Minimum Age of Prosecution of 12: What Does It Mean and Why Does It Matter?
Last February, police in Rochester, New York, responded to what they termed a “family trouble” call regarding a 9-year-old girl. Upon arrival, police handcuffed her and attempted to force her into a patrol car. For resisting, they pepper-sprayed her – as the world watched. The world watched because the moment was caught on body-camera footage. It grabbed national media attention and sparked renewed debate around a question previously under-addressed in American discourse: What’s the youngest age at which a child should be subject to arrest, detention, and incarceration?
One of the most striking moments of the exchange in Rochester occurred when a police officer – while trying to shove her into the back seat – complained, “You’re acting like a child.”
The girl replied, “I am a child.”
So, what is the minimum age a child should be prosecuted in the United States legal system?
The United Nations Convention on the Rights of the Child – ratified by all UN member states except the United States – in 2007 recommended a minimum age of criminal responsibility of at least 12 years old. In 2019, the UN Committee on the Rights of the Child updated its recommendation to a minimum age of 14 or higher with no exceptions.
Patchwork Policies in the U.S.
According to the National Juvenile Justice Network’s report “NJJN Policy Platform: Raise the Minimum Age for Children in Juvenile Court,” most countries have statutes that set a higher minimum age threshold than what we see in the United States. The United States does not have a federal minimum age for prosecution and minimum age thresholds are set at the state level.
At the time the young girl in Rochester experienced the trauma of arrest, 28 states had no minimum age for prosecution. According to the NJJN website, as of September 2021, 24 states have a minimum age. The lowest minimum age, 7, is in New York, although legislation to raise it is sitting on the governor’s desk awaiting signature. North Carolina and Washington have a minimum age of 8. The most common minimum age is 10 (Arizona, Arkansas, Colorado, Connecticut, Kansas, Louisiana, Minnesota, Mississippi, Nevada, North Dakota, Pennsylvania, South Dakota, Texas, Vermont, and Wisconsin). Until recent activism, 10 was the highest minimum age in the United States. But that changed when Nebraska passed a minimum age of 11 and California, Massachusetts, Utah, and Delaware each increased it to 12. New Hampshire has the new highest minimum age threshold of 13. Several of the state minimum age laws at the 12- or 13-year-old threshold make exceptions for serious violent offenses.
Given the range of minimum ages in the United States, how do we compare to the other nations around the globe? Many countries have a minimum age of 10 (e.g., New Zealand, Great Britain, Cameroon). According to the NJJN report, Canada, Ghana, and Netherlands have a minimum age of 12. Several countries have minimum ages in the teenage years. For example, Argentina and Portugal have a minimum age of 16 and Luxembourg sits at the top with a minimum age of 18.
Are minimum ages a good idea? Human rights, ethics, developmental science, and racial justice all indicate that it is indeed. And it is possible to have a federal minimum age law. In fact, Congresswoman Karen Bass’s House Resolution 2908 proposes a minimum age of 12 for children charged in the federal justice system. While an important step, it would not apply to other jurisdictions.
Scholars and health professionals are increasingly calling for a minimum age of 12. Six child health professional societies – American Academy of Pediatrics, American Academy of Child & Adolescent Psychiatry, American Council for School Social Work, American Psychological Association, Clinical Social Work Association, National Association of Social Workers, and Society for Adolescent Health and Medicine – recently endorsed a statement calling for a minimum age of least 12. The statement reads:
On behalf of child and adolescent health professional organizations, we collectively endorse action to institute a minimum age of at least 12 years for juvenile justice system jurisdiction. Children and young adolescents who come in contact with the juvenile justice system need access to developmentally appropriate, trauma-informed, supportive health and social services, not inappropriate punishment. [emphasis retained from original document]
What is their rationale? They cite the lack of a minimum age in most U.S. states and note the advances in neuroscience that indicate childhood as a crucial time of brain development – a time at which children’s brains are developing, have normal immaturity, and are unlikely to benefit from or understand processing in the U.S. criminal legal system. They argue that “the juvenile justice system, as it functions today, does not align with a contemporary understanding of brain science…. When viewed through the lens of brain development, it is clear that society’s response to such behavior should be to provide children and young adolescents with developmentally appropriate health and social services and not to punish them by involving them with the juvenile justice system.”
The health professional organizations further note the pipeline of recidivism and long-term adverse health effects that childhood justice involvement can bring. When we think about the 9-year-old in Rochester, it’s easy to imagine how the traumatic police involvement might shape her future thinking and wellbeing.
Instead, the health professionals call for addressing the root causes of children’s distress through health and social service agencies. Doing so can set kids on better trajectories and is more just. Restitution – holding kids accountable for their actions – can occur outside of court systems. As the Annie E. Casey Foundation coined, a courthouse is “no place for kids.”
Additionally, the health professionals note the racial injustice. The youngest children in the system are even more disproportionately of color. Did I mention that the 9-year-old in Rochester was Black? Check your assumptions. You may have imagined her as such. Given the intense inequities in the system, it’s a guess likely to be correct an unfair number of times.
Thus, health professionals conclude that a minimum age of jurisdiction of at least 12 “is an important step toward a more developmentally appropriate justice system for young people and a healthier society for all” – and toward a goal of racial justice and health equity.
What should you do if you come across a child less than 12 in your justice system? Advocate. Find out what the laws are in your state and how they can change. And then – treat the child like a child. Realize that their developmental needs are different from teenagers and that a carceral setting is not an appropriate place for any child, particularly our nation’s youngest children. As society is moving towards uncuffing kids (#uncuffkids, #raisethefloor, #minimumage), some of us may be in the uncomfortable situation of caring for elementary-school aged children. While it’s not worth writing guidelines on this – likely the minimum age laws will change – in the meantime, I would encourage any professional in the situation, when providing care, to remember the words of the girl in Rochester: “I am a child.” Thus, treat her as such. #childnotconvict
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Elizabeth Barnert, MD, MPH, is an associate professor of pediatrics at the David Geffen School of Medicine, UCLA, and a juvenile justice researcher. She also serves on NCCHC’s Juvenile Health Committee.