested third party — that could take into account the unique considerations of the case. And when children are plunged into the adult system, which is ill-equipped to respond to their needs, horrific consequences for them and for our communities often follow.
Currently, prosecutors can place children as young as 14 into Virginia’s adult system, even though research has found there are significant developmental differences between children and adults. Indeed, until age 25, children’s brains are still developing: Their prefrontal cortexes — the portion of their brain dedicated to higher order thinking and decision-making — aren’t yet fully formed.
This is both good and bad news. The bad news is that sometimes children do irrational, impulsive things. Any parent of a teenager knows this is the case. But the good news is that, because their cognitive abilities are still developing, children are especially capable of reforming their ways — as long as they are placed in the right environment.
Unfortunately, the adult system is almost without exception the wrong place for children. Children are far more likely to be physically and sexually abused in the adult system, and are nine times more likely to commit suicide, than are their peers in the juvenile system. They are also far less likely to receive age-appropriate educational services or treatment for any underlying psychological or behavioral issues. And children in the adult system leave prison with an adult criminal record that has far harsher collateral consequences than a juvenile record, including lifelong barriers to crucial necessities like housing, education and employment. In many cases, this record will follow them for the rest of their lives.
It is no wonder, then, that children placed in the adult system are more likely to reoffend once they are released than those who were allowed to remain in the juvenile system. This reality makes our communities less safe and, when children who’ve been sent into the adult system end up there again, costs taxpayers more money.
Unless we change the laws, direct file is likely to continue unfettered. The incentives under which prosecutors operate are often stacked against young people, since many prosecutors are rewarded for seeking the harshest sanctions — which are found in the adult system — in every case possible. Prosecutors can also use the system as a plea bargaining tool to force outcomes that may not be in children’s best interest — and many take advantage of this opportunity. There is also evidence that direct file policies aren’t applied equally across the board. In some jurisdictions in Virginia, commonwealth’s attorneys will direct file every eligible case, while in others, they only direct file the most serious cases involving older youth. Direct file policies have also been known to exacerbate racial disparities in the system.
A system that is fair and equitable is a must, especially when it comes to children. This is why many states — even those that allow the transfer of a child to adult court after a hearing — have eliminated direct file. Changing the age of direct file from 14 to 16 is thus a step in the right direction — toward making sure children remain in the juvenile justice system. These eighth- and ninth-graders are so young that we’ve deemed them incapable of driving, voting or joining the military. Many are still in middle school, busy with sports, video games, homework and orchestra practice. They are children. Ensuring they remain in the juvenile justice system is far more likely to result in positive outcomes for them and for our communities.