Default juvenile transfer endangers public safety by encouraging recidivism

Despite the district attorney’s claims that concerns for public safety motivate his transfer practices, experts assert that public safety is not served by transferring a lot of children to adult court. “To run transfer as a program to achieve crime-control objectives, it’s a mistake,” said Columbia Law School Professor Jeffrey Fagan, a renowned authority on adolescent crime. “It actually does more harm than good.”

No studies in New Orleans have compared rates of recidivism for transferred youth with eligible youth who were not transferred. The authors of this report were unable to obtain the data necessary for such a study. However, a 2016 report by the Institute for Public Health and Justice at Louisiana State University found that young people sentenced to Louisiana’s adult criminal system at age 17 appeared to recidivate at a 20 percent greater rate than those arrested as juveniles and sentenced to the state’s juvenile justice system at 17. Research from across the country published over the last decade also overwhelmingly shows that juvenile transfer does not stem crime and actually increases it in some cases.

State and national studies demonstrate juvenile transfer tends to increase recidivism

The Centers for Disease Control and Prevention (CDC) sponsored an independent review of all of the studies related to youth transfer to the adult system. Its 2007 report found that transfer increases violence, causes harm to young people and threatens public safety.

The CDC’s review examined every study on transfer policies that had been published in an academic journal or conducted by a government agency and compared outcomes for children in the juvenile system with those transferred to the adult system. The studies compared children charged with similar offenses and with similar background characteristics.

The CDC’s review concluded that four of the six studies “found an undesirable effect in which transferred juveniles committed more subsequent violent or general crime than retained juveniles.” One study indicated that transfer did not reduce recidivism any better than the juvenile system.

Overall, the studies showed a relative 34 percent increase in subsequent crimes for transferred youths. The CDC task force recommended “against laws or policies facilitating the transfer of juveniles from the juvenile to the adult judicial system.” It found that “to the extent that transfer policies are implemented to reduce violent or other criminal behavior, available evidence indicates that they do more harm than good,” and that “the use of transfer laws and strengthened transfer policies is counterproductive to reducing juvenile violence and enhancing public safety.”

A subsequent report by the U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention mirrored the CDC’s findings. The 2010 report concluded that transfer laws have little or no specific deterrent effect. The report cited six major studies showing that youths convicted in criminal court have higher recidivism rates than their counterparts in juvenile court.

Studies from several states also show that default juvenile transfer practices do not deter young people from running afoul of the law again – and even increase those chances. These studies provide no reason to suspect that such policies have a different outcome in Orleans Parish.

The Illinois-based Juvenile Justice Initiative highlighted in a 2014 report the findings of several Illinois studies conducted after the state’s “automatic transfer” laws were enacted in 1982. The laws expanded the scope of criminal jurisdiction to include children under the age of 17 charged with certain crimes. These children were automatically charged in the criminal system without regard for the child’s circumstances.

The report’s review of the various studies found that pushing young people into the adult system without any examination of their individual qualities failed to control serious juvenile crime. A 1988 study by the Chicago Law Enforcement Study Group, which sought to evaluate the impact of the Illinois “automatic transfer” laws, concluded that they had not decreased juvenile offending.

The Illinois Supreme Court Special Commission on the Administration of Justice also found that from the early 1980s to the early 1990s, as the number of juveniles tried in adult court increased, no deterrent effects increased along with it. It recommended that the Illinois Legislature consider changes to the transfer statutes. The legislature responded with changes to the law in 2005.

An inquiry in California reached similar conclusions. That state passed Proposition 21 in 2000, which provided for the transfer of juveniles into the adult system by prosecutors. The Center on Juvenile and Criminal Justice studied the practices of prosecutors throughout the state from 2003 to 2010 to determine whether the use of this power increased.

The study, which analyzed data from the 35 California counties that make up 97 percent of prosecutorial waiver cases, found that there was an inconsistent use of this power across the counties, producing mixed results. Thirteen percent of all such cases came out of Orange County, but this county saw an increase in juvenile felony arrests. In San Francisco, however, where only seven cases were transferred, there was a decrease in juvenile felony arrests. The researchers determined that there was no relation between the use of this power and a reduction in youth crime. Moreover, from 2003 to 2012, there was no evidence of any additional safety benefit as a result of Proposition 21.

The Washington State Institute for Public Policy also examined practices in Washington, a state where more than 1,300 youths have been processed in the adult system since 1994 – the year the state legislature enacted an “automatic decline” law. Under the law, certain juvenile cases are automatically “declined” by juvenile court and transferred to criminal court.

