Kelly Orts, University of New Haven
What is a child? There is worldwide variation in how a "child" is defined differently from an "adult." The factors taken into consideration when creating this definition differ even further (Morgan, 2010). The varying cultures, societal norms, histories, economies, and political climates create challenges to establishing a globally accepted juvenile justice system. There is a societal understanding that children differ from adults and should, therefore, receive different and separate treatment (Morgan, 2010). Juvenile justice systems, child welfare systems, and other protective services for youth were created on the basis that children lack the maturity, rights, responsibility, and capacity of adults. The common goal in addressing youthful behavior is for systems to focus on rehabilitating and supporting the child and his or her family. With this in mind, the minimum age of criminal responsibility (MACR) and the age of criminal majority (ACM) set the boundaries of entry into the juvenile justice system.
The minimum age of criminal responsibility (MACR) refers to the youngest age at which an individual can be processed formally in the justice system. Although using chronological age may seem as simple as identifying a number, determining this number is much more complex. Factors such as brain development, competency, and childhood experiences may influence whether a child is diverted from or handled within the justice system. Legal concepts around the MACR help assess an individual's mental wellness, cognitive ability, and developmental maturity (Abrams et al., 2019a). Similarly, “mental capacity” is a term used to refer to an individual's cognitive ability to understand right from wrong, and “doli incapax” is a Latin term referring to the presumption of incapacity of an individual to commit a crime.
Much attention is also placed on the ACM, due to a greater number of crimes committed by teenagers (rather than young children) and the debate surrounding transferring teenagers to the adult system. Unfortunately, there is relatively little research or concern placed on the MACR, despite it being equally significant to a child's future. The purpose of this paper is to provide a national and international landscape of the MACR, as well as to review current trends in legislation, research studies, public perceptions, and possible alternative handling. Research shows many potential consequences for children who are processed formally in the juvenile justice system, including future involvement in the system as adults, interruption in school, separation from family, and harm to their physical and mental health (Abrams et al., 2019a). By understanding the context in which various juvenile justice jurisdictions stand, amongst the relevant research, societal trends, and reform efforts, we can look toward future policies and research studies that can further address the needs of our youth.
Juvenile Justice Evolution
In 1899, the first U.S. juvenile court was established based on the idea that children are more amendable to growth and change, and therefore they should be considered less responsible and less culpable as compared to adults (Abrams et al., 2019a). Since then, all American states have created separate juvenile systems that moved away from a punitive approach and toward a more rehabilitative strategy.
The United States does not have a federally established MACR and allows states to determine if they would like to set one and specify what that MACR should be. Currently, 22 states have established a MACR between 6 and 11 years of age (Abrams et al., 2019a). Nebraska recently established a new MACR of 11 in 2017, and Massachusetts raised their MACR from 7 to 12 in 2018. California did not have an established MACR, but recently passed a bill that will implement a MACR of 12 years of age, joining Massachusetts as the highest MACR in the country and the only American jurisdictions meeting international standards set forth by the United Nations (Abrams et al., 2019b). In 2016, there were more than 30,000 children who were referred to the juvenile court while under the age of 12 (Abrams et al., 2019a). Although this population is small, the MACR controls the identification of children eligible to be prosecuted in court.
Child advocates emphasize the value of a higher MACR and use of diversion programs to avoid the lifelong consequences produced by experiencing the juvenile justice system. Others have argued, however, that a lower MACR would allow for earlier identification and intervention for delinquent juveniles, and the ability to connect them to appropriate services (Abrams, Jordan, & Montero, 2018).
The United Nations Committee on the Rights of the Child (UNCRC) brought forth an international perspective on a developmentally appropriate MACR. The committee indicated that any MACR under 12 years was unacceptable (Abrams, Jordan, Montero, 2018). Since this UNCRC recommendation was produced, 40 countries either have established or increased their MACR to meet this standard and remain accountable through reporting to the UNCRC. In contrast, other countries, such as France, Denmark, and Brazil, have lowered their MACR in adherence to the UNCRC recommendation. Perhaps not surprisingly, the UNCRC continues to investigate increasing their MACR recommendation.
Historically, legislation has shifted to (or from) rehabilitative reform, to reflect the country’s specific political climate, public perception, and societal values at the time. Argentinian legislation in 1980 established a MACR of 16 and presumes anyone under that age to lack criminal intent (Abrams et al., 2018). The Crime Control and Criminal Justice Act of 1994 in Belize allows for the imprisonment of anyone older than 10, but assumes a lack of criminal capacity for those under 10 (Abrams et al., 2018). In Finland, a MACR of 15 has remained consistent for almost a century, with a recent push for increased community sanctions and supervision of juveniles (Abrams et al., 2018).
