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Age as Criminal Defense
by Michelle Calderon, staff writer for AnaiRhoads.org. Robert Behne, Lisa Filley,
Mary Gregory, William Knipper, IV, Wayne Rogers, and Troy Scott contributed to this article.
The debate over the issue of juveniles being tried as adults is extremely controversial. There are many factors, such as age, when considering whether or not to try a juvenile in adult court. The underlying question surrounding this divisive topic is: Should juveniles be tried as adults under certain circumstances?
According to the United States’ Justice System, juvenile crime is defined as "any illegal act committed by a person under the age of 18" (Online Lawyer Source, 2004). In other words, juvenile justice is the area of criminal law that applies to individuals who are not of the legal age usually liable for their criminal actions. As required by most states in the US, the age for criminal culpability is 18. Today, juvenile law is mainly governed by state law and most states have enacted a juvenile code.
By federal standards all persons 17 and under are considered juveniles. Each state, however, has been given the authority to decide who, by age, may be tried in juvenile courts. Connecticut, New York, and North Carolina juvenile courts only have jurisdiction over persons 15 and younger. Georgia, Illinois, Louisiana, Massachusetts, Michigan, Missouri, New Hampshire, South Carolina, Texas, and Wisconsin juvenile courts only have jurisdiction over persons 16 and younger. All other states set juvenile status at 17, the federal norm (Juvenile Justice FYI, 2005).
The main objective of the juvenile justice system is rehabilitation rather than punishment. However, juveniles can be transferred into adult court if the juvenile court waives or relinquishes its jurisdiction.
In certain circumstances juveniles should be tried as adults due to the nature of the crime committed. Two instances of such violent crimes would include murder and rape. In recent years, the media has aired numerous examples of incidences such as school shootings (ex: Columbine High School) committed by 13 and 14 year olds. There is a statute that "provides for a victim to hold a parent liable for failing to control his or her child or warn of the child's dangerousness under common law, Isbell vs. Ryan, Kennedy vs.. Baird" (Johnson, n.d.). Still many suggest that these individuals be held liable for their own actions. One example involves a 13 year old boy who became the first child in Michigan to be sentenced as an adult for the shooting of 55-year-old. Moore received a "blended sentence," combining adult prison time with juvenile rehabilitation. Criminal liability would entail punishment suited for his or her action.
The question remains, what is the minimum age? Some countries suggest that children as young as 7 be held criminally liable. Many states have resorted to punishing them as adults. Florida, one of the toughest to punish juveniles, has passed laws that allow prosecuting sixteen-year olds the same as adults for any felony. Juveniles 14 years and older can be sent to prison for smash-and-grab burglary, and aggravated assault, and robbery (Greene, 2001). Of course, all aspects of the specific case and the juvenile involved must be taken into consideration when deciding whether or not to try in adult court.
Does every juvenile need to go to jail on their first offense? According to Florida Department of Corrections statistics 40% of juveniles that are tried in adult court get probation. Some critics say that this statistics shows a lack of punishment and failure of rehabilitation. As a result one in every three juvenile breaks the rules of their probation which puts them behind bars. Another study that was conducted in 1999 by the Florida Department of Corrections show that nine of 10 juveniles that are in prison had been previously arrested for violent crimes. On the average each juvenile totaled 16 previous crimes (Greene, 2001).
During the 1980's and 1990's juvenile crime seen a steady rise. States across the US have started enacting tougher laws. In Wisconsin and Vermont, juveniles as young as 10 can be tried as adults and serve adult-length sentences. More and more states have started following the same sentencing guidelines. The nationwide juvenile crime rate is beginning to drop. Due to tougher laws and sentences, juvenile crime is down 67% since 1993, which is the lowest level juvenile crime has been in over the past 20 years (Axtman, 2001). In an effort to keep juvenile crimes down, we must continue to provide stricter punishments to juvenile offenders, even if it entails being tried as adults. No child belongs to prison. However no one wants to encourage any child into believing the justice system will tolerate criminal acts simply because of age. In looking at the example of school shooters, peers of shooters often here comments such as, "I think I could get away with killing people" (Wittgenstein, 2005). As a society, we cannot let these children think that if they commit a crime, whether it is a minor offense or murder, they will get off easily because they are minors. It is our responsibility to send a message that if they commit such acts, they will suffer the consequences.
