Why Are Children Treated Differently in Criminal Law?

Children under the age of eighteen are usually exempt from criminal prosecution.  Get a legal expert’s take on the juvenile justice system, and why children are sometimes tried as adults.

Adam Freedman
May 23, 2011

This episode is sponsored by GoToMeeting. Visit GoToMeeting.com. Use promo code PODCAST for one month free.

 Today’s topic: Juvenile Justice

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community. 

How Can Judges Declare Children to be “Adults?”

John writes in to ask: “What [is] the point for the judicial system to treat adults and children differently in criminal cases?  Was there always a distinction between children/adults in the criminal court system?  What are the actual differences in treatment and under what authority does the judge have the right to declare a minor as an adult for the purposes of a trial?” 

These are great questions. The quick answer is that criminal law has treated children differently for centuries, but today many states give judges specific authority to decide whether a child should be tried as an adult for a serious crime.

 Why Children Are Treated Differently in Criminal Law 

The idea that children should be treated differently in criminal law has been around for a long time.  As I explained in an earlier article, guilt in the criminal law depends not only on committing the physical act, but also doing so intentionally.  That is the requirement known as mens rea, or “guilty mind.”  

As early as the fourteenth century, English courts held that young children could not form the requisite intent to be found guilty of a crime. That became known in the common law as the defense of “infancy,” although the term “infancy” was used more broadly than in everyday speech: in the law it applied to anybody under the age of 15.  Generally, children under seven were simply immune to criminal prosecution, while children aged seven to 14 were presumed to be incapable of committing a crime, but a prosecutor could try to overcome that presumption.

Today, Minors are Treated as “Delinquents”

Technically, the infancy defense still exists in common law.  But it’s much less important because minors who break the law are generally handled in the juvenile justice system rather than the criminal justice system.  All US states have established juvenile court systems.  In these systems, conduct that would be considered “criminal” if committed by an adult is instead defined as “delinquency.”


Rehabilitation or Responsibility

The original mission of the juvenile justice system was rehabilitation.  The idea was that young offenders still have time to learn the error of their ways and become productive members of society.  With the increase of violent crime among young teens; however, many state legislatures have modified their juvenile courts to emphasize protecting society from the juvenile delinquents.

When Are Minors Treated as Adults?

There has also been--as John points out in his question--a trend of transferring juvenile defendants to the criminal justice system.    Although juvenile courts have jurisdiction over youngsters until their 18th birthday, the law often allows judges to decline jurisdiction, which paves the way for the child to be transferred to the criminal courts.   

State law will govern the criteria for transferring minors to criminal court.  Alabama law, for example, lists six factors that courts are to consider:

1. The nature of the present offense;

2. The extent and nature of the prior delinquency record of the child;

3. Past treatment efforts and the child’s response to such efforts;

4. The child’s demeanor;

5. The physical and mental maturity of the child; and

6. The interest of the community and the child.

Relying on these factors, the Alabama Court of Appeals upheld a decision to try a 15-year-old as an adult on charges of murder and robbery, where the child had previously threatened school and law enforcement personnel.  In one rather extreme case, the Pennsylvania Supreme Court implied that it might be possible to try a nine-year-old as an adult for pre-meditated murder of a classmate.  

Under the Model Penal Code--a privately drafted code which is used as a source for state legislatures in reforming their laws--children under the age of 16 would not be eligible for trial as an adult , period.  Those aged 16 and 17 could be transferred from juvenile to criminal court in certain circumstances.  It should be noted, however, that the Model Code was drafted in 1962--long before the rash of teen violence that began to escalate in the 1990s.

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.  

You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.

Related Tips