Pros and Cons of Trying Minors as Adults

Violent Minors

Traditionally the rule is that anyone was under the age of 18 years old who commits a crime will be tried in the juvenile court system; however, under certain circumstances juveniles can be tried in criminal courts as adults. The designation of the age of the defendant defined as a juvenile or minor who could be tried as an adult is determined by state law, and this age varies from state to state. A study by the Bureau of Justice Statistics (BJS) described data from over 40 of the major urban counties in the United States. The study found that prosecuting juveniles in criminal court (as adults) was generally performed only when serious crimes were committed such as murder, robbery, or aggravated assault (BJS, 2014). An interesting associated finding of the study, which was originally conducted in 1998, was that in the 40 counties studied juveniles were more likely to be charged with violent felonies that were adults.

There are several different ways that result in the transfer of the defendant from juvenile court to the adult criminal court. These include (Modecki, 2008):

Juvenile Waiver. Several states allow Judges in the juvenile courts the power to have a case tried in adult criminal court.

Direct File. Some states actually give prosecutors the discretion to decide whether or not a juvenile be tried as an adult. This is also sometimes called "prosecutorial discretion."

Statutory Exclusion. In some states there are laws that automatically require a juvenile case to be tried in adult court. The criteria to transfer to criminal court most often based on the person's age, the type of crime, and/or the prior record of the juvenile defendant.

Reverse Waiver. In some states in certain cases in such as violent rape or murder there is an assumption that the juvenile charged with the crime should be tried as an adult unless the court makes a formal ruling sending the case to juvenile court.

In some states if the juvenile was tried as an adult previously been the juvenile is tried as an adult in all subsequent cases. This is sometimes termed the "Once an Adult, Always an Adult" provision.

Most states follow more than one of these provisions. As far as this writer could tell based on a search of the literature 23 states do not have a minimum age requirement for at least one judicial waiver or statutory exclusion provision and in those states where a minimum age is specified for transfer provisions the most common minimum age for this can occur is 14 years of age (although it appears some states use age 10; Brink, 2004).

Should juvenile offenders be tried as adults in certain cases? This paper will first look at the reasoning and evidence against trying juveniles as adults in certain cases, then the argument for trying violent juvenile offenders as adults, and will make conclusions regarding the quality of the arguments.

The Argument Against

Those against treating juveniles as adults in the legal system typically refer to several arguments to support their position. These individuals state that there are two major assumptions behind the notion of trying juvenile offenders as adults. The first assumption is that the threat of harsher penalties will be a deterrent and lower the rate of juvenile crime. The second assumption is that juvenile offenders who commit very serious crimes should receive much stricter punishments which are proportional to the crime as an adult than they would as a juvenile.

To address the first issue those who argue the against position state that an investigation of the crime rates of juveniles indicates that the threat of being tried as an adult and receiving harsher sentences does not deter violent crime in juveniles and in fact, the notion that stiffer penalties deter crime is a falsehood altogether. Empirical evidence indicates that people really have no idea regarding the specific penalties for most crimes, especially juveniles and the types of crimes/conditions that can land them in criminal court (e.g., Robinson & Darley, 2004). In addition, the actual laws have no effect on the answers people give when stating what the penalties for certain crimes are but instead, when queried, people tend to respond with their own judgment of what they think the law should be and not what it actually is or the conditions under which a juvenile can be tried as an adult. Robinson and Darley (2004) also report that the type of violent crimes are committed by juveniles who are often tried as adults occur out of rage, fear, risk-taking, or other circumstances that influences psychological dynamics of the person and do not lead to a consideration of the penalty for the crime. Moreover, people committing crimes of this nature tend to commit them in a manner that they think will protect them from getting caught and since a very small percentage of crimes committed are actually do a conviction the prospect of a stiffer sentence does not deter the crime (Robinson & Darley, 2004). Therefore, the assumption that stiffer penalties deter crime is like assumption that the death penalty deters crime, it is a falsehood.

The second major assumption that juveniles who commit serious crimes will receive stiffer penalties that are proportional to the crimes when treated as an adult is also incorrect. The empirical evidence indicates that juveniles sentenced in criminal courts often receive significantly stiffer sentences than adults who are sentenced for similar crimes (e.g., Ward & Kupchik, 2009). Thus, the sentences juveniles receive are not proportional to the offense.

In addition those argue against trying minors as adults also state that the notion of having separate juvenile courts and adult courts is a solid one in that minors are not fully mature and they should not be held to the same accountability standards as our adults. Research from well-established principles in cognitive psychology and the findings of developmental neuroscience indicates that minors' brains are not developed to the extent that adults' brains are therefore they are unable to comprehend and weigh the types of abstract/propositional decisions that adults can (e.g., Kleibeuker et al., 2013; Piaget, 1954).

Since the purpose of juvenile court is to treat offenders and not deter future crimes juveniles should not be forwarded into adult courts. Instead juvenile courts attempt to change the social environment in which the child lives in an attempt to reduce violent juvenile crime as opposed to removing them from society. These goals cannot be accomplished if juveniles are sentenced in adult courts and then sent to prisons with nonviolent adult offenders were they are treated as adults, abused, and learn how to become better criminals. Juvenile offenders sentenced to adult prisons often have high rates of psychiatric disorders and substance abuse and the experience of being incarcerated in an adult prison only exacerbates these issues that should be in reality treated in order to avoid future issues (Ruddell, Mays, & Giever, 1998).

