The Age of the Child


When I first began practicing in juvenile delinquency court in North Carolina eight years ago, I was shocked to discover that the maximum age of jurisdiction is 15.

This means if you are 16 or 17 and charged with a criminal offense, you are automatically prosecuted in adult criminal court. There are no exceptions, no possibility of waiving the rule, and no second chances. So, when a 10th grader pushes another student in the hallway of a school that has a zero-tolerance policy, the 16-year-old will face misdemeanor assault charges in criminal district court.  Likewise, a 17-year-old prosecuted for stealing a bike from a neighbor’s garage would face charges of breaking and entering as well as larceny.

Once in adult court, one of two general outcomes will result -- both of which are costly and counterproductive. Either these adolescents end up with criminal records that will likely follow them forever, harming their opportunities for higher education and gainful employment, or they will be given a “pass” because of their status as young offenders, in which case no one will take the time to address what caused the conduct. Under the first scenario, the criminal justice system has labeled and stigmatized a teenager without justification, and under the second, it has sent the message that the misbehavior is -- quite literally -- inconsequential.

Regardless, neither youth will have an opportunity to benefit from the resources and intensive supervision available in juvenile court, including psychological evaluations, drug and alcohol treatment and family counseling. Equally important, the parents of these teens will not be under the court’s jurisdiction and, therefore, will have no formal obligation to monitor and support their child during the pendency of the case or while the youth is on probation.

North Carolina has long been in the minority on this issue; the state is currently only one of two to set the maximum age of juvenile court jurisdiction at 15. Ten other states have set it at 16, while the vast majority -- 38 states -- have set it at 17. I have been involved over the years in an unsuccessful statewide campaign to raise the maximum age from 15 to 17 in North Carolina, speaking before the Legislature, writing academic articles on the law and publishing commentary in support of reform.

Although proposed legislation to raise the age was approved by a state House Judiciary committee, it languished in the House Appropriations Committee and is now in the hands of an “implementation commission,” all of which means that North Carolina’s 16- and 17- year-olds -- no matter the circumstances of the offense -- continue to be prosecuted in adult criminal court.

Given this perspective, I was heartened by the June report of the National Conference of State Legislatures that a “major trend” in juvenile justice policy in the past decade has been to expand the reach of the juvenile court by increasing the upper age of jurisdiction.

In 2007, for example, Connecticut raised the maximum age from 15 to 17, moving more than 10,000 new cases from criminal to juvenile court annually and returning about $3 in benefits for every $1 in costs; the Rhode Island Legislature rejected the governor’s recommendation to drop the maximum age of juvenile court jurisdiction from 17 to 16; and Missouri expanded juvenile court jurisdiction by including all those 18 and younger who are “status offenders” (alleged to be truant, runaways, or beyond the control of their parents). Similar reforms have been passed in Colorado, Illinois, Mississippi and Oklahoma.

Yet, ironies continue to abound. In August, New York Gov. Andrew Cuomo signed a bill requiring those under 18 to have parental consent before they may pierce any body part other than their ears. Not only that, but consent must be given by the parent in writing at the time of the piercing and in the presence of the shop owner or technician. The bill was drafted in response to health and safety concerns, including research showing that 20 percent of all body piercings result in infection.  Such a law makes sense, of course, but it was passed in the only other state besides North Carolina that considers all 16- and 17- year-olds to be adults whenever they are charged with a criminal offense.

So, how to explain a scenario in which a parent’s written, in person consent is required before a 16-year-old can get her belly button pierced but the same youth can be criminally prosecuted as an adult if she steals a magazine from the local drug store?

It is, most likely, the function of political expedience.  Sixteen- and 17- year-olds who are charged with crimes do not comprise a powerful special interest group. The majority are children of color; they live in low-income neighborhoods, and their parents (for the most part) do not vote. In contrast, a significant number of 16- and 17-year-olds who get body piercings are white and from families of means. Their parents lobbied for the New York bill; the governor delivered.

I was not surprised to learn that North Carolina has a similar bill on the books. My hope is that a law to raise the age of juvenile court jurisdiction is not far behind.

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Tamar Birckhead

Tamar Birckhead is an associate professor of law at the University of North Carolina at Chapel Hill and a criminal defense attorney with more than 20 years of experience. She is a faculty supervisor of the UNC Juvenile Justice Clinic, an academic program in which third-year law students defend children charged with criminal offenses in juvenile delinquency court. Professor Birckhead’s research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, and indigent criminal defense; her scholarship has been published in numerous law journals, and she co-edited the third edition of a law school casebook, Children, Parents, and the Law, with Professor Leslie J. Harris. She also regularly writes commentary, which has been published in the Los Angeles Times, and she recently launched the Juvenile Justice Blog. Prior to joining the UNC faculty in 2004, Professor Birckhead practiced for 10 years as a public defender, representing indigent criminal defendants in the Massachusetts trial and appellate courts and in federal district court in Boston. Professor Birckhead has defended clients in a wide variety of criminal cases, from violent felony offenses in state court to acts of terrorism in federal court. Among her clients was Richard Reid, the attempted "Shoe Bomber" prosecuted in the First Circuit under the U.S.A. Patriot Act. Licensed to practice in North Carolina, New York, and Massachusetts, Professor Birckhead has been a frequent lecturer at continuing legal education programs across the United States as well as a faculty member at the Trial Advocacy Workshop at Harvard Law School. She received her B.A. degree in English literature with honors from Yale University and her J.D. with honors from Harvard Law School, where she served as Recent Developments Editor of the Harvard Women's Law Journal.

One thought on “The Age of the Child”

  1. Two quick addenda — Connecticut, which raised its upper age of juvenile court jurisdiction from 15 to 16 in 2010, just reported that rearrest rates for 16 year olds are down seven percentage points:

    Also, the proposal to raise the age in NC would not change the ability of the state to transfer kids as young as 13 to adult superior court for ANY felony, meaning that only those 16 and 17 year olds who have committed minor crimes would be adjudicated in juvenile court.

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