Prof. Tamar Birckhead, who teaches in the Youth Justice Clinic and is the Director of Clinical Programs, recently published an op-ed in the
, on the prosecution of children who are delinquent by reason of poverty. It is reprinted here:
This month, an 8-year-old boy in Alabama was charged with the murder of a 1-year-old girl named Kelci Lewis. The authorities announced that the girl’s mother and a friend had left six children, none older than 8, at home unsupervised. They believe the boy “recklessly” and “viciously” beat the toddler when she would not stop crying.
The case will be heard in Jefferson County Family Court and could result in a disposition that includes long-term court supervision of the boy and confinement in a secure facility until age 21. Katerra M. Lewis, Kelsi’s mother, has been charged with manslaughter.
In Alabama, there is no minimum age at which children may be prosecuted in juvenile court. Criminal cases can be transferred from family court to adult criminal court only when the defendant is at least 14 at the time the alleged offense occurred. Therefore, the options available to the district attorney’s office in this instance are to prosecute the boy in family court or not to charge him at all.
North Carolina’s jurisdictional limits are similar: The minimum age for juvenile court prosecution is 6, and juveniles must be at least 13 to be eligible for transfer to criminal court.
An 8-year-old charged
What could possibly justify bringing a murder charge against an 8-year-old child, who in many states is presumed not to have capacity to form criminal intent or to understand court proceedings? Lara M. Alvis, a former juvenile court prosecutor from neighboring Shelby County, Alabama, has explained, “They either had to say ‘we’re not going to charge’ or ‘we are going to charge,’ and once they say they’re not, that’s going to be a huge problem, because then the child won’t get any services by the state.”
This notion that certain families must be directed into the juvenile justice system in order to “help” the youth and facilitate services, accountability and discipline is a common misperception.
In 2013, U.S. courts with juvenile jurisdiction handled 1.1 million delinquency cases. Nearly 18 percent were dismissed at intake and an additional 27 percent were handled informally, with the juvenile agreeing to some type of voluntary sanction, such as community service or restitution. In 55 percent of the cases, authorities filed a petition and handled the case formally, as they are doing in Birmingham.
In North Carolina, the numbers of cases dismissed or handled informally in 2013 were even lower than the national average – only 38.5 percent of the 158,973 juvenile court complaints received did not result in formal charges.
In other words, police officers, prosecutors, probation officers and judges make decisions that cumulatively ensure that more than half of the children enter and remain in the juvenile court system, while the rest are diverted out of it or manage to avoid it altogether. Research shows that the race and ethnicity of the child partially explains this result, as the rate at which black youth in the U.S. were referred to juvenile courts for a delinquency offense in 2013 was more than twice the rate for white youth.
The role of the child’s socioeconomic status has received less attention, although jurisdictions that formally keep track of the income level of a youth’s family have found that nearly 80 percent of those in juvenile court were on public assistance or had annual family incomes of less than $30,000.
A permanent underclass
My own research has confirmed that the assumption that court involvement is the best way for poor children and their families to access needed services merely perpetuates a cycle of disadvantage, creating a permanent underclass and contributing to mass incarceration.
This concept, which I call needs-based delinquency, is perpetuated through the structure and culture of the modern juvenile court, in which typical adolescent behavior of children from poor families is more likely to be criminalized and result in court referrals than misconduct by children from families of means.
Needs-based delinquency is particularly troubling given research indicating that children exposed to juvenile court reoffend at higher rates and are stigmatized in the process, while the vast majority of children whose cases are diverted or closed will never reoffend.
Yet we continue to use the juvenile court system as the primary safety net for poor children and their families, rather than ensure that children on the margins receive services without being charged with delinquency.
Adjudicating children delinquent by reason of poverty is a counterproductive approach. All of our children deserve better.