Even as Illinois court permits detaining pre-teens, across U.S. fewer youth being held

Monday, November 4, 2019

Calling “backward” the United States treatment of juveniles, Cook County Public Defender Amy Campanelli said she plans to ask the Illinois Supreme Court to reverse an Illinois Appellate Court decision last week that permits holding pre-teenagers in custody.

Campanelli’s office represented a 12-year-old boy who was ordered confined in September 2018 by a Cook County judge, despite an ordinance passed by the Cook County Board of Commissioners that barred the custodial detention of pre-teenagers. The appellate court, in a 2-1 decision handed down last week, upheld the circuit court ruling that the county board ordinance conflicted with state law and was not enforceable.

The youth at the center of the case, identified in court records only as Mathias H., spent 23 days in lockup between September and October last year, according to the public defender’s office. He was released and placed on electronic monitoring a week and a half before his 13th birthday.

Campanelli noted the United Nations global study into children’s liberty, which recommended in September that youth under 14 should not be criminally prosecuted. Illinois has no minimum age of criminal responsibility, and last month prosecutors in central Illinois charged a nine-year-old with several counts of murder.

“In this ordinance, we’re merely asking that you don’t detain anyone under 13, putting them in a cage,” Campanelli said in a phone interview after expressing disappointment in the majority opinion.

Mathias was arrested in August 2018 for his suspected involvement in an armed robbery with his 18-year-old brother. He was placed on electronic monitoring, and spent about two summer months on home confinement.

Prosecutors twice asked a judge to revoke the youth’s electronic monitoring, contending that he had not complied with the terms of his home confinement by letting his ankle monitor’s battery die and leaving home without permission. When Mathias could not be located in late September, now-retired Cook County Circuit Court Judge Marianne Jackson ordered that the 12-year-old be detained upon arrest, a decision that clashed with the recently-passed ordinance by the Cook County Board of Commissioners banning the pretrial detention of children under 13.

Cook County Circuit Court Judge Michael Toomin later revisited the matter and found that state law allowed for the detention of pre-teens, leaving the court with no obligation to follow the county commissioner’s edict.

After spending three weeks in custody, Mathias was placed back on electronic monitoring, according to the public defender’s office.

Illinois Appellate Judge Daniel J. Pierce wrote an opinion, joined by Judge John C. Griffin, that agreed with Toomin, calling the county ordinance “unenforceable.” In a robust dissent, Judge Michael B. Hyman wrote that state law did not take away the county’s ability to make its own rules about the pretrial detention of pre-teens.

The decision in effect invalidates the ban against detaining pre-teens, concluding that the legislature, not the courts, was the appropriate body to approve such a ban.

The decision comes even as the number of youth being detained before trial has dropped dramatically nationwide in the past two decades, according to census research compiled by the National Center for Juvenile Justice and funded by the U.S. Department of Justice.

The number of youth under the age of 21 detained before trial has dropped more than 40 percent between the recent peak of pretrial youth detention in 1999 and the most recent 2017 census data. For 13 year olds, the number of youth detained pretrial dropped by 69 percent. And for pre-teens, the number declined by roughly 79 percent.

Experts and juvenile justice advocates last week noted that a body of research has shown the serious and harmful effects of detaining children and adolescents. And over the last two decades, scientific findings have shown that the human brain, particularly parts responsible for controlling impulses and assessing consequences, is not fully developed until one’s early 20s.

Nate Balis, an expert on juvenile detention and director of the Juvenile Justice Strategy Group with the Annie E. Casey Foundation, said putting youth in jail-like settings can result in abusive situations, and bad recidivism rates. Studies have also shown that youth detention leads to a reduced likelihood of graduating high school and an increased likelihood of adult incarceration.

“There’s real damage done by locking kids up,” Balis said. “We better have, for any young person whose being detained, we ought to have a really good reason for why there isn’t anything else that can be done.”

