Imprisonment Still Legal for Under-13s in Many States

Posted by MST Services

Oct 9, 2019 8:30:00 AM


Campaigning for the passing of “Raise the Age Laws” in juvenile justice systems across the U.S. has become a very popular crusade for advocates in recent years, with the aim of keeping children under the age of 18 from being sent to adult prisons when they commit a crime. What has managed to fly under the radar of many of these advocates, however, is the fact that, in many states, children under 13 can still be legally sent to a juvenile detention facility for a crime. In fact, about two thirds of U.S. states have absolutely no minimum age at which a child can be found guilty of a delinquent act. This fact runs contrary to years of research that has shown young people’s brains continue to grow and change well in to their 20s, making them less competent than adults when it comes to making decisions and controlling their actions.

What is the Minimum Age?

In the U.S., just 21 states have laws on the books that specify a minimum age for delinquency adjudication. Twelve set the minimum age at 10, three states set the minimum age at 8, lastly, North Carolina has the lowest minimum, with children 6 and older eligible for prosecution under the law. Beginning on January 1st of 2019, California became not only the latest state to adopt a minimum age law, but also the state with the highest minimum age, setting it at 12.

The Negative Effects of Imprisonment on Juveniles

More than 1.3 million youth are arrested in the U.S. each year, with about 60 percent of them facing confinement for offenses that are non-violent or non-sexual in nature, most often probation violations, status offenses, drug offenses, or property crimes. Juvenile detention facilities serve, at their most basic function, as prisons for youth; the key difference between adult prisons and juvenile facilities is that juvenile facilities are supposed to focus on rehabilitation. These efforts can include continuing education, behavior management classes, writing classes, religious services, and even classes on how to manage finances. Yet despite these efforts, many youth have extremely negative experiences when in detention.

Research shows that as youth become more involved with the juvenile justice system, they develop a higher chance of experiencing an early, violent death. Being sent to a juvenile detention facility also increases their risk for not completing their education, developing unhealthy relationships, and being unable to find gainful employment. Additionally, many juveniles report experiencing maltreatment while in a juvenile facility. According to one survey on the rate of maltreatment for juveniles, about 42 percent of youth in detention report being afraid of being physically attacked, 45 percent report witnessing or experiencing unnecessary use of force by staff, and 30 percent state that staff use isolation as discipline. Isolation for juveniles has been shown in numerous studies to cause a range of negative physiological and psychological issues, including mood disorders like depression and anxiety, and even psychosis. Under these types of conditions, a juvenile’s brain cannot learn or grow as it would in a home environment. This is especially true for juveniles that have previously experienced abuse and neglect, which can serve to further increase the negative effects of detention.

Movement for Change in Some States

In Illinois, campaigns are underway to pass legislation that would raise the minimum age law in the state from 10 to 12. State Rep. Robyn Gabel, who sponsors the legislation, believes that even one day in detention can change the path of a child's life, and stands as reason enough to try and keep as many children as possible out of the juvenile justice system. “There’s an implication here that these children are just horrible, horrible people and have done horrible crimes,” Rep. Gabel said. “But … in 2016, there were nine children [under 13] who were detained based on probation violations. Those are not heinous crimes. There were no children detained based on charges of homicide.”

For Illinois, one of the biggest contributing factors to the imprisonment of children under 13 is a lack of alternative places for these kids to go to. Ashley Wright, who works for the Cook County State’s Attorney’s office, attests that these kids are “accused of very violent offenses,” which makes them ineligible for youth services. “We don’t know if we can require a foster home to take these youths,” Wright adds. “The other problem that we would have is that the licensing standard for youth emergency services … the minimum age for shelters is 14.” This lack of appropriate services led to the imprisonment of 120 youths in Illinois during 2018. While debate on the legislation continues, Rep. Gabel is working with the state’s Department of Human Services to find alternative placement options for youths under 13.

A large part of the reason that California was finally able to successfully add a minimum age law was a policy brief, written by clinicians and academics, which cited developmental research in order to justify the 12 year age minimum. However, there is no strong evidence that shows 12 as a beneficial age for sending children to detention. The only specific reference to the 12 as a minimum age for juvenile adjudication comes from international standards set forth by the United Nations Committee on the Rights of the Child. In 2007, the committee released a statement on the subject in which they recommended 12 as the absolute minimum age of criminal responsibility. They also strongly advocated for higher ages, from 14 to 16, and funding diversion programs in order to truly rehabilitate juvenile offenders. These programs would divert children from detention, and instead treat them in their own homes, in shelters, or in reporting centers. It’s a plan that neuroscientist Dr. Natalia Orendain of UCLA supports wholeheartedly. “Rather than focusing on a specific age for juvenile detention,” she says, “a greater impact would come from ensuring that confinement is truly rehabilitative and developmentally appropriate for all youth.”

Multisystemic Therapy (MST) is an evidence-based alternative to incarceration. MST effectively treats troubled youth and their families by utilizing a built-in suite of services within the home, school, and community settings. Services include but are not limited to: social skills training, drug and alcohol intervention, mental health services, and peer management. 

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Topics: Juvenile Justice Reform