Oregon is one of 15 states where prosecutors alone can decide whether to try a youth as an adult — and it’s happening to black and Latino teens disproportionately
When administrators summoned 15-year-old Keeshawn Bullitt to the main office at Grant High School on Feb. 9 to ask him about the armed robbery he committed, he said he had no idea what they were talking about.
But there was no mistake, and Portland police arrested the soft-spoken sophomore at the Northeast Portland school the following morning.
The charges stemmed from an incident at the high school five days earlier. Shortly after last period, Bullitt and three of his classmates, Rico Cabrera, 15, Saadiq Ducloux, 16, and Charlie Tzab, 16, surrounded a freshman and demanded he hand over his money.
The targeted student thought it was a joke at first but became fearful when he saw Ducloux was pointing a pocketknife at him, according to court documents. They searched his pockets and shoved him, then walked away, empty-handed and laughing.
The victim told his mother about the incident, and she phoned police.
In response, the Multnomah County District Attorney’s Office charged Bullitt and each of his accomplices with six counts of felony armed robbery in the first and second degrees.
In Oregon, these charges are Measure 11 crimes, which carry lengthy mandatory minimum sentences. This also meant the four teens would be tried in adult court.
As Multnomah County takes steps to move away from mass incarceration and seeks to usher racial equality into its criminal justice system, Measure 11 serves as an antiquated holdover from the tough-on-crime era of the 1990s. Data show Multnomah County prosecutors use Measure 11, without any oversight from other arms of the judicial department, to send youths, primarily minorities, into the adult court system.
If Bullitt and his classmates were found guilty of just one of those six counts, they would spend at least five years and 10 months in prison – the mandatory minimum sentence for second-degree robbery.
Parents and teachers agreed that what they did was inexcusable, but the district attorney’s decision to charge the four boys – none of whom had a prior criminal history – as adults sent shockwaves through their community.
The staff at Grant Magazine, the high school’s student-run periodical, soon began working on an exposé to explain Oregon’s Measure 11 mandatory minimum sentencing to a perplexed student body.
Dozens of letters from the boys’ teachers, coaches, family members and friends’ parents came pouring in, all begging the district attorney to move the case into juvenile court.
Oregon voters passed Measure 11 in November 1994. It dictates that juveniles age 15 and older be automatically tried in adult court and face a mandatory minimum sentence if the prosecutor charges them with one of 21 Measure 11 crimes. These crimes range from assault and robbery to rape and murder.
While in most states the decision to move a juvenile into adult court requires a hearing, Oregon is one of 15 states where a prosecuting attorney can make the decision to try a youth as an adult.
“It gives district attorneys all the power to drop the bomb and then see what they can plead down to later on,” said Andy Ko, director of Partnership for Safety and Justice. “Measure 11 shifted all power away from judges, all power away from the various other systems, to prosecutors, and that’s what it was intended to do. It was very calculated.”
Ko’s organization co-authored a report with Campaign for Youth Justice in 2011 that analyzed data on 3,274 youths indicted on Measure 11 offenses. They determined that 6 out of 10 youths charged under Measure 11 are convicted of less serious crimes after plea negotiations.
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Critics say this begs the question: Should those juveniles have been charged with Measure 11 in the first place?
The study, Misguided Measures, found using Measure 11 against teens doesn’t lower the crime rate.
Counties that convicted more juveniles under Measure 11 did not see better public safety or a drop in juvenile crime when compared with counties that convicted fewer youths under Measure 11.
It also determined that prosecutors, not judges or juries, made the final decision in 92 percent of the cases in which a youth was facing a Measure 11 mandatory minimum sentence, with nine out of 10 youths taking the prosecutor’s offered plea deal rather than taking their chances with a jury.
The authors of the report acknowledged that, while pleas are necessary in Oregon’s overburdened court system, because these youths are in adult court, “there is little opportunity for the back-and-forth discussions that might happen in a juvenile courtroom – where the needs of the victim, the community and the young person can be identified and balanced.”
Bullitt and his codefendants took the prosecutor’s offer and pleaded no-contest to third-degree robbery, a non-Measure 11 crime.
“Frankly one of the problems with this Ballot Measure 11,” said Cabrera’s attorney, Tyl Bakker, “is that it ultimately takes the discretion, which has historically been with the judges, away from them, and gives it to the district attorney’s office.