Betsy Clark, founder and president of the Juvenile Justice Initiative in Illinois, said that state lawmakers have already acknowledged an understanding of the serious risks associated with detaining pre-teens. An amendment to the Juvenile Court Act went into effect in 2016, requiring that the detention of children under the age of 13 should be used only after a local youth service provider is contacted, and is unable to accept the pre-teen.

“We’ve already made this kind of decision that we shouldn’t be doing this,” Balis said.  “The country is moving away from this, it’s a real outlier situation to be doing this at all anymore.”

In response to the appellate court ruling, Cook County State’s Attorney Kim Foxx’s office issued a statement last week showing support for the decision, but stated that the office was not advocating that pre-teens should be detained. The matter should be addressed by the Illinois legislature instead, the office said.

There has been an effort in many states across the country to lower pretrial incarceration, reduce prison populations, and to draw age lines to exclude entire cohorts of youth from pretrial detention, said Marsha Levick, deputy director and chief counsel for the Pennsylvania-based Juvenile Law Center.

“The effort that was challenged to do something locally, I would say, is entirely consistent with what the sort of platform for reform of the juvenile justice system is looking like across the country,” Levick said of the Cook County ordinance rejected by the divided appellate court.

Public defender Campanelli said she thinks there is some statewide bipartisan support for juvenile justice reform, evidenced by other recent changes in state laws surrounding the treatment of juveniles. Her office has been working to change the way the court system prosecutes and detains juveniles, she said.

“The answer isn’t to cage someone,” Campanelli said, adding later, “These barbaric charges, felony murder charges for kids, we have to stop and look at what the rest of the world is doing.”

Despite the recent nationwide shift, the United States remains an international outliner in its treatment of juveniles, according to advocates. The U.S. is one of only two United Nations members who did not ratify the human rights convention on children’s rights.

Douglas Keillor, executive director of Juvenile Justice Advocates International, said that after the U.N. creation and agreement on children’s human rights, globally two standards have been widely accepted: Children under the age of 12 should not be treated criminally, and youth should be treated in juvenile systems until the age of 17.

“Because the United States isn’t part of these human rights discussions internationally, the only time the United States has a voice in criminal justice issues is when countries are looking to implement more of a mass incarceration model,” Keillor said.

Illinois, along with 32 other states, does not set a minimum age for involvement in the justice system, according to research by the National Center for Juvenile Justice.

Eleven states in the U.S., including neighboring Wisconsin, set the minimum age of criminal justice involvement at 10.

Some juvenile justice reform has taken hold in recent years, both locally and nationwide.

The U.S. Supreme court issued a series of rulings over the past two decades that drastically shifted the court’s treatment of juveniles in adult court, including banning both the death penalty and automatic life imprisonment terms without the opportunity for parole for offenders under 18.

In a unanimous landmark Illinois Supreme Court decision earlier this year, the court ruled that a 41-year sentence for a juvenile offender constitutes the equivalent of a life term, triggering additional sentencing protections for juvenile offenders who are sentenced to serve more than 40 years in prison. An Injustice Watch review from May 2018 found that there were more than 160 offenders in state prison facilities set to serve 50 or more years in prison for crimes committed by offenders under 18 years old.

In addition to the Cook County Board of Commissioners ordinance barring the detention of children younger than 12, recent laws have shifted the state’s treatment of juveniles who are charged in the adult court system.

Gov. J.B. Pritzker signed a bill into law this year that affords periodic parole opportunities to some youthful offenders who were under 21 years old when their crimes were committed. A 2016 state law allows judges to decline to impose mandatory gun enhancements for juveniles.

And in 2015, state legislators ended the practice of automatically transferring 15 year olds charged with certain crimes to adult courts. The legislature also curtailed the use of automatic transfers of 16 and 17 year olds.

After 2015, more serious juvenile offenders remain in juvenile facilities, putting younger children at even greater risk, said Earl Dunlap, who was the federally appointed administrator of the Cook County Juvenile Temporary Detention Center from 2007 to 2015.

“Cook County still has a choice,” Dunlap said. “It doesn’t matter what the court of appeals or the Illinois Supreme Court says, they still have a choice as to whether or not they house the younger age kids in that environment.”