“AG Racine Opening Statement For DC Council Hearing On His Bill To Reform The District’s Juvenile Justice system”

From the office of Attorney General Karl A. Racine:

“Attorney General Karl A. Racine today will participate in a DC Council hearing on legislation he introduced in June to improve public safety and increase fairness by modernizing the process for charging juveniles in adult court. Below is the text of AG Racine’s opening statement, as prepared for delivery:

Statement of Karl A. Racine
Attorney General for the District of Columbia

Before Councilmember Charles Allen, Chairperson
Committee on the Judiciary and Public Safety

Public Hearing on
B24-0338, The “Redefinition of Child Amendment Act of 2021”

Thursday, October 7, 2021

Good afternoon. My name is Karl A. Racine. I am the Attorney General for the District of Columbia. Thank you, Chairman Allen and Councilmembers, for the opportunity to speak with you about the “Redefinition of Child Amendment Act of 2021.”

As the elected Attorney General and chief legal officer for the District of Columbia, one of my most important roles is as the prosecutor of law violations committed by children in the District. From the beginning of my time as Attorney General, I have worked to execute this solemn responsibility in a way that achieves better outcomes for District children and their families, enhances public safety, and elevates the voices of victims. That is why I launched the nation’s first restorative justice program within a prosecutor’s office; worked with stakeholders to reform the policy on shackling youth in family court so it is a last resort, rather than a blanket policy; and expanded use of diversion and truancy prevention programs to better serve the needs of children and parents. And it is why I have introduced this important legislation.

When a child is accused of violating the law, we have an opportunity, indeed a responsibility, to intervene to reduce the chances that the child reoffends. This is how we make our communities safer–by working to address the underlying causes that led the child to break the law in the first place and reducing the chances they reoffend, rather than driving them deeper into the criminal justice system, increasing trauma and harm, reducing educational and employment opportunities, and perpetuating racial inequality, making it more likely they will reoffend when they come home. Fortunately, thanks to the Council’s support, we have significant resources to step in and address the issues that cause a child to break the law. But when children are needlessly prosecuted in the adult system, we lose the critical opportunity to intervene.

Let me start by describing what this legislation does. Current District law states bluntly that 16- and 17-year-olds who commit certain local crimes are no longer considered children. As a result, they may be treated as adults and prosecuted in adult criminal court by the U.S. Attorney’s Office (USAO), without a judge’s independent assessment of whether this is appropriate or necessary. This is called “direct filing.” For the most part, the age of adulthood–when you can be charged as an adult–is 18. But, if a child is 16 or 17, and is charged by the USAO with certain crimes–murder, first degree sexual abuse, burglary in the first degree, robbery while armed, or assault with intent to commit any of those crimes–the case can be brought immediately in adult criminal court. This legislation would change that. Instead, all cases involving children under 18 would start in juvenile court, also referred to as ‘Family Court.” The case would stay in the Family Court and be handled by the Office of the Attorney General unless OAG believes, and a judge agrees, that the child cannot be rehabilitated by the time they turn 21 and that transfer to adult court is in the interest of the public.

This legislative change would mean that all cases involving children who are accused of criminal code violations begin in the Family Court, which specializes in handling juvenile matters. Children could still be transferred to adult criminal court, but only after a hearing in which the judge examines the unique circumstances of the child, their capacity for rehabilitation in the juvenile system, and the interests of the public in transfer. This law would not prohibit children who commit serious offenses from being prosecuted in adult criminal court–it would just change the process for getting them there.

This process change is important because it will help to ensure that only those children who cannot be served in the Family Court are prosecuted as adults. Unnecessarily charging children in adult court harms them and our communities and undermines public safety. Charging a young person in adult court has a devastating impact on their life. Adult proceedings are public, which means that the child’s identity and personal details, including history of abuse and trauma, become publicly available. Children who are convicted of felony offenses in adult criminal court receive adult sentences. Because the District lacks statehood, these children are sent to adult federal prisons, often very far from the District, as soon as they turn 18. There, they are isolated from their support networks, have extremely limited access to rehabilitative services, and spend months and sometimes years without seeing their families. When they return home, it is more difficult for these young people to rejoin their communities in a constructive way–they are less employable, have fewer connections to their communities, and have endured the trauma of isolation, incarceration, and fear.

In contrast, young people who remain in the juvenile system have access to a full array of concentrated services designed specifically to help rehabilitate them. Proceedings in Family Court are confidential and all actors in the system, including prosecutors in my office, work with the Court Social Services Division and the Department of Youth Rehabilitation Services (DYRS) from the start of the matter to understand the needs of the child, what caused the child to violate the law, and what services they would need to change their behaviors. The young person has access to behavioral health care, substance abuse treatment, educational and vocational services, and family supports. Where necessary, the child can be committed to DYRS until he or she is 21, where the child has access to services that are essential to ensuring a successful return to the community. Most children sentenced in Family Court remain in the District, where they can maintain contact with their families and their communities. Some children, those identified as having the highest needs, may be placed outside the District in therapeutic residential treatment facilities with tailored programming to support their rehabilitation.