“They were charged with robbery – that would be a 70-month, day-for-day, mandatory minimum sentence,” he said. “It makes it a difficult choice for kids in that position to decide, ‘I’d like to go to trial and litigate the thing.’ I think that’s probably the thinking behind these young men agreeing to resolve the case.”
Bullitt and his family said they felt they had no choice but to take the prosecutor’s offer. A trial could have resulted in a long prison sentence, and they weren’t willing to risk that outcome.
Now Bullitt is a convicted felon, and he will be on intensive probation in the adult system for three years. He remained in custody for 16 days while awaiting the plea deal, and if he violates probation, he could face incarceration for up to one year.
“Even when youth plead to lesser offenses, they are still stuck in the adult system, and they are served by probation officers and other people who are really experienced and have a better understanding of adult offenders than they do of youth offenders,” said Mark McKechnie, director of Youth, Rights & Justice.
“Roughly half, now, of the youth that are committed to the Oregon Youth Authority are there on an adult sentence,” he said.
In January, there were 311 youths in Oregon Youth Authority correctional facilities serving adult sentences. These youth can’t participate in work release and other community-based programs available to youths serving time on juvenile sentences, even though they are held at the same facility.
“You could have two youth who are very similar, in terms of their risk and their behavior,” said McKechnie, “but if you have one under a juvenile sentence, OYA has a lot more options, including releasing them, that they don’t have for a youth under Department of Corrections supervision.”
The practice of trying juveniles as adults has come under increasing scrutiny in recent years as scientific research has emerged showing an adolescent’s brain is not fully developed until they are well into their 20s.
Connecticut Gov. Dannel Malloy is pushing his state to include offenders up to the age of 21 in juvenile court. He’s also proposed extending certain juvenile justice protections to young adults as old as 25, such as keeping their crimes confidential.
Several countries in Europe already have similar policies in place. Germany has tried young adults up to age 21 in juvenile court since 1953.
While the age a person is charged as an adult in most states is 18, in some states, such as Texas, it’s 17, and in New York and North Carolina, a defendant is considered an adult at age 16.
In Oregon, district attorneys have diverted more than 4,000 juveniles younger than 18 through adult court under Measure 11 since 1995, but prosecutors’ propensity to use Measure 11 in juvenile cases varies from county to county.
“We tend to see that Multnomah County, along with a couple other counties, is much more inclined to file Measure 11 charges (against juveniles) when they can,” McKechnie said.
Bobbin Singh, director of Oregon Justice Resource Center, said his organization is analyzing data on how Measure 11 has been applied to youths since 1995 and expects to publish a report later this spring.
When compared with county populations, the data show that of Oregon’s four largest counties, Multnomah has the highest rate of using Measure 11 against juveniles – with 1,200 juveniles charged with Measure 11 crimes between 1995 and 2012. The majority were kids of color.
“What you see,” Singh said of his preliminary findings, “is a disproportionate use of Measure 11 against kids of color – specifically black kids or African-American kids.”
Statewide and in Multnomah County, kids of color made up 66 percent of juveniles charged under Measure 11 between 1995 and 2012, according to Oregon Justice Resource Center data.
Second-degree robbery was most frequently the severest Measure 11 charge facing youths.
Street Roots’ examination of the 49 juvenile Measure 11 cases resolved in Multnomah County in 2015 revealed 74 percent of defendants born in 1997 or later were kids of color.
This trend continued with young adults, with 69 percent of defendants between the ages of 18 and 21 charged with Measure 11 in Multnomah County also being minorities.
In both age groups, black youths were charged with Measure 11 more than any other race.
The prosecutor on Bullitt’s case was Elisabeth Waner. She said “sympathy factors” like age and prior criminal record come into play later, when a plea deal is offered.
“It truly does come down to a matter of legal sufficiency,” she said, and her office is obligated to treat everyone equally under the law.
She said because the boys committed the robbery as a group and because there was a knife involved, it qualified for both first- and second-degree robbery charges.
Adding increased seriousness to a crime because it was committed as a group – in the case of teenagers – goes against what we know about the teenage brain, said Lane Borg, director of Metropolitan Public Defenders.
Numerous studies over the past decade have revealed increased risk-taking behavior in teens is directly related to their adolescent brain chemistry and that risk-taking behavior is heavily influenced by the presence of other teenagers.
