Juvenile Justice Reform Council May Recommend an Age Minimum for Prosecuting Youth Offenders

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The state’s Juvenile Justice Reform Council voted Thursday to add the jurisdiction of the courts to its list of top priorities to focus on for the fall, allowing officials to discuss the appropriate age at which children should interact with the criminal justice system.

“I don’t see how we have a robust and comprehensive reform plan without including that,” said Sen. Jill P. Carter (D-Baltimore City) at a virtual hearing on Thursday.

The council, consisting of lawmakers, law enforcement officers, attorneys and advocates, plans to issue recommendations to increase public safety and address recidivism of young offenders.

Maryland currently does not have a minimum age of prosecution for kids charged with crimes.

“There used to be a floor in Maryland,” said Jenny Egan, chief attorney for the juvenile division of the Maryland Office of the Public Defender. “We used to follow the common law, and that there was a presumption of infancy for children under the age of 14.” 

Under current law, there is no presumption of incapacity, or presumption of infancy, for children over the age of seven. 

“Prior to 1994, we treated kids under the age of 14 differently,” Egan said.

Celina Cuevas, a research associate at the Vera Institute of Justice, presented her analysis of the 18,899 intakes administered by the Department of Juvenile Services in 2019 to the council, which showed that 10% of those were children under the age of 13.

To break it down even further, Cuevas found that these young offenders were more likely to be Black and more likely to be young girls. 

Black girls account for 18% of the department’s total intakes but make up 24% of the population of those 12 years old and younger.

Less than 10% of children under 13 years old are introduced to the Department of Juvenile Services for crimes of violence.

Last year, 90% of these cases ended up not being fully prosecuted, and, ultimately, just 3% resulted in youthful offenders being committed to a juvenile detention facility. Only 11 kids under 13 were committed during 2019 — five for crimes of violence and six for misdemeanors.

Betsy Fox Tolentino, the assistant secretary for strategic initiatives at the Department of Juvenile Services, said that when complaints are filed against minors, an intake conference is scheduled to review the allegations and assess the risk of re-offense and any state or community services that the child and their family might need. 

Sometimes those cases are dissolved, but Tolentino clarified that those youths are still provided with necessary services on a voluntary basis.

“If we resolve a case and we don’t do that pre-court supervision period, that means we sort of just close it, but that doesn’t mean we don’t make a service referral,” she said.

Department Secretary Sam Abed told the council that many services used by his department are also available through social services agencies and that the department had implemented an agency crossover program in conjunction with the Department of Human Services. He said that this program has been interrupted by the COVID-19 pandemic.

When this crossover happens, Abed explained, it’s clear that a lot of younger kids in the criminal justice system belong in programs offered by the Department of Human Services rather than in detention.

Abed said that there are some circumstances where these younger kids don’t need services at all. 

“There are a number of kids … that are exhibiting normal behavior,” he explained. “There’s no treatment need for someone who’s acting normally — they just happen to be an adolescent and that behavior that might be normal for them and also is something that we want to teach them not to do and we need to move them away from it.”

“We don’t want to do harm,” Abed said. “We want to make sure that if we’re getting someone into services it’s something that they need and it’s something that’s tailored to their situation, and we do recognize that there are a number of kids that only need a conversation and they can move on.” 

Maryland isn’t the only state to introduce preteens and elementary-aged kids into the juvenile justice system.

Marta Nelson, a senior fellow at the Vera Institute of Justice, said that Maryland is one of 27 states that doesn’t have a minimum age of jurisdiction for its juvenile cases. 

Some states that have imposed floors have done so with no exceptions, meaning that anyone under the age minimum who commits even violent crime will not interact with the juvenile justice system.

But just because some states have implemented floors for youth interaction with the system doesn’t mean that there aren’t exceptions. 

Utah passed legislation this year to raise its age of jurisdiction to 12 years old, with the exception for cases of young children who are accused of murder, felony aggravated assault, aggravated sexual assault, aggravated robbery, aggravated kidnapping and the felony discharge of a firearm.

Nelson made the case for why states should have a minimum age, stating that preteen youths haven’t reached a level of brain development where they can be held accountable for their actions, have limited ability to comprehend their rights and the charges against them, and may have traumatic backgrounds that can be exacerbated by interacting with the juvenile justice system.

Sen. Christopher R. West (R-Baltimore County) expressed concern about the possibility of the state passing a minimum age law with no exception for violent crime. 

“The child welfare system is a system that’s designed to intervene with children who are in need of assistance,” Tolentino said, “and the children in need of assistance, that could be a very big category of young people — whether they’re neglected, abused or have some significant underlying condition.” 

Abed said that other states with set floors still respond to younger kids who are alleged to have committed crimes, often connecting them to programs available through social services, which he explained could be one avenue for Maryland to consider.

Abed said that when he sees younger kids committing crimes, there are often unaddressed issues at the root and that a “multi-system response” may be more appropriate than just sending kids into the justice system.

“Typically, when I see somebody 11 years old or ten years old — even if they’ve … been accused of committing a crime of violence, there is always something underlying that,” he said. “It’s not that they’re some kind of hardened criminal, they just don’t have that kind of capacity at such a young age.”

Questioned about what the procedure should be for families who don’t care to participate in voluntary services, Abed was adamant that incarcerating young children is not on his agenda.

“The thing that really gets me upset about this is that we don’t have a floor,” he said. “And whatever that floor may be — it’s very difficult for me when I think about this — if you’re an eight-year-old, you could be legally put into my system,” he said. “That shouldn’t be an option.”

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Hannah Gaskill
Hannah Gaskill received her master’s of journalism degree in December 2019 from the University of Maryland. She previously worked on the print layout design team at The Diamondback, reported on criminal justice in Maryland for Capital News Service and served as a production assistant for The Confluence — the daily news magazine on 90.5 WESA, Pittsburgh’s NPR member station. Gaskill has had bylines in The Baltimore Sun, The Washington Post and The Chicago Tribune, among other publications.Before pursuing journalism, she received her bachelor’s of fine art degree from Carnegie Mellon University in 2016. She grew up in Ocean City.