In a 2013 report the Institute compared the recidivism rates of youths “automatically declined” after 1994 with the recidivism rates of youths, pre-1994, who would have been eligible under the law. Researchers studied the youths for 36 months after their sanctions. The results showed that the “automatic decline” group had higher recidivism rates than that of the pre-1994 group.

These studies show that the adult prosecution of children does not decrease recidivism, but instead tends to increase the likelihood of young people reoffending. This should not surprise us. Youths convicted criminally are unable to access most or all youth-focused rehabilitative programs, treatments and re-entry resources that help children succeed as they mature into adulthood. They are also exposed to adult offenders in prison from whom they are likely to learn criminal behaviors. The punitive adult criminal justice system doesn’t scare kids into good behavior. It fundamentally undermines the possibility that they will ever become stable and productive.

Adult convictions set young people up to fail again

Once they return to their families and communities, young people with adult convictions find immediate obstacles to achieving stability. Youth who have been involved with the adult criminal justice system often lack important vocational and job-readiness skills necessary to secure and maintain employment. For young adults, these deficits are particularly acute. They have few vocational skills and most have little or no job experience, making it even more difficult to find and retain employment.

Housing can be another challenge. The Housing Authority of New Orleans broadly denies housing to any person who has a criminal record “involving drug related, violent or other criminal activity which present [sic] a threat to the health, safety, or right to peaceful enjoyment of the premises by other residents.” A convicted person may also be permanently excluded from even visiting a friend or family member living in public housing. Predictably, homelessness is a frequent consequence of an adult conviction, which only puts young people at a greater risk of another encounter with the justice system.

Adult convictions also can undermine eligibility for student loans and employment. In Louisiana, people with criminal convictions may not obtain student loans from the Louisiana Office of Student Financial Assistance. A felony record limits the eligibility of ex-offenders for certain jobs, such as employment in Louisiana’s oil and gas, shipping and chemical industries. Workers in this industry must have a Transportation Worker Identification Credential (TWIC card), but people are barred from applying for a TWIC card for seven years after some convictions.

Some licensing boards won’t issue licenses to people with adult convictions, which also makes it difficult for young people with adult records to obtain jobs. Furthermore, adult arrests and convictions are public records and must be disclosed if requested by potential employers, which may prevent youths from obtaining employment in any field – making it more likely they will recidivate. Unemployed ex-offenders are three times more likely to reoffend than employed ex-offenders.

With so many of New Orleans’ children returning to our communities after an adult conviction while they are still young, we have a vested interest in their success after release. The district attorney should always consider how to achieve the best outcome for all New Orleanians when deciding whether to prosecute children criminally or in the juvenile system.

Default juvenile transfer wastes taxpayer dollars

The district attorney’s use of default transfer has come at great expense to taxpayers. It costs more to detain children being tried as adults than those facing the same charges in the juvenile system, because they are held before trial for much longer in the adult system. In Louisiana, children detained while awaiting trial in juvenile court cannot be held for longer than 60 days. The adult system, however, allows for up to two years – 730 days – to bring a case to trial.

In Orleans Parish, the average period of pretrial detention for all children being tried as adults is 414 days. That’s more than a year of taxpayer-provided food, housing and medical expenses. This expense becomes even more questionable when one considers that 14-year-olds in Orleans Parish awaiting a transfer hearing spend such a long time in pretrial detention yet are almost never transferred. At the cost of approximately $236 per day, a 14-year-old detained in the Youth Study Center awaiting an unlikely transfer costs taxpayers an average of $96,524. Of the 14-year-olds currently being detained, only one is charged with a homicide.

There is yet another cost associated with juvenile transfer in New Orleans – the cost of construction. The district attorney’s default transfer practice has pushed New Orleans to commit $7 million dollars to expand the juvenile detention facility, a facility that wouldn’t be necessary if the same children were prosecuted in the juvenile system. That system’s faster case-processing time would have meant that the original Youth Study Center could have accommodated them.

Criminologists also have determined that preventing just a single adolescent from becoming a serial offender saves society between $2 million and $5 million in “victim costs, criminal justice costs (police, courts, and prisons), and lost productivity of offenders who are incarcerated.” Under the current practices of the district attorney’s office, New Orleans taxpayers could be expected to foot that bill as well.

Default transfer ignores scientific truths about children

The District Attorney’s practice overlooks fundamental realities about young people that science and the law recognize as fact. As outlined above, a youth’s brain is physiologically different than an adult brain.

