Note: This story was reported in collaboration with Louisville Magazine.
Aunts and uncles, cousins and friends — Aunt Cookie! Grandaddy Glen! — multiply every few minutes, compressing hip to hip on couches. Earlier, the gift of a ’97 Buick from his dad. And a rodeo of a March storm has left a rainbow over the Shawnee neighborhood in west Louisville. As far as 18th birthdays go, Tracey Wilson Jr. is having a good one. And he knows it.
A little more than a week earlier, Tracey sat alone in his white cinderblock room at the Louisville Youth Detention Center downtown, dreading how his birthday may unfold. When he turned 18 at midnight, he would be escorted out. Officially an adult, he could no longer be housed with juveniles. He’d get loaded into a Metro Corrections vehicle that would drive around the corner and deposit him into the “adult jail,” a place Tracey could only imagine is all edges and land mines, especially for a wiry, 5-foot-8 newbie.
Tracey had been arrested several months earlier, in October 2018. He was charged with robbery in the first degree, a class B felony. According to the Louisville Metro Police Department, Tracey acted as a lookout while two others robbed a convenience store at gunpoint. Tracey didn’t use the gun. Still, Kentucky law dictates that any juvenile, age 14 or older, who is involved in a felony with a firearm automatically gets bumped from juvenile court to adult circuit court. Though Tracey was 17 at the time of the alleged crime, he was charged as an adult and became known to the system as a “youthful offender.”
Experts and advocates say that process is harmful, and that the penalties youth face when charged as adults escalate the likelihood of failure later. In Louisville, this process captures black youth almost exclusively.
According to data from the Administrative Office of the Courts, 126 individuals were charged as youthful offenders in Jefferson County from 2016 to 2018. One hundred and seventeen of them — 93 percent — were black, and the vast majority were male. Black youth account for about 27 percent of Jefferson County’s population younger than 18.
Robbery in the first degree (robbery committed using physical force, a weapon or the threat of physical harm) is the most common felony that pushes black juveniles into the adult system in Louisville. (Murder, assault and wanton endangerment are examples of other charges.) Of those 126 youthful offenders, 54 black youth faced a robbery charge compared with two white youth and one Hispanic youth in the same time period.
Tracey, who has a thin mustache and an often-skittish energy, weaves through his birthday party, joking with friends, eating hot wings and scrolling on his phone. A few days before Tracey’s birthday, the organization Black Lives Matter and the Louisville Community Bail Fund each contributed $5,000 and handed a $10,000 cashier’s check to the circuit court clerk, posting his bond. He’d been in custody for five months, his family without the means to pay the bond themselves.
In the weeks leading up to his birthday, Mitzi Wilson, his mother, lost sleep. He’s not “mentally ready” for the “big jail,” she said. On the afternoon his bond was paid, she and her youngest son, Tré, hung around the courthouse for hours anxiously awaiting Tracey’s release. Tré, a curious 11-year-old, listened closely as his mother and a woman who’d come to support the family discussed how the process would go. In a quiet moment, Tré looked up at his mom, an urgent thought behind his light-brown eyes. “Mama, you know what I just figured out?” he said. “We are going to bond (Tracey) and (he and I) haven’t really bonded together.” Tré had last seen his brother at Christmas.
A short time later, in the youth detention center’s waiting room, with the heavy click of a door designed to keep people in, out came Tracey wearing a shy smile, a plastic bag of clothes slung over his shoulder. Tré squealed. Mitzi leapt to her feet. “Look who’s a free man!” she cheered, fighting back tears. Tracey walked outside and gulped the 40-degree air, shivering. “This is my first time outside. I’ve been here since October,” he said. “I’m joyful.”
A week later, on the evening of his March 14 birthday, his family cocoons him as they get ready to blow out candles and slice into a sheet cake with a photo of Tracey as a newborn and “Happy 18th Birthday Tra-Tra” in blue icing. Three, two, one. Happy birthday to you. Cha, cha, cha….
Eighteen years old. It’s an age teens eagerly drift toward, for the promise of freedom and independence. But for Tracey and his family, adulthood sprung early and hit hard. Though he no longer waited in lockup, he still faced a robbery charge that could carry a sentence of ten years in prison. In Kentucky, with Louisville as the state’s largest city, Jefferson County sends the most black juveniles into adult court. But Louisville mimics a pattern seen across the nation and across Kentucky.
