On October 8, 2019, Independent Expert Manfred Nowak presented his Global Study on Children Deprived of Liberty to the United Nations Generally Assembly, which had requested the study five years earlier. The ambitious attempt to comprehensively chronicle the various ways in which children throughout the world are deprived of their freedom and separated from their families naturally ran into problems with missing or incomplete data, but its recommendations provide a good roadmap for reforms countries like the United States should be pursuing, such as ending the prosecution of all children under age 14.
This study comes as the UN Committee on the Rights of the Child (CRC), the international body overseeing implementation of the UN Convention on the Rights of the Child, is releasing a General Comment (General Comment #24), providing its expert guidance on the rights of children in justice systems. It makes a strong recommendation for keeping all children entirely out of the adult system.
The CRC uses terminology that is somewhat different from what we use in the USA. For example, preferring “non-stigmatizing language”, the CRC uses the term “child justice system” instead of “juvenile justice system”. And “criminal responsibility” at the CRC refers to any judicial proceedings, whether in adult or child justice systems.
Thus, when the Comment recommends a “minimum age of criminal responsibility”, it is referring to the minimum age below which children should not be subjected to any criminal legal process in either adult or child justice systems. Such children should instead always benefit from diversion and other positive interventions. The Comment clarifies that: “Children at or above the minimum age at the time of the commission of an offence but younger than 18 years can be formally charged and subject to child justice procedures.”
The Comment recommends that states set this minimum age of criminal responsibility at 14. This updates a previous General Comment (General Comment #10), published in 2007, that set this minimum age at just 12.
No U.S. state currently meets this standard (or even the previous standard). In 33 U.S. states, there is no set lower age below which a child cannot be adjudicated for "delinquent" conduct. Eleven states (AR, CO, KS, LA, MN, MS, PA, SD, TX, VT, WI) set a lower age of 10, while the others that have set ages, have set them at 6, 7, or 8 years old. None sets the age at 14.
General Comment #24 is also unequivocal that no child under 18 should ever be tried as an adult, and insists that states that do so should change their laws:
“The child justice system should apply to all children above the minimum age of criminal responsibility but below the age of 18 years at the time of the commission of the offence.”
“States parties which … allow by way of exception that certain children are treated as adult offenders (for example, because of the offence category), should change their laws to ensure a non-discriminatory full application of their child justice system to all persons under the age of 18 years at the time of the offence…”
No U.S. state meets this standard either. Every state has a mechanism to transfer children to the adult justice system. In fact, over half the states (30) maintain laws that allow children under 14 to be transferred to adult criminal court.
Keeping children out of adult court, and keeping children under 14 out of any criminal proceedings, are great and ambitious recommendations from the UN committee overseeing the most widely ratified human rights treaty in existence. The Convention on the Rights of the Child has been ratified by every country on earth – except the United States.
This fact should not, however, deter us in the USA from using these recommendations as goals to move towards. At the Campaign for Youth Justice, getting and keeping all children under 18 out of the adult justice system is our goal too, and we are excited to see that reflected in this important human rights document.