Analysis: The Impact of Raising the Age in Illinois

PREDICTED EFFECT

When legislation proposing to raise the age of juvenile court jurisdiction was debated in 2005 and 2008, there were dire predictions that such a step would prove unmanageable and would swamp the juvenile system. One analysis, conducted by the National Center for Juvenile Justice (NCJJ)in 2005 concluded that "[r]aising the upper age of juvenile court jurisdiction from 16 to 17 would probably increase the overall juvenile justice system workload by about a third." For instance, the NCJJ study estimated that adding 17-year-olds to the juvenile justice system "would make the juvenile arrest category about 35 percent larger" and would increase the Illinois juvenile detention population by 25 percent to 35 percent.

  • The higher volume resulting from inclusion of 17-year-olds would be fairly uniform from the front to the back end of the system, if national case processing data are any indication. For example, petitioned cases would increase by 32 percent as a result of the change, adjudicated cases by 31 percent. Cases involving predisposition detention would increase by 33 percent. Cases receiving a probation disposition would increase by 28 percent and those getting residential placement dispositions by 30 percent.

This study, and other predictions, were based on "worst case scenarios," projections of continuing high juvenile crime rates and sometimes inapplicable national data and trends. These concerns prompted

the legislature to adopt a "bifurcated" approach, with 17-year-olds charged with misdemeanors shifting to juvenile jurisdiction and 17-year-olds charged with felonies remaining in the adult system. Fortunately, these worst-case scenarios have not come to fruition and raising the age to include 17-year-olds charged with misdemeanors in the juvenile system has proved manageable and has not overwhelmed local and state juvenile justice systems.

IMPACT OF RAISING THE AGE FOR MISDEMEANORS

Juvenile System after Raising the Age for Misdemeanors
  • ARREST
    • -24% statewide, youth 10-17 (2011) 
  • PETITION
    • +03% statewide, all ages (2011) 
  • ADJUDICATION
    • -06% statewide, all ages (2010)(Cook not reported)
  • JUVENILE PROBATION
    • -03% statewide, all ages (2011)
  • JUVENILE DETENTION
    • -18% statewide, all ages (2012)
    • -08% non-Cook,
    • -31% Cook 
  • INCARCERATION
    • -22% statewide, all ages, IDJJ (as of 1/2013),
    • -15% statewide, 17yo adult felony admissions to IDOC (FY09-FY11)]

Based on the most recent arrest data available at the time (2009) and using the NCJJ method of prediction, adding roughly 18,000 misdemeanor arrests of 17-year-olds would have impacted the juvenile justice system by a 38.4 percent increase at the arrest stage (with increases echoing through the rest of the juvenile system at lower percentages since only misdemeanors were added).

The actual effect of adding misdemeanors could not be more different than predicted; even supporters have been surprised by the system's ability to absorb thousands of misdemeanants.

Issue: Record-Breaking Declines in Juvenile Crime

There is a simple explanation for the ability of the juvenile justice system to handle expanded jurisdiction: nationwide, the violent crime rate among youth under 18 is at a 30-year low, falling by a full 33 percent just between 2008 and 2011. The marked and consistent downward trend in juvenile crime is important to discuss and understand. Youth crime reduction contradicts popular crime theories of the 1990s.Statewide Arrests of Minors (10-17) 2005-2011

[Information and details about the graphic, please contact Heidi Mueller, Executive Director, Juvenile Justice Commission, Office of Community and Positive Youth Development, Illinois Department of Human Services, email:  heidi.mueller@illinois.gov]

Most critically, overall reduction patterns in youth crime can be difficult or impossible to detect in the face of specific community concerns, especially in the face of tragedies and violent flare-ups.

Presented with facts about youth crime reduction, many seek another explanation. Speculation frequently includes: (1) juvenile arrests may be down, but that just means youth are not getting caught; (2) crime reports may be down, but perhaps police aren't responding to incidents or submitting data to the FBI; (3) downward trends may hold true nationwide but Illinois is an exception; or (4) downward trends may hold true in some parts of Illinois, but Chicago is an exception. All of these theories are false. Even taking into consideration variations in policing strategies and reporting practices and despite periodic flare-ups of youth violence, the trends hold. Crime is down-not just arrests, and not just police reports of crime. Crime has been decreasing in Illinois, too, and Illinois has far fewer youth crimes than it has generally had in recent years, including in Cook County.

Acknowledging and reporting the stunning reductions in juvenile crime in no way minimizes the seriousness of the dangerous conditions many Illinois communities face. It is critical to continue to address juvenile offenses, especially violence. However, in order to adequately address and prevent juvenile crime, Illinois must responsibly assess what is working and what capacities already exist. Public safety can be further improved by expanding juvenile jurisdiction and declines in youth crime permit our state to act now without unduly expanding systems.

STEP BY STEP: SYSTEM RESPONSES TO JURISDICTIONAL CHANGE

One of the most important lessons learned from Illinois' experience with adding misdemeanants is that juvenile crime trends and ongoing juvenile justice reform efforts combine to present a uniquely dynamic environment for both practitioners and administrators. In such an environment, precise caseload and fiscal projections related to any single proposed reform are unlikely to fall within a reasonable margin of error, no matter how carefully analyzed and calculated.

It is possible, however, to draw general conclusions and implementation recommendations for raising the age for felonies that will be useful to policymakers and administrators.

The following sections walk through each stage of the juvenile justice system step-by-step:

  • Analyzing legal and practice differences between the juvenile and criminal justice systems;
  • Sharing data on the system impacts prior to and after raising the age for misdemeanors; and
  • Summarizing practitioner experiences and future expectations about raising the age for felonies.

Where pertinent, illustrative (and sometimes conflicting) practitioner viewpoints are shared. Specific issues raised by their experiences are discussed.

STEP 1: INVESTIGATION AND ARREST

Felony-charged in juvenile court (16 and under):

  • According to the Juvenile Court Act According to the IL Criminal Code
  • Juvenile investigation procedures, including a youth officer to ensure the minor's safety upon arrest
  • Parents/guardians must be notified of arrest

Felony-charged in adult criminal court (17):

  • According to the Juvenile Court Act According to the IL Criminal Code
  • Adult investigation, interrogation, arrest procedures
  • Parents/guardians are not notified of arrest

Law enforcement is familiar with the uncertainty and inefficiencies that can result from overlapping geographic or interagency jurisdiction. Similar difficulties arise from overlapping procedural jurisdiction:

  • "From the standpoint of crimes [that] officers run into where age makes a difference: [felony] mob action at school means two or more people in a fight. So, if a 16-year-old and a 17-year-old fight, one is a juvenile justice case, but the other goes to adult court. Some confusion over things like that. I don't think [current law] gives the judiciary the latitude [to route cases]. Even though they're both equally guilty, one is offered more opportunity to be diverted and other programs. . . . [S]eparating the kids [into different systems brings] inherent confusion." [Police Department]
  • One public defender recounted an example of a 17-year-old with no history of drug use or sale. Her mother used, dealt, and manufactured methamphetamines. Due to related problems in the home, the youth had moved out (was effectively homeless and staying with various friends and relatives) but was visiting when police raided her mother's house. As a 17-year-old on the scene during the raid, the youth was presumed to be an adult by police and was charged with many of the same drug-related felonies as her mother, including a felony charge for drug-related child endangerment (a younger sibling lived in the house). Under the same law, the police could instead-or simultaneously-have viewed her as a second endangered child victim of her mother's. Had police called the Department of Children and Family Services to assess the same scenario, the agency could have opened an abuse and neglect investigation and sought protection for the youth due to the dangerous environment created by her mother. Instead, the minor was charged in criminal court and eventually accepted a plea agreement for an adult misdemeanor.