A Kentucky Center for Investigative Reporting analysis of youthful offender cases across the state, dating from 2014 to 2018, found that nearly 80 percent of the youthful offender cases stem from Jefferson or Fayette County, home to the two largest cities. But in parts of the state with much smaller black populations, disparities persist: In virtually all metro areas and even in Appalachia, where the population is 80 percent white, black youth are charged as adults more often than their white counterparts. That’s not just in rates, but in raw numbers. Only in non-Appalachian rural counties are more white youth charged as youthful offenders.
Racial disparity in the juvenile justice system troubles many Kentucky legislators, Republicans and Democrats alike. Making change, particularly when it comes to youthful offenders, though, is a hard sell. Kids transferred to adult court are charged with serious offenses, often involving guns. There’s a long-held belief that violent crime deserves scare-’em-straight punishment. That so many black youth wind up charged with violent crimes, well, that’s merely a symptom of chronic societal conditions, the thinking goes. “There’s still a strong mindset out there that ‘get tough on crime’ works and that racial disparities have nothing to do with racism,” says Amanda Mullins Bear, managing attorney for the Children’s Law Center, a Kentucky-based youth-advocacy organization. “Neither of which are true.”
Scientists have largely demystified the adolescent brain. They know it’s not fully wired for reason and impulse control, and that it’s highly attuned for reward and peer approval. This can lead to poor decisions. Parents, teachers and much of society understand that, and extend some grace when youth mess up, though it’s less likely if you’re black or brown. Look at school suspension rates, arrests, juvenile incarceration rates and sentencing outcomes: Black youth emerge as the ones facing the harshest penalties.
One morning after a court hearing for her son, Mitzi Wilson vents. She wonders: Isn’t there a juvenile system for a reason? Tracey didn’t even have a juvenile record before this incident. She says he’s a “good kid for real,” who sometimes mixes with those who are a bad influence. “I’m like, how do you be a juvenile and they charge you as an adult?” she says. “And then the more and more I kept going to the (youth detention center) to visit (him), the more and more I kept hearing parents saying that their kids have circuit court. How?”
Mandatory Transfer Emerges Amid Juvenile Crime Boom
Age draws necessary lines for all sorts of reasons — doses of medicine, when to enter what grade. In 1899, America acknowledged that age should also determine how kids are punished for crimes. Up until then, juvenile status didn’t exist. Kids were mini-adults, tried and doing time alongside adults. In the late 1800s and early 1900s, a progressive push encouraged lawmakers to accept that children often committed crimes due to need, be it for money or food. And incarcerating children with adults encouraged vulnerable minds to absorb the criminal behavior around them. In 1899, Illinois created the first juvenile court.
A pivot toward compassion and rehabilitation meant judges no longer simply pinned a sentence on a kid based solely on the crime. Instead, judges had heaps of discretion, creating individual punishments for every child. And in 1974, the federal Juvenile Justice and Delinquency Prevention Act established standards for how to treat kids charged with crimes, focusing on rehabilitation and reintegration programs. Still, black youth didn’t benefit from these changes like their white peers. For decades, juvenile facilities had been segregated. “Back in the day, white kids are being rehabilitated or reformed and they were being taught trades and things like that. Black kids were not,” says Cherie Dawson-Edwards, a University of Louisville professor who researches race and the criminal justice system. “(Black kids) were in more punitive environments. So this isn’t new stuff.”
In the 1980s and ’90s, attitudes about juvenile justice shifted. As violent crime spiked nationwide, skepticism of the juvenile system grew, a chorus of influential voices deeming it too weak. Hillary Clinton’s use of the term “superpredators,” in reference to youth involved in serious gang activity, caught on and drifted, hardening the public view of child offenders, particularly kids of color.
Between 1992 and 1999, nearly every state reacted with laws that made it easier to charge juveniles as adults for serious offenses. In 1996, the Kentucky legislature passed an automatic transfer, or mandatory waiver, law. That’s the law that bumped Tracey Wilson into adult court because of his alleged complicity to the robbery that involved a gun.
