The 12-year-old lay in a bed in the intensive care unit, gasping for breath during a severe asthmatic reaction.
While deciding whether to intubate him, Dr. Carly Muller couldn’t take her eyes away from the handcuffs chaining the boy to the hospital bed. Or the guard standing above him. The boy was in the custody of the juvenile justice system and hadn’t been receiving his medications.
“It really seemed unnecessary when this boy literally couldn’t catch his breath, let alone run away,” the Children’s Hospital Colorado pediatrician said, describing the scene to state legislators last week.
How young is too young for handcuffs, arrest and prosecution? Colorado lawmakers will decide this year whether to ban the criminal prosecution of kids ages 10 through 12 for any crimes other than homicide, and instead handle criminal behavior among that age group outside of the juvenile court system.
Instead of the juvenile courts, the bipartisan bill, HB23-1249, would task a network of multi-disciplinary teams with intervening in the child’s life and connecting them and their families with services that will hopefully prevent further incidents. The bill would also change when juvenile cases can be moved to adult court and extend less severe sentencing guidelines to kids who are 13 and 14 years old.
The change would minimize trauma for 10-, 11- and 12-year-olds and help them get more personalized help faster, supporters said. It also allows victims of crimes committed by kids in that age range access to services and victims’ compensation without going through the court process, which can take months or years.
“This is the system we’ve chosen to prioritize, but it doesn’t have to be that way,” said sponsor Rep. Ryan Armagost, a Republican representing Weld and Larimer counties.
An average of 900 kids ages 10 through 12 were arrested in Colorado every year between 2017 and 2021, according to data from the Colorado Bureau of Investigation. In 2021, 52% of the 677 arrests were for crimes against persons like assault and sex offenses, 32% were crimes against property and 16% were crimes against society, like drug and weapon possession.
Juvenile justice has come into focus in Colorado in recent years as an increasing number of kids are killed in shootings, often at the hands of another teen. Lawmakers considered the bill in a committee hearing Wednesday just after high school students protested at the Capitol for more gun control following the shooting death of a 16-year-old and the non-fatal shooting of two administrators at Denver’s East High School.
Opponents of the minimum-age change — police, district attorneys and state public safety and human services officials — say the current juvenile justice system is best set up to create accountability, provide services and meet victims’ needs. Kids in the 10-to-12 age range are capable of serious crimes, like shootings and rape, and the alternate system created by the bill is not equipped to handle such incidents, they argued.
“I think if we take something apart, the obligation is to build it better than before, and I just don’t see that happening with this bill,” First Judicial District Attorney Alexis King said.
A new system
There is no nationwide standard minimum age for juvenile prosecution in the U.S. and states must set their own laws. Eight states have higher minimum ages for prosecution than Colorado’s minimum of 10, and two — New Hampshire and Maryland — set the age highest, at 13, according to the National Juvenile Justice Network.
The United Nations’ Convention on the Rights of the Child in 2019 recommends that 14 be the minimum age for which a child can be held criminally responsible.
Many of the collaborative management programs, or CMPs, that would replace the juvenile court system if the bill passes already are in existence. Forty-nine of the state’s 64 counties already use a CMP, which includes representatives from human services, courts, health departments, school districts, community mental health centers, behavioral health organizations, family advocacy groups, and community agencies. The bill requires that all counties use a CMP.
If a family does not comply with the CMP’s plan for the child, the CMP could ask the state Department of Human Services to open an investigation, which could prompt court-ordered compliance.
Kids between the ages of 10 and 12 would still be criminally prosecuted for homicide under the bill.
Arrest and detainment are inherently traumatic experiences, especially for kids so young, according to doctors and mental health experts. Childhood trauma destabilizes a person and can create long-term harms to mental and physical health, they said. Kids that young are generally acting out because of circumstances outside of their control: abuse, substance use in the family, unmet mental health needs, and instability in the home.
“Our current system is penalizing and traumatizing already penalized and traumatized kids,” said sponsor Rep. Serena Gonzales-Gutierrez, a Denver Democrat.
Phillip Roybal was 12 years old when he was arrested and detained for smoking marijuana and running from the group home where he lived.
He spent the next three years, between 1998 and 2000, detained at two different Denver-area youth detention facilities. While there, he watched a child’s body being removed from the building after the child died by suicide. He never progressed past the eighth grade. His time locked up hardened him, when really all he wanted was to be with his mom.
“It desensitizes you to handcuffs, to steel, to concrete, to cold, to institutions,” said Roybal, now 38 and a physical therapist.
He spent the next 10 years in and out of the criminal legal system, which he attributes in part to the traumatic experience of incarceration at such a young age.
“Treating children like criminals does nothing to make us better people, it just makes us sad, hurt and angry adults,” he said.
An unproven system?
The state’s district attorneys and police chiefs said the bill would substitute an unproven system for a juvenile court system that has improved significantly in recent years and can meet children’s needs. Prosecutors and judges often seek sentences for lesser crimes that allow charges to be dropped and many juvenile arrest records are eligible for expungement. The new system also lacks a system of due process for when the child denies the allegations against them, they said.
The new method is a “far too drastic, impractical and untested model,” said Tom Raynes, executive director of the Colorado District Attorneys’ Council.
It’s rare for kids in the 10-to-12 age range to spend long periods locked up, the district attorneys argued. Longer detentions can happen if there is not a safe place outside of the Division of Youth Services for them to go, said King, the DA for the First Judicial District.
Sixty-three kids ages 10 to 12 were detained while their cases were proceeding in fiscal year 2022, according to data from the Division of Youth Services. Ten-year-olds were detained for an average of two days, 11-year-olds for 51 days and 12-year-olds for 29 days.
Only one child in that age range has been sentenced to the Division of Youth Services in the last three years, the data shows.
“I have been in the business for 28 years, and I have never seen a child locked up for stealing a book,” Westminster police Chief Norm Haubert said. “I have never seen a child locked up or arrested for a dustup on a playground.”
Some opponents of the bill cited a rise in juvenile crime as a reason to continue to send 10- to 12-years-olds through the juvenile justice process.
“There is evil in this world, please protect us,” one man, whose daughter was sexually assaulted by a 12-year-old, told lawmakers last week.
But data from the Colorado Judicial Department shows that almost all types of juvenile crimes have fallen since 2017. In fiscal year 2022, 5,484 criminal cases were filed against juveniles in Colorado — a 34% decrease from the 8,313 cases filed in fiscal year 2018.
Of the 37 crime types tracked by the judicial department, only two showed significant increases in that time period: weapons charges and homicides.
HB23-1249 passed out of the House Judiciary last week and will be heard next in the House Appropriations Committee.
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