Age is the most reliable proxy for juvenile jurisdiction and procedures; without being able to rely on it, officers encounter difficulties during patrol, investigation, and arrest. Uncertainty can arise from borderline crimes and "gray area" misdemeanor/felony laws, as well as uncertainty about how the case will eventually be prosecuted. When police arrest a juvenile suspect, they must follow the procedures in the Juvenile Court Act, including contacting a parent as soon as possible and taking the minor to a youth officer. Adult suspects, by contrast, receive only the standard Miranda warning upon arrest.

Prior to the change in law for misdemeanor offenses, law enforcement determined whether to apply juvenile procedures by using date of birth. Since the change in the law, police are forced to either prophylactically apply the more extensive juvenile procedures to all 17-year-olds, or draw very early conclusions about the nature and extent of a crime, deciding whether a 17-year-old is most likely to be arrested and ultimately charged with a felony or a misdemeanor crime.

The pressure to adopt conclusions during an investigation carries a risk; premature assumptions increase the chances of error because some evidence that does not "fit" a particular assumption may be overlooked and not pursued. Further, once the decision to pursue a felony arrest has been made (e.g. an insurance claim form lists the value of stolen goods over the felony limit), it can be difficult to reverse course even in the face of specific evidence to the contrary (e.g. recovered items are not worth the amount claimed). A decision to investigate or prosecute a crime as a misdemeanor later on means applying Juvenile Court Act requirements (parental notification, place of custody) mid-stream and retroactively, resulting in confusion, or failure to implement a necessary protection.

Issue: Bifurcated Jurisdiction and "Borderline" Crimes

Most police (as well as court practitioners) remarked that determining whether some crimes constitute felony or misdemeanor offenses is a "judgment call" or "gray area." Commonly-cited examples of behavior that could result in a 17-year-old receiving either a misdemeanor juvenile adjudication or an adult felony conviction include:

Scenario

Available

Misdemeanor

Charges

Felony

Charges

Stealing iPhone from car  trespass to a vehicle + theft under $500  burglary + theft over $500
Defacing school property after hours, $20 damage Criminal Trespass + Criminal Damage to Property under $300 burglary + Criminal Damage to Property (school enhancement = any value)
Getting in a fight with a peer at school, park, or sporting event Battery  Aggravated Battery, Mob Action
Shoplifting at the mall Retail theft under $300 Retail theft over $300
Stealing beer from a neighbor's garage Criminal trespass, theft, underage possession of alcohol Residential Burglary
Using parent's debit card without permission Theft under $500 Violation of IL Credit Card and Debit Card Act
  • "Seems most 17-year-old [felonies] are residential burglary-always one 17-year-old in the group . . . breaking into a garage for beer, or a friend's house while they're on vacation to get Xbox games is residential burglary. Maybe retail theft or criminal damage to property. Likely [to receive an] adult felony and probation, [spending] a significant number of days in adult jail. I think we have a disproportionate number of cases like this." [Public Defender]

Managing the next phase: Most police departments interviewed expect the benefits of predictability and uniformity to mitigate or outweigh their operational burden of raising the age of adulthood to 18. While some police did not initially support raising the age, 62.5 percent of police departments interviewed preferred treating all 17-year-olds as juveniles to keeping the law as it is now. Although several participants noted that any change to criminal laws initially creates stress on their departments, a uniform change should be accepted relatively quickly and with far less confusion than the last one. The most often-cited reasons for support were clarity and efficiency. Other reasons frequently mentioned were treating high-school-aged youth alike and the fact that the existence of transfer statutes to deal with more serious situations made them comfortable about the public safety impact of the change:

  • Police Departments Say:
    • "We have the misfortune of being located in [multiple] counties . . . . [Including misdemeanors was a] nightmare for us, but we're doing it. Like any change, it was difficult . . . . [Raising the age] would probably simplify things. We already have a mechanism [transfer] to go after particularly bad [offenses] if 17 and under is juvenile. First preference: go back to how things used to be. Second preference: make the age uniform. Third preference: current law."
    • "When dealing with juveniles, use the age of majority. The thing we're trying to do is keep them out of the system. Our job is to get them every kind of course correction: mental health, drug treatment, community-based services. Do them the justice of course-correcting. In the adult system, there's less ability." "Simpler if 17 for all. With alcohol it's 21, tobacco 18, standard for years and ingrained in how we do things. Flip-flopping between ages depending on how [they're charged-breeds confusion]. If the General Assembly says you're a juvenile for everything, there are provisions-murder suspects can still be transferred to adult if a judge thinks it's appropriate. The way things are, it's inefficient. [Raising the age] might save money because it's standardized. The only law enforcement impact is calling parents, interrogation procedures." "Would be kind of trying [to change the law again] but I think it would be better just to set an age. I thought 17 was good, but just make it the same." "Personally, I think they should have made it 18 and called it even. They're splitting hairs. The federal level is 18. We're close to [another state] where 17 is always juvenile. Example: in a drug conspiracy case, with a large amount of cocaine, we can't take a 17-year-old to the feds-he will be a juvenile. We simply need to make it 18, period. That's my strong advice. Then we'll fall into line with other states and the federal system."

Those who opposed changing the law primarily cited the opinion that 17-year-olds who commit felonies are mature adults:

  • Police Departments Say:
    • "I don't agree with [including felonies]. Main concern: they know right from wrong at 17, do the same thing over and over, but nothing is being done. They know there is no punishment."

A small minority preferred the increased exercise of police discretion to uniformity:

  • Police Departments Say:
    • "We should not route [felonies] to juvenile system because of just a few [first-timers]. It's just a delay in graduation to the adult system by that point in time. [It would be a] huge financial burden. Now, they just go to the big house, that's where they need to go. Now, with the split [in jurisdiction], you have some options. Example: felony criminal damage to property at [a local private school]-we really don't want to give them felonies for a homecoming issue, stupidity that kids in the past had done. [We have] more to play with [with the bifurcation]."

Applying juvenile procedures requires more time and personnel than adult arrests, but the number of juvenile arrests including all 17-year-olds is equivalent to the number of juvenile arrests in 2005. Some departments mentioned that they might hire an additional youth officer, while others mentioned reassignment. Because most police academies in the state currently incorporate youth officer certification as part of their standard curriculum, most police officers hired within the last 10 years are certified as youth officers. Police noted the difference between experienced officers with youth expertise, as opposed to officers who were merely certified during training. The Commission agrees, but notes that because of broad certification, police departments should be able to remain compliant with juvenile procedures by reassigning officers until they know the extent of the impact upon their department. Therefore, the policing function of law enforcement is almost instantly capable of absorbing the change in the law to perform juvenile felony arrests on 17-year-olds, although some municipalities may eventually need to designate and train additional youth officers.

STEP 2: DIVERSION PROGRAMS AND COMMUNITY-BASED SERVICES

Felony-charged in juvenile court (16 and under): 

  • Multiple agencies with youth experience may assess for diversion

Felony-charged in adult criminal court (17):

  • Prosecutor may assess for adult diversion programs

In many jurisdictions across the state, juvenile suspects are screened by law enforcement, probation departments, and/or prosecutors to determine whether formal court proceedings are required or whether alternates to a formal court petition may be appropriate. Law enforcement frequently uses procedures such as "station adjustments" to end prosecution either before or after an official arrest is made. Some larger police departments have additional diversion programs aimed at high-risk youth that may prevent or delay arrest and prosecution. In some jurisdictions, juvenile probation officers are authorized to issue "probation adjustments," plans developed after conferencing with the youth, parent, victim, juvenile police officer, and state's attorney, to decide whether a youth's successful completion of informal sanctions (probation or supervision with the family, sometimes in conjunction with community service, mental health, substance abuse, or anger management treatment) may make prosecution unnecessary.