Unnecessarily prosecuting children as adults deprives us of the opportunity to help these children without any gain in public safety or welfare. The data demonstrates that most of the youth sentenced in adult court could have been served in the Family Division, where they can be held accountable and provided with services that will reduce the chances they reoffend. Let me explain. In a recent seven-and-a-half-year period,[1] there were 257 young people sentenced in adult criminal court for offenses they committed before they turned 18. Almost all these cases were directly filed by the USAO. Most of these young people–60 percent–were convicted only of charges that, on their own, would not have allowed the USAO to directly file the case in adult criminal court. But because these children initially were charged with more serious charges, their cases remained in adult court and they received adult sentences. Additionally, most of the youth sentenced in adult court received sentences they would complete before turning 21, the age at which DYRS loses jurisdiction. In other words, had these cases been handled in the Family Court, the judge could have committed the young person to DYRS, where they could have been held in secure custody, and received the array of services the District provides, for the same length of time the young person served in an adult prison without those services.

The idea that we need to charge children in adult court so that we can hold them sufficiently accountable and impose a long prison sentence is not rooted in the data. Most of these young people, whether sentenced in adult or family court, will be back in the District before they turn 21, or shortly thereafter.[2] So the question for us is what we want to happen in the intervening years:  do these young people receive rehabilitative services in a developmentally appropriate setting while in contact with their families and communities, or are they criminalized and further traumatized, and brought back to the District without the means to function constructively? The reality is that it is a small number of youth who are committing the most serious crimes and are sentenced to serve the longest sentences. If we intervene with these children earlier, there will be even fewer. But for those small number of young people who truly cannot be rehabilitated before they turn 21 and are a continued threat to public safety, we still will be able to transfer their cases to adult criminal court, where they would proceed in the same manner as those cases directly filed in that system under current law. The youth would be subject to the same sentence as adults and would serve incarceration for felony offenses in a federal prison. For the rest of them–indeed the vast majority of them–we can better serve them and their families, and protect public safety, if their cases begin and stay in the Family Court. Indeed, research on this issue indicates that young people who are prosecuted in adult court have higher recidivism rates that young people who are prosecuted in family court.[3]

The Office of Attorney General has the capacity to handle serious matters in Family Court, and to handle them well. We handle all the cases, including the most serious, against all youth younger than 16, and against any young person 16 or over who the USAO does not charge. Our attorneys recently successfully prosecuted three juvenile homicide trials and obtained guilty pleas in two other homicide cases. I am proud of my juvenile team. It is filled with experienced, dedicated lawyers who are committed to achieving the purpose and promise of the District’s juvenile justice system: “a system that will treat children as children in all phases of their involvement, while protecting the needs of communities and victims alike.”[4]

In addition to advancing public safety, keeping these cases in the Family Court, treating these children as children, is the just right thing to do. First, it is important to remember that these 16- and 17-year-olds are children. Decades of scientific research has demonstrated that children’s brains are still developing at that age and that they not only are they less culpable for actions they take but are more capable of change. Because they are children, we have an opportunity to intervene to change the course of their lives.

Next, this legislative change will help reduce some of the worst impacts of systemic racial inequality in our criminal justice system. Black children are much more likely to become involved in the criminal justice system and charging some of them in adult court–where the consequences are life-long and more severe–exacerbates these inequalities. And because of the risk of implicit bias in this decision making–studies show that Black children are perceived as older and more threatening than white children–we must ensure we are being very thoughtful when we make the consequential decision to treat a child as an adult: almost all youth sentenced in adult court in the District of Columbia–more than 90% of them–are Black.

I understand that violent crime is on the rise in the District, a trend that mirrors cities across the country, and that there have been high profile incidents of young people committing terrible crimes. People are upset and they want to know what we can do now to address this violence. This all is understandable. But we must not react in a way that actually undermines public safety and repeats the harms of the reactionary and counterproductive tough-on-crime policies of the past. We can hold young people accountable while providing interventions to meet their needs, which in turn promotes public safety. In those circumstances where we believe the youth cannot be rehabilitated by their 21^st birthday, we seek to have the case transferred to adult court. The system envisioned by this legislation–in which all children have their case begin in the Family Court–offers us the best chance of protecting public safety and our children.

Because these are our children. They are members of our community. When they make mistakes–even terrible mistakes–we must use the window of opportunity, when they are still young, to help them turn their lives around. This is consistent with public safety–it is an essential part of addressing the root causes of crime. It also is our moral, ethical, and legal responsibility to ensure that every child in the District is recognized as a child, regardless of race, rather than unnecessarily stripped of their childhood and committed to an adult system that will only perpetuate cycles of trauma and harm.

I know we can do better. This change to District law will make a big difference in the lives of children and families, while improving public safety and increasing fairness. That’s why I introduced this legislation and why I urge you to pass it.

_______________________________
1 January 1, 2013 through July 31, 2020.

2 According an analysis by The Sentencing Project of District of Columbia Sentencing Commission data, at least 55% (141 individuals) of the 257 sentenced young people would have completed their sentences before they turned 21-years old. But most of them probably received credit against their sentence called “good time.”  If they did, at least 61% of them would have completed their sentences before age 21.

³  Nicole Sciabala, “Should Juveniles Be Charged as Adults in the Criminal Justice System,” American Bar Association, October 3, 2016, available at https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2016/should-juveniles-be-charged-as-adults/

4 D.C. Code § 16-2301.02″