California Forum

Prosecutors’ attack on youth justice reform undermines democracy


Some district attorneys in California are trying to undermine a common-sense law adopted last year that keeps 14- and 15-year-old children out of the adult criminal justice system.

It’s a desirable law that will enhance public safety by giving young people the tools to succeed and a better chance at rehabilitation, reducing costly prison spending in the process.

But now some prosecutors have manufactured a controversy by challenging, rather than enforcing, the law. They’re substituting their own policy preferences — and the preservation of their own power — for the democratic process. It’s a cynical move with no legal basis.

California voters and their elected representatives spoke clearly when they enacted youth justice reforms. It’s the duty of prosecutors to respect their decision.

In 2016, California voters passed Proposition 57, which took the first step toward reforming a system that allowed prosecutors to unilaterally charge some youth in adult court, where they would face the most extreme punishments allowed under state law. With the express intent of “emphasizing rehabilitation, especially for juveniles,” and “reducing wasteful spending on prisons,” Prop. 57 keeps teenagers in the juvenile system unless prosecutors successfully petition a judge for transfer to adult court.


Last year, the state Legislature took the next step by passing SB 1391. That law, which the Legislature found “is consistent with and furthers the intent of Proposition 57,” keeps 14- and 15-year-olds in the juvenile justice system, but leaves prosecutors with the discretion to seek transfer of 16- and 17-year-olds to the adult system where they will face adult prison sentences.

The legal challenge by some to SB 1391 hinges on the unfounded claim that it contradicts and therefore must yield to Prop. 57. That challenge comes with a heavy burden. The California Supreme Court has long-held that “a statute, once enacted, is presumed to be constitutional,” and SB 1391 is good law if “by any reasonable construction” it is “consistent with and further[s] the intent of” Prop. 57.

No one disputes that the legislature can amend Prop. 57; the ballot measure itself specifically allows for that. The only question is whether SB 1391 furthers its underlying goals.

What were the goals of Prop. 57? A California Court of Appeal explained that one goal was “to broaden the number of minors who could potentially stay within the juvenile justice system,” with “a primary emphasis on rehabilitation rather than punishment.” Prop. 57’s official voter guild provides additional guidance. It states that the law’s “purpose and intent” includes enhancing public safety, reducing prison spending, stopping “the revolving door of crime” through rehabilitation and requiring judges, not prosecutors, to decide whether a juvenile should be tried in adult court.

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Erwin Chemerinsky

Keeping youth in the juvenile justice system means safer communities. The United States Supreme Court has relied on this research to impose constitutional limits on punishments for children, and it was certainly reasonable, given the underlying goals of Prop. 57, for the California legislature to rely on it in passing SB 1391.

With this obvious synergy between the policy goals of Prop. 57 and SB 1391, those challenging SB 1391 resort to sleight of hand. They say that the purpose of Prop. 57 was not to keep children out of prison, but to empower judges to decide which children are tried as adults. They take a law with the explicit goal of rehabilitating young people and seek to focus only on the power it gave to judges.

But the point of judicial discretion under Prop. 57 is to safeguard against unchecked prosecutorial power, not ensure that some kids are still tried as adults. Which explains the most likely reason for these challenges to SB 1391: Prosecutors are clinging to whatever power they can.

SB 1391 is the law, having been passed by the Legislature and signed by the governor. Its critics, who seek to pit Prop. 57’s reforms against those of SB 1391, ignore that these enactments are animated by the same principles and further the same goals.

Taking to heart Prop. 57’s commitment to youth rehabilitation underscores the need to implement SB 1391, not challenge it in the courts. District attorneys should not challenge SB 1391 and, if they do, courts should uphold the law as completely consistent with the aims of Prop. 57.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at