In Oregon , a trial court concluded that Francis Watchman, when he was seventeen years old, provided drugs to another within the state.¹ Although he was a juvenile at the time of the offense, the prosecution did not proceed against him in juvenile court; instead, Francis was prosecuted in adult criminal court because he had turned eighteen—Oregon’s age of majority—prior to his indictment on the drug charge.² In other words, Francis was treated like an adult. He lost all of the benefits of the juvenile court system—rehabilitation,³ confidentiality,⁴ and adjudication as a “delinquent” rather than as a criminal⁵—and instead was tried and sentenced in adult criminal court.6 Francis was denied access to the juvenile court because Oregon, like many states, determines the jurisdiction of the juvenile court based on the juvenile offender’s age at the time of the legal proceedings, not the time of the alleged offense.⁷ If the jurisdictional question had hinged on Francis’s age at the time of offense, he would have been subject to the jurisdiction of the juvenile court. This is just one example of a case in which an offender, despite being a juvenile at the time of offense, was treated like an adult and proceeded against in adult criminal court merely because they had reached the age of majority by the time of legal proceedings, but there are others.⁸ This Article argues that all states should determine the jurisdiction of juvenile courts based upon the juvenile offender’s age at the time of offense. Such an approach ensures that all juvenile offenders receive the benefits and protections available in juvenile court. Part I provides an overview of the creation and evolution of the juvenile court system. Part II discusses the method by which juvenile court jurisdiction is determined and further illustrates the jurisdictional issue that arises when a juvenile offender commits an offense prior to reaching the age of majority but is not proceeded against until they reach the age of majority. Part III sets out the policy-based reasons why states should determine the jurisdiction of juvenile courts based upon a juvenile offender’s age at the time of offense, and not the time of proceedings. Part IV addresses the anticipated argument against using the age at the time of offense to determine the jurisdiction of juvenile courts. The Article concludes by urging states to amend their statutes granting jurisdiction to juvenile courts to confer jurisdiction based upon the offender’s age at the time of offense.

I. The Creation and Evolution of the Juvenile Court System

There are five distinct eras of the American juvenile court system: the common law era (pre-1899), the progressive era (1899–1965), the constitutional era (1966–1979), the punitive era (1980–1999), and the rehabilitation era (2000–present). Each era features its own unique approach to addressing juvenile offenders within the juvenile court system, with the focus shifting from rehabilitation—the juvenile court system’s original purpose—to retribution, and then back again.

A. The Common Law Era (Pre-1899)

At common law, with limited exceptions, the United States made no distinction between child offenders and adult criminals, treating them the same for purposes of the criminal justice system.⁹ Like adults, children were arrested, indicted by a grand jury, tried by a petit jury, and, if found guilty, sentenced like adults.¹⁰ Prior to the turn of the twentieth century, courts had the discretion to impose severe forms of punishment, which meant that it was not uncommon for child offenders to receive sentences involving lengthy terms of imprisonment or even death.¹¹

B. The Progressive Era (1899–1965)

By the end of the nineteenth century, concerned with the harsh treatment of children within the criminal court system, juvenile justice reformers began to advocate for a distinction between child offenders and adult criminals.¹² Reformers believed that children, because of their youth, were fundamentally different from adults.¹³ They argued that children, unlike adults, were “vulnerable, malleable, and in need of . . . guidance.”¹⁴ Reformers believed these differences made child offenders less culpable than adult criminals and more deserving of rehabilitation than punishment.¹⁵

Recognizing the unique characteristics of child offenders, Illinois in 1899 created the first juvenile court in the United States.¹⁶ Other states looked to Illinois as a model: “[s]upport for juvenile courts spread rapidly, and by 1945, all states had a juvenile court.”¹⁷ These newly created juvenile courts had jurisdiction over cases of dependency, neglect, and delinquency.1⁸ In matters of delinquency, the goal of the juvenile court was to rehabilitate juvenile offenders and make them law-abiding citizens.¹⁹

With rehabilitation as a goal, juvenile courts differed from adult criminal courts in many ways. Juvenile courts often functioned as civil, not criminal, tribunals;²⁰ their proceedings were informal and non-adversarial;²¹ their proceedings were closed to the public;²² their records were sealed and kept confidential;²³ and juvenile offenders, if determined to have committed the offense, were adjudicated “delinquent” rather than found “guilty.”²⁴ In addition, juvenile courts functioned under a parens patriae model of justice,²⁵ pursuant to which the judge, most often a male, served as a kind of father-figure, guiding the juvenile offender away from crime and toward a life of lawful conduct.²⁶

Because of its informal nature, many of the procedural safeguards and constitutional rights traditionally afforded to adult criminal defendants were unavailable to juvenile offenders in the juvenile court system.²⁷ For example, at delinquency hearings, juvenile offenders were not entitled to juries, witnesses were not required to testify, and the burden of proof to find a juvenile “delinquent” was a mere preponderance of the evidence.²⁸

Juvenile offenders also had no right to counsel, no right against self-incrimination, and no right of confrontation in juvenile court.²⁹ If a judge found a juvenile offender delinquent, they could impose a wide range of sanctions at their complete discretion with no regard for the severity of the underlying crime.³⁰

Over time, it became apparent that the lack of procedural and constitutional protections in the juvenile court system often had significant, negative consequences for juvenile offenders.³¹ In some instances, under the unfettered discretion of juvenile court judges, juvenile offenders received significantly harsher sentences than they could have received in adult criminal court.³² These consequences led juvenile justice advocates to seek more constitutional protections within the juvenile court system.

