Kentucky legislators have requested legislative changes that would prohibit
children under the age 10 or younger from being criminally charged in the
Commonwealth. This change to the juvenile court system will likely be one
of the primary topics of discussion for the 2012 General Assembly.
Currently, Kentucky law does not put a limit on the age at which a child
may be charged. According to a state court official, 2,704 children 10 or
younger faced criminal charges between 2005 and 2010. Kentucky is one of
34 states which does not place a limit on the age at which a child may be
charged. According to a report issued by the National Center for Juvenile
Justice in Pennsylvania, the 16 states which do have such limits are as
follows:
Age 6: North Carolina
Age 7: Maryland, Massachusetts and New York
Age 8: Arizona
Age 10: Arkansas, Colorado, Kansas, Louisiana, Minnesota, Mississippi,
Pennsylvania, South Dakota, Texas, Vermont and Wisconsin
At least four times in 2010, a five-year-old was criminally charged in
Kentucky. According to a Kentucky State Police annual report, nine
criminal charges of fraud were brought against children 10 and younger in
2010.
Legislators and juvenile justice advocates believe that children aged 10
and younger would be better served outside the criminal justice system. Patrick
Yewell, the head of Kentucky’s Department of Family and Juvenile Services
for the Administrative Office of the Courts, believes that the risk of
recidivism is another reason to keep juveniles under age 10 out of the
criminal justice system. "The earlier a child enters the juvenile justice
system, the more likely he or she is to acquire an extensive juvenile
record," Yewell said.
British common law, upon which American legal principles were founded,
established that no child under the age of seven could be convicted for a
crime and that children between the ages of seven and fourteen were
conclusively presumed to not be found guilty of a felony or punished with
any capital offense. Angelo v. People 96 Ill. 209, 211 (1880). In recent
American law, according to a recently published law review article, “the
notion of categorical incapacity has been jettisoned in favor of a more
individualized approach.” 86 Tul. L. Review 309, 321. The article by
George Mason Law professor Craig Lerner posits that juvenile cases should
be treated individually and that categorical restrictions on punishment
based on the offender’s age do more harm than good to our justice system.
Kentucky legislators will have to balance the notion of holding all
citizens culpable for their actions with the mounting evidence that
juveniles, especially those below the age of 10, have underdeveloped brains
and should be treated differently than more cognizant offenders.
-Written by Adam Turer, Northern Kentucky University Law Student
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