Oct. - Dec. 2012

VOL. XXXI NO. 4

Recent US SC Decisions Suggest That Justice System Should Not Treat Children as Adults

youth in handcuffs

By Hannah Benton

Scientific research on adolescent brain development continues to show that the brain of a 15-year-old is very different from the brain of a 30-year-old. These differences impact an adolescent’s impulse control, long-term planning, and reasoning abilities. Nonetheless, even within the last decade, states could impose identical criminal sentences on a 15-year-old as they would impose on a 30-year-old, including the death penalty and mandatory life without parole. Since 2005, the U.S. Supreme Court has begun to acknowledge that these developmental differences make adolescents less morally culpable and more capable of rehabilitation than adults. The Court has held that some of the most extreme criminal sentences permissible for adults violate Eighth Amendment protections against cruel and unusual punishment when applied to children. Most recently, in Miller v. Alabama, the U.S. Supreme Court recently struck down mandatory life without parole sentences for children who were under 18 at the time of their crimes.1

Supreme Court Prohibits Imposing Extreme Sentences on Children

Miller continued a trend beginning with the 2005 landmark case, Roper v. Simmons, in which the Supreme Court struck down the most extreme punishment – the death penalty - as a sentencing option for juveniles.2 In Roper, the Court relied on scientific and sociological research to conclude that “[t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders:” (1) children are more impulsive and have greater difficulty weighing the long-term consequences of their actions; (2) children are “more vulnerable... to negative influences,” such as peer pressure; and (3) children’s personalities are more malleable, so it is more likely that they will change in response to positive influences.3 Due to these three key differences, the court held that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult.”4

Five years later, in 2010, the Court relied upon Roper to eliminate the next most extreme punishment - life without parole – as a sentencing option for children who commit non-homicide offenses.5 The Court in Graham v. Florida noted fundamental differences between children and adults, lessening the moral culpability of children who commit crimes: “[d]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.... Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.”6 Still, the Graham holding was tied to the nature of the offense: It applied only to children convicted of non-homicide offenses and left open the door for children convicted of homicide to be sentenced to life without the possibility of parole.


"Children incarcerated as adults are almost 20 times more likely than other youth to commit suicide." 


This past June, the Miller Court extended the reasoning of Roper and Graham to ban mandatory life without parole sentencing schemes for children convicted of homicide. Although the Miller decision was limited to the narrow class of individuals sentenced under mandatory sentencing schemes for homicide, the Court reflected that the impact of brain development on children’s behavior applies more generally: “none of what is said about children – about their distinctive (and transitory) mental traits and environmental vulnerabilities – is crime-specific.”7 Under the Miller decision, sentencing schemes mandating life without parole for children, even if they committed homicide, are no longer permissible. However, children convicted of homicide could still be sentenced to life without parole, as long as the sentence was not imposed as part of a mandatory sentencing scheme.

These recent Supreme Court decisions have consistently analyzed sentencing practices in light of scientific knowledge and common sense about the differences between children and adults. However, these holdings do not directly impact the majority of children tried in adult court each year, who do not receive these extreme sentences. Although data regarding children tried as adults are difficult to collect and verify, researchers estimate that approximately 200,000 to 250,000 children nationwide are prosecuted in adult court each year.8 In contrast, fewer than 3,000 individuals are currently serving life without parole sentences for crimes committed as children.9 Approximately 80 percent of children tried as adults will return to the community before age 21, and 95 percent of all children tried as adults will return to the community before age 25.10 For children who are incarcerated as adults, the average sentence is 2 years and 8 months.11 Although these children share the same developmental characteristics that decrease their moral culpability, the recent Supreme Court decisions have not addressed the underlying question of whether it is ever appropriate to treat or sentence children in adult courts.

