Elementary school kids as young as 10 are sent to juvenile lockup in Colorado, one of 15 states that sets that age as the minimum to face prosecution. Now, a coalition of child advocates is attempting to raise the bar to age 13.
More than 650 times, kids ages 10-12 were locked up in juvenile detention centers in Colorado from 2015-19, even though all but two of them were released after being deemed not dangerous enough to stay behind bars, according to data from the Colorado Division of Youth Services. On average, those kids stayed in lockup for about 11 days before they were sent home.
Being handcuffed and thrown in detention, no matter how long the stay, is traumatizing and increases the likelihood that a child will return to detention or adult prison, say advocates of raising the prosecution age to 13. A bill scheduled for its first hearing later this month at the state Capitol would prohibit the prosecution of 10-, 11- and 12-year olds, except in cases of homicide.
The proposal is raising concern among prosecutors and law enforcement officials, who say that arrests of elementary school children are rare and already handled with discretion. Plus, children in the juvenile justice system are getting therapy and other services that they likely would not get otherwise, and until Colorado has a better plan to help those kids, the state should back off from such a massive policy change, they urged.
The proposal mimics a 2018 California law that banned prosecution of younger children except for murder and rape. It also would raise the age to 14 years old from 12 that a child could face prosecution in adult court in Colorado.
The push is aimed at revamping the juvenile justice system so that kids aren’t branded criminals “for exhibiting behaviors that are consistent with their developmental stage in life,” said Dafna Gozani, senior policy attorney for the National Center for Youth Law. Children who are minorities and those who’ve been abused are more likely to get arrested and locked up, where they face more violence, she said.
Also, Black children are way overrepresented in the juvenile justice system in Colorado and nationwide.
Of the 417 children who were detained in Colorado in a five-year span, 81 of them, or 19.4% were Black, according to state data. Less than 7% of 10-12 year olds in Colorado are Black, however.
Also, 80% of the 10-, 11- and 12-year-olds in the juvenile justice system were charged with nonviolent offenses, including 15% of them for trespassing or criminal mischief, Gozani said.
The effort, whose prime sponsors include Democratic Rep. Serena Gonzales-Gutierrez and Republican Sen. Don Coram, is part of a national movement to “end the criminalization of youth,” including attempts to keep prosecutors from charging juveniles as adults, said Apryl Alexander, an association professor of psychology at The University of Denver. A bill that failed last year would have prevented elementary school children from being handcuffed on school grounds.
Children who are arrested and held in detention, even for a few days, are labeled as criminals by peers and often treated differently when they return to school, she said. Many were already victims of abuse, bullying and neighborhood violence before they were arrested, she said.
“Why don’t we get them treatment instead of incarcerating them?” asked Alexander, who is also the director of the Denver FIRST Juvenile Justice Project. “The juvenile justice system was intended to be rehabilitative.”
But Tom Raynes, executive director of the Colorado District Attorneys’ Council, said the proposal represents a massive policy change that actually might harm children. Entering the juvenile justice system triggers a host of therapy and treatment options, in juvenile centers or in the community, that children otherwise would not receive, he said. And other agencies — such as child protective services — are not equipped to handle an influx of kids who get in trouble but never enter the juvenile justice system, he said.
The data showing that children stay an average of 11 days, and that almost all of them are released, proves that prosecutors are more interested in getting kids services than on putting them behind bars, he said.
“This is a significant policy shift,” said Raynes, who previously was district attorney for the 7th District, which includes Gunnison and Ouray. “I’m not averse to getting more kids out from the juvenile justice system umbrella, but we have to build the alternative first.”
Besides, Raynes said, prosecutors and law enforcement already handle cases involving elementary school children “very carefully and with discretion.” A statewide mandate that prohibits them from making case-by-case decisions is not necessary, he said.
Colorado is one of 15 states that prohibits prosecution of kids under 10, and 28 states have no minimum age, Raynes said.
“Is it an eye-opener for an 11-year-old to be arrested? It is,” he said. “But hopefully through the services and therapy, we intervene in a positive manner.”
Prosecutors also want discretion regarding which cases are suited for adult court, he said. In one egregious case, a 12-year-old boy in Burlington shot and killed his parents and tried to kill his younger brother and sister in 2011. He was sentenced to seven years in the juvenile system.
Instead of the legislation as written, Raynes said he will push for a study of how best to handle the youngest offenders, including a vetting of the issue by the Colorado Commission on Criminal and Juvenile Justice.
Colorado Counties, Inc., is also against the bill, concerned that it will prevent children from getting mental health treatment. “Making this policy change in the absence of building out the continuum of services has the potential to push children into the child welfare system when there are no signs of abuse and neglect,” said Gini Pingenot, director of external affairs for the association.
Data collected by Colorado Counties found 677 children ages 10-12 were arrested in Colorado in 2021, about half of them for crimes against people.
Stacie Nelson Colling, with the Colorado Office of the Alternate Defense Counsel, which represents kids in court, called the number of elementary age children held in lockup “heartbreaking.”
“I hear stories of a kid’s handcuffs sliding off their arms because they are too big. Their feet don’t hit the ground when they sit in a chair,” she said. “They’re terrified.”
Phillip Roybal was one of those kids. At age 12, in his third week of eighth grade, he was arrested on campus for a property crime he committed outside of school, and expelled from school. Roybal recalled the shame he felt getting handcuffed at school. Now 27, he’s the youth organizing manager for Colorado Circles for Change, which helps minority children who have been in the juvenile justice system or whose families reach out for help.
Roybal spent his high school years in youth corrections, eventually earning his GED at age 19. As a kid, he didn’t see his life as traumatic – even though he was raised by a single father who had recently gotten out of a prison while his mother, who was addicted to heroin, was in prison.
“I didn’t see those as traumatic experiences because that was baseline for what I knew, “ he said. “I was left to my own decisions. And at 12 years old, I didn’t have the capacity to make those right decisions.”
While it’s true that many kids don’t access treatment services until they are in criminal trouble, that’s not how it should work, Roybal said. Colorado should address that access to treatment as it raises the prosecution age to 13, he said.
The bill says that law enforcement could take children age 10 and up into temporary custody for safety reasons and then refer them to other services, and that the state would use existing youth detention funding to pay for those services.
“What are we waiting for?” he asked. “Are we waiting for other youth to overdose, to be lost within the juvenile justice system? We are tired of waiting.”
Update: This article was updated Feb. 9, 2022, to clarify racial data provided by the Division of Youth Services.