03/25/2026
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Criminal Law, the Constitution, and Juvenile Justice.
When children are charged as adults.
Cheryl Cargile
University of the Rockies
Abstract
Part one of this discussion will review literature and cases related to the growing brain, criminal law, the Constitution, and the judicial system in relation to charging children as adults. Part 2 will review decisions handed down from the Supreme Court that affect children in the criminal justice system. A child is generally considered to be any person age 18 and below. In cases where to***co, and alcohol are concerned the age is raised to 19 and 21 respectively. The adolescent brain is still under construction. A child is not an adult. That is why adults created the juvenile branch of the justice system to govern over children. So, why do we continue to find children handed over to adult courts?
Keywords: Actus reus, adolescence, adult, cognitive, Constitution, criminal law, juvenile justice, judicial system, and mens rea.
Criminal Law, the Constitution, and Juvenile Justice.
There are things we as humans have in common. We all begin our growth at conception (National Academic Press, 2009). We are all continuously in motion (Skyler). Even while sleeping our lungs, hearts, and other organs in our bodies are in motion (Skyler). While we are awake, our eyes, hands, arms, legs, feet, etc., are in constant motion (2008). Ultrasound now shows fetuses moving their hands, feet, mouth, and showing emotions before birth (Couric, 2003). Later toddlers reach for toys, cups, and whatever is within their reach. As an adolescent the child continues to be in constant motion while their brain is continuing to grow and develop (National Academic Press, 2009). Their body is out of control and their brain does not comprehend.
The Growing Brain.
It is amazing how fast the human infant grows into a toddler, a preschooler, an elementary student, a juvenile, and then an adult. The biological process that drives our growth has been studied for years. The transitional period between childhood and adulthood can be profound (National Academic Press). Along with growth spurts, and hormone changes children also go through intense sometimes overpowering psychological changes (2009).
While some body changes are age predictable the culpability of the child’s mind remains a decision before the court (Tobias & Martin, 2001). Empirical evidence along with neuroscience has shown without fail that the child’s brain has not fully developed during their adolescent years and cannot function nor comprehend as an adult (National Academic Press, 2009). However the court repeatedly finds the opposite based solely on opinion rather than scientific fact (Tobias & Martin, 2001). For the purpose of this discussion the age of adolescence will consider all children between the ages of 8 and 17.
Relatively new areas under study include the pituitary gland and the go**ds (National Academic Press). These areas of growth during adolescence have been related to social, and cultural environments (National Academic Press). Research in this area also shows that the brain continues to grow throughout adolescence (National Academic Press). This very important time in human development has the brain growing and supporting new cells in order to supply the neurons along with myelination (National Academic Press). This growth encourages faster neural dispensation (National Academic Press). The changes going on in the adolescent brain are stimulating their cognitive growth, development, the capability for abstract thinking, and maturity (2009).
Brain diagram. Credit: dwp.gov.uk
Developing Culpability. Research as recent as 2010 out of the UK shows full development of the brain does not take place until well into the age of 30s and 40s ( Edwards). Lin Edwards research supports that the brain continues to develop past childhood and puberty (2010). This new information contradicts earlier information and theories that the brain develops earlier.
A prominent neuroscientist with the Institute of Cognitive Neuroscience at the University of College London found that several regions of the brain are growing and developing for an extended time after childhood and adolescence (Edwards). This new research negates previous hypothesis that the human brain stopped growing during early childhood (2010).
The longest time for brain development takes place in the prefrontal cortex (Edwads). This area of the brain is found just behind the forehead. The prefrontal cortex “controls high cognitive function including planning and decision-making” (Edwards). This area also denotes activity for “social behavior, social awareness, empathy, and understanding, interacting with others in society, and personality traits” (Edwards). It was reported by Edwards in the article that this “is the part of the brain that makes us human” (2010).
Positive correlations have been found between the prefrontal cortex and personality (Edwards). Professor Blakemore reported that the prefrontal cortex only begins to change during childhood (Edwards). However the growth, changes, and shape can continue into our 40s with a reorganization of the area taking place during adolescence (Edwards).
Juveniles and the guilty mind (mens rea). The U.S. Supreme Court disallowed handing down the death penalty to a juvenile less than the age of 18 in 2005 following years of allowing the justice system to kill children (McAuthor). The 2005 court ruling was based on culpability or blameworthiness (2015).
Culpability refers to the state of mind (mens rea) of the child at the time of the offense (McAuthor). Certain factors may increase or lessen the amount of responsibility (McAuthor). During the time of the U.S. Supreme Court’s Ruling against the death penalty for children, legislatures were calling for harsher punishments for children (McAuthor). Lowering the age for children to be treated as an adult in the justice system along with other mitigating factors has caused more than 200,000 children to be charged and treated as adults every year (2015).