Psychologists and policy-makers throughout the world assert the idea that people including young people, are defined by their experiences which in turn lead to their decision making ability throughout their teenage years into adult-hood. This thought process makes defining a minimum age for determining a mental culpability with regard to criminal acts a precarious process. In cases of abused children or children with negative experiences in their past there is more of a tendency to carry out abusive behaviors and "lash-out" or in cases where there may not be a negative influence but certainly a lack of a positive influence we find children who are never taught to be accountable for their actions. These obstacles force society to approximate where the baseline is for establishing when a child will have the presence of mind to constitute a culpable mental state, and the generally accepted age is 14 years old.
This age can be considered reasonable since in most children's lives this is approximately the age where they begin the transition from adolescence to independence and begin making decisions at least in part, if not completely, on their own. A child’s own experience will still come into play for how forcefully they take the reins on the issue of being accountable for their actions. For example, a child accustomed to being surrounded by responsible adults, such as parents friends who might law enforcement officers or business professionals might retain a better understanding for accountability at a younger age than a child constantly left unattended surrounded by other children. The pre-teen years between 10 and 14 are typically rife with a child vying for independent thought and action and these middle school/junior high times foster this lust for independence. However, independence must come the understanding of accountability.
Progressive legislature, such as HB05-1109 from the State of Colorado (2005) has taken steps to ensure that child criminals, age 14 and older, which commit a class 1 felony can be tried as an adult. Another option for District Attorneys and Judges may be the use inventive sentencing when dealing with youth offenders. In a Delaware, a group of minors broke into their schools and caused $60,000.00 in damage. The offenders were forced to wear signs around the neck which read, "I AM A JUVENILE CRIMINAL". In this case, however, one of the offenders appealed the sentence and was reversed (Turley 2005). Other forms of rehabilitation or alternative sentencing may be the requirement to attend when summoned by the court or its delegated authority, to reside or not to reside in a particular place, to submit to treatment, to keep a job, to follow a course of training or even an artistic activity.
On the other hand, "most jurisdictions set the maximum age of juvenile correctional custody at age 20: Alabama, Arkansas, Colorado, Connecticut, the District of Columbia, Florida, Georgia, Idaho, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, and Wyoming. California, Oregon, and Wisconsin set the maximum age at 24. Kansas sets the maximum age at 22. Alaska, Mississippi, and Nevada set the maximum age at 19. Delaware, Hawaii, Iowa, Nebraska, Oklahoma, and Tennessee set the maximum age at 18. Arizona, Indiana, Montana, New Hampshire, New Jersey, North Dakota, Vermont, and West Virginia set the maximum age at 17. Louisiana sets the maximum age at 16."
Even the issue of a maximum age for determining culpability of juveniles varies from state to state. Each State statute defines juvenile court jurisdiction and specifies the maximum age that a juvenile offender can be processed in juvenile court. However, new behavioral and biological research about maturity and criminal culpability and how adult courts affect children, suggest that brain development and the social psychological skills of kids are actually immature far longer than originally thought. Studies of brain development show that the fluidity of development is probably greatest for teenagers at 16 and 17 years of age. Teens at these ages tend to be poor decision-makers when it comes to crime. "They often lack the elements of psychosocial development that characterize adults as mature, including the capacity for autonomous choice, self-management, risk perception, and the calculation for future consequences" (Fagan, 2005). In addition, peer influence interacts with risk taking and impulsivity to compound bad decisions. One study showed teenagers ages 15 to 16 were far more likely, compared with young adults 18 to 26, to confess to a mock crime when presented with false evidence of their guilt. It is this age (15 vs. 16 vs. 17) that law makers and the courts are much more concerned with the distinctions between the level of maturity. It is also for this reason, we believe the age of 18 as appropriate to be the maximum age to be tried in court as a juvenile.