C. The Constitutional Era (1966–1979)

The United States Supreme Court decided several cases in the 1960s and 1970s that changed the constitutional landscape of the juvenile court system. The first was in 1966. In Kent v. United States, ³³ the Court held that a hearing is required before a juvenile court can waive its otherwise exclusive jurisdiction and transfer a juvenile offender to adult criminal court.³⁴ The Court reasoned that the waiver of the juvenile court’s jurisdiction is a “‘critically important’ question” and thus demands procedural safeguards that “satisfy the basic requirements of due process and fairness.”³⁵ Despite the narrow issue addressed in Kent—whether a juvenile is entitled to a hearing prior to the transfer to adult criminal court—the decision introduced procedural and constitutional protections into the juvenile court system and laid the foundation for more expansive constitutional guarantees.

One year later in In re Gault, ³⁶ the Supreme Court extended four constitutional protections to juvenile offenders in the juvenile court system. Authorities arrested Gerald Gault and his friend for making lewd and indecent phone calls to their female neighbor.³⁷ Upon arrest, Gerald was immediately taken to a detention home without notice to his parents.³⁸ The delinquency petition filed against Gerald did not state the charges or any basis for charges against Gerald, nor was the petition provided to Gerald or his parents.³⁹ During two delinquency hearings, the complaining neighbor was not present, there was no sworn testimony, and Gerald was questioned without counsel.⁴⁰ Ultimately, the judge adjudicated fifteenyear-old Gerald a “delinquent” and committed him to a detention center until the age of twenty-one.⁴¹

Upon review, the Supreme Court held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”⁴² Rather, they are intended to apply equally to adults and juveniles. As a result, the Supreme Court granted juvenile offenders four constitutional rights afforded to adult defendants in the adult criminal court system: adequate written notice of the specific charge or factual allegations,⁴³ the right to counsel,⁴⁴ the right against self-incrimination,⁴⁵ and the right of confrontation.⁴⁶ The Court’s recognition of these constitutional protections had a profound impact on the juvenile court system. The once “unstructured nature of juvenile proceedings gave way to process and formality.”47 In re Gault further established that constitutional guarantees could co-exist with the rehabilitative model of the juvenile court system.⁴⁸

Three years later in In re Winship, ⁴⁹ the Court held that juvenile offenders in juvenile court, like defendants in adult criminal court, are constitutionally entitled to proof beyond a reasonable doubt when charged with a criminal offense.⁵⁰ The Court reasoned that the “civil labels and good intentions” of juvenile courts “do not themselves obviate the need for criminal due process safeguards.”⁵¹ As in In re Gault, the Court concluded that the application of the heightened burden of proof would not disrupt the rehabilitative benefits of juvenile courts.⁵² The Kent, In re Gault, and In re Winship trilogy provided juvenile offenders with important constitutional protections previously unavailable to them in the juvenile court system. These protections would become particularly important in the coming decades when the juvenile courts would shift away from a rehabilitative approach toward a more punitive orientation

D. The Punitive Era (1980–1999)

Toward the end of the twentieth century, the commitment of juvenile courts systems to rehabilitation waned, giving way to a more punitive approach. Rising juvenile crime rates and frequent news reports about juveniles committing violent crimes “fueled the public perception that juveniles were not being punished enough and that the system was in fact coddling them.”⁵³ Professor John DiIulio, Jr.’s “superpredator” theory supported this societal belief.⁵⁴ Under his “superpredator” theory, Professor DiIulio cast juvenile offenders as brutal, remorseless youth who committed heinous crimes without fear of reprisal or the pang of guilt.⁵⁵

In response, states enacted legislation that limited the jurisdictional reach of juvenile courts.⁵⁶ These laws often allowed the transfer of juvenile offenders to adult criminal court at younger ages and for less severe offenses than had previously been permitted.⁵⁷ “By 1999, all but one state had enacted laws allowing or making it easier for juvenile offenders to be transferred to criminal courts.”⁵⁸ These new laws sent thousands of juvenile offenders to adult criminal court.⁵⁹

Juvenile offenders who remained within the juvenile court system did not escape the shift to a more punitive approach to juvenile crime. Instead of viewing juvenile offenders as individuals in need of rehabilitation, the juvenile court system became “increasingly concerned with the punishment of juveniles.”⁶⁰ As a result, juvenile offenders still under the jurisdiction of the juvenile courts received increasingly punitive sentences.⁶¹

Although Professor DiIulio’s child “superpredator” never materialized,⁶² a more punitive juvenile court system certainly did.⁶³ With the increased threat of transfer to adult criminal court and the increased use of punitive sanctions within the juvenile court system, by the end of the twentieth century, juvenile offenders were experiencing a punitive regime traditionally reserved for adult criminals.

