Gray Area: Current criminal justice practices disproportionately harm young adults
What a typical young adult experiences from arrest to incarceration
Welcome to the Gray Area series, where we explore the intersection between young adulthood and justice reform.
Last week, we looked at the developing brains of young adults (approximately age eighteen to twenty-five). Areas critical to impulse control, decision making, personality development, and processing consequence and reward specialize and strengthen throughout young adulthood. This means that young adults are still maturing. Laws around drinking alcohol, renting cars, applying for loans, and having healthcare all reflect this unique transitional phase. But when it comes to criminal justice, young adults get no special treatment: they are treated the same as older adults.
This is in direct contradiction to how we treat children within the criminal justice system. Children do receive special status because of their developmental stage. Though attitudes toward youth and crime have varied dramatically through United States history, current attitudes within the justice system treat most children as a distinct developmental group, separate from adults. Even with that categorical protection, children, especially children of color, are often subjected to severe punishment and charged as adults. The combination of paternalism and punishment embedded in these policies doesn’t give children the resources they need to stop criminal activity, and it certainly does not work well for young adults.
With no place in the juvenile system, is the adult criminal system where young adults belong?
No.
For now, almost all young adults charged with crimes go through the adult criminal justice system. That does not make it the right place for them. The system is full of pitfalls that disproportionately harm young adults. In many ways, young adults are punished due to their age, lack of resources, and developmental circumstances.
Many times, a young adult’s journey through the criminal justice system begins with being arrested. From there, they are charged, make a plea bargain or go to trial, receive their sentence, and begin their punishment. At each step, young adults face hurdles that are uniquely challenging and damaging to their developmental status.
Before we break down these steps, I want to frame this conversation within a frequently referenced dataset: the age-crime curve. Data shows that arrests for violent offenses peak in the late teens and early twenties. These arrests then steadily and dramatically decline through adulthood.
This data can be construed to mean that young adults are more violent and therefore deserve harsher punishment than both children and older adults. However, factors unique to young adults increase their contact with the criminal justice system. Their ongoing brain development is one factor, but poverty is another one of the most significant. Young adults lose many structural and social supports when they turn eighteen, and often lack economic independence and stability.
For example, youth in the foster care system receive financial and structural support from the government until they turn eighteen. Afterward, they must leave what are often unstable childhoods and navigate adulthood with little to no assistance. At age eighteen, 20% of foster youth become instantly homeless. Only 50% become gainfully employed by age twenty-four, and less than 3% earn a college degree in their lifetimes. The lack of emotional and financial resources that contribute to higher rates of homelessness, substance abuse, and poor mental health also co-contribute to increased interactions with the criminal justice system.
Even in less extreme cases, young adults tend to be less financially established than older adults from mounting debt and low-paying entry-level jobs. Access to resources makes the difference between staying in jail for years and affording to go free on bail, from hiring a specialized lawyer to falling through the cracks of an overwhelmed public defense system. A few days of missing work after an arrest can devastate the stability of a young adult and snowball into unpaid bills and court fees, which increases the severity of charges and punishment.
The high level of arrests of young adults for violent rates does not justify their place in the criminal justice system; instead, it shows that something specific is happening to their age group that leads to more frequent contact with the justice system. In order to combat the frequency of their justice involvement with an approach geared toward their developmental needs, we need to better understand the typical experience of a young adult in the justice system today.
Arrest: Who commits crime?
According to the arrest data in the age-crime curve, young adults commit the most violent crime. But an arrest does not necessarily mean that a crime occurred, and many crimes occur where no one is ever arrested. The age-crime curve does not account for specific social factors that contribute to why young adults are arrested at a higher rate, but the data itself is also flawed in what it shows and how it is collected. The FBI data behind the graph, in particular, only captures reported crime. Researchers estimate that at least 50% of crimes are never reported.
Crime data may give a general overview of trends, but it is by no means an accurate representation of who commits what crimes. Instead, our ideas of who is a criminal come from social perceptions. Many factors, including prejudices around race, class, age, and gender, shape perceptions of criminality in American culture.
The stereotype of the young, Black, male criminal is perhaps one of the most pervasive and dangerous of these perceptions. The War on Crime in the 1970s through 1990s escalated this stereotype into the “superpredator,” the myth of the remorseless violent youth, and incarcerated thousands and thousands of Black men for drug offenses under racist crack-cocaine sentencing disparities. There is no mystery — these laws were created to target and control Black communities.
In 2016, Harper’s Magazine published a 1994 interview with former Nixon advisor John Ehrlichman in which he said:
“The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders. raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”
Today, manufactured stereotypes about Black men and crime persist. Over-policing has exaggerated and reinforced these stereotypes through traffic stops, stop and frisk, and zero-tolerance policies. Police have the legal authority to “stop, question, pursue and arrest individuals without probable cause or the presence of suspicious behavior,” from using the pretense of a broken taillight to checking for expired vehicle registration to stopping and frisking anyone walking down the street for drugs or weapons. In 2016, 90% of people who were stopped in NYC were people of color.
The effects of these stereotypes are insidious and ingrained. From the media overrepresenting Black criminals and under-representing Black victims to studies demonstrating that participants perceive Black individuals as more guilty, threatening, and deserving of punishment than white folks accused of the exact same act, America has internalized the Black criminal stereotype.
