Lawmakers and advocates seek to keep youth offenders from adult criminal system through juvenile justice reforms
A wide variety of state and federal laws and policies treat minors differently from adults.
People must be 21 to buy alcohol. The youngest someone can be to enlist in the military is 17. In Nevada, a person must be 16 to apply for a full driver’s license.
The differences have been perpetuated by case law, as well. In Roper v. Simmons (2005), the U.S. Supreme Court ruled the death penalty unconstitutional for minors, and in Graham v. Florida (2010), the court held that life-without-parole for non-homicide crimes is an unconstitutional punishment for minors.
“I think there's more realization now that children aren't able to make decisions the way adults do,” Ohrenschall said. “And trying to hold children accountable to the same standards we hold adults is not fair.”
Lawmakers this session are seeking to further separate the juvenile justice system from the adult criminal justice system at nearly every level, with legislation aimed at reducing referrals into the system, promoting rehabilitation programs and housing young offenders separately.
“I think the big effort on our part was to try to either keep kids from getting in the system if we can,” Ohrenschall said. “And if they are in the system, to try to see if there can be programs that can keep them closer to home, closer to their community.”
The efforts of Ohrenschall, who chaired the Legislative Committee on Child Welfare and Juvenile Justice during the interim, and others have made the 2021 legislative session a particularly active one for the subject. More juvenile justice bills were introduced this year than in each of the 2019 and 2017 sessions.
Though the 2017 session featured sweeping legislation such as a bill that established the Juvenile Justice Oversight Commission and another that enacted the Juvenile Justice Bill of Rights, Holly Welborn, policy director for the ACLU of Nevada, said juvenile justice issues are often overlooked — adult criminal justice bills on the death penalty and police reform have been at the forefront of the Legislature this session.
“The issue of juvenile justice really gets pushed down in the broader conversation … amongst the very controversial adult criminal justice reform topics,” Welborn said.
Many of this year’s juvenile-focused bills have received broad support. Bills aimed at easing penalties for youth cannabis or alcohol possession, expanding record sealing for youth offenders and creating a new Miranda warning for minors all passed unanimously out of the Assembly.
“I think that a lot of my colleagues are concerned about the school to prison pipeline,” Ohrenschall said. “They want to try to see reform and see as much done as possible that can divert children from getting caught up in the system.”
Below is a roundup of the ongoing efforts to reform the juvenile justice system this session.
Reducing points of contact and racial disparities
Nevada’s Juvenile Justice Oversight Commission — a body of 20-plus juvenile justice experts and stakeholders — has found that “African American youth are overrepresented at almost every contact point” in the juvenile justice system.
The commission’s racial and ethnic disparities report for the 2020 federal fiscal year, which ended September 30, 2020, found that while less than 15 percent of the state’s youth population was African American that year, the group made up more than 32 percent of the youth arrests. As the commission and the Division of Child and Family Services actively engage in efforts to reduce those disparities, lawmakers have introduced multiple bills aimed at helping children of color.
AB158, a bill from Assemblywoman Daniele Monroe-Moreno (D-North Las Vegas), would significantly lighten penalties for minors who purchase or possess alcohol or cannabis, including prohibiting jail time and fees for first and second offenses.
In an interview with The Nevada Independent, Monroe-Moreno said she brought the bill forward on behalf of A’Esha Goins, an advocate in the cannabis industry and the mother of a young Black man, who “had seen how other young kids of color have been charged with possession of marijuana and or alcohol.”
Monroe-Moreno discussed the importance of being constructive with children who make mistakes, rather than strictly punitive, and recalled her own experiences growing up.
“In our household growing up, you got three chances,” she said. “If you were stupid enough to do something that third time, then you really got in trouble, but the first time was my mom explaining why this behavior was wrong.”
For people under the age of 21 found guilty of a misdemeanor for possessing, consuming or purchasing alcohol or possessing less than one ounce of cannabis, the bill would replace misdemeanor penalties of up to six months jail time and up to a $1,000 fine with penalties of up to 24 hours of community service and a requirement to attend a meeting of a panel of victims injured by a person who was driving under the influence of alcohol or a controlled substance.
The bill would also revise the penalties for a second violation to require up to 100 hours of counseling or participation in an educational program, support group or treatment program.
The measure is intended to reduce the number of minors who enter into the state’s criminal justice system.
