How should we treat children who get into trouble with the law? For more than a century, American attitudes have shifted between sometimes-wild extremes.

Between the 1970s and early 2000s, a system that had become too lenient arguably became too harsh. We’re now seeing the start of a swing in the opposite direction, with states as diverse as Louisiana, Texas, Connecticut, New York, Florida and Michigan considering proposals that may, at last, strike a happy medium on juvenile justice. And other states will no doubt be watching to see what happens.

Cook County, Illinois, established the nation’s first juvenile courts in 1899, sparking a trend that spread nationwide by the 1930s. Before that, children who committed crimes were tried no differently from adults. The early juvenile courts were loosely structured institutions that granted judges nearly limitless discretion. Offenders often had no right to counsel, appeals or even to confront accusers. While remarkably lenient in some cases, the system often was capricious and rife with racial bias. Even youths who committed murder could sometimes find a sympathetic judge and get off with minimal punishment. Conversely, a judge who took a disliking to an offender — even one accused of a relatively minor “status offense,” like truancy or alcohol consumption— could sentence the unlucky child to years in detention.

Things changed after a 15-year-old Arizona boy named Gerald Gault made a prank phone call to a neighbor and ended up with a six-year sentence in a juvenile detention center, with no right of appeal. His case went to the Supreme Court, whose 1967 In re Gault ruling found that juveniles must be afforded many of the rights accorded to adults in criminal courts. Other rulings and new legislation expanded these rights further, while still maintaining the concept that the juvenile justice system was to be corrective, rather than punitive.

While clearly more “fair” on its surface and less racially biased, the system that emerged was a public-safety disaster. The nationwide spike in crime that had started in the 1950s accelerated following the Gault decision, with juvenile crime getting a large share of attention. In some places, even hardened 17-year-old gangsters became very difficult to punish effectively in the post-Gault regime.

Fed up with rising crime, and informed by a largely correct perception that family breakdown and a growing welfare state were multiplying the number of “bad kids,” states got tough. Several instituted rules to exclude older teens from juvenile court altogether. To this day, 16-year-olds arrested in New York and North Carolina always end up in criminal court alongside adults. Seven other states do the same for 17-year-olds. All 50 states have either implemented or continued policies that allow at least some juveniles to be tried in adult criminal court and sentenced to regular prisons.

These moves to treat more juveniles like adults have brought new problems of their own. Under current law, teenagers can sometimes be placed on public sex-offender registries for life, even for the “crime” of consensual sex with other teenagers. When street gangs force 16-year-olds to commit acts of hooliganism, those initiation rituals can be punished with hard time alongside adult criminals.

Because the adult system has more real criminals than the juvenile system, children who do time in adult prisons tend to manifest far worse outcomes than those sent to juvenile facilities. They return to prison at a higher rate, commit worse crimes in the future, and complete fewer levels of education. Locking up truly dangerous teenagers for long periods may still be a net social benefit. But these probably are exceptions rather than the rule. While the annual per-detainee cost of juvenile facilities is generally higher than comparable facilities for adults, other associated costs tend to more than cancel out the differences. In one of the more comprehensive studies conducted on the topic, a 2012 University of Texas analysis found that Texas would save about $90 million a year by ending the automatic sentencing of under-18 offenders as adults.

More states are moving to address the issue. In this year’s legislative sessions, efforts to “raise the age” will take center stage in states like Louisiana and Michigan, both of which propose raising from 17 to 18 the age at which the justice system treats people as adults. Louisiana’s effort—which has the backing of both newly elected Gov. John Bel Edwards, a Democrat and many in the Republican-controlled Legislature — may be most worth watching. The proposal wouldn’t limit the ability of prosecutors to seek adult charges when the circumstances warrant it. But it would restore a measure of balance to the system.

Momentum certainly appears to be on its side; a report commissioned by the Legislature from Louisiana State University strongly recommended raising the age. A juvenile justice reform coalition has attracted voices that range from local Catholic bishops (a potent lobby in Louisiana) to gay rights groups. Polls suggest the effort is popular. A similar proposal has some traction in Michigan, and the Florida Legislature recently came very close to approving reforms that would have limited prosecutors’ ability to charge children as adults. Texas will consider similar reforms when its Legislature meets again in 2017 and New York will hold hearings this month.

But there’s also a danger of going too far. Some teenagers really do commit adult crimes. They should serve adult time. More than a few advocates on the left want to put a total stop to the ability of prosecutors to charge juveniles as adults. For example, Connecticut Gov. Dannel Malloy has suggested raising the age of juvenile jurisdiction to include everyone up to the age of 21. The belief that it’s never appropriate to treat delinquent children as adults likely contributed to a significant youth crime wave that’s only abated in the last decade or so. This doesn’t mean proposals like Malloy’s should be dismissed out of hand. But it does mean that they need a careful look and extensive analysis before states act.

The widespread practice of allowing children to be treated as adults in the justice system merits significant changes. But policymakers would be wise to proceed carefully.


Featured Publications