The Criminalization of Georgia’s Youth J.Tom Morgan Four UGA students, all under 21 years of age, were gathered in a dorm room in Athens, watching Georgia defeat Florida in a football game. They were also drinking beer. A resident hall advisor observed the activity and called the University Police Department. The students were arrested, handcuffed and taken to jail. Within days, a local newspaper featured a photo of the students’ arrest on the front page. Less than 30 years ago, the students’ actions would not have constituted criminal behavior. A 20-year-old student at Kennesaw State University enjoys the company of friends who are old enough to drink, but chooses not to drink alcohol herself. She often volunteers to act as a designated driver. She carries a false ID because she is not old enough to legally enter many of the nightclubs and bars her friends enjoy. One evening she attempted to use the false ID to enter an establishment in Cobb County. Police arrested her and took her to jail. In 1985, a 20-year-old could legally consume alcohol and would not have needed to provide false identification to enter a club with friends. A 19-year-old female college student was a summer lifeguard at a local swimming pool. While working at the pool, she met a young man who told her he was 17 years old, and they entered into a sexual relationship. The young man’s parents discovered the relationship and notified local police. Police officers interviewed the young woman, who freely admitted to the relationship. After hearing her admission, the police officers revealed the young man’s misrepresentation: he was not 17, but 15 years old, only a couple months shy of his 16th birthday. Police arrested the student for aggravated child molestation. Today, she faces the possibility of 25 years in prison without parole and a lifetime on the sex offender registry. Seventeen years ago, a 19-year-old would not have faced criminal charges for engaging in a sexual relationship with a partner who was almost 16 years old. Law enforcement officials arrested two girls, a 16-yearold and a 17-year-old, for misdemeanor shoplifting. The state will prosecute the 16-year-old in juvenile court, which means the charges against her and the disposition of her case will be sealed forever in a confidential juvenile record. Had the arrests occurred in one of the vast majority of states that prosecute suspects aged 18 and older as adults, the 17-yearold would also be arguing her case before a juvenile court. Unfortunately, she faces charges in the state of Georgia, where 17-year-olds must be prosecuted as adults. The scenarios described above are not hypotheticals, but actual cases. They represent a few of the thousands of criminal cases in Georgia in which young people are arrested for behaviors that either were not crimes when many attorneys were their age or are not crimes in other states. A recent article in Pediatrics compared actual arrests among Americans 23 years of age and younger to a projection of youth arrest rates by R. Christensen in 1965.1 Using Christensen’s work, which assumed 1965 conditions would remain stable, the authors of the Pediatrics article estimated that 22 percent of the current population would have been arrested at least once for a non-traffic offense by age 23.2 By using individual-level survey data from a nationally representative sample, the authors determined the actual arrest prevalence rate is likely much greater, lying somewhere between 30.2 percent and 41.4 percent.3 The Pediatrics article suggests increasingly aggressive criminal justice systems, especially as applied to cases related to or involving drugs and violent crime, may be responsible for growing youth arrest rates.4 This article examines growing youth arrest rates in Georgia in light of legislative changes to the drinking age, laws prohibiting false identification, tougher DUI laws and changes to the age of sexual consent. Correlations between these legislative changes and increases in youth arrest rates suggest a causal effect. Because 17-year-olds are responsible for a high number of arrests in Georgia, this study also investigates how these legislative changes interact with Georgia’s mandated criminal prosecution of 17-year-olds. The numbers suggest the Georgia Legislature has contributed to growing youth arrest rates by passing criminal laws that specifically target or disproportionately affect young people. Rather than using a statistical self-reporting sample which was done by the authors of the Pediatrics’ article, I studied actual arrest data. Through open records requests to the Georgia Bureau of Investigation, I retrieved arrest data for 17- to 20-year-olds in Georgia by age, criminal charge and arrest location. The arrest data reflected in this study only represents instances in which suspects were formally arrested and taken into custody. In addition to collecting state arrest records, I retrieved jurisdiction-specific policy information by mailing surveys with stamped, self-addressed return envelopes to 25 Georgia police and sheriff’s departments. Alcohol and Related Offenses Minor in Possession Practicing lawyers old enough to remember a draft for military service may also remember one mantra about alcohol: “If I am old enough to fight and die for my country in Vietnam, then I am old enough to drink a beer!” Vietnam and the draft ended, and young adults who had reached their 18th birthday continued to drink alcohol until the National Minimum Drinking Age Act took effect. Through its taxing and spending power, Congress provided in the Act that any state declining to increase its drinking age would lose 10 percent of its federal highway building funds.5 In response, the General Assembly of Georgia passed legislation that would increase the legal drinking