By Daniel Lewkow

The Oregon Council on Civil Rights recently released a groundbreaking report that ought to change our criminal justice system.

The independent, fact-based, non-partisan study found that Oregon district attorneys often charge young people in a way that is “harsh and costly” and “at odds with a contemporary brain science.” It recommends that we join other states in moving away from this practice.

Charging youth as adults

In Oregon, DAs have the power to charge a young person as an adult if they have committed certain crimes and are 15, 16, or 17 years old. If young people are put into the adult system, they are often denied access to protections and programs designed to treat young people more humanely, hold them accountable, while also creating opportunities for them to successfully rebuild their lives.

For example, a 15 year old in the juvenile system can commonly access treatment, rehabilitation, and diversion programs and are kept out of adult prison. They can be connected to counselors who assess how to improve their support system at home. Their records can be expunged sooner so they can more easily find work and housing after they finish serving their time.

But if a DA charges a 15 year old in the adult system, that young person cannot access many of those same programs, they will bear the burden of an adult criminal record that severely limits their future opportunities, and they may spend time in adult prison.

The scientific research proves that treating youth as adults in the criminal justice system is a bad approach. That’s because young people are not making decisions in the same way that adults are. Their brain structures haven’t fully developed and they “are particularly susceptible to risky behaviors and peer pressure, but also possess a unique capacity for change and growth,” according to the Oregon Council on Civil Rights.

Youth are strongly influenced by their peers, and they are much less likely to reoffend if they can stay in the juvenile system. But if put in the adult system, they are more likely to commit crimes in the future. Charging youth as adults does not help keep communities safe, and is out of step with best practices and Oregon values of having a fair and effective criminal justice system.

Measure 11

DAs often decide to charge young people as adults because of a nearly quarter-century-old law known as Measure 11. Measure 11 establishes mandatory minimum sentences for several crimes. These sentences prevent judges from considering the unique circumstances or the severity of a crime when they issue a sentence. As the Council’s puts it, Measure 11 “is an ill-conceived tool for the unique needs and responses appropriate for justice-involved youth.”

The new report found that because of Measure 11, Oregon:

• Is out of step with the rest of the US: Our state has the second highest rate in the country of youth transfers to adult court, even though a mountain of research shows that keeping youth in the juvenile system is much more effective.
• Unfairly harms young people of color: Oregon’s young people of color are 26 times more likely to be charged with Measure 11 crime, even though people of color commit crimes at a similar rates as white people.
• Squanders money: The state can spend nearly $100,000 a year per child to incarcerate Measure 11 offenders; keeping children in the juvenile system is much less expensive.

Measure 11 became a law in 1994. In the decades since, we have learned a lot more about what works and what doesn’t. Learn more about Measure 11 here.

Why are Oregon DAs still charging young people as adults?

Some DAs might simply say that they are just following the law, but it is much more complicated because DAs have tremendous discretion in how they can charge young people.

This dynamic probably has something to do with how certain DAs measure their own success. Too many DAs believe that success is based on how many people they can convict, and the length of sentences they can exact.

That’s the wrong approach. DAs should focus more on keeping communities safe and creating a criminal justice system that is effective, fair and accountable. That means less of an emphasis on sentence length and more emphasis on applying best practices. It means spending public money effectively, and understanding that treatment and rehabilitation can be better ways of holding a person accountable.

Pathways to reform

Oregon’s laws and practices that treat youth as adults in the justice system have gone on far too long. This report has shown how damaging it is to charge youths as adults. Now DAs should step up and reform the system.

How? Oregon DAs can adopt policies that limit the practice of charging youth as adults. Oregon DAs can stop offering plea deals that pressure young people to bargain away access to second look hearings. Oregon DAs can be more transparent about how and when they charge youth as adults.

Rod Underhill, the Multnomah County DA, has made some modest changes. Underhill developed a diversion program for a limited number of youth who could be charged with a Measure 11 crime. But the program has only deemed 21 youth eligible and a study has found that the racial disparities in youth convicted of eligible crimes remains consistent. So there is clearly much more work to do. Nonetheless, DA Underhill’s modest attempt at change demonstrates that district attorneys have the agency and power to do things differently if they choose.

Oregonians know that young people are fundamentally different from adults. We should treat young people as young people, instead of throwing them in a system built for adults.

The longer we delay much-needed reforms, the more young people’s lives will be unnecessarily damaged. DAs can hold young people accountable without tossing their futures away.