What About the Children: Why Our Justice System is Failing Marijuana Involved Youth

Last time in What About the Children, I discussed some of the different ways marijuana prohibition affects children. Today, I want to look deeper into the ways a criminal conviction can affect a child’s life.

Before we can fully understand how marijuana use affects a child within the criminal justice system, I think it is useful to examine, generally, how the juvenile justice system works and how it is different than adult criminal court. One of the chief differences between juvenile court and adult court is the court’s ostensible purpose. In adult court, retribution, colloquially “punishment,” is allowed to play a large role, while rehabilitation takes a back seat. In juvenile court, rehabilitation is the primary purpose. The juvenile court recognizes that the brain of a child is not fully developed, that juveniles are not as culpable as adults who commit the same crimes, and that therefore when juveniles commit crimes and find themselves in the care of the court, it is the court’s duty to do everything they can to rehabilitate them and ensure they eventually become contributing members of society. One of the ways this sentiment is reflected is in the naming of court proceedings in juvenile court. Juveniles are minors or juveniles, never defendants; they are not tried for cases, but appear for petitions; they are never found guilty, but rather their petitions are found true (if by trial) or the allegations admitted (if by plea); finally, they are never convicted as criminals, but rather their behavior is found delinquent. Functionally, the change in terms is fairly surface level. Juveniles are often still referred to as being “convicted” or “having a record; and critically, even though they “admit petitions” rather than “plea guilty to a charge,” the offense they admit to is still referred to as a felony or misdemeanor. Finally, a difference between the juvenile justice system and the adult criminal system that is more than just for show, is that juveniles never appear before juries. It would be mostly impossible and definitely impractical for a jury of juvenile peers—aka other juveniles—to be assembled to hear a petition, and there are additional privacy and fairness concerns with allowing an adult jury to hear a juvenile case.

To be subject to the jurisdiction of the juvenile court, juveniles must be found “fit” for the juvenile system. This occurs by way of a fitness hearing, wherein the judge considers factors including the sophistication of the crime, the minor’s potential to be rehabilitated, and the minor’s criminal history, to determine if the child is “fit” for the juvenile court system. If a child is found unfit for juvenile court, his/her case can be filed in adult court. There are also a number of crimes for which a district attorney can bypass a fitness hearing and file the minor’s case directly in adult court. This practice, called “direct filing,” is generally reserved for violent crimes, and in California was established by Proposition 21, a ballot initiative passed by voters in 2000 in an effort to combat the steep rise in gang crimes. Direct filing, while a contentious issue and worthy of discussion, doesn’t substantially affect marijuana crimes since only violent and sexual cases may be directly filed in adult court, so we needn’t consider it when discussing how juveniles are affected by marijuana convictions.

So, what happens when a minor is found delinquent in juvenile court or admits to drug charges? It’s complicated.

judicial flow chart

This chart is available on the Santa Clara County Court website. It is intended to inform parents about the judicial process their child may be subject to. Frankly, it’s overwhelming. I work in juvenile court several days a week and even I find it confusing. For the purposes of this article, the important points can be summarized as follows: If the crime is an infraction, the youth (or more practically, the youth’s parents) will have to pay a money fine. If the crime is a misdemeanor, the youth will likely be subject to some fines and a period of probation. If the crime is a felony, the youth may be put on probation, placed on a DEJ program, or sent to a 6 to 8 month ranch program. Each of these programs has different requirements and interacts with marijuana law in their own way.

The ranch programs are residential facilities where youth go to receive behavioral and medical therapy, attend school and other programming, and generally be rehabilitated. Depending on how the youth performs at the program, the youth can be released from the program as early as 6 months after s/he began or as late as 8. Ranch programs are California’s highest security program and the last stop before being sent to the Division of Juvenile Justice, formerly the California Youth Authority, which is essentially a prison for those convicted of crimes before their 18th birthdays. DJJ may retain a youth in her facility until she is as old as 25. A youth may be expelled, suspended, or forced to restart a ranch program if he is caught behaving feloniously, aka committing crimes, or if he breaks any number of program rules. A popular way to get kicked out of the ranch or forced to restart is by sneaking in and using drugs.

If the felony the youth admits to is the youth’s first felony, DEJ, or Deferred Entry of Judgment, allows the youth the opportunity to avoid a criminal record if she satisfactorily completes a period of intensive probation. A youth is eligible for DEJ, generally, if he doesn’t have a prior criminal history and if his offense isn’t a “707(b)” offense. 707(b) is a statutory list of mostly violent crimes, including rape, murder and torture. Once the court agrees the youth is eligible, the probation department makes a recommendation on whether they think the youth is suitable for DEJ; the department considers things like the youth’s maturity and family situation – essentially all the factors that would indicate the youth is likely to succeed in the DEJ program. DEJ generally requires weekly or biweekly drug testing, enrollment in therapeutic or education programming, and quarterly check-ins with the court to ensure the youth hasn’t picked up any new cases. If, after a year, the court finds the youth to have satisfied the requirements of the DEJ contract, her record is expunged and she is deemed never to have been found delinquent. If the court finds the youth did not satisfy the terms of the DEJ contract, the youth may be placed on formal probation. Again, a popular way to fail DEJ is with dirty drug tests.

