Massachusetts State House.
Boston Bar Journal

Time To Raise The Bar: Pending Legislation to Raise the Age Limit for Juvenile Cases from 17 to 18

July 10, 2013
| Summer 2013, Vol. 57, #3

by Naoka Carey

Vantage Point

Carey_NaokaEvery year, Massachusetts sends thousands of high-school-aged kids into our adult criminal justice system.  In contrast to most other laws about children in the Commonwealth, Massachusetts automatically treats all 17 year-olds accused of a crime as “adults.”  Our outdated law – a relic of the Victorian era – is the subject of multiple bills before the Massachusetts legislature this session, each of which raises the upper age limit of juvenile court jurisdiction from 17 to 18 to allow the vast majority of cases involving 17 year-olds to be addressed in our juvenile system.  In May, the House unanimously voted in favor of H.1432 (now joined with H.3229); the Senate is expected to vote on the bill soon.  The proposal has broad support, including the Juvenile Courts, the Massachusetts Sheriffs’ Association, the Massachusetts Bar Association, and many other organizations and individuals; indeed, there has been no formal opposition to the reform to date.

For practitioners, the proposed changes are straightforward.  The bills amend sections of Chapter 119 pertaining to delinquency and youthful offender cases to give the juvenile court jurisdiction over youth who commit their offenses before their 18th birthdays.  Other than raising the upper age limit, the bills do not alter existing provisions for more serious “youthful offender” cases, meaning that judges will still have discretion in those cases to impose an adult sentence.  The bills also leave intact provisions requiring murder cases involving persons 14 and over to be heard in adult court (other bills this session address this issue in response to the U.S. Supreme Court’s decision in Miller v. Alabama (567 U.S.              (2012), which held that statutes that mandate life without parole sentences for youth under 18, such as the current law in Massachusetts, violate the 8th Amendment).  The bills make minor changes to other provisions of the General Laws consistent with the changes to Chapter 119 by, for example, amending adult criminal history reporting provisions to reflect the fact that 17 year-olds will no longer be treated as adults in most cases.

The reasons to change the law now are plentiful:

Keep Kids Safe and Save Money: Although the vast majority of 17 year-olds are charged with minor, non-violent offenses, they are held with older criminal offenders in adult jails and prisons. According to the Department of Justice, inmates under 18 were eight times more likely to be victims of sexual assault than adult inmates.  Research has also found that teens held in adult facilities are 36 times more likely to commit suicide than those held in juvenile facilities.

As a result of these disturbing statistics, the Department of Justice recently issued new regulations under the Prison Rape Elimination Act (PREA) for youth under 18 held in adult facilities.  Under these requirements, “youthful inmates” in prisons, jails and Houses of Corrections must be housed separately from adults, and separated by sight and sound or directly supervised by staff when they are mixed with adults in other settings.  Facilities are generally prohibited from using isolation, or “protective custody,” to achieve compliance.  “Youthful detainees” in court and police lock-ups also need to be separated from adults.   Because a separate federal law, the Juvenile Justice and Delinquency Prevention Act (JJDPA), prohibits intermingling individuals who are defined under state law as “adults” with “juveniles,” Massachusetts cannot simply place 17 year-olds in the juvenile system in order to comply with PREA.  The only way to comply with both PREA and JJDPA without incurring substantial costs to reconfigure facilities and hire new staff is to raise the age of juvenile court jurisdiction.  The PREA regulations become fully operational in August, adding extra urgency to the need to address this issue.

Lower Recidivism and Increase Public Safety: Studies conducted at Northeastern University and elsewhere have shown that when youth are sent to the adult system they are more likely to reoffend, to reoffend more quickly and to escalate into committing serious and violent crimes. This is true even when comparing youth who are the same age, and who have the same offense and offense history.

Ensure that Youth Receive Educational and other Age-Appropriate Services:  The juvenile system is designed to rehabilitate and, unlike the adult system, requires children to attend school and ensures that they receive special educational or other needed services, including age-appropriate substance abuse and behavioral health treatment. 

Preserve and Support Family Involvement in Kids’ Lives:  Because current law treats 17 year-olds as adults, parents need not be notified of their arrest, may not be present at interrogations and have no role in court proceedings, including plea bargains.  By contrast, the juvenile system requires that parents be notified when their child is arrested and involved in the investigation and court process and sentencing.

Bring Our Criminal Law into Alignment with Our Other Laws About Children:  The age of adult jurisdiction is inconsistent with other Massachusetts laws, laws in other states, international law and recent Supreme Court rulings. The federal government and 39 states use 18 as the age of adult criminal jurisdiction; nearly every other state with a lower age is considering a change to their statute as well (Illinois changed its law in May of this year).  The current age of adult criminal jurisdiction is also inconsistent with most of our other laws about children, which set 18 as the minimum age for such matters as voting, entering into a contract and serving on a jury.  

For Juvenile Court practitioners, particularly those who handle both delinquency and care and protection cases, these reforms should allow for a more coordinated, rational approach to cases.  For example, child welfare clients who are under 18 but commit an offense will no longer be pulled into adult court proceedings and adult jails or prisons which effectively terminate the ability of the child welfare system to serve them.

Given the dramatic reductions in juvenile court caseloads over the last decade (50% in the last five years), the system has the capacity to handle these cases.  At the same time, the short- and long-term savings that will be realized by reducing future crime and improving the educational and employment prospects for youth are significant.

Massachusetts established the age of adult criminal jurisdiction at 17 in 1846, back when children could legally toil in mills all day.  It is time to bring our law into the 21st century and align it with what most state, federal and other laws and our common sense tell us is true: 17-year-olds are not adults.

Naoka Carey is the Executive Director of Citizens for Juvenile Justice, a statewide non-profit working to improve the juvenile justice system in Massachusetts.