Judge George B. Rasin, Jr. served as the sole circuit judge in Kent County, Maryland, from 1960 until 1987. In criminal cases, he was known as a “hanging judge” and when he came to Baltimore City to sit specially during the summers in the 1960’s, 70’s, and 80’s (there were no dockets those days in Kent County), defendants knew they were in big trouble! He did, however, have a different view of juveniles who were involved in the delinquency system.
In fact, Judge Rasin is largely responsible for the creation of Maryland’s current juvenile justice system. Judge Rasin chaired the Legislative Council Special Committee on Juvenile Courts in 1964 and 1965, which made its report of findings and conclusions in 1966. As a result of the “Rasin Report,” the Maryland General Assembly created a state Department of Juvenile Services (DJS) in 1967. For over a half century, this Department has overseen all aspects of the juvenile delinquency system, which formerly had been handled by a variety of local agencies and jurisdictions.
After Judge Rasin retired from the bench, he continued to show a keen interest in juvenile justice matters. His view was that juveniles needed more services and more resources, including better cooperation between schools and juvenile services. Judge Rasin wrote a letter to the Secretary of DJS in September 2005, complaining that insufficient resources were being devoted to DJS and that juvenile justice was considered by most to be the “juvenile criminal system.” He concluded: “I have always contended that if the State would spend much in the juvenile area and employ well educated and trained people in the juvenile field, eventually the State would spend much less in the adult area—both in personnel and buildings. For some years, the outlook of dispositions changed from adopting the terms in the best interest of the child, his family and society to what is required by the budget. I hope you can understand how sad I feel.”
Judge Rasin would feel even more despondent today. The trends he saw almost two decades ago have continued unabated. The State does not adequately fund DJS, which leads to the inability to recruit and retain “well educated and trained people in the juvenile field” and to chronic personnel turnover. Too often juvenile dispositions are far too limited and the best interests of the juvenile and family are largely forgotten or unexplored. The three disposition options, unfortunately, are not a whole lot different than those in the adult criminal system, i.e., probation before judgment, probation, and jail or prison. This mini-criminal system has a psychological effect on the prosecutors, public defenders, and judges who deal with juveniles. And it does not inure to the benefit of the juveniles whom the system is supposed to serve. For practical purposes, the juvenile delinquency system—even with the stated goal of rehabilitation—has morphed into a juvenile criminal system with its harshly punitive consequences.
In addition to the concerns raised long ago by Judge Rasin, the effects of the current juvenile system have been shown to have a disparate impact on juveniles from Black and Hispanic communities. The Maryland legislature has taken action to ameliorate some of the harshest effects of the juvenile system, i.e., in those cases where juveniles are charged in the adult criminal system. For those juveniles treated as adults who are serving long prison sentences, a law effective October 1, 2021, permits them to file a motion to reduce their sentence. At least 415 incarcerated persons are eligible for relief under this statute and a staggering 87% of them are Black.
This is a much needed first step, but many other reforms are urgently needed. Five such reforms have a real chance to be enacted in 2022. Last session, House Bill 1187, the Juvenile Justice Reform Act, contained several measures that resulted from recommendations made by the Maryland Juvenile Justice Reform Council (a diverse, inter-branch, bipartisan group of stakeholders), after two years of study. The major provisions of this bill would have made long overdue changes to our juvenile justice system in four areas. HB 1187 was not enacted but appears to have major support at the upcoming legislative session.
The four changes set forth in that bill would go a long way to ameliorate some of the harshest and most discriminatory aspects of the current juvenile delinquency system. First, the General Assembly needs to establish a minimum juvenile court jurisdiction age of 13 (with limited exceptions for children aged 10 to 12 who are accused of very serious offenses). Currently, there is no minimum age and Maryland arrests an inordinate number of pre-adolescent children, some as young as six years old. Arresting and prosecuting such young children needlessly traumatizes them. Indeed, in FY 2019, 95% of children under age 13 who were arrested and brought into the delinquency system never received juvenile services of any kind.
Second, the legislature needs to enact changes in the law that will increase the number of cases being diverted out of the traditional juvenile system. Such pre-court diversion reduces recidivism by keeping low-risk youth away from the stigma of being labeled as a delinquent. Currently, diversion opportunities do exist, but DJS has reported disturbing racial disparities in the use of diversion. Amendments to the law would make it easier to divert more cases and hopefully reduce the racial disparities as well.
Third, the law must be changed to ban the use of juvenile jails (out-of-home placements) for children whose most serious offense is a misdemeanor or a technical violation of probation. Currently, two-thirds of children at such facilities are there for non-felony offenses. One in three are removed from their homes for technical violations of probation. Here, too, there are significant racial disparities as Black youth account for 77.4% of those in juvenile jails but make up only 35% of the population of 10-to-17-year-olds in Maryland.
Fourth, there needs to be reform of the juvenile probation system. At present, juveniles are typically placed on probation for an indefinite period that can last until they turn 21. A juvenile offender at age 15 or 16 may spend years on probation and that juvenile is subject to being detained and committed for a technical violation at any time. This adult-like system is ill-suited to the process of normal adolescent development where many, if not most, youth grow out of law breaking as they age without any intervention from the juvenile system. There should be a maximum initial term of six months for misdemeanors, one year for most felonies, and two years for the most serious crimes (with extensions, if appropriate).
A fifth reform, much needed as well, would end the current “direct filing” process that automatically charges youths as adults in certain serious cases. Only Alabama sends more of its children (per capita) into adult courts than does Maryland. California, with 39 million people, sent only 45 kids to adult court in 2019, while Maryland, with but a population of six million, sent 903 kids to adult criminal court in that same year. Initial charging in juvenile court with discretionary waivers to adult court (where a judge evaluates each juvenile and each charge) is a more equitable and humane mechanism than automatic adult jurisdiction. Both Senator William C. Smith Jr., Chair of the Senate Judicial Proceedings Committee, and Attorney General Brian E. Frosh have expressed support for this change in the law.
These five reforms would undoubtedly go a long way in modernizing our juvenile justice system. They would bring Maryland’s system in line with those of other progressive states and would ameliorate the practices embedded in current law that have led to our systemic racial disparities. There are more innovative approaches to revamping our juvenile justice system that also should be considered. Those will be discussed in my final piece on this topic, “Reimagining the Juvenile Justice System for the 21st Century.”
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC