Abstract
South Dakota, like many other states, allows young children to be introduced to the criminal justice system at a very young age. Although South Dakota originally focused on managing children’s misbehavior, the law has evolved in a way that punishes kids for being kids. Despite recent reforms to handle juvenile delinquency in a more gentle, rehabilitative manner, the South Dakota Legislature has failed to raise the minimum age of criminal responsibility above ten years. This comment examines international norms in juvenile law, the developmental and social consequences of exposing young children to the legal system, and a more appropriate, effective alternative to managing delinquency in young children. This comment concludes that South Dakota should raise the minimum age of criminal responsibility to fourteen years.
I. INTRODUCTION
On May 13, 2021, J.H., a ten year old boy who suffered from mental health issues, was arrested at his elementary school.1 Prior to the arrest, another student had bullied J.H. while in class.2 After that class, J.H. went to the school office where he refused to eat lunch because he was so angry and distraught.3 The principal demanded that J.H. eat, which caused J.H. to become more frustrated.4 He threw a ball of yarn, hand sanitizer, and a tissue box.5 The principal threatened to call J.H.’s mother if he did not change his behavior.6 Further agitated by the threat to call his mother, J.H. struck the principal.7 J.H. then walked out of the school, picked up a trashcan, and threw it at a window.8 School administrators called 9-1-1.9
When officers arrived at the school, J.H. was walking away from the school with tears streaming down his face.10 At that time, he did not pose a threat to others and was not in the process of committing any crime.11 An officer “grabbed J.H. by the arm and pulled J.H.’s arm behind his back.”12 When J.H. pulled his arm away, the officer grabbed the ninety-three pound boy, put him in a chokehold, and pulled him to the ground.13 The officer then dragged the child on the ground while he was in a chokehold.14 J.H. was handcuffed and taken to the principal’s office to be interrogated.15
The officers interrogated J.H. for an hour and a half while he sat on the floor with his hands cuffed behind his back.16 J.H.’s mother, who had arrived at the school, told the officers that her son was only ten years old.17 One officer replied, “He’s at least 10.1 years old.”18 J.H. was placed in a cop car and taken to the Juvenile Assessment Center.19At the detention center, J.H.’s legs were handcuffed, and he was booked and processed.20 J.H. was charged with two counts of battery of a police officer, one count of battery of a schoolteacher, one count of resisting arrest, and one count of simple criminal damage of less than $1,000.21 He was placed in a cell for approximately four hours, was not allowed food or water, and was not allowed to see his parents.22 J.H. was eventually released from the juvenile detention center to his parents.23
While what happened to J.H. seems extreme, this situation repeatedly happens to youth across the United States.24 Young children regularly end up in the juvenile justice system when they should not.25 In fact, situations like this are acceptable under current South Dakota law, which allows children as young as ten to be held criminally responsible.26 Young children are also arrested in South Dakota for similar offenses.27 This needs to change.28
In Part II, this comment describes the evolution of juvenile court in the United States.29 Part III details the history of South Dakota’s juvenile legislation.30 Part IV outlines a proposal for an amendment to current South Dakota legislation and offers rationale for the proposal.31 Ultimately, this comment concludes that South Dakota should raise its minimum age of criminal responsibility for juvenile offenders to fourteen years of age.32
II. THE EVOLUTION OF JUVENILE COURT
Between the early 1800s and the establishment of juvenile courts, children did not enjoy the legal or social status that they hold today.33 Due to the high infant mortality rate and the inability to provide economically for new children, youth were sometimes viewed as a burden on the family.34 “Infancy,” as it was referred to in legal dialogue, was treated as a significant legal disability.35 When children engaged in misbehavior, authorities applied traditional remedies of criminal law.36
Under the original United States criminal justice system, which was imported to the colonies from England, it was presumed that children under seven did not possess the ability to form criminal intent.37 Therefore, children of this age were not handled by the system.38 It was presumed that children ages seven to fourteen were incompetent to form criminal intent, but a prosecutor could overcome the presumption by showing that the child knew right from wrong.39 It was presumed that children over fourteen years of age possessed the capacity to form requisite criminal intent.40 At this time, the criminal justice system did not have special courts for children.41 Instead, children were subjected to the same procedures, punishments, and facilities as adult criminals.42
In 1819, the Society for the Prevention of Pauperism released a report highlighting the problems of confining children and adults together.43 This report, examining confinement in Bellevue Prison, initiated reform efforts to establish separate institutions for juveniles in New York.44 In 1825, the City of New York opened the first House of Refuge for juvenile offenders in the United States.45 Many cities established their own houses of refuge by 1854.46
The first houses of refuge were designed to combat poverty and neglectful families, which were viewed as “breeding grounds for crime.”47 The houses were intended to provide delinquent youth with a home where they could be educated, reformed, and disciplined.48 As the Supreme Court of Pennsylvania explained, “The House of Refuge is not a prison, but a school. Where reformation, and not punishment, is the end, it may indeed be used as a prison for juvenile convicts who would else be committed to a common gaol [sic] . . . .”49
However, these houses of refuge were built and used as prisons for children.50 Children were subject to schedules similar to those in adult confinement facilities and expected to be silent at all times.51 They received punishments ranging from only being served bread and water to whippings.52 Children were confined for an indeterminate length of time.53 Additionally, with the depression of 1857, the houses of refuge quickly became overcrowded.54
These issues with the houses of refuge sparked a reformatory movement in the late 1800s.55 In addition to the issues related to the conditions of confinement, houses of refuge had generally failed to decrease delinquency rates.56 Due to this, advocates began promoting a different approach to juvenile delinquency.57 This new approach created reformatories for delinquent children.58 Reformatories were justified by the doctrine of parens patriae, which refers to the power of the state to intervene and act as the parent of any child who needs protection.59
The first United States reformatory was established in 1848 in Massachusetts.60 The goal of the reformatory was to offset experiences of poor family life, poverty, and corruption with proper training in residential environments.61 This goal was to be accomplished through military drill and continual supervision.62 The belief was that these children would be reformed if they were protected from laziness, idleness, and the corrupt influence of adult prisoners.63
These theoretical ideas soon developed into a system of prisons that the reformatories were intended to replace.64 The reformatories were overcrowded and ineffective in decreasing juvenile delinquency.65 Further, this new system permitted the commitment of children to these reformatories without judicial procedures or proceedings.66
In 1870, an Illinois Supreme Court decision documenting the reality of the pre-juvenile court system, which marginalized the legal rights of children, had a monumental impact on juvenile reform.67 By 1880, many states had passed laws providing for separate juvenile trials.68 Illinois established the first juvenile court in 1899.69 That court, located in Cook County, Illinois, was designed as a family court to manage juvenile issues.70 Other states followed in establishing independent courts for juveniles.71 By 1920, forty-five of the forty-eight states had established juvenile courts, and there were more than 600 juvenile courts in the United States by 1932.72 All states had established juvenile courts by 1945.73
The first juvenile courts followed the parens patriae doctrine, in which the courts were acting in place of the parents and were to look out for the best interests of the children.74 The belief was that these juveniles were not criminals, but rather, were children in need of protection, care, and rehabilitation.75 Initially, these new courts only intervened in cases of dependency, neglect, and criminal activity.76 Over time, their jurisdiction extended to curfew violations, status offenses, and family issues.77
From 1899 to 1967, the emphasis on rehabilitating juveniles resulted in the infringement of their legal rights.78 The common belief at the time was that children had a right to custody and nothing more.79 Juvenile courts were an informal setting in which children were discouraged from attorney representation and typical courtroom procedures were not followed.80 The United States Supreme Court, assuming that the juvenile court system was effective, followed a hands-off policy towards these new court systems during this time.81
In 1966, the United States Supreme Court finally intervened into the juvenile court system and acknowledged that it was not working.82 This decision converted the informal proceedings of juvenile courts into formalized hearings with procedure and representation.83 States began revising their juvenile laws to decriminalize certain offenses and to create categories of certain status offenders.84 Many states were moving away from the institutionalization of juveniles toward effective and humane alternatives.85 Congress also responded in 1974 by passing the Juvenile Justice and Delinquency Prevention Act (“JJDPA”).86 The Office of Juvenile Justice and Delinquency Prevention (“OJJDP”) was created under the act to discourage institutionalization and promote community-based alternatives.87