While juvenile diversion programs are primarily administered by police or probation officers, adult diversion programs, often called "Second Chance" programs, are designed and run exclusively by prosecutors. Because these are voluntary programs, many state's attorneys choose not to develop one, and many counties do not have formal diversion programs. Some are robust, while others are very tightly controlled. No adult diversion program requires an assessment by practitioners with youth expertise.

Diversion programs were impacted by the influx of 17-year-old misdemeanants but can expect to be significantly less impacted by 17-year-olds arrested for felonies. Some felony arrests may still be good candidates for diversion screening, however; for instance, possession of any amount of a controlled substance (other than cannabis and steroids) is always a felony. Substance abuse programming as an alternative to prosecution may be appropriate in some cases and is much more widely available in the juvenile justice system.

Issue: Community-Based Service Funding and Availability

Whether part of a diversion program or alternative to prosecution, or as part of an adjudicated disposition (sentencing) for probation, service funding and availability are critical components of the juvenile justice system. Illinois is not alone in delivering crushing cuts to its social service infrastructure during the economic downturn, including cuts to programs that support mental health and substance abuse treatment for delinquent youth. However, it is near the top; between FY09 and FY12, Illinois cut 31.7 percent of its mental health budget, or $187 million; only South Carolina, Alabama, and Alaska cut a greater share.

  • "We're doing a lot more in court now: doing things that should be done by other agencies, referring to drug treatment facilities and mental health treatment. . . . [Youth] can't fulfill [probation] obligations while waiting for treatment. . . . [There are long] waiting lists and before getting into treatment [the youth] committed another crime-couldn't make it the two months-I don't know whether it would have helped or not. Then they lose priority because of the arrest/detention, and the wait list status or the bed goes to someone else while [the youth is] in the detention center." [Prosecutor]
  • "Juvenile court has been disproportionately affected by cuts. [There has been an] increase in detention days and electronic monitoring/home confinement days. . . . Kids waiting on [treatment] beds, for sure. Suspect that drug/alcohol refuse to accept, more selective in who they permit. Used to have three strikes, now [have] no tolerance for kids who run. Now they are less likely to serve [delinquent youth]." [Public Defender]
  • "Yes, [cuts] affected the probation department. All different social services. A court liaison interfaced with parents/juveniles: [that] person was cut. Across the board requirement to do more with less, but the reality is that we do less with less. Quality management of juvenile court services is weaker because of fewer resources." [Prosecutor]
  • "Funding is diminishing for services-could result in reoffending if you're not providing services." [Probation]

Worse in some ways for community-based service providers than certain program budget reductions are uncertainties regarding payment for services already provided. "Slow pays" plague all vendors to the State of Illinois, including those who serve delinquent youth. As service cuts and reimbursement delays have deepened, programs around the state have felt the impact:

  • "State is behind [on service payments], but we're lucky that [our local provider] has absorbed this so far-they've been able to withstand 8-10 month payment delay. Drug/alcohol treatment and outpatient counseling exist-some inpatient facilities have closed." [Probation]
  • "State social service cuts-yes, this is one reason we hired our own therapist. Mental health services-costs, wait lists, etc.-were a BIG issue, [with] one provider, one agency. Trouble getting kids in." [Probation]
  • "[It] KILLED us, the state social service cuts. [There are] very few options for kids who can't be home. . . money for placing 5 kids/year in residential treatment: sending them home or to DJJ are the only options. DCFS doesn't want delinquent minors, period. . . . Mental health services [are] impacted and this is a huge, huge number of delinquent kids. . . . [We have] longer detention stays because [there is] no placement." [Prosecutor]
  • "Treatment providers are closing. One reason we got our own mental health and substance abuse provider is because there is nothing [in the community] and the kids are coming here because it doesn't exist." [Detention]

Providing indigent juvenile offenders with needed mental health and substance abuse programming in community settings is always cheaper than both crime and punishment and must be made available whenever appropriate. Regardless of whether there is any jurisdictional change, the state must strengthen these critical systems for youth rehabilitation by fully funding programs like Redeploy Illinois.

STEP 3: PROSECUTION, COURT PROCEEDINGS, AND PLEA AGREEMENTS

Felony-charged in juvenile court (16 and under):

  • Parents/guardians are accountable to participate in adjudication process. If they do not, a juvenile judge may issue a bench warrant
  • Juvenile court judge presides over trial proceedings and decides the case. Youth usually does not have the right to a jury trial
  • Youth has the right to an appointed public defender. In some serious cases, youth cannot waive the right to counsel

Felony-charged in adult criminal court (17):

  • Parents/guardians are not permitted a role in criminal court unless summoned to testify by either the prosecution or defense (usually not permitted until sentencing)
  • Criminal court judge presides over trial. Defendant has the right to a jury trial and may waive the right to a jury trial in favor of a guilty plea or a bench trial, a legally sufficient waiver at 17
  • Defendant has the right to a court-appointed public defender upon demonstrating indigence to the court's satisfaction and may waive the right to counsel, a legally sufficient waiver at 17
  • "We should have made the change wholesale; this did nothing but cause confusion." [Prosecutor]
  • "I don't like the bouncing between courtrooms in general; they're so immature, they don't understand the consequences." [Public Defender]
  • "I'd like to think we're not charging felonies because we don't want procedural impediments of juvenile court, but I don't know." [Prosecutor]

Prosecutors always make the jurisdictional decision about a 17-year-old before the youth's first court appearance and in the absence of judicial advice. This practice for 17-year-olds sharply contrasts with Illinois' usual process for allowing youth to be tried as adults. Mandatory, presumptive, and discretionary transfer provisions assign the jurisdiction decision to a neutral party, the juvenile judge.

  • Transfer hearings occur after a full investigation, in the presence of the youth and parents, and are based on information presented to the juvenile judge by both the prosecution and defense.
  • Mandatory transfer hearings require specific probable cause findings regarding offense characteristics, offense history, and/or gang activity.
  • Presumptive and discretionary transfer hearings allow the introduction and consideration of other relevant information, including but not limited to the severity of the offense, degree of participation or premeditation, whether a weapon was involved, probation history, school engagement, mental and physical health history, history of abuse or neglect, services available in the juvenile system, and likelihood of rehabilitation.

A prosecutor deciding whether to pursue an ordinary felony indictment against a 17-year-old, however, frequently does not have access to much of this information and is never required to take any of these factors into consideration when sending 17-year-olds to adult court. Further, while Illinois' transfer provisions explicitly target violent and repeat offenders, the 17-year-old jurisdictional split affects a much broader cross-section of youth, significantly larger in number and including first-time and nonviolent offenders. The negative consequences of sending all felony-charged 17-year-olds through the adult system therefore fall disproportionately upon youth charged with the lowest-level felony offenses.

Issue: No Standard Procedure for Charge Reductions

Prosecutors do not simply charge cases exactly as they appear on police reports; it is their duty to review the sufficiency of the evidence provided and exercise independent judgment regarding the nature and severity of a crime and the interest of justice. This discretion is long-standing and appropriate. If police have already applied adult procedures during questioning and arrest but a prosecutor believes it is appropriate to charge the youth with a juvenile misdemeanor-either because a review of the case indicates misdemeanor charges are appropriate or because a misdemeanor plea agreement is strategic-the sudden application of the Juvenile Court Act can present evidentiary, legal, or administrative difficulties.

Parental notice is a significant hurdle to filing a juvenile petition after an adult arrest. Adult arrest cards, unlike those for juveniles, do not include collection of a parent or guardian's name, address, or telephone number. This information is vital to prosecutors wishing to file a juvenile petition; parents must be served with notice of the proceeding. Attempting to gather parental information after the fact places a significant administrative burden on juvenile prosecutors, particularly since youth often do not wish to provide it. Police and prosecutors alike have reported some youth stating that they would prefer to be charged as adults (with felonies), specifically because their parents would not have to be contacted.

