Juvenile Justice: IL Program Leaves Some Wondering Whether the Concept of Fairness is Being Served

May 1, 2013

If a 17-year-old were caught stealing an iPod in Illinois, he or she would likely end up in the juvenile justice system. However, if the same teenager were caught stealing the newest iPhone, he or she would land in adult court, be held with adult inmates and end up with a record that would follow him or her into adult life. Advocates argue that it is time to change that disparity in the system.

The difference in the two crimes is that theft of an iPod, which costs between $50 and $300, depending on the model, is a misdemeanor, but theft of the latest iPhone, which Apple sells for about $600 without a contract with a cell phone carrier, is a felony, which would automatically put the 17-year-old into the adult system. Retail theft under $500 is a misdemeanor in Illinois and would fall under the jurisdiction of the juvenile system. 

Initially, juvenile justice reformers tried to persuade lawmakers to put all youths younger than 18 into the juvenile system, except for those whose crimes would automatically transfer them to adult court. But they were met with strong resistance. “There was pushback from a number of areas, one of them being police and another one being state’s attorneys,” George Timberlake, chair of the Juvenile Justice Commission, says of attempts to increase the juvenile courts’ jurisdiction to include 17-year-olds. The commission is a federally mandated organization that advises the state on juvenile justice issues. Opponents of changing current law voiced concerns about public safety and the cost of moving more people into the juvenile system, which offers more services than the adult system. They were also worried that shifting more offenders into the less punitive juvenile courts would strain the already overloaded probation system and overcrowding at juvenile detention centers. 

A compromise, which was lauded as a victory by advocates at the time, created the two-tiered system for 17-year-olds. Lawmakers approved a change that increased the age of adulthood in the state’s criminal justice system to 18 but only for misdemeanor crimes. The law went into effect in 2010.

“After a few years of unsuccessfully attempting to persuade the Illinois General Assembly to join with the 38 other states setting juvenile court jurisdiction at age 17 and younger, the ‘bifurcated approach’ seemed like a reasonable compromise. Many in the justice system agreed that science and logic dictate that 17-year-olds should be treated as youths, but strong objections based on presumed fiscal and management issues remained,” Timberlake, who is a former judge, wrote in an essay for theJuvenile Justice Information Exchange. The move made Illinois the only state to place teenagers of the same age on one judicial track for misdemeanors and another for felonies. “Not only did it sound reasonable, it was the only way some 17-year-olds would be treated like the juveniles they are. Without this compromise, all 17-year-olds would continue to be treated as adults, with little access to services and all the obstacles an adult criminal record creates. But there is a good reason no other state had gone this route: It doesn’t work,” Timberlake says. 

Armed with data compiled since the 2010 law went into effect, Timberlake and others are lobbying to change the law again to allow 17-year-olds who commit certain felonies access to the juvenile justice system. In 2009, when the General Assembly passed the compromise legislation, it also tasked the Juvenile Justice Commission with studying the impact of allowing some 17-year-olds into the juvenile system. The commission was also asked to make recommendations about applying the change to 17-year-olds who commit felonies, which it did in a recent report. “To promote a juvenile justice system focused on public safety, youth rehabilitation, fairness and fiscal responsibility, Illinois should immediately adopt legislation expanding the age of juvenile court jurisdiction to include 17-year-olds charged with felonies,” the report says. 

The commission found that the negative effects that opponents feared would follow with the 2010 change for the most part did not happen. According to the report, adding some 17-year-olds did not overwhelm the system. An overall decline in juvenile crime has helped to bring down the numbers of youth in the system. Public safety overall has not suffered, crime reports have dropped and violent crime across the state has decreased by 14 percent since the change went into effect. The report cites the confusion associated with the two-tiered system as one of the only tangible negative outcomes of the change. “Illinois’ seemingly reasonable compromise did not, in the end, draw a wise, safe, or clear distinction between minor and serious offenses. In fact, years after the change, jurisdictional questions still regularly arise when 17-year-olds are arrested; some are being unnecessarily housed in adult jails and others are receiving adult convictions for misdemeanor offenses; decisions with lifelong collateral consequences for youth are being made without judicial oversight or a clear, uniform statewide process,” the study says. 

