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End Direct File and Transfer

The vast majority of my clients are people under the age of 18 who, despite their young age, are facing adult charges. This happens because district attorneys see fit to directly file adult criminal charges against minors or because the district attorney wants to transfer of the charges from the juvenile system to the adult criminal system. 

How and why  district attorneys decide to direct file or seek a transfer of someone under the age of 18 should evoke questions about our overall "justice" system, its goals, and why we treat young people like adults when complete brain development does not happen for the vast majority of people until long after their 18th birthday--scientists widely agree that brain maturation is generally complete around the age of 25.

I recently read a good overview of how direct file and transfer cases are the mark of a criminal system devoid of justice  given what we know about adolescent development: "How Developmental Science Influences Juvenile Justice Reform" by  Elizabeth Cauffman, Adam Fine, Alissa Mahler, and Cortney Simmons (8 UC Irvine L. Rev. 1, 21).

One common rationale for charging young people as adults goes something like this: The gravity of this adolescent's offense necessitates a harsher punishment than the juvenile delinquency system allows. This line of thought does not make sense upon close examination. To people believe harsher punishment is necessary because of the intent associated with the offense? This thinking implies that the person who has allegedly committed the offense actually understands the consequences or risks of their action yet choose to engage in the action anyways. 

But, can we agree that it would be cruel to mete out harsh punishment on someone who cannot comprehend that they are committing an offense or who cannot comprehend that their actions would result in injury? (Of note, as uncontroversial as this thinking is, this does inspire the controversy around what our standard for competency and not-guilty-by-reason-of-insanity/incapacity should be. Nevertheless, controversy around how to articulate the standard should not dissuade from the fact that we, as a society, have generally agreed that we should hold people less culpable of their offenses if they do not understand that their actions are, in fact, an offense or do not understand that their actions can or will have harmful consequences.) 

Yes, we can and should agree that it would be cruel to mete out such harsh punishment under those circumstances. If we agree on that, why do we allow prosecutors the option to pursue that harsh punishment under those very circumstances: We know that brain development continues well into the mid-to-late 20s and that the last area of the brain to develop is the prefrontal cortex, where comprehension of consequences resides. Additionally the parts of the brain that are developing throughout adolescence involve the areas that comprehend responsibility, perspective, and termperance. Cauffman et al, at 23 (citing Cauffman & Steinberg, 18 Behav. Sci. & Law 741, 747, 749 (2000)). Adolescent brains are still developing in terms of psychosocial maturity. Id.

So while "[t]he literature thus demonstrates that cognitive capabilities tend to develop early in adolescence" (Id. (citing Steinberg et al, Age Differences in Future Orientation 37, 39)), this does not imply that adolescents are capable of thinking ahead and understanding that committing an action constituting an offense is an offense and/or could result in injury.

Another common rationale for charging young people as adults goes something like this: Harsh punishment will deter future offenses from the individual or others. This is demonstrably false. Harsh punishment does not engender deterrence in any population, but it is especially cruel for a population of people whose brains literally cannot comprehend that their actions will lead to the consequence of the same harsh punishment that occurred when someone else acted in the same way. 

Further to this point, the area of the brain that allows for behavior regulation is one of the later areas to develop: "[C]ognitive control system of the brain, which enables youth to regulate their behavior, matures much more slowly than the affective neural system, which is responsible for reward sensitivity and develops by mid-adolsecence." Id. at 25. The fact that the reward center of the brain develops more quickly than the cognitive control system or the sector that comprehends consequences means that adolescents are more inclined to engage in behaviors with immediate reward or that they think will gain them credit among peers than to consider the grander social consequences or collateral implications of those actions. ("[A]dolescents who are involved in crime are also generally less future oriented than those who are not." Id. at 26.)

Ironically, direct file and transfer may increase community danger and inhibit rehabilitation: "[E]mpirical evidence suggests that transferred youth may not actually pose a greater threat. There is evidence, however , that placing youth in adult facilities puts adolescents at greater risk for sexual and physical victimization." Id. at 35. Further, "[i]ncarceration, therefore, may adversely affect the developmental skills that are crucial for desistance from crime." Id. at 36.  Direct file and transfer compromise individual development and community safety: "[T]ransfer policies result in increased recidivism rates, including increased rates of violent reoffending, among transferred youth." Id.

What justification remains for direct file or transfer of juvenile cases to the adult criminal system? These are prosecutorial tools rooted in absurd philosophies that ignore science, reason, and morality. Allowing prosecutors to use or threaten direct file and transfer against individuals under the age of 18 is a systemic habit we must kick. 

It is legislative season. Call your representatives and encourage them to support bills, regulations, and policies curbing this practice. And when the next district attorney election rolls around, press for progressive prosecutors and hold your elected official accountable.