Sri Hari Mangalam and Simran Upadhyaya


A separate and individual juvenile justice system has existed in the United States for over a century, yet the country continues to prosecute minors as adults. The tough-on-crime approach adopted by the country during the 20th century has done more harm than good. The lack of a descriptive system has allowed the police, prosecutors and judges to penalise children for insignificant crimes, before much of their cognitive facilities are fully developed. In the 1990s, the number of minors facing adult charges skyrocketed as a result of a false and racist theory that a new wave of “super-predators” was on the rise. Despite the fact that crime has gradually declined since then, these laws continue to subject minors to criminal prosecution and punishment. The indiscriminate prosecution and trial of cases has made children who can’t legally drink alcohol or vote, serve life imprisonments. Perhaps in response to this, the United States Congress has taken certain steps to rectify the situation. In 2018, the Juvenile Justice and Delinquency Prevention Act (which is discussed further below) was introduced, which mandates certain standards from American states before placing juvenile convicted criminals into the Justice system in exchange for federal funding. The Act lays out certain essential requirements; however, it hasn’t been able to end the practice of prosecuting minors as adults entirely. Multiple American states still continue to treat children as adult offenders and much scope for improvement exists in the American criminal justice system. Accordingly, the idea of this paper is to analyse instances of indiscriminate prosecution of minors, present arguments for preferential treatment and discuss legal enactments and dispositions which establish the required laws and precedence.

Indiscriminate Prosecution- The American Pattern

In June 2016, a 14-year-old boy was arrested for throwing stones at a police rally. The minor was charged with two felonies and prosecuted as an adult for his actions. The prosecutors reportedly said that they wished to lead the boy into a new life but the boy’s attorney disagreed and argued that it was simply a veiled attempt to destroy the boy’s life. The boy was prosecuted for two felonies as an adult in New Mexico, USA.  The United States’ criminal justice system allows prosecutors to charge minors with grave penalties without taking into account their age and adolescence. The Inter-American Commission on Human Rights released a report on the situation of minors in the United States’ criminal justice system.                                               

As per the report, in violation of their right of special protection and the right to be prosecuted in a specialised juvenile system, nearly 200,000 children are tried in adult criminal courts in the United States each year and held in adult prisons. The statistics covered the prevalent nature of child prosecution and the ever-growing instances of excessive persecution. The report explained the most common ways in which the laws continue to push children into the adult system.  Laws that exclude children aged 17 or 16 from the jurisdiction of juvenile courts, effectively putting them in the adult criminal system; and transfer laws, which enable a minor to be charged as an adult if certain conditions are met, were at the top of the list. In addition to the findings of the reports,  multiple concerns about the lack of due process norms for minors in the criminal justice system have been recorded. The prima facie due process issues include a lack of consistent and specialised legal representation for minors, the tendency of minors to waive their right to legal representation, lengthy wait times before cases are resolved, the use of plea deals without informing the children about the involved ramifications, and a lack of legislation requiring or encouraging family participation. The absence of due process and the lack of systemic procedures in the criminal administration process has allowed the victimisation of minors and children in the American criminal justice system. The inept administration process and continuous persecution of children has destroyed thousands of lives in the country. Such inequitable treatment subjects minors to different types of dangers including abuse in detention centres and mental trauma. The adolescence of the children as well as the dangers they face in the current system is the primary reason behind the need for protective provisions.

Need for Preferential Treatment- A Case for Sensitivity

The idea of prosecuting minors as adults was introduced to propagate the tough-on-crime approach; however, the children who are subjected to this approach are hardly deterred from future crimes and face multiple dangers as a result of it. As per a 2010 report published by the University of California’s School of Law the prosecution of children in adult courts has hardly increased deterrence; many states have actually recorded an increase in recidivism rates. As per the report, Juveniles charged in adult court and freed from state jails were re-arrested 82 percent of the time, but their adult counterparts were only re-arrested 66 percent of the time. The report also highlighted the fact that children who were prosecuted in juvenile courts benefited from the various rehabilitative programs and features that the juvenile institutions provided. Unfortunately, in the adult system, no rehabilitative mechanisms exist and the minors never get an opportunity to benefit from such programs.

In addition to the attack on their cognitive abilities, the adult prosecution system cannot guarantee the physical safety of minors as well. As per the Inter-American Commission on Human Rights, children and adolescents are subjected to serious human rights violations in adult prisons primarily because these facilities do not adapt their environments to match the age and maturity of minor inmates. Children are frequently held in solitary confinement in these jails, depriving them of physical exercise, education, and human interaction, as well as access to mental health treatment. The inappropriate use of force by correctional officials, also generates a pervasive climate of dread and dehumanisation. The data recorded by the commission indicates that minors are five times more likely to be physically and sexually abused in adult containment centres, are more likely to witness violent crimes or becomes targets for institutional abuse and have a 50% higher chance of being attacked with a weapon.

Multiple institutional studies and data collection drives have come to the same conclusion that the tough on crime approach does more harm than good. The children are subjected to greater physical harm and mental torture and have a tendency to slip back into the same system upon their release. Accordingly, the legal structure requires more sensitive and rehabilitative features with enactments that support minors out of the criminal system instead of pushing them into a life of crime.

The Trail of Change

Multiple enactments and judicial dispositions have tried to create a more holistic framework for child offenders and the frontrunner in this effort has been the Juvenile Justice and Delinquency Prevention Act, 2018 (as referred to above). The Act was established in 1974 and authorised in 2018. The broad goals of the Act are based on the premise that children, teenagers, and families linked with the juvenile and criminal justice systems should be protected by federal standards of care and custody, while simultaneously upholding community safety standards. The Act has four core requirements including support for status offenders, adult jail rehabilitation, reduced racial disparity and separated detainment. It focuses on providing alternatives for status offenders including rehabilitation and addiction treatment and works to reduce ethnic and racial disparities within the Juvenile Justice system. The Act has facilitated federal-state partnership to ensure a degree of safety to minors.

In addition to the Act, multiple judicial dispositions have tried to create a more conducive juvenile justice sphere. Even though the early 1990s saw an increase in criminal prosecution, judgements from the previous decades tried to create a favourable framework for child offenders. In re Winship the court held that offences must be proven beyond a reasonable doubt for juveniles to be pronounced guilty; the ruling came at a time when the preponderance of evidence approach was followed. In Breed v. Jones the US court provided categorical protection against double jeopardy for minors. Similarly, more recent judgements like Roper v Simmons,  Graham v. Florida, and Miller v. Alabama established that the imposition of death penalties for child offenders is excessively cruel, made it essential to introduce parole provisions in convictions for minors and held that all mitigating factors must be taken into consideration before penalising a minor respectively. Accordingly, the Juvenile Justice Act and similar judgements from various courts have allowed some progress in the juvenile justice sphere and the general tendency of law makers and prosecutors is to create a more conducive framework for minors.


The change in prosecuting minors comes as a welcome change for child rights and development. However, in order to completely end excessive punishments and dispositions, in addition to effective enforcement of the Juvenile Justice and Delinquency Prevention Act, sensitivity training is required. The Act may introduce some essential guidelines; however, until the justice system members (judge, prosecutor, police) are not sensitised via workshops, training sessions, etc., institutional change cannot be achieved. A guaranteed change in child prosecution requires both institutional and social support.

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