In the 1980s, a nationwide push for a “tough on crime” approach to criminal justice prompted states to revise their juvenile codes.88 The amended codes often stated that public safety was a primary purpose of juvenile courts.89 States also toughened their juvenile delinquency codes to deemphasize rehabilitation and focus on retribution, incapacitation, and punishment.90
In 1995, John DiIulio, then a professor at Princeton University, began issuing predictions about an upcoming wave of “superpredators.”91 He predicted that there would be three times as many juveniles in custody in the upcoming years and that there would be approximately 270,000 more youth predators on the streets by 2010.92 These predictions triggered a panic which led almost every state to pass legislation that dramatically changed the way juveniles were treated for purposes of sentencing and punishment between 1992 and 1999.93 Although the superpredator theory was later debunked and DiIulio himself admitted that his predictions were wrong, they were taken seriously for several years.94 By the time the public accepted that these predictions were a myth, the damage had already been done.95
In the mid-2000s, nonprofit agencies and advocates funded scientific research that advanced reforms based on developmental science regarding a child’s lessened culpability.96 This new developmental approach to juvenile justice led to several United States Supreme Court cases in which the Court took into account the developmental differences in children for constitutional purposes.97
III. THE EVOLUTION OF SOUTH DAKOTA’S JUVENILE LAW
In 1862, before South Dakota became a state, the General Laws and Memorials and Resolutions of the Territory of Dakota set the minimum age of criminal responsibility at ten years old.98 In 1877, still twelve years before South Dakota officially became a state, this law was amended to lower the minimum age of criminal responsibility to seven years old.99 However, children between the ages of seven and fourteen were not capable of being charged with a crime unless it was proven that, at the time of the act or neglect charged, they knew it was wrong.100
Additionally, in 1908—while juvenile courts were being established throughout the United States—South Dakota, in a separate statute, defined “delinquent child” as any child under the age of eighteen who violated a law of the state.101 The definition specified certain activities that, if engaged in by a child, would cause them to be found delinquent.102 For instance, a child “who [did] not regularly attend school and [was] not otherwise engaged in any regular occupation or employment but loiter[ed] and idle[d] away its time” was viewed as delinquent.103 A delinquent child was also one “who frequent[ed] or patronize[d], with one of the opposite sex, any restaurant or other place where liquors [could] be purchased at night after the hour of nine o’clock.”104 Further, a child “who wander[ed] about the streets in the night time without being on any lawful business or lawful occupation” was found to be delinquent.105 Additionally, a delinquent child was one “who [wrote] or use[d] vile, obscene, vulgar, profane or indecent language.”106
In 1961, a clause was added to the delinquency statute to address the operation of motor vehicles, but the general definition remained unchanged.107 This law was eventually repealed, amended, and re-enacted in 1968.108 The reenacted law defined “delinquent child” as any child ten years old or older who violated a federal law, state law, or municipal ordinance, except traffic laws and ordinances.109 That same year, the South Dakota legislature amended the statute setting the minimum age of criminal responsibility.110 The amendment raised the age back to ten years old.111
Since 1968, these laws have remained almost completely unchanged.112 In fact, the 1968 amendment to the statute setting the minimum age of criminal responsibility has not changed at all.113 However, South Dakota now defines “delinquent child” as:
[A]ny child ten years of age or older who, regardless of where the violation occurred, has violated any federal, state, or local law or regulation for which there is a penalty of a criminal nature for an adult, except state or municipal hunting, fishing, boating, park, or traffic laws that are classified as misdemeanors, or petty offenses or any violation of § 35-9-2 or 32-23-21.114
South Dakota law emphasizes that this statute “shall be liberally construed in favor of the child, the child’s parents, and the state for the purposes of . . . affording guidance, control, and rehabilitation of . . . any delinquent child.”115 Further, it clarifies that proceedings in juvenile court “shall be in the best interests of the child.”116