In 2019, more than 8,000 youth were arrested in Nevada, with possession of marijuana being the second most common charge. In 2020, the number of youth arrests declined by more than 2,000, and possession, sale, or use of an illegal drug dropped to the fourth most common charge.
“I do think this bill will help a lot of kids not get caught up in the system,” Ohrenschall said during the hearing. “And possibly just get the guidance they need without having to either be in court or in a detention facility.”
AB158 STATUS: The bill passed unanimously out of the Assembly on April 20 and awaits a vote on the Senate floor.
In the oversight commission’s racial disparities report, the group highlighted specific types of race-focused training for officers and dispatchers as a way to reduce disparities at the front end of the justice system. Though the report found that “police officers statewide generally receive training in racial profiling and implicit bias,” a bill this session is aimed at expanding that training.
SB108, created by the Nevada Youth Legislature, a program that allows a group of high school students to present one bill to the Legislature each session, would require all employees who interact with children in the juvenile justice system in the state to complete implicit bias and cultural competency training once every two years.
“It is urgent more so now than ever to address the inequality faced by minority youth within the Nevada juvenile justice system,” youth legislator Julianna Melendez said during an April 23 hearing. “I personally have friends who have been targeted by school police and treated differently compared to our white counterparts, specifically because of the color of their skin.”
Another youth legislator, Melekte Hailemeskel, shared how her worldview changed following the death of Trayvon Martin.
“From that day on, I began to see the world for what it truly was. My heart filled with fear every time my father stepped outside the house. I transitioned to fearing the police rather than feeling protected by them,” Hailemeskel said. “This bill gives the youth the opportunity to live life without fear of being victimized by implicit bias.”
The original version of the bill from the Youth Legislature would have mandated the training for all people employed in the criminal justice system; however, the amended version applies only to those employed in the juvenile justice system, such as juvenile public defenders, youth parole officers and school police officers.
The training would include explanations of the negative effects of implicit bias and the importance of understanding implicit bias, as well as cultural competency information focused on sexual orientation, gender, race, ethnicity and religion.
Kathryn Roose, a deputy administrator at the Division of Child and Family Services, said that the bill is aligned with the division’s goal of addressing racial disparities and noted that the agency would already have a process in place for implementing the required training.
SB108 STATUS: The bill passed 20-1 out of the Senate in mid-April and faces a possible vote in the Assembly.
New Miranda warning for minors
As other ongoing juvenile justice efforts attempt to limit entries into the system, Assemblyman Edgar Flores (D-Las Vegas) has introduced a bill that he hopes will help youth offenders better understand their rights when they are facing arrest.
AB132 would establish a plain-language Miranda warning system for minors. In the expanded list of disclosures, a police officer would have to say the following to a minor, before starting an interrogation:
- You have the right to remain silent, which means you do not have to say anything to me unless you want to. It is your choice.
- If you choose to talk to me, whatever you tell me I can tell a judge in court.
- You have the right to have your parent with you while you talk to me.
- You have the right to have a lawyer with you while you talk to me. If your family cannot pay for a lawyer, you will get a free lawyer. That lawyer is your lawyer and can help you if you decide that you want to talk to me.
- These are your rights. Do you understand what I have told you?
- Do you want to talk to me?
The original Miranda warning was established through the U.S. Supreme Court case Miranda v. Arizona (1966). The case held that police cannot question defendants in custody until they are made aware of their rights. Once those rights have been explained, defendants can voluntarily, knowingly and intelligently waive their rights and agree to answer questions or make a statement.
During a hearing of the bill in early May, Flores said the bill came from the idea that children typically do not knowingly and intelligently waive their rights because they do not have a full understanding of what rights they are entitled to.
Flores explained that he tested the new warning language used in the bill by giving it to teachers at Manuel J. Cortez Elementary School and the K-12 school, West Preparatory Academy, both located in Las Vegas, and having those teachers read both the current and proposed language to children.
“This language that is in Assembly Bill 132 seemed to really go further into the understanding and comprehension of a child,” Flores said during the hearing.
Flores also said that the case law established by Miranda v. Arizona only set the bare minimum and that the state can go beyond that minimum by creating a new set of warnings that is easier for children to understand.
John Piro, a public defender in Clark County, explained that many police officers carry cards that have the Miranda warning language on them, so officers would not need to memorize all of the revised wording.
Piro also said that even if officers are unsure whether the person being taken into custody is an adult or minor, they could recite the new Miranda warning for minors because the revised language fulfills the legal requirements for all people.
