Story by Kate Carroll
In December 2015, 16-year-old Halo Garrett allegedly broke into a home in Charlotte, N.C., stealing a television and several other unspecified items. Months later, he was charged as an adult. The charges – breaking and entering, and larceny upon breaking and entering – are felonies.
Due to routine delays in the state court system, Garrett’s trial was postponed to late 2017.
In July 2017, following a bipartisan push from lawmakers and social justice advocates, the North Carolina legislature passed the Juvenile Justice Reinvestment Act, commonly referred to as “Raise the Age,” with an effective date of Dec. 1, 2019. With this monumental policy change, North Carolina became the last state in the country to stop charging and sentencing 16- and 17-year-olds as adults.
Yet many of the kids that the Raise the Age legislation aimed to help — including Halo Garrett — continued to face adult consequences until the legislation took effect more than a year later.
“People often refer to those kids who fell in this gap period as ‘the doughnut hole kids,’” said Jacqueline Greene, a UNC Chapel Hill school of government professor. “And they got no benefit of Raise the Age.”
This meant juvenile offenders continued facing a variety of criminal punishments typically given to adults, such as probation, restitution or incarceration.
“You committed an offense, you were still processed as an adult right from the outset, and there was no way to be treated as a juvenile,” Greene said. “And then magically, on Dec. 1, 2019, a 16- or 17-year-old commits an offense and almost all of them are now juvenile offenses.”
Bitter reality in Mecklenburg County
The timing of the legislation and special protections that come with juvenile proceedings makes it difficult to estimate the number of doughnut hole kids, but youth justice advocates and defense attorneys have continued to work into 2022 to seek justice for these cases, often on a case-by-case basis.
“There was a fair number of people who could have benefited from Raise the Age had it gone into effect earlier and who did not,” Mecklenburg County public defender Katie Hoffmann said.
“The district attorney’s office or any district attorney’s office would like to say that the legislature is responsible for making these calculations about who benefits and when,” she said. “But there is always the possibility of individual DA offices or individual DAs using their discretion to offer pathways to people charged with crimes that might not have existed.”
Mecklenburg County District Attorney Spencer Merriweather said his office has been progressive in offering options for individuals charged as adults before Raise the Age passed to clear their records through juvenile expunction, conditional discharge agreements and deferred prosecution.
In court, Hoffmann said the motion for equal protection under the law should be a clear pathway to protection for doughnut hole kids because they did not receive any of the protections from Raise the Age. Merriweather had no comment on the pending motion.
In reality, the legislation still permits DA offices and prosecutors to use their discretion to undermine Raise the Age. This means that with self-determined probable cause, they can still prosecute kids with A-G class felonies as adults. The law includes eight factors of consideration in transferring cases, primarily concerning the context of each case dependent on details such as the age of the offender, past interactions with the justice system and the seriousness of the case.
Charlotte lawyer and Mecklenburg County District Attorney candidate Tim Emry said Mecklenburg County prosecutors are choosing to transfer juvenile cases “virtually every time that it’s available.”
The juvenile justice system is built to be a more lengthy and labor intensive process for prosecutors and defense attorneys alike, but that process exists for a reason — to help young people grow, learn and hopefully avoid reentering the criminal justice system later in life. This same reasoning motivated lawmakers to pass Raise the Age in 2017.
Emry said that instead, the majority of youth misdemeanor cases in the county are dismissed before trial and the majority of youth felony cases are transferred to criminal court, meaning fewer kids receive the rehabilitative aspects of the juvenile justice system.
Emry said that he brought up this issue at a local forum on youth justice, asking why those cases appear to be automatically transferred. Merriweather denied this assertion and said it only happens sometimes, but only prosecutors have access to the actual number of transfers and deferrals.
“For most folks, almost immediately that data would be a reflection of someone who just doesn’t understand how the system works at all,” Merriweather said.
Without any requirement for prosecutors to release information on how many kids are actually processed in juvenile court, there is nothing incentivizing them to stop treating and charging 16 and 17-year-olds as adults. This caveat has largely nullified the potential impact of Raise the Age in the county.
“For the purposes of Mecklenburg County, I really feel like it’s not done much because the majority of 16 and 17-year-olds are still being prosecuted as adults here,” Emry said.