Children are Prosecuted in Adult Court Through a Variety of Mechanisms

Every jurisdiction in the United States has some form of juvenile justice system, but states vary significantly in how they distinguish juvenile and adult court jurisdiction and how they transfer children between juvenile and adult court.12 While all states have different laws regarding adult court jurisdiction for children under the age of 18, three general types of laws result in children being transferred, or waived, to adult court:13

  1. Automatic transfer laws require the transfer of a child to adult court when statutory criteria, usually involving the charge and the child’s age, are met. With these laws, there is no discretion involved and no closer look at the individual case; if the statutory criteria are met, the child is automatically tried in adult court;

  2. Judicial discretionary transfer laws let the juvenile court judge decide whether a child should be transferred to adult court. Different states provide juvenile court judges with different degrees of discretion after the prosecutor files a motion requesting transfer: many states provide judges with a list of statutory criteria to evaluate, but, in some states, waiver to adult court is mandatory if the judge finds probable cause of the child’s guilt;14 and

  3. Prosecutorial discretionary transfer laws put the power in the hands of the prosecutor to decide whether to file charges in juvenile or adult court.15 Where these laws exist, states usually provide prosecutors wide discretion to determine whether a child will be tried in juvenile or adult court.16

During the late 1980s and 1990s, state transfer laws expanded significantly in response to public fears about an increase in juvenile crime.17 Historically, most children entered adult court through judicial discretionary transfers, but the expansion of state transfer laws significantly reduced judicial discretion to retain children in juvenile court.18 States also enacted additional provisions which allowed more children to be tried in adult court:19

  1. Lowering the maximum age of original juvenile court jurisdiction to 15 or 16, making all 16- or 17-year-old children legal adults for the purposes of criminal court jurisdiction no matter what the charge;

  2. Once an adult, always an adult” laws, which require that a child who has been tried as an adult in the past be tried as an adult for any future charges; and

  3. Blended sentencing laws, which allow juvenile courts to sentence children to both juvenile and criminal sentences. These laws often allow the criminal sentence to be suspended as long as the child abides by the terms of his or her juvenile sentence.

These laws have had a large impact on the number of children in the adult court, with the majority of these children prosecuted in adult court through laws that automatically push them into the adult system, without any examination of the facts of their individual cases, or their developmental differences from adults.20

Children Lack Access to Appropriate Services and Facilities When Tried in Adult Court

Most states allow children charged as adults to be held in adult jails while they await trial and many states allow these children to be housed in adult prisons after conviction.21 On any day, approximately 7,500 children nationwide are locked up in adult jails and approximately 2,700 children are locked up in adult prisons.22 Because adult facilities are not designed to handle the security or developmental needs of children, these children are often at significant risk and rarely have access to appropriate programming. 

First, placement in adult facilities harms children, whether children are housed with adults, or separated. Allowing these children to have contact with adult inmates puts them at significant risk, as does placing them in isolation.23 Although some states have enacted statutory provisions to limit children’s contact with adult inmates, the Federal Juvenile Justice and Delinquency Prevention Act, which requires that states house children in the juvenile justice system separately from adults, does not apply to children who are tried as adults.24 When children tried as adults are separated from adults while incarcerated, this separation often constitutes a form of solitary confinement.25 Extended periods of isolation can result in serious mental health issues and can exacerbate pre-existing mental illness.26 Solitary confinement also harms children’s physical development by limiting opportunities for exercise, providing inadequate nutrition, and producing stress-related physical symptoms.27 Furthermore, confinement in segregation often prevents children from participating in any rehabilitative programming available within the facility.28

Second, adult facilities are also ill-equipped to provide children with necessary rehabilitative and other programming even when these children are not held in isolation. On the most basic level, children who are held in adult facilities are often unable to attend school: According to U.S. Department of Justice’s statistics, 40 percent of adult jails provide no educational services at all.29 Despite the high prevalence of learning and other disabilities among children tried as adults, usually entitling these children to special education services even when incarcerated, only 11 percent of adult jails report providing special education services.30 In many cases, children’s lack of access to education violates state statutory and constitutional requirements.