Finally, case law in America not directly changing the MACR but affecting the same population includes Dusky v. United States (1960), which established a requirement for all criminal defendants to have a basic understanding of legal proceedings, and In re Gault (1967), which ensured juveniles a right to a fair trial. Additionally, some states have recently removed status offenses from the juvenile court system, which immediately diverts truant children or runaways to other systems and services (Abrams et al., 2019a).
Previous Research Findings
Research on the MACR historically focused on evaluating the impact of juvenile justice reforms and legislation. For example, South Africa’s Child Justice Act of 2008 extended the Constitution of the Republic in order to serve the best interests of their youth and create a justice system more appropriate and rehabilitative for children. This act set the MACR at 10 years, with a stipulation to review this act in 5 years to assess its progress and impact (Schloeman, 2016). The results found by Schloeman (2016) reflected an increase in capacity evaluations of youth, but also a delay in case processing, overburdening of mental health professionals, and an increase in costs.
Other research in the United Kingdom focused on highly publicized violent crimes committed by youth and their influence on legislation. Delmage (2013) explained how the murder of James Burgler by two 10-year-old boys in 1993 led to the abolishment of doli incapax in the U.K., through the Crime and Disorder Act of 1998. Due to this legislation, the following year there was a 29% increase in 10-14 year olds involved in court (Goldson, 2013). The conviction of these two boys led to a publicly and politically supported movement towards punitive reform, which also included the Powers of Criminal Courts Sentencing Act in 2000, allowing for children under 18 and convicted of murder to be held for an indeterminate amount of time “at Her Majesty's Pleasure” (Abrams et al., 2018).
Previous research on measuring criminality depended greatly on the research areas of developmental psychology, social learning, and cognitive maturity (Morgan, 2010). For example, a study by Wagland and Bussey (2017) assessed the ability to appreciate wrongfulness of criminal conduct among individuals of various ages, including 8, 12, 16, and those in adulthood. The results showed that even the youngest individuals in the study were able to understand the wrongfulness of criminal behavior and identify reasons as to why it was wrong. Other relevant research referenced by the authors showed individuals as young as 3 years old to have a developed sense of wrongfulness.
Recently, there has been relatively little research focused specially on the MACR in relation to national and international jurisdictions. Within the past two years, however, three empirical studies published on the MACR were conducted by Abrams and associates (Abrams et al., 2018; 2019a; 2019b). The limited number of recent MACR studies may indicate the lack of care and consideration the younger juvenile population has received in comparison to the larger teenage population.
Current Research Findings
The contemporary research conducted by Abrams and colleagues, between the years of 2018 and 2019, provided a deeper dive into the juvenile justice system and minimum age boundaries in the United States and the rest of the world. To begin, Abrams and colleagues (2019a) completed a comparative study on the major metropolitan regions within the six largest states in America, California, Texas, New York, Florida, Pennsylvania, and Illinois. Separately, Abrams et al. (2019b) specifically focused on California, due to the recent bill proposal of establishing a MACR of 12 years. This study selected three California counties that would provide variety in geography, demographics, poverty rate, and population. Similarly, Abrams and associates (2018) previously hand-selected four different countries, varying in age boundaries, poverty, education, population, size, culture, legal systems, and crime rates, which included Belize, Finland, Argentina, and England/Wales. This allowed for a cross-national comparison of how a “child” is defined, handled, and advocated for.
All three studies included a legal analysis of the justice system, its age boundaries, and effectiveness. The two studies completed in the U.S. also used semi-structured telephone interviews with criminal justice professionals, ranging from juvenile court judges, juvenile public defenders, probation, police, and district attorneys. Interviews were recorded and coded into specific themes, such as implementation challenges, perceptions of effectiveness, and local practices. Questions to the stakeholders focused on examining their perception of the MACR, competency practices, capacity practices, and effectiveness.
The legal analysis used an online database to pull laws and statutes for each jurisdiction relating to juveniles, capacity, competency, and diversionary alternatives. Juvenile crime data focused on juvenile arrests, bookings, and referrals. Abrams and associates (2018) also reviewed reports from global and regional organizations to supplement their analysis. By gathering this information, the combined research by Abrams and colleagues (2018, 2019a, 2019b) sought to create a larger timeline and scope of juvenile justice trends, structure, function, effectiveness, and practices surrounding the lower age statute.
In the six largest U.S. states, justice-involved youth under 12 made up 1-3% of their juvenile justice population (Abrams et al., 2019a). Generally, this rate is on the decline across the country and follows a similar international trend of very low juvenile involvement for young children (Abrams et al, 2018). Specifically, in California, this young population was referred largely for status offenses or misdemeanors, and there was also an overrepresentation of African American children (Abrams et al., 2019b).