In addition to these legislative amendments, South Dakota has made some reformative changes to the law in the past several years.117 In 2014, South Dakota’s juvenile system had the second-highest juvenile commitment rate in the country.118 In response, South Dakota created the Juvenile Justice Reinvestment Initiative Work Group to examine the state’s juvenile justice data, practices, and policies.119 The work group recommended expanding community-based interventions and diversion programs while saving residential placements for youth who posed a serious risk to public safety.120
Based on these findings and recommendations, South Dakota passed the Juvenile Justice Public Safety Improvement Act (“JJPSIA”), which was signed into law in March of 2015.121 The JJPSIA was designed to improve outcomes for youth in the juvenile system, effectively hold juveniles accountable, and reduce costs by investing in evidence-based, community-based practices while saving out-of-home placements for youth who pose a serious public safety risk.122
In 2015, South Dakota began a second phase of reforms that involved the implementation of new policies and measuring performance.123 The adopted reforms provide for improved outcomes by investment in rehabilitative programs that can meet a child’s individual needs.124 The Department of Social Services, the Unified Judicial System, and the Department of Corrections are required to work together to identify treatment options based on the needs of youth involved in the justice system.125 Additionally, the law stresses the importance of utilizingmental health assessments, risk assessment tools, and substance abuse assessments to match youth to community programs.126
IV. PROPOSAL FOR A LEGISLATIVE AMENDMENT RAISING THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY TO FOURTEEN
Jurisdictions around the world differ in how they manage juvenile delinquency.127 In particular, jurisdictions vary in the minimum age at which a child is subject to the juvenile justice system.128 Although this variance exists, a growing number of legal, governmental, and professional groups seek to raise the minimum age of responsibility, especially throughout the United States.129 This comment proposes an amendment to current South Dakota legislation establishing ten years as the minimum age of criminal responsibility.130 Specifically, the proposal calls on the South Dakota Legislature to raise the minimum age of criminal responsibility to fourteen years old.131
Section IV.A explains that the United States is an outlier in the practice of exposing such young children to the legal system.132 Section IV.B applies recent research advancements in child cognitive development and neuroscience to minimum age of criminal responsibility legislation.133 Section IV.C discusses the social consequences of exposing such young children to the legal system.134 Section IV.D offers a more appropriate and manageable approach to juvenile delinquency in young children.135
A. THE UNITED STATES IS AN OUTLIER
The United States is an outlier in the practice of exposing young children to the criminal legal system.136 In 2019, the United Nations Convention on the Rights of the Child issued its “General comment No. 24 . . . on children’s rights in the child justice system.”137 In this comment, it stated that “the most common minimum age of criminal responsibility internationally is fourteen.”138 It also encouraged nations to increase their minimum age to at least fourteen years.139
However, there is currently no federal standard on a minimum age of juvenile court jurisdiction in the United States.140 Thus, the states vary in their minimum age requirements, with twenty-four states having no set minimum age, no state having a minimum age older than thirteen years, and only eight states having a minimum age older than ten years.141
Most other countries have a higher minimum age of criminal responsibility than the United States.142 While other countries differ slightly in the way they manage juvenile delinquency, most follow the international standards calling for “developmentally appropriate treatment of youth below the age of [eighteen].”143 For example, in Austria, children under fourteen are subject only to child welfare laws.144 In China, children can only be held criminally responsible at age fourteen for serious offenses.145 The age of full criminal responsibility is sixteen.146 In Argentina, the minimum age of criminal responsibility is sixteen.147 However, the juvenile court only has jurisdiction over sixteen and seventeen year olds who have committed an offense punishable by at least two years in prison.148
Although the United States has a lower minimum age of criminal responsibility than the international norm, there has been recent movement in some states to raise the age.149 In New Jersey, for example, a bill was introduced in February of 2023 to raise the minimum age of criminal responsibility to twelve years.150 The judiciary committee unanimously agreed to advance the bill to the senate after increasing the minimum age to fourteen, rather than twelve.151 Additionally, a Colorado bill attempting to raise the minimum age of criminal responsibility to thirteen was introduced in March of 2022.152 The South Dakota Legislature, however, has yet to show any movement towards raising the age.153