Confessions that police obtain from juveniles without applying the Juvenile Court Act (interrogations outside the presence of a youth officer, without access to a parent, and without special attention paid to ensure the youth understands juvenile Miranda rights, including access to a parent and appointed attorney) can be found involuntary and therefore inadmissible as evidence in juvenile court. Confessions given by 17-year-olds under the same circumstances are perceived by practitioners to be routinely admissible in criminal court. Prosecutors with 17-year-olds who have confessed to borderline crimes under adult procedures may therefore find themselves "stuck." If they reduce the charge to a misdemeanor and file a juvenile petition, the outcome of the case is far less certain. If they file felony charges and keep the case in adult court, they will more reliably obtain a conviction.

Presumption of juvenile status for 17-year-olds, at least until felony indictment in adult court, could have avoided much of this confusion. There are no clear-cut procedures for transferring cases "down" to juvenile court. Moving "up" to adult criminal court when warranted is procedurally simpler and, due to transfer laws, more familiar. Additionally, properly-made juvenile arrests and properly-obtained juvenile confessions are always valid in adult court. Uniform presumption of juvenile status by law enforcement provides a greater degree of charging discretion and room for negotiation for prosecutors, ensuring that fewer youth become "stuck" in between adult and juvenile court as their cases progress. However, only a small minority of police departments reported that they treated all 17-year-olds as juveniles until they were informed that the State's Attorney intended to pursue felony charges in adult court. Most stated that they would routinely use juvenile procedures for 17-year-olds only if and when the age of jurisdiction is raised for felony offenses. Similarly, most state's attorneys have not specifically recommended that local law enforcement apply juvenile procedures prophylactically to all 17-year-olds. Even police and prosecutors, who expressed support for raising the age of jurisdiction partly to avoid confusion, stated that they will wait to revise their current procedures until after the law is changed.

Plea agreements in criminal court are artificially hamstrung by bifurcation. The criminal code is structured to allow for increased or reduced charges based on aggravating or mitigating factors, providing a significant amount of room for negotiation surrounding plea agreements. To a large degree, this ambiguity is intentional and is how the criminal (and juvenile) court system avoids gridlock; the overwhelming majority of criminal prosecutions result in a guilty plea agreement.

For an overwhelming number of adults, particularly first-time or younger offenders, felony charges are reduced to misdemeanor guilty pleas at this stage. Illinois law does not provide for or anticipate pleading from an adult charge to a juvenile charge, in either in the Juvenile Court Act or the Criminal Code. As a result, felony-charged 17-year-olds who (if they were either 16 or 18) would ordinarily be considered likely candidates for a misdemeanor plea for a low-level are in uncharted territory. One troubling example: a 77 percent jump in Cook County felony theft convictions for 17-year-olds since the law was changed-now the most common reason 17-year-olds in Cook County receive felony convictions.

Seventeen-year-olds arrested for borderline crimes receive different outcomes around the state:

  • "[Youth] waive into adult court so they get a misdemeanor. . . . I have never seen any felony charges go down to [juvenile court for a] misdemeanor, but you do go up [to adult court] and [17-year-olds] serve time as adults." [Public Defender]
  • "I have gone to many seminars; 102 counties are doing it differently . . . . Some have really substantive issues [with] too much room for interpretation." [Public Defender]
  • "Those who come to juvenile court are those we catch the first morning at screening, before routing. First filing drives the outcome [adult vs. juvenile]. We will transfer between adult and juvenile court only one or two days into the process (at screening). [If charges are later reduced, youth] plead in adult court to misdemeanors-[youth] waive juvenile jurisdiction. [Cases are] not being refiled in juvenile court." [Prosecutor]
  • Charge reduction process: "We have first appearance and plea in one [criminal court] proceeding. [The case is placed on the juvenile] docket, notice [is sent] to the defense lawyer and the defense rounds up everybody and handles the process [for juvenile sentencing]. . . .[Misdemeanors] may still be slipping through [adult court]. When that happens, I tell someone, 'That was an illegal sentence.'" [Prosecutor] "[Misdemeanor] plea is negotiated in adult court [and then sent to] juvenile court for sentencing, to make sure there is no trial . . . [youth receive a] juvenile [adjudication] and a juvenile sentence." [Prosecutor]

Managing the next phase: Court practitioners look forward to ending charging and process confusion; 66 percent of prosecutors and 100 percent of defenders interviewed supported raising the age. Most prosecutors and defenders stated that they would be able to handle the addition of felony-charged 17-year-olds with little or no additional personnel transferred to juvenile from criminal court.

Practitioners in one rapidly-growing county reported having only one juvenile courtroom to hear all abuse, neglect, and delinquency cases, citing long waits to get in front of a judge (in one case, up to six months). However, these practitioners acknowledged that the addition of 17-year-old misdemeanants was not responsible for the crowded juvenile court docket and that they needed an additional juvenile courtroom regardless of any past or future change in jurisdiction.

STEP 4: DETENTION

Felony-charged in juvenile court (16 and under): 

  • Detention decision is driven by a risk assessment score 
  • If risk assessment indicates secure detention, youth awaits hearing in regional juvenile detention center
  • Mandatory provision of age-appropriate educational services 

Felony-charged in adult criminal court (17):

  • Bond is set by criminal court judge
  • If held in adult facility, must be separated from adults If unable to make bond, youth awaits trial in general population, adult county jail
  • May attend GED classes with adults

Federal guidelines in conjunction with the provisions of Illinois' Juvenile Court Act apply to the decision of where to house 17-year-olds who are detained pending trial. Under Illinois law, youth (of any age if held on juvenile charges; 16 and under if held on adult charges) are ordinarily unable to be detained inside adult county jails or otherwise with adults. When they are, they must be kept "sight and sound separate" from adult detainees, for protection. It can be difficult to determine whether persons aged 17-20 (and beyond) who are being detained related to a juvenile adjudication are "juveniles" or "adults" for the purposes of housing them separately from both younger and older detainees. The Juvenile Court Act currently permits 17-year-olds to be housed in county jails even if they have juvenile delinquency petitions pending. It appears as though jurisdictions rarely do this, however. Several practitioners interviewed stated that it was not simply allowed. Most cited local policy but seemed unsure of the source; a few referenced the Juvenile Court Act. Some interviewees mentioned that it had happened in their county but was rare and done after a court order. Several juvenile detention centers routinely house juvenile offenders up to age 21, while others transfer youth to county jail at 17 or 18.Felony-charged 17-year-olds are held in adult jails.

  • "We transfer youth to [adult jail] whenever possible-98 percent of the time. If we have a 15-year-old on automatic transfer, we transfer to the jail when they turn 17." [Detention]
  • "Our chief judge and sheriff got together and issued a sheet of instructions. We currently have a 23-year-old girl on a 15-year-old juvenile delinquent warrant. First time that's happened. We were doing up to 21. Our interpretation is that the Juvenile Court Act runs to 21. Usually after 21, we just ask the state's attorney to remove." [Detention]

Many county jails around the state are overcrowded. When 17-year-olds are housed in county jails due to pending felony charges, they are treated under the same rules as other offenders. Jails use a threat assessment to assign housing and cell mates to detainees. Although age is a factor in assessing risk, it is only one factor; no institution interviewed had a specific housing policy particular to youthful (18-20) offenders, much less 17-year-olds. For discussion on housing 17-year-olds with adult detainees, see "The Adult System is Dangerous for Youth," supraat22.

