Editorial: How young is too young for jail? California doesn’t have an answer, but it should

When is someone too young to go to jail? Even if it’s a juvenile jail or a so-called probation camp, surely such institutions are not the right place for 8-year-olds, no matter what crimes they may have committed. But how old is old enough? Is it 9? 10? What’s the age threshold for jail?

Unlike 18 other states, California doesn’t have one. A child of any age can be incarcerated here, and it’s not just theoretical. Some prosecutors and judges still see juvenile halls and probation camps as the best places to straighten out preteens. In 2016, hundreds of California children younger than 12 went to delinquency court, and 26 of them were sent on to probation camp to live among teenage offenders.

That strategy isn’t supported by follow-up studies. The data show better results — improved conduct and a higher likelihood of success in adulthood — when young offenders are diverted away from the justice system altogether and instead treated for the mental illness, trauma or other factors that may underlie their anti-social and criminal behavior.

As a result, fewer children are being sent to delinquency court and on to detention facilities. Because of the resulting decline of the probation camp population, the majority of such facilities in L.A. County may well close in the next few years. Those that remain are likely to follow the model of Campus Kilpatrick, a locked facility for juveniles which has been rebuilt and reimagined to emphasize mental health care and the role that family trauma and dysfunction may have played in producing criminal behavior.

But even camps designed along the lines of Kilpatrick are not the right places for preteens. If children that young are to enter the justice system at all, California should ensure that they go to the right court — not delinquency court (where judges can send juveniles to probation camp) but dependency court (where judges consider the entire family and decide whether it’s best to keep the child with his or her parents or find other options) or mental health court. Even then, a judge may determine that the young offender should be locked up, if doing so is necessary for public safety. But the locks would be on the doors of treatment facilities, not jails.

That’s how they do it in states that recognize that jail — even juvenile jail — is no place for children, no matter what they have done. What states? Texas, Louisiana, Arkansas and Mississippi, among others. This isn’t a soft-hearted liberal thing.

Lawmakers have been trying to get California to set an age threshold for jail, but the pushback — especially from prosecutors — has been fierce. It may be due to leftover sentiment from the time, not so long ago, when many juvenile offenders — especially those from nonwhite families — were branded super-predators, irredeemable and an existential danger to society. It may be instead that prosecutors want to be part of the solution and firmly believe, honestly but incorrectly, that locking young children away for long periods of time offers the best prospect for better behavior and better lives.

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Although the number of referrals to probation camps is falling, some California counties still do have high rates of referral, even for preteens. Two 11-year-olds from different counties may commit the same crime but will have different fates — “camp” and high likelihood of recidivism and a life in the criminal justice system for one, versus mental health or dependency court and a higher likelihood of effective treatment for the other.

Santa Clara County has been operating with a 12-and-over threshold for delinquency court since 2010. That’s the standard that would be set statewide by SB 439, a bill by Sen. Holly Mitchell (D-Los Angeles), sponsored by the Children’s Defense Fund and other juvenile justice advocates. It has passed out of the Senate and now faces a key vote in the Assembly.

Gov. Jerry Brown and lawmakers already budgeted $37.3 million for the current fiscal year for community-based organizations to provide youth services as alternatives to probation. It is one of a number of steps California has taken in recent years to make juvenile justice smarter, more effective and, in the long run, less costly. There are a few big items left on the to-do list. Passing Mitchell’s bill is one of them.

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