Merriweather said his office focuses on transferring juvenile cases to adult court for more serious cases like armed robbery, murder and rape.
“We have to be extremely thoughtful about the serious outcomes for people who commit violent crimes even if they are 16, 17 years of age,” he said.
Rehabilitation and juvenile justice
Joshua Ronver, a senior advocacy associate at The Sentencing Project, said the adult and juvenile justice systems primarily diverge in their approach to crime and punishment. The Sentencing Project is a research and advocacy think tank supporting the end of mass incarceration.
“The adult system is really just about guilt or innocence and then punishing for the guilty,” Ronver said. “And punishment could be restitution, could be probation, could be incarceration.”
Ronver said that while the youth system also includes elements of guilt, innocence and punishment, it focuses more heavily on rehabilitation.
“The idea of understanding the circumstances that caused the kids to make the mistakes that landed them in court, and earn them some sort of consequence,” he said. “And that can be drug counseling, that can be anger management, that can be just various life skills to help a 16-year-old get on a better path.”
One of Emry’s clients — a doughnut hole kid who was charged for alleged breaking and entering — lost his case’s motion for equal protection in March of 2020, months after the legislation took effect. His best option: plead guilty for a misdemeanor charge.
“Having a pending criminal charge, whether it’s a misdemeanor or a felony, is a brand on people that prohibits them from being able to find employment and prohibits them from being able to apply for college,” public defender Hoffmann said.
Criminal charges also make it more difficult to rent or apply for loans, and oftentimes impacts the families of the defendant, for example, when the Department of Child Services (DSS) is involved.
Hoffmann said even an arrest can derail a young person’s trajectory during a crucial period of growth by pulling them out of school, revoking positive social opportunities and acting as a pathway to future interactions with police and the justice system.
“These are folks who don’t necessarily have the ability to navigate adult bureaucracy and that sort of thing and figure out how best to respond to these life changing events,” she said. “It really is a huge deal.”
Doughnut hole adults?
In Garrett’s case, the now 22-year-old initially didn’t show up for his 2017 Charlotte, N.C. court date. Instead, in what Hoffmann considers a “success story,” Garrett’s mother sent him to live with family out of state to improve in the areas that ultimately led him to his initial arrest.
“He really did do all the things that we would want somebody to do to show momentum in their lives,” Hoffmann said. “But he still had this case, sort of hanging out in the background.”
Garrett struggled in school, faced challenges at home and grappled with drug addiction around the time of his arrest. He moved away, worked hard in school and matured, but upon his return to North Carolina in 2019, he was arrested for missing his past court date and the charges he had picked up at age 16.
In 2019, Hoffmann fought Garrett’s case on the grounds of equal protection under the law, arguing if the timing were different, her client — and the rest of the doughnut hole kids — would not have been charged as an adult in the first place.
Initially, the Mecklenburg County Superior Court dismissed Garrett’s case, affirming Hoffmann’s motion of equal protection and setting a likely precedent for future doughnut hole kids’ cases.
Just under a year later, however, the state appealed the trial court’s dismissal, asserting that none of Garrett’s constitutional rights were “flagrantly violated.” With that, then-21-year-old Garrett was right back where he started at age 16.
Garrett’s case moved from the appellate court to the North Carolina Supreme Court, where he’s still fighting for his case to be covered under Raise the Age on the same motion of equal protection while key advocates like Hoffmann and Emry continue their work for juvenile justice in Mecklenburg County. Garrett could not be reached for comment at this time as he continues his appeal.
Currently, the power is in the hands of prosecutors and the attorney general, which is why juvenile justice experts and stakeholders like Emry are taking the next step and running for office. In his case— Mecklenburg County District Attorney.
Emry’s campaign includes ending life without parole sentences for juveniles and targeting the Merriweather’s use of discretion in transferring kids accused of felonies to adult court.
“My platform is treating kids as kids,” Emry said. “What we know about the brain science of young people is that it doesn’t make sense to treat them as adults.”
Merriweather has not issued a direct stance on ending juvenile life without parole, but has commented on using great discretion in those cases. In an April interview with The Observer, he emphasized his platform as one focused on an empathy for serving the victims of crimes.
As Mecklenburg County municipal election day approaches on May 17, both candidates continue to campaign, while doughnut hole kids like Halo Garrett continue to navigate the discretionary measures of Raise the Age.
