In a forested area near the US-Canada border, state police this year detained a resident of the village of Brasher Falls, New York, whose population is about 1,000 people. The resident was accused of rape.
The pain caused by this type of crime often tears apart a small town, but it doesn’t extend beyond its limits. But after the arrest on March 23, news of the arrest spread far beyond the village. The resident accused of rape was seven years old.
Little is known about the circumstances of the arrest, details of the charges or how the case was resolved. Records of episodes involving children are confidential. But in New York, the detention has again sparked a discussion about how the justice system handles so-called juvenile offenders — children ages 7 to 18 whose cases are heard in family courts.
Judges, juvenile justice experts and lawyers who have handled cases like this on both the prosecution and the defense side say the arrests traumatize children, entangle them in the justice system and make reoffending more likely. Young children are rarely charged as adults. But arresting and accusing them in any way, say those who study the matter, ignores the scientific facts about brain development, and the effort to achieve justice often produces the opposite result.
“What we now know is that science does not support second-grade children being tried,” said Dawne Mitchell, who heads the youth rights area at the Legal Aid Society, a legal aid organization. Citing papers in cognitive science that demonstrate that young children are not really aware of the consequences of their actions and that emphasize the psychological trauma caused when they are handcuffed and processed, Mitchell is one of the many experts across the country who are urging states to raise the minimum age for this type of process.
The incident in Brasher Falls in November, and a video showing police officers handcuffing and pepper spraying a nine-year-old girl in the back of a Rochester police car in January, once again drew attention to a project of law that is being processed in the New York State Legislature.
The bill would raise the minimum age at which a child can be prosecuted as a juvenile offender to 12, down from seven today (except for murder charges), and would refer cases involving younger children to social services and other departments.
The proposal follows a similar move to raise the age at which people can be criminally charged as adults. In 2019, New York State completed a gradual implementation that raises from 16 to 18 the age at which teenagers can be charged as adults for minor offenses and crimes.
The attempt to change the so-called age of delinquency is proceeding more slowly.
Despite a seemingly broad consensus — which includes a 2018 UN call for countries to raise the minimum age of defendants in criminal trials to 14 — the bill has not gained much legislative momentum. That’s partly because the number of criminal cases opened against young children is relatively low, said N. Nick Perry, state representative for Brooklyn, New York, who was a proponent of the bill when it was introduced in 2018.
“There aren’t many seven-year-olds who are dragged into serious criminal charges,” said Perry, who says he believes the law should pass the current session of the legislature. “If something serious doesn’t draw attention to the need to update or change the law, it will tend to remain as it is, no matter how inappropriate.”
But other states have begun to make changes to their laws. In 2018, Massachusetts raised the minimum age for defendants in criminal cases from seven to 12 years. Mississippi recently enacted a law that raises the age at which children can be transferred to detention facilities from 10 to 12 years. Similar bills are being considered in more than half a dozen US states.
Still, more than half of the states in the United States do not have a minimum age for prosecution or arrest. Of those that do, only North Carolina, which allows children as young as six to be prosecuted as offenders, has a lower limit than New York.
A few months ago in North Carolina, a six-year-old boy was arrested and taken to court after picking up a tulip while waiting at a bus stop, according to a report in Durham’s Herald-Sun newspaper. .
The case was closed without charge, but it caused a furor. “Should a child who believes in Santa Claus, the Easter Bunny and the tooth fairy be considered capable of life-altering decisions?” asked JH Corpening, the presiding judge of the New Hanover County District Court, expressing his conviction that children of this age are not aware of the consequences of behavior that could be classified as criminal. North Carolina is also considering changing its law.
The proposal in New York to refer children under the age of 12 and accused of serious crimes to social service agencies would somehow codify what experts say already occurs frequently.
In New York State, for example, of the hundreds of children under the age of 12 who were arrested in 2019, only 121 cases became family court cases, according to records obtained by the Children’s Defense Fund-New York, new division. from the national organization for legal aid.
Detentions of children also tend to disproportionately affect certain races. In 2019, more than 90% of children aged seven to 11 years old detained in New York City were black or Hispanic, according to data provided by Legal Aid, even though these groups represent only 57% of the population of children in the city. .
White children, experts say, are more likely to be referred to therapists or returned to their parents for behaviors similar to those that cause black children to be imprisoned, a pattern that replicates across the country.
There appears to be little, if any, organized opposition to raising the age of delinquency. But those who resist say doing so would restrict the court system’s actions, according to Jeffrey Butts, director of the Center for Research and Evaluation at the John Jay College of Criminal Justice. In rare cases involving particularly dangerous children, he says, incarceration can prevent them from becoming a risk to others.
“There will always be cases where the authorities don’t have the necessary resources,” said Butts. “Any limit set by law is a commitment that basically recognizes that we don’t have a legal system capable of making complex decisions.”
Many people who study juvenile justice say that accused youths are often victims of abuse. As a child, Charles Rice’s anger at the physical and sexual abuse he says he suffered at home erupted at school in violent outbursts.
One afternoon, while working on a wire sculpture in fifth-grade art class at his elementary school in Syracuse, NY, he got into a fight with a classmate. The teacher intervened, and Charles took one of the instruments he was using in art class – a stiletto – and cut the teacher. Rice, who is black, was arrested.
He spent eight months in a juvenile detention center. Rice, 31, now advocates at-risk youth and says he believes that if he were white, he would have been referred to therapy. “It was the criminalization of my childhood,” he said. “My behavior was a request for help, not handcuffs.”
In Massachusetts, in the three years since the new law went into effect, there has been no increase in the statistics of criminal activities by children, according to Sana Fadel, assistant director of Citizens for Juvenile Justice, despite the system’s caseload. of juvenile courts has fallen by 40%. Children are being served by support programs that focus on providing social services, she said.
“The court system is probably a hundred years behind schedule, because the test usually given is ‘do you understand this is wrong and that is right?'” said Jane Tewksbury, who served as a public attorney in Massachusetts and later as commissioner of the department of services to young people in the state. “A four-year-old might say yes, but that doesn’t mean that if she stabbed someone with a pencil, she knew exactly what she was doing.”
Court proceedings can be incomprehensible to young children. When Debbie Freitas, a lawyer from Lowell, Massachusetts, accompanied an eight-year-old client to a magistrate’s hearing in 2018 for bringing a butter knife to school, the child asked, “Wow, let’s go see the president?”, recalled Freitas.
“They’re so small they don’t even understand the basis of what’s happening.”
News of the detention in Brasher Falls shocked residents, said Mark Peets, the county administrator. “You can’t imagine a seven-year-old being arrested; you watch all those ‘real crime’ shows on TV and you never imagine they could involve a seven-year-old.”
But in addition to the collective pain for the victim, he says, there is also a sense that the young perpetrator needs help. “Right and wrong are there, but there needs to be some social service protocol,” Peets said, “some way to handle it without him being treated almost like an adult.”