Other paths can take a child into adult court. Kentucky law permits juvenile court judges to allow youth to face charges in circuit court if they feel the alleged crime warrants transfer, and that it’s in the best interest of the public and the juvenile. For instance, if a youth is charged with something like rape or a stabbing — or throwing rocks at a sheriff’s deputy patrol car, causing the deputy to wreck, as was the case for two Boyle County teens this past spring — they can be tried as adults. But for mandatory transfer offenses, all discretion is gone.
The mandatory transfer law has sent Tracey and hundreds of other juveniles across Kentucky into adult court, and they’re mostly, disproportionately black. While black youth make up 11 percent of the juvenile population statewide, they represent 57 percent of youth transferred to adult court.
While juvenile records are private, getting tried as an adult means the offense becomes public record. Landlords and employers can easily trace past mistakes.
Lana Fazio, the deputy chief for the juvenile division of the Louisville Metro Public Defender’s office, calls it “egregious” that, for some kids, one bad decision can carry such a heavy toll. “You’re looking at a 14-year-old child, and you are telling them that if we go to trial, and we lose, you’re not getting less than ten years,” she says. “They have no idea. Their life is kind of over before it begins.”
Republican state Sen. Whitney Westerfield used to work as an assistant commonwealth’s attorney in Christian County from 2007 to 2012 and handled several youthful offender cases. Now, as a Republican legislator, he opposes mandatory transfer. “I think you’ll find that there is probably a consensus amongst the bench, the prosecution and the defense bar that are opposed to it,” he says, adding that, in his experience, mandatory transfer can on occasion make those in the courtroom feel like their “hands are tied.”
Mike O’Connell, the Jefferson County Attorney, believes the law “doesn’t work.” His office handles juvenile cases that stay in juvenile court. He says that a “one-size-fits-all” approach isn’t “best for every youth that is a certain age and does a certain stupid, malicious, crazy thing.”
But in the Office of the Commonwealth’s Attorney in Jefferson County, where youthful offender cases are prosecuted, mandatory transfer is embraced. “I would say it is the one thing we’re doing right in the juvenile justice system,” says Critt Cunningham, the juvenile crime liaison with the Office of the Commonwealth’s Attorney. “If you have any hope of curbing gun violence, you have to be consistent with your message that it’s wrong and it’s going to have serious consequences.”
From 2016 to 2018, 111 of the youthful offenders in Louisville whose race was known were black males. Seven were white males. Six were black females. There were no white females. Cunningham says it’s unfortunate that some predominantly black Louisville neighborhoods are “rougher” due to “historical factors.” All his office can do, Cunningham says, is do their jobs fairly.
In the adult system, sentences are longer. Because of the serious nature of the offenses, juveniles often end up with high bonds. Like Tracey Wilson, who sat in custody for five months, charged youth often wait in detention centers as their cases navigate the court system. Amanda Mullins Bear of the Children’s Law Center says stability, connections to the community and consistent education are among the most important factors in keeping a juvenile from repeating criminal behavior. “When you’re in a facility for a long time, those things just aren’t present,” she says.
Exposure to the adult system likely frightens many juveniles. It doesn’t necessarily forever steer them away from crime. A policy brief from the Children’s Law Center points to research, which shows that “on average children prosecuted as adults are 34 percent more likely to commit additional felony offenses than children who committed a similar initial offense but remained in the juvenile system.” Mullins Bear says one study that tracked youthful offenders over several years found that robbery offenders specifically tended to reoffend, and did so more quickly than youthful offenders charged with similar crimes. “If this research is correct, then we are sending all these kids who are charged with robbery (into the adult system) and increasing their likelihood of reoffending,” she says.
‘That victim is still a victim’
When teens commit serious crimes, particularly if they’re nudging close to adulthood — 16- and 17-year-olds — there’s a murmur, a gut feeling among some, particularly law enforcement, that many know better. (In Jefferson County, of the 126 youthful offenders between 2016 and 2018, 81 percent were 16 or 17 years old.) “They’re 15-, 16-, 17-year-olds committing gun crimes,” Cunningham says. “None of them are unaware that they’re not supposed to have a gun or that it’s dangerous or that people could lose their lives.”
