States Retreat From Laws That Prosecute Children as Adults


Some states are changing the way children accused of crime are treated by making it more difficult for prosecutors to try children in adult court and ensuring that children awaiting trial are not housed in adult jails, where they faced escalated risks of physical and sexual assault. Colorado and New Jersey have undertaken significant reforms in recent months.

In April, Colorado Governor John Hickenlooper signed into law a bill that dramatically curbs prosecutors’ power to charge children as adults. House Bill 1271 passed the legislature with solid bipartisan support.

The bill bars district attorneys from charging juveniles as adults for many low and mid-level felonies, while raising the age at which children may be charged as adults for more serious crimes from 14 to 16. Prosecutors may charge children as adults in cases of murder, violent sex offenses, kidnapping and violent assaults, but the bill also permits defendants to appeal to a district judge, who makes the final decision about whether they are tried as adults.

Another new Colorado law protects those children awaiting trial as adults by prohibiting authorities from housing them in an adult jail. The bill passed both houses of Colorado’s General Assembly unopposed earlier this year, with broad support from state sheriffs, prosecutors, defense attorneys, mental health practitioners, educators, parents, and crime victims.

Youth in adult jails and prisons are extremely vulnerable to physical and sexual abuse. The bill requires authorities to hold youth under age 18 who are subject to pretrial detention in facilities designed to hold juveniles, unless a judge decides otherwise in a hearing.

Colorado currently houses such youth in jails designed to house adults, often in prolonged solitary confinement. According to Human Rights Watch, Colorado officials recently reported that between July 2010 and June 2011, at least 42 youth under age 18 were held in adult jails, for an average of 117 days. One was reportedly held for more than 220 days. Only 16 youth received the state minimum of four hours of schooling each week.

The U.S. Department of Justice reports that on any given day more than 7500 youth are held in adult jails nationwide.

Last week, the New Jersey Supreme Court also raised the bar for prosecutors seeking to try a child in adult court. Instead of requiring judges to find that prosecutors have committed a “patent and gross abuse of discretion”; to turn down a waiver request – an exceedingly high standard – the court ruled that judges only have to find that an abuse of discretion occurred. The ruling specifically applies to children 16 and over.

It also requires prosecutors to provide evidence that trying the child as an adult will deter future crimes. “It will provide an additional level of protection against arbitrariness in a critical decision affecting the quantity and quality of punishment for a juvenile,” Justice Jaynee LaVecchia wrote.