Consequently, incarceration in an adult facility can devastate a child: Children incarcerated as adults are almost twenty times more likely than other youth to commit suicide.31 Because nearly one-quarter of suicide attempts occur on the first or second day in jail, even a short period of incarceration can lead to a tragic result.32 These children are also particularly susceptible to violence from adult inmates. In enacting the Prison Rape Elimination Act of 2003, the United States Congress stated that “[j]uveniles are five times more likely to be sexually assaulted in adult rather than juvenile facilities—often within the first 48 hours of incarceration.”33 Recognizing these dangers, the American Jail Association has stated that it is “opposed in concept to housing juveniles in any jail unless that facility is specially designed for juvenile detention and staffed with specially trained personnel.”34

Racial Disparities in the Numbers of Children Tried as Adults

While nationwide juvenile court data suggests that racial disparities in judicial discretionary transfers have decreased since the mid-1990s, this data does not account for racial disparities in the other mechanisms for trying children in adult court.1 National estimates of all children tried as adults suggest that racial disparities worsen as children move from the juvenile to the criminal justice system: African-American children are 17 percent of overall youth population, 30 percent of those arrested, and 62 percent of those prosecuted in the adult criminal system, while Latino youth are 43 percent more likely than white youth to be transferred to the adult system and 40 percent more likely to be admitted to adult prison.2 Data from individual states and jurisdictions reflecting all children tried as adults also emphasizes the persistence of significant racial disparities. For example, in Ohio, data for all children tried as adults shows that African-Americans constituted only 17 percent of the statewide population of children eligible to be tried as adults but were 74 percent of the children who were tried as adults.3 In 2004, a study of 28 jurisdictions showed that 22 had a greater than 20 percent difference between the percentage of African-American children who were arrested and the percentage of African-American children who were tried in adult court. 4 In many jurisdictions, the difference was greater than 40 percent.5


  1. Redding, supra note 11 at 10. Nationally, in 1994, the rate of African-American children who were transferred to adult court through judicial waiver was 1.5 times the rate of white children. By 2007, the rate of African-American children who were transferred to adult court through judicial waiver was 1.1 times the rate of white children. Id.
  2. Ryan, supra note 8 at 6.
  3. Falling Through the Cracks: A New Look at Ohio Youth in the Adult Criminal Justice System (Children’s Law Center, Inc., Covington, KY) 2012, at 8.
  4. Jolanta Juszkiewicz, To Punish a Few: Too Many Youth Caught in the Net of Adult Prosecution (Campaign for Youth Justice, Washington D.C.) October 2007, at 17.
  5. Id.

Children who are Tried in Adult Court are More Likely to End Up Back in the Justice System After Release

The U.S. Office of Juvenile Justice and Delinquency Prevention reports that all federally-funded, large-scale research studies have shown that children who are tried as adults have higher recidivism—re-arrest and reconviction—rates than similar children adjudicated through the juvenile justice system.35 These studies have also suggested that being charged in the adult criminal system, even without conviction or incarceration, increases recidivism.36 For example, in one study, children who were tried in the adult system were 100 percent more likely to be rearrested for a violent offense and 47 percent more likely to be rearrested for a property offense.37 Reviewing results of this research, the Center for Disease Control’s Task Force on Community Preventative Services found that transferring children to the adult system increases juvenile violence, causes harm to juveniles, and threatens public safety.38

Research suggests three different explanations for the increased recidivism of children who are tried as adults, the majority of whom are released to the community during peak offending years. First, given the harms experienced in adult facilities, it is unsurprising that children who are tried as adults have higher recidivism rates than similar children in the juvenile justice system. As noted by the Roper Court, these children are particularly susceptible to negative influences. Incarceration in adult facilities can put children into contact with career adult criminals, who may influence them to continue criminal behavior.39 Indeed, many children tried as adults report that they have simply learned how to become better criminals during their time in adult facilities.41 Second, research suggests that the stigmatization of children who are tried as adults also leads to increased recidivism.42 Under these theories, children tried as adults experience a “status transformation” which, given the malleability of children’s personalities, can shape their identity in the future.43 Consequently, these children may believe that society views them as irredeemable, reducing their motivation to engage with society.44 Finally, research points to the collateral consequences of an adult conviction as an explanation for recidivism: Even after children have completed their adult sentence, their criminal records may create ongoing restrictions on schooling, employment, housing, and civic participation. These consequences often last much longer than any prison sentence and limit these children’s options for productive participation in society.45

