Kids being kids? Task force to study raising minimum age for juvenile court
New state law faced opposition from district attorneys
House Assistant Majority Leader Serena Gonzales-Gutierrez, a Denver Democrat, speaks at a rally against re-felonizing drug possession at the Colorado State Capitol building on April 26, 2022. Gonzales-Gutierrez was the lead sponsor on House Bill 22-1131. (Faith Miller/Colorado Newsline)
A task force made up of youth mental health providers, victims’ services organizations, state lawmakers and members of law enforcement will soon begin meeting twice a month.
Progressive state lawmakers and advocates hope it’s the first step in changing how the state responds to Colorado kids who act out.
Currently, children can enter the juvenile justice system starting at age 10. The Pre-Adolescent Services Task Force, created through 2022 legislation, will study potential effects of raising the minimum age to 13, including the barriers to services for young people, their families and victims that could be created if those services are no longer ordered by a court.
“Our coalition doesn’t believe that 10-, 11- and 12-year-olds — which are elementary school-aged kids and sixth graders — that they should be arrested, prosecuted, adjudicated and detained,” said state Rep. Serena Gonzales-Gutierrez, lead sponsor on House Bill 22-1131, the impetus for the task force. “The majority of the behaviors that they’re engaging in that result in charges are … typical behaviors that most kids go through.”
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The sponsors of HB-1131 — Gonzales-Gutierrez, Rep. Jennifer Bacon and Sen. Julie Gonzales, all Democrats from Denver — wanted their bill to raise the minimum age for Colorado juvenile court jurisdiction from 10 to 13, without the need for a task force to deliberate. But district attorneys, local governments and others argued that policy was poorly thought out, ignored the victims of serious crimes committed by preteens, and would prevent families from accessing services through the justice system.
“When you remove that jurisdiction, you’re removing the supports (for youth and their families), you’re removing the protection for victims, and there hasn’t been the conversation — the proper conversation — by the stakeholders that need to be involved in this decision and the state,” Arnold Hanuman, deputy executive director for the Colorado District Attorneys’ Council, told Newsline in March.
The protests proved fruitful: An amendment passed during House debate scrubbed the policy change from the legislation and replaced it with a task force to study the services available to families through the juvenile justice system and the gaps in services that would be created by raising the minimum age, and ways the state could bridge those gaps for families — helping them to still access medical and mental health care, tutoring, vocational training and other programs available to “committed” youth. The task force must also look at ways that raising the minimum age for juvenile prosecution would affect victims of 10- to 12-year-olds.
Even after the change, groups including the District Attorneys’ Council were vehemently opposed to the idea of forming a new task force to study those issues. District attorneys pushed for the task force to be created within an existing body, the Commission on Criminal and Juvenile Justice, that’s worked on past policies including sentencing reform.
“No other body should be tasked with the difficulty of determining who is going to provide quality Sex Offender Management Board-certified treatment for the 1,430 10- to 12-year-olds who committed felony sexual offenses between 2010 and 2020,” Jessica Dotter, sexual assault resource prosecutor at the Colorado District Attorneys Council, told the Senate Judiciary Committee in May.
Prosecutors lost the fight to create the task force under the Commission on Criminal and Juvenile Justice, despite vocal support for that idea from Republicans, who are in the minority in the House and Senate and almost all of whom ultimately voted against HB-1131. But district attorneys and their allies in the Legislature earned a nod from Gov. Jared Polis, who in a signing statement on HB-1131 said: “I fully respect the CCJJ and believe that this group is doing important work.” Polis, a Democrat, noted that he would “continue to encourage criminal justice reform policies to move through CCJJ.”
In the Senate, the vote was 21-14. All Democrats and state Sen. Kevin Priola voted “yes.”
The legislative fight around HB-1131 is one example of how election-year rhetoric around rising crime put a damper on some progressive efforts toward reform. Those tensions are sure to underscore the task force’s work over the next several months and strain future efforts to raise the minimum age of juvenile jurisdiction.
“As a matter of politics, Republicans really made this issue of public safety,” Bacon told Newsline. “They really want it to be a campaign platform this session, and I think a lot of folks including the governor either are leery of that or have taken an opportunity to lean into that. … This bill had nothing to do with our belief and faith in CCJJ, and because I think district attorneys and in particular those who kind of lead that space really love that committee, they then made it about CCJJ.”
