In 2019, 16 children under the age of 12 were charged with a crime in Maine, three of them younger than 10. In 2020, eight children under 12 faced criminal charges. While some were serious crimes such as arson, most would be misdemeanors for adults, such as assault or theft.

Legislators are considering a proposal that would bring those numbers to zero by setting the minimum age of criminal prosecution at 12 years old. As of last year, Maine would be one of only three states to do so, according to data from the National Juvenile Defender Center.

“There are holes in our juvenile justice system that this bill would fix,” said Rep. Victoria Morales, a Democrat from South Portland who sponsored the bill. “Since our juvenile code was first written in the 1970s, there has been a tremendous amount of scientific research about adolescent brain development that shows us there are better ways than incarceration to teach our kids accountability and responsibility. The more we are able to keep kids out of prison, the more chances they and their communities have of having healthy outcomes.”

The bill – L.D. 320 – is part of an ongoing effort to reform Maine’s juvenile justice system. In recent years, the state engaged a task force and hired a national policy group that published a 160-page report with recommendations for change.

This bill would codify some of those ideas by eliminating the mandatory minimum of one year for those who are committed to the state’s only youth prison. It would also give young people access to attorneys while they they are committed, a guarantee that is not currently in place, and establish more frequent judicial review in hopes of minimizing lengths of stay. And it would discourage placing children younger than 14 at Long Creek Youth Development Center in South Portland.

A similar measure died last year when the COVID-19 pandemic shut down the Legislature. So did a bill that would have gradually reduced the population at Long Creek. Lawmakers gave initial endorsements to those measures last year and have resurrected them this year. No one testified against L.D. 320 during the public hearing before the Judiciary Committee on Wednesday, but youth organizers repeated their call for more dramatic and urgent action, including shutting down Long Creek.

“This summer, thousands of Mainers protested in solidarity with Black lives, demanding the closure of Long Creek,” said Skye Gosselin, a community organizer with Maine Youth Justice. “This legislation takes a step in responding to the demands of formerly incarcerated youth, but fails to address the violence currently taking place in Maine’s juvenile justice system. … There is no justification for sending young people to prison, traumatizing them for the rest of their lives and tearing apart communities.”

Supporters of the bill said Wednesday that it would reduce the number of children in the criminal justice system and create better protections for children who are incarcerated. Backers included representatives from Disability Rights Maine, the American Civil Liberties Union of Maine, the Maine Commission on Indigent Legal Defense, the Maine Judicial Branch, the Maine Coalition Against Sexual Assault, and juvenile defense attorneys and other advocates. Their remarks included references to research about brain development, adverse childhood experiences and the negative impacts of incarceration on young people.

They also repeatedly cited the findings of the Center for Children’s Law and Policy, the national group that studied Maine’s system, which found 53 percent of youths at Long Creek were there because their home environment was unsafe and the state lacked an alternative place to house them. And roughly three-quarters of those held at Long Creek for more than 30 days were awaiting placement in community-based programs, according to the study.

Mary Bonauto, the civil rights project director at GLAD, recalled tragedies in her experiences with Long Creek. She described the phone call she received when a transgender teenager died by suicide there in 2016. Her voice sounded thick with emotion when she talked about working with a young person who spent nearly two years at Long Creek and then took his own life just months after his release. She urged the committee to consider the impact of months of confinement.

“We have to be extraordinarily careful when we think about ordering secure confinement,” Bonauto said.

One person also recalled the 11-year-old boy whose mother said guards at Long Creek slammed him into a metal bed frame and knocked out two of his teeth in 2017. The Maine Department of Corrections ultimately settled her excessive force claim for $250,000.

Gosselin, from Maine Youth Justice, shared her own experience. She said she was arrested for the first time at school when she was 12 and was sent to Long Creek at 14.

“I should never have been incarcerated so young,” Gosselin said. “My relationship with education was harmed when I was arrested at school. … Seven years later, I’m healing my relationship with education, but not because of Long Creek supporting my growth, but because of my commitment to make sure no young person has to go through the experience I did.”

Cumberland County District Attorney Jonathan Sahrbeck said he supports the bill, including the change to bar prosecution of children younger than 12. He described that provision as “a leap of faith” because it would require the Department of Health and Human Services to provide more services to those children, but he and other district attorneys recognize that the criminal justice system can traumatize a child.

 

“We are recognizing that there is a need to take that out of our hands and for other state agencies to step up,” Sahrbeck said.

The National Juvenile Defender Center reported that 22 states and territories have set a minimum age for prosecution in juvenile court. California and Massachusetts set that threshold at 12 years old; others set it lower.

An attorney from the governor’s office testified neither for nor against the bill, although he did offer some reservations. He questioned what would happen if a child younger than 12 posed a danger to others, but he said the administration was willing to work with legislators to identify a solution to that problem.

Rep. Laurel Libby, a Republican from Auburn, also asked Morales how the legislation would affect the case of an 11-year-old Auburn girl who was recently charged with attempted murder for allegedly stabbing her father. She was detained at Long Creek but has since been released to a family member with a safety plan.

Morales acknowledged those incidents do happen, even if they are rare. She said young children involved in those cases often end up in the custody of the Department of Health and Human Services, not the Department of Corrections, because they are not competent to stand trial.

“The criminal justice system just isn’t the appropriate place for them. … When a child is either experiencing abuse or neglect, or exhibiting that behavior themselves, they really are children that need very similar services,” Morales said. “The way the system is set up now, one of those children gets services. The other child goes to prison. So that’s what this bill is trying to fix.”

In 2019, the state filed 1,339 cases against juvenile defendants, according to data from the Maine Judicial Branch. Last year, even as COVID-19 curtailed court operations, that number was 934. Many of those young people are now diverted from Long Creek, and the population at that facility has been declining for years. In 2010, the average daily population was 100 committed youth and 26 detained. In 2020, the average was 26 committed and 11 detained.

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