Trying children as adults.

AuthorAllen, Deanie C.


Human beings have complex and often contradictory attitudes and Americans are no exception. As a nation we tout our children as our hope for the future and our most cherished asset. We exhort the global village to share responsibility in their upbringing. Yet as a nation, we tolerate the highest child poverty rate of any nation in the developed world. (1) As a nation, people to whom we entrust our children, are paid less, are less regulated, and perhaps most significantly, are less respected in their fields than other professionals and nonprofessionals alike. (2) Beginning with the "stay at home Mom," day care workers, foster parents, social workers, school teachers, pediatricians, children's attorneys--the list goes on and on. (3) In a 1997 poll of American adults, respondents "overwhelmingly opposed housing juveniles in adult jails, jailing status offenders with adults and granting prosecutors exclusive discretion over whether juveniles should be tried as adults." (4) Respondents also "strongly favored setting aside funds specifically for juvenile crime prevention programs." (5)

As a nation we condemned Singapore for the public caning of a teenager who committed acts of vandalism, and we "signed an international treaty condemning the imprisonment and treatment of juveniles as criminals as a last resort." (6) Yet, between 1992 and 1995, fewer than ten states left unchanged their laws to increase the ease with which younger and younger children can be transferred to adult criminal court. (7) Many states increased the number of crimes for which juveniles can be tried as adults, and in a number of cases, called for abolishing the juvenile court system altogether. (8) Opinion polls taken after the infamous Jonesboro school shootings in March 1998, indicated that roughly half of American adults believed the thirteen and eleven-year-old boys who shot their classmates should receive the death penalty. (9)

These seemingly ambiguous attitudes toward our children would provide a wealth of speculation and/or insight for social scientists, theologians, legal scholars, and political analysts, but suffice it to say that these trends toward tougher juvenile policies are a peculiarly national phenomenon. For the purposes of this paper, only the laws of Alabama, Georgia, Florida, Mississippi, And Tennessee will be examined, as they are illustrative of the recent changes in laws governing juveniles in the rest of the country. To better appreciate the significance of these trends, this paper will look first at the history and purpose of the juvenile court system and, in particular, the history of trying juveniles as adults. The next part of the paper will look at what led to changes in public attitudes toward prosecuting children as adults to the extent that it precipitated the changes in state laws. This part will include a brief look at Supreme Court decisions and federal laws that impacted the trend to toughen laws governing juveniles. Then the laws of Alabama and the other four states mentioned above will be used to illustrate the changes in juvenile law and the particular methods used to affect the general change toward a more punitive system. The consequences of the changes in juvenile law will be noted next, with a brief look at the ultimate consequence--that of the death penalty. Finally, a few alternative approaches to trying children as adults will be explored.


As a country, where have we been and where are we going when it comes to trying children as adults? The ambivalence of society toward its children is evident from the beginning of jurisprudence. American society has come full circle from trying juveniles as adults in adult courts, to creating a separate juvenile court system, back to the nationwide trend of mandating the trial of increasingly younger children in adult courts.

At common law there was no separate court system for minors, although the common law recognized two defenses that are still applicable today. (10) Children under seven could not be held accountable for the commission of a crime and some children under fourteen could be shown deferential treatment due to a lack of maturity or lack of capacity to understand the consequences of their actions. (11) While the system could result in leniency due to such mitigating circumstances for individual children, there are also reports from as early as the 1700' s of children as young as twelve and fourteen being killed or mutilated for their complicity in a murder. (12) The most common result was that after a certain age children were held fully responsible for all of their actions. (13)

By the beginning of the nineteenth century, both in England and in the United States, a change in attitude and law toward juvenile criminal responsibility began to emerge. Initial concern focused on the prevention of juvenile crime and on those children who were "still innocent" and "could still be rescued." (14) Hence the emergence of the focus on rehabilitation as opposed to punishment in dealing with minors and delinquency. During the same period, social reformers, called child savers began to delve into the causes of juvenile delinquency. (15) They concluded that poverty and parental neglect were the most frequent culprits, and closely tied to this was the belief of many that poverty was caused by immorality. (16) (It is not difficult to see the roots of modern day juvenile and welfare reform--buttressed by the fundamentalist belief that the poor are somehow responsible for their economic condition--the resulting moral impoverishment reeking havoc on the country as a whole.) Hence the growing demands, both then and now, for holding parents responsible for their children's crimes.

In addition to the moral costs to society, the economic costs of confining delinquent children became a growing concern to our nineteenth century counterparts. (17) They echoed another argument we hear today, that it is cheaper in the long run to try to attack juvenile crime on the front end, and/or attempt to prevent/rehabilitate juvenile delinquents, rather than to simply punish them by incarcerating them in adult prisons--in effect giving them up as hopeless. (18) It was conclusions such as these that led, in 1825, to the first alternatives to adult prisons such as the New York House of Refuge. (19) These "homes" housed real and petty offenders as well as poor children who it was believed would end up as criminals if left to live in poverty. (20) The emphasis on prevention resulted in children who had not yet committed a crime being placed in these early juvenile institutions. (21) By the mid-eighteen hundreds, disenchantment developed with the placement of children in alternative institutions--institutions that often be came reformatories for poor immigrants. (22) This not only raised the question of motivation on the part of some of the reformers, but also raised the additional question of the efficacy of large institutional placement versus family environments. (23) An effort to remedy this alternative led to the often equally questionable practice of sending minors placed in institutions like the New York House of Refuge to work on farms in the West and Mid-West as --what amounted to--indentured servants until their twenty-first birthday. (24) Most of these "homes" were never investigated for suitability or treatment of the children and most of those sent were never heard from again. (25) Although the number of alternative placements increased during this period, thousands of children continued to be incarcerated in adult prisons. (26)


Illinois was one of the states to which a large number of delinquent children were sent. (27) Due to concerns about the legal system's treatment of minors, not the least of which was "that New York was exporting its young criminals to western communities," Illinois passed its "Juvenile Court Act" on July 1, 1899. (28) In becoming the first state to establish a juvenile court system, it codified the preferred treatment of delinquents. The Act designated separate categories for "dependent," "neglected," and "delinquent" children, and thereby restricted the importation of problem children into the state for the purpose of placement. (29) Though some legal commentators debate the motivation and some of the practical outcomes of the law, it is generally credited as the beginning of the official recognition of the vulnerability and dependency of children in the legal system, and the need for courts which focused on protection and rehabilitation rather than just punishment. (30) The Illinois Act listed the welfare of the child as its first priority, followed by concerns for the welfare of the community and the family. (31) The treatment envisioned as a result of this Act was to be very different from the treatment of adults in criminal court. For example, the law specifically prohibited placing any child in a jail or police station. (32) By 1925, all but two of the states had followed suit and passed laws establishing separate juvenile court systems. (33)

The philosophy behind the Illinois law, and the other state laws to follow, was one of parens patriae. (34) This extension of the idea of the right of the king to protect the weaker classes of society--namely children and incompetents--evolved into a justification for the state having the right and responsibility to protect children--seen as some of the weaker, most dependent and sometimes least fortunate of society. This doctrine served as the--sometimes-questionable--foundation for much federal and state regulation of children's lives and remains the basic rationale for the juvenile justice system today. (35) Parens patriae can be seen in action in the privacy and confidentiality requirements of juvenile record keeping and juvenile hearings, the technically civil rather than criminal nature of juvenile proceedings, and...

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