In his June 7 signing statement, Polis wrote that he deeply appreciated the sponsors’ “collaborative work on this bill, which was pared down from policy changes to a taskforce after hearing concerns from stakeholders.” The stakeholders the governor referred to likely included the District Attorneys’ Council as well as the Colorado Municipal Judges Association, Colorado Association of Chiefs of Police, County Sheriffs of Colorado and Colorado Rural Schools Alliance, all of whom opposed the bill even after the rewrite.
Connecting kids to services
In prior legislative sessions, Gonzales-Gutierrez has championed bills on housing, criminal justice reform and immigrant rights. But 2022 would be the year she’d focus on making “transformational” change for Colorado children, she decided — kids like those she’s served over her 18-year career as a social worker.
Gonzales-Gutierrez’s first job out of college was as a staff member at an all-female juvenile detention facility run by the Division of Youth Services. She said she was struck by how many of the young people there “had actually been sexually abused or physically abused in their life as a child before getting to this point of being committed.”
Later, she worked as a case worker in the Denver Department of Human Services and now directs Denver’s Collaborative Management Program, which connects agencies and services for at-risk children, youth and families involved in the criminal or juvenile justice systems. Throughout her career, Gonzales-Gutierrez frequently heard from families who were told youth could only access services like case management or behavioral health treatment after being “committed” for breaking the law.
“They would say, ‘When my child was 9, 10, 11 years old, they were having these issues.’ And maybe they were behavioral health issues, right, or maybe it was a traumatic experience,” Gonzales-Gutierrez recalled. “They said, ‘My kid was having issues. However, I was told that my kid had to get into trouble in order to access services.'”
Ironically, she noted, such programs aren’t administered by the juvenile courts, but the Department of Human Services — though a court might order DHS to get involved with a child’s case.
She was disappointed by the opposition to HB-1131 from law enforcement, public school administrators and others.
“I don’t think it’s a secret that running certain policies can be tough in an election year, and it doesn’t matter what side of the aisle you’re on,” she said. “I really thought that when we’re talking about kids, and we’re talking about literally children, that it would be a no-brainer for everybody.”
Proponents of the bill also argued that when children end up in the system, it’s usually because they’re victims themselves.
“It was really disheartening to see people say (during debate) that the only thing a child could be with these types of crimes is a criminal,” Bacon, a former Denver Public Schools Board of Education member, reflected. “If any of us said a 10-year-old, god forbid, raped another child, all of us would be like, ‘What happened to that 10-year-old?'”
Task force or commission?
For its part, the District Attorneys’ Council said the sponsors didn’t fully examine the issues involved with raising the minimum age, and that they failed to bring groups on all sides of the issue into the same room to hash out their differences.
“Merely just changing from 10 to 13 is a simple strike in the statute, but the impact across the entire system is significant,” Hanuman said, naming young lawbreakers, victims and broader communities as examples of those affected. “You can’t just make an age change and then expect everybody in the entire system to turn on a dime. It’s a systemic change.”
What comes along with getting arrested for a kid is somewhat similar to what happens when an adult gets arrested ... If a kid gets detained, they’re getting strip-searched, and if they’re getting arrested, they’re getting handcuffed ... And so you can imagine a 10-year-old, fourth or fifth grader, having to go through that process.
– Sen. Serena Gonzales-Gutierrez
Even after the introduced version of HB-1131 was scrapped and replaced by a task force, district attorneys opposed the idea, seeking instead for the Colorado Commission on Criminal and Juvenile Justice to study the issue. But Gonzales-Gutierrez argued that the powerful Department of Public Safety commission, on which she serves, doesn’t have adequate expertise on issues involving youth. She and the other bill sponsors wanted the task force to instead be formed as a separate entity under DHS.
“CCJJ doesn’t have the expertise in working with children or youth,” Gonzales-Gutierrez said, “even though … juvenile justice is in the name, I’m a current member right now of CCJJ and I’m like, maybe one of three or four that have expertise in working with youth.”
The commission was formed through 2007 legislation to bring together diverse voices that would comprehensively examine controversial policy changes. It includes the Department of Public Safety’s executive director; the Department of Human Services’ designee; and representatives of criminal defense lawyers, people involved in the justice system, victim rights organizations and sheriffs, to name a few. The commission can also invite members of the public to participate on task forces.
