Child advocates are making an 11th-hour push in Montpelier to revise legislation that would send more young offenders into the criminal justice system for adults.
Teenage brains are different than adults’, and that scientific fact has spurred reforms in Montpelier that are designed to keep young offenders from entering the system that Vermont uses for adults.
Public safety legislation that’s up for a final vote in the Statehouse this week, however, could result in more kids going to adult prison.
“All in all, this bill is one of the most concerning pieces of legislation we’re seeing this session,” said Falko Schilling, with the Vermont chapter of the American Civil Liberties Union.
There are a number of provisions in legislation, known as S.58, that are of concern to Matthew Bernstein, the child, youth and family advocate for the state of Vermont. The one that worries him most would allow children as young as 16 to be tried as adults for felony drug trafficking.
“I think the Legislature has gotten a little bit caught up in fear-based policymaking,” Bernstein told Vermont Public.
Bernstein, whose position was created by lawmakers in 2022 to represent the interests of kids in state government, said the Legislature is understandably trying to allay public outcry over drug-fueled crime in Vermont communities.
But he said targeting 16-year-old pawns for their role in the state’s substance use problem is misguided at best.
“They don’t have a choice in the matter, in terms of the coercion that is being exerted upon them,” he said.
Vermont lawmakers are more than a decade into a criminal justice reform effort that’s sought to reduce recidivism, and improve public safety, by adopting a trauma-informed approach to the rehabilitation of young offenders.
Bennington County Sen. Dick Sears is one of the architects of that movement.
“I started working with troubled youth in 1969, before Matthew Bernstein was born, I’m sure,” Sears said. “So my commitment to those kids is unwavering.”
Sears, however, said some of the young offenders of 2024 are different than the ones he started working with nearly a half century ago. And he said criminal statutes need to acknowledge that evolution.
“We see kids today who are much more complex, and the behaviors are dangerous,” he said. “That’s who we’re trying to get at.”
Jay Blitzman, a former juvenile judge and public defender in Massachusetts, said the sentiment driving S.58 “hearkens back to … what I think is pernicious mythology of the super predator era.”
Blitzman, who once ran a youth advocacy project in Massachusetts and now teaches at Harvard Law School, is referring to the tough-on-young-criminals approach that took hold in the U.S. in the 1990s.
He said addressing public safety has since become a matter of science.
“Look at the data,” he said. “Look at the research.”
“There are very few, if any, youth who are so dangerous that they can’t be treated in the juvenile system.”Jay Blitzman, Harvard Law School
That research, he said, has demonstrated time and again that young offenders charged in juvenile or family court are less likely to reoffend than those sanctioned in criminal courts.
“It makes common sense, it is common sense, to take that 18, 19 and 21-year-old cohort and put them into a more rehabilitative system, which has demonstrably lower recidivism rates,” Blitzman said.
And he said the idea that some of those young offenders are too dangerous, or too far gone to bring back, has no basis in science. He said it also reinforces antiquated policies that are responsible for “searing” racial inequities in the criminal justice system.
“There are very few, if any, youth who are so dangerous that they can’t be treated in the juvenile system,” he said.
The addition of new crimes for which 16-year-olds can be tried as adults isn’t the only aspect of S.58 that would affect juvenile justice practices in Vermont. And the bill is in many ways a symptom of the resource scarcity that’s plaguing Vermont’s public safety and child welfare apparatuses.
The legislation would also postpone a law known as Raise the Age, a statute passed in 2018 that was borne of the sort of research that Blitzman and Bernstein point to. It was supposed to ensure that, starting this July, most 19-year-old offenders would avoid getting charged in adult criminal courts.
Lawmakers have decided to delay implementation of the law, however, after hearing from the state workers whose job it is to rehabilitate justice-involved youth.
“The youth that we’re serving today, the behaviors that we’re seeing, are significantly more dangerous now than ever before.”Jason Conety, Department for Children and Families
“The current climate that my colleagues and I are facing in the course of our jobs every day is that we are stretched beyond the breaking point for the last several years,” Jason Conety, a family services worker at the Department for Children and Families, told lawmakers earlier this year. “The youth that we’re serving today, the behaviors that we’re seeing, are significantly more dangerous now than ever before.”
DCF says staffing shortages and the lack of a secure facility for violent youth in crisis have left rank-and-file employees to supervise young offenders for days at a time in emergency rooms, police stations and district offices.
Chris Winters, commissioner at DCF, said Raise the Age is a critically important initiative that uses breakthroughs in neuroscience to more effectively address the root causes of criminal behavior by young people.
But Winters said the state can’t responsibly move forward with Raise the Age until his department has the staff and infrastructure it needs to address the physical risks and emotional needs of the young offenders that will be coming under its custody.
“I am most concerned about our staff, about the pressure that it’s under right now, about the caseloads,” he said.
Winters is candid about what limitations at DCF mean for the teenagers who would otherwise avoid entering the criminal system.
“That’s the thing that’s the most worrisome, is that there are some youth who are going through the criminal justice system, who could be taking a more rehabilitative path and treatment-oriented path,” he told Vermont Public.
Lauren Higbee, Vermont's deputy child, youth and family advocate, said the resource shortages faced by DCF are real. And she said her office strongly supports whatever funding increases are needed in order for the department to fulfill its child welfare mission.
But she said S.58, in its current form, speaks volumes about whose interests are being prioritized in Montpelier.
“S.58 is really designing a system for the workforce rather than designing a system for those we’re serving,” Higbee said. “And I think it’s really important to name that.”
The House and Senate are expected to hold final votes on S.58 before the end of this week.
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