AB132 STATUS: The bill passed unanimously out of the Assembly on April 19 and awaits a possible vote on the Senate floor.
Limiting direct file
Juvenile justice advocates have long sought to keep youth offenders within the juvenile system and out of the adult criminal justice system — for certain crimes, a prosecutor may override the jurisdiction of a juvenile court by filing charges against a minor in an adult criminal court in a process known as “direct file.”
AB230, sponsored by Assemblyman C.H. Miller (D-North Las Vegas), would prohibit the mandatory direct file process for children — aged 16 and up at the time of the offense — who were charged with sexual assault involving violence or an offense or attempted offense involving the use or threatened use of a firearm.
During a hearing of the bill in April, Miller called the measure “another big step forward in giving some of our most troubled youth a chance to live a productive life.”
The bill would still permit jurisdiction of the adult court for cases that do not involve “delinquent” acts, such as murder or attempted murder (if the offender was at least 16 years old), some felonies and any offense committed after the person had been convicted of a previous criminal offense.
Miller said that direct file laws were originally created as a response to narratives about heightened youth crime in the 1990s, and he called on other lawmakers to “right the wrongs” created by those laws.
“Much of this legislation stemmed from the devastating narrative that a monstrous wave of mythical creatures known as ‘super predators’ — impulsive, remorseless, elementary school youngsters who packed guns instead of lunches would take over,” he said at a March hearing. “Today, we all know that narrative wasn't true. And it led to more problems than it could have ever solved.”
Kelly Jones, a public defender in Clark County, said that youth sent to adult facilities are more likely to be victims of sexual abuse and to commit suicide and have higher rates of recidivism.
Jagada Chambers, a rights restoration coordinator with a civic engagement advocacy group called Silver State Voices, also pointed out the disparate impact of direct file. Chambers said that of the 219 youths directly filed to the adult system in Clark County since 2013, roughly 200 were children of color.
However, the bill still faces an uphill battle because of its associated costs. A fiscal note from the Department of Health and Human Services states that more resources would be needed to house the increased number of minors that would no longer go to the Department of Corrections. The corrections department estimates the bill would save the agency close to $300,000 over the upcoming biennium.
The estimated cost to Clark County, the only county in the state to have direct files recorded in the past five years, though, would be more than $6.5 million over the next two years — that cost would come from a combination of increased staffing, mental health resources, food and nursing.
The bill also would require the Legislature’s interim juvenile justice committee to conduct a study on the need for and cost of housing young offenders awaiting certification for criminal proceedings as an adult. Miller said the study is necessary because the infrastructure and resources necessary to completely eliminate direct files are not currently available in the state.
AB230 STATUS: Though the measure is exempt from legislative deadlines because of its fiscal impact, the bill has not been discussed since its April 21 hearing. There has been broad support for the measure, however, as 30 lawmakers have signed onto the bill as primary sponsors or co-sponsors.
Jurisdiction over juvenile cases
A bill introduced on behalf of the Nevada Supreme Court, SB7, would also contribute to transferring greater jurisdiction to the state’s juvenile courts.
The bill would ensure that a juvenile court has exclusive jurisdiction in cases in which it is alleged that a minor who is the adverse party to an order for protection has violated a condition of the order. A protective order is typically issued to protect a certain person or entity from harassment, abuse or sexual assault.
The juvenile court would only maintain jurisdiction for violations that involve delinquent acts, meaning some acts, such as murder, would not fall under the jurisdiction of the juvenile court.
During the initial hearing of the bill in early February, John McCormick, an administrator for the state’s Supreme Court, said the legislation is meant to establish statutory clarity where none exists and create a uniform system for jurisdiction across the state.
SB7 STATUS: The bill passed unanimously out of the Senate in mid-April and next awaits a vote on the Assembly floor.
Changes to juvenile housing
Youth offenders certified as adults are housed by the Department of Corrections at Lovelock Correctional Center, a policy that has long been a concern for youth justice advocates, such as Welborn.
“My very first day with the ACLU of Nevada, the first call that I took was a call with a national organization to talk about the boys who are housed in Lovelock and the conditions that they're living in, the inhumane conditions that they're living in, how inappropriate those conditions are for youth,” Welborn said.