Cunningham argues that Kentucky does a good job ensuring juveniles charged as adults remain somewhat insulated. A few states put youthful offenders in an adult jail or prison setting, but Kentucky waits until they turn 18. And while adults lose the option of probation for certain violent offenses, as a juvenile, probation remains on the table regardless of the charge. Lastly, Kentucky re-sentences the youth once they turn 18. So a prison sentence could soften if a judge determines that a juvenile shows promise.
Sitting in his office on the second floor of a brick building across the street from the jail downtown, Cunningham lists two cases he has prosecuted: a 15-year-old who he says strapped on a bulletproof vest and shot at a kid across the street, and one in which the chaos of a drive-by shooting resulted in a kid accidentally shooting his best friend in the head.
Given the violence, the weight of some juvenile crimes, Cunningham says shielding kids from tough consequences seems illogical. “The juvenile justice system isn’t a standalone system,” he says. “It’s built into the larger criminal justice system. Do you want someone that’s shooting at people sent to a (juvenile) facility for three months and then leave? There has to be something you can do to protect the community.” Gun crime, he says, is a “line in the sand,” an action you “can’t allow to happen.”
It’s a sentiment shared by the Louisville Metro Police Department, which cites curbing gun violence as its top priority. “The person who has died at the hands of a 16- or 17-year-old is no different than the person who was murdered by a 25-year-old or 40-year-old,” says Jessie Halladay, an LMPD spokesperson. “That victim is still a victim.”
Those pushing for juvenile justice reform agree that serious crimes demand a firm response. They just can’t dismiss that other line in the sand: that anyone younger than 18 is still considered a juvenile. “Is it a tough call when it’s a 17-and-a-half-year old? Sure it is,” Westerfield, the state senator, says. “We tend to think that kid knows a lot more about what they’re doing than a 10-year-old kid does. But as long as we still believe that kids are kids, we’ve got to tailor our response to reflect that.”
Dawson-Edwards, the U of L professor, knows that black children march into adult court more frequently than white kids. That it’s expected and blends into the background, that doesn’t surprise her either. “There is increasing research that talks about the adultification of black kids,” she says, referring to the case of Tamir Rice, a 12-year-old boy in Cleveland who was shot by police in 2014 after being spotted playing with a toy gun. “The person who called (him) into the police said it was a young adult male, a black male, and he was 12. With the adultification, whether it’s with black boys or black girls, there’s an expectation that you are more culpable or responsible, or you should know better. There’s an application of adulthood on them, which makes what they did seem worse. Because you’re not applying that same youthful lens to them as you are to white kids. So they seem more threatening.”
In recent years the American Bar Association has recommended that children be tried as juveniles, with a focus on “rehabilitating rather than punishing,” just as the juvenile system intended when it was first created more than a century ago. In the past 15 years, the U.S. Supreme Court has affirmed the differences between children and adults, ruling the death penalty and mandatory life without parole unconstitutional for children under the age of 18 due to their “lack of maturity and an underdeveloped sense of responsibility.”
That movement is largely due to advances in brain science. Neuroscientists have discovered that the juvenile brain is not fully developed until a person reaches their mid-20s. Each individual matures at their own pace. Neglect in early childhood can hinder brain development. Exposure to violence and trauma can wire the brain for heightened anxiety, even aggression. No matter the particulars of childhood, all juveniles lack a fully developed prefrontal cortex, the part of the brain that allows us to pause and reflect, delaying a possible bad decision. In the teenage years, the social and emotional system of the brain rapidly blooms, faster than cognitive control, setting up a phase in which adolescents take risks, seek peer approval and leap on and off emotional cliffs.
Robert Walker, a retired University of Kentucky assistant professor in the department of behavioral health, says of course teens grasp that guns pose danger. “Do they understand the meaning of death? Do they understand what harm does to people? Do they understand what ramifications this does to a life and themselves?” Walker asks, rhetorically. “The answer is no.” Teens need punishment for serious offenses, he says, but he casts holding the juvenile brain to adult standards as “totally nuts.”
Dawson-Edwards says automatic transfer to adult court dismisses both what we know about the teen brain and teen culture. They’re social creatures, often filling time and space in groups. “One of the philosophies for punishment is deterrence. That’s great for adults,” Dawson-Edwards says. “But for young people, there’s not a lot that deters them. They don’t think consequentially enough to say: ‘Oh, I better not go to the store with my friend who’s with his friend that I don’t know, because what if he has a gun?’ They’re not thinking that far. Some of the things we apply to youth we get from the adult justice system and it just doesn’t make sense.”