During the bill’s Senate Judiciary Committee hearing, Colorado District Attorneys’ Council Executive Director Tom Raynes described the idea that the commission is unbalanced as “misinformation.”
“The CCJJ is specifically designed to create task forces, working groups, study groups, with subject matter experts that are selected by those interested in the topic,” Raynes said.
Another reason sponsors didn’t want the bill to go to the commission: The people calling for that — prosecutors — were the same people who had opposed raising the minimum age, warning that would mean sexual assaults and murders going unpunished.
“You can’t openly say how much you hate this and you think every kid is a criminal and then advocate that we give” the issue to CCJJ, Bacon said.
Hanuman calls that a “simplistic argument.”
“The CCJJ is a multi-member task force, and our objection as an organization is just one voice,” he said. “Our objection was that the conversation about this policy change did not happen, did not get debated, and that’s where CCJJ is the venue to allow that conversation to happen.”
Other states mull minimum age
During the legislative process, district attorneys pointed out that Colorado is far from an outlier in terms of minimum age of juvenile prosecution. There are 23 states with no minimum age, according to a memo submitted as written testimony on HB-1131 by the office of 18th Judicial District Attorney John Kellner. Colorado is one of 15 states with a minimum age of 10.
But the National Center for Youth Law began working with Gonzales-Gutierrez, Bacon and Gonzales on HB-1131 in a climate of change. Recently, a handful of states including New Hampshire, Massachusetts, California, Utah, Delaware and New York have successfully “raised the floor” of their jurisdiction by increasing the minimum age, said Dafna Gozani, a senior policy attorney with the Center for Youth Law. Those states have a minimum age of 12 for most crimes, according to the 18th Judicial District memo.
Long-term research shows the juvenile justice system leads to “poor outcomes” for young people throughout their childhood and adult lives, Gozani said.
“Those (outcomes) include increased likelihood to enter the criminal justice system as an adult,” she told Newsline. “It also has impacts, long-term impacts, on adult health outcomes, and we also see some really stark statistics around what it means for the education trajectory of a young person and their decreased likelihood to be able to graduate high school.”
Moreover, Gozani argued, kids are getting arrested for behavior that’s a response to trauma, or that doesn’t warrant a police response at all.
“A lot of what we see is low-level behavior,” Gozani said, “so you’re talking about a kid, like, (marking) up the wall with a Sharpie, and then getting a ticket and having to go to court. … That requires a sit down and a brush and pail of water and cleaning it up, and doing things like restorative justice, where young people can learn about accountability, how to repair the harms they’ve created.”
A fiscal analysis of HB-1131 by nonpartisan Legislative Council Staff used the five-year average of cases involving children ages 10 through 12. Under the introduced version of HB-1131, the analysis estimated that trial courts would see three fewer felony cases, 446 juvenile delinquency cases, 64 fewer misdemeanor cases and 10 fewer traffic cases each year; and there would be 177 fewer 10- to 12-year-olds sentenced to probation each year.
In many cases, the kids in that age group are “elementary school-aged kids and sixth graders,” Gonzales-Gutierrez pointed out.
“What comes along with getting arrested for a kid is somewhat similar to what happens when an adult gets arrested,” she said. “If a kid gets detained, they’re getting strip-searched, and if they’re getting arrested, they’re getting handcuffed … They’re being asked very invasive questions. And so you can imagine a 10-year-old, fourth or fifth grader, having to go through that process. And they’re not doing it alongside their parent — unless they’re being questioned — but if they are going into detention, their parent is not with them.”
The juvenile justice system also has disproportionate effects on kids of color and their families. While data collection problems make it difficult to see the rates of justice system involvement for Latino youth, who are often recorded as white, probation officers and other people involved in the system anecdotally recognize Latino kids are more likely to be arrested and detained than their white counterparts, Gozani said.
“We do see a very clear disparity for Black youth in Colorado,” she added. “That is particularly concerning, I think, and it’s something that is unfortunately pretty pervasive in the justice system.”
Other groups that supported HB-1131 from the start included the Colorado Cross-Disability Coalition, Colorado Organization for Latina Opportunity and Reproductive Rights, Colorado Youth Justice Collaborative and Healthier Colorado.