Additionally, the advancement of medical science in the last decade, magnetic resonance imaging (MRI) has been done to study the brain of a child as opposed to one of an adult. Research shows that the brain "does not fully mature until a person in their early twenties" (Bowman & Howard, 2004). There a many hormonal changes in adolescents, as well. Consequently, many research groups filed briefs in the recently decided Supreme Court case Roper v. Simmons decided in March of 2005. The Roper case ruled the death penalty unconstitutional for persons under 18 years of age.
What is clear is that the states are deeply divided in what age a juvenile should be held responsible for their crimes. Each state has its own patchwork of laws with no two states the same. Vermont and Wisconsin have juveniles as young a ten, being tried in adult courts, and serving adult sentences. Even more compelling, what approach should society take with juvenile criminals? Should the approach be more severe punishment with more juveniles being dropped into adult courts, or should attempts be made at rehabilitating the juvenile in community-based settings. The experts are deeply divided on when punishment is more appropriate than rehabilitation. (Meckler, 2004)
It also appears that social factors must be written into the equation on what is the best course of action. The web of poverty, emotional dysfunction and child abuse appears to play a role in future delinquency. In Dr. Chris Mallett's comprehensive survey of juvenile offenders he found that, "74% experienced family dysfunction, 60% were victims of abuse or neglect, 43% had a diagnosed psychiatric disorder, 38% suffered from substance addictions, and 38% lived in poverty." Low IQ's are also mixed into the juvenile equation. (American Bar Association, 2004)
Inevitably, we must try to find a solution. One logical approach would be to have a standardization of the ages for criminal liability throughout the country. Realistically, the remedy is to rely on case-by-case assessments by judges, much as the early juvenile courts did. The prosecution can decide whether to try cases in juvenile or adult court but typically a judge has the ultimate decision, "which is determined in a proceeding known as a waiver hearing" (Szymanski, 2004). Recently available scientific evidence will play into factor in any juvenile justice reforms. Finally, the get tough approach on crime has to be supplemented with comprehensive programs that address family and other social issues that appear to be at the root of the problem.
References:
Axtman, K. (2001, February 8). Kids on trial: justice by geography. The Christian Science Monitor, Retrieved October 1, 2005, from: link
Bowman, L. & Howard, S. (2005, May 11). New research shows stark differences in
teen brains, Scripps Howard News Service, Retrieved October 2, 2005, from:
link
Chang, M. (2005), Inside ‘CHAD’, California’s most notorious youth prison The Daily
Review, Retrieved October 1, 2005, from:
link
Fagan, J. (2005, August 14). Adolescents, Maturity and the Law. The American Prospect On-Line. Retrieved October 5, 2005, from:
link
Greene, R. (2001). Kids in prison. The Miami Herald. Retrieved October 1, 2005, from: link
Juvenile Justice Center, American Bar Association (2004, January). Adolescence, Brain
Development and Legal Culpability. Cruel and Unusual Punishment: The
Juvenile Death Penalty. Retrieved October 2, 2005 from:
.pdf link
Johnson, D. (n.d.). Holding Parent’s Liable. Retrieved October 5, 2005, from:
.pdf link
Juvenile Justice FYI (2005). Juvenile Justice FAQ. Retrieved September 30, 2005, from:
link
Meckler, L. (2004, October 16). Experts Say Counseling, Not Boot Camps, Prevent Teen
Violence. Originally published by The Associated Press, Retrieved October 2,
2005, from: link
Online Lawyer Source, 2004. Juvenile crime. Retrieved September 26, 2005, from:
link
State of Colorado (2005), House Bill (HB) 05-1109 Concerning Juveniles who are charged as adults. Retrieved September 30, 2005, from: .pdf link
Szymanski, L. (2004). Minimum and Maximum Age of Juvenile Correctional Custody. NCJJ Snapshot 9(5). Pittsburgh, PA: National Center for Juvenile Justice.
Turley, J. (2005), Court-Ordered Humiliation mistakes Judge Judy Antics for Clever Justice The Washington Post. Retrieved October 2, 2005, from: link
Wittgenstein, L. (2005). School violence: Why Johnny shoots. Retrieved September 28,
2005, from link
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