Should 17-year-olds be prosecuted in adult criminal court?

It appears to be time for the Commonwealth of Massachusetts to raise the age for juvenile court jurisdiction to 18 to become compatible with federal juvenile law and other legal areas. Presently in Massachusetts, children who have reached their 17th birthday are prosecuted as adults in criminal court. There is now and shall remain a youthful offenders’ concept in which juveniles age 14 and older may be prosecuted in adult court for certain crimes (such as murder) and under certain other conditions.

Presently, nine other states prosecute 17-year-olds in adult criminal court: N.H., Mass., S.C., Ga, La., Texas, Mo., Wis. and Mich.. N.Y. and N.C. prosecute juveniles as adults at age 16. Ill. prosecutes felonies for 17-years-olds in adult criminal court as well as misdemeanors for 18-year-olds. All other states plus the federal government use the 18th birthdate as the demarcation between juvenile and adult jurisdiction. A curious piece of trivia from the common law, which states use if not changed by the legislature, is that jurisdiction changes at midnight the day before one’s birthday.

Over the course of a person’s lifetime, having a juvenile or adult record could change many outcomes including educational, employment and housing opportunities.

Even though 17-year-olds cannot generally sign a contract, serve on juries or receive medical care without permission of a parent, if a juvenile is in a state where the juvenile court jurisdiction ends at 16 or 17-years-old, then the juvenile can waive his or her Miranda Rights, be tried by a jury of only adults and sign plea agreements, all without a parent being notified or participating.

Science and the medical field have provided some basic information for some of the thinking in this area, conducting studies about adolescent brain development. There are reasons to believe that some of the formation and completion of parts of the brain continue into a person’s mid-20’s. Included in this idea is the understanding that physical, mental, emotional and psychological growth and maturity develop at different times in each of us. The development in each of these areas for all people will appear as a bell curve over the population. Trying to make policy based on data from different bell curves can change as our science and understanding change.

To hold someone to a criminal record including an open, public trial and the issues of self-identity for a lifetime by labeling for acts which occurred at 17 at a time society does not treat a juvenile as an adult for other purposes (e.g., voting, signing contracts, joining the military), seems inappropriate, particularly while society is still learning about the ramifications of the latest scientific knowledge.

The juvenile court’s main focus is on treatment and rehabilitation. For those few juveniles who appear irredeemable, there’s still the option to transfer the juvenile to adult criminal court.  If research supports the belief that juvenile court and corrections can reduce recidivism in more 17-year-olds than the punishment and services of adult corrections, this change to bring 17-year-olds within the juvenile court’s jurisdiction will actually increase public safety.

Consistent with this position are recent decisions of the U.S. Supreme Court. In Roper v. Simmons, the Court determined it is unconstitutional to impose the death penalty on a juvenile who committed the act under the age of 18. In Graham v. Florida, the Court determined that mandatory life without parole for juveniles under 18 at the time of the crime for non-homicides was unconstitutional. And, in Miller v. Alabama, and Jackson v. Hobbs, the Court held “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eight Amendment prohibition on ‘cruel and unusual punishment’ and that a judge or jury must have the opportunity to consider mitigating circumstances before and imposing the harshest possible penalty for juveniles.” All these decisions reflect on the ideas of the science of brain development and the impulsiveness and lack of deep appreciation for their actions in juveniles.

Additionally, 17-year-olds are vulnerable in the adult corrections system. As the youngest and most naive in these facilities, juveniles can be exploited and brutalized in adult jails and prisons. Federal monies which come to the states require that 17-year-olds be separated from adults. In order to stay in compliance with these laws and continue to receive these substantial amounts of money, sheriffs have had to segregate 17-year-olds from both juveniles and from adults. Changing the state law for the upper limit of juvenile court to 18 will eliminate this problem.

As a result, there will be a need to expand the Dept. of Youth Services and juvenile probation involvement with juveniles who commit acts prior to their 18th birthdays. There may also be a few other reasons to think about including expansion of treatment and programs by the DYS or by the Juvenile Probation Department to age 19, 20, 21 or 22. n

Edward M. Stern, J.D., has a private law practice in Newtonville, Mass., Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.