B. THE DEVELOPMENTAL AND PSYCHOLOGICAL CONSEQUENCES OF EXPOSING YOUNG CHILDREN TO THE LEGAL SYSTEM
Modern understanding of child cognitive development and neuroscience has changed how juveniles are treated under the law.154 In a series of landmark United States Supreme Court decisions from 2005 to 2012, the Court held that no child under the age of eighteen may be sentenced to capital punishment,155 sentenced to life without parole for a non-homicide offense,156 or mandatorily sentenced to life without parole.157 The reasoning in these decisions was, in large part, based on contemporary research on child development.158 Recognizing these scientific advancements, the United States Supreme Court has explained that there are three general differences between juveniles and adults.159
First, the Supreme Court has stated that juveniles have “a lack of maturity and an undeveloped sense of responsibility” which results “in impetuous and illconsidered actions and decisions.”160 According to the Court, this means that their “irresponsible conduct is not as morally reprehensible as that of an adult.”161 Research in child development continues to show that children are more likely to engage in impulsive and risky behaviors than adults.162
Ongoing developments in this area of research show that children have a hyper-sensitivity to emotional contexts, which makes them “susceptible to emotionally driven decisions, impulsive behavior, and poor judgment.”163 This hypersensitivity can “interfere with self-control.”164 Due to the ongoing development of the prefrontal cortex, children are also less able to make futureoriented decisions.165 They are more focused on short-term rewards and gains rather than long-term consequences.166
Due to these developmental differences, children often engage in behaviors that overlap with criminal offenses.167 However, this increase in risk-taking behavior is developmentally normal and can even be useful in certain contexts.168 In fact, the United States Supreme Court has held that, due to developmental differences, this conduct is not as blameworthy for children as it would be for adults.169 Still, South Dakota responds to this type of behavior through the legal system, exposing these young children to arrest, court proceedings, detention, and more.170
Second, the United States Supreme Court has stated that “juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.”171 Because of this, the Court has stated, juveniles should be more easily “forgiven for failing to escape negative influences in their . . . environment.”172 Research continues to indicate that a child’s environment significantly influences their brain development.173
Studies on adverse childhood experiences (“ACEs”) demonstrate the impact of a child’s environment on their development.174 ACEs are potentially traumatic events occurring in childhood that have been linked to negative outcomes.175 While each adverse childhood experience negatively impacts an individual’s behavior, health, and/or psychological development, experiencing multiple ACEs has a much more harmful effect.176
The concept was first introduced in a 1998 medical study examining the relationship between ACEs and the leading causes of death in adults.177 Subsequent research on ACEs has shown that individuals with more than one ACE have more mental health and psychological issues including anxiety, eating disorders, post-traumatic stress disorder, depression, insomnia, conduct disorder, and substance abuse disorder.178 Further, higher ACE scores have been linked to an increased risk of problematic behaviors such as smoking, heavy drinking, poor education and employment outcomes, risky sexual behavior, and involvement in violence.179 Additionally, research suggests that many of the negative outcomes associated with high ACE scores are inherent solutions that individuals adopt to respond to trauma in the absence of healthier coping options.180
Youth who are involved with the juvenile justice system often experience multiple types of trauma before reaching the system.181 Specifically, 90% of youth offenders in the United States have experienced a traumatic event in their childhood.182 Youth offenders report higher rates of exposure to trauma, posttraumatic stress disorder, depression, and anxiety.183 Further, a 2014 study examining the prevalence of ACEs in a population of juvenile offenders in Florida found that juvenile offenders are four times more likely to report four or more ACEs and thirteen times less likely to report zero ACEs than the participants in the original 1998 ACEs study.184
Children who have experienced this kind of adversity possess an altered neurodevelopment, which makes them vulnerable to the negative impact of highstress environments.185 Due to this, young children who become involved with the juvenile justice system can be re-traumatized during the arrest process.186 For the children who enter detention facilities, the needs assessment process is inadequate, they do not receive the emotional and educational services they need, and the mental health services are poor.187 Additionally, seclusion, staff insensitivity, and loss of privacy at correctional facilities can exacerbate the feelings created by previous trauma.188 Further, incarcerated youth often fail to develop social skills, like conflict resolution and self-control, in the same way as those who remain in the community.189