Issue: Age Range-Education and Safety

  • "Programming concerns? No. Juniors/Seniors in HS, still participate in school. Not one iota of a problem. As a matter of fact, for those who had dropped out and are seeking a GED, parents bring their books and we accommodate. Education is our philosophical statement-highest priority." [Detention]
  • "We are concerned that you will be using the misdemeanor experience to raise the age. . . . [Felonies] will totally change the dynamic of the system . . . impact[ing] detention the most. Programming is different, recreation time, safety for different sized youth [is a concern]; 17-year-olds take way more food, school grades are [already] 6 grades diverse, now [will increase to] 7-10 years . . . what do we do when they have graduated high school. Huge impact on detention because these are bigger, stronger kids, different needs, bigger problems, adding staff. . . . The problem is making the change revenue-neutral. Supervision isn't as heavy in jail." [Probation/Detention] "Believe me, there is absolutely no difference between a misdemeanor state of mind and felony. . . . The youth should still have a chance of being rehabilitated, but won't have that chance in the adult system." [Detention]

One fundamental difference between juvenile detention and county jail is the availability of school. With the exception of Cook County, county jails do not offer high school credits; GED classes in jails are optional and open to detainees of any age. Juvenile detention centers have teachers and classes, usually in cooperation with a local school district. Some juvenile detention centers even work with the junior high or high school in which a detainee is enrolled, to ensure they stay on track during their stay. Some juvenile detention centers also offer GED classes, but these are not to take the place of school for youth who are currently enrolled in school or wish to receive a high school diploma. Although 17-year-olds in the community are normally allowed to quit high school if they no longer wish to attend, most detention centers require youth to attend school. First of all, school attendance is often a condition of juvenile probation. Second, detention centers are supposed to provide education, programming and treatment during each youth's stay; as funding for programming has shrunk, education has become some facilities' only significant daytime activity to engage youth in productive enterprises and give them time outside of their housing unit.

Population Trend, Statewide Juvenile Dentention Centers

[Information and details about the graphic, please contact Heidi Mueller, Executive Director, Juvenile Justice Commission, Office of Community and Positive Youth Development, Illinois Department of Human Services, email:  heidi.mueller@illinois.gov]

Most detention centers mentioned that they had insufficient educational programming or other programming with which to occupy youth who have already earned a high school diploma or GED. As the average age of youth in detention centers rises, this programming challenge will become more urgent. As with probation (see following section), post-secondary education and employment skills training programs are an increasingly obvious need for detention centers functioning within a juvenile justice system that seeks to rehabilitate youth up to the age of 21.

Managing the next phase: Every single detention center invited to interview participated; 62.5 percent supported raising the age. Though a couple of detention centers cited an inability to house additional youth, the required bed capacity exists in each region of the state; capacity concerns are a local issue, not systemic, suggesting that capacity issues can be addressed with local practice changes and jurisdictional cooperation (as opposed to new construction).

Many detention centers have seen their funding shift from state to county sources; they (and the county governments funding them) are frustrated by headcount-based state funding formulas. IntervieweesRegional Detention Centers Population and Capacity

[Information and details about the graphic, please contact Heidi Mueller, Executive Director, Juvenile Justice Commission, Office of Community and Positive Youth Development, Illinois Department of Human Services, email:  heidi.mueller@illinois.gov]

characterized the formulas as misaligned funding incentives that reward both fuller detention centers and out-of-county placements. Despite any such financial incentives to detain youth, almost all detention centers are well under capacity. Though they will require additional resources to house additional youth, most were unconcerned about the operational effects of raising the age.

  • Detention Centers on Felony Implementation:
  • "[Raising the age for misdemeanors was] not as devastating as we expected . . . . We need more detention money but [including felonies] will "break" neither detention nor probation. When they discussed 17-year-olds, I was against it, but I've only worked in the juvenile system. I have softened my position on that. There are so many transfer [options], so more serious 17-year-olds still have a mechanism (to go through the adult system). [It] hasn't turned out as horribly as I thought two years ago. . . . Any age is arbitrary because of human growth and development. Depends on the kid. We're looking forward to not having the blended jurisdiction. Whether the money is there, I don't know."
  • We won't know what we need until after it happens. Think we'll average 5-6 extra [youth]. If more, we will need more staff, one or two, depending on gender of increase, but will have to wait to see how it goes. If so, we'll need more food and clothing costs, other things, but nominally, not huge. . . . No need to be negative about these changes, [we're] trying to do it."
  • "Significant impact. I don't know if we'd have the bed space to accommodate them . . . . We would need more staffing. Don't currently have enough staff to conduct the hour per day of large muscle exercise off the housing pod and ensure safety of the residents." "Do we mind that they're coming here? No. They're still in high school . . . . If felonies come, we'll have another increase, but it's appropriate, just because they're in high school. [Their issues] could be serious, but we've got plenty of those who are 15 and 16, too, what's the difference." "[Including misdemeanors had an] impact, obviously, but more shock value. There was a dramatic increase [of 17-year-old], but we cut off some of the younger kids (aged 10-11). [We] tightened our screening instrument, which is probably a good thing. Didn't change operations. . . . We just treated them under the Juvenile Court Act. [Other detention centers] developed criteria to separate [older youth] for schooling, different rules, isolated [17-year-olds] more. I thought it was ridiculous. To me, they're the same, 14 and 17."

STEP 5: PROBATION

Felony-charged in juvenile court (16 and under):

  • Judge may sentence youth to probation. Youth is accountable for meeting terms of probation. Parents/guardians are accountable to enforce terms of probation and may be sanctioned if they do not
  • Probation focuses not only on accountability but education, service provision and rehabilitation, and building competencies and skills

Felony-charged in adult criminal court (17):

  • Judge may sentence defendant to probation. Defendant is solely accountable for meeting terms of probation
  • Probation focus is on compliance monitoring

From police to public defenders, nearly every practitioner interviewed responded that there was a noticeable difference between juvenile and adult probation. Several emphasized that the difference was not that adult probation was lower-quality than juvenile probation but that its mission and purpose are distinctly different.

  • "So much emotion, a perception that juvenile court is a "slap on the wrist," I've heard that. Actually, juvenile court is much better, because our probation is so much more. Adult is [basic requirements]-juvenile [probation requirements are] two pages, single-spaced: school, urine, curfew, gang affiliation. There is a perception that [going through] juvenile court is easier, but that's not necessarily true. Getting people to understand what juvenile court really is, is the problem." [Prosecutor]
  • "Oh yeah, lots more robust probation for juveniles and the social history and risk categorization is more intense. More programs for juveniles than adults." [Detention]
  • "Juveniles have a high level of services and attention. Don't get that as much in adult world. Our juvenile officers are very high quality. Adult officers don't have to file court reports and don't have as much information as juvenile officers." [Prosecutor] "Adult probation only works with adults after they go to court-with probation sentence, court supervision, and conditional discharge-after sentencing. Juvenile probation staff work with youth at all points in the system. At police contact, diversion programs, with detention staff before trial, youth when they are sentenced to probation . . . ." [Court Services] "[Adult probation is] treating someone as responsible for their own behavior. . . not paying attention to where the kid is staying, school attendance, just adherence to court orders . . . . Juvenile [probation means] interacting with parents, school, service providers. [There is a focus on] connection to school/curfew accountability/quality of interactions. With adult probation, you're just dealing with adults, not collateral people. Juvenile officers call a parent to notify about noncompliance. In adult, that never happens." [Probation] "Juvenile probation has more programming. We have some fantastic probation officers. One officer visited a girl's house to see why she was not attending school. She said "I have no clothes," but there were piles on the floor. The probation officer asked her why she didn't clean the clothes she had: "I have no quarters." The officer went with her to the [coin laundry]. I don't see that happening with adult probation. Juvenile officers are much more attuned to being involved and they are more specific to each geographic area/neighborhood services. [Juvenile probation] promotes community connection: there is no expectation of reporting to a central location (like adult probationers) . . . this makes a huge difference. Probation officers are in the neighborhoods and are much more in tune with what's going on at a particular high school." [Public Defender]

Juvenile officers have a unique array of functions. For instance, they can screen youth to determine whether prosecution is warranted ("probation adjustment"). They can assess youth to determine whether secure detention is warranted ("detention screening"). They complete social histories for youth who have been adjudicated delinquent and who may be committed to IDJJ (see next section). In these capacities, they work with prosecutors, defense attorneys, victims, police, and family members of the accused.