Late on the morning of Oct. 18, 2018, Tracey Wilson says he went to the West End Market, a now-closed convenience store in a brick building at the corner of 20th and Bank streets, for ice cream and a box of “blacks” (cigarillos). He should’ve been at Liberty High School, an alternative school off Preston Highway, but he had stopped going regularly. Tracey says he spoke to two boys at the store for several minutes, the same boys who committed the alleged armed robbery. When they rushed the clerk, Tracey says he ran out, only to U-turn and look through a store window. Curiosity got the best of him, he says.
“I was like, is this really going on? They really robbing this store?” Tracey says.
The store clerk, Anthony Hill, remembers it differently. He says he noticed Tracey in a corner of the store talking to two individuals who had hoods tied tightly enough to cover everything but their eyes. When the only other person in the store, a Little Debbie delivery man, went to his truck, Hill says Tracey slipped outside the door and stood watch. Hill says one of the boys pointed a gun at him and demanded money while the other boy scooped up bongs from a display case. “I wasn’t really scared,” Hill recalls. “Just mad.”
Tracey’s face wasn’t covered, and he was a regular customer. He returned to the store the next day. It wasn’t hard for police to identify him as a suspect. Four days after the robbery, as Tracey walked in the Portland neighborhood with a friend, police stopped him, took him in for questioning and ended up arresting him.
Only Tracey and the two other boys walked the timeline of the robbery, and only they know the texture of every decision and detail. No matter his level of involvement, no matter the outcome of his case, Tracey was now in the gears of a system that processes Tracey after Tracey after Tracey.
It’s worth noting that in 2014, Kentucky passed a major juvenile reform bill that greatly scaled back arrests of youth for misdemeanors and other low-level offenses, like truancy or running away. But the reforms largely benefited white youth, who tend to be older when they pick up their first charges, and those charges tend to be less serious. As the overall number of arrests shrunk, instead of putting a dent in the racial disparity of who’s getting arrested and locked up, the reform put a spotlight on it. LMPD data from 2014 shows that 3,000 juvenile arrests were made and that 65 percent of those arrests were black youth. In 2018, LMPD arrested fewer than 2,000 juveniles. Sixty-eight percent were black.
Halladay, the LMPD spokesperson, says many officers recognize that past policies, like redlining, have structured largely black neighborhoods with pockets of violence and poverty. But when a crime happens, she says, police can only respond to the matter at hand. “Our job is to determine whether there’s probable cause to believe a crime was committed under the law,” she says.
Tracey’s Shawnee neighborhood is one that LMPD saturates in an effort to fight crime. In 2018, LMPD made its highest total of juvenile arrests — nearly 400 — in the Second Division, an area that includes the Park Hill, Shawnee, California and Chickasaw neighborhoods in west Louisville. The Fifth Division, which circles Crescent Hill and much of the Highlands, totaled about 61 juvenile arrests.
“If you look for things in a certain part of town for certain young people, that’s where you’re going to find them,” Dawson-Edwards says. She adds that while most childhoods in Louisville are preserved, violence can shape the lives of juveniles living in high-crime areas. “If you live in a neighborhood that has violence, you want to feel protected,” she says. That may mean keeping a gun close by. Mistakes can strike depending on when and why the gun is used. “I’m not an expert on the prevalence of youth having firearms, whether they’re black or white,” she says. “But there’s context to all of this. And our system is not designed always for context, even though if any system should be, it would be the juvenile (system).”
Hill, the clerk who was robbed, worked at the market on 20th and Bank for nearly ten years. The incident in October 2018 was the first time he was held up. But he says the problem of armed youth is real. He sees it. Still, when asked about that day, and if Tracey’s involvement in the robbery merits a possible ten-year prison sentence, he shrugs. “Maybe not that much time,” Hill says, pausing. “Sometimes that’s what it takes. I don’t know.”