Two different Department of Justice investigations announced this year have highlighted issues with the state’s methods of housing youth offenders. One investigation is examining whether staff at two state correctional facilities — Summit View Youth Center and Nevada Youth Training Center — use pepper spray in a manner that violates youth’s rights under the Constitution. The other investigation is examining whether the state unnecessarily institutionalized children with behavioral health conditions in violation of the Americans with Disabilities Act.
As youth advocates and lawmakers seek to improve housing conditions for youth offenders, several bills introduced on behalf of the juvenile justice committee this session would make significant changes to housing policies.
One bill, SB365, would require the state to develop a pilot program for housing youth offenders convicted as adults in a child and family services division facility, rather than in an adult correctional facility.
Welborn said that legislation and other bills that address youth housing are important because of the differences between minors and adults and the time it takes for the youth brain to fully mature.
“Most of these young people will be released at some point in time,” she said. “So ensuring that they have the adequate therapeutic services, educational opportunities, exercise, etc. for their full healthy development, in order to ensure that they will be successful when they leave. And that has to be the right types of interventions and treatment that is age appropriate.”
In past years, there have been roughly 20 youth offenders, at any given time, held at the Lovelock Correctional Center because they were certified as adults in the criminal justice system. The pilot program would move eight of those offenders to the Summit View Youth Center, operated by the child and family services division.
The division estimates the financial impact of the pilot program to be more than $2.3 million over the 2021-23 biennium, with costs based on the projected need to add more beds and staff.
SB365 STATUS: With the costs attached to the bill, the measure next faces a hearing in the Senate Finance Committee; however, no action has been taken since the bill was passed by the Senate Judiciary Committee on April 8. There are no future hearings scheduled for the legislation.
Two other bills would work collectively with SB365 to address housing for youthful offenders.
SB357, a bill from the juvenile justice committee, would require the Department of Corrections to track expenses related to housing youth offenders, meaning the department would need to report all costs associated with the minors living at Lovelock Correctional Center.
SB356, another bill from the interim committee, would require the oversight commission to study the feasibility of housing youthful offenders, who are between 18 and 24 years old and who will be released from prison before reaching 25 years of age, separately from offenders who will continue to be incarcerated past age 24.
“It's also tough to go from taking a kid from the juvenile system and then shocking them into this very hardened adult system, when there's really something in between that works better for those young offenders,” Welborn said. “So that's why all of these bills are a part of a lot larger, broader conversation.”
SB357 STATUS: The bill passed 20-0 out of the Senate on April 13 and faces a potential vote on the Assembly floor.
SB356 STATUS: Though the bill is exempt from legislative deadlines because of its small financial impact, the measure has not been picked up by the Senate Finance Committee since being passed by the Judiciary committee on April 8.
Treating youth found incompetent
One bill from the juvenile justice committee, SB366, would address housing for a narrow portion of youth offenders: those ruled incompetent.
Roose, from the child and family services division, explained that the state does not have in place a facility to help restore children to competency. In a note attached to the bill, Ross Armstrong, administrator of the division, wrote that the agency “does not have the qualified staffing to serve the population with developmental disabilities” — children ruled incompetent typically suffer from an untreated mental illness or developmental disability.
“This is a really complex bill on a complex service and system that would need to be developed in collaboration with sister agencies,” Roose said. “It's just a system that doesn't really exist in Nevada. But, again, we have the opportunity to study and maybe build a solution.”
The actual impact of the bill remains unclear because of differences between the latest version of the bill and comments from the division. However, in line with Roose’s comments, a fiscal note from the division indicates the bill would fund a study to determine the resources needed for rehabilitating incompetent youth offenders.
SB366 STATUS: Though a fiscal exemption has kept the bill alive, the measure has not been acted on since passing out of the Senate Judiciary Committee in early April.
Diverting more youth
One other bill from the juvenile justice committee in line with the efforts to improve housing, SB385, is meant to keep more youth offenders out of the deep end of the juvenile justice system and out of state-controlled correctional facilities.
Though the measure does not seek to directly divert more youth offenders away from state facilities, it would require that the division conduct a study during the interim on which activities and programs help reduce the number of minors committed to state facilities.
“The spirit of this bill is to take savings in our DCFS facility budget, through savings that we achieve through reducing the number of youth coming to us,” Roose said. “And take those funds and divert them to the counties to build up their service array, with the theory being that the more resources that the counties have to provide the services to youth that they need, the less likely they will ever come into a DCFS facility.”
