In December, when North Carolina’s Raise the Age law takes effect, the state will no longer be the only one in the country to automatically prosecute sixteen and seventeen-year-olds as adults. The law raises the age of juvenile jurisdiction for nonviolent crimes from sixteen to eighteen, meaning all cases involving anyone under eighteen would start in the juvenile court system, though some serious offenses would be transferred to adult court.

The change, passed in 2017, was rooted in the idea that teens are better served by a juvenile justice system that focuses on intervention than a system built for detaining adults.

Noticeably absent from conversations about raising the maximum age of juvenile jurisdiction, however, is that there’s also a minimum age at which juveniles can be prosecuted in court.

It’s six.

Of states that have a minimum age of juvenile jurisdiction, North Carolina’s is the lowest.

A bill filed Wednesday by state Representative Marcia Morey—a former prosecutor and judge in Durham—and three co-sponsors would raise that lower limit to ten years old, putting North Carolina in line with most other states that set a minimum age of jurisdiction.

North Carolina General Assembly Representative Marcia Morey

“When you have kids that are seven or eight or even nine at a defense table with a coloring book and their shoes don’t even touch the bottom of the chair or reach the floor, they don’t understand anything of what’s happening,” Morey says. “We can provide services to kids without categorizing them as delinquents, which is a stigma that can stay with kids for the rest of their lives.”

About two-thirds of states have only a maximum age of jurisdiction, meaning anyone up to that age could be prosecuted, according to the National Juvenile Defender Center. The remaining states set their minimum at seven, eight, or ten years old. A bill is currently pending in Indiana that would set the minimum age of adjudication there at twelve, which would be the highest such age in the country.

Currently, North Carolina law defines a juvenile delinquent as “any juvenile who, while less than 16 years of age but at least 6 years of age, commits a crime or infraction under State law or under an ordinance of local government.”

Advocates of raising the minimum age to ten say young children do not belong in court because they generally cannot grasp the charges, proceedings, and judgments against them. In more legal terminology: They lack the capacity to stand trial.

"However, in order to prevail on an argument that somebody doesn’t have capacity, someone has to raise the issue,” says Barb Fedders, an assistant law professor at the University of North Carolina, who co-directs the school’s Youth Justice Clinic. “It can be the prosecutor or the defense attorney or the judge, but it doesn’t always get raised as it should ... Just as a matter of basic due process, you’re not supposed to be able to be convicted after a trial or a guilty plea if you don’t have capacity.”

In addition, children may not remember the incident that brought them to court, let alone be able to give their attorney direction, help prepare for a case, and answer questions in a courtroom, Fedders says.

“A kid can’t understand the concept that you don’t have to admit to something or you have the right to challenge somebody’s testimony against you, you have the right to trial by a judge,” she says. “It’s such an abstract concept, and kids are so used to this thinking that they have to do whatever adults tell them, being able to understand that they, first, have these rights and that they can waive them—it’s a lot for children who developmentally think really concretely.”

Setting a minimum—rather than giving court officials full discretion to decide what cases go to court—not only helps keep bias out of the process but also signals that North Carolina believes children under ten do not belong in the justice system, Fedders says.

According to an annual report from the North Carolina Department of Public Safety’s Juvenile Justice division, courts received 1,364 complaints in 2017 involving children age ten and under. It’s up to juvenile court counselors whether those complaints—which can come from schools, police, or the public—should proceed to court. The report doesn’t provide a breakdown by age group, but 60 percent of all juvenile complaints made that year were approved for court.

Each year, the percentage of juvenile complaints that originate from schools hovers at around 40 percent, according to the Juvenile Justice Annual Report. Attorneys who have worked with children under ten say the majority of complaints that bring children that young into courts are school-related. Disrupting class can turn into a charge for disorderly conduct. A fight at recess can become simply affray. Morey recalls one eight-year-old boy who came into her courtroom when she was a judge who was charged with sexual battery after putting his hand on a girl in his second-grade class. Another child came into court for pulling a fire alarm, she says.

“I think, in the past, the purpose was, anytime someone that young came in, to get them services—to get them counseling, to get them educational tutoring help, anything you could to help the child,” says Morey. “It was not to punish. But we’ve gotten a lot smarter about what needs to come to court and whenever possible to divert cases like that.”

If an incident occurs during school, whether it gets referred to a juvenile court counselor may depend on the school’s discipline policies, says Fedders. Students of color are disproportionately disciplined in North Carolina schools. Again, the Juvenile Justice report doesn’t offer a breakdown by age, but 63 percent of juveniles who were the subjects of complaints in 2017 were black or Hispanic.

Eric Zogry, the state’s juvenile defender, says it's rare for young children to be detained—children under ten can’t be sent to one of the state’s Youth Development Centers, which house youths post-conviction. It’s more likely they’ll be placed on probation or some kind of supervision, a responsibility that largely falls on parents. Still, a complaint—even if it doesn’t get to court—will stay on juvenile court counselors' records and may factor into decisions about whether to refer subsequent complaints for prosecution, he says.

A primary justification for raising the maximum age of juvenile jurisdiction was to mitigate the consequences young people face for making mistakes. Raising the minimum age could keep kids out of the court system altogether, proponents say.

“It is not uncommon for a youth to get involved under the age of ten and remain in the system until they age out,” says Zogry, who previously handled juvenile cases as a public defender in Greensboro. “Certainly that can be a starting point for them to be further integrated as a quote-unquote juvenile delinquent.”

Many of the young children Zogry has seen in the court system have experienced trauma, he says. They’re “very malleable,” and continually being labeled a juvenile delinquent might push them to see themselves in that way—and the cycle perpetuates.

“They will start believing what you’re telling them, and then they will start behaving in the way they believe they should be behaving,” he says.

Morey says she feels good about the bill’s chances. Unlike raising the maximum age of juvenile jurisdiction, which funnels more teens into the juvenile court system—meaning the state needs to pay for more court counselors, court time, and juvenile detention beds—raising the minimum age will save money by simply taking kids under ten out of the system. Those savings could be applied to helping older children or preventing them from entering the system in the first place, Morey says.

Along with Democrat Pricey Harrison, Morey has two Republican co-sponsors on the bill—D. Craig Horn and Chuck McGrady—which is essential to advancing legislation under Republican majorities in the General Assembly.

Morey acknowledges that North Carolina is behind the curve, and has been slow to recognize the research showing that juveniles’ brains aren’t fully developed and follow the lead of other states. After all, it took a hundred years to raise the maximum age of juvenile jurisdiction here. But in 2017, the state finally got that done.

“Now we’re trying to make it right on the young end of the scale,” Morey says, “and not put kids that are too young to understand what a court is or the proceedings are in the court system.”

Contact staff writer Sarah Willets by email at swillets@indyweek.com, by phone at 919-286-1972, or on Twitter @sarah_willets.