Addressing Child Mental Health by Creating a National Minimum Age for Juvenile Justice Jurisdiction

In August 2020, in the midst of a national conversation about racism in the United States (US), news of a Black eight-year-old boy being arrested for sitting improperly in the school cafeteria spread through the country.¹ Body-camera footage showed police attempting to place the boy in handcuffs that slipped from his wrists before they took him to a juvenile detention facility where he was charged with felony battery. The boy’s mother and lawyer reported that following arrest, he experienced somatic and trauma symptoms, including headaches, nightmares, and insomnia. His story, and the attention it garnered, illustrate the importance of the growing movement to establish a national minimum age of juvenile justice jurisdiction—an age below which a child cannot be prosecuted in juvenile court. We call upon child and adolescent psychiatrists (CAPs) to join this movement as a critical tool for promoting mental health and racial equity for children.

Global and US Context

In 1989, the United Nations (UN) Convention on the Rights of the Child (CRC) decreed that all nations set a minimum age of criminal responsibility—in the US known as a minimum age of juvenile justice jurisdiction—of 12 years or older.² Revised UN recommendations call for a minimum age of at least age 14.² The US remains the only UN member nation that has not endorsed the CRC and still lacks a national minimum age; however, several professional organizations, including the American Academy of Pediatrics (AAP) and Society for Adolescent Health and Medicine (SAHM) recommend a minimum age of 12 or higher.^3,4

In 2018, nearly 1 in 25 US juvenile court cases involved children under 12 years old.⁵ US minimum age laws vary by state (Figure 1). As of November 2020, 22 states have minimum age laws, with the lowest set at 6 years old, while 28 states do not. Of the states with minimum age laws, only California, Massachusetts, and Utah align with professional health standards by having a minimum age of 12. Delaware, Kentucky, Maine, Minnesota, New York, and Texas have bills under consideration that would establish a minimum age of 12.

Figure 1.

Current Minimum Age of Juvenile Justice Jurisdiction by State^a

^a: State minimum age laws were compiled by initially reviewing National Juvenile Defender Center’s systematically compiled data (found at https://njdc.info/practice-policy-resources/state-profiles/multi-jurisdiction-data/minimum-age-for-delinquency-adjudication-multi-jurisdiction-survey/) which was last updated in January 2020 followed by individually reviewing each state’s minimum age laws and pending legislation in order to update them as of November 2020.

Criminalization of Children

Judges, prosecutors, and law enforcement officials tend to believe that Black children have more capacity to willfully commit a crime and are competent to stand trial—two common preconditions for prosecution.⁶ Black children are often perceived as older than their chronological age, an “adultification” that disproportionately criminalizes the behavior of Black children and results in inequities at every stage of the carceral continuum.

Prior to formal entry into the juvenile justice system, childhood is criminalized through the school-to-prison pipeline, a set of policies and practices that applies harsh discipline to often developmentally normal child behavior, disproportionately causing Black and Latinx children, and children with disabilities, to be forcibly removed from schools.⁶ In-school police officers amplify the funneling of children through this pipeline. Compared to White children, Black children have higher rates of unmet behavioral health needs⁷ and are more likely to attend schools where police are present, a sequela of structural racism linked to residential segregation, under-resourced neighborhoods, concentrated poverty, and community violence.⁶ By placing children with higher needs in settings unequipped with the resources to meet those needs, children with disabilities—especially Black children—face heightened risks of school discipline, and potentially justice involvement.⁶

Sharp justice system disparities exist at the youngest ages—1 in 3 US prosecutions of children in 2018 were of Black children, despite Black children only accounting for 1 in 15 US children, implicating the school-to-prison pipeline as a driver of inequity.⁵ As a priority solution, CAPs can promote behavioral health in schools by advocating for minimum age laws to reduce child arrest and prosecution, in addition to advocating for behavioral health resources in schools.

Justice System and Behavioral Health

Behaviors perceived as “criminal” may signal unmet behavioral health or social needs, such as food or housing insecurity. Two-thirds of detained boys and three-quarters of detained girls are estimated to have mental health conditions such as substance use disorder, attention deficit and hyperactivity disorder, or intellectual disability.⁷ Externalizing behaviors that lead to justice involvement, such as truancy or running away, may relate to unmet behavioral health needs. Given these heightened risks of justice system involvement, CAPs should advocate for policies that protect children with behavioral health needs from prosecution, particularly at young ages.

The eight-year-old boy reminds us that an arrest can result in ongoing mental and physical health trauma that persists into adulthood. Although child incarceration is rare, those who experience it face higher risks of endorsing poor health, functional limitations, depressive symptoms, and suicidality as adults compared to those who first experience incarceration in adolescence.⁸ The mental health harms caused by justice involvement indicate that the funds spent processing children in the justice system could be better spent providing mental health supports to children, families, and communities.

Establishing a US Minimum Age

The American Academy of Child and Adolescent Psychiatry (AACAP) denounced systemic racism and committed to promoting policies that decrease the disproportionate contact that Black, Latinx, and Native American children have with the justice system.⁹ CAPs are a critical voice for meeting, rather than criminalizing, children’s behavioral health needs. Minimum age laws are one of many key strategies to protect children from the stressors of justice involvement—and the criminalization of childhood and race. AACAP should join peers in the AAP and SAHM—and approach UN standards—by calling for the establishment of a national minimum age that would apply to the entire US. We suggest a minimum age of at least 12 because it is feasible to pass and can be implemented effectively, as demonstrated by California, Massachusetts, and Utah. Higher minimum ages of at least 14 can be pursued as alternate support pathways are bolstered.

CAPs can become familiar with existing and proposed minimum age laws in their state (Figure 1). Local advocates, child health professional chapters, and policymakers are engaged in this work and value the input of health providers who can speak about the impact of policy on health. CAPs can partner with advocates and lawmakers to promote state minimum age laws, in addition to a national law. CAPs frequently collaborate with families, schools, and primary care and social service providers to ensure that all children have the tools they need to succeed in school, including addressing the social determinants of health, optimizing individualized education plans, and providing adequate pharmacological and nonpharmacological treatment for behavioral health needs. CAPs can also advocate for increasing school resources for students with special needs and decreasing reliance on policing by incorporating alternative evidence-based practices, such as restorative justice approaches.

Equipped with these tools, CAPs should educate others on the psychosocial risks of early juvenile justice involvement, condemn its racist impact and drivers, and bolster family and community supports for youth with behavioral health and social needs. By advocating for the establishment of juvenile justice minimum age laws, CAPs can act to reverse the trend of criminalizing children. As the mother of the eight-year-old mentioned above said, “I would never want any other parent to have to watch a video like that about their eight-year-old son.” With a national minimum age of juvenile jurisdiction, no other parent will have to.