California Bill Would Deem Children Under 12 Too Young for Court

Legislation passed in Massachusetts and pending in California would set a minimum age for children to enter the juvenile justice system.

This story is co-published with The Chronicle of Social Change, a nonprofit news publication that covers issues affecting vulnerable children, youth and their families.

A bill winding its way through the California legislature would bar the juvenile justice system from hearing most cases of children younger than 12, an idea that has sparked a fierce backlash from district attorneys.

California, like most states, has no minimum age that would prevent courts from hearing cases of children who are charged with criminal offenses.

Instead of linking children to services or out-of-home placements through juvenile court adjudication, Senate Bill (SB) 439 would instead direct counties in the state to develop the “least restrictive” alternatives to the juvenile justice system. That could mean a greater reliance on the dependency court system, where child protective services agencies are tasked with providing services to vulnerable children and families. The bill follows on the calls of some advocates in California and nationally who say that children younger than 12 are just too young to enter the justice system.

“The vast majority of young children in California who’ve been accused of an offense are exhibiting behaviors or minor behaviors that did not require any justice involvement,” state Senator Holly Mitchell, a Democrat and the bill’s co-sponsor, said at a hearing last month. “Involvement with the juvenile justice system can be harmful to a child’s health and development.”

All states have an established “age of jurisdiction,” a bright line for the maximum age of juvenile court jurisdiction, most often at 18. That’s the age at which a young person stops being eligible for the rehabilitative services and resources embedded in the juvenile justice system.

With the increasing influence of developmental brain science that points to a longer time for teenage brains to mature into adulthood, some states are even pushing to extend access to the juvenile system for youth 18 and older through “raise the age” efforts. But there is also an emerging effort on the other end, where advocates hope to limit access to the system for the youngest children.

Currently, 20 states have a minimum age for entry into the juvenile justice system, ranging from age 6 in North Carolina to a threshold of 10 in 11 other states.

This year, Massachusetts became the first state to set minimum age at 12, a precedent that California advocates hope to replicate. Some advocates say that setting the threshold at that age would bring it in line with many other Western European countries, which helped enshrine that age in the United Nations Convention on the Rights of the Child. Among United Nations member states, the United States remains the lone country not to ratify the agreement.

In California, the number of children younger than 12 who end up in the justice system actually is very small. According to a recent analysis of California Department of Justice data by UCLA researchers, there were 687 referrals of children age 11 and younger to probation from law enforcement or schools in 2015, or about 0.8 percent of the total number of referrals in California in 2015.

That included one referral of a 5-year-old child for a “curfew violation” and 452 referrals of 11-year-olds, most often for status offenses and misdemeanor offenses, such as petty theft and minor assault and battery charges. Eighty-five percent of these cases were closed or diverted from the system at the outset of the case.

Most of the cases that did go to juvenile delinquency court were dismissed or resolved informally. Only 30 children younger than 12 ended up being formally supervised by California’s juvenile justice system in 2015. In 2016, that number was 26 children out of 652 referrals, mostly for misdemeanor offenses.

In looking at children under 12 from 2010 to 2015, no youth had a sustained petition for homicide, manslaughter, or rape.

“I think people have an assumption that juvenile court is potentially a helpful intervention for young children,” said Laura Abrams, one of the UCLA researchers who looked at state juvenile justice data. “But in most cases, the charges aren’t sustained or they’re dismissed, so the family doesn’t get any help at all.”

For the children who do end up in the justice system at an early age—and especially those who end up incarcerated at juvenile halls and camps in the state—the impact can be harmful to their healthy development, leading to lower educational outcomes, among other issues.

In looking at children under 12 from 2010 to 2015, no youth had a sustained petition for homicide, manslaughter, or rape.

Some research indicates that the earlier a young person enters the justice system, the more likely they are to become chronic offenders later in life.