Opportunities to Advocate for Returning Children to the Juvenile Justice System

Given the harm resulting from trying children as adults, the recent Supreme Court cases recognizing the differences between children and adults point to various avenues for advocates to return children to the juvenile justice system, both through legislative changes and individual advocacy.

First, some states have returned large groups of children to the juvenile justice system by raising the maximum age of juvenile court jurisdiction. In doing so, these states have reviewed cost-benefit analyses of the failure of the adult system to meet children’s developmental and rehabilitative needs.46 For example, Connecticut recently raised the maximum age of juvenile court jurisdiction from 15 to 17, so 16- and 17-year-olds are no longer automatically tried as adults.47 Illinois also restored 17-year-olds with misdemeanor charges to juvenile court jurisdiction, although those with felony charges are still automatically tried as adults.48

Second, some states have amended their transfer laws to reduce the number of children who are eligible to be tried in the adult system. For example, Indiana no longer allows children charged with misdemeanor charges to be transferred to adult court and has limited the number of children subject to its “once an adult, always an adult” law.49 Utah amended its reverse waiver provision to allow children charged in adult court to be returned to juvenile court prior to conviction.50 In doing so, the Utah legislature encouraged adult court judges to make individualized determinations about whether trial in the adult system was appropriate for each child.51

Other states have relied upon developmental research in requiring that children tried as adults be held in juvenile facilities, even if their cases remain in the adult criminal court. Since 2009, both Virginia and Oregon have passed laws creating a presumption that children tried as adults will be held in juvenile detention centers while awaiting trial, rather than adult jails.52

Advocates for individual children may also be able to use the reasoning of Roper, Graham and Miller to argue against transfer to adult court. During a hearing before transfer to adult court, advocates can request that the court assess transfer criteria in light of the child’s developmental and psychological stage, including the child’s cognitive abilities, language abilities, attentional and executive functioning capabilities, emotional functioning and any possible disabilities.53 In many cases, a forensic psychological evaluation could best address these domains and their implications for transfer criteria.54 Additionally, the recent Supreme Court cases may open opportunities for advocates to question how transfer laws implicate a child’s due process rights, given its emphasis on a child’s interest in rehabilitative opportunities and influences.55 An advocate could argue that a child has a substantive due process right to rehabilitative treatment that could not be met through the criminal justice system if data supported the inadequacy of treatment for children in the adult system.56

Although recent U.S. Supreme Court decisions do not immediately provide relief to the vast majority of children tried as adults, these decisions reflect a growing understanding that a child’s developmental stage is relevant to the appropriateness of his or her punishment. In addition to addressing the constitutionality of punishing children as adults, reform efforts can build upon this understanding to more productively rehabilitate children, foster positive development of individual children, and promote public safety.


Hannah Benton is a NCYL staff attorney specializing in Juvenile Justice.



  1. Graham v. Florida, 130 S. Ct. 2011, 2027 (2010)

  2. Miller v. Alabama, 132 S. Ct. 2455 (2012) (consolidated with Jackson v. Hobbs, No. 10-9647).
  3. Roper v. Simmons, 543 U.S. 551 (2005).