age to 21 years of age on Sept. 30, 1986.6 Currently, the United States is one of only four countries that impose a drinking age of 21. The others include Pakistan, Sri Lanka and Palau, an island country in the western Pacific Ocean.7 Most countries allow alcohol consumption at age 18, but several countries, including Germany, Belgium, Portugal and Spain, lower that age to 16.8 In most Canadian provinces, the drinking age is 19, but the remaining provinces allow alcohol consumption at age 18.9 In all countries south of the United States, the drinking age is 18.10 In Georgia, an underage person may be charged with possession of alcohol by consumption; therefore, a law enforcement officer who smells alcohol on an underage person’s breath has sufficient probable cause to arrest the person for violating O.C.G.A. § 3-3-23, Minor in Possession (MIP). As a result, an underage person who is neither intoxicated nor carrying any sort of alcoholic beverage may be formally arrested because an officer subjectively believes that person’s breath smells of alcohol. In 1980, no 18-, 19- or 20-year olds were arrested for MIP because persons aged 18 years and older could purchase and consume alcohol legally.11 Seven thousand ninety-nine individuals in this age group were arrested for MIP in 2009. In 2010, 6,729 individuals in this age group were arrested for MIP. In 2011, 6,434 young adults in Georgia of 18, 19 and 20 years of age were formally arrested for MIP. These numbers suggest the statutory increase of the drinking age has increased youth arrests in Georgia each year by the thousands. I gathered county-specific arrest data from one metropolitan Atlanta jurisdiction, Fulton County, and four counties that contain residential college campuses. State arrest records reveal the totals of MIP arrests in Bulloch, Clarke, Fulton, Lowndes and Lumpkin counties in 2009, 2010 and 2011. (See chart on page 13.) Some states, including Georgia, have created statutory exceptions to laws prohibiting consumption by persons younger than 21.12 For example, Georgia law allows underage consumption of alcohol at religious ceremonies and as prescribed by medical doctors.13 In Georgia, an underage person may also consume alcohol in the privacy of the family home and under parental supervision.14 These exceptions raise inquiries about the evil to be avoided and a legislative effort to monitor who is providing the alcohol to persons under 21, not the general consumption of alcohol by persons under 21. Georgia’s exceptions to the drinking age also suggest legislative recognition that certain situations involving youth alcohol consumption are less risky than others.15 Nevertheless, penalties for MIP violations are not graduated to account for varying degrees of risk other than whether the person convicted is a repeat offender.16 Formal Arrest vs. Issuance of Citation Georgia law provides that a person charged with underage possession of alcohol may be issued a citation in lieu of formal arrest if he or she is not intoxicated.17 Therefore, the extent to which police officers employ their discretion to issue citations may affect youth arrest rates. Under O.C.G.A. § 3-3-23(1)(d), Unless the officer has reasonable cause to believe such person is intoxicated, a law enforcement officer may arrest by issue of a citation, summons, or accusation a person accused of violating any provision of Code Section 3-3-23.18 I surveyed 25 police and sheriff’s departments throughout the state to ascertain policies governing officers’ discretion to issue citations to MIP suspects. Of the departments responding to the survey, most reported that these decisions are left to the discretion of individual officers. Other departments, including Athens- Clarke County, reported their officers must formally arrest all persons charged with MIP, even when the suspect is not intoxicated. 19 By contrast, the city of Decatur Police Department reported the department has a written policy requiring officers to issue citations to MIP suspects who are not intoxicated and not involved in other criminal activity.20 Although the ultimate legal consequences of citations and formal arrests are usually the same, formal arrests have more serious practical implications. Arrests appear on a person’s criminal record; citations do not. Most colleges and employers require applicants to disclose all recorded arrests, including expunged arrests and arrests for charges that have been dismissed or defeated in court. Formal arrest also carries financial implications; a person who is formally arrested and booked in must post a bond. False Identification Documents Before the legal drinking age in Georgia increased, 18-year-olds did not need to use false identification documents to purchase alcohol or enter age-restricted establishments. 21 Laws that increased the drinking age created a demand for ways to circumvent the new age restrictions, and many young adults used false identification documents to misrepresent their ages. In 1988, two years after the current drinking age took effect, the General Assembly enacted O.C.G.A. § 16-9-4, which criminalized the manufacture, sale and distribution of false identification documents. 