Young people have a significantly higher capacity for rehabilitation than adults, which must be a factor in decisions about their prosecution. Prosecuting children as adults, particularly without examination of their individual characteristics, ignores this reality. In a system of default juvenile transfer, where mitigating factors affecting these youth are ignored, unjust outcomes are inevitable.



Transferring youths places a strain on our court system and our detention system — on average, cases take 414 days to resolve.

The district attorney’s use of default transfer ignores the following truths:

Adolescents’ capacity to change

Recent research shows adolescents think differently than adults. While a person’s intelligence and ability to reason is largely set by age 16, a person’s ability to make decisions in emotionally charged moments is heavily affected by short-sightedness, impulsiveness and peer influence well into early adulthood.

These differences were acknowledged by the U.S. Supreme Court in 2005, when it found that executing people convicted of crimes committed before they were 18 is unconstitutionally cruel and unusual. Roper v. Simmons identified three significant differences between children and adults relevant to their culpability. First, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”

Second, “[j]uveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” Finally, “[t]he character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.” These differences, the court summarized, “render suspect any conclusion that a juvenile falls among the worst offenders.”

The court later expanded its reasoning, in Graham v. Florida, to juveniles charged with non-homicide offenses, holding that they could not be given a sentence of life without parole. Most recently, the court held that a life sentence could not be imposed on a person convicted of a homicide committed before he or she was 18 without a hearing to address the individual characteristics of the convicted person. “Because juveniles have diminished culpability and greater prospects for reform,” the court declared in Miller v. Alabama, “they are less deserving of the most severe punishments.”

Variations in culpability

Given the nature of adolescent brains, a young person who commits a serious offense is less culpable than an adult who commits the same offense. Juveniles also tend to offend in groups, rather than as individuals, at much higher rates than adults. Group offending has even been called an “essential feature” of juvenile crime. This tendency reflects their greater susceptibility to peer pressure and poor decision-making.

Yet under Louisiana law, a young person can be arrested and held equally accountable for an offense like armed robbery even if someone else in the group of arrestees was the one with the gun. The law therefore allows young people who may not have had serious involvement in a crime to be transferred into the adult system. This is especially troubling given the district attorney’s practice of default transfer.

The connection between trauma and arrest

Default juvenile transfer does not take into account the prevalence of trauma in young people who have been arrested and the role that trauma can play in causing criminal behavior. As much as 80 percent of young people who have been arrested report exposure to at least one traumatic incident. The majority report having been exposed to multiple types of trauma. Post-traumatic stress disorder is prevalent in justice-involved youth.

Trauma is pervasive among children in New Orleans. In a recent survey of black adolescents in New Orleans, 39 percent reported that they had witnessed domestic violence, 20 percent reported post-traumatic stress disorder and suicidal thoughts, 17 percent worried about not having enough food or adequate housing, and 30 percent worried that they are not loved.

With these kinds of statistics in mind, the U.S. Attorney General’s Task Force on Children Exposed to Violence explicitly declared that “[l]aws and regulations prosecuting [juveniles] as adults in adult courts, incarcerating them as adults, and sentencing them to harsh punishments … must be replaced or abandoned.”

Developmental immaturity and mental illness

Transferring juveniles to adult court without any inquiry into their developmental maturity ignores the fact that adolescents have a lower capability to understand and participate in legal proceedings against them, undermining the fairness of the justice process. Unlike proceedings in juvenile court, proceedings in adult criminal court are not tailored to a young person’s level of understanding, nor managed by professionals familiar with juvenile needs, comprehension and communication abilities.

Developmental immaturity can impede a young defendant’s ability to make decisions in his or her best interest during the criminal process. For example, adolescents accused of committing a crime with co-defendants may be influenced by a desire for peer approval when determining trial strategy, particularly when deciding whether to indicate that a co-defendant was more criminally responsible.

Adolescents may have difficulty assisting their attorneys because court procedures can lead children to believe that the judge, prosecutor and defense attorney are all on the same side (against the adolescent). In fact, research indicates that many children believe their attorneys will share private information with the judge or police, and that their rights are revocable by adults involved in the proceedings (such as the police, prosecutor or judge). As a result, they may choose not to share information with their attorneys – even if it could help their cases.

Children may also be at a disadvantage in the plea bargaining process in criminal court. This is deeply significant in New Orleans because 96 percent of transferred children who are convicted plead guilty. The characteristic failure of adolescents to anticipate future consequences may make young defendants more likely to accept plea deals, even if they have a chance of a better outcome at a trial. They are likely to focus on a plea deal’s short-term benefits (avoiding trial, getting out of pre-trial detention, avoiding a maximum sentence regardless of the strength of the evidence) rather than its possible long-term consequences (a criminal record, incarceration in an adult facility, the responsibilities and restrictions of probation or parole).

