In my last piece written just before the start of the 2022 session, I urged the Maryland legislature to consider and adopt five major changes to the current juvenile delinquency law. Happily, the General Assembly enacted reform measures with respect to four of the five areas: a minimum juvenile court jurisdiction age; an increase in the number of cases diverted out of the system; reducing the jailing of juveniles for minor violations; and putting limits on the length of juvenile probation periods. These reforms are welcome.
Unfortunately, the legislature failed to enact a much needed fifth change to the juvenile justice system. It did not pass the proposed bill that would have ended 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 Maryland does. 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. Hopefully, the bill that failed this session will be enacted in 2023.
I would go even further, however, and fundamentally restructure the juvenile justice system to bring it into the 21st century. What I mean by that is to take advantage of what we now know about the brains of developing adolescents, the effects of poverty and racism, and the highly deleterious effects of the over-incarceration of juveniles in this country. If I had that proverbial magic wand, I would wave it and create an entirely revamped system.
For children under the age of 18 who are involved in criminal acts, I would keep them out of the juvenile delinquency system entirely. For these children, there is a much greater need for social work services for them and their families than for the limited (and more punitive) services provided by the Department of Juvenile Services. These cases would be handled by county departments of social services under the aegis of Child in Need of Assistance or Child in Need of Supervision cases. That system is already in place and provides attorneys not only for the child but also for the child’s parents.
Instead of a criminal prosecutor appearing for the State, a county attorney appears for the local Department of Social Services. Jurisdiction of the circuit court in these cases continues to age 21, and the social services provided to this group of offenders would continue under the auspices of the social services system. And the advantages are many: no labeling of the child as a “delinquent,” no probation, no out-of-home placements in distant parts of the state, no shackling, and no detention in jail-like facilities.
Under my reimaged system, the Department of Juvenile Services (perhaps with a new name) would handle criminal cases of young adults ages 18 to 25. (For certain offenses, such as murder and serious violent crimes, there would be a waiver process similar to the current one for juveniles ages 16 and 17.) We now know that the areas of the brain that govern impulse control and executive decision making are not fully developed until the age of 25 or so. Moreover, the peer and social pressures facing young adults aged 18 to 25 are much more daunting than in the era—a half century ago—when DJS was created. These youthful offenders should not be saddled with an adult criminal record even if they technically reach the age of majority when they turn 18. This department with jurisdiction to age 25 would keep youthful offenders out of the adult criminal system, which presently puts them more, not less, at risk for recidivism as truly mature adults.
Under this system, DJS would have the discretion to place those involved in minor offenses on probation, with services provided as under the current system. For more serious and violent offenses, there would be prison-like facilities available to isolate these offenders from the older adult prison population, which would also protect the general public for lengthy periods of time. However, those incarcerated for these longer periods would receive intensive services similar to what formerly was provided at the Patuxent Institution for young adults. The goal would be to release such serious offenders at age 25, with the prospect of living productive lives free of an adult criminal conviction.
So, let’s reimagine a system that is in line with the modern realities of how juveniles think and behave. They are not “miniature adults.” This reimagined system would safeguard the public, but simultaneously alleviate the harsh and punitive nature of the current juvenile model which, regrettably, is also tinged with structural racism that is repugnant to any civilized society.
Judge Gary E. Bair (Ret.)
Of Counsel, RaquinMercer LLC