PSJ’s Youth Justice Report – Misguided Measures September 20, 2011
Posted by FairSentencing in : Current News , trackbackFifteen years after Measure 11 passed in Oregon, Partnership for Safety and Justice (PSJ) teamed up with the Campaign for Youth Justice to conduct a comprehensive examination of the impact of charging Oregon’s youth as adults. After two years of research and analysis, we are excited to announce the release of Misguided Measures: The Outcomes and Impact of Measure 11 on Oregon’s Youth. Misguided Measures is the first report to focus on the impact of Measure 11 specifically on Oregon’s youth.
The report shows that Measure 11 is out of step with national research and best practices in regard to youth justice, accountability and rehabilitation. Our analysis of Measure 11 cases shows that a large number of youth are inappropriately being placed into the adult system through the Measure 11 indictment process. These youths, who should be in the juvenile justice system that is designed for them, are charged as adults, which is not good public safety policy and creates lifelong barriers that make it harder for those youth to succeed.
The timing of this report’s release could not be better as it coincides with Governor Kitzhaber’s decision to appoint a high-level commission, led by Oregon Supreme Court Justice Paul De Muniz and including former Governor Ted Kulongoski, to review the effectiveness of Oregon’s sentencing policy. We expect that Misguided Measures will provide critical information and analysis as the commission makes its recommendations to help stem Oregon’s overreliance on incarceration. Furthermore, this report comes on the heels of the passage of House Bill 2707 that makes youth facilities the default site of placement for youth charged as adults pre-trial. This bill, successfully fought for by PSJ and its members, indicates that there is momentum building for substantial change in Oregon’s practice of charging youth as adults. (See Oregon’s 2011 Legislative Session Wrap-Up for more information on HB 2707.)
Those with a stake in Oregon’s youth justice community (called “stakeholders”) immediately received the report with enthusiasm, seeing it as an important tool for change. Ken Hales, Director of Community Justice for Deschutes County, praised the report, saying, “Misguided Measures demonstrates that Measure 11, as it is applied to youth, deprives young people of individual justice and is ineffective and costly. Measure 11 has opened a wide door that funnels kids, almost uncontested, into the adult justice system, which is counter-productive as far as rehabilitation is concerned. This study will help build the case for the changes we know are needed.” Craig Prins, Executive Director of the Oregon Criminal Justice Commission, was equally excited about the prospects of the report being used to create necessary changes: “I hope it has a big effect. The key question is, who should make decisions in individual cases, and how should they do it? We should use what we’ve learned in the last 20 years to answer that question.”
Such enthusiasm for Misguided Measures is attributable to the fact that the report goes beyond the political rhetoric that usually surrounds Measure 11 by presenting the most recent research about juveniles charged as adults and providing a thorough and scientific analysis of every juvenile Measure 11 case from 1995 to 2008. In that sense, it is very similar to reports released by the Rand Corporation and the Oregon Criminal Justice Commission. Both of these reports are critical of Measure 11, especially the distance between what voters were promised when they passed Measure 11 and how it is actually implemented.
Proponents of Measure 11 promised that solid, minimum prison time would incapacitate convicted offenders, deter potential offenders, and provide predictable and comparable sentences. Instead, what recent reports have found is that the major consequence of Measure 11 has been to transfer discretion from judges to district attorneys. This change has, in fact, undermined the reasons given in support of Measure 11, particularly to provide predictable and comparable sentences for a given offense across the state. Instead, these reports emphasize, in most cases, prosecutors use the threat of mandatory minimums as leverage to obtain a plea bargain to a lesser charge.
Our report reached similar conclusions regarding the use of mandatory minimums to obtain a plea bargain to a lesser charge. After following over 3,000 juvenile Measure 11 cases from indictment to conviction, we found that 92% of cases were resolved through plea deals. While plea deals are a common feature of case proceedings, such a high rate is problematic because settling out of court eliminates the possibilities of the back-and-forth discussions that can happen in a juvenile courtroom – where the needs of the victim, the community, and the young person can be identified and balanced.
Overall, by following every juvenile Measure 11 case from 1995 to 2008 from indictment to conviction, the report paints a picture of how Measure 11 is implemented that will surprise most Oregonians who assume that it only applies to extremely serious offenders. Our analysis shows that 21% of cases resulted in conviction for the most serious Measure 11 offense and 17% of cases resulted in a conviction for a lesser Measure 11 offense. Therefore, only 38% of all indictments resulted in a Measure 11 conviction; 44% of cases resulted in a plea to a lesser, non-Measure 11 adult conviction and 18% resulted in no adult charge, which either meant that the case was dismissed or returned to the juvenile system. This means that over 60% of indictments do not result in a Measure 11 conviction (see Figure 1).
The consequences of initially being indicted for a Measure 11 offense as an adult do not extend much beyond it being used as leverage during the plea bargain process. However, the consequences for juveniles are extremely devastating because it diverts them into the adult system and keeps them there whether or not they are convicted of a Measure 11 offense. The 44% of youths who received a non-Measure 11 adult convictions will still be treated as an adult, even though the offense they are finally convicted of is not covered by Measure 11.
Once they are in the adult system, young people might be placed in an adult jail where they are at increased risk of violent assault and prevented from continuing their education. They will also be denied age-appropriate programming and treatment designed to prevent recidivism. Finally, they will receive a felony record that creates huge barriers to attaining an education, housing and employment. As a result, it is very difficult for them to become successful and productive members of society.