E. The Rehabilitation Era (2000–Present)

The beginning of the twenty-first century has seen a return to the juvenile court system’s founding principle of rehabilitation.⁶⁴ This is largely due to recent developments in neuroscience.⁶⁵ These developments confirm what the original juvenile justice reformers instinctively suspected: children are different from adults and therefore less culpable and more deserving of rehabilitation.⁶⁶

Over the last two decades, many state legislatures have taken steps to reverse the harsh laws enacted during the preceding punitive era.⁶⁷ Legislatures have passed laws that limit the transfer of juvenile offenders to adult criminal court.⁶⁸ Additionally, several states have raised their age of majority, increasing the jurisdictional reach of the juvenile court system to include older teens and young adults.⁶⁹ States have also increased funding for community-based treatment and decreased the incarceration of juvenile offenders.⁷⁰ Some states have even created robust diversion programs, which allow prosecutors to divert rather than prosecute juvenile offenders.⁷¹ “If the diversion is completed successfully, the juvenile [offender] never sees the inside of a courtroom.”⁷²

The juvenile court system today, with its formalities and constitutional protections, more closely resembles the adult criminal court system than it did at its inception. However, recent legislative efforts to increase the jurisdictional reach of juvenile courts leave little doubt that the juvenile justice system has returned to its rehabilitative roots.

II. The Jurisdiction of Juvenile Courts

Statutes generally establish the jurisdiction of juvenile courts.⁷³ Typically, juvenile courts have jurisdiction over offenders who commit certain criminal offenses prior to a certain age known as the “age of majority.”⁷⁴ Individual states set their own age of majority, with most states starting majority at or around the age of eighteen.⁷⁵ Where an offender’s age equals or exceeds the age of majority, the juvenile court lacks jurisdiction, and the offender is proceeded against in adult criminal court.⁷⁶

The point at which the offender’s age matters for jurisdictional purposes is significant and of particular importance in situations where an offender commits an offense while under the age of majority but is not proceeded against until after reaching the age of majority. Some states determine jurisdiction based upon the age of the juvenile offender at the time of the alleged criminal offense.⁷⁷ In these states, even if the juvenile offender has reached the age of majority at the time of proceedings, they still fall within the jurisdictional reach of the juvenile court because they committed the offense when under the age of majority.⁷⁸ However, other states determine jurisdiction based upon the age of the juvenile offender at the time proceedings are instituted against the juvenile offender.⁷⁹ In these states, the prosecution will proceed against a juvenile offender who has reached the age of majority by the time proceedings are initiated in adult criminal court, despite the fact that the offender was a juvenile at the time of the alleged offense.⁸⁰ In these states, juvenile offenders lose all the protections and benefits of the juvenile court system, despite having been a juvenile and therefore less culpable and more deserving of rehabilitation at the time of the alleged offense. When deciding whether the juvenile offender’s age at the time of offense or proceedings determines the jurisdiction of juvenile courts, courts most heavily rely upon the language of the statute that confers jurisdiction to the juvenile court.⁸¹ For example, in J.O.N. v. Juvenile Officer, 82 the Missouri Court of Appeals explained:

[The statute granting jurisdiction] provides that the juvenile court shall have “exclusive original jurisdiction in proceedings . . . (3) [i]nvolving any child who is alleged to have violated a state law or municipal ordinance, or any person who is alleged to have violated a state law or municipal ordinance prior to attaining the age of seventeen years . . .” (emphasis added). The legislature’s use of the word “person” in the foregoing excerpt is deliberate and significant. The statute intends to make it clear that the juvenile court has jurisdiction in proceedings involving a child (i.e., a person under 17 years of age, section 211.021(2), RSMo 1986), who is alleged to have violated a state law and also of a proceeding involving a person, regardless of age, who is alleged to have violated a state law prior to attaining the age of 17 years. The jurisdiction of the juvenile court depends only upon the occurrence of the law violation before the violator was ^17.83

Likewise, in Johnson v. Bishop, ⁸⁴ the Court of Appeals of Kentucky stated: This subsection, as amended, reads as follows: (1) The juvenile session of the district court of each county shall have exclusive jurisdiction in proceedings concerning any child living, or found within the county who has not reached his eighteenth birthday [o]r of any person who at the time of committing a public offense was under the age of eighteen (18) years . . . . (emphasis added)[.] Prior to its amendment, this statute vested exclusive jurisdiction in the juvenile court only as to proceedings against an offender which were instituted before his eighteenth birthday. The amendment was obviously intended to, and plainly does, go a step farther and vests jurisdiction in the juvenile court over proceedings against an offender of any age who at the time of committing the offense charged was under the age of eighteen.⁸⁵

By contrast, in State v. Pauly, ⁸⁶ the Supreme Court of Nebraska held that the age of the offender at the time of proceedings determined whether the juvenile court had jurisdiction. The court stated:

Subsection (2) of § 43-247 grants jurisdiction to the juvenile court over any juvenile who committed a felonious act and who was 11 years of age or older at the time the act was committed. . . . For purposes of the Nebraska Juvenile Code, . . . “[j]uvenile means any person under the age of eighteen.” . . . Put differently, whether the juvenile court has jurisdiction over a person is determined not by the person’s age at the time of the offense, but, rather, by the person’s age at the time he or she is charged for the offense.⁸⁷

These cases illustrate how important the statutory language that confers jurisdiction to juvenile courts is to the determination of whether it is the juvenile offender’s age at the time of offense or at the time of proceedings that will control the jurisdictional question.

