During the “tough on crime” era of the 1980s and 1990s, in some states, young people as young as 12 charged with certain offenses could be prosecuted as adults in most U.S. states.
Until recently, Florida and Wisconsin state laws even permitted the transfer of children younger than 12 to adult court.
But thanks to the work of researchers and advocates, that has gradually begun to change, as a number of state legislatures have passed so-called “raise the floor” bills that increased the minimum age of prosecution as an adult for all or some offenses to 16 or 17—and in some states, 18— according to a briefing paper released by the Campaign for Youth Justice (CFYJ).
In Connecticut, some advocates, including the former governor, pushed for raising the age to 21.
As a result of the legislative measures, the number of youth transferred to the adult criminal justice system in their state has narrowed, bringing U.S. practice more in line with the approach taken in Europe, CFYJ said.
CFYJ says the trend is long overdue, but there is still a long way to go.
“The adult criminal justice system was not created to serve youth,” said the briefing paper, entitled, Raise The Floor: Increasing the Minimum Age of Prosecution of Youth as Adults.
“Prosecuting, sentencing, and incarcerating youth as adults will never serve the best interest of the youth.”
The paper argued that not only is the practice “costly and harmful” to the community; it has disproportionately impacted children of color—“particularly black youth who make up 35 percent of youth in juvenile court, but as of 2017, 54 percent of youth transferred to adult court by juvenile court judges “
The paper’s authors wrote the practice was fueled by fears spread by media and academics about the rise of “juvenile superpredators” based on a since-discredited theory developed by some criminologists.
The theory had argued that such young people were “more troublesome and threatening than previous generations,” and represented an existential danger to American society.
In response, many states lowered the minimum age under which young people could be transferred to adult court.
The Campaign for Youth Justice found that the number of youth affected by the practice soared by 113 percent between 1985 and 1994, from approximately 6,000 to 13,100.
But since the turn of the century, the trend has reversed. The number of youth transferred by juvenile court judges to adult court declined from 6,600 in 2005, to 3,200 in 2017.
Yet despite the decline, all 50 states and Washington DC still have one or more “mechanisms” they can use to transfer someone under the age of 18 into an adult court. Three of the most commonly used methods are a judicial waiver, “which gives a juvenile court judge discretion to transfer a youth to adult court after a hearing,” a prosecutorial discretion waive, and statutory exclusion.
Research has shown that juveniles and adults are fundamentally different in terms of their development and decision making and, as a result, should be treated differently than adults by the criminal justice system.
As the science has become widely acknowledged, more states are “raising the floor” —that is, the minimum age at which a youth may be prosecuted as an adult.
For some states, including California, Florida, Kansas, New Jersey, Oregon and Rhode Island, “…raising the minimum age resulted in the state getting rid of automatic transfer [for committing violent crimes] altogether,” the paper said.
“These shifts to raise the floor are significant, ” according to Marcy Mistrett, the Campaign for Youth Justice’s CEO.
“States are righting a wrong by acknowledging that pushing children, literally in some states 10, 11, and 12-year-olds, into adult court, is a harmful practice that not only hurts children and their families, but ultimately the community as well.”
Among the most notable changes: in 2018, the Tennessee legislatures passed a bill raising the minimum age of transfer for 13 listed offenses. That same year, California passed a senate bill to ban the transfer of youth under 16 to an adult court.
Other states that have made significant legislative efforts in increasing the minimum age include Connecticut, Illinois, Kansas, South Carolina, and Vermont.
In 2018, Rhode Island eliminated mandatory waiving into adult court for anyone under 18.
Moreover, “In 2015 and 2016, New Jersey and California, respectively, both eliminated their presumptive waiver statutes.”
While CFYJ advocates for the complete removal of youth from the adult criminal system, the group said it recognizes that “setting or raising the minimum age of transfer is an important first step toward this goal.”
“The fact that many states still have very low minimum ages for a broad array of offenses is evidence that there is a tremendous amount of work remaining to do to protect some of the most vulnerable and high-need youth in their states,” wrote the paper’s authors.
The paper laid out a “raise the floor” roadmap for all states considering revamping their systems.
Key recommendations included:
- States should continue to raise the minimum age where there is opportunity to do so.
- The young person’s needs should “be considered before consequences associated with an adult court record are imposed.”
The co-authors of the report are Jeree Thomas, Jasmine Asward, Katie Rankin, and Hannah Roberts.
The full report can be accessed here.
Andrea Cipriano is a staff reporter for The Crime Report. She welcomes comments from readers.