Raising the Floor: Why America Needs a Minimum Age of Arrest

Picture a first grader having a meltdown, sobbing and kicking as teachers attempt to intervene. Instead of the child’s parents or a school counselor, school officials call in two uniformed police officers. Standard handcuffs are too large, so they use zip ties to restrain her wrists. At intake, a step stool is required to take the girl’s mugshot.

(Note to readers: Viewer discretion is advised for the body camera footage linked in the following paragraph.) 

In 2019, 6-year-old Kaia Rolle was arrested at her Orlando elementary school for just such a tantrum. The body camera footage of her pleading with officers led to the passage of “Kaia’s Law,” which prohibits the arrest of children under 7 years old in Florida. The incident illustrates a startling asymmetry within the American legal system: A 6-year-old and a 16-year-old are the same in the eyes of the law.

The “Floor” vs. the “Ceiling”

In juvenile justice policy, “raising the age” usually refers to the “ceiling”—the age at which a teenager legally becomes an adult. While most states have raised the age of adult court jurisdiction, the minimum age of criminal responsibility (the “floor”) has received comparatively little attention. In 22 states, any child—no matter how young—can be detained, fingerprinted, and charged with a crime, meaning the floor for arrest is effectively zero.

States including Texas and Louisiana have passed laws establishing a minimum age at which children can be locked up. The American Legislative Exchange Council recommends that states establish a minimum age of at least 10 years. As states like Virginia consider following suit, it is worth looking at why these policies are gaining bipartisan momentum.

Minimum Age of Juvenile Court Jurisdiction

The Backfire Effect of Early Arrest

David Rey, who spent two decades in prison for homicide before being paroled, described how being arrested as a child impacted his life’s trajectory. “I didn’t really know what gangs were, I didn’t really know what drugs were until after I had police contact,” he said. “Six years later, I was in the same police station for murder.”

Research confirms Rey’s account. Rather than improving public safety, system involvement often has a backfire effect. Once a young person has contact with the justice system, future arrests become more likely, resulting in a plethora of negative life outcomes. Even a single arrest increases the likelihood that a child will drop out of school, be exposed to violence, or be incarcerated in the future.

Shrinking the Net

Arresting young children like Rolle and Rey is indefensible, as it serves no practical purpose in most cases.

America spends millions arresting children under 12 for minor infractions only to dismiss or divert the majority of charges. According to a 2018 study from the University of California, 85 percent of referrals for this age group never reach court, and only 4 percent result in formal adjudication. Similarly, Maryland dismissed or diverted over 90 percent of preteen delinquency cases prior to recent reforms. This inefficient “catch and release” system amounts to a grossly inefficient use of public funds.

Some argue that diversion programs represent an opportunity to connect children with needed services, often for the first time. While this is true in some cases, relying too heavily on diversion can cause “net-widening”—bringing low-risk offenders into the system who would have otherwise received no sanction at all. Untargeted diversion can even exert a criminogenic effect relative to nonintervention—a key driver of the school-to-prison pipeline. Furthermore, superfluous diversion programming squanders system resources, crowding out those who truly need help.

The Competency Gap

While the Supreme Court has ruled that competency is a constitutional right, most preteens lack the cognitive capacity required to meet this standard.

To be deemed competent, a defendant must understand the roles of the judge and prosecutor and possess the ability to assist in their own defense. Yet for most children under 12, abstract concepts like the right to silence or legal jargon like “delinquency adjudication” are incomprehensible. Because of this developmental gap, courts rarely find young children legally culpable.

This creates a significant challenge for the legal system when faced with serious violence. Though homicides committed by children under 12 are extremely rare, most minimum age laws include carve-outs for grievous offenses—specifically murder, rape, or violent felonies involving a firearm. In these extreme cases, a child welfare petition allows a court to mandate intensive therapy, family intervention, and state monitoring.

Care, Not Cages

Arresting elementary schoolers is traumatic, expensive, and ineffective, yet the question remains: How do we meet unmet needs without utilizing law enforcement? The answer lies in shifting from post-arrest diversion to pre-arrest deflection.

Since many arrests of young children stem from behavioral health crises, behavioral health responses are usually a more appropriate option. When Utah established a minimum age of 12 for juvenile court jurisdiction (one of the highest “floors” in the country), the state created a non-judicial Youth Services program to connect families with resources like mental health treatment or restorative justice without creating a court record.

While traditional diversion programs give children an off-ramp out of the system, deflection keeps them out entirely. Deflection is a proven accountability strategy—not a lack of consequences. Delaware deflects children younger than 12 using “civil citations,” akin to traffic tickets. If a child completes the required community service or restitution, their case is closed and they avoid a delinquency record.

Conclusion

A fourth grader’s bad day should lead to support—not a squad car. Taxpayers are footing the bill for a counterproductive process that does nothing for children besides damage their future prospects. Proposals establishing a minimum age of arrest are not mere “feel-good” bills. They are the essential foundation for a civilized society that recognizes the obvious difference between criminals and children.