III. States Should Determine Jurisdiction of Juvenile Courts Based Upon Age at Time of Offense

Juvenile offenders in states that determine the jurisdiction of juvenile courts based upon a juvenile offender’s age at the time of proceedings are at a significant disadvantage. Despite having been juveniles at the time of the offense, they lose all the benefits and protections of the juvenile court system if they reach the age of majority prior to the initiation of proceedings. They will be proceeded against in the retribution-oriented adult criminal court system where they are more likely to be incarcerated;⁸⁸ have no protection of confidentiality;⁸⁹ have limited or no access to rehabilitative programming and treatment;⁹⁰ and, if determined to have committed the offense, will be found “guilty” of a crime rather than merely “delinquent.”⁹¹ This Part explores the numerous policy-based reasons why the better approach to the determination of the jurisdiction of juvenile courts is to use the offender’s age at the time of offense.

A. Juvenile Offenders are Less Culpable than Adult Criminals

The notion that juvenile offenders are less culpable for their actions than adult criminals is not a new concept. Early juvenile justice reformers relied upon this lessened culpability to advocate for a distinction between juvenile offenders and adult criminals within the criminal justice system.⁹² These early reformers understood that youth is not merely a chronological number,⁹³ but rather is a period of time when individuals are “less mature, more impulsive, more susceptible to negative familial and peer pressure, and more amenable to rehabilitation.”⁹⁴ Indeed, it was society’s acceptance that youth and its attendant circumstances make juvenile offenders less culpable and more deserving of rehabilitation that served as the impetus for the creation of juvenile court systems.⁹⁵

Today, scientific studies confirm what early juvenile justice reformers believed: from a developmental perspective, juveniles are different from adults.96 There are at least four developmental differences between an adolescent and adult brain significant to culpability.⁹⁷ First, during adolescence there is an increase in dopamine, a neurotransmitter associated with sensation-seeking and risk-taking.⁹⁸ The increased levels of dopamine often make risky behavior more appealing than safer choices.⁹⁹ Second, the prefrontal cortex is not fully developed during adolescence.¹⁰⁰ “The prefrontal cortex . . . is responsible for cognitive analysis, abstract thought, and the moderation of correct behavior in social situations.”¹⁰¹ It provides an individual with “the capacity to exercise good judgment.”¹⁰² Because the prefrontal cortex is not fully developed until adulthood, “adolescents have less control over the urge to seek a reward that may have negative effects,” which explains “why adolescents are prone to seek novelty and take risks.”¹⁰³ Third, “the brain goes through extensive myelination” during adolescence.¹⁰⁴ Myelination is the “process by which the myelin forms a casing around a nerve to allow speedier and more consistent neural transmissions.”¹⁰⁵ Until the myelinations process is complete, adolescents are unable to fully plan, weigh costs and benefits, and appropriately respond to inhibitions.¹⁰⁶ Finally, “neural connections between cortical and subcortical regions continue to grow into late adolescence.”¹⁰⁷ Without these fully formed connections, adolescents are unable to effectively regulate emotions and control emotional impulses.¹⁰⁸

Recently, the U.S. Supreme Court has extended several constitutional protections to juvenile offenders because of these developmental deficiencies. In 2005, in Roper v. Simmons, ¹⁰⁹ the Court held that imposition of the death penalty on offenders who were under the age of eighteen when their crimes were committed was unconstitutional.110 Five years later, in 2010, in Graham v. Florida, ¹¹¹ the Supreme Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”¹¹² In both cases, the Court relied upon science to reach its decision. In Roper, the Court “cited studies showing that ‘[o]nly a relatively small proportion of adolescents’ who engage in illegal activity ‘develop entrenched patterns of problem behavior.’”¹¹³ Likewise, in Graham, the Court “noted that ‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds’” and “reasoned that those findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s ‘moral culpability’ and enhanced the prospect that, as the years go by and neurological development occurs, his ‘deficiencies will be reformed.’”¹¹⁴ Together, Roper and Graham establish that juveniles’ developmental deficiencies diminish their culpability and increase their prospect for reform, making them deserving of special treatment under the criminal justice system.

More recently, in 2012, in Miller v. Alabama, ¹¹⁵ the Court held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment of the Federal Constitution.¹¹⁶ Again, relying upon the developmental deficiencies of adolescence, the Court concluded that when imposing the harshest penalty against juvenile offenders—life without the possibility of parole—mandatory sentencing schemes ignore the unique circumstances of adolescence.¹¹⁷ Specifically.

Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth—for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.¹¹⁸

The developmental differences relied upon in Roper and its progeny to expand constitutional protections to juvenile offenders in the context of sentencing are equally applicable in the context of the jurisdictional reach of juvenile courts. An offender’s level of culpability is generally determined by the facts and circumstances that exist at the time of the offense.¹¹⁹ Thus, when a juvenile commits an offense, he or she does sowith the developmental deficiencies recognized by early juvenile justice reformers, scientific researchers, and now the U.S. Supreme Court. The mere fact that the prosecution may not have initiated legal proceedings until after the juvenile offender reached the age of majority does not increase the offender’s level of culpability at the time they committed the crime.120 Rather, the criminal offense was committed during a period of diminished culpability due to the juvenile’s lack of brain maturity and development.