While in many states the competency evaluation process would protect a developmentally immature child against prosecution in adult court, Louisiana’s competency laws only allow for a child with a “mental illness or developmental disability,” to be found incompetent. Even children found to be at such a disadvantage are not fully protected from transfer: State law allows district attorneys to transfer a child to adult court even after the child’s attorney has asked the juvenile court to examine the child’s competence to stand trial.

Remarkably, the Orleans Parish district attorney has refused to promise to halt the transfer of youths once the possibility of incompetency is raised in juvenile court. In fact, Cannizzaro declared to the City Council that he would charge as adults children who were legally incompetent to stand trial.

Putting children in the adult correctional system doesn’t prepare them to re-enter society

The New Orleans City Council, to its credit, has resolved to remove all children in Orleans Parish currently housed in pre-trial detention facilities shared with adults. Those plans, however, will not be fully implemented until 2018. Meanwhile, unless current practices change, the district attorney’s office will continue to seek to transfer children, some of whom will be detained in Orleans Parish Prison for months – if not years.

Regardless of where they are held before trial, many of New Orleans’ transferred youth will end up in adult prisons. Because the experience of being imprisoned in the adult correctional system can make it even more difficult for children to re-enter society, the district attorney’s failure to carefully consider whether children can be better served in the juvenile system is also dangerous and counterproductive.

Adult correctional facilities endanger young people

Children in adult facilities face significant dangers due to their status as minors and their physical vulnerability. The risk of sexual assault for children in adult facilities is five times greater than it is for children in juvenile detention.

Research has also found that while children under 18 were just 1 percent of the prison population in 2005 and 2006, they accounted for 21 percent and 13 percent of the victims of inmate-on-inmate sexual violence in jails in those years, respectively. They are also twice as likely as young people in juvenile detention to be physically assaulted by staff. They are eight times as likely to commit suicide as those detained in juvenile facilities.

The view that adult institutions endanger children is endorsed by the American Jail Association; American Psychiatric Association, the American Academy of Pediatrics; the National Association of Counties; the American Bar Association; and the National Commission on Correctional Healthcare, all of which oppose holding juveniles in adult facilities.

The adult correctional system negatively influences youth and harms development

Beyond dangers to their physical safety, children are vulnerable to the negative influences that surround them in adult facilities. They are “likely to learn social rules and norms that legitimate domination, exploitation, and retaliation.” A young person who spends his transition to adulthood in a prison with adult inmates misses critical developmental opportunities – including the assumption of adult social roles, improving one’s prospects for employment and seeking financial stability through work and education. These factors contribute to an overall mortality rate for people who were transferred to the adult system as teens that is nearly 50 percent higher than for people who were prosecuted in the juvenile system.

Louisiana’s adult facilities do not set children up to succeed

The U.S. Department of Justice Office of Juvenile Justice and Delinquency Prevention recently found that “transferred youth sentenced to prison have not only greater needs for behavioral rehabilitation to address disruptive behavior and substance use disorders than transferred youth who receive less severe sentences but also greater needs for psychiatric treatment of major affective and anxiety disorders.” But access to resources necessary to address these needs is minimal in the adult system.

The Research Network on Transitions to Adulthood describes programs that reduce recidivism as programs that emphasize “interpersonal skill-building and cognitive-behavioral counseling. Such programs develop positive social patterns of reasoning by maintaining a focus on managing anger, assuming personal responsibility, taking an empathetic perspective, solving programs, setting goals, and acquiring life skills.”

Yet Louisiana Department of Corrections (DOC) programming is largely focused on vocational training and GED programs. These programs have not been shown to be effective interventions in criminal behavior, especially for youths with serious offenses. Furthermore, the DOC’s programs have a limited capacity, and only half of Louisiana’s state inmates are housed in DOC facilities at all; the other half held in parish jails where programming is often nonexistent.

The DOC has a “youthful offender program” at Dixon Correctional Facility in Jackson. It offers some age-appropriate programming to youth under 19, but the program has significant limitations. It does not comply with federal laws that require “sight and sound” separation of children under 18 from older inmates. Young people housed there have reported arbitrary and violent disciplinary tactics. These tactics include the use of pepper spray and segregated placement in a cell block on the main compound with adults in plain sight. When they are held in these cells, youth receive no programming at all. Children are frequently ejected from the program, and completion rates are exceedingly low.