After Murder, An Adult Charge And A Second Chance
Understandably, justice stiffens, broad-shouldered and severe, when there’s a murder, whether the accused is an adult or a kid. In mid-August 2016, 14-year-old Da-Airra Hayden had just completed her first week of high school. It would be her only week of high school. In the early-morning hours of Aug. 16, she allegedly shot and killed 53-year-old Larry Pope. A 19-year-old friend was involved in the incident as well.
Pope apparently picked up the girls at 26th Street and Broadway at 2:30 in the morning. They drove to an alley in the Shawnee neighborhood. At this point, the strands split. It may have been a drug transaction gone sideways or the girls attempting to rob him or, as Da-Airra and her lawyer would argue, an act of self-defense against Pope after he threatened to kill the girls. (Prosecutors vigorously refuted this claim in court.) At about 3 a.m., shots were fired. Pope, who was unarmed, died, his foot still on the gas pedal. The tires of his blue Lincoln spun and smoked upon slamming into a fence and trees.
By the evening of Aug. 16, Da-Airra was arrested. Police interrogated the 14-year-old several times over the course of 18 hours, her parents unaware of what was going on. A lot was going on. Within the first hour of questioning at police headquarters, Da-Airra, who has type I diabetes, stated that she was feeling sick and needed water. Court records show a detective returned with a soda that spiked her blood sugar to levels in which headaches and nausea can occur. EMS arrived and transported her to Kosair Children’s Hospital. The interrogation continued.
Da-Airra’s parents, DaRon and Levonda Hayden, received calls from Kosair. On the morning of Aug. 17, they say they went to the hospital and tried to see their youngest daughter but were told they could not because she was in police custody. “We’re hearing rumors from Facebook that a 14-year-old had shot somebody,” her father recalls. “Then I get a call that my truck was found in the area of where it happened. So we’re putting two and two together.” (Da-Airra had stolen her father’s truck a few days prior to the shooting.) Police are supposed to notify parents upon a juvenile’s arrest and detain that child for no more than two hours; a court official can extend the window another ten hours in certain cases. In Da-Airra’s case, a judge ruled that extra time was never authorized.
Regardless, she was charged as an adult for murder, largely based on incriminating things she said to police over those 18 hours. Between the years of 2016 to 2018, one white youth in Louisville was charged with murder, compared with 24 black youth. Da-Airra’s bond was set at $75,000, too high for the family to afford.
Da-Airra’s parents feared this coming. At about eight years old, their little girl who loved basketball and dancing withdrew. A grandmother she was close with and occasionally lived with died. Soon after came her diagnosis of type I diabetes and regular trips to the hospital due to complications. Something new and difficult stirred within her, her father recalls. Her mother says, “One time she took Mace to school and Maced a girl and the whole school had to get shut down.” By 13, Da-Airra was stealing cars, routinely skipping school and running away from home. “There was nothing we could do to stop her,” her mother says. “It was one thing after another.”
Da-Airra struggled with depression. Her parents say they tried to get her mental-health treatment and enrolled her in a number of support programs. Listening to them talk about their daughter and the murder, it’s apparent they love her, but hope deflated long ago. For a parent, that’s a ragged place to land. When asked what might help Da-Airra, her mother unclasps her hands, throws them upward and presses them back together. “I don’t know,” she says, softly.
For a while, Da-Airra’s parents say, things were going well. After a new judge was assigned to their daughter’s case, and after two years locked up in a juvenile facility, Da-Airra pleaded guilty to murder and manslaughter. She was sentenced to five years of probation. While in the youth detention center, she had earned her high school diploma and, this past summer, her father says, she was working at McDonald’s, then UPS. She had arranged to go to Gatlinburg, Tennessee, for a fall trip with her family. But in late August, she was arrested again.
According to LMPD, Da-Airra, another juvenile and an adult friend went on a two-day robbery spree, arranging to sell items with somebody online, only to meet them in person and rob them at gunpoint. Because the new felony charges involved a gun, they were automatically transferred to circuit court. “The judge told her, ‘If you get in trouble again, you’re going to do ten years,’” her mother recalls. “And she chose to get with the wrong people.”
Da-Airra’s parents believe their daughter deserves punishment, especially for what happened to Pope. (Pope’s wife declined to be interviewed.) “It’s horrible what she did,” her mother says. “You just don’t get no worse than that.” They weren’t surprised when she was charged as an adult for the shooting.