What comes next?
HB-1131 creates the Pre-Adolescent Services Task Force within the Department of Human Services. The bill’s proponents hope it will help to answer a controversial question: How young is too young for kids to enter the justice system? Currently, kids can be adjudicated for breaking the law starting at age 10, but the task force will study the potential effects of raising the minimum age to 13, including the new barriers to services for young people, their families and victims.
But to some, Polis’ signing statement signaled opposition to the idea that any policy recommendations could come out of the task force.
“It is important to me that the purview of the pre-adolescent services taskforce is to review services that are currently and could be provided to the 10 to thirteen year old population,” Polis wrote. “My understanding and intent is that this taskforce does not make recommendations regarding whether ten to thirteen year olds should be charged, but should instead do the important work of identifying services related to this population. This information will be helpful to the CCJJ as it completes its work.”
Hanuman views that as an explicit directive.
“The task force’s work is constrained just to the identification of services, and not to the policy conversation and decision about whether a change should be made,” he said. Hanuman also believes the governor’s statement signaled that CCJJ would need to look at the issue before he could support legislation to raise the minimum age.
“CCJJ is the appropriate venue to do the policy conversation about that issue,” Hanuman said. “That’s separate from what the task force is doing. The task force is looking at a service gap issue, which is what we’ve identified all along has to happen. The policy conversation needs to happen in a different context, and that’s for CCJJ to do.”
The Office of Children, Youth and Families within DHS accepted applications to serve on the Pre-Adolescent Services Task Force through July 1. Members of the task force have not been formally announced, though Gonzales-Gutierrez said she plans to serve, and Hanuman said CDAC will appoint a representative with expertise in juvenile diversion programs.
The task force must include:
- A representative with experience treating youth who have participated in problematic sexual behavior
- A representative from a community-based organization that provides services to children who are victims of crimes
- A representative from a community-based organization that serves sexual assault victims
- A representative with experience providing pediatric mental and behavioral health services
- A pediatrician or pediatric clinician
- A representative of a nonprofit that provides legal services to children ages 10 through 12
- Two representatives from community organizations or nonprofits that provide evidence-based or promising, culturally responsive, and trauma-informed services to juveniles
- Three representatives who experienced incarceration, homelessness, or out-of-home placement as a young person; or who are the parent or legal guardian of a child who has experienced incarceration, homelessness or out-of-home placement
- Four state lawmakers appointed by Democratic and Republican leaders, two from each party
- A representative of the Division of Criminal Justice
- A representative of a law enforcement agency, appointed by the County Sheriffs of Colorado
- A representative from a district attorney’s office, appointed by the Colorado District Attorneys’ Council
- A representative from the Office of the State Public Defender or Office of Alternative Defense Counsel, appointed by the state public defender
- A representative with experience providing probation services and supervision to young people
- The director of the Office of the Child’s Representative or their designee
- The director of the Office of the Respondent Parent’s Counsel or their designee
- A representative of the Division of Child Welfare, appointed by the director of the Office of Children, Youth and Families
- A representative of the Behavioral Health Administration, appointed by the executive director of DHS
- Two representatives from public schools or school districts, appointed by the Commissioner of Education
- A representative of a local collaborative management program, appointed by the Collaborative Management Program Statewide Steering Committee
- A representative from a local juvenile services planning committee, appointed by the Colorado Youth Detention Continuum Advisory Board
- A representative from the Restorative Justice Coordinating Council, appointed by the council
- The executive director of the Department of Health Care Policy and Financing or their designee
- Two representatives from county departments of human services, appointed by the executive director of DHS
The task force’s members must meet at least twice a month from August through December and report on their findings and recommendations by Dec. 30.
Bacon said she hoped that during future discussions around minimum age, legislators would be more willing to think outside of the box when it comes to justice issues. She brought up the 1993 comedy film “The Sandlot,” which features kids in the 1960s “jumping over fences and trying to steal things.”
“There was a point in time when kids could be kids,” Bacon said. “All of those kids could be charged with a crime these days. … We’re not saying that any of these problems aren’t real. But if there’s any point in time that we could have a touchpoint with someone that would change their trajectory, it’s when they’re 9, 10 and 11 years old. Our kids are worth it, you know? Our kids are worth it.”
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