Revision of Automatic Transfer Law Achieves Common Cause for Illinois Juvenile Justice Reform

OP-ED: During the 2015 spring legislative session, bi-partisan cooperation and compromise led to agreed upon changes to the Illinois criminal code, creating a fairer and more effective justice system for youth.

Accomplishments include a new reform, House Bill 3718, sponsored by State Representative Elaine Nekritz (D-Northbrook) and State Senator Kwame Raoul (D-Chicago), which addresses one of the most critical issues in juvenile court—the treatment of children as adults in court.

In early August, Governor Bruce Rauner signed this bill into law, eliminating the automatic transfer of juvenile cases based solely on charges brought against them, and expanding judicial discretion to try juvenile cases in juvenile courts.

The new mandate, an initiative of Cook County Board President Toni Preckwinkle, expands the requirement of review by a juvenile court judge to examine relevant factors before transferring some cases to adult court. Specifically, the law, which takes effect on January 1, 2016, requires a juvenile court hearing in all cases involving children 15 and younger and in cases of older youth charged with particular crimes.

Currently, a prosecutor can automatically transfer a child to adult court—with no appearance before a juvenile court judge required—simply based on the charge lodged against them. As of January 1, for all children under 16, an individual review of the circumstances of the case as well as consideration of the rehabilitative services available in the juvenile court system will be required.

The automatic court transfer law has disproportionately affected children of color.

According to a report released by the Juvenile Justice Initiative, between 2010 and 2014, 580 children were transferred to adult court in Cook County, and of those, only 4 were white. In addition, 6-16 percent of the children transferred were later re-charged with a lesser offense that would have triggered no automatic transfer, but they remained in adult court. An earlier version of the report indicated that of the 257 children transferred between 2010 and 2012, more half of those convicted were either recharged before trial or plea or eventually found guilty of lesser offenses.

Moreover, a Centers for Disease Control and Prevention (CDC) survey of research included a study finding that children tried in adult court had 34 percent more re-arrests than their counterparts tried in juvenile court, and other studies supported this finding. Further, the report indicated that strengthened transfer laws are “counterproductive to reducing juvenile violence and enhancing public safety.”

The reforms authorized by the legislature and approved by the Governor are in much better alignment with these findings.

By reducing the scope of the automatic transfer law, a legal relic of the 1980s, the Governor and lawmakers have endorsed the merit of judicial review and discretion on child transfer to adult court while preserving the authority to transfer a child and, in some instances, will still allow automatic transfer.

Next year, juvenile judges will individually consider transfer decisions for children ages 15-17 who are charged with armed robbery, aggravated vehicular hijacking, and unlawful use of a weapon on school grounds. Children age 15 and younger charged with any crime will be entitled to judicial review. Youth ages 16-17 charged with serious offenses like murder, aggravated criminal sexual assault, and aggravated battery with a firearm will still be automatically transferred to adult court.

The new law seeks to restore some sense of legal decency and justice in the Illinois juvenile justice system that has been for far too long operating on automatic pilot when it came to decisions that bore on the future of an entire generation of principally African-American children.

By taking this critical step, the Governor and the legislature have jointly determined that in the Illinois juvenile justice system, the priority must be fairness.

Pam Rodriguez, president and CEO of TASC, is a member of the Governor’s Commission on Criminal Justice and Sentencing Reform.

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Report: Racial Imbalances, Lesser Offenses Highlight Illinois Juvenile Transfers to Adult Court

(Chicago) –There was only one white boy among 257 children automatically transferred to adult court in Cook County from 2010 through 2012, says a new report by the Illinois-based Juvenile Justice Initiative.

Furthermore, only 13 percent of Illinois children charged with crimes between 2010-2012 requiring an automatic transfer to adult court were charged with first-degree murder.

“Contrary to popular belief that ‘automatic’ transfer is used only on the most serious cases, only 13 percent of automatic transfers had charges of first-degree murder during a recent three-year review,” according to the Commission’s study of juvenile detention in Cook County.

The report, Automatic Adult Prosecution of Children in Cook County, Illinois 2010-2012, found that the 54 percent of juveniles under 17 who automatically were transferred to adult court ended up being convicted for lesser offenses—charges that would not have originally triggered a transfer. Another 4 percent were found not guilty or the cases thrown out.

By contrast, when juvenile court judges made the transfer decision in a court hearing, almost half of cases (48 percent) involved first-degree murder, the report states.

“Illinois is one of only 14 states to give this kind of extreme power to prosecutors, and we found the Cook County state’s attorney employed it almost exclusively in cases involving minority defendants,” said Elizabeth Clarke, president of the Juvenile Justice Initiative (JJI).  “With the stroke of a pen, prosecutors can transform a child into an adult. Time and time again it happens to children of color in Chicago.”

Under Illinois’ automatic transfer law, which was in effect during the study of 2010 through 2012, anyone age 15 or 16 charged with certain felonies automatically bypasses the more rehabilitation-focused juvenile court, and there is no judicial review or appeal of a prosecutor’s decision to try a child in adult court.

Since the time of the study, the age of juvenile court jurisdiction in Illinois was raised to 17, and now 15-, 16-, and 17-year-olds can face automatic transfer to adult court when charged with murder, aggravated criminal sexual assault, and several other felony charges.

In 1982, the Illinois General Assembly removed juvenile court approval of the decision to try a child under age 17 as an adult.

Under the “automatic transfer” law, children age 15 or 16 charged with certain felony offenses are “automatically” tried and sentenced in adult court. The legislature removed the ability of a juvenile court judge to consider each case individually, and eliminated any consideration of factors including background, degree of participation in the offense, mental and physical health, educational issues, and availability of resources unique to juvenile court for rehabilitation.

The average time for a child awaiting trial as an adult ranged from 377 days up to 572 days. By contrast, half of the children charged in juvenile court spend a month or less in detention, the reported noted.

“Trial in adult court fails to protect public safety—children tried as adults typically spend more time waiting for trial, more time in prison, and are less likely to receive rehabilitative services,” said co-author David Reed.

Clarke also said that nearly nine out of 10 youth sent to adult court entered guilty pleas.

“These children are questioned by police without an attorney to represent them, then charged in adult court on the basis of their statements,” said Clarke. “Ninety percent end up entering guilty pleas, nearly half to lesser offenses.  With a guilty plea, there is no trial, no meaningful sentencing hearing, and no opportunity for appellate review.”

Legislation, House Bill 4538, which would restore judicial decision-making authority to determine whether a youth is tried in juvenile or adult court, is under consideration in Springfield.

“It is time to restore individualized decision making on the critical issue of whether to try a child in adult court,” said State Rep. Elaine Nekritz (D-Northbrook), the bill’s chief sponsor, who has introduced the plan to eliminate automatic transfers to adult criminal prosecution.

Nekritz’s measure has drawn support from a top criminal justice reform advocate.

“Justice is being denied to Illinois children who are automatically transferred to adult court, and there is a vastly disproportionate impact on minority youth,” said TASC President Pamela Rodriguez. “The legislature should support Rep. Nekritz’s bill to return judicial discretion to judges, enabling them to take into account the child’s age and individual circumstances when deciding the appropriate court venue.”