This editorial appeared in the Sept. 19, 2019, edition of the Chicago Sun-Times:
Lake County State's Attorney Michael Nerheim did the right thing in dropping felony murder charges against five teenagers.
Charging the teens with felony murder always seemed upside down.
It was a member of the teens' own group, 14-year-old Jaquan Swopes, who was fatally shot during an alleged auto theft on Aug. 13. And it was the man whose car they allegedly were trying to steal — not one of the teens — who fired the bullet.
Instead, Nerheim on Thursday announced he will proceed with lesser criminal charges, and four of the cases will be moved to juvenile court.
Though Nerheim wisely changed course, this strange case has exposed a serious flaw in Illinois law.
It is wrong that criminal cases involving teenagers aged 16 through 17 automatically are moved from juvenile court to adult court when the charges are first-degree or felony murder, aggravated criminal sexual assault or aggravated battery with a firearm. The cases are moved without regard to the degree of a defendant's culpability, and there is no consideration of the many background factors juvenile court judges routinely weigh.
Such cases should not be transferred automatically to adult criminal court. In each instance, there should be a hearing first before a juvenile court judge, who would decide whether a transfer to adult court is appropriate.
That's how 16 other states do it.
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Illinois has looked at this issue before. In 2015, the state ended automatic transfers to adult court for all cases involving teens who are 15 or younger, and it narrowed the transfer of cases involving 16- and 17-year-olds to only the most serious crimes.
It was a good reform. It just didn't go far enough.
Automatically sending to adult court a case of a minor accused of aggravated battery with a firearm, for example, fails to take into sufficient account whether this might have been a matter of self-defense, given the age of the accused.
Sending a case of aggravated criminal sexual assault to adult court doesn't take into account whether the sex was consensual, though it involved an under-aged person.
Police and prosecutors generally use sensible discretion in how they charge cases. But when cases are sent to adult court in the heat of the moment, the chance to harness the rehabilitative capabilities of juvenile court is lost.
The U.S. Supreme Court has ruled that young people don't have the maturity and fully developed sense of responsibility necessary to be judged on the same basis as adults. Teens are more risk-prone, impulsive and reckless.
It is unlikely that a juvenile court judge would have moved the Lake County case to adult court, given that none of the teens fired the gun. It is entirely likely, though, that an adult court judge, following increasingly harsh sentencing rules, would have dispatched the teens to prison for far longer than is reasonable or necessary.
For some types of serious crimes in the adult criminal justice system, the policy of day-for-day good time has been eliminated. Truth-in-sentencing laws require some inmates to serve 100 percent of their sentences.
As a result, the punishment gap between juvenile and adult courts has grown into a chasm. A 16-year-old tried in juvenile court for a gun crime faces a maximum sentence of about five years — until his 21st birthday. But if tried and convicted in adult court, that same teen could be looking at 45 years in prison — and the judge might be unable to do anything about it.
Some crimes committed by juveniles are so brazen and heinous that they will always be tried in adult court. We understand that.
But juvenile court judges understand it, too. And they are in the best position to decide which cases belong where.