June 9, 2017Updated June 10, 2017, 12:02 a.m. ET
Last month, the House of Representatives approved a bill that has the potential to lock up teens for more than a decade. The effort goes against a growing push to change the justice system nationwide so that kids — the country’s most vulnerable — aren’t robbed of chances at reform or treated as adults in the system.
Called the Protecting Against Child Exploitation Act of 2017, the bill would enact a mandatory minimum sentence of at least 15 years for, among other things, using phones to exchange nude photos. It landed in the Senate Judiciary Committee this week.
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Treating kids as predators
Though it is intended to close loopholes exploited by child pornographers, the law, which expressly states that the mandatory minimums will apply equally to an attempt or a conspiracy, could affect teenagers engaging in consensual nude photo exchanges, which according to a Drexel University study, most teens do. Fifty-four percent of surveyed college students confirmed sending or receiving sexually explicit text messages or images when they were under age 18. Nearly all of the exchanges were in a consensual, flirting context.
Such behavior among teens is not unexpected. Scientists estimate the human brain is not fully formed until the age of 25. Until their cognitive skills are fully developed, adolescents are likely to be impulsive and unable to focus on the consequences of their behavior. Encouragingly, they are also receptive to change and likely to grow out of negative or delinquent behavior.
Congress should follow the lead of some 20 states that have passed laws that specifically provide for less severe punishment — misdemeanor charges allowing for expungement, community service and counseling — when juveniles are found to have shared personal images.
For examples of how the law can go terribly wrong, consider these middle schools students in Valparaiso, Ind. The 13-year-old girl and 12-year-old boy were charged with child pornography and child exploitation after reportedly exchanging nude photos of themselves.
Prosecutors in Fayetteville, N.C., initially charged a high school couple, both 16, with the felony of “exploiting a minor” after learning the teenagers had swapped nude cellphone pictures of themselves. The students were at risk of spending years in prison and registering as sex offenders, but prosecutors eventually accepted misdemeanor pleas accompanied by a year’s probation.
Some stand against the bill
The largest teen sexting scandal involved more than 100 students who were found to have exchanged nude pictures in Cañon City, Colo.
At the time, Thom LeDoux, the county’s district attorney, intimated he would only consider charges where bullying, coercion or website postings were suspected. The decision to bring charges is at the discretion of prosecutors, which Rep. John Conyers, D-Mich., sees as a problem: “Given the new (tough on crime) policy of the attorney general, we are under a new regime here at the federal level, and I can’t depend on relying on the prosecutorial discretion to protect juveniles under this statute.”
Conyers and other minority House members accounted for nearly all of the 51 no votes for the bill that passed by 368. People of color have reason for concern. The New York State Division of Criminal Justice Services found that of the 28,000 16- and 17-year-olds arrested and faced with the possibility of prosecution as adults in criminal court in 2015, 70% were black or Latino.
As a result of these studies and the Raise the Age initiative, New York passed legislation making the majority of cases involving 16- and 17-year-old defendants to be diverted to family court, where the teens will have access to social services and special training. Now North Carolina stands as the only state that charges 16- and 17-year-old defendants as adults.
In a statement, Rep. Bobby Scott, D-Va., called the congressional bill “particularly appalling,” and added, “The only way to stop passing new mandatory minimums is to stop passing bills that contain or broaden the application of mandatory minimums. Giving lip service to the suggestion that you would have preferred that the mandatory minimum had not been in the bill and then voting for the bill anyway not only creates that new mandatory minimum, but it also guarantees that mandatory minimums will be included in the next crime bill.”
Yolanda Young is executive director of Lawyers of Color and an on-air commentator for TV One’s News One Now with Roland Martin.