  4. Id. at 569-571.

  5. Id. at 570.

  6. Graham, 130 S. Ct. 2011 (2010).

  7. Id. at 2027.

  8. Miller, 132 S. Ct. at 2465.
  9. Liz Ryan, Youth in Adult Courts (Campaign for Youth Justice, Washington, D.C.) October 2012, at 4. Only 13 states collect any data on youth prosecuted in adult courts. Patrick Griffin et al., Trying Juveniles as Adults: An Analysis of State Transfer Laws and Reporting, Juvenile Offenders and Victims: National Report Series Bulletin (U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Washington D.C.) October 2011, at 1. In response to this deficit of data, the Bureau of Justice Statistics has begun a data collection effort to learn more about children in adult court and their recidivism rates, but this effort has yet to publish results. Jason Ziedenberg, You’re an Adult Now: Youth in Adult Criminal Justice Systems (U.S. Department of Justice, National Institute of Corrections, Washington, D.C.) December 2011, at 8.
  10. Tera Agyepong, Children Left Behind Bars: Sullivan, Graham and Juvenile Life Without Parole Sentences, 9 Nw. J. of Int’l Hum. Rts. 83, 83 (2010).
  11. Ryan, supra note 8 at 4.
  12. Richard E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Juvenile Justice Bulletin (U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, Washington D.C.) June 2010, at 2. Recent reports have questioned whether the majority of children tried as adults even receive sentences that they could not serve within the juvenile justice system. A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings about Juvenile Recidivism and Adolescent Brain Development (Washington Coalition for the Just Treatment of Youth) January 2009, at 4 (noting that almost three-quarters of youth tried in adult systems received sentences of less than five years, suggesting that the Washington juvenile justice system, which can holds jurisdiction until age 21, may have been able to accommodate their sentences).
  13. ohn Roman and Jeffery Butts, The Economics of Juvenile Jurisdiction: A White Paper from the Research Roundtable on Estimating the Costs and Benefits of the Separate Juvenile Justice System (Justice Policy Center, The Urban Institute, Washington D.C.) August 2005, at 6.
  14. Redding, supra note 11 at 2.
  15. Griffin et al., supra note 8 at 2. States also differ in when a prosecutor can file a motion for transfer with some states allowing a prosecutor to request transfer for virtually any juvenile case. Id. Nationally, waiver to adult court is still relatively rare with only about one percent of juvenile delinquency cases being transferred to adult court. In 2007, approximately 8,500 youth were waived to adult court. Ziedenberg, supra note 8 at 3.
  16. Griffin et al., supra note 8 at 2. Some states allow children to petition for reverse waiver to request that the adult court return the child to juvenile court.
  17. Id. But see article about State of New Jersey in the Interest of V.A, in this issue of Youth Law News.
  18. Id. at 9. This trend is often associated with notion of a juvenile “superpredator,” popularized by Professor John Dilulio in the mid-1990s. See, e.g., John Dilulio, The Coming of the Super Predators, The Weekly Standard, November 27, 1995, at 23. Professor Dilulio repudiated his own theory in a friend of the court brief filed in Miller. Brief of Jeffrey Fagan et al. as Amici Curiae Supporting Petitioner, Miller v. Alabama, 132 S. Ct. 2455 (2012) (No. 10-9646).
  19. Ryan, supra note 8 at 6.
  20. Id.
  21. Ziedenberg, supra note 8 at 3. In 2007, approximately 247,000 children were tried in adult court due to age of jurisdiction laws. Id.
  22. Ryan, supra note 8 at 4. Some youth awaiting trial in adult jails are ultimately sent back to juvenile court. Id.
  23. Id.

  24. Id.
  25. 42 U.S.C. § 5633; Guidance Manual for Monitoring Facilities Under the Juvenile Justice and Delinquency Prevention Act of 2002 (U.S. Department of Justice, Office of Juvenile Programs, Office of Juvenile Justice and Delinquency Prevention, Washington, D.C.) October 2010, at 55-57.
  26. Growing Up Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the United States (Human Rights Watch, New York, NY) October 10, 2012, at 20.
  27. Id. at 20-37.
  28. Id. at 37-40.
  29. A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings about Juvenile Recidivism and Adolescent Brain Development, supra note 11 at 8.
  30. Ryan, supra note 8 at 10.