People in support of Measure 11 have always claimed that it only applied to the most serious juvenile violent offenders, often pointing to the serious offenses it covers. This is partially the reason why it has been difficult to even discuss the possibility of reforming Measure 11. Our finding that 44% of juveniles indicted under Measure 11 are charged with a non-Measure 11 adult offense should give pause to Oregonians. Clearly all youths indicted under Measure 11 are not serious offenders that should be placed in the adult system.
In another sign that Measure 11 is not targeting violent offenders, but instead funneling youth into the adult system, 36% of all youth convicted of an adult offense through the Measure 11 charging practice were placed on adult probation. While being placed on probation is preferable to being placed in prison, it is necessary to take a step back and ask the question, “If these youth are so dangerous that they need to be placed in the adult system, why are they being released into the community?” That is, why saddle these youth with an adult felony record rather than send them back to the juvenile system?
This is particularly important given the extremely stern terms of probation and severe punishments in the case of revocation. For example, it is often the case that youth on probation must be in school or have a job to fulfill the terms of probation. However, both these requirements are hard to fulfill. For one thing, it is difficult for youth to reintegrate themselves into school because of the level of education they received while in jail awaiting trial. Similarly, it is difficult for youth to get jobs because they now have felony records. The odds of having their probation revoked are largely stacked against them. To make matters worse, because they are on adult probation, for many youth having their probation revoked means serving time in an adult jail. All of this despite not being convicted of a Measure 11 offense. This is an example of the intricacies of how Measure 11 is actually implemented that most people are unaware of and that we hope Misguided Measures brings attention to.
The report also demonstrates that Measure 11 has failed to fulfill promises of predictable and comparable sentences. This is largely because most cases are resolved through plea deals and are therefore at the complete discretion of the District Attorney’s office. Our analysis indicates that counties have different prosecutorial practices that result in different outcomes for youth. For instance, in Marion County 44% of youth indicted are convicted for the most serious offense while in Multnomah County only 21% are. Two youth indicted for the same crime, but processed in different counties, will most likely face very different sentences.
This “justice by geography” – where the application of a law varies from place to place – also helps to highlight something that we at PSJ have been saying for a long time: Measure 11 has not made Oregonians any safer. Over a three-year sample period from 2006 to 2008, data from the 36 Oregon counties show no discernible connection between the number of young people charged with a Measure 11 offense and the juvenile crime rate.
As for the claim that Measure 11 would deter potential offenders from committing crime, Misguided Measures includes research that shows that the brains of teenagers are not fully developed, particularly the area of the brain that deals with decision making. This research suggests that youth are much less able than adults to weigh risks and consequences of their behavior, control their impulses, handle stressful situation and say no to peer pressure. It is highly unlikely, therefore, that Measure 11 works to deter youth. This is especially true given that many teenagers have not heard of Measure 11 and if they have, are unaware of what offenses it applies to. Misguided Measures also includes research that shows that charging youth as adults is actually counterproductive and may decrease public safety.
Measure 11 has had significant costs for all Oregonians, but it has different impacts on different communities. By breaking down indictments by race and ethnicity, we were able to see how the law uniquely affects each community. Not surprisingly, the results of the analysis raised even more questions about how Measure 11 is implemented. For example, black youth comprise 4% of Oregon’s population but 19% percent of all indictments (see Figure 2). Clearly, black youth are overrepresented in Measure 11 cases. However, a majority of these cases involved Robbery-2 charges, one of the least serious Measure 11 offenses. Moreover, black youth were also more likely to plea down to a non-Measure 11 adult conviction. This raises some serious questions and concerns. Are black youth being consistently over-charged? Why are black youth being charged as adults for lower level offenses at such higher rates? What impact does this have on Oregon’s black communities?
We also found that almost 50% of white youth are indicted for sex-related offenses. Given that juvenile sex offenders are very unlikely to reoffend and that a lot of cases involve complex family dynamics in which the offender might also have been a victim, are we sure that placing youth in custody with adult sentences is the best way to hold these youth accountable and ensure that they receive the proper treatment and programming for their eventual reentry into society? Finally, our results indicates that Latino youth are more likely to be found guilty of the crime for which they are indicted compared to white and black youth. While one interpretation of this is that it is somehow easier for prosecutors to build a case against Latino youth, another possible explanation it that because of cultural and language barriers, Latino youth are not adequately prepared to deal with a deliberation process that involves highly technical language. We urge system stakeholders to take a much deeper look at how Latino youth are fairing under Measure 11 in order to ensure that they are adequately prepared for the plea bargaining process.
There are a number of reforms that would improve Oregon’s approach to youth justice, accountability, and rehabilitation. In this report, we make three primary recommendations: remove youth from adult jails, extend Second Look to all youth convicted as adults and remove secondary offenses from Measure 11. The first recommendation would mean fully implementing House Bill 2707 so that all youth in Oregon are held in juvenile facilities pre-trial. In addition, few youth have benefited from an opportunity to receive a “Second Look” hearing. Oregon’s “Second Look” law was conceived as an opportunity to help provide young people in custody with an incentive to change their behavior. It is a good policy that would result in benefits for both impacted youth and the community. Finally, given the number of cases that end in a non-Measure 11 adult offense conviction, removing second-degree offenses from Measure 11 would ensure that prosecutors continue to have the discretion to move youth engaged in the most serious behavior to the adult system, but also help steer youth who could benefit from juvenile services back to the juvenile justice system.
Perhaps the most important reform is stopping the practice of automatic transfers to adult court altogether. The best thing Oregon could do is to require mandatory waiver hearings for any youth that prosecutors would like to charge as an adult. As an organization, PSJ is committed to this goal. Misguided Measures is an important step towards achieving it.
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