Individuals with ACEs often use antisocial or maladaptive behaviors to cope with stress.190 However, these behaviors do not dissipate through detention or incarceration.191 Recognizing this, researchers recommend that law enforcement and the judicial system should become aware of ACEs to ensure that the root causes of problematic behaviors are addressed through behavioral health and social services.192 A focus on identifying ACEs and interventions with a goal of improving children’s life circumstances and preventing criminal behavior may lessen the likelihood of juvenile criminal activities.193
Due to their increased vulnerability, children are also less able to effectively navigate interactions with law enforcement officers.194 These interactions may include decisions about whether to assert Miranda rights, whether to make a statement during police interrogation, and whether to disclose information to law enforcement.195 Additionally, a juvenile’s susceptibility to adult influence affects how they deal with the legal system.196 They may be less able to make good judgments during plea bargaining and to meaningfully assist in their own defense.197
In fact, research has shown that children younger than sixteen are significantly more likely to be impaired in a way that compromises their ability to act as a competent defendant in a criminal prosecution.198 Approximately onethird of children ages eleven to thirteen are as impaired, in terms of adjudicative competence, as mentally ill adults who would likely be considered incompetent to stand trial.199 Although a great number of children under the age of fourteen are incompetent, South Dakota law does not have separate competency standards for juveniles to allow for the consideration of their developmental deficiencies.200
The final general difference the United States Supreme Court noted is that “[t]he personality traits of juveniles are more transitory [and] less fixed” than adults.201 This malleable character, the Court has held, means that even a heinous crime committed by a juvenile is not “evidence of irretrievably depraved character.”202 Research continues to demonstrate that a child’s brain is malleable and responsive to environmental stimuli.203
Ongoing research in this area indicates that, because of their enhanced malleability, an adolescent’s brain is able to change in response to experiences.204 A juvenile’s ability to desist from delinquent behavior is tied to their developing psychosocial maturity.205 As children mature, continued brain development increases their ability to regulate their emotions and behaviors.206 In turn, it decreases their impulsivity and sensation-seeking behaviors.207 Therefore, most youth will outgrow the tendency to engage in risk-taking behaviors on their own.208
C. THE SOCIAL IMPLICATIONS OF EXPOSING YOUNG CHILDREN TO THE LEGAL SYSTEM
Most juvenile offenders are not young criminals destined for a life of crime, but rather, are disadvantaged victims.209 These problems are inadequately addressed, and further exacerbated, by the current juvenile justice system.210 Although these children may believe they are leaving their involvement with the legal system behind when they complete their adjudication terms, it can follow them for the rest of their lives.211 Unanticipated, harmful impacts often attach to juveniles as they are making their way out of the juvenile justice system.212 These obstacles can impede, or even devastate, a child’s future opportunities to fulfill their potential.213
Consequences that a child or their family may be subject to include significant hurdles to attaining education, barriers to college entrance and employment, denial of medical services, loss of driving privileges, termination of the right to vote or to serve on a jury, and publicly available court records.214 One study found that appearing in court hinders educational attainment and increases the probability of dropout.215 Another study found that early exposure to the criminal justice system reduces the chances of attending college.216 Further, one study found that incarceration in a juvenile facility led to fewer weeks worked, less job experience, and lower wages by age thirty-nine.217 Additionally, if a juvenile is convicted of a sex crime, they must register as a sex offender, which is an extremely punitive, collateral consequence, antithetical to rehabilitation and difficult to remove.218
Contact with the juvenile justice system at a young age also increases the likelihood of future involvement with the justice system.219 In fact, 68% of state prisoners in the United States were first arrested before they turned nineteen.220 Further, 38% of these state prisoners were first arrested before they turned sixteen.221 In South Dakota, of the juvenile offenders that were released in 2019, 33.6% had returned by the end of 2022.222 Of the juveniles who returned to placement, 12.4% returned for technical violations and 21.2% returned for a new charge.223 Of that same group, 47% of the juveniles returned within the first year, including 29% during the first six months.224 Thirty-two percent returned in the second year and 21% returned in the third year.225 Additionally, 66% of those who returned were admitted to the adult prison system.226
