Despite Reform Efforts, Adult Sentences For Kids Persist

By RJ Vogt | July 28, 2019, 8:02 PM EDT

When federal prosecutors accused Theo Shaw and five other black high schoolers in Jena, Louisiana, of attempted murder following a December 2006 schoolyard fight with a white classmate, Shaw was 17 years old.

Charged as an adult, he would spend nearly eight months in an adult prison, unable to afford bail, before ultimately pleading no contest to a reduced charge of simple battery.

At the time, the so-called Jena Six case made national headlines and drew thousands of protesters to the small Louisiana town, highlighting racial disparities in the criminal justice system.

But Shaw — who went on to earn a law degree from the University of Washington, intern with the Innocence Project New Orleans and clerk for the Louisiana Supreme Court’s chief justice — said last week that the episode also highlighted the overzealous criminalization of youths in America and the lack of resources afforded to manage the problem.

Speaking at a July 22 webinar hosted by the Justice Collaborative advocacy group, he said he only saw his publicly appointed defender one time during his incarceration, and that was when the attorney tried “to get me to take a plea.”

“Here I am, a 17-year-old kid, no time outside, locked down 24 hours, every single day, for almost eight months — with adults,” he said. “I went to sleep one day with attempted murder charges. When I woke up, I had some armed robbery charges. I thought to myself, ‘I’m not going to sleep anymore.’”

Last week’s webinar took place against a backdrop of ongoing juvenile justice reform efforts around the country, from Raise the Age efforts in New York to Sen. Joe Biden’s plan as part of his presidential campaign to provide states with incentives to stop incarcerating kids.

The same day Shaw participated in the webinar alongside Marcy Mistrett from the Campaign for Youth Justice and Eric Alexander from the Campaign for the Fair Sentencing of Youth, Oregon Gov. Kate Brown signed a law to end a 25-year-long practice of automatically sending youths accused of serious crimes to adult court.

Policies like Oregon’s proliferated during the 1990s in response to a spike in crime, Mistrett said. Among fears of “superpredators” — a since-discredited idea of young people naturally inclined to criminal activity — states around the country expanded the types of offenses that can send people as young as 10 or 11 years old to adult courts and prisons, she said. Many made such transfers automatic.

As a result, about 10,000 people under the age of 18 are sleeping in adult jails and prisons on any given day across the country, Mistrett said.

“Transfer and sentencing became the most racially disparate aspect of the system, with black children receiving adult sentences 10 times longer than white counterparts charged with the same crimes,” she said. “The U.S. is one of the biggest outliers in the way we treat our children.”

Alexander knows firsthand: Like Shaw, he did time in adult prison after being charged as an adult at age 17. Unlike Shaw, he ended up serving 10 years of two concurrent 25-year sentences, which stemmed from a convenience store robbery that turned fatal.

“I agreed to be the lookout when somebody went to steal beer,” he recalled during the webinar. “My co-defendant actually took the life of a store clerk.”

Prosecutors sought to sentence him to life without the possibility of parole, a punishment that the U.S. Supreme Court has since declared unconstitutional for minors, but Alexander pled guilty in order to receive lesser sentences.

Despite dodging a lifetime in prison, he said turning 18 in an adult prison was “horrific.”

“I experienced things in adult prison that no child or young person should have to experience,” he said.

The U.S. government has found that young people are five times more likely to be sexually assaulted in adult prisons than they are in juvenile facilities. Meanwhile, Mistrett’s organization has reported that young people are 36 times more likely to take their own lives after being housed in adult jails than those housed in juvenile ones.

The 2015 suicide of Kalief Browder — who’d been arrested at age 16 and incarcerated on New York’s Rikers Island for three years on suspicion of stealing a backpack — helped spur that state’s Raise the Age campaign, which now provides for 16- and 17-year-olds to be processed in family court or the youth section of adult court.

Mistrett said several other states have ended mandatory transfer laws, including Rhode Island and Florida, and all but four states have raised the minimum age to be considered an adult to 18.

In October, California passed “the strongest law yet,” according to Mistrett, because it bars any child age 16 or younger from being transferred to adult court, no matter the charges.

But even as reform rolls on, staunch opposition remains.

California’s law, for example, has been challenged in court by prosecutors who think some 15-year-old alleged murderers deserve the longer sentences that only adult court can provide. At least two judges have declared the law unconstitutional on the grounds that it blocks the judiciary from exercising its mandate, approved via referendum in 2016, to try some teens as adults.

Meanwhile, states like Virginia and Tennessee continue to charge children as adults, including sentencing them to life without parole as well as sentencing them to “de facto” life sentences, i.e., ones so lengthy that their subjects are likely to die in prison.

Brandi McNeil, a legal counsel at the Justice Collaborative who also appeared at the webinar, said the practice of treating kids as adults is “not humane.”

“Those long sentences don’t account for the fact that people can change a ton, not only from childhood to adulthood, but into those 10, 20 years after they’ve been sentenced,” she said. “There’s a lot of change that can go on.”

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Correction: A previous version of this story misidentified the organization where Theo Shaw interned. The story has been corrected.