Children should be treated differently than adults. Yet, in our criminal justice system, we are quick to disregard children’s age and push them—especially children of color—into a punitive system that was not designed with their needs in mind. Despite arrest and incarceration having devastating and life-long impacts on children’s health, education, economic stability, and well-being, there remains no minimum age for arresting and prosecuting a child. Additionally, in the federal criminal justice system, a child as young as 13 years old can be tried as an adult for certain offenses, facing severe, inappropriate punishment and even greater risk of lasting negative harms, as children in adult jails are more likely to suffer permanent trauma and are five times more likely to die by suicide than children held in juvenile detention centers.
The criminalization and incarceration of our children goes directly against what we know about child and adolescent development as well as childhood trauma. Research shows that young people have less impulse control than adults and their brains continue to develop and mature through their late teens and into their mid-twenties. What’s more, the vast majority of children involved in the juvenile and adult criminal justice systems are contending with early childhood trauma like physical or sexual abuse or witnessing domestic violence. A young person’s age and the impact of possible childhood trauma must be taken into account when they come into contact with the criminal justice system.
The lasting, harmful impacts that come with criminalization and incarceration are especially alarming for children of color who are overwhelmingly targeted across the juvenile and adult criminal justice systems, from higher rates of policing in schools and increased risk of arrest to harsher sentencing and increased transfer to the adult criminal system. As we reported in the State of America’s Children® 2021, Black youth are nine times more likely than white youth to receive an adult prison sentence, American Indian/Alaska Native youth are almost two times more likely, and Hispanic youth are 1.4 times more likely.
In order to take steps towards creating a more fair and equitable system that acknowledges children’s age and developmental distinction from adults, Representatives Bass (D-CA), Cardenas (D-CA), and Westerman (R-AK) recently introduced a package of legislation, which the Children’s Defense Fund was proud to endorse. This package includes:
- The Protecting Miranda Rights for Kids Act (HR 2834): Requiring parents to be notified when a child is arrested and requiring that the child consult with legal counsel before they can waive their Constitutional Rights. This recognizes the need to mandate counsel to protect children’s rights given that the vast majority of children waive their Miranda rights and are far more likely to falsely confess.
- The Childhood Offenders Rehabilitation and Safety Act (HR 2908): Establishing a minimum age of 12 for criminal culpability for children, increasing the minimum age for a child to be tried as an adult from 13 to 16, eliminating the felony murder rule for children, prohibiting the placement of children in adult jails or prisons, requiring data collection on youth who come into the federal criminal justice system, and establishing a grant program for trauma-focused and age-appropriate services for children and their families.
- The Sara’s Law and Preventing Unfair Sentencing Act (HR 2858): Retroactively ending life and de facto life without parole by giving individuals convicted of crimes as children the ability to petition a judge for sentencing review and modification after 20 years, giving judges the ability to depart from mandatory minimums when sentencing children, and protecting child sex crime victims from harsh sentencing when they commit acts of violence against their abusers. This is especially timely given the recent Supreme Court ruling on Jones v Mississippi making it easier for children and teens to be sentenced to life without parole.
These bills would protect young people in the federal jurisdiction and would signal an important shift towards age-appropriate protections for states to follow.
We joined more than 50 organizations in voicing support of this legislation, and we urge Congress to pass this meaningful legislation to reduce children’s contact with the criminal justice system; address racial disparities in criminalization, arrests, and sentencing; and create more equitable and age-appropriate measures for those children that do encounter these systems.