D. A MORE APPROPRIATE AVENUE
To raise the minimum age of criminal responsibility to fourteen, South Dakota needs a plan to better manage juvenile delinquency in children ages ten to fourteen. A more appropriate, effective alternative for delinquent children between ages ten and fourteen is the use of community-based services.227 Youth justice and child development scholars agree that the most effective interventions are those that provide support and assistance to children and their families through mental health providers, community organizations, and the child welfare system when necessary.228 “Programs that offer therapeutic counseling, skill building, and case management” have proven to be the most effective way to rehabilitate juvenile offenders.229 In these programs, “[t]he skills most important to address are anger management, ‘anti-social feelings, lack of self-control, lack of affection or weak supervision from parents, lack of role models, and poor academic skills.’”230
South Dakota has already made strides to use community-based services to address delinquent behavior.231 Since the JJPSIA was passed in 2015, the Department of Social Services has expanded the use of community-based services statewide.232 These services, referred to as Juvenile Justice Reinvestment Initiative services, include Functional Family Therapy, Moral Reconation Therapy, and Aggression Replacement Training.233 Functional Family Therapy is a state-wide, short-term program that addresses a range of antisocial behaviors.234 Moral Reconation Therapy is a program designed to help youth address negative behavior and thought patterns.235 It is available in eight locations and via telehealth statewide.236 Aggression Replacement Training is a program that trains youth to cope with their violent and aggressive behaviors.237 It is available in six locations around South Dakota.238 The South Dakota Juvenile Justice Oversight Council reported that these services have already had positive effects on individuals and communities in the state.239
In addition to improving the outcomes for delinquent children between ten and fourteen years old in South Dakota, raising the minimum age of criminal responsibility to fourteen will not overwhelm the system.240 In the past few years, a common perception was that the rate of young juveniles entering the juvenile justice system had increased.241 To the contrary, arrest rates for very young juveniles has declined considerably since 2001.242 In 2001, there were 6,273 children under the age of fourteen in residential placements in the United States.243 In 2019, there were only 2,120 children under the age of fourteen in residential placements in the United States.244
In South Dakota, thirty-nine children under the age of fourteen were in residential placements in 2001.245 In 2019, this number dropped to twenty-four children in South Dakota.246 Additionally, the violent crime index for juveniles in South Dakota has significantly decreased from fifty-one in 2001 to thirty in 2021.247 Therefore, with so few children between the ages of ten and fourteen being handled through the juvenile justice system, and South Dakota’s efforts to expand the use of community-based services in the state, raising the minimum age of criminal responsibility to fourteen will not be overly burdensome on the system.248
V. CONCLUSION
One year after his encounter with police at his elementary school, J.H.’s parents sued the Sheriff’s Office and School Board.249 J.H. has significant trauma from the incident.250 He continues to suffer from shock, anguish, humiliation, distress, and loss of enjoyment of life.251 Friends and family of J.H. have noticed a significant decrease in his sociability and demeanor since his arrest.252 He now has heightened anxiety and is extremely fearful of police officers.253 Even months after the incident, J.H. was playing basketball when two police cars drove past his house: “he ran inside in terror.”254
In order to protect young children from situations like this, South Dakota should raise the minimum age of criminal responsibility to fourteen.255 The United States is an outlier in the practice of exposing young children to the justice system.256 The practice is developmentally inappropriate and only exacerbates the problems created by ACEs, preexisting stressors, immaturity, and more.257 Further, it imposes long-lasting collateral consequences and makes future contact with the legal system more likely.258 Amending current South Dakota law and handling delinquent children ages ten to fourteen through community-based services would not overwhelm the system and would provide a better outcome for those children and society.259 A ten-year-old is a child, not a criminal, and South Dakota law should acknowledge the very same.260