Juvenile offenders: should they be tried in adult courts?

• Author: Brown, Michael P.

Children have been described as our future, our greatest resource, and our hope for a better tomorrow. For many Americans, though, children invoke fear. They represent violence, a segment of society lacking in self-control and devoid of ethics and morals, and the failure of the family to instill traditional values -- chief among them being the value of human life and respect for others.

Fear of crime, especially random violence perpetrated by young Americans, is among the nation's greatest concerns. It has served as the motivation for countless numbers of people to change their lifestyles, take self-defense classes, install home security systems, and carry handguns for protection. Moreover, fear of crime has influenced politicians and laypersons to adopt the position that a conservative justice system, which seeks to punish and deter, holds the most promise in curtailing juvenile crime. Waiving juveniles to criminal (i.e., adult) court and imposing criminal penalties, according to the conservative position, are effective ways for society to express outrage for the transgressions of "out-of-control" youth and to placate its desire for retribution. Others, however, contend that treating juveniles as adults is going too far. Although many of these juveniles are incarcerated for their crimes, which the law allows, they often are the easy victims of homosexual rape and other forms of violence at the hands of hardened adult criminals.

The criminal sanctioning of juvenile offenders is not a contemporary phenomenon. Juveniles have been punished as adults for centuries. Prior to the 17th century, for instance, children were seen as being different from adults only in their size. Hence, they were held essentially to the same behavioral standards as adults. Youngsters were perceived of as being miniature adults and, therefore, subject to the same punishments as offenders who were decades their senior. Childhood was considered to end at about age five.

It was not until the 17th century that European church and community leaders successfully advanced the notion that children were weak and innocent and in need of the guidance, protection, and socialization of adults. Consequently, childhood was prolonged, education became a priority, and societal norms emerged specifying age-appropriate behavior. Youngsters no longer were viewed as miniature adults. For the first time in recorded history, they were a separate and distinct group.

By the 18th century, English common law characterized those under the age of seven as being incapable of forming criminal intent. For an act to be considered criminal, there must be actus reus (the criminal act itself), mens rea (the intent to commit the criminal act), and corpus delecti (the interaction between the act and the intent to commit it). Therefore, since youths were considered to be incapable of forming mens rea, they were legally unable to commit a crime or be criminally sanctioned. Between the ages of seven and 14, children were presumed to be without criminal intent unless it could be proven that they knew the difference between right and wrong. At age 14, they legally were considered adults, capable of forming criminal intent and therefore justly sentenced to serve time in jail and prison alongside...