“I think the track record is pretty good and suggests that we are on the right track,” Chicago Democratic Rep. Barbara Flynn Currie says of the results of the 2010 change. Currie is sponsoring House Bill 2404, which would allow 17-year-olds who commit some felonies into the juvenile system. “I’ve always thought that juveniles should be treated as juveniles,” Currie says. Under the legislation, the automatic transfer of certain felonies, such as violent crimes and gun charges, to adult court would not be changed. “On a case-by-case basis, [17-year-olds charged with felonies] could still go into an adult court,” says Betsy Clarke, president of the advocacy group Juvenile Justice Initiative. “Any juvenile charged with any felony, who is 13 and older, can be tried as an adult. It just requires a hearing.”

Proponents point to research that shows that teenage brains are different from adults’ and that young people can struggle with impulse control and empathy. Teenage brains are also primed to learn and pick up on whatever environments they are in, which means the brain function of a juvenile offender might lend itself to rehabilitation better than that of an adult counterpart. Currie says it is important that 17-year-olds have access to the services available in the juvenile system so they have the best shot at getting their lives back on track. They would also have the opportunity to go into adulthood with clear criminal records, which will be beneficial when looking for work or applying to college. “There are resources available in the juvenile courts that are just plain not going to be there in the adult courts,” Currie says. 

Timberlake says he often hears the argument that “‘17-year-olds are old enough to know what they are doing, to know right from wrong,’” he says. “Well, bull----. That’s just not true. It is true for some, but it’s not true for most. That’s what science on the brain teaches us.”

While Currie’s bill faces fewer detractors than the original push to change the system, she acknowledges there are still “pockets of opposition.” Cook County Sheriff Tom Dart and County Board President Toni Preckwinkle are in favor of Currie’s bill. Cook County State’s Attorney Anita Alvarez is neutral on the issue, and so is the Department of Juvenile Justice. The Illinois State’s Attorneys Association has taken no stance. “Some state’s attorneys have come on board; others are less enthusiastic,” Currie says.

Rep. Jim Sacia, a Republican from Pecatonica, initially opposed Currie’s bill because he sees it as part of a push at the Statehouse to cut down on the time criminals spend behind bars and make the judicial system less punitive overall. “We see more and more people pushing harder and harder, and I certainly understand the drift of wanting to get people as good a deal as they possibly can,” he says.

Sacia, a former FBI special agent, says he is not fully convinced by the argument that the 17-year-old brain is “not fully formed” because during his time in law enforcement he has seen kids at that age who have already reached hardened criminal status. “I dealt with so many juveniles that had such an evil side to them. It’s hard for me to say, ‘Well, their mind wasn’t adequately formed.’” 

Timberlake agrees that some teenagers need to face serious punishments for their crimes. “There are bad kids that do terrible things,” he says, but he adds, “That’s a teeny tiny percentage of the kids that we deal with.”

In the end, Sacia supported the bill, which was approved by the House. “Even at 69, with a life in law enforcement, you may think I’m jaded. But I still have an empathetic side to me, and I want to see the best in people when I can.”

Elmhurst Republican Rep. Dennis Reboletti, a former prosecutor, says that such changes cause gangs to call on younger members to commit crimes because they can avoid going to prison or facing a record as adults. “Gangs are well aware when you change these ages, of who they can now use to commit these certain kinds of crimes.” He opposed the 2010 change and says that it did nothing but make the system more confusing for prosecutors in cases where 17-year-olds face both felony and misdemeanor charges. “If I had my druthers, I would treat 17-year-olds as adults. Most of those individuals are either seniors in high school or freshmen in college. A 17-year-old is well aware of what’s right and what’s wrong, and they should be treated accordingly.”

