Fedders: HB 217 poses dire consequences for young offenders

Mar. 31, 2013 @ 07:09 PM

Since the far-right takeover of our General Assembly and election of Gov. Pat McCrory, we’ve witnessed Republicans sacrifice good governance in favor of rigid ideology.

Work to pass bills in defiance of research and expert opinion. Defend decisions to dismantle or refuse to expand public systems on the grounds that they are irrevocably “broken.” Write legislation that disproportionately hurts people of color. 

Consider just a few examples: the rejection of Medicaid expansion, scrapping of unemployment insurance and resulting forfeit of federal funds, proposal to gut the Earned Income Tax Credit and shift savings to benefit a tiny portion of the wealthiest North Carolinians by eliminating the estate tax, and the movement to further privatize public education.

House Bill 217, proposed by representatives John Faircloth and Paul Stam, fits squarely within this pattern. The bill’s most pernicious provision pertains to the transfer of young people ages 13-15 from the juvenile system to the adult criminal system.

Currently, for serious and violent felonies other than murder, which is automatically prosecuted in the adult system, a child may be transferred only after a hearing before a judge who decides whether transfer is necessary for public safety. 

HB 217 would strip neutral judges of this oversight role and vest all power with prosecutors.  The result would be hundreds more children per year transferred to the adult system, since prosecutors would not have to explain or defend their decisions to a judge, and the child’s defense lawyer would have no ability to argue against transfer. Studies and current data show that the transferred youth will be disproportionately black and Latino.

At a meeting of the House Judiciary Committee meeting on March 20, Faircloth argued that the bill would make the criminal justice system more effective and less expensive. Stam argued that the bill would make the system more efficient.

More effective? No. Every reputable scholar who has studied transfer laws concludes that they contribute to, rather than reduce, reoffending. It is not hard to see why. In adult jails and prisons, children are detained with adult offenders. They are at heightened risk of rape and other forms of assault. They must bear the lifelong stigma of a felony conviction, which operates as a bar to education and employment.

Less expensive? Wrong again, Rep. Faircloth. Transferring kids to the adult system is extremely expensive.  Children in adult court wait for much longer periods than they would have in juvenile court for their cases to be heard. They typically wait in detention, which costs taxpayers over $200 per day. Victims and witnesses must come to adult court for more appearances than in juvenile court; other court costs, for attorneys, stenographers and juries (not part of the juvenile system) are higher as well.

More efficient? False. At the hearing, Stam supported shifting power to prosecutors by arguing that the bill would eliminate the “brouhaha” in the current procedure. By “brouhaha,” he seems to mean meaningful due process. Being tried as an adult is serious. The decision should be made with deliberation and care, which is why the current statute requires judges to consider: age, maturity, and intellectual functioning of the child; any prior record; whether prior attempts at rehabilitation have been made; available services in the juvenile court; whether the offense was premeditated or violent; and the best way to assure the public interest.  

If Rep. Stam has his way, this balanced, impartial approach would be replaced by a provision allowing a prosecutor to move for transfer merely upon a written motion. 

In North Carolina, juvenile crime has declined for five straight years. While far from perfect, the juvenile system – designed to prevent further offending and rehabilitate youth -- does a much better job of meeting the needs of children and their parents than the criminal system. 

Neuroscientific studies make clear that youth are less able to plan, or to understand the consequences of their actions, and that they find it more difficult to resist peer pressure. The Supreme Court has recognized, in four separate decisions over the last decade, that youth are as a result categorically less culpable than adults. States across the country are changing their laws to make it harder to try youth as adults, rather than easier. 

We already have the lowest age for criminal jurisdiction of any state in the nation.

This bill has dire consequences for young people, their families, and the public. All who care about safety, rehabilitation and treating children humanely should oppose it.   


Barbara Fedders is a Clinical Associate Professor at the University of North Carolina School of Law.