Outside the Box: Arrest a 6-year-old? More than half of U.S. states say it’s OK to prosecute kids.

In September 2019, Kaia Rolle was arrested at her school in Orlando, Fla. for having a temper tantrum because she wanted to wear her sunglasses. She was handcuffed with zip ties, put in the back of a squad car, then was fingerprinted and detained. She was 6 years old.

Sadly, Kaia’s story isn’t an aberration. While this disheartening incident led to a legislative response in Florida, their “fix” still kept in place the ability to prosecute kids aged 7 and above. To this day, more than half of U.S. states have no minimum age for the criminal prosecution of kids. 

This is merely one of the many ways that our country refuses to recognize the need to treat kids as kids. Time and again, we see the injustices of the American criminal legal system’s approach to children, especially children of color.

“ The U.S. is the only country in the world to condemn its children to die behind bars through juvenile life without parole sentences. ”

The U.S. is the only country in the world to condemn its children to die behind bars through juvenile life without parole sentences. Children in America have few — if any — protections during police interrogations, leading to far too many false confessions. Kids are routinely charged in adult court. We criminalize typical adolescent behavior instead of addressing the underlying challenges and treating this behavior as a normal part of growing up. 

These policies have devastating impacts. Incarcerating young people makes them more likely to reoffend and drop out of school — outcomes that benefit neither the child nor the community. This all takes a staggering financial toll: In 40 states, it costs taxpayers at least $100,000 a year to incarcerate a young person; in four states, that annual cost is over $500,000

Germany’s model

It doesn’t have to be this way. There are models elsewhere in the world we can look to for smarter and proven thinking on how to create a humane and compassionate U.S. juvenile justice system that recognizes both the impulsivity of kids and the immense capacity young people have to change. One such example is the German justice system.

In 2019, Fair and Just Prosecution took a group of 20 reform-minded prosecutors to Germany to gain insight into the differences between our two criminal legal systems, with a particular focus on juvenile justice. 

During the 1960s, incarceration rates between the U.S. and Europe were roughly comparable, but in the following decades, the two systems rapidly diverged, as America’s tough-on-crime policies led to skyrocketing numbers of people behind bars while rates in Germany and other European countries largely remained stable.

The U.S. saw more people locked up for longer and longer periods of time, including young people. By 2000, nearly 109,000 children were locked in juvenile facilities, while juvenile arrests peaked in 1996 at almost 2.7 million. While these numbers have since dropped significantly, as of 2018, a child or teen was still arrested every 45 seconds, and the majority of youth who are detained are put behind bars for relatively minor offenses. While incarcerated, children are subject to potentially horrifying and traumatic conditions, including physical and psychological abuse and sexual assault. And far too many attempt suicide. 

The U.S. system is driven by a punitive starting point. The German approach, in contrast, prioritizes rehabilitation and human dignity. Germans seek to accomplish their primary objective — to prevent an individual from returning to the justice system — by addressing the underlying causes of criminal behavior and providing services and support to address those concerns.

Diversion, restitution to victims, community service, and fines are the norm in Germany, and incarceration is used rarely and only as a last resort — just 1.5% of juvenile sanctions imposed against 14- to 21-year-olds are for unconditional youth imprisonment. When a young person in Germany is incarcerated, sentences are substantially shorter than in the U.S., typically under a year, with just 0.5% exceeding five years. 

Perhaps most importantly, German youth correctional facilities are not permitted to be punitive environments, and are driven by principles of humanity. Young people have tremendous freedom while behind bars in Germany; prison guards typically do not carry weapons and are trained to defuse conflicts with psychology and communication. Facilities offer extensive and impressive vocational and work skill training. This approach is in stark contrast with the U.S., where youth prisons often restrict the ability of the young people to speak to each other, take away basic privileges including showers and phone calls home when a child breaks a rule, and punish kids through solitary confinement.

“ Children in the German system can never be prosecuted for acts committed before age 14, nor tried as adults for acts committed before age 18. ”

Germany’s approach to young people is predicated on the abiding belief that children should always be treated as children, in line with the growing body of research showing that young people’s brains are still developing through their mid-twenties. This adolescent brain development necessarily impacts judgment and impulse control, while also making young people particularly capable of growth and change.

With this starting point in mind, children in the German system can never be prosecuted for acts committed before age 14, nor tried as adults for acts committed before age 18. In contrast, in the U.S. 13 states have no minimum age for trying children as adults and children as young as eight have been prosecuted as adults.

Moreover, German juvenile courts include 18- to 20-year-olds, who can be tried as either juveniles or adults, with that decision predicated not on the seriousness of the offense but rather on whether the individual is considered to still be developing and if the motives regarding the offense are typical of impulsive juvenile conduct.

Signs of progress

There are signs of progress in the U.S. — many propelled by bold and innovative elected prosecutors — and some jurisdictions have taken steps to reform the way young people are treated in the criminal legal system. Philadelphia District Attorney Larry Krasner, for example, launched an Emerging Adult Unit (EAU) to help 18- to 25-year-olds who have committed low-level offenses avoid the economic and social damage of a criminal conviction and incarceration. The program connects them with resources such as job training and mentoring. Upon completion of the program, charges are withdrawn or reduced.

“ Let go of the tough-on-crime status quo and invest in our young people instead of punishing them. ”

In Seattle, King County Prosecuting Attorney Dan Satterberg launched a juvenile restorative justice program in partnership with local community groups that helped divert more than150 cases within its first few months, leading to an expansion of the program to include some offenses committed by people aged 18 to 20. But much more can and should be done, and DAs must be at the forefront of creating a safer, more effective, and more just U.S. juvenile legal system. 

Germany’s juvenile justice system can and should inspire us to want more for America’s children, who deserve to be treated as kids and given the support they need to thrive rather than be saddled with trauma and burdens that can last a lifetime. A safer and compassionate reality is in our reach if we can let go of the tough-on-crime status quo and invest in our young people instead of punishing them. The time to start is now, before we give up the potential of another generation. 

Miriam Krinsky is the executive director of Fair and Just Prosecution and a former federal prosecutor. 

Also read: Did the assault weapons ban of 1994 reduce mass shootings? Here’s what the data tells us

Plus: Amazon, Microsoft, McDonald’s and Citi to examine their impact on civil rights and racial equity. Will more companies follow suit?

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