John McNabb, who lobbies on behalf of probation officers across the state, says he has seen a mixed reaction to Currie’s bill. “We have some counties that don’t see it as a problem. We have a number of counties that do see it as a problem.” He says that while the costs for probation did not increase as much as expected under the 2010 change, that outcome does not necessarily predict what would happen under the new proposal because the two groups of offenders can be different. “Seventeen-year-old felons are not rookies,” he says. “They’ve been with us before, and they require more supervision, more activity by a probation officer. They have to check in more. It’s just not an easy ‘slide them over, and it won’t cost anything.’ That is just not the case.” 

The state reimbursement to counties for probation costs has taken a hit under recent budgets and McNabb says that counties are subsidizing the state’s share. He says that the number of juveniles who might receive probation under the new law may not be that large, but it would likely be concentrated in places such as Cook County, Lake County and Will County, where probation systems are already strained. “If the General Assembly is serious about this, they can fund probation like they’re supposed to.”

But Clarke says lawmakers can make it work if they send the funding along with the 17-year-olds who would be moved to the juvenile system and the sphere of services it can provide. “You’re just shifting your costs from adult to juvenile.” She points out that wherever these teenagers end up, there will be costs associated with their paths through the justice system. “They’re on the caseload somewhere.”


A Constitutional Question

The parole system for juvenile offenders has come under fire in recent years and now faces a constitutional challenge. 

A 2011 report from the Juvenile Justice Commission said that the system was failing juvenile offenders. The analysis found that well more than half of the youths who are paroled return to a juvenile detention facility or end up incarcerated in the Illinois Department of Corrections. “An essential measurement of any juvenile ‘reentry’ system is whether youth returning from incarceration remain safely and successfully within their communities. By this fundamental measure, Illinois is failing,” the report says. A 2009 law called for the commission to conduct the study and make recommendations on how the Department of Juvenile Justice could do a better job of helping youth offenders become productive members of society. The state commission, which advises the DOJJ, looked into 230 prisoner review board hearings on juvenile cases and the cases of 400 juveniles whose parole had been revoked. 

The commission found that the parole hearing process, which is conducted by the Prisoner Review Board, was rushed and that many juvenile offenders did not have legal representation and were often persuaded to sign away some of their rights without understanding what they were doing. 

Last year, the Roderick MacArthur Justice Center filed a class action lawsuit claiming that the parole process for juvenile offenders violates their civil rights. Alexa Van Brunt, a clinical assistant professor of law and an attorney for the center, says she hopes a settlement can be reached with the state that ensures that juveniles’ rights are protected. “We’re very hopeful that we will be able to come to some kind of agreement.”

Jennifer Florent, a spokeswoman for the department, says it is working to address the problems. “The department has developed and implemented a standard, formalized process for regular review for discharge upon successful completion of aftercare or parole. ... While processes were previously in place, they were not uniformly utilized,” she said in an email.

The department is working statewide to implement a new youth parole model, known as aftercare. It would be administered by so-called aftercare specialists who have backgrounds in social services. The concept was tested as a pilot program in Cook County. The new model is meant to focus on providing services instead of just monitoring youth and punishing them if they break the rules while on parole.

“Youth are assigned to an aftercare specialist as soon as they arrive at the facility, instead of on their first day on parole, which was the procedure previously,” Florent says. “The goal is to start aftercare/reentry planning at the onset of a youth’s stay in the Department of Juvenile Justice. The specialists work with youth on their case plans, family reunification and other goals while they are in the care of [the department] and then follow them into the community. They ensure that the youth are receiving the services and supports they need in their communities upon return, as well as handling monitoring work to help ensure community safety.” 

Some advocates say they have seen positive change since the lawsuit was filed. “It is still a major problem, but there are actions that are being taken now, both by the Prisoner Review Board and the Department [of Juvenile Justice], as a result of the lawsuit,” says George Timberlake, chair of the Juvenile Justice Commission. But others have more reservations. Betsy Clarke, president of the advocacy group Juvenile Justice Initiative, says that the concept of making juvenile parole more about treatment than about monitoring behavior is a good step. However, she says that the department has been less than transparent about the results of the aftercare pilot program, and it still has much to do to improve the parole system for youth. “I would say that it’s a long way from being any kind of model system at this point.”


Illinois Issues, May 2013