It is estimated that more than 200,000 youth under the age of 18 are prosecuted as adults in criminal courts each year in the United States. Youth under the age of 18 enter adult courts through two main pathways—because they are older than the age of jurisdiction set for the juvenile courts in the state in which they are arrested, or their cases are transferred/waived from the juvenile court to the adult court. Youth in criminal courts are prosecuted as if they were adults. This means that their cases are open and public and that their records are not sealed as they are in most juvenile courts. In addition, criminally prosecuted adolescents do not have the right to consult parents before making legal decisions (such as to accept or reject a plea bargain) and must proceed through their criminal cases on their own. In some states, though not all, youth prosecuted as adults are confined as adults. Youth held in adult confinement frequently suffer from a lack of educational resources, inadequate mental health treatments, and significantly less access to rehabilitation programming and they are significantly more likely to suffer physical and sexual abuse and have higher rates of suicide.
To date, there is no accurate national data collection on the number of juveniles under the age of 18 who are prosecuted in the adult courts. This is in part due to the many different ways that youths can be tried as adults. In some states, youth enter adult courts simply because they have aged out of the juvenile court. While the majority of states set the upper jurisdiction of the juvenile court at 17, several states have an upper jurisdictional age of 16, resulting in all 17 year-olds being tried as adults. In addition, as of 2013, two states—New York and North Carolina—set the upper age of juvenile court jurisdiction at 15. Thus, any youth 16 or older in these states is considered an adult for the purpose of criminal prosecution, regardless of the crime.
While some youth are in adult courts because they have “aged out” of the jurisdictional boundaries of the juvenile court, many others come to adult courts via waiver, or transfer, laws. Waiver laws differ in form and function and vary significantly across the states. Some transfer laws give juvenile court judges the discretion to transfer cases out of the juvenile courts (judicial waivers), while others leave it up to the discretion of the prosecutors (prosecutorial waivers or direct file). Still other transfer laws require the automatic transfer of certain types of cases, generally based on age and the nature of the alleged offense (statutory exclusion). Some states use a combination of some or all of these transfer laws. Depending on the transfer law adolescents can be tried as adults at various ages and for a wide variety of offenses, both violent and nonviolent. In some states juveniles as young as 10 years old can be tried as adults under certain circumstances. The diversity of age ranges and jurisdictional conditions that bring youth into adult courts across the states are sometimes cited by juvenile justice scholars as evidence of the persistent tensions and debates in American society over the appropriate legal and social response to adolescent crime and violence and to the lack of consensus across the country over when, exactly, a child should become an adult before the law.
During the 1990s most states passed laws allowing for more and younger youth to be tried as adults, often for an increasing range of offenses. This legislative net-widening came about largely as a response to the increase in youth violence that occurred in the late 1980s and early 1990s that was centered on the crack cocaine epidemic that invaded several U.S. urban communities.
Regardless of the method by which a juvenile is brought into the criminal courts, youth tried as adults face the same legal case processing as adults: They are subject to bail hearings (not present in the juvenile courts); their cases are open and public; they generally obtain no special rights to consult with parents before making legal decisions and they must navigate the legal system on their own. Some legal scholars have suggested that youth in adult courts are at a disadvantage because they are less able, due to age, to fully understand the nature of legal proceedings and to make well-reasoned legal decisions.
In most states, youth tried as adults face the same sentencing structures as their adult counterparts. While age can often be considered at sentencing in states that allow judicial discretion at sentencing, states with mandatory sentencing laws do not allow age to be considered. Once convicted, youth tried as adults will carry lifetime felony records, which they must declare on job and other applications just as is required of adults with felony records. In those states in which convicted felons lose their right to vote, youth convicted as adults will lose this right as well.
Research across the last decade in the fields of adolescent development and brain science has shed new light on understanding adolescent decision-making abilities. This research has, in turn, raised serious questions about adolescent culpability: Do adolescents have the same decision-making abilities as adults? If not, should they be held accountable in the same way that adults are? If not, should age be a mitigating factor in the way the justice system punishes them for criminal offending? New neuroscience research has shown that the prefrontal cortex, the part of the brain responsible for what is known as executive functioning (impulse control, considering risk and reward), may still be forming well into, and even past, late adolescence. Thus, while adolescents may have adequate cognitive capabilities (knowing right from wrong), they may still be lacking in the ability to employ sound reasoning and are much more susceptible to peer influence, present-time thinking, and risk-taking behaviors than adults.
A series of recent U.S. Supreme Court cases have wrestled with this new knowledge and with the questions it raises for issues of adolescent culpability. In 2005 the Supreme Court ruled in Roper v. Simmons that juveniles convicted of a capital offense who were under 18 at the time of the crime could not be given the death penalty. The court in reaching this decision argued that young people are different from adults and, thus, are deserving of differential treatment under the law regarding the death penalty. The court cited at length the developmental and brain science literature discussed above. Five years later, in Graham v. Florida, the court ruled that juveniles could not be given sentences of life without the chance of parole for nonhomicide offenses. The court again referenced the limited culpability argument it had established in Roper. In 2012 the court ruled in Miller v. Alabama that mandatory sentences of life without the chance of parole were unconstitutional for juveniles. While this ruling did not do away with the possibility that a youth under 18 could be given a sentence of life without parole, it did require that the sentencing decision-making body—judge or jury—have the opportunity to consider age and immaturity as a mitigating factor before imposing a life sentence.
Some legal scholars argue that taken together these Supreme Court cases have affirmed the basic notion, embedded in the long tradition of juvenile courts, that youth are different from adults in significant ways that make them subject to differential treatment under the law. Although there has not yet been a direct constitutional challenge to the basic practice of trying youths as adults, taken together these Supreme Court cases have served to substantiate in law the idea that youth have diminished culpability and thus are deserving of some differential treatment under the law.
Researchers have also pointed to other areas of concern about the practice of trying youth as adults. First, several studies have shown that youths of color are disproportionately represented among youths tried as adults, even when controlling for the nature of the offense and prior record. Second, numerous studies have indicated that trying youths as adults does not reduce criminal reoffending, especially violent reoffending. Some studies have indicated, in fact, that trying youths as adults increases the likelihood of violent reoffending. Third, while general deterrence effects are difficult to assess, no studies have yet been able to show that the practice of trying youths as adults has had any noteworthy deterrent effects on adolescent offending.
- Kupchik, Aaron. Judging Juveniles: Prosecuting Adolescents in Adult and Juvenile Courts. New York: New York University Press, 2006.
- Myers, David L. Boys Among Men: Trying and Sentencing Youth as Adults. Westport, CT: Praeger, 2005.
- Redding, Richard E. “Juvenile Transfer Laws: An Effective Deterrent to Delinquency?” Juvenile
- Justice Bulletin. (June 2010). https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (Accessed September 2013).
- Scott, Elizabeth S. and Laurence Steinberg.Rethinking Juvenile Justice. Cambridge, MA: Harvard University Press, 2008.
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