SB385 STATUS: The bill was approved by the Senate Finance Committee on May 12 and next awaits a vote on the Senate floor.
As lawmakers continue to address the “school-to-prison pipeline,” a bill from Assemblywoman Lisa Krasner (R-Reno) would help some juvenile offenders avoid the repercussions of having a criminal record when they become an adult.
The bill, AB251, would establish provisions for a juvenile’s record to be automatically sealed at age 18 and allow those who are 18 or older to petition the court for the expungement or destruction of their juvenile record for any infraction, arrest or crime that was committed as a child that was equal to a misdemeanor or less.
“Young offenders may face serious consequences and obstacles as a result of their juvenile record,” Krasner said during a hearing of the bill on May 10. “A juvenile adjudication can prevent a young person from receiving financial aid for higher education, admissions to colleges, getting a job, joining the military or being admitted into certain licensed professions.”
Krasner called the measure a chance to provide young people with “a fresh start and a second chance,” pointing out that minors are unable to make logical, informed decisions in stressful situations because their brains are not yet fully developed.
AB251 STATUS: The bill passed unanimously out of the Assembly on April 20 and awaits a vote in the Senate.
Structural changes within the juvenile justice system
Though much of the juvenile justice legislation this session focuses on youth offenders themselves, lawmakers also have introduced a few bills that affect the greater justice system and the operations of the child and family services division.
AB448, a bill from the Governor’s Finance Office, would designate criminal investigators employed by the division as category II peace officers. Those investigators were not previously categorized as peace officers in statute. Other officers designated under category II include other criminal investigators, youth parole officers and school police officers.
AB448 STATUS: The measure is exempt from legislative deadlines; however, it has not yet received a formal hearing in any Assembly committee.
Another pair of bills would affect workers within the juvenile justice system. SB21, a bill introduced on behalf of the division, would create a uniform process for background checks for employee hiring across different juvenile agencies and facilities in the state. The other bill, SB317, introduced by Ohrenschall, would allow juvenile justice employees to receive back pay for unpaid leave administered during an investigation, if the employee is found not guilty or has their charges dismissed.
SB21 STATUS: The bill passed unanimously out of the Senate on April 20 and next faces a potential vote on the Assembly floor.
SB317 STATUS: After passing out of the Senate on 12-9 vote in mid-April, the bill awaits a vote in the full Assembly.
SB132, sponsored by Sen. Keith Pickard (R-Henderson), would appropriate $10 million from the General Fund to the Eighth Judicial District in Clark County for support services, including educational support services at The Harbor, a juvenile justice assessment center.
SB132 STATUS: The bill is exempt from legislative deadlines but has not yet received a hearing.
Future justice efforts
Four years ago, lawmakers passed AB472, which established the Juvenile Justice Oversight Commission (JJOC). This session, lawmakers are considering a bill that would, as Roose described the measure, “put a spotlight on the great work of the JJOC.”
SB398 would require the commission to submit a report to the Legislature with an update on the progress of its 5-year strategic plan. The report would include recommendations for any legislation related to both the plan and disparities in the juvenile justice system, such as racial disparities.
SB398 STATUS: The bill passed out of the Senate on a 20-0 vote in mid-April and next faces a possible vote in the Assembly.
While SB398 is meant to bring forward more legislation aimed at improving the juvenile justice system, another bill discussed this session could hamper reform efforts, according to Welborn.
AB443, an Assembly Legislative Operations and Elections Committee bill, would overhaul the structure of interim legislative committees. The bill would, in part, eliminate the interim juvenile justice committee and instead establish a joint interim judiciary committee.
Welborn expressed concern that the initial version of the bill could draw attention away from the work being done to help young people. However, an amended version of the measure would require the interim judiciary committee to allocate five bill draft requests specifically for juvenile justice issues.
“I fear that we lose that momentum, if we abolish that interim committee, or at minimum, don’t establish … some sort of subcommittee to handle juvenile justice issues,” she said. “If we don't, then they're not going to get the attention they need.”
AB443 STATUS: The measure is exempt from legislative deadlines and was last passed out of the Assembly Legislative Operations and Elections Committee on May 13.
As Welborn, among other advocates, fights to garner greater attention for youth justice issues, she noted that reform can take lots of time and work, and she recalls a quote from Ohrenschall, another youth advocate.
“We come to the Legislature wanting revolution, but what we get is evolution,” she said.