  31. Id.; Ziedenberg, supra note 8 at 11.
  32. A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings about Juvenile Recidivism and Adolescent Brain Development, supra note 11 at 7.
  33. Id.
  34. A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings about Juvenile Recidivism and Adolescent Brain Development, supra note 11 at 7 (quoting the Prison Rape Elimination Act, 42 U.S.C. § 15601 (2003)).
  35. Resolutions of the American Jail Association (American Jail Association, Hagerstown, MD) April 2012, at 23.
  36. Redding, supra note 11 at 4.

  37. Id.

  38. Id.
  39. Angela McGowan et al., Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System: A Systematic Review, 32 Am. J. of Preventative Medicine 7, 20 (2007).
  40. A Reexamination of Youth Involvement in the Adult Criminal Justice System in Washington: Implications of New Findings about Juvenile Recidivism and Adolescent Brain Development, supra note 11 at 7; Amanda Burgess-Proctor et al., Youth Transferred to Adult Court: Racial Disparities, Adultification Policy Brief (Campaign for Youth Justice, Washington, D.C.) 2007, at 7.
  41. Minor Transgressions, Major Consequences: A Picture of 17-Year-Olds in the Massachusetts Criminal Justice System (Citizens for Juvenile Justice, Boston, MA) December 2011, at 16-17.
  42. Burgess-Proctor et al., supra note 39 at 7.
  43. Id.
  44. Id. Research has even shown that this stigmatization can also extend to siblings of the incarcerated child, so the impact extends beyond the individual who is convicted. See also Minor Transgressions, Major Consequences: A Picture of 17- Year-Olds in the Massachusetts Criminal Justice System, supra note 40 at 17.
  45. John Roman and Jeffery Butts, The Economics of Juvenile Jurisdiction: A White Paper from the Research Roundtable on Estimating the Costs and Benefits of the Separate Juvenile Justice System (Justice Policy Center, The Urban Institute, Washington D.C.) August 2005, at 17.
  46. Ryan, supra note 8 at 9.
  47. Conn. Gen. Stat. § 46b-121 (2012). See also Minor Transgressions, Major Consequences: A Picture of 17-Year-Olds in the Massachusetts Criminal Justice System, supra note 40 at 27-29; Ryan, supra note 8 at 9. Given the costs of recidivism of 16- and 17-year-olds tried in the criminal justice system, research found that the Connecticut correctional and judicial systems could save $3 for every $1 spent on services in moving these youth to the juvenile justice system. Id.
  48. 705 Ill. Comp. Stat. 405/5-105 (2009). See also Minor Transgressions, Major Consequences: A Picture of 17-Year-Olds in the Massachusetts Criminal Justice System, supra note 40 at 29-30.
  49. Ind. Code §§ 31-30-3-2, 31-30-1-2 (2008). See also Neelum Arya, State Trends: Legislative Victories from 2005 to 2010 Removing Youth from the Adult Criminal Justice System (Campaign for Youth Justice, Washington, D.C.) 2011, at 36.
  50. Utah Code Ann. § 78A-7-106 (2010); Arya, supra note 48 at 37.
  51. H.B. 14, 2010 Gen. Sess. (Utah 2010); Arya, supra note 48 at 37.
  52. Va. Code Ann. §§ 16.1-249, 16.1-269.5, 16.1-269.6 (2010); Arya, supra note 48 at 26; Or. Rev. Stat. §§137.705, 419C.130 (2011); Ziedenberg, supra note 8 at 10.
  53. John Matthew Fabian, Applying Roper v. Simmons in Juvenile Transfer and Waiver Proceedings: A Legal and Neuroscientific Inquiry, Int’l J. of Offender Therapy and Comparative Criminology, 1, 18 (June 4, 2010).
  54. Id.

  55. Neelum Arya, Using Graham v. Florida to Challenge Juvenile Transfer Laws, 71 La. L. Rev. 99, 133-152 (2010).
  56. Id. at 152.

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