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
3-minute read

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.  


About the Author

Adam Freedman

Adam Freedman is a lawyer and a regular contributor to Point of Law and Ricochet. Freedman’s legal commentary has been featured in The New York Times, the Minneapolis Star-Tribune, and on Public Radio. He holds degrees from Yale, Oxford, and the University of Chicago. He is the author of The Naked Constitution (2012).