22 After Sept. 11, 2001, the Legislature amended the statute to make possession of false identification documents into a felony offense punishable by up to five years in prison.23 Due to the large number of young adults who were being arrested for this crime, the General Assembly enacted a 2008 amendment that reduces possession of a false ID to a misdemeanor in cases in which an underage suspect has attempted to use the false ID to purchase alcohol or enter an age-restricted establishment.24 Hundreds of youth arrests in recent years can be attributed to Georgia’s false ID statute. In 1987, not a single 18-, 19- or 20-yearold was arrested for false identification; in 2009, Georgia law enforcement officers arrested 170 18-, 19- and 20-year-olds for this offense. Arrests for false identification increased to 224 in 2010 and fell slightly to 208 arrests in 2011. None of these arrests would have occurred if not for youth-specific legislation related to increasing the drinking age. Driving Under the Influence In contrast to other laws that criminalize formerly legal behavior, tougher DUI laws and enforcement policies have coincided with declining DUI arrest rates. For drivers over 21, the maximum blood alcohol content (BAC) permitted by Georgia law is 0.08 grams.25 In 1997, the General Assembly lowered the maximum BAC to 0.02 grams for drivers under 21.26 In years following enactment of stricter DUI legislation, DUI arrest rates among 18-, 19- and 20-year-olds have decreased significantly. In 1990, one year before the Georgia Legislature began incrementally lowering BAC limits for young drivers, 6,746 persons 17 to 20 years of age were arrested for driving under the influence in Georgia. In 2011, only 3,954 persons within this age group were arrested for DUI. Although stricter standards for young drivers may have contributed to declining DUI arrest rates, increased public awareness of the dangers of driving while under the influence and increased use of self-imposed driving safeguards (such as designated drivers) are likely to have played a significant role in reducing DUI arrests. Offenses Related to Sex In 1983, the age of sexual consent in Georgia was 14.27 The Child Protection Act of 1995 amended O.C.G.A. §§ 16-6-3 and 16-6-4, regarding statutory rape and child molestation, respectively, to increase the age of consent in Georgia to 16 years.28 The Act also made § 16-6-3 gender-neutral by removing the element of a female victim from the crime of statutory rape.29 Prior to 2006, a person over 16 years of age who engaged in sexual intercourse with someone younger than 16 could be charged with a felony.30 In 2006, the Georgia Legislature codified the Romeo and Juliet exception, which reduces the crime to a misdemeanor in cases in which (1) the person charged is not over 18 and (2) the partners engaging in sexual intercourse are no more than four years apart in age.31 The Romeo and Juliet exception also applies to crimes of child molestation and aggravated child molestation.32 In some states, the Romeo and Juliet exception decriminalizes sex acts involving an underage partner altogether if the persons involved fit within the age range dictated by the exception.33 A person who engages in a sex act(s) with a 14- or 15-year-old violates current criminal laws in Georgia, but his or her actions would not have violated the law before the Child Protection Act of 1995.34 On the other hand, a person who engages in a sex act with a person younger than 14 years of age would have violated the law before the Act took effect.35 The Georgia Bureau of Investigation does not keep the ages of sex crime victims on record. Because I could not determine whether suspects’ acts would be legal or illegal before the Child Protection Act, I was unable to determine the extent to which the change of law directly increased youth arrest rates without incurring further costs. Recent arrest rates of 17-, 18- and 19-year-olds charged with statutory rape and child molestation are significantly higher than they were before the Child Protection Act. In 1993, 188 of 17-, 18- and 19-year-olds were arrested for statutory rape or child molestation in Georgia. Arrest rates for statutory rape and child molestation among this age group have increased by more than 100 percent since 1993. In 2009, 551 of 17-, 18- and 19-yearolds were arrested for statutory rape or child molestation. In 2010, 541 individuals in this age group were arrested for statutory rape or child molestation. Four hundred and forty-three individuals in this age group were arrested for statutory rape or child molestation in 2011. Even without having information to identify the victims, one might assume with reasonable certainty that some percentage of the increase, however small, must be attributable to the change in law regarding the age of consent. Seventeen-Year-Olds Charged As Adults Since 1950, Georgia law has mandated adult prosecution for persons 17 years of age and older.36 Currently, Georgia is one of only 12 states that automatically prosecutes 17-year-olds as adults.37 Thirty-eight states prosecute 17-year-olds as juveniles for most crimes.38 Charges and dispositions do not appear on criminal histories in any case in which a charge is adjudicated in juvenile court. Therefore, a person prosecuted in juvenile court may truthfully say he has never been arrested and convicted of a crime. Defendants who adjudicate their charges in adult courts do not have these advantages. Due in part to its requirement of prosecuting 17-year-olds as adults, Georgia contributes a large number to the national total of young adult arrests. In 2009, Georgia law enforcement officers arrested 16,463 17-year-olds. Of these arrests, 11,295 were for misdemeanor offenses only. In 2010, law enforcement officers arrested 15,191 17-year-olds. Of these arrests, 10,552 were for misdemeanors only. In 2011, officers arrested 13,736 17-years-olds. Of these arrests, 9,604 were for misdemeanors only. In 38 other states, many of these charges would be handled in juvenile courts, where young people are provided confidentiality and, in most cases, spared from criminal convictions and the correlative criminal records that may impair their future college and employment eligibility. Diversion Programs In some Georgia jurisdictions, prosecutors use their inherent powers to defer some of the offenses described above to diversion