They believe that in that alley, gun in hand, heated words exchanged, it was an equation too big for the moment. Maybe Da-Airra panicked. Her father says it feels like, if you’re black, there’s no room for error. “If you put the same circumstances — the man, his age, a -year-old man trying to pick up a teenage white girl, 14 years old, in the alley, and that white girl defended herself? Deal would’ve been squashed. It wouldn’t have went as far as it went,” he says. “She wouldn’t have had to do no two years. She wouldn’t have been locked up. And that’s the difference.”
That so many black youth end up in the adult system doesn’t surprise anyone familiar with criminal justice. “I think the system is doing what it was designed to do,” says Keturah Herron, the ACLU of Kentucky’s juvenile justice field organizer. She agrees that draping the problem on society makes sense. “Our communities and our government say we’re going to put all these dollars in police in these communities, but we’re not going to put money to make sure that these kids have community centers, make sure that they can go swimming in the summer, make sure that (if) there was a murder on this block, we’re going to make sure that this block has therapeutic services,” she says. “If you don’t put money into people, into neighborhoods, then the same things are going to occur.”
Conversations about racial disparity often turn brittle, impossible. How do we begin mending the past 400 years, the legacy of slavery, racist policy, the whole of black life in America? There are those who call for demolishing the entire criminal justice system as we know it and starting from scratch. More moderate advocates say not to underestimate the impact of information and policy.
When state Sen. Westerfield worked as a prosecutor in Christian County, the disproportionality of black youthful offenders was not something he was aware of. Each case was handled individually, one story at a time. Once he became a policymaker and was presented with research on the number of incarcerated black youth and youthful offenders, the magnitude of the problem hit. “Once you’ve seen the data, you can’t unsee it,” he says. In his region of western Kentucky, more than twice as many nonwhite youth were charged as youthful offenders than white youth, state data shows.
Westerfield believes in juvenile rehabilitation, specifically pointing to successful programs in other states he has visited, in which there’s an emphasis on therapy, job training and unconditional support, even for the most violent offenders. “Ultimately, I subscribe to the Frederick Douglass quote, ‘It is easier to build strong children than to repair broken men,’” Westerfield says. A majority of kids charged as adults will end up back in the community at some point, after all.
For the upcoming legislative session, he’d like to see Kentucky implement a minimum age of criminal responsibility. As it is now, kids as young as 7 years old have been charged with a felony in Louisville, according to police data. Westerfield would like to make it so that only juveniles who’ve committed crimes against people, not property, would wind up in circuit court. (This wouldn’t affect Tracey’s case and all the other armed robbery cases; that’s considered a crime against a person.)
In December, with a month to go before the legislative session begins, Westerfield has mandatory transfer on his mind. He’s not sure when or if he’ll introduce a bill that would wipe it from the books, but there are numerous changes he’d like to make to the juvenile justice system, and he knows he won’t be successful if he introduces too many at once. Eventually, he’d like to return discretion to juvenile judges, giving them time to learn about each case, about each kid before deciding if transferring a juvenile to circuit court is best. Mullins Bear, of the Children’s Law Center, agrees that erasing mandatory transfer would benefit youth.
“Whether giving the judges more discretion is going to reduce disparities,” she says, briefly pausing, “time will only tell.”
A Plea Entered, But The Case Isn’t Over
It’s about 9 in the morning on July 11, the time of day at the Jefferson County Judicial Center when attorneys move with great purpose but the rest of the place yawns, reluctant to wake. Tracey walks in, a jolt of energy. “I’m great,” he announces. Dressed in khakis and a blue-and-white checkered shirt, he’s sure a few girls just drifted glances his way. “They was looking at me,” he says with a smirk.
All spring and into summer, Tracey has been weighing whether or not to fight his robbery charge or take a plea deal. Still unsure what to do, he needs to decide before the morning’s pre-trial hearing. He admits, “On the outside, I’m smiling. But I know inside I’m nervous. I feel it in my guts.”
According to data from Louisville Metro’s Juvenile Justice Advisory Committee, of the 126 youthful offenders in Jefferson County from 2016 to 2018, only two went to trial for their offenses. Both were acquitted. Prosecutors or judges dismissed about a dozen cases, but most youth wound up pleading guilty to either original or amended charges.
