The Case for a Minimum Age in Juvenile Justice

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There has been important and productive attention to increasing the maximum jurisdictional age for juvenile offenders to one’s 18th birthday. It is well known that Connecticut has led this effort by raising this age from one’s 16th birthday to a 17th birthday maximum effective 2010 and an 18th birthday maximum effective 2012.

Illinois and Mississippi have also recently expanded jurisdictional eligibility a year to the 18th birthday, Illinois for misdemeanors and Mississippi for most felonies. Other states such as Wisconsin and Massachusetts continue to examine jumping their maximum age by a year to 18. Far more states are re-examining provisions of their codes to make it more difficult to transfer serious or chronic offenders, and others are expanding the use of juvenile detention instead of jail detention for youths who are in the criminal court process.

But it is difficult to find states that are looking hard at minimum age provisions. That should change.

Currently, North Carolina has the lowest minimum of just six years of age. Its pending legislative bills to increase its upper age nonetheless maintain the six-year jurisdictional minimum.  Next up at the low end are three states – Maryland, Massachusetts, and New York – whose statutes open the juvenile court’s delinquency door for those seven years of age. Arizona comes in next at eight years of age.

The more common denominator of ten years is set forth in statutes in such states as Arkansas, Colorado, Kansas, Louisiana, Minnesota, Mississippi, Pennsylvania, South Dakota, Texas, Vermont, and Wisconsin. 

But the clear majority of states are silent as to this matter. Presumably, police officers or other complainants in those jurisdictions may ask a juvenile court to bring charges against a child of any age.

Why is a minimum jurisdictional age of at least ten years an imperative? We do not truly know the short-or long-term personal and emotional effects of bringing young children into the juvenile justice system. This can be a life-changing and negative event, altering how youths see themselves and how they are thereafter seen by family, friends, and school officials. I posit that we can find better ways in the community, and without the court, to reorient these mostly modest offending youngsters while assisting them and their families.          

Young juveniles are also at a serious disadvantage as to asserting their rights, unless a state law or case decision requires parental presence during a police interrogation and advisement stage. Law enforcement could better fulfill its protection and service mission with young juveniles by facilitating responsible juvenile-family dialogue and, as appropriate, a carefully facilitated juvenile-family referral to a community service entity.

Juvenile competency to stand trial and assist counsel is another concern. I would presume that myriad young juveniles do not have a significant factual or rational understanding of court proceedings and the consequences they might experience, and many lack the ability to materially aid their lawyers. Likely, many lawyers find it expedient to arrange a plea bargain/disposition with prosecutors rather than secure evaluations that might indicate an inability on the part of the child to proceed. And still, even today, thousands of court youth do not have lawyers who might even consider this concern.

As a state legislator, I successfully lobbied a ten-year minimum jurisdictional age provision into Colorado’s statute many years ago, along with a minimum age of twelve-years for commitment to a state delinquency institution. The ten-year minimum still stands, although the commitment minimum age requirement was amended out some years ago.

Across Canada, the minimum age for juvenile court jurisdiction is twelve years of age. This, truly, would be my preference.  National U.S. data show that juveniles twelve years of age and under comprise less than eight percent of delinquency referrals.

Whether it is 12 or 10, we do need to legislate a minimum age, and rearrange the system accordingly. The juvenile court should not be the first stop-shop for these young people.

H. Ted Rubin is a former juvenile judge and state legislator who now serves as a private consultant to state and local court systems. This op-ed is drawn from “A Minimum Jurisdictional Age for Juvenile Offenders,” a feature story which will appear in the August/September edition of Juvenile Justice Update, to which he is a regular contributor.