B. Ensures Fairness in the Criminal Justice System

As the U.S. Supreme Court has noted in multiple contexts, fairness is a hallmark feature of the American criminal justice system.¹²¹ The fundamental right to fair treatment in the criminal justice system has served as an important rationale underlying the elaboration of many constitutional rights, including the right to counsel for indigent defendants,¹²² the prohibition against the imposition of the death penalty on juveniles,¹²³ the prohibition against race-based jury selection,¹²⁴ and the right to a fair and impartial jury.¹²⁵ Fairness also underlies the notion that similarly situated persons should be treated alike under the law.¹²⁶

Fairness within the criminal justice system is also critical to the promotion of society’s confidence in the justice system.¹²⁷ Commentators have noted that: The public is much more likely to support and participate in the criminal justice process and support those officials who run it when the public believes that the process is run fairly. If the American public does not perceive its criminal justice system to be fair, negative consequences can result. Diminished public support for the criminal justice system, taken to the extreme, can lead to diminished respect for the law and, thereby, less compliance with the law.¹²⁸

States that determine the jurisdiction of juvenile courts based upon a juvenile offender’s age at the time of proceedings run afoul of this basic understanding of fairness. Using a juvenile offender’s age at the time of proceedings to determine jurisdiction allows similarly situated juvenile offenders to be treated differently within the criminal justice system based upon when the prosecution proceeds against them.¹²⁹ Consider, for example, a seventeen-year-old individual who stole a pair of $200 sneakers from a store in a state that set its age of majority at eighteen years old. If the juvenile is arrested and charged on the day of the offense, the juvenile court would have jurisdiction. Now imagine another seventeen-year-old stole a pair of $200 sneakers from the same store, on the same day, but they were not proceeded against until one day after their eighteenth birthday. In the second scenario, the juvenile offender would be charged, tried, and sentenced in adult criminal court. This juvenile offender would lose all the benefits and protections of the juvenile court: confidentiality, rehabilitation, decreased reliance on incarceration, and adjudication as a “delinquent” rather than convicted of a crime. Instead, the prosecution would proceed against this juvenile in the adult criminal court with its punitive-oriented regime. This juvenile would be treated differently and would suffer significant consequences, despite committing the same offense, on the same day, in the same state, and at the same age as the juvenile in the first scenario.

Certainly, there are other instances of disparate treatment within the criminal justice system.130 However, the disparate treatment that results when a state determines the jurisdiction of juvenile courts based on the offender’s age at the time of proceedings is particularly unfair because it has no connection to any perceived difference in culpability, severity of offense committed, or criminal history between the juvenile offenders. Rather, it is solely the result of the use of an arbitrary date—the date of legal proceedings—to determine the jurisdictional reach of juvenile courts. This unfair result would not—could not—occur in a state that determines jurisdiction based upon a juvenile offender’s age at the time of offense. Under such a scheme, both juvenile offenders in the above examples would fall within the jurisdictional reach of the juvenile court because they both committed the offenses while under the age of majority.

C. Removes Incentive to Delay Proceedings Against Juvenile Offenders

A prosecutor’s primary obligation is to seek justice.¹³¹ To fulfill this obligation, prosecutors are given broad discretion within the criminal justice system.¹³² Prosecutors regularly exercise their discretion in the context of criminal investigations, charging decisions, plea bargaining, and sentencing recommendations.¹³³

There are many benefits to broad prosecutorial discretion. First, given the abundance of criminal statutes today, discretion allows prosecutors to determine which “criminal law[s] are really worthy of criminal punishment.”¹³⁴ “[P]rosecutors are [likely] more suited than the legislature to adapt the criminal law to new circumstances and to identify when the prosecution of certain statutes would be anachronistic.”¹³⁵ Second, discretion allows prosecutors to focus financial resources and personnel on the criminal offenses most troubling to their community, rather than exhausting often limited resources attempting to punish all criminal conduct.¹³⁶ Finally, broad discretion is often necessary to reach just results.¹³⁷ Strict enforcement of the law is not always in the best interest of victims, society, or defendants.¹³⁸ Discretion allows prosecutors to assess individual cases when determining how to best obtain a fair and just result.

Unfortunately, despite the benefits of broad prosecutorial discretion, wherever discretion exists, so does the potential for abuse. For example, in 2007 then-District Attorney Mike Nifong of Durham, North Carolina, was disbarred for misconduct that occurred during a sex-crime prosecution of Duke University lacrosse players.¹³⁹ He was officially disbarred for “making false statements, withholding exculpatory evidence, and making impermissible statements to the press.”¹⁴⁰ However, the conduct that “most disturbed the public”—and likely the disciplinary agency—was that he abused his discretionary power “by continuing the prosecution after the evidence discredited the complaining witness and strongly suggested that the defendants were innocent.”¹⁴¹

It is well recognized that prosecutors have particularly broad discretion in the context of charging decisions.¹⁴² They “determine whether to bring charges, what charges to bring, when to bring charges, and where to bring charges.”¹⁴³ Aside from the constitutional requirement that probable cause must support criminal charges, discretion in this area has little, if any other, constraints.¹⁴⁴ Therefore, it is not surprising that criminal justice scholars, advocates, and reformers regularly express concern about prosecutors abusing this extraordinary power.¹⁴⁵ While there is no consensus on how to best minimize prosecutorial abuse,¹⁴⁶ ensuring the procedures within the criminal justice system reduce rather than invite potential abuse is a good start.

