Prosecuting preteens as adults defies logic

In October, Pennsylvania began a mandatory prosecution of a 10-year-old boy as an adult for murder — a prosecution illegal in any other developed nation and in all but one other U.S. state. On Jan. 5, a judge granted a petition from the boy’s attorney to move the case to juvenile court, where it clearly belongs. The fact that adjudication did not begin there reveals an underappreciated but critical flaw in the way U.S. courts deal with children who commit crime.

To be sure, the particulars of the crime are shocking, all the more so when you consider a child who only recently completed fourth grade allegedly committed it. According to the charging documents, the boy (whose name has been widely published in the media but is withheld here because of his age) got into a verbal spat with a 90-year-old woman under the care of his grandfather; angered, the boy returned to her room with a wooden cane, choked her with it and beat her with his fists until she became unresponsive. The victim died shortly after the assault.

He was arraigned in adult court on charges of criminal homicide and aggravated assault and for the past three months has been held without bail in a segregated area of the Wayne County Correctional Facility — an adult jail — while he awaits trial. 

Youth advocates estimate that as many as 250,000 juveniles are tried, sentenced or incarcerated each year as adults, with little uniformity among states as to who qualifies for criminal prosecution or why. As part of a general trend toward adopting more sensible criminal justice policies, a movement is now underway at the federal level to make the juvenile justice system more responsive and less gratuitously punitive. These efforts are long overdue and deserve public support.

Every U.S. state has a legal framework for trying offenders under the age of 18 as adults. In many cases this is done at the discretion of local judges or prosecutors, with few formal guidelines for whether a given course of action is appropriate.

Twenty-nine states have statutory exclusions requiring that serious offenses such as murder begin in adult court. Only Pennsylvania and Wisconsin mandate that children as young as 10 begin adjudication in adult court. The other 27 states with statutory exclusions maintain age and offense guidelines for mandatory criminal prosecution that are so varied, they defy rational explanation. In Mississippi, for instance, a child as young as 13 accused of serious felonies must begin adjudication in adult court. If the child commits the crime across the border in Alabama, however, he will be treated as a juvenile until the age of 16. In Montana, all defendants under the age of 18, even accused murderers, begin adjudication in juvenile court.

The arbitrariness with which states have codified when a child qualifies as a child in the eyes of the law reflects a willful dismissal of decades of research on childhood development and the nature of youth crime. A 2013 research paper sponsored by the National Academy of Sciences found that youths and adolescents lack a capacity for self-regulation in emotionally charged contexts, exhibit poor reasoning about trial-related matters and are less likely to focus on the long-term consequences of their decisions than adult defendants are.

A similar study published last year in the journal Law and Human Behavior found that younger juveniles either incriminate themselves or give full confessions in two-thirds of all interrogations and are more likely than adults and older adolescents to admit to things they didn’t do under pressure from authorities.

Trying kids as adults raises serious questions about competency and due process. But it also has a measurable negative effect on public safety. According to the nonprofit Juvenile Law Center, adolescents tried and convicted as adults are 32 percent more likely to commit another crime in the future than minors who are tried for similar crimes in the juvenile justice system.  

The evolution of juvenile justice in the U.S. has been marked by significant strides of reform punctuated by periods of regression. Prior to the establishment of the first juvenile court in 1899, all youth offenders received a criminal trial, regardless of their age. By 1954, when the Senate held hearings on juvenile delinquency — which singled out comic books for their deleterious effect on America’s youth — every state had a juvenile court system that had exclusive jurisdiction over all offenders under 18.

Throughout the 1960s a series of court-ordered reforms ensured youth offenders are given the same due process rights and protections against excessive sentencing as adult defendants. During the tough-on-crime movement in 1980s and ’90s, states began whittling away at those reforms — lowering the maximum age for juvenile adjudication to 16 and replacing a long tradition of rehabilitation with a more punitive ethos. The Violent Crime Act of 1994, signed into law by Bill Clinton, made it possible for federal courts to try kids as young as 13 as adults for violent crimes and drug felonies. (The minimum age has since been raised to 15.)

Meanwhile, nearly every state legislature revised or rewrote local laws to broaden the scope of transfer, and many enacted laws removing certain felonies from juvenile adjudication. In recent years, a new wave of state-level reforms has almost certainly led to a reduction in the number of youths adjudicated as adults. In 2008, for example, approximately 9,000 juvenile cases were waived to criminal court, from a peak of nearly 14,000 in 1994, according to the Department of Justice.

But that number includes only cases that were transferred by a judge. Absent from the data are cases that wound up in adult court under a prosecutor’s discretion (applicable in more than a dozen states) and those required to begin in criminal court by statutory exclusion or by some other mandatory charging mechanism.

Last year Congress began taking steps to reform some aspects of the juvenile justice system. In December, Sens. Chuck Grassley, R-Iowa, and Sheldon Whitehouse, D-R.I., introduced the Juvenile Justice and Delinquency Prevention Reauthorization Act, which seeks to improve conditions for detained juveniles and limit the detention of status offenders who violate truancy, curfew, alcohol or tobacco laws. Sen. Bob Casey, D-Pa., introduced a similar bill in September. A comprehensive criminal justice reform bill introduced over the summer by Sens. Cory Booker, D-N.J., and Rand Paul, R-Ky., included financial incentives for states that raise the minimum age for mandatory criminal prosecution to 18. Unfortunately, these efforts ended with the 113th Congress, and it is unlikely that the newly Republican-controlled Senate will pick up where their colleagues left off.

The American public is ready for a sincere dialogue on criminal justice reform. But any movement to improve the the U.S. justice system must include an effort to apply scientific research to formalizing who qualifies as a juvenile under the law. Contrary to the laws of most states, age does matter. Research shows not only that children and adolescents commit crimes for reasons different from adults’ but also that their still developing brains and personalities make them more responsive to rehabilitation. Also, they are ill-suited for a judicial system in which due process requires active and knowledgeable participation in one’s defense.

It is likely that a small minority of juvenile criminals are irredeemable. But it has been proved that if adjudicated appropriately, two-thirds to three-quarters of youth offenders, including those who commit violent crimes, eventually grow out of criminality on their own. Given the overwhelming evidence on how children’s brains develop and how that affects their behavior, it’s time for the U.S. to adopt a more conscientious and uniform method of gauging juvenile accountability.