Mandatory bindover – unfairly turning children into adults: Leah Winsberg and Daniel J. Flannery

CLEVELAND — “At first I didn’t know that I could go to adult court. I didn’t know they did that to people. … The judge said I was a mandatory bindover. We were in court for two hours and it just seemed pointless. It was a really tough situation.” – L.T.

L.T. is one of thousands of Ohio’s children removed from the juvenile system and prosecuted as an adult since the 1990s. Mandatory bindover requires certain children be treated as adults, creating an automatic pathway for children as young as 14 into the adult criminal system based solely on their age and charge. This harsh, failed policy undermines Ohio’s juvenile justice system and makes our communities less safe. Proposed House Bill 500 would move Ohio towards a fairer system, requiring this critical decision be made through an informed and individualized process, rather than a blanket rule.

This individualized process is called discretionary bindover. Unlike mandatory bindover, where the child’s age and charged offense automatically dictate the outcome, discretionary transfer decisions are informed by an inquiry into the child and circumstances of the incident. House Bill 500 does just that. Juvenile court judges would be instructed to consider factors — including the child’s background, mental health, trauma history, and level of involvement in the alleged offense — and make a transfer decision based on the child’s potential for rehabilitation versus safety risk.

In the 1990s, a false narrative warning of a violent crime wave by child “super predators” swept across our country. This narrative was replete with racist undertones and evoked a sense of moral panic. States swiftly expanded their laws to increasingly treat children as adults, including Ohio. The “super predator” myth was later debunked and the predicted crime wave never arrived.

In fact, in 2019 youth arrest rates hit a 40-year low and the number of cases filed in juvenile courts hit lows not seen since the 1960s. Unfortunately, policies enacted in response to the moral panic still exist and continue to inflict harm disproportionately on our children of color. Statewide reports show that from 2015–2020, around 80% of children sent to adult court were Black, exceeding national rates, and in Cuyahoga County that number rose to over 90% in Fiscal Year 2020, according to a report from the Children’s Law Center Inc., based in Kentucky

Mandatory bindover ignores established neuroscience, finding critical differences between children and adults. Children don’t have the same ability as adults to make decisions, control their impulses, or resist peer pressures. Children are much more capable of change, especially when we invest in their healthy development. However, when placed in adult facilities, children are uniquely vulnerable and significantly more likely to be physically and sexually assaulted and to commit suicide. Many states have rolled back these laws, and adopted a research-driven approach. Ohio is one of only 12 states that still have mandatory bindover.

Mandatory bindover is a tough-on-crime, but not smart-on-crime response. Research reveals bindover doesn’t decrease or deter crime. In fact, bindover increases re-offending, which jeopardizes public safety. The Ohio Supreme Court, recognizing this research, warns that transfer should be used only rarely, yet, Ohio’s mandatory bindover law undermines this advice. In FY 2020, Ohio judges sent 83 children to adult court because they were required to under this law, according to the Children’s Law Center report. Mandatory bindover is not a necessary evil to fighting crime — it’s expensive, ineffective, and misguided.

The adult criminal system was designed to punish adults, not rehabilitate children. Mandatory bindover has no place in a fair justice system. Ohio should strive for fairness and racial justice. Utilizing evidence-based, developmentally appropriate sanctions and services for justice-involved youth is an investment in our entire community. Our approach must be guided by research-driven public safety solutions. Eliminating mandatory bindover is a significant step in that direction.

Leah Winsberg is an attorney with the Children’s Law Center Inc. Dr. Daniel J. Flannery is the director of the Begun Center for Violence Prevention Research and Education at Case Western Reserve University.

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