In the court’s opinion culpability has to meet the following criteria: impaired decision-making capacity, circumstances of the crime, and the personal character of the offender (McAuthor). When a youthful offender meets the criteria then punishment should be less than it would be for an adult committing the same crime (2015). The main concern here is for impaired-decision making.
The Dangers of housing Juveniles in adult prisons. The juvenile justice system was created to prevent children from unspeakable atrocities close to one hundred years ago (Schrialdi). Children were placed in adult prisons before the reform without a second thought. After spending time in adult prisons children returned to society hardened and criminalized, if they lived to regain their freedom (1997).
Our legislatures found all those years ago that housing juveniles with adults is self-defeating and destructive to both the juveniles and society (Schrialdi, 1997). However in today’s society we once again are allowing children to be placed in adult prisons.
Law enforcement, and children’s advocates have pleaded with Congress to take under consideration the devastation that occurs when a child is charged then placed as an adult(Schrialdi). Years of research has proven that combining juveniles and adults in a prison situation accelerates criminal behavior in the juvenile upon their release (Schrialdi). Studies have shown that children who are locked up with rapists, murders, pedophiles, burglars, or any other criminal adult will learn from the criminal adult (Schrialdi). The author agrees that children do need adult guidance however when we lock kids up in prison with adults inmates as their role models they fall drastically short from being anything close to parental (1997).
Not to mention the number of children who are r***d, assaulted, and commit su***de while in adult prison (Schrialdi). For instance, a 15 year old girl was sexually assaulted by a deputy jailor in Ohio (Schrialdi). The juvenile girl had been charged as an adult for a minor offense (1997).
Another story in the article tells of a 15 year old charged as an adult after arguing with his mother (Schrialdi). Thirty minutes after being placed in jail, this child killed himself (Schrialdi). In Kentucky, 4 children committed su***de in their adult jails cells where they were placed for heinous crimes that included running away from home and disorderly conduct (1997).
The American Jail Association, and The American Civil Liberties Association have worked to keep children out of the reach of adult prisons (Schrialdi). Children have become the sacrificial lambs of Congress given over to the power of the prosecutor who decides based on nothing more than opinion whether a child should be punished as an adult. Some say that the judge’s life changing decision for the child can be founded on how much money the adult prison needs (1997).
Footnote: Billions Behind Bars: Inside America's Prison Industry - CNBC www.cnbc.com/id/44762286
Today more than ever the United States is charging and jailing children under the age of 16 as adults (Schrialdi, 1997).
Children in an adult system. Over 4000 juveniles every year are sent to adult prisons (Schrialdi). Aproximately 65,000 children go through the system every year (Schrialdi). Numbers for rapes, assaults, and su***des become lost among the data and young lives are forever devastated (Schrialdi). Instances include su***de deaths that are listed as unspecified whereas, rapes become shuffled in with inmate assaults in order to hide the adult prison systems insidious acts of child abuse (1997).
Researchers have warned that the numbers given about children being r***d while in adult prison is “very conservative at best” Incentives to under-report, prison conditions, inmate codes and prisonization subcultures comprise and allow abuse against children to continue every day, and night at the hands of the system that is supposed to rehabilitate and punish them, not abuse and kill them (Schrialdi, 1997).
Civil Rights for children. Under the U.S. Constitution children are generally protected by their 4th, 5th, and 14th Amendment Rights (Friedman, 2015). More on this topic will be discussed in part 2 of this paper.
Statistics for Children in Adult Prisons. Around 107,000 children under the age of 18 are placed in jail or prison in the United States (Austin). 14,500 of these children are kept in adult prisons (Austin). 9, 100 youths are stored in local jails, while the remainder 5, 400 children are contained in adult prisons (Austin). 44 of the 50 United States keep juveniles age 17 and younger in adult jails and prisons (2000).
In recent years the number of children boarded in jails has grown rapidly while the number of youths in adult prisons has declined (Austin). According to the numbers 21% of children were adjudicated as juveniles while a majority of 75% were sentenced as adults (2015).
Juveniles and their Constitutional Rights. The duty of juvenile court is to preserve and promote the welfare of children (Sirkin). When a child stands before the court the court’s role becomes that of parens patriae (Sirkin). This allows the court to perform duties related to being the child’s parents. With this power the court can then decide what is in the best interest of the child (Sirkin). Several cases during the 1960s and 70s increased constitutional rights for juveniles which in turn limited discretion in the juvenile courts (2005).
Cases and Supreme Court decisions effecting juveniles.
The first two Supreme Court cases to pave the road and save the lives of juveniles are Miller v. Alabama, and Roper v. Simmons (567 U.S.). Several juvenile cases were heard by the U.S. Supreme Court where their Rights under the Constitution’s 8th Amendment against Cruel and Unusual Punishment were reviewed (2012).