Juvenile officers also monitor youth on probation. Most interviewees agreed that juvenile probation is "more intense" than adult probation, both because of the additional access to services offered and because there are more contacts between the juvenile probation officer and the youth. Juvenile probation officers are also in close contact with others in the youth's life-primarily family members, but also teachers, school officials, and treatment providers. Whereas adult probationers are considered to be solely responsible for obtaining needed services and complying with court orders, juvenile probation officers do not solely monitor youth but can help to guide them through the system.

Because of juvenile probation's more holistic approach, officer caseloads should average 50-60percentof those of adult probation officers.

Managing the next phase: Though cautioning of the need for services and supervision resources, probation departments were overwhelmingly (71 percent) supportive of raising the age for felonies. Stakeholders at every Juvenile Probation Caseload 2005-2011

[Information and details about the graphic, please contact Heidi Mueller, Executive Director, Juvenile Justice Commission, Office of Community and Positive Youth Development, Illinois Department of Human Services, email:  heidi.mueller@illinois.gov]

stage of the juvenile justice system agree that, along with detention, juvenile probation will be most impacted by the change in the law. Some offices, however, do not seem concerned; when asked about having to do a social history for felony adjudication, adding more youth on probation, etc., they mentioned that a 17-year-old who commits a felony may already be involved with their offices, reducing the additional work required to perform intake, monitor a youth, and assess sanctions. However, many mentioned caseloads that were already too high to do the kind of work they wanted to do. Allocating supervision and resources based on risk level, focusing resources on evidence-based services, and developing age-appropriate programming can assist probation in managing the addition of felony-charged 17-year-olds.

  • "I am a believer that raising the age to all 17-year-olds is the right thing to do. Now you have a junior in high school charged as a kid, but the senior in high school playing basketball with him is an adult? Raise the age . . . provided that system resources [are] there. [I'd] love to take kids through high school graduation."[Probation]
  • "We had a philosophical change years ago, about low-risk offenders: supervise only kids who need it rather than being stretched thin on high numbers . . . . Processing system [screening and diversion] drives these numbers." [Probation]

Issue: Career Transition Programming

  • "Pretty tough [here] for teen employment. [Youth are] even asking for volunteer community service hours, but can't find anybody to take them. Probation says nobody's hiring those kids. I don't know of ANY job programming." [Prosecutor]
  • "[Youth] need job readiness training-they might not be headed toward traditional college, though some do, but they need something-community college, vocational-technical school, etc. We need to make a much more concerted effort on how to serve this population. The Special Education District goes to 21; I met with them last week to discuss [our] older population and services needed. We need to continue to think more globally about where they're going-being home with mom and dad might not happen. They may be headed out on their own [and we need to learn] how to handle [that]. I see these reach-outs about how to transition young offenders into adulthood happening more on the juvenile side." [Probation]
  • "Youth employment-a big problem-looking at creating our own program. [A local provider] has a nonprofit foundation looking at creating employment opportunities . . . develop[ing] an "older kid track." They could do janitorial/cleanup for local parks, benefit to the Park District." [Probation]

While ensuring youth complete a high school diploma or equivalent is the first educational priority for juvenile probation, several departments mentioned the need for educational opportunities and job readiness training beyond high school. Because many local economies are struggling, traditional "first jobs" for teenagers (grocery stores, fast food, warehouses) are increasingly held by adults, reducing opportunities for youth to practice basic employment skills. Probation offices described cuts to formal youth employment and training programs that provide, in addition to work experience, instruction in interviewing, resume creation, and other employment skills. While some probation offices mentioned planning new programming for older youth, more resources and attention still need to be directed to this important stage of youth successfully transitioning into adulthood.

Issue: Mandatory Five-Year Probation

A few probation offices mentioned the increase in five-year probation sentences as a caseload contributor and recommended examining this policy.For most offenses, youth in juvenile court cannot be sentenced to probation for a period exceeding five years and juvenile courts have the authority to terminate a probation sentence at any time "warranted by the conduct of the minor and the ends of justice." Exceptions to the probation sentencing cap are made in cases of first degree murder (committed by youth 12 and under), Class X felonies, and forcible felonies, all of which carry a mandatory-minimum sentence of five years of probation. The entire term of probation must be served by the youth regardless of the court's evaluation of the minor's conduct or the interest of justice. It is unclear that it is an advisable policy to include all forcible felonies in the mandatory-minimum exception to the Juvenile Court Act's indeterminate sentencing scheme.

Forcible felonies are defined within the adult criminal code, not the Juvenile Court Act, and are intended to represent inherently dangerous conduct that foreseeably could lead to death. For this reason, forcible felonies are used in criminal court to determine murder charge enhancements, application of the felony-murder rule, and sentencing enhancements for repeat offenders.

The extensive list of forcible felonies includes not only the most serious and violent offenses, but also some property crimes (e.g. burglary), violent crimes with minimal force (e.g. robbery without a weapon or injury), and indeed any felony involving any use or even the threat of force. The definition of forcible felony therefore includes felonies falling within all of the adult sentencing ranges (Class X, 1, 2, 3 and 4). In criminal court, several forcible felonies are nonprobationable, but when a sentence of probation is available and can be imposed, the maximum adult sentence is always lower than the minimum sentence under the Juvenile Court Act. Adults who receive probation for Class 1 and 2 felonies cannot be sentenced to more than four years on probation. Adults receiving probation for Class 3 and 4 felonies cannot be sentenced to more than two and a half years-exactly half of the juvenile court mandatory minimum for forcible felonies in the Class 3 and 4 range.

Older youth and those charged with more serious offenses are more likely to be transferred to the adult system. Because the adult probation sentencing maximum (where available) is lower than the juvenile minimum, the forcible felony probation rule disproportionately impacts younger offenders and those who commit lower-level felonies.

Certainly some youth who have committed acts on the forcible felony list are very high-risk and will remain so for a significant period of time. One important purpose of the Juvenile Court Act, however, is "[t]o provide an individualized assessment of each alleged and adjudicated delinquent juvenile, in order to rehabilitate and to prevent further delinquent behavior through the development of competency in the juvenile offender." A single mandatory minimum probation for all youth adjudicated for offenses considered forcible felonies may not be consistent with the individualized assessment and competency development anticipated by the Juvenile Court Act. Further, the probation oversight and resources available to help prevent delinquent behavior among high-risk youth are diluted when courts are unable to discharge lower-risk and rehabilitated youth.

The forcible felony list was not designed to address juvenile delinquency behaviors, nor does the list impose uniform sentences upon adults in criminal court. Because of the wide-ranging seriousness of offenses on the list, the inability of juvenile courts to issue individualized sentences, and potential differences between reasonably foreseeable dangers in an adult versus juvenile behavioral context, the law requiring a five-year mandatory minimum probation for all youth adjudicated for a forcible felony offense should be reviewed for proportionality and consistency with the purpose of the Juvenile Court Act.

Due to the frequency of charges such as burglary and residential burglary for youth of all ages and the fact that the mandatory minimum probation period applies to youth as young as 10 and does not offer the opportunity for older offenders to "age out"at 21, removing these offenses from the forcible felony list could have a significant impact on juvenile probation caseloads without a corresponding decrease in public safety. If the mandatory minimum requirement were adjusted, juvenile court judges could still sentence high-risk youth to lengthy probation periods, including a five-year term when warranted.