Courts “have recognized that the jurisdictional limit of the juvenile court is susceptible to prosecutorial abuse.”¹⁴⁷ They have acknowledged that the use of the offender’s age at the time of proceedings raises the potential that prosecutors may delay proceedings until juvenile offenders reach the age of majority as a way to circumvent the juvenile court system.¹⁴⁸ This concern is warranted.¹⁴⁹ In Peterson v. State, ¹⁵⁰ despite ample time to proceed against a juvenile offender in juvenile court, the prosecutor waited until after the juvenile offender’s eighteenth birthday to indict her in adult criminal court.¹⁵¹ On appeal, the juvenile argued she should have been tried in juvenile court immediately upon her arrest.¹⁵² The Texas Court of Criminal Appeals disagreed, explaining the prosecutor had the right “to abide his time until [the juvenile] reached the age of eighteen years, when he could prosecute her and try her for her crime as an adult.”¹⁵³

As Peterson illustrates, determining the jurisdiction of juvenile courts based upon an offender’s age at the time of proceedings invites potential prosecutorial abuse in the context of charging decisions. Under such a scheme, prosecutors may merely wait to proceed against a juvenile offender until the juvenile reaches the age of majority. The risk of such abuse is especially high in cases where the juvenile offender is close to the age of majority at the time he or she commits the alleged offense.

Moreover, in certain cases, there is significant incentive for prosecutors to delay proceedings. In cases where the juvenile committed an offense that is not eligible for transfer to adult criminal court, delaying proceedings until the juvenile offender reaches the age of majority allows a prosecutor to proceed against the juvenile offender in adult criminal court when the prosecutor would otherwise be unable to do so. Likewise, in cases where the prosecutor intends to seek a discretionary transfer from juvenile court to adult criminal court, a delay until the offender reaches the age of majority negates the need for an often laborious and time-consuming transfer hearing. Rather, the delay allows the prosecutor to proceed against the juvenile offender in adult criminal court.

Some states attempt to minimize the potential for this type of prosecutorial abuse by allowing a juvenile offender who has reached the age of majority to be charged in adult criminal court only in cases where the prosecutor did not intentionally delay proceedings to avoid the jurisdiction of the juvenile court.¹⁵⁴ However, while well meaning, this supposed “safeguard” falls short for several reasons. First, it often fails to protect juvenile offenders against negligent, rather than intentional, delays.¹⁵⁵ Second, there are an infinite number of investigatory tasks that prosecutors can assert as a means to conceal an intentional delay of prosecution.¹⁵⁶ Finally, juvenile offenders are at a significant disadvantage in confronting a prosecutor’s assertion that a delay in proceedings was unintentional. Such improper conduct is unlikely to be documented. Rather, the ill-motive likely may exist only in the mind of the prosecutor or in verbal conversations between prosecutors and law enforcement.

Determining jurisdiction based upon a juvenile offender’s age at the time of offense removes any incentive to delay proceedings to circumvent the juvenile court system. Whether the offender is proceeded against a day, month, or year after the alleged offense is irrelevant under such a scheme.

D. Reduces Recidivism Rates

There are likely few things that undermine society’s confidence in the criminal justice system more than recidivism. Recidivism exemplifies the criminal justice system’s failure to rehabilitate and deter an offender’s criminal behavior, as well as its inability to prevent crime and keep the public safe. Recidivism rates are so intertwined with the perceived success of the criminal justice system that they are considered the key measure of the system’s performance,¹⁵⁷ with high rates of reoffending indicative of a failure in the system. Studies show that juvenile offenders who are proceeded against in the adult criminal court system have higher rates of reoffending than those who remain in the juvenile court system.¹⁵⁸ While several factors likely contribute to this heightened rate, there is no denying that the adult criminal court’s reliance upon incarceration is a significant factor.¹⁵⁹ Incarceration greatly increases the likelihood that juvenile offenders will recidivate upon release. “[O]ne study revealed that the odds of reoffending increased 13.5 times for youth with a prior detention,”¹⁶⁰ while another “found that detaining them increased their likelihood of recidivism after release by 22–26%.”¹⁶¹

The connection between incarceration and recidivism by juvenile offenders should not be surprising. Incarcerated juveniles often experience physical and sexual abuse during detention,¹⁶² they lack access to educational or rehabilitative services,¹⁶³ and they suffer higher rates of posttraumatic stress disorder and depression.¹⁶⁴ The impact of incarceration on juvenile offenders’ physical and mental wellbeing undermines the potential for any meaningful rehabilitation.¹⁶⁵

The correlation between incarceration and recidivism does not exist only among juveniles. Research shows that periods of incarceration also increase recidivism rates among adults. “[T]he experience of incarceration can be criminogenic, or likely to cause the very behavior it is punishing.”¹⁶⁶ “The longer sentences people serve, the harder it is for them to reenter successfully into society. . . . One study using data from Texas ound that each additional year of a prison sentence caused a 4–7% increase in an individual’s recidivism rate once he or she was released.”¹⁶⁷

The justification for incarceration based upon the belief that time in prison reduces recidivism is not supported by data. Rather, research shows that incarceration actually increases crime. Because juvenile offenders who remain in the juvenile court system are less likely to be incarcerated and therefore less likely to recidivate, states seeking to reduce crime should implement procedures and laws that increase access to juvenile courts, not decrease it. Determining the jurisdiction of juvenile courts based upon a juvenile offender’s age at the time of offense does just that.

