The American Bar Association is pushing the nation’s juvenile justice systems to improve the treatment of children accused of crimes — urging states to raise the minimum age for prosecution to 14, and to prohibit the use of chemical agents on detained youth.
The positions taken last week by the governing body for the influential association representing hundreds of thousands of lawyers relied on child and adolescent brain science. Since 1986, the ABA has had a formal position of opposing prosecutions of children younger than 10. But the bar association has since concluded “that this age is too low.”
According to a resolution passed at the annual meeting, “children under fourteen years old are not mature enough in their emotional, behavioral, and intellectual development to be held responsible for their delinquent behavior.”
To date, no state has yet raised the age of criminal prosecution to 14, as recommended by the United Nations Committee on the Rights of the Child. But the ABA aims to push them that way and there is some legislative momentum.
A bill by California Democrat Rep. Karen Bass, the Childhood Offenders Rehabilitation and Safety Act, would raise the age to 12 in federal courts, a change already approved by legislatures and governors in California, Massachusetts and Utah.
As of January, more than two dozen states still had no minimum age of prosecution at all, meaning children of any age can potentially be prosecuted. But 14 states have introduced legislation to raise or newly establish those baseline ages, according to the National Juvenile Justice Network, a group that supports those reforms.
The legal changes would impact thousands of lives. The network reports that more than 2,500 children under age 10 and roughly 37,000 children between the ages of 10 and 12 years old were arrested in 2019.
In late January, a 9-year-old Rochester girl was caught on camera screaming in pain, begging police officers to wipe her face off after they pepper-sprayed her. The footage went viral online, sparking widespread uproar over both the use of chemical agents, and policies that allow the arrest of pre-teens.
The American Bar Association’s governing body changed its decades-old positions based on a variety of concerns. Its recent resolutions cite inconsistency as a driving factor, the fact that “children are currently treated in a legal system without a developmentally appropriate lens and no uniformity.”
It also concluded that “children under fourteen years are unlikely to understand and be able to meaningfully participate in the complex procedures of juvenile adjudication proceedings.”
Florida criminal law attorney Neal Sonnett, who contributed to the resolution, is quoted in the ABA journal stating that “the failure to set a minimum standard of juvenile court jurisdiction results in the criminalization of childhood.” Raising the standard to age 14 by adopting the ABA’s resolution and urging states to follow suit “will promote consistency in addressing this critically important issue.”
The resolution calling for an end to chemical agents like pepper spray cites potential long-term negative health and psychological effects, and the vulnerability of young people who are locked into detention facilities.
“Chemical agents are harmful and counterproductive,” the resolution states. It proposes several alternative strategies that are known to be effective when responding to youth behavior including developing a full schedule of programming to keep them busy, and requiring staff to actively engage with youth under their supervision to identify conflicts before they escalate.
Numerous ABA bodies signed on to last week’s resolution, including its criminal justice, civil rights and social justice subcommittees, and its Commission on Youth at Risk.
In a statement to The Imprint, the director of youth justice and child welfare for the Children’s Defense Fund confirmed support for both positions taken by the ABA, and their broader potential impact.
“Contact with the juvenile justice system increases the likelihood of ending up in the adult system. We can better meet their needs with age-appropriate services and support. That is the path to true community safety,” Julia Davis, of the organization’s New York chapter, stated in an email. “The prohibition against the use of chemical restraints — pepper spray — against children should be the rule everywhere. This practice traumatizes youth and has no place in juvenile correctional settings, which is why many youth correctional leaders have called for an end to this policy themselves.”
Sonnett noted that the ABA has passed other resolutions calling for “ending harsh treatment of children and youths,” including a statement issued last year calling for an end to schools’ use of “seclusion and mechanical or chemical restraints on students in preschool through 12th grade.”
A representative of the National Juvenile Defender Center, which trains attorneys who represent minors accused of crimes, said she hopes state legislatures across the country reconsider their laws in accordance with what the national lawyers association is calling for.
“We have all seen horrific images of kindergarten- and elementary school-aged children being handcuffed and placed into police cruisers. The trauma these children experience is unimaginable and irreparably damages their trust in law enforcement and the court system,” said Amy Borror, a justice system analyst at the center. “Black youth, other youth of color, and children with disabilities are disproportionately funneled into the court system.”
Borror said states should adopt the ABA’s recommendation, “which is squarely in line with international standards, and treat children like children.”