Judging from the comments at oral argument in the case of In Re J.V., (read that post here) and from the analysis of the Serious Youthful Offender law in the case of State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, this law, which allows for blended (i.e., part juvenile disposition, part a potential adult sentence) sentences for juveniles, sounds like the greatest thing for juvenile rehabilitation since juvenile courts came into being. Giving us a less sanguine view is this guest post from Kim Brooks Tandy, Executive Director of the Children’s Law Center.
Kim Brooks Tandy’s Guest Post
Ohio’s blended sentencing law was enacted in 2002 and allows youth as young as 10 to be subject to adult sanctions, tries to straddle both the juvenile and adult criminal justice system. Recent research has shown the following about each system:
- Adult system: Youth in the adult system are 34% more likely to recidivate when compared to youth in the juvenile system who committed similar offenses. In adult facilities, youth are more likely to commit suicide and are at a great risk of physical and sexual assault.
- Juvenile system: Research shows that involvement in the juvenile justice system can do more harm than good for youth in both the short and long term, particularly for youth in correctional settings. (See e.g. No Place for Kids: The Case for Reducing Juvenile Incarceration). This same research has shown that, particularly for low and medium risk level youth, diverting youth from the system altogether or placing them in evidence- and community-based programs (editor’s note– Evidenced based programming is a term of art which means essentially that there has been a proven documented track record of effective outcomes in areas such as mental health, recidivism, substance abuse, and the like) have proven to be not only more effective in reducing recidivism, but much more cost-effective.
Therefore, when a youth comes to the attention of the court system, it is critical that the system reacts appropriately so as to not exacerbate the youth’s delinquent behavior.
Ohio’s blended sentencing law allows youth to be designated a serious youthful offender (SYO) by a juvenile court judge, who can then impose both a juvenile sentence and an adult sentence on the youth. The youth’s adult sentence can only be invoked after the judicial findings listed in ORC § 2152.14 are made, including a finding of “clear and convincing evidence” that the youth has committed an additional offense.
Nearly 30 states have some form of blended sentencing laws. While blended sentencing may be a viable alternative in some cases, it should be considered if – and only if – the process:
- Meets constitutional protections: Given the consequences – both to youth and society as a whole – of placing a youth in an adult facility, a youth’s transfer to the adult system must be safeguarded by the strictest of constitutional protections. Providing a constitutionally sound process is essential to ensure that youth are not given the worst of both worlds – treated as an adult for sentencing purposes, while failing to receive the required protections that an adult would receive.
- Reduces the number of youth in the adult criminal justice system: The goal of blended sentencing laws should be to reduce the number of youth in the adult court system, not increase it. In Ohio, since 2002, 292 youth have been designated SYO and only 24 have had their sentence invoked. However, the number of youth prosecuted directly in adult court has actually trended higher (on average) over the same time period.
That means that Ohio’s SYO process appears to actually “net widen” or allow more youth into the adult criminal justice system who otherwise wouldn’t be there. A study of the blended sentencing law in Minnesota, after which Ohio’s law was modeled, found that youth sentenced under blended sentencing were younger and more likely to be female. A study of youth in Ohio showed similar results – girls made up only 1% of the transfer population, but 6% of the SYO population. This net widening does a disservice by allowing more, and younger, youth to be subject to the harms of the adult criminal justice system.
- Is based on an objective, risk-based assessment: Decisions in the juvenile justice system often focus incorrectly on the offense charged instead of whether the youth poses a risk to public safety. A 2008 study of Ohio’s SYO law showed that felony level/offense charged and number of charges act “as a proxy” to determine whether a youth will be considered as an SYO. While the offense charged should be a factor the court considers, it should not be the sole determination in deciding to label a youth an SYO. For example, Ohio has recently implemented the Ohio Youth Assessment System, now used by the majority of courts across the state, to determine risk and need level of youth at the time of detention, diversion, disposition, institutional placement and re-entry. These trends follows good research which factor in other more predictive variables for youth risk, needs and likelihood of further criminal conduct.
- Is equitably applied: Even after controlling for legalistic variables, a study of Ohio’s SYO law found that Black youth are much less likely to be eligible for SYO than White youth and are more likely to be bound over to the adult system. The differences were so stark the authors concluded that if blended sentencing was meant to be a last chance for youth “it is apparently a last chance for white youth more so than minority youth.”
- Does not set youth up for failure in the juvenile justice system: Any blended sentencing scheme assumes that youth have access to a second chance in a juvenile justice system designed to help youth succeed. Ohio has struggled with maintaining juvenile facilities that provide adequate care and treatment, and meet required constitutional protections. Violence, seclusion and excessive use of force continue to be documented at unacceptable levels. We must ensure that we are putting youth into a situation that allows them to learn how to succeed, not putting them into a failing, broken system and expecting them to rise against unbeatable odds.
Under the parameters outlined above, blended sentencing laws have the potential to serve as an alternative to binding youth over to the adult court system and to have the system give them one last chance.
No Place for Kids: The Case for Reducing Juvenile Incarceration, http://www.aecf.org/OurWork/JuvenileJustice/JuvenileJusticeReport.aspx
Jailing Juveniles: The Dangers of Incarcerating Youth in Adult Jails in America, Campaign for Youth Justice (November 15, 2007) at http://www. campaignforyouthjustice.org/Downloads/NationalReportsArticles/CFYJ-Jailing_Juveniles_Report_2007-11-15.pdf
Latest Findings from the CDC: Prosecuting Youths as Adults Creates Younger Repeat Offenders; Separate Juvenile Justice System is Essential to Reduce Recidivism, Campaign for Youth Justice (2007) at http://www. campaignforyouthjustice.org/documents/CDCFS_YouthTransfer.pdf