Thoughts On Extreme Sentencing of Youth and Transferring Children to the Adult Criminal Justice System

The CWCY is the only organization in the world dedicated to the special problem of wrongfully convicted youth. As documented throughout this Web site, the evidence used to convict our youth is too often unreliable; reforms must be instituted that assure that we are only charging and convicting youth who have actually committed offenses. There are hundreds of known and unknown examples of adolescents and children spending their teenage (and adult) years locked away in prison for crimes they did not commit. To name just one example, Robert Taylor and Jonathan Barr, beginning at the age of 15, were transferred to adult criminal court and served almost 19 years in the adult prison system until they were exonerated on November 3, 2011.

The CWCY applauds the efforts of juvenile justice organizations around the country to reduce the transfer of children to the adult criminal justice system and reduce the extreme sentencing and mass incarceration of our youth. Our two sponsoring organizations at Northwestern University School of Law – the Children and Family Justice Center (CFJC) and the Center on Wrongful Convictions (CWC) – have had a great hand in these efforts. Legal Director of the CWC and CWCY co-founder Steve Drizin was instrumental in the efforts to outlaw the juvenile death penalty in 2005. And the CJFC is a huge part of the coalition fighting to eliminate sentences to life without parole for children, an effort that took a huge leap forward with the Supreme Court’s decision in Graham v. Florida outlawing the practice in non-homicide offenses just months ago.

There is obvious overlap in the mission to reduce the transfer of all youth to the adult system and the CWCY’s concern about the reliability of evidence used against children. If you are going to send a child away to prison for the better part of his life, you better be quite certain, at the least, that the child actually committed the crime. We’ve learned never to be certain! Time and time again we’ve seen the system get it wrong and convict innocent kids. With the continued use of unreliable evidence – especially extracted statements from kids during coercive police interrogations – the fight to reduce transfer and the over-incarceration of kids goes hand-in-hand with the CWCY’s mission.

Reducing transfer to adult court, however, does not solve the problem when the alternative is to charge children in juvenile courts. While the penal and collateral stakes may be reduced (albeit far from eliminated), the reliability of the evidence remains a huge concern. Judicial fact-finding, overburdened juvenile defenders, ridiculously high instances of non-counseled guilty pleas, and a near non-existent appellate practice are just some of the reasons to suggest that juvenile courts themselves are a hotbed for wrongful convictions. Relying on arguments made on our Web site, Seventh Circuit Justice Richard Posner cited these and other reasons to question the reliability of juvenile adjudications in his recent dissent in Welch v. United States. Funneling more cases to this unreliable system is not an adequate answer to transfer and extreme sentencing.

The best answer is to continue the efforts against transfer and improve the reliability of the evidence used to convict our youth. The efforts of the CWCY and other organizations to improve the reliability of youth convictions are absolutely vital for true juvenile justice progress. Under the model legislation link on our Web site, we have proposed some new legislation aimed at assuring the reliability of the evidence considered during transfer decisions. These efforts should be coupled with our other proposed reforms, including the widespread electronic recording of all police interactions with children, to improve the evidence used to convict our children. Without these reforms, a reduction in transfer – while no doubt praiseworthy – will not reduce the instances of wrongful conviction.