There are a few major differences between the state’s adult and juvenile justice systems. One of the biggest disparities: while the adult system is primarily focused on dealing with the individual convict, the juvenile system provides services that encompass the entire family, with a goal of rehabilitation rather than punishment.
“When you’re dealing with an adult, there is a whole difference lens,” said Maggie Bishop, director of the Department of Health and Human Service’s Division for Children, Youth and Families. “You are looking at just that person. We don't just serve a person, we serve a person and a whole family,” Bishop said. “If a youth comes in on a delinquency petition, we’ll provide any service needed to remedy the situation. … We have all kinds of options, including residential programs, foster homes and community-based services.”
For the last 18 years, those services have been limited to youth 16 and younger. The state is one of 10 that defines 17-year-olds as adults for the purpose of criminal justice, and at any given time there are about 10 inmates of this age in the county jails and state prison.
Soon, though, the law could be redefined. Gov. Maggie Hassan is expected to sign off on House Bill 1624, which passed both chambers of the legislature with ease in April and will go into effect in July 2015. It brings 17-year-olds back to the juvenile system.
Raising the age of juvenile delinquency is “in the best interest of children,” said State Rep. Mary Beth Walz, who sponsored HB 1624. “We also know juveniles don’t have full brain development until they are in their mid 20s, and they make stupid, kid mistakes. … One problem is they learn from the adults, and we don’t really want 17-year-olds learning from the adults.”
Advocates of the change argue that 17-year-olds are more developmentally similar to younger teens than they are to older convicts and ought to receive the same treatment and protection. That means more access to varied and developmentally appropriate services and emotional health care, less public visibility and shelter from adult criminals.
Studies also show that 17-year-olds who go through juvenile justice systems have 20 to 30 percent lower recidivism rates than their counterparts treated as adults, said Disability Rights Center Policy Director Michael Skibbie, who helped craft the bill.
“The juvenile system is, with a few minor exceptions, a confidential process. There is much less public labeling, which can disable your ability to get student loans, employment, to protect your reputation,” he said.
The bill also has a provision that would require the courts to, if necessary, determine the competency of minors to waive counsel in delinquency proceedings. It also would require DHHS to conduct a study of services for juveniles to determine whether they are consistent with current evidence-based practices when compared with alternative services, and whether they are cost-effective.
If (for most intents and purposes) young people receive the legal rights and responsibilities of adults at age 18, why does the state treat 17-year-olds as adults when it comes to criminal justice?
In 1996, state legislators lowered the age of criminal prosecution as an adult in reaction to police statements that Massachusetts drug dealers were using 17-year-olds as drug mules and runners. After Massachusetts lowered its age of delinquency to include 16- and 17-year-olds, the fear was that Massachusetts drug dealers were recruiting New Hampshire teens. Last October, however, Massachusetts raised the state’s delinquency age to include 17-year-olds.
“So that original argument doesn’t exist anymore,” said Walz.
The current legislation isn’t the first of its kind in the state. Similar bills were killed in 2007 and 2008 and at least two other times.
“What happened was a bill like this has to go through a policy committee and it made it through that back then,” Walz said. “Then, because it costs more money to take individuals as juveniles, it also has to go through finance committee … and it got killed because of the financial crisis.”
Along with a more stable economy, recent federal efforts to prevent rape in correctional facilities have made including 17-year-olds in the juvenile system more cost-effective as well, Walz said.
The federal 2003 Prison Rape Elimination Act requires that all inmates ages 17 or younger be separated by sight and sound from inmates who are 18 or older. There are so few 17-year-olds in the men’s and women’s state prisons that the requirement wouldn’t cause much of a financial problem, but all 10 of the state’s county jails, where most 17-year-olds are held, would have to construct special facilities for them.
“It was going to cost millions,” Walz said. “So the net cost of raising the age of juvenile delinquency is actually a net savings.”
Financial concerns remain
Jeff Lyons, public information officer for the State Department of Corrections, said those potential savings are far from guaranteed.
The bill stipulates that prosecutors of juveniles of any age who are charged with a major crime like rape, murder or kidnapping can ask for them to be tried as adults.
And, while DCYF supports the bill, it has concerns about whether it will be able to finance the added workload.
“We were supportive of the policy; we’re just concerned about financial impact,” Bishop said.
She said she isn’t sure exactly how much extra funding it would require, but if all the 16-year-olds stayed in the system for another year, that alone would mean an additional approximately $5,000,000.
Skibbie doubted that the costs would actually be that high, and mentioned that preventing recidivism and criminal records means more people will be employable later on and fewer will be on public benefit, which will save the state overall.
According to New Hampshire Circuit Court Administrative Judge Hon. Edwin Kelly, back when 17-year-olds were treated as juveniles, the system had much deeper pockets and was more inclined to dole out the cash to help teens. Now, parents, educators and others responsible for a child’s welfare are expected to prove they have investigated other resources and community services before the courts step in.
“It’s a tighter budget, but my view is that budget issue created an opportunity to look at what really is the best way to deal with the [juvenile justice system] issues,” Kelly said. “Simply having the court say ‘Go to rehab or do X or Y’ may not really be the best way.”
The New Hampshire Association of Chiefs of Police maintains a position that the shift would do more harm than good.
“In the past, when we tried them as juveniles, we started to see an escalation of offenses 17-year-olds were committing,” said Pat Sullivan, the association’s executive director. “The system we currently have in place is working. … It’s a tool to address the seriousness of the offenses being committed and [it’s] holding them accountable for their actions.”
Sullivan said putting them into the juvenile system, which is “already financially strapped,” would mean less treatment and fewer services for younger offenders “who are just starting to make mistakes in life and commit those crimes.”
A perspective from the courts
Kelly says the courts never take a position on policy — they leave that to the legislators.
“Having said that, from a judge’s perspective, there are always competing issues with having 17-year-olds in the adult system,” Kelly said.
While the possibility of imprisoning these teens for offenses like shoplifting or possession of marijuana is meant to be a stricter course of action than juvenile correction, in reality, the opposite tends to happen, Kelly said. More of them are getting off easy for crimes that would have resulted in much more attention in the juvenile system.
“Law enforcement and prosecution had kind of a feeling they didn’t want young people to go to jail … so [the offenders] might find themselves paying a fine for an offense that would have had them previously under order of court for a longer period of time in order to get services and stay out of trouble,” he said.
Kelly said youth tend to commit crimes like shoplifting, assault, and drug possession.
“In very, very few cases was it not a family dynamic issue,” he said.
There will always be underage people who commit DWIs, he said — an offense that has been and will remain an adult offense.
As seen in the June 5, 2014 issue of the Hippo.