Juvenile Justice Jurisdictions
In the most recent analyses of Abrams et al. (2019a; 2019b), there were hard boundaries (e.g., age restrictions), soft boundaries (e.g., discretionary decisions), and local practices within the U.S. states that guided juvenile case processing. In states without a MACR, other related practices, such as Illinois' minimum age for detention, would serve as an informal threshold into the juvenile justice system. States are also allowed to determine their own guidelines and utilize assessment tools to determine a defendant’s capacity and competency.
In Texas, where the MACR is 10, competency is required for the proceedings to continue. If a child does not exemplify an understanding of their rights or the legal process, the court can order the child to a facility for 90 days, to be taught this information and be reassessed. Similarly, Florida will pause a trial for up to two years to reassess a child’s competency every six months, until moving forward. In New York, where the MACR is 7 years, judges hold the decision-making responsibility on a defendant's competency, which contrasts with other states that have a trained professional complete the assessment. Abrams et al. (2019b) also found that current juvenile justice legislation in California was unevenly implemented throughout the state, largely due to the freedom each of the 58 counties has in creating their own protocols, such as capacity and competency guidelines. Although these types of guidelines intend to protect children from inappropriate processing, the threshold for meeting competency standards is very low and typically is met easily through the state’s assessment tool, the Gladys R. questionnaire.
Like the United States, many other countries use specific courts and capacity/competency procedures to handle juveniles. In England/Wales, there are specific youth courts with a Youth Justice Board that provide probationary services and supervision for all justice-involved youth. These specialized courts can send youth under 15 to state-run homes, or those over 15 to secure Young Offender Institutions (Abrams et al., 2018).
In Belize, youth may be processed in family court, juvenile court, municipal court, or the Supreme Court, depending on the circumstance. Despite the separation of systems, the housing facilities present a conflict, as children can be sent to the same wards as adults. Out of the four international countries examined, Belize was the smallest and least developed, with high incarceration, homicide, and poverty rates (Abrams et al., 2018). There is also a large population of teenagers and young adults, which may contribute to these crime statistics. When conducting the legal analysis, Abrams et al. (2018) found conflicting MACR between ages 9 (as stated in the Crime Control and Criminal Justice Act), 10 (as stated in the Criminal Code), and 12 (as mandated under international law of the UNCRC). This may lead to an increase in disparities and unfair sentencing across the country.
Finland and Argentina are examples of countries without a separate court system, but with a high MACR. This high MACR proves effective in reducing juvenile incarceration, as both countries have relatively low rates in comparison to other counties of similar size and population. In Finland, 15-17-year olds are sent to municipal, child welfare, appellate, or supreme court, and are only subject to a quarter of what the equivalent adult sentence would be for the convicted crime. These determinate sentences are different than in Argentina, where youth from 16-17 are handled similarly to adults and face similar sentences, but are housed separately. In 2009, a bill was proposed to lower the Argentinian MACR to 14, to deter more young people and provide earlier intervention services. However, the bill did not pass.
Perspectives of Youth Justice Professionals
In all three studies, youth justice professionals were interviewed to solicit their feedback on the effectiveness, implementation, and opinion of the juvenile justice system and minimum age boundaries. In relation to capacity assessments, youth justice professionals in Abrams et al. (2019b) emphasized the flaws in the Gladys R. assessment, such as a lack of data collection, notification, training, and parental awareness. In regards to competency assessments, both public defenders and district attorneys stated they were more likely to look for a plea deal in order to avoid the lengthy competency restoration process. When considering the new California MACR, interviewees who were in support of raising the minimum age stated it was a necessary protection for youth, especially with regard to capacity and competency assessments. They also cited the potential cost savings and reduction in racial disparities among youth. Those who expressed opposition to the MACR increase were concerned politicians and legislators were not the appropriate decision-makers for this legislation, due to their lack of expertise and involvement on the ground.
In New York, interviews with youth justice professionals by Abrams et al. (2019a) showed a general agreement that the legal MACR of 7 was not realistically followed, and most juvenile case processing utilized an informal boundary around 10 years old. These professionals also explained that the movement to raise the age from 7 years has been greatly opposed by policymakers. In the same study, Texas youth justice professionals agreed that the state's MACR of 10 was effective in keeping young children out of the formal court processes. There was also an agreement among the interviewees that the competency assessments were unfair and designed to either find a child competent or require a great deal of time and money be spent until the child is found competent to stand trial.