programs, which replace jail time with socially productive alternatives such as substance abuse awareness education and community service. A person who successfully completes a diversion program can usually have an arrest expunged from his or her criminal history. Diversion programs are created by prosecutor initiative, not by statute. In some jurisdictions, prosecutors do not provide diversion programs for young adults. Among jurisdictions that do offer diversion programs, the programs vary extensively in availability, eligibility requirements, program length and costs to participants. For example, Clarke County offers a diversion program for alcoholrelated offenses that requires a minimum of six months on probation, plus an additional 12 months if the participant was also charged with false identification. A participant in the Clarke County diversion program must pay $40 per month in probation supervision fees, plus additional costs, and may not apply for arrest expungement until his or her 21st birthday. Upon successful completion of the Cobb County diversion program, on the other hand, a person can apply for expungement regardless of his or her age. Cobb County’s diversion program only lasts for 10 weeks and imposes no probation requirement. Participants pay a flat fee of $150. Most jurisdictions that offer diversion programs allow participants to apply for expungement of their arrests, but an expungement will not wipe the slate completely clean. Government and law enforcement agencies have access to records of all arrests, regardless of expungement. Furthermore, a person must disclose his or her arrest record if prompted by school or job applications, even if the arrest has been expunged. Conclusion and Recommendations A growing body of new criminal legislation has likely contributed to increased arrest rates among young adults in recent decades. The Georgia Legislature has imposed criminal sanctions for actions that were not crimes when many practicing lawyers were young adults. Georgia’s mandated prosecution of 17-year-olds as adults has compounded the effects of these laws on youth arrest rates and unnecessarily put young Georgians’ futures at risk. Georgia’s young adults must compete with their peers from other states for employment opportunities and for college and graduate school admissions. Young adults in Georgia can be arrested for behaviors other states do not recognize as crimes, and they can be formally arrested for crimes that would result only in citations in other states. An arrest disclosed on an application could be an institution’s deciding factor in offering an opportunity to an applicant from a neighboring state over an applicant from Georgia. If law enforcement officers were to uniformly issue citations for certain crimes, young Georgians could avoid some of the obstacles that often come with an arrest record. Georgia law gives individual officers discretion to issue citations for MIP cases, but departmental policies in some jurisdictions have largely invalidated this discretion.39 Rather than leaving the matter to officer discretion, Georgia law should mandate issuance of citation for MIP cases in which the person charged is not intoxicated or committing other crimes. This amendment would significantly reduce youth arrest rates and establish a more predictable and uniform statewide standard of MIP enforcement. I recommend adopting policies similar to North Carolina’s system of graduated punishment for alcohol-related crimes. Under N.C. Gen. Stat. § 18B-302(i) (2012), 19- and 20-year-olds charged with purchasing, attempting to purchase or possessing beer or wine are issued citations in lieu of formal arrest and will not serve jail time for a first offense.40 Georgia law, conversely, makes no distinction between hard liquor and beer and wine; a 19- or 20-year-old charged with possession of a beer or glass of wine in Georgia could face up to six months in jail.41 Statutory exceptions to state drinking restrictions, including a provision allowing in-home consumption under supervision of a parent, suggest the Georgia Legislature recognizes that certain situations involving youth alcohol consumption are less risky than others. 42 Legislators should expand this concept of graduated risk by developing a system of graduated punishment that accounts for variances in the seriousness of potential MIP violations. Arrests for sex crimes carry serious long-term consequences, even when those crimes are punished as misdemeanors. Georgia law should not impose the consequences and stigma that inevitably result from an arrest and conviction of a sex crime on teenagers who engage in consensual sex. Currently, Georgia’s Romeo and Juliet exception reduces consensual sexual acts or intercourse with a person less than 16 years of age to a misdemeanor if the person charged is not older than 18 and the engaging parties are no more than four years apart in age.43 I suggest the Romeo and Juliet exception in Georgia follow North Carolina’s example by decriminalizing consensual sex and sexual acts between teenagers who fall within the scope of parties protected by the statutory exception.44 Finally, Georgia laws requiring automatic adult prosecution of 17-year-olds should be abolished. These laws result in personal, social and economic consequences for individuals and their families. By automatically prosecuting 17-year-olds as adults, Georgia creates a class of young criminals who must compete for college and job placement with young adults from states where 17-year-olds, under most circumstances, cannot accumulate criminal records. By continuing to follow this overly punitive policy, Georgia disadvantages its young citizens by reducing their social capital and diminishing their ability to compete in a national job market.