Monday, May 30, 2016

How Young is Too Young?

by Tamar Birckhead


In my role as a clinical law professor, I am currently representing a client in juvenile court charged with disorderly conduct, defined as a public disturbance caused by fighting or other violent conduct (among other acts), and assault on a state employee.  The first charge is a minor misdemeanor; the second is a serious misdemeanor.  The prosecution emanated from an incident at school – a fight between two male students.  It began with harsh words, which led to threats and quickly escalated into punches thrown.  The assistant principal, in an attempt to break up the fight, inserted herself between the boys, holding one back from the other while she called for backup from the school resource officer (the police officer assigned to the school).  In an attempt to hit the other boy, my client, whom I’ll call William, tried to reach around the teacher, and she was struck in the process.

If William, who is African-American, is adjudicated delinquent of both of these charges, whether after a bench trial or an admission, he is likely facing six months to one year of supervised probation and five days in detention if he violates the imposed conditions.  During William’s probationary term, the court may order him to enter the custody of the department of social services, cooperate with a residential treatment program for up to twelve months, pay restitution up to five hundred dollars, perform up to 100 hours of supervised community service, cooperate with placement in a wilderness program or residential treatment facility, or a host of other conditions.  

William’s parents are also under the court’s jurisdiction and must comply with any conditions imposed, including medical, surgical, psychiatric, or psychological evaluation or treatment of the juvenile or parents, for which the court may order the family to pay the cost.  They must also attend all hearings and can be ordered to attend parental responsibility classes and comply with a variety of other conditions.

As you may imagine, the facts of this case are not particularly unique—except for one: the age of my client.  William was nine-years-old when this incident occurred at his elementary school, while the other boy was ten. 

Many people are surprised by how young some of our clients are – I was, too, when I first started practicing in North Carolina.  I soon learned, however, that we have the lowest minimum age of juvenile court jurisdiction in the United States: six-years-old.  And, yes, my clinical students and I have had cases with clients who were that young. 

While North Carolina has the youngest minimum age of juvenile court jurisdiction, about two thirds of the states have no statutory minimum age—meaning that nothing prevents prosecution of even the youngest children.  Meanwhile, twelve states have set a minimum age of ten; three have set a minimum age of eight; and four have set a minimum age of seven.

The policy justification for the juvenile prosecution of very young children goes back to the early nineteenth century when European immigrants and young people from rural areas were flocking to the northeastern cities of New York, Boston, and Pennsylvania.   Many immigrant children were left orphaned after their parents died on the journey to America or left unsupervised when their parents joined the ranks of factory and other industrial workers. As a result, large numbers of children had to fend for themselves, and juvenile delinquency was labeled a serious social problem.     

By 1820 public concern about growing poverty, increasing crime, and the “wretched state” of young people prompted the establishment of the first houses of refuge for youths in the United States.  Reformers who ran these facilities made few distinctions between children who had committed minor crimes and those who were paupers.  They believed that living in poverty and committing a criminal offense were synonymous, as both conditions were considered in strictly moral terms.  In fact, reformers believed that immorality caused poverty and that the poor posed as much of a threat to society as criminality. 

Houses of refuge were the functional precursor to the juvenile court, which also failed to distinguish between children who had committed crimes and those who were deemed dependent on the state as a result of families who were unwilling or incapable of care and supervision.    Justified by the doctrine of parens patriae, the first juvenile courts unilaterally addressed the seemingly interdependent problems of child neglect, delinquency, and adolescent misbehavior, focusing on children of European immigrants in order to “Americanize” them via training and moral guidance. 

In this way, houses of refuge—and later the juvenile court system—became an effective means not only to provide social welfare but also to maintain social control over the poor as well as ethnic and racial minorities.  During this era, there were no minimum ages of juvenile court jurisdiction, as no child was too young to “benefit” from the citizen-building provided by the American liberal democracy. 

This legacy unfortunately continues today, leaving very young children from low-income families like William caught in the net of a criminogenic system that provides more stigma than refuge.

Editors' Note:  View Prof. Birckhead's work on SSRN

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