Trying children as adults

Jones Law Review, Annual, 2002 by Deanie C. Allen

INTRODUCTION

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.

HISTORY OF JUVENILE JUSTICE

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.