Alternatives to the Juvenile Justice System
Various alternatives to handling children under the MACR exist within most jurisdictions, in order to provide informal, civil, or community services. In the United States, various diversionary systems are in place to address the needs of children and families together. In 2015, 45% of total juvenile court referrals were handled informally, and 65% of children under the age of 12 were handled informally (Abrams et al., 2019a). Abrams et al. (2019b) highlight some of these alternatives in Florida, New York, Illinois, and Pennsylvania.
In Florida, there are multidisciplinary teams that work collaboratively to assess each case individually. They emphasize family referrals to relevant social services or using the civil court systems in lieu of formal criminal court systems. In New York, legal actors generally work together to avoid referring young children with lower level offenses to court, and instead, divert them to informal social services. The Illinois Juvenile Act specifically encourages the use of diversionary alternatives that will promote productive, responsible, and educational benefits for a child in the community. The Act also requires children who have experienced abuse or neglect to be processed though the child welfare system instead of the criminal court system, which takes into consideration the individual needs and circumstances of each child. Interviews with legal actors also highlighted multiple opportunities for a child to be diverted prior to entering the juvenile justice system. If a judge feels there is a possibility the child could benefit from specific treatment or services, the judge can order a program, with a stipulation of the case being reassessed in the future.
Because the studies by Abrams and colleagues (2018; 2019a; 2019b) focused on handpicked counties, states, and countries, there are limitations to the overview of data provided. Abrams et al. (2019a) reviewed the largest states and the most populated counties, which limits ability to generalize findings to smaller, more rural jurisdictions. Similarly, Abrams et al. (2019b) only focused on larger California counties and did not look at smaller, rural areas. This study was also limited by the data collection before and after the Gladys R. questionnaire was administered. Data regarding juvenile arrests or referrals that were dropped due to results of incompetency were not always recorded consistently or tracked. Therefore, the cases that were dropped from the system cannot speak to alternative handling and outcomes. Finally, Abrams and associates (2018) selected four differing nations to compare to one another, but did not do a deeper dive into local norms, direct fieldwork, or individual jurisdiction settings. Although some information can be inferred to other similar economic, social, and political climates, an international overview of four countries out of 195 limits generalizability and understanding.
Although the MACR is set by legislation, it is not the only factor preventing or allowing a child to be prosecuted in court. Policy implications of this research show the need for each jurisdiction to seriously weigh how their MACR, or lack thereof, is impacting their juvenile justice system, incarceration rates, recidivism rates, and racial disparities. The main goal of capacity assessments is to protect vulnerable children from unfair court processes. This should be the goal in every jurisdiction, rather than the goal of making a child gain capacity or competency in order to move forward with the trial. Capacity and competency assessments also impact the MACR, governmental costs, and length of court processes. It would be beneficial for jurisdictions to look at other, similar areas who recently raised the MACR; how it was implemented; what alternatives are in place for young children; and their successes and challenges to the process. With this comes the need for more research in each specific country on what works best for their jurisdictions and how to implement improvements.
Implications for Future Research
There is little recent research regarding the MACR, especially in the United States. Future studies should focus on analyzing the costs spent on the front end versus the deep end of the system, examining the needs of the young children population, and assessing any discretionary opportunities legal actors have when moving forward with a juvenile referral. In relation to capacity and competency services, research should focus on investigating effectiveness and cost-benefit analysis to either support the expansion of restoration services or remove them as an option (Abrams et al., 2019b). A similar look into diversionary alternatives in various states and countries would also be helpful, such as in other youth systems, services, and facilities. There are also research gaps in following a juvenile referral from beginning to end and looking at different outcomes for young children in comparison to teenagers (Abrams et al., 2019a). Ensuring data collection at each stage would help provide a bigger picture explanation of the population in each state.
Recent research by Abrams and colleagues (2018; 2019a; 2019b) shows the variations, complications, and trends among different national and international juvenile justice systems. Informal boundaries, local practices, and discretion in decision-making points allow for the system to work differently in reality than reflected in written legislation. Establishing age parameters into and out of the justice system is vital in guiding our youth toward appropriate services, fair case handling, and opportunities for a successful future. Although there are many benefits to a higher MACR, there are dangers in combining young teenagers with adults in sentencing and housing (Abrams et al., 2018). Maintaining separate systems and establishing age-appropriate services for juveniles are equally important to diverting young children away from the formal systems. Capacity and competency assessments are not always directly related to chronological age, and special consideration for individual traits should be considered. Some concerns regarding the victim impact and restitution costs also need to be considered when establishing an appropriate MACR, but support in early diversionary programs can be beneficial for all parties involved.
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