In 2014, researchers in the psychology department at Temple University published a paper showing the perceived reward value of risky behavior goes up in teenagers when they are in the presence of their peers.
Additionally, one of the last parts of the brain to fully mature is the area that weighs long-term consequences and controls impulses, according to the National Institute of Mental Health.
Borg remembers that when Measure 11 passed, judges were shocked when they saw cases involving kids who used guns and knives when stealing beer or tennis shoes.
“The thinking was, ‘If these kids will go to these lengths now, what will they do as adults?’” he said. “Given what we know now – it’s stupid to call 18 ‘adult.’ We know using a gun to get beer is more of an example of the impulsivity and irrationality of the teenage brain.”
He said Oregon should reverse the way it applies group behavior to criminal charges when it comes to teenagers. Instead of group behavior making a charge more serious, he said the court should acknowledge the group behavior more along the lines of, “They were acting like idiot teenagers and showing off.”
Borg said implicit bias likely plays a role in the disproportionate rate at which black and Latino youths are sent through the adult system in Multnomah County.
Implicit bias, as opposed to explicit bias, occurs outside of conscious awareness and control. An ongoing study at Harvard, Project Implicit, took bias scores from more than 1.5 million Americans and determined most white people demonstrate bias against black people, even if they don’t know it.
This can come into play when a person views a group of people of a race or ethnic background other than their own. Implicit bias, when left unchecked, can cause them to perceive the group as acting together, even when they are not.
Because being aided by another person can be the difference between second- and third-degree robbery – in other words, between Measure 11 and non-Measure 11 – Borg said the question of implicit bias should be raised during questioning.
He said another key “is getting the prosecutor and victim to be comfortable that the intervention will solve the problem – that the kid won’t do it again. When there is a racial difference, it’s harder to identify with the defendant.”
American Psychological Association published a 2014 report suggesting black boys are perceived as less innocence than white boys.
The authors stated evidence showing “black boys are seen as older and less innocent, and that they prompt a less essential conception of childhood than do their White same-age peers.”
One of the studies featured in the report indicated that, beginning at age 10, there are racial differences in assessments of innocence. Test subjects indicated black boys were more culpable of suggested crimes, and when a felony crime was suggested with a photograph, they overestimated the age of black boys by more than four years.
In 2008, sociologist Michael Kimmel reported that middle-class white boys are not held fully accountable for their actions well into their 20s, but research suggests black children may be viewed as adults when they are as young as 13, leading the study’s authors to conclude that “black children may be perceived as innocent only until deemed suspicious.”
The Multnomah County District Attorney’s Office employs three black attorneys, representing 3.4 percent of its prosecutors. In total, there are 15 minority prosecutors, which means 83 percent of the prosecutors are white.
While this may be roughly representative of the county’s population, which is 76 percent white, the population processed through the district attorney’s office is only 67 percent white, with 20 percent being black, according to 2014 data analyzed by the MacArthur Foundation.
District Attorney Rod Underhill told Street Roots in an email: “Obviously, my office plays a greater role in some of the decision points than in others. The decision to arrest an individual rests primarily with law enforcement agencies.
“Neither the MacArthur report nor the actual data answers the question of why cases in which people of color are accused of serious criminal activity are referred to my office at a significantly higher (relative) rate than those in which Caucasians are similarly accused.”
He said he “would like to know more about the reasons surrounding this troubling and persistent issue.”
He said his office does not add to the disparity because it moves forward on cases against people of different racial and ethnic groups at roughly the same rate, as shown in the MacArthur Foundation’s report.
But this doesn’t explain his office’s propensity to charge black and Latino 15- to 17-year-olds as adults.
According to a 2003 article in Intelligence Report, the Southern Poverty Law Center’s magazine, “under American law, government prosecuting attorneys have nearly absolute and unreviewable power to choose whether or not to bring criminal charges and what charges to bring.”
If Bullitt stays out of trouble and doesn’t violate his probation, he’ll be able to expunge his criminal record in three years. However, his family worries the online media reports will haunt him forever.
Because all Measure 11 cases are in adult court, they were identified publically. Both KOIN and The Oregonian published stories about Bullitt and his friends’ arrest online, including their full names and mug shots.