These harmful beliefs create a vicious cycle of greater police surveillance and targeting, arrests, wrongful convictions, as well as longer, harsher sentences for Black Americans in the justice system. The same principles and dangers apply to all stereotyped groups, albeit to different extremes. When it comes to age as an isolated demographic, teenagers and young adults are perceived as the face of crime, particularly violent crime. This perception is reinforced by the same vicious cycle, which reinforces our social stereotypes of who is a criminal.
Charging: What is a crime?
When a young adult is arrested, the prosecutor can choose whether or not to charge them and if so, what criminal charges to pursue. Criminal codes differ across the country. Laws, including criminal laws, are social constructs that have changed and continue to change over time.
Using eighteen as the demarcation between childhood and adulthood is one of the best examples of the law as a function of social construct. Before 1971, twenty-one was effectively the age of majority. In 1971, the Twenty-Sixth Amendment lowered the voting age from twenty-one to eighteen after outcry from Americans drafted to fight in Vietnam. They felt they were exploited by military policies in which they had no voice and cried out, “Old enough to fight, old enough to vote!”
In response, a series of laws adjusted the age of majority. For example, over thirty states lowered their drinking laws from twenty-one to eighteen, which has now changed again. Underage drinking laws are an example of a malleable social construct that primarily targets young adults. All types of crime, from property to violent to public order, are subject to variability in how they are defined.
The crack-cocaine sentencing disparity, which imposed the same penalty for an amount of crack cocaine as 100 times the same amount of powder cocaine, is a devastating example of this. As more and more states legalize marijuana, something that leads to incarceration in one state can be the basis for a thriving small business in another. Gang enhancement laws incur harsher penalties for defendants who are gang-affiliated, even if the crime has no connection to the gang in question. This also disproportionately harms young adults.
Trial: What is the cost?
After a young adult is formally charged with a crime, they will have to make big decisions about the direction of their case. These consequential decisions must be made in a highly emotional, high-stakes situation — oftentimes having to make those decisions from jail. Young adults are still learning and developing how to override emotional response with rationality, and how to weigh long-term consequences over short-term rewards.
Taking a criminal case to trial also requires costly time and resources. Financially, young adults face the cost of paying for bail, court fees and fines, and potentially hiring a lawyer. They also may lose money from missed work or losing their job. Young adults have less economic security than older adults. The time it takes to either go to trial or negotiate a plea deal, which is how the majority of cases resolve, removes young adults from the workforce at a critical time. It also establishes a string of consequences that can include disenfranchisement, limited employment options after a conviction, and reduced access to educational opportunities. Some states deny TANF (Temporary Assistance to Needy Families) to folks with a criminal record. All of these penalties are particularly damaging to setting a young adult up for success and recovery.
Sentencing: Why are crimes committed?
If a young adult is found guilty at trial or pleads guilty as part of a plea bargain, they enter the sentencing phase. Judges typically determine a criminal sentence by considering risk factors for future criminal activity such as: how likely is it that the defendant will act violently in prison? How likely is it that the defendant will reoffend?
Some states use formal risk assessment tools where points are awarded based on demographic factors. Even though we have established some of the issues with arrest data, like in the age-crime curve based on FBI crime statistics, judges still interpret youth as a risk factor. Developmental and social factors impact behavior, including criminal behavior, but giving a young adult a harsher sentence because of their age only exacerbates the cycle of circumstances that contribute to instability and crime in the first place. In states where “under 25” gives defendants a point toward a higher risk assessment score and a potentially harsher sentence, young adults are treated as if their age is why they became justice-involved.
Incarceration: How are crimes punished?
Since the 1980s, our carceral system has exploded. Now more than ever, incarceration is viewed as the default mode of punishment. Prisons vary in security level, access to resources, and safety. But across the board, prisons are institutions of surveillance, control, violence, and poor mental, emotional, and physical health.
Young adults in adult prisons experience sterile monotony, social isolation, and unpredictability in a high-stress environment. All of these factors influence the way their brains continue to develop while incarcerated.
Incarcerating young adults for long sentences may seem like an easy, short-term solution to high rates of crime. But juveniles also have higher rates of crime, and they are punished differently because we understand that a factor in their criminal behavior is their developmental stage. The same is true for young adults. Their continuing development means that we should respond to criminal behavior with more leniency, rather than less, if we want safer, healthier communities. Just as children deserve a unique system because of their developmental status, young adults need a specialized response to their behavior.
Over-punishing young adults is also a missed opportunity for reform. If young adults spend critical years of development in a concrete cell, the neural pathways that solidify and strengthen will be those based on fear, anger, self-preservation, and violence. Instead, we can think about crime as a reaction to many social factors, including lack of economic resources and age. Holding young adults accountable for crime can also be an opportunity to intervene in their development.
These opportunities can include resources and systems that respond to the challenging developmental period of young adulthood and encourage healthier decision-making, emotional regulation, and personal growth. That might look like a specialized young adult court, where the judge works with defendants on individualized plans for treatment as part of sentencing. It might look like a specific prison unit for young adults, with a culture of community and mentorship rather than hostility and violence.
Changes like this are out there. From Germany to Connecticut and Norway to North Dakota, prison systems are rethinking the way they respond to young adults.
Next week, we’ll step inside some of these innovative systems and learn what difference, if any, they make.