That’s the experience of David Rey, who was recently paroled from prison after spending nearly two decades in California prisons. He now assists others re-entering society after incarceration through work with the Anti-Recidivism Coalition.

Rey, now 38, was convicted of murder at age 18. But he first touched the justice system at age 12, when he stole a neighbor’s television for his clubhouse.

Rey said he was “pretty much sheltered” as a kid growing up in San Luis Obispo, a city along the Central California coast. That ended when he was arrested, stripped naked in a room of adults and sent to juvenile hall.

“I didn’t really know what gangs were, I didn’t really know what drugs were, until after I had police contact, until I went to juvenile hall and I met other kids that were dysfunctional,” Rey said.

That experience helped define the course of his life, even after a brief stay in juvenile hall.

“That really shaped me in the direction I was going,” Rey said. “Six years later, I was in the same police station for murder.”

That perspective has drawn strong opposition from several law enforcement entities in the state, including the California District Attorneys Association, the California Police Chiefs Association and the Chief Probation Officers of California.

The Los Angeles County district attorney’s office has been a particularly vocal critic of the bill since it was introduced last year. A letter sent last month to a committee considering the bill highlighted several lurid cases that the office believes show the juvenile justice system is the only way to rehabilitate children and protect public safety.

In one example, a 9-year-old was arrested after allegedly committing a robbery. The case was dismissed due to the boy’s “developmental age and maturity,” but over the next four years, the youth was brought to court nine times. He was described as the “ring leader of a residential burglary crew” by age 11 and became an active gang member during the time.

The boy was placed in group home placements out of county several times, but he kept running away and returning home. “For this rare type of youth, the intervention of the court is necessary. DCFS can offer services and place a minor, but they cannot make him stay,” said the letter, referring to the Department of Children and Family Services.

I didn’t really know what gangs were, I didn’t really know what drugs were, until after I had police contact.David Rey, Anti-Recidivism Coalition

At the hearing for SB 439 last month, Tamar Tokat from the LA County district attorney’s office said there was “no alternative” to serious criminal cases involving children.

“We’re not here because we want to file charges against some kid who stole peanut butter,” Tokat said. “We’re here because we want to rehabilitate the 11-year-old who is continuously sexually abusing the little kids in the house. We want to rehabilitate that child so he does not become the 25-year-old rapist, so he does not become the 25-year-old murderer.”

Proponents of SB 439, like Patricia Soung of Children’s Defense Fund-California, say that the juvenile justice system hasn’t had a strong track record of providing effective supportive services to young people, especially those that address the trauma that many are facing.

Most children younger than 12 who are referred to probation don’t end up requiring any court intervention, which represents a missed opportunity to work with some at-risk children, according to Soung.

With SB 439, dependency courts could be called in to fill the gap for children ages 11 and younger.

“The California courts have said that dependency courts have always been imagined as the better alternative to address young people’s circumstances in a more holistic way,” Soung said. “Counties have overrelied on law enforcement agencies, including probation, to be gatekeepers to services, and we would like this to be a paradigm shift toward something else.”

Under the most recent version of the bill, children under the age of 12 who commit murder, “rape with force,” or other violent offenses would still be sent through the juvenile delinquency courts. But counties would be given a year to draw up plans for how they would work with young people who don’t get sent to juvenile delinquency court.

Santa Clara County is one place where those rules are already in effect. In 2010, the county’s Board of Supervisors passed a motion to limit juvenile detention for children 12 years old and younger. Instead, the county put into place a protocol that sends children into a mental health court instead of the juvenile court, surrounding them with services from several county departments.

Soung would like to see California counties take up some version of this approach in an effort to intervene before children become more involved in the juvenile justice system.

“Early exposure to the justice system is harmful and it can increase the likelihood of recidivating and young people aren’t getting the help they need,” she said. “That doesn’t mean we shouldn’t respond, but let’s respond in a more appropriate way that actually addresses the underlying causes of their behavior.”