(Update: KOIN removed their names and mug shots when they pleaded no-contest to a non-Measure 11 crime.)
Bullitt said he smiled, out of habit, for his mug shot, but police instructed him not to before taking the picture.
“Now for these kids moving forward,” Singh said, “anyone can just Google search their names and that’s going to be there, these stories about them. To me that’s the most ridiculous part about it, this idea that we’re treating kids as adults and then they get stigmatized the same way as adults do with these convictions, not recognizing that kids do make mistakes, and that kids change and grow and become adults.”
Nearly 70 testimonials submitted to the court in this case, obtained by Street Roots, painted a picture of four boys who came from caring and attentive families. These were kids who, the letter writers said, had talents and productive interests, but who had a terrible lapse in their teenage judgment.
The bulk of the letters were in support of Bullitt and Cabrera. According to their contents, Cabrera was a mentor to kids at Sunnyside Environmental School, where children were “visibly” distraught over news of his arrest. He was noticed by educators as a student who reached out to new or shy students and went out of his way to help a classmate with Down syndrome.
The authors stated that given a second chance, there was reason to believe the boys could correct their behavior and that trying them as adults and locking them up for the rest of their adolescence was not the best approach.
“When people were coming out of the woodwork to show their support, I knew it was serious,” said Bullitt’s mother, Melita. Before the incident, she wasn’t aware of Measure 11, and was shocked her son was being tried as an adult for his first offense.
“I knew it was unjust,” she said. “I have not learned a good lesson throughout this. I have learned a hard lesson.”
Bullitt was the teacher’s assistant in his high school dance class, where he helped instruct beginners, before his arrest. He dances in many styles – contemporary, jazz, hip hop and ballet – and he often takes a lead role in choreographed school performances.
Grant High School administrators decided Bullitt could return to school with a safety plan before the district attorney decided he could return to society by offering him a plea deal. But he has missed more than a month of school and will no longer be allowed to be the dance teacher’s TA, a decision his mother said disappointed him, but he’s glad to finally be back in school following spring break.
He might dance professionally one day, but what he really wants to be is a veterinarian, he said, because he likes animals – hardly the sentiment of a hardened criminal, said his grandfather, Fred Nemo.
In a voluntary letter that he asked police to give to his victim, Bullitt concluded: “I apologize with all my heart, and I want to you know that I’m not just writing this letter to get out of trouble, but I actually want you to have a good time in high school without having to worry about bullies and thieves. I’m sorry.”
While these traits and a letter of apology don’t excuse Bullitt’s behavior, his teachers and family believe he’s demonstrated potential for being able to contribute to society in a positive way, but they feared that potential could be eroded with a felony record or long prison sentence, when juvenile court would have sufficed.
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In 2013, a bill that would have required a hearing to see if the case should be waived back to juvenile court every time a prosecutor charged a minor as an adult died in committee.
“We have made various efforts to try to change Measure 11 in different ways and have not had any success,” McKechnie said. “The No. 1 barrier to getting anything done has been Measure 10, which passed the same time.”
Measure 10 amended the Oregon Constitution to require that any change to a voter-passed sentencing law must get a two-thirds majority in both the House and the Senate.
McKechnie’s organization, along with Partnership for Safety and Justice, Oregon ACLU and others, has advocated for Oregon to stop automatically trying 15-, 16- and 17-year-olds as adults in Measure 11 cases and roll back some of the mandatory minimums that take away all power from judges to weigh an individual’s history and circumstances when doling out a sentence.
“Until there’s a clear level of support on both sides of the aisle, these issues aren’t going to come up for a clear up or down vote. I think it would take more votes from the Republican side than there have been in the last few years to get it passed,” he said.
Polling suggests, however, that the Oregon voters are favorable to making some changes to Measure 11, he said, and victims and law enforcement groups are split on whether it should change.
A ballot measure campaign, however, would require major funding because a lot of money will come from the opposition, he said, which historically has been Crime Victims United and Oregon District Attorneys Association.
This means that until changes are made to the law, youths will continue to be charged as adults in counties, such as Multnomah, where district attorneys commonly use Measure 11 in juvenile cases. If the trends of the past 30 years hold steady, it will continue to disproportionately affect kids of color.
Contact Street Roots staff reporter Emily Green at emily@streetroots.org.
EDITORIAL: Enough with juvenile Measure 11 charges