E. Respects the National Trend to Expand the Jurisdictional Reach of the Juvenile Court System

Studies show that juvenile offenders proceeded through the juvenile court system have more access to rehabilitative programming,¹⁶⁸ are less likely to be incarcerated,¹⁶⁹ and (as noted above) have lower rates of recidivism than those proceeded against in the adult criminal court system.¹⁷⁰ Recognizing the benefits of the juvenile court, many state legislatures have recently enacted laws to increase offenders’ access to the juvenile court system.

For example, many states have passed legislation limiting the ability to transfer juvenile offenders from juvenile court to adult criminal court. In 2020, Utah passed “legislation limiting the transfer of 16- and 17-year-olds to adult court to only the most serious offenses and only under a judge’s discretion.”¹⁷¹ Likewise, Virginia raised the minimum age from fourteen to sixteen years old for juvenile offenders to be tried in adult criminal court for murder.¹⁷² California went ever further, banning “the transfer of juveniles under the age of sixteen to criminal court, regardless of the alleged offense.”¹⁷³ These legislative actions mean more juvenile offenders will remain within the juvenile court system instead of being removed to adult criminal court.

Likely even more meaningful, numerous states have recently raised their age of majority. In 2020, Vermont raised its age of majority to nineteen years old, becoming the first state in the nation to legally classify eighteen-year-olds as juveniles within the criminal justice system.¹⁷⁴ Similarly, New York, Michigan, and Missouri all recently raised their states’ age of majority to eighteen years old.¹⁷⁵ In Missouri, proponents of the bill that raised the age explained:

[I]t makes sense to raise the age in Missouri, as you already have to be 18 to do a lot of things, like join the military or enter into a contract. The only place 17-year-olds are treated like adults is in the justice system. Children’s brains are still developing at age 17, and they should not have opportunities cut off because of stupid decisions they make at that age. Raising the age will lead to a windfall of taxpayer savings. Additionally, those leaving the adult system are significantly more likely to re-offend than those leaving the juvenile system. This will improve the safety of our communities, and it will lead to a stronger workforce and economy. This will also help preserve parental rights. Also, the juvenile system does a better job at holding kids accountable and getting them back on track. They can get proper education and therapy tools better than they can in the adult system. Finally, juveniles housed in adult jails are more likely to commit suicide than those housed in juvenile facilities.¹⁷⁶

Efforts to raise the age of majority are a sign that states want juvenile courts to be inclusive rather than exclusive tribunals.

These recent state actions confirm the current trend to expand rather than limit the jurisdictional reach of juvenile courts. Like laws that limit juvenile transfers to adult criminal court and raise the age of majority, determining the jurisdiction of juvenile courts based upon an offender’s age at the time of offense will increase access to the juvenile court system. It will ensure that all juvenile offenders have access to the protections and benefits of the juvenile court system, not just those proceeded against prior to reaching the age of majority. Under such a scheme, more juvenile offenders will have access to the rehabilitative focus of the juvenile court system that has been proven to lower recidivism rates among offenders.¹⁷⁷

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Don't Panic: Rethinking the Legal Implications of Brain-Based Lie Detection and Mind Reading

Introduction

Recent advancements in neuroscience have ignited both excitement and apprehension about the potential for "mind reading" technology. While the prospect of accessing the inner sanctum of the human mind holds undeniable allure for fields like law enforcement, it simultaneously raises significant ethical and legal questions regarding privacy and self-incrimination. This article aims to critically analyze these concerns, particularly focusing on the potential misuse of brain-based lie detection and mind-reading technology by governmental entities. Contrary to prevailing anxieties, I argue that current constitutional safeguards, specifically the Fourth and Fifth Amendments, offer robust protection against involuntary extraction and utilization of neuroimaging data. The article unfolds in five parts:

Part I: A Historical Perspective on Neuroscience in Legal Contexts

This section provides a historical overview of the intersection between neuroscience and law, tracing the use of brain-based evidence from its nascent stages to the contemporary emergence of "neurolaw."

Part II: Deconstructing Mental Privacy in the Age of Neuroimaging

This part delves into the complex concept of mental privacy in light of burgeoning neurotechnologies. A key argument presented is the need to distinguish between the methods of data acquisition and the inferences drawn from the data itself.

Part III: Scrutinizing the Science of Brain-Based Lie Detection and Mind Reading

Here, the article critically evaluates the scientific validity and reliability of existing neuroscience techniques employed for lie detection and mind reading.

Part IV: Constitutional Safeguards Against Involuntary Neuroimaging

This section analyzes the legal protections afforded by the Fourth and Fifth Amendments of the US Constitution against the coercive use of brain-based mind-reading technologies, specifically within the criminal justice system. I contend that these amendments offer robust safeguards against such practices.

Part V: Expanding the Scope: Mind Reading Beyond the Criminal Justice System

This part extends the discussion beyond criminal justice, exploring other contexts where brain-based mind-reading technologies might be employed and whether existing legal frameworks provide adequate protection in such scenarios.