Over the next hour, Tracey paces, circling from family and friends over to a bench with his public defender, then back again. One minute he is talking about hiring a private attorney and going to trial, only to later lean toward the plea. There’s surveillance video of him talking to those boys. That could persuade jurors that he was in on it, he worries.
If a jury finds him guilty, Tracey could spend a part of his 20s in prison. Five months confined at the youth detention center was enough. “I don’t like the fact of being caged,” he says. A friend who has attended all of Tracey’s hearings tries to help him move toward a decision. “What if in this situation there is no right answer?” she asks. “What if it’s just whatever you pick?”
As part of the plea, Tracey is supposed to talk further with detectives about the robbery, perhaps to help identify the other two suspects. Mitzi Wilson, Tracey’s mother, bristles, worried this could put her son in danger. “In the long run, if you do snitch on people and it comes out in the motion of discovery, or you have got to be the one to testify…” she says, trailing off. Tracey has already been shot. In fall 2018, early one morning as he waited for his school bus, someone drove by and shot at him, hitting his wrist. Nerve damage keeps a few fingers on his right hand curled inward.
The plea offer is tempting. Prosecutors would amend his robbery charge to a lesser felony. He’d have to serve five years diversion, essentially probation that ends with the felony dropped from his record as long as he does not commit another offense and doesn’t test positive for alcohol or drugs over those five years.
For about 10 minutes, Tracey rambles, his body knotted up and fidgeting. Five years.
He’ll need to cut out a few friends. What if he screws up? Police patrol his neighborhood heavily. Just walking around can attract attention. “Every time they come up to me, they say I fit a description,” Tracey will say later. “I always fit someone’s description.” But the plea does feel like closure. No juries. No surveillance video. Maybe no felony record, if all goes well.
It’s impossible to know exactly how juvenile court would’ve resolved Tracey’s charge. It may have resulted in a few months in a juvenile detention center or a treatment facility often referred to as “camp.” Time in the state penitentiary would not have been a possibility.
By about 11 a.m., Tracey’s in front of circuit court judge Angela McCormick Bisig.
“How do you plead?” Bisig asks. “Guilty or not guilty?”
“I plead guilty,” Tracey says.
In the back of the court, his mother lets out a sigh. Her eyes drop; her heart follows. You don’t have nothing to do with it, she thinks. She didn’t want him to take the plea. “But it was his decision,” she’ll later say. He is now an adult. The plea deal recommends he talk to detectives, but it does not request that he attend a job-training program, or counseling, or school. Tracey signs the paperwork, neatly printing his name.
As his hearing ends, Bisig catches Tracey’s eye and leans forward.
“You have the ability to move forward from this, this incident and this very serious felony charge, and your lawyer has set you up to do that,” Bisig says. “You have got to make very smart decisions these next few years.
“You can’t make stupid mistakes like some other young men your age might be at liberty to make because, if you lose the diversion program, you’re going to lose the opportunity to move forward with a clean record.
“I always think the 30-year-old you would tell the 18-year-old or 20-year-old you: ‘Don’t mess this up for me,’” she adds. “Mr. Wilson, I do not want to see you here with any violations of your diversion.”
“You won’t,” Tracey says. “I promise.”
A week before Christmas, at 8:45 on a Tuesday morning, police pull up to a two-story home with a long driveway on Northwestern Parkway, in the Portland neighborhood. They see a gray Dodge Caravan, its doors open, the engine still running. The officers are certain it’s the stolen car they’re looking for. The Caravan’s owner had been tracking it with a GPS device once someone drove off with it, leading officers to this driveway.
Police eye two men. One is in his late 20s. The other is Tracey.
According to the police citation, Tracey says he was in the back seat of the car looking for tools as the older man removed the car’s stereo. Tracey is charged with a felony: receiving stolen property in the amount of $10,000 or more. This likely violates his plea deal. How this will unravel, the justice system will decide in the weeks and months ahead.
On that Tuesday morning, police arrest both. Tracey is booked into the adult jail.
Correction: The U.S. Supreme Court has affirmed the differences between children and adults, citing their “lack of maturity and an underdeveloped sense of responsibility.” A previous version of this sentence contained a typo.