Colorado lawmakers will consider a proposal again this year to raise the age that children can face criminal charges, from 10 to 13 years old.

Legislation introduced at the state Capitol in March is a more robust version of a bill that failed last year. The plan is to send the youngest criminal offenders directly into therapy and other community programs, instead of arresting and holding them in detention in a juvenile corrections center. The only exception included in the legislation is homicide. 

Supporters point to statistics that show young children who spend time in juvenile detention are more likely to return to the corrections system as kids and adults, with studies showing that it’s difficult to get their lives on track after being branded as criminals. 

“Are we making kids better or are we making them worse?” asked Kyle Piccola, vice president of advocacy for Healthier Colorado, which supports the proposal. “We came to the conclusion that the system as it is today is making kids worse.” 

The major difference in this year’s legislation is that it would require every county to set up a system in which authorities would refer children who get into criminal trouble to mentoring, therapy, anger management and substance use treatment. Last year, opponents had argued that children were unlikely to get rehabilitation services if they were never charged with a crime.  

But, same as last year, the proposal doesn’t have broad support from the law enforcement community. District attorneys say Colorado’s juvenile justice system has evolved so much in the past several years that nearly all 10- to 12-year-olds who are accused of crimes end up not behind bars but in diversion programs intended to rehabilitate them. And, they argue, the legislation would strip the judicial system’s ability to levy consequences against kids who don’t participate in required services.

It’s extremely rare that children that young end up sentenced, or “committed,” to spend time in a juvenile detention center. In the past 10 years, only four kids 12 and under were committed in Colorado. 

Many more, however, were arrested and detained in juvenile facilities while a judge decided their case.

In the six years from 2016 to 2021, 455 kids ages 10, 11 and 12 were detained for days or months in the Division of Youth Services. Of those, 49 were 10-year-olds. 

The crimes range from weapons charges and auto theft to homicide and attempted homicide. In the last fiscal year, one 12-year-old was detained on a homicide charge and three 12-year-olds were held on attempted homicide charges, according to Division of Youth Services data released to The Sun. 

Two children, one 12 and one 11, were held on sexual assault charges. 

The state Department of Human Services, which includes the youth corrections system, is not taking a position on the legislation. 

When children who are 10, 11 or 12 get in trouble with law enforcement, officers would complete a form to refer them to a so-called “collaborative management program.” The programs, created by state law in 2004, already exist in 51 of Colorado’s 64 counties and coordinate services for families and children involved in multiple systems, such as child welfare and juvenile justice.

The programs would create a plan for each child, a mix of services that could include mentoring, anger management, family therapy and individual counseling. In cases in which the crime had a victim, the victim could contribute input about the services plan. Victims would still be eligible for victims’ services and compensation. 

In cases of a felony sex offense, the county human services department would also participate in the plan and would decide whether to open a child abuse or neglect case. 

The bill says children who violate a protection order intended to protect the victim in a case cannot be held in custody. Instead, a court could order the child to participate in a collaborative management program. 

It also would outlaw transferring the criminal cases of 13-year-olds to adult court.

An organization called Fully Liberated Youth is among those that would provide services to kids who come into contact with law enforcement but are too young to face prosecution. 

The agency already has worked with about 100 children in four judicial districts in the Denver area through pretrial diversion, a program in which a judge orders a juvenile offender to complete a rehabilitation program in order to avoid criminal charges. 

Fully Liberated Youth also has programs in school districts targeting young people who often miss class, get in fights or are involved in gangs. School staff and authorities can refer students to the program. 

If the legislation passes, it likely would send more funding to Fully Liberated Youth and similar programs.

“We’re asking bigger questions about why is this young person engaging in these activities in the first place, instead of trying to incarcerate our way out of the problem,” said Preston Adams, a co-founder of the program. 

A child who is stealing, for example, might need help with food assistance. A child might act out because they need a special learning program in school. Other kids need a mentor on the Fully Liberated Youth team. 

“It’s a comprehensive plan for the client and the family to get to the root of the problem,” Adams said. 

The proposal to get kids into services instead of behind bars is also a way to address the racial bias that exists in the juvenile justice system, said the organization’s other co-founder, Natalie Baddour. Nearly all of the children who participate in the organization’s programs — 98% — are Black and brown, she said. Black youth are overrepresented in Colorado’s judicial system, according to department data. 

Rep. Serena Gonzales-Gutierrez, a Denver Democrat and a prime sponsor of the legislation, has worked with young people in the child welfare and juvenile justice systems and ran Denver’s collaborative management program for 10 years.

“We continue to hear his concern that the juvenile justice system was the only place that these kids could access services, which in my experience, I know is actually pretty false,” she said. “There are a number of resources and services that are already available. It was a matter of how do we make sure that they are made more easily accessible and available to these kids, if they are no longer going through that system.”

Rep. Ryan Armagost, a Berthoud Republican and the other prime sponsor of the bill, is a former sheriff’s deputy and worked in the prison system. 

“That’s part of the reason that brought me to this bill,” he said. “I’ve seen the revolving door.” 

“I carried handcuffs to detain somebody. I never had to put them on a 12-year-old, they’re not even designed to fit a 12-year-old, so the fact that we are considering this as an option for kids 12 and under is frustrating to me.”

But the Colorado District Attorneys’ Council opposes the measure. 

The juvenile justice system is working fine, said Tom Raynes, a former district attorney in Montrose and now executive director of the council. Criminal filings against juveniles have dropped 50% in the past 20 years because kids are sent to diversion programs instead. And in 2017, Colorado stopped allowing detention of 10- to 12-year-olds except for felonies or weapons charges. 

“I feel like they are attempting to unwind a system that’s working extremely well,” he said. 

The state is already diverting most juvenile offenders to support services, and the success rate for those programs is high. But today, when a child violates court orders to participate in therapy or not contact a victim, a judge can send them to detention. The legislation would take away that consequence, replacing it with meetings about service plans and shifting accountability from the child to their parents, who could become the subject of a child neglect case if their child does not follow the service plan, Raynes said.

“Failure to comply has little consequence, until perhaps an ultimate decision to file a dependency and neglect action against the parents, which is this kind of exaggerated premise that all kids who get in trouble have neglectful or abusive parents,” he said. 

In the decade from 2011 to 2021, there were 973 violent and serious offenses filed in Colorado against kids ages 10-12, according to the council. That included 14 murder and attempted murder charges. Yet only four kids were sentenced to serve time in a juvenile corrections facility. 

“You’re seeing that the probationary and community services are working,” said Jessica Dotter, the council’s sex assault resource prosecutor. 

In the past decade, children ages 10-12 were accused of 1,500 sex cases. More than half were sexual assault on a child, meaning the child was victimizing a child younger than them, she said. 

“It’s a really harsh reality and one that most people don’t want to believe occurs with this population,” Dotter said. “And it’s worrisome that the bill does not have any sort of carve-outs for violent crimes other than murder, and worrisome that the bill does not have any carve-out for sexual offenses.” Last year’s proposal was stripped down to a task force, which recently released its final report.

This story is from The Colorado Sun, a journalist-owned news outlet based in Denver and covering the state. For more, and to support The Colorado Sun, visit coloradosun.com. The Colorado Sun is a partner in the Colorado News Conservancy, owner of Colorado Community Media.