Conclusion

The article concludes by briefly summarizing the key arguments and reiterating the position that while the potential for misuse of brain science in legal settings is a valid concern, existing constitutional safeguards offer significant protection against unwarranted intrusions into our minds. The central challenge lies not in preventing the collection of brain data but in ensuring its responsible and ethical use and interpretation within legal and policy frameworks.

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Don't Panic! Brain Science, Mind Reading, and the Law

This article examines worries about the government using brain science to access our private thoughts. While this topic might seem like science fiction, it's important to think about how our legal system can protect our mental privacy as science advances.

Here's the main point: Don't worry too much! Existing constitutional protections are flexible enough to guard against the government forcing people to undergo brain scans to read their minds. The real issue isn't so much about secretly collecting brain data, but rather how that data might be misused or misinterpreted in legal situations by both the government and private entities.

Here's how the article breaks down the issue:

Part I: Brain Science and the Law: A History

This section looks at how neuroscientific information has been used in legal cases, both recently and in the past. You might be surprised to learn that brain science and law have a long history together!

Part II: Mental Privacy: Separating Data from Interpretation

This part explains why it's crucial to differentiate between the information we get from brain data and how that data is collected. Just because we can collect brain data doesn't mean we fully understand what it means.

Part III: Lie Detection and Mind Reading: What Can Current Science Do?

Here, we examine the current capabilities of neuroscience techniques for things like lie detection and mind reading. Are these techniques as advanced as some people fear?

Part IV: Legal Protections: Safeguarding Our Minds

This section explores existing legal safeguards within the criminal justice system, specifically the Fourth and Fifth Amendments. The article argues that these amendments likely protect us from being forced to undergo brain scans for mind reading purposes.

Part V: Beyond the Criminal Justice System

While the focus has been on criminal justice, this part considers other situations where our mental privacy might be at risk and whether the same legal protections would apply.

Conclusion

The article concludes by emphasizing the importance of staying informed about the potential impact of brain science on our legal rights and privacy. While there's no need to panic, understanding the issues and advocating for our rights is essential.

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Don't Panic! Your Brain is Safe (For Now): Why We Don't Need to Fear Government Mind-Reading (Yet)

Part I: Brain Science and the Law - A History

You might've seen movies where the government uses fancy technology to read people's minds. It's a scary thought, right? While it makes for good sci-fi, the truth is, brain science and the law have been intertwined for a long time. This isn't a new thing; we've been grappling with these issues for decades!

Part II: Your Thoughts Are Your Own: Mental Privacy Matters

The big question everyone's asking is: Can the government really read our minds? This part tackles the issue of mental privacy head-on. We need to separate how brain information is collected from how it's understood. Just because someone has your brain data doesn't mean they know what you're thinking.

Part III: Lie Detectors and Mind Readers: How Good is the Tech?

This section dives into the nitty-gritty of neuroscience. We'll look at the techniques used for lie detection and "mind reading" and see how accurate they really are. Spoiler alert: We're not quite at "Minority Report" levels yet.

Part IV: The Law is on Your Side: Constitutional Protections

Don't worry, the law has something to say about all this! This part explores how the Fourth and Fifth Amendments of the Constitution actually protect us from the government using brain-reading technology against our will. You have rights, and the law is designed to protect them.

Part V: Beyond the Criminal Justice System: Where Else Might This Tech Pop Up?

While the law offers good protection in the justice system, what about other areas of life? This section looks at situations outside of police investigations and trials where brain-reading technology might become a concern, and how our current legal protections might hold up.

Conclusion

In a nutshell, while the idea of the government reading our minds is scary, we're not there yet. Our current laws offer strong protection against this kind of intrusion. The real issue isn't so much the technology itself, but how it's used and interpreted. So, take a deep breath – your brain is safe (for now).

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Don't Panic! Your Brain is Still Your Own

Have you ever imagined someone reading your mind? It sounds like something out of a science fiction movie, right? Well, some people are worried that new brain science could be used by the government to do just that! They worry that police officers, judges, and even lawyers could use special machines to peek into our brains and know our private thoughts. They wonder if that would be fair or even legal.

This article is here to tell you: Don't panic!

Brain Science and the Law

Scientists have been learning about how brains work for a long time, and sometimes they share what they learn with the police and courts. But just because we're learning more about the brain doesn't mean the government can just read our minds whenever they want!

Your Private Thoughts are Safe

It's important to remember that just because a machine can look at our brain activity, it doesn't mean it can understand our thoughts. It's like trying to understand a book just by looking at the cover!

Can Machines Really Read Minds?

Some scientists are trying to create lie detectors or mind-reading machines using brain science, but these machines are far from perfect. They can't really tell us what someone is thinking.

The Law Protects You

Did you know that there are already laws that protect your privacy? The Fourth and Fifth Amendments to the Constitution say that the government can't just search you or force you to talk without a good reason. These laws would likely protect you from anyone trying to use a mind-reading machine on you without your permission.

What About Other Situations?

Even though the law protects your brain privacy in many situations, there might be other times when it's not so clear. We need to be careful and make sure that these new brain technologies are used responsibly and fairly.

Don't Worry!

So, the next time you hear someone talking about mind-reading machines, remember: Don't panic! Your brain is still your own, and there are laws to protect your privacy.

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