Finally, empirical research has indicated that juveniles who are committed to adult correctional facilities are nearly six times more likely to be sexually assaulted than juveniles tried in juvenile court and sentenced to juvenile detention facilities, nearly eight times more likely to commit suicide than those committed in juvenile detention facilities, and more than twice as likely to be beaten or abused by prison staff than those serving their time in juvenile detention centers. This treatment results in juveniles sentenced in criminal courts being far more likely to reoffend sooner than juveniles convicted of similar crimes and with similar backgrounds that were tried and convicted in juvenile court (Snyder & Sickmund, 2006; Washburn et al., 2008).

Thus, those who are against trying juveniles in adult criminal court suggest that there is empirical evidence to support their claim, there is evidence from both social and scientific research that indicates that minors/juveniles do not have the cognitive capacity nor the maturity to fully understand and comprehend their situation, and that the juvenile court system already addresses the issues regarding violent juvenile crime appropriately and effectively.

The Pro Argument

The argument supporting the transfer of certain juveniles to criminal court for suggests that the empirical evidence does indeed suggest that harsher penalties result in a deterrence of crime. Table One displays the data from the United States Department of Justice:

As can be seen in Table One there is a trend in the reduction of violent crime by minors across all categories. Moreover the trend in general indicates decreases in crimes committed by adolescence and this can be attributed to better law enforcement, harsher penalties, and stiffer sentencing guidelines for juveniles who commit crime (U.S. Department of Justice, 2013). In addition, this side of the argument points out that studies often stating that stiffer sentences do not deter crime such as the aforementioned Robinson and Darley (2004) study indicate that it is the increased length in jail time associated with harsher sentences that leads to this "perceived" detriment. In fact, those arguing in favor of trying juveniles as adults state that it is the desired effect that an increased jail sentence for a violent offender would significantly decrease that offender's potential to commit a crime against society while they are incarcerated. Thus, stiffer penalties for minors who commit violent crimes are effective in reducing the reoccurrence of these violent crimes. Moreover, if as those opposed to stiffer sentences state, stiffer sentences do not decrease the commission of violent crime by potential offenders or the recidivism rates of violent offenders is true for all age groups, then the only logical argument to help reduce these violent crimes committed by these offenders would be in keeping these violent offenders incarcerated longer. Thus, the major argument that those who disagree with treating juveniles as adults in criminal court is illogical and counterintuitive to the actual data.

Regarding the argument that juveniles who commit violent crimes do not receive sentences proportional to the crime and data from studies like Ward and Kupchik (2009), this side cites research that is in opposition to that argument to indicate that juveniles sentenced in criminal court do receive harsher sentences as of the ones received in juvenile court for the same offense which is the point of sending them there (e.g., Fagan, 1996). The claims regarding that juveniles receive proportionally harsher sentences than adults who have committed the same crime are often confounded by the data chosen for the particular study in that it is impossible to equate different cases/juries decisions in such a manner.

Regarding recidivism rates and violent juvenile offenders the fact the matter is that regardless of one's age the data indicates that people who commit violent crimes are more likely to repeat their behavior in the future period (Fagan & Mazerolle, 2011). It is a well-established fact in psychological research that the best predictor of future behavior is the person's prior or past behavior in a similar circumstance (Fishbein & Ajzen, 2011). Moreover, it is also a well-established fact that violent criminals have higher rates of substance abuse, psychiatric disorders, etc. than the general population regardless of their age (Fazel & Seewald, 2012). Thus, increased recidivism rates, the high prevalence of psychiatric disorders, etc. are not valid arguments against stiffer penalties for any group, but instead reinforce the need for harsher penalties for people who commit prior crimes regardless of their age or any psychiatric history in order to keep them incarcerated longer and reduce the risk of their repeating these behaviors. These figures also reinforce the need for better treatment facilities in prisons to address these particular issues. Such figures do not support the halting of the incarceration of any particular group or any particular individual unless it can be determined that that group or individual is deemed incompetent to understand the ramifications of their behavior.

When someone argues that a reason not to send a particular person or a particular group of individuals to prison should be based on their potential vulnerability for abuse in prison one is not criticizing the judicial system as much as one is criticizing the penal system. The fact of the matter is that prisons are often harsh and dangerous places because they are inhabited by criminals. If one were to make an argument that juveniles should not be treated as adults when they commit serious violent offenses because they will be abused in prison it is akin to stating that the death penalty should not be enforced because it will kill someone. The fact of the matter is that punishment and prison are not designed to be comfortable or safe places for individuals to reside. Prisons should be scary and again the very fact that they are inhabited by criminals, especially maximum-security prisons that hold the most violent members of society, means that they are going to be scary places. Having stated that, the prison system in the United States of America is not perfect and certainly there are improvements that could be made that could reduce the rates of aggression and assault that occur in prisons by both other prisoners and by the prison staff. The real issue is that prisons, especially maximum-security prisons that house violent inmates, are violent places themselves and there could be more attention to making them regimented and reducing the violence, abuse etc. that occurs in them (Gottschalk, 2011). Thus, the argument that minors in adult prisons are abused at higher rates than adults are simply reflects an overall problem in the prison system that should be separate from the issue of charging violent criminals who are minors as adults.