STEP 6: SENTENCING

16-year-olds face felony charges in juvenile court:

  • Juvenile probation conducts an investigation in advance of hearing and recommends a disposition to juvenile court based on this information
  • Judge may sentence youth to a set term in a juvenile detention center
  • Conditional discharge is available for offenses other than for first degree murder, Class X felony, or a forcible felony
  • Judge may remove youth from custody of parents and commit the youth to the custody of the Illinois Department of Juvenile Justice for an indeterminate (open-ended) sentence

17-year-olds face felony charges in adult court:

  • Criminal court does not conduct independent investigation of family, social history, or living circumstances (even if 17-year-old is a DCFS ward)
  • Judge may sentence defendant to a set term in a county jail
  • Conditional discharge is limited to 2 drug crimes
  • Judge may sentence defendant to a set term of incarceration in the Illinois Department of Corrections. All adult mandatory minimum sentences and enhancements apply

In response to a court order, juvenile probation prepares a social investigation at least three days before a disposition (sentencing) hearing (this must be completed in every case involving commitment to DJJ). The social investigation report includes "an investigation and report of the minor's physical and mental history and condition, family situation and background, economic status, education, occupation, personal habits, minor's history of delinquency or criminality or other matters which have been brought to the attention of the juvenile court, information about special resources known to the person preparing the report which might be available to assist in the minor's rehabilitation, and any other matters which may be helpful to the court or which the court directs to be included." The probation office also recommends an appropriate disposition (based on whether it believes the youth would be amenable to and benefit from juvenile probation and what programs are available). The entire history of the youth's involvement with the juvenile justice system (including arrests and station adjustments that were not prosecuted) may be introduced during the sentencing hearing. The juvenile court judge determines an appropriate sentence and in certain circumstances may commit the youth to state custody (DJJ). Sentencing options available in juvenile court are highly dependent upon the availability of community-based programming.

Sentencing in adult criminal court is comparatively limited in range; is not indeterminate (cannot normally be revisited based on progress or need); is nearly always permanent. Once someone is convicted of a felony, judges are mostly unable to issue sentences that, when successfully completed, could result in suspension or removal of the felony conviction.

STEP 7: INCARCERATION

Felony-charged in juvenile court (16 and under):

  • If alternatives are inappropriate or unavailable, youth may be committed to DJJ for an indeterminate sentence based on rehabilitation
  • If youth is an older repeat juvenile offender with a felony committing offense, may spend significant time in DJJ
  • Remains under DJJ control in facility or parole until 21 or adult maximum term unless discharged for cause 

Felony-charged in adult criminal court (17):

  • May be sent to DOC for a set term
  • Likely to be treated as a first-time offender; will not serve much, if any, time at DOC for low-level offense

As a result of its recent in-depth report on juvenile reentry systems, the Commission is more confident than ever that the Illinois Department of Juvenile Justice (IDJJ) can and must provide rehabilitative services to youth in its custody in secure facilities and upon reentering the community-services that are almost never available to teens housed in the overcrowded Illinois Department of Corrections (IDOC). Many felony-charged 17-year-olds who are sentenced to a term in IDOC will be housed in minimum security facilities, currently the most overcrowded in the prison system. As first-time adult offenders, many teens sentenced to IDOC for lower-level felony offenses would be unlikely to be incarcerated long enough to reach the top of existing wait lists for the few rehabilitative programs offered at IDOC, such as the Sheridan Drug Treatment program.IDJJ Population FY03-2013

[Information and details about the graphic, please contact Heidi Mueller, Executive Director, Juvenile Justice Commission, Office of Community and Positive Youth Development, Illinois Department of Human Services, email:  heidi.mueller@illinois.gov]

Managing the next phase: Although 17-year-old misdemeanor admissions increased, IDJJ's population continued its rapid decline; since raising the age for misdemeanors, population is down 22.4 percent(to 902) as of January 21, 2013. Therefore, even after closing two facilities (IYC-Murphysboro and IYC-Joliet), IDJJ will still be at only 72 percent of its capacity (1,254); the agency has the bed space to handle additional youth.

Because it currently houses youth through age 20, IDJJ is unconcerned about the potential change in the law in terms of the types of programming and services it would offer to 17-year-olds adjudicated for felonies. The Department stated that an increase in population would require additional staff, but that it was impossible to predict the exact number of judicial commitments as a result of the change in the law-whether there would be an increased rate of DJJ commitments with 17-year-olds, an increased use of transfer, or neither.

STEP 8: RECORDKEEPING AND EXPUNGEMENT

Felony-charged in juvenile court (16 and under):

  • Confidentiality rules apply to arrest and court proceedings
  • Commercial background checks do not reveal juvenile arrests or adjudications, but they are available to law enforcement
  • Juvenile adjudication is rarely an absolute bar to employment Adjudication prevents public safety employment, state professional licensure, and military service in only limited circumstances
  • Juvenile expungement statutes apply to arrests and some adjudications

Felony-charged in adult criminal court (17):

  • Arrest and court proceedings are public records
  • Commercial background checks by employers, educational institutions, and insurance carriers reveal arrests and convictions
  • Felony conviction is frequently an absolute bar to employment Felony conviction frequently prevents public safety employment, state professional licensure, and military service
  • Criminal expungement statutes apply to arrests for which there was never a conviction Felony convictions may be sealed in certain cases but cannot be expunged by courts

Processing 17-year-olds through both the adult and the juvenile systems presents data collection, analysis and management problems for the state. Juvenile arrest records contain more information than adult arrests, particularly about parents/guardians, parental employment, and school attended. However, not only are juvenile arrests confidential, but certain juvenile misdemeanor arrests are not required to be reported to any state data collection agency. This can result in underestimating the number of youth in contact with the juvenile justice system in some way.

Adult arrests for both felonies and misdemeanors are always required to be reported to central state recordkeeping agencies. Adult arrests are not treated with privacy shields and law enforcement releases the names of 17-year-olds arrested as adults. Like criminal convictions, adult arrest histories are always available as part of an individual's criminal history, or "rap sheet," although arrests for which there was no conviction can be expunged. Adult arrests for both felonies and misdemeanors are always reported to the state and state and county agencies rely upon that data for management purposes.

It is thus impossible to compare data regarding misdemeanor arrests before and after the law was changed regarding 17-year-olds; prior to calendar year 2010, every misdemeanor arrest was reported to the state, but reporting for some offenses is now optional. State data shows a sharp decline in misdemeanor arrests for 17-year-olds, an unknown portion of which is attributable to mandatory vs. optional data reporting.

When a 17-year-old is arrested on a felony charge, the arrest itself is adult and not confidential, even if prosecutors eventually file a juvenile court petition for a misdemeanor charge. It is only at that point in the process that the proceedings are overseen by the juvenile court and become confidential. Related court records are then maintained in an entirely separate juvenile records system, and the juvenile adjudication may be expunged according to the juvenile expungement statutes in proceedings overseen by the juvenile court. Meanwhile, the adult felony arrest separately remains part of local and statewide databases and is likely to show up during future background checks for employment. This file is normally the jurisdiction of adult criminal courts, applying separate criminal arrest expungement statutes. Even in cases where a youth never appeared before a criminal court judge, the youth may be required to file an expungement petition for the arrest in criminal court, in addition to any juvenile record expungement the youth must pursue.

Although expungement is a "back-end" issue arising after the conclusion of court process, expungement issues from the change in 2010 have already emerged. The Illinois Office of the State Appellate Defender (OSAD) generates informational material for individual citizens and their attorneys regarding expungement procedures for both adults and juveniles. Since the change, the OSAD expungement unit has observed growing statewide confusion over exactly what records are being kept, which agency keeps them, how confidential they are or should be, which expungement statutes apply to those records, and which court will oversee expungement.