The story goes like this: Diego admits to a charge of burglary when he was caught breaking into cars and stealing iPhones and GPS systems. It’s his first felony, and he is found eligible for DEJ. The entire ordeal is a wakeup call for Diego, and he puts in a lot of effort during the year he is on DEJ. His grades improve, he’s on the basketball team, his relationship with his family is fantastic, he attends programming and victim awareness courses, and he doesn’t commit any new crimes. However, he still smokes pot a couple of times a week. At his last check-in, the judge declares that because he hasn’t stopped smoking marijuana despite an order from the court, he has broken his DEJ contract. The felony is entered onto his record, and Diego is placed on formal probation. Despite vastly improving himself since admitting to his crimes, and even though drugs played no role in his offense, he will now have a felony on his criminal record.

But Diego’s story is not over, since he is now under the supervision of formal juvenile probation. Formal juvenile probation has requirements similar to DEJ, requiring the youth to be clean and sober and not commit any new crimes at the risk of being sent back to juvenile hall or a ranch program. However, unlike DEJ, which operates under the theory that only youth who remain entirely law abiding for a year should receive the gift of an expunged criminal record, formal probation’s purpose is to assist in rehabilitation. This means that a youth who is on formal probation may also be required by the court to attend therapeutic programming, ranging from family counseling to residential drug treatment. Unlike DEJ, however, the youth may be required to remain in a program, like drug treatment programs, until they successfully completes the program. This can take quite a long time if the youth insists on continuing to use drugs. Formal probation is generally discretionary, meaning the court can extend probation supervision at will depending on how the youth is performing. The juvenile court can keep a youth on formal probation until he is 21. Any youth who admits to a misdemeanor, and many youth who admit to felonies, can be subject to formal probation. So, while simple possession of marijuana will not land a youth under the supervision of the court, since it is only an infraction, a myriad of other marijuana related crimes could. And as you may begin to suspect, the court is not very sympathetic to youth who use marijuana while on probation. In Diego’s case, a number of scenarios may unfold while he is on formal probation if he continues using marijuana. He may be subject to the jurisdiction of a judge and probation officer who are less concerned with his marijuana use (remember, he’s become a high achieving student and star athlete; on many fronts he is having some very successful years) and after two years probation may end. However, if a stricter judge hears Diego’s case and/or he has a stricter probation officer, his drug use may force him into additional treatment programs. He may even be subject to a residential program, which could remove him from his family and school for more than four months at a time.

Diego’s story, while invented for this article, is not uncommon, and I have witnessed every aspect of it play out in various juvenile cases. It also highlights some of the collateral issues of marijuana convictions. One issue that is particularly salient for youth under 18 is that even minor misdemeanor convictions can cause the youth to be removed from their family and community for quite significant periods of time. (Do you recall being 16? EVERY period of time is significant!) Removal from one’s family can cause stress on even the strongest, most supportive family. Removal from school means a youth’s education is disrupted, even if alternative school programming is offered wherever the youth is housed. Spending time in juvenile hall or other facilities also means youth are associating with other criminally active minors. Finally, spending time in juvenile hall, a ranch program, or rehab, despite the juvenile court’s best rebranding efforts, has a profound effect on a youth’s self-awareness. They are no longer considered a science nerd, football jock, or budding rock star, but rather, they see themselves as the system they are subject to: as a delinquent, criminal, and screw-up.

This problem of personally identifying with the label they are given, often referred to as “labeling theory,” is the subject of numerous books, college courses, and Ph.D. theses. The basic explanation of labeling theory is that we are or become what we are labeled, especially if those labels involve deviant or abnormal behavior. For teenagers in particular, labels and names can be particularly influential. The theory as applied says that youth who are labeled criminal or delinquent because of a marijuana conviction are more likely to engage in other, non-marijuana related, criminal activity. Labeling theory provides, to me, one of the most convincing arguments for legalizing marijuana for adult use. If marijuana is no longer so taboo that it makes anyone who engages with it considered a criminal in the eyes of the law, it will serve as less of a gateway for our youth. I recognize that this argument relies on a lot of unfounded extrapolation, but I firmly believe it holds water. Consider that teenagers who smoke cigarettes or drink alcohol, while still breaking the law and engaging in unhealthy behavior, are considered more as “rebels” by their peers rather than criminals. Marijuana is often referred to as a “gateway drug,” but there is insufficient evidence of a causal relationship to prove that it is marijuana use that compels individuals to use harder, more damaging, and more illegal drugs. What we do know, and what countless highly esteemed scholars have accounted for, is that labeling someone a criminal makes them more likely to commit crime. By regulating marijuana for legal adult use, we have the potential to protect our children from the harmful labels initiating them into our criminal system.

One response to “What About the Children: Why Our Justice System is Failing Marijuana Involved Youth

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