The first case under review No. 10-9647 instructs the Justices that a child age 14 years old went along with 2 other young boys to commit a robbery at a video store (567 U.S.). Sometime in the midst of their journey to the video store young Jackson learned that one of his companions brought a shot gun (567 U.S.). During the robbery one of Jackson’s companions killed the store clerk (567 U.S.). Jackson was charged with capital felony murder along with aggravated robbery as an adult (567 U.S.). Jackson was convicted of both crimes by a jury, then sentenced to life without parole (567 U.S.). After filing a habeas young Jackson’s appeal raised the violation of his 8th Amendment Rights. At first the appeal court first granted the State’s motion to dismiss, with The Supreme Court in Arkansas affirming (2012).
Case number 2: No. 10-9646 describes the petitioner as a young neighbor handed over to adult court charged with murder in the course of an arson (567 U.S.). Young Miller accompanied a friend to a neighbor’s home were they spent the evening consuming alcohol and drugs (567 U.S.). The two juveniles beat the neighbor to death then set his trailer on fire (567 U.S.). The jury found Miller guilty and sentenced him to life without parole (567 U.S.). Alabama court of appeals affirmed. The Court held that Miller’s punishment was not cruel nor unusual in relationship to the mitigating circumstances of his crime (2012).
The U.S. Constitution’s 8th Amendment prohibits cruel and unusual punishment and guarantees citizens the right not to be subjected to excessive sanctions (567 U.S., 2012).
Reviewing Constitution and juveniles finds that Roper v. Simmons decision bars capital punishment for children (567 U.S., 2012). Findings from Roper, 543 U. S. at 569 concluded that the nonexistence of the adolescence to possess adult culpability due to their underdeveloped maturity and responsibility leaving them more vulnerable to negative influences, and impulsivity (567 U.S.). Opinions agreed that juveniles have less control over their environment (2012).
Hence cases before the Supreme Court began to consider the culpability of juveniles. Woodson v. North Carolina 428 U.S. 280 eventually concluded that mandatory life without parole for juveniles violates their protection under the 8th Amendment (567, U.S.).
Juveniles as an independent class of offenders and the severity of their penalties have been unjust (567 U.S.). The U.S. Supreme Court compared holding juveniles for the death penalty or life without parole to imposing the same sentences on a mentally incapacitated individual (2012).
Again the focus on the cases discussed above and future cases for children charged as adults focus on the lesser culpability of juveniles (567 U.S.) Where the Roper decision barred capital punishment; Graham found that the 8th Amendment also bars life without parole for children who commit non homicide offenses likening life without parole to a juvenile as the same as a death sentence (2012).
The U.S. Supreme Court currently holds that Congress and Legislatures are forbidden by the Constitution to identify any classification of murderers under age 18 be required a sentencing of life without parole (567 U.S.). An example would be a 17 year old setting off a bomb in a crowded city, near a finish line, during a marathon, killing several, and wounding many. This juvenile is required by law to be given the ability to convince the judge to allow his or her release back into society someday (2012).
Today the U.S. Supreme Court prohibits the use of cruel and unusual punishment against children for an embodiment of a progressive, caring, and maturing society by granting certiorari in both cases 565 U.S. 2011, No. 10-9646 and 565 U.S., 2011, No. 10-9467 reversing the lower courts decisions (567 U.S., 2012).
Juveniles in adult facilities throughout the world. In our complex world and the reflections of diverse social values and policy implements finds that cross culturally incarceration of juveniles is expensive (Evans, & Jeffery, 2014).
In Europe the cost to house a juvenile equals around 87 Euros per day while in Germany the cost is 900 Euros a day (Evans, & Jeffery). Throughout the world costs have driven justice systems to tackle society’s cultural and economic impacts (Evans, & Jeffery). Shifts towards interventions, diversions, rehabilitation, and community-based programs have lowered costs for nations around the world (2014).
India’s replication of America’s juvenile justice system is their juvenile justice board (Evans, & Jeffery). In their country their judicial system systematically uses the same measurement for all crimes committed by juveniles (Evans, & Jeffery). France offers a separate Juvenile Assize court (Evans, & Jeffery). France’s Assize Court tries minors ages 16-18 charged with serious offenses (2014).
The main differences found in England and America is the recognition of culpability where children are involved in serious crimes (Evans, & Jeffery). Different countries take various outlooks on juveniles involved in monstrous crimes (Evans, & Jeffery). The United States as well as the United Kingdom try children in adult courts (2014).
One case given as examples described a 13 year old, Florida boy was charged as an adult with the beating death of his half-brother and sexual abuse of his other 5 year old half-brother (Evans, & Jeffery). As with the United States, England can also hand a child over to the adult system when mitigating circumstances such as sexual assault or murder are involved (2014).
No less than 20 states in America allow children to be tried, convicted, and punished as adults (Evans, & Jeffery, 2014).
Where does it end?
Bibliography
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