OSAD has encountered multiple cases where an individual's private attorney simply could not determine whether to petition for expungement in juvenile court, criminal court, or both. Courts do not appoint attorneys (e.g. public defenders) to assist indigent individuals with the civil expungement process. Some volunteer and pro bono programs exist, but most individuals filing expungement petitions appear on their own behalf (pro se). Both adult and juvenile expungements are already comparatively rare to begin with, suggesting significant procedural hurdles to the process.

Questions resulting from 17-year-olds being involved in two separate court record systems unacceptably burden an already over-complicated and expensive process. The expungement section of the Juvenile Court Act must be revised to match jurisdiction. Future expungement reforms are necessary to close juvenile confidentiality loopholes.

BROADER THEMES

Disproportionality and Discretion

Due to non-mandatory reporting of misdemeanor arrests, the racial makeup of 17-year-old misdemeanor arrests is unavailable and unknown. Even when youth crime patterns do not vary too widely between races, however, Reduction of Disproportionate Minority Impact

[Information and details about the graphic, please contact Heidi Mueller, Executive Director, Juvenile Justice Commission, Office of Community and Positive Youth Development, Illinois Department of Human Services, email:  heidi.mueller@illinois.gov]

perceptions about youth misconduct do. While the juvenile justice system's many diversion programs are commendable and produce favorable outcomes for youth who receive them, the cumulative effect of their discretionary nature is racial disproportionality. The implicit racial biases that underlie system actors' perceptions of youth crime and risks to public safety generate more severe consequences for minority teens, who tend to travel "deeper" into the juvenile justice system for the same conduct as their white peers.

Reducing disproportionate minority contact (DMC) with the juvenile or criminal justice system is a longstanding focus of both the federal juvenile authority (OJJDP) and this Commission. The Commission has used its federal juvenile delinquency prevention funds to support various DMC reduction strategies in Illinois communities. In addition, standardized screening instruments and evidence-based programming recommendations can help to guard against disparate impact by helping practitioners to curb reliance on intuition alone. Providing decision makers with more objective and evidence-based criteria for assessing an individual youth's risk and protective factors may help to counteract or contain unacknowledged biases.

Police and prosecutors determining whether misconduct is a felony or misdemeanor offense, however, do not have any access to any objective or evidence-based screening criteria on which to base their arrest and charging decisions. They are frequently pressured to make such decisions in the absence of critical background information about the youth that would help them to assess risk in a more racially-neutral manner.

Juvenile screening and diversion programs run by clinical and public safety professionals can use such tools, but they are only applied after youth are already determined to be juveniles, not adults. This raises a substantial concern as to whether unfettered discretion in determining juvenile and adult jurisdiction for 17-year-olds, combined with limited objective information, may have a racially disparate impact.

  • "Law enforcement won't be able to remain objective about the arrest charge if they know 17-year-olds [can be processed as either adults or juveniles]. It leads to uneven treatment of arrestees and might even run into racial considerations/unequal treatment (I am speculating)." [Prosecutor]

Due to recordkeeping issues, it is impossible to track the number and proportion of felony arrests statewide that are later reduced to misdemeanor cases in juvenile court, or obtain statewide racial data for the use of this discretion. Criminal court convictions are not publicly reported by age and race. A recent investigation by the Chicago Reporter into Cook County conviction data is instructive: over 75 percent of 17-year-olds convicted of felonies were African-American. Only 34 percent of Cook County 17-year-olds are African-American. Available data combined with the lack of any race-neutral screening instruments for determining juvenile vs. adult charges for 17-year-olds indicates that raising the age to include felony charges can help to reduce Illinois' disproportionate minority youth contact with the criminal justice system.

Clear Guidelines for Implementation

Many system actors shared the opinion that when the jurisdiction was split for 17-year-olds, little consideration must have been given to widespread procedural fallout from the change. The legislative change was minimal and did not include explicit direction regarding juvenile and criminal procedure. No statewide advisory opinions were issued advising law enforcement, prosecutors, courts, or other actors about how to handle changes in juvenile and criminal charges against 17-year-olds.

Jurisdictions prepared for the change in the law in different ways. Some state's attorneys issued advisory opinions and procedures for various system actors, either alone or in conjunction with juvenile and criminal judges, detention personnel, police departments, and the county sheriff's office. A few continued to follow up, particularly with law enforcement, to ensure uniformity of procedure. Others simply encouraged each system entity to devise its own procedures for dealing with 17-year-olds.

Many stakeholders remarked that when the age of jurisdiction is raised, they will need new guidelines and explicit instructions. However, in contrast to the unprecedented misdemeanor compromise bill, raising the age of jurisdiction for felonies is procedurally very simple: 17-year-olds will be treated as 16-year-olds currently are under the Juvenile Court Act.

The only remaining procedural confusion regarding older youth going forward concerns detention practice and compliance with the new federal Prison Rape Elimination Act (PREA) guidelines for housing all minors (under 18) in lockups, jails, and detention centers, even when facing criminal charges. Jurisdictions are aware of, and should already be planning, compliance strategies for the PREA standards and will therefore need to clarify procedural differences between state Juvenile Court Act requirements (as amended) and federal guidelines for housing youth. It is the Commission's recommendation that these PREA planning groups explicitly take raising the age into consideration when calculating the number of criminal court youth subject to PREA limitations. However, understanding PREA versus Juvenile Court Act standards would be an issue to resolve even if the age were not raised for 17-year-olds.

Transfer and Accountability

It is unknown how many of the more severe or violent felony offenses for 17-year-olds will result in transfers to adult court. Illinois' transfer provisions are so broad that even the lowest-level felony charges are transfer-eligible, if a judge finds that certain criteria are met. Juvenile judges will be able to review the juvenile arrest and court history of felony-charged 17-year-olds and they may conclude that the youth should be more properly routed to adult court.

Practitioners have warned that increased reliance on transfer provisions could be an unintended consequence of raising the age of juvenile jurisdiction. It is the position of the Commission that some of Illinois' current transfer provisions may be overly inclusive, especially given the higher recidivism rates for youth who are transferred to adult criminal court. Transfer-eligible crimes, aggravating factors, and the scope and application of accountability statutes(and other legal theories involving a foreseeability requirement)must be revisited in the future for their applicability to minors of various ages. Many current routes to adult accountability for minors aged 13 and over do not appear to comport with adolescent development behavioral science and may no longer be in keeping with developing community standards. Especially given Illinois' recent positive experience with the unprecedented act of removing and reforming some transfer laws, the justifiability of such provisions should be re-examined.

For the time being, however, the Commission sees no barrier to raising the age of jurisdiction in the form of any unintended consequence of transfer increases. When the age was raised for misdemeanants, many juvenile advocates and criminal defenders warned that the state's longstanding culture of viewing 17-year-olds as adults, exacerbated by the front-end cost incentive to counties for keeping youth in adult court, could result in exponentially greater felony arrests of 17-year-olds who might otherwise have been treated as misdemeanants. Though the jurisdictional split carried many negative mechanical consequences that complicated plea bargains, concern over decision maker bias among law enforcement was unfounded. Felony arrests of 17-year-olds did not dramatically increase, but rather have continued to decline, since January 1, 2010. The Commission believes that any broadened use of transfer provisions after raising the age will be a limited and short-term effect. In any case, it is still far preferable for neutral and knowledgeable Illinois juvenile judges and court staff to evaluate an individual 17-year-old's history due to the seriousness and circumstances of a particular act, than it is for 17-year-olds charged with lesser offenses to continue to be treated as adults as a matter of course.


Raising the Age of Juvenile Court Jurisdiction

The future of 17-year-olds in Illinois' justice system.

Illinois Juvenile Justice Commission