Raise the Age: Prosecuting Minors as Minors

By Kyle Sherard

What is an adult?

While that may seem like an easy question, North Carolina criminal law has not been so clear on the answer. For the last century, an adult—for the sake of criminal prosecution—was anyone sixteen years or older. That changed in June with the passage of the Juvenile Justice Reinvestment Act. The bill was drafted and passed by the North Carolina legislature as part of the 2017 state budget. Governor Roy Cooper signed the bill into law on June 19, 2017.

With the Act’s passage, North Carolina became the last state in the country to officially recognize sixteen and seventeen year olds as juveniles, rather than adults. Naturally, there are plenty of caveats and exceptions. These are discussed in a subsequent article. But before we can properly address the new law, the Maroons felt it was important to take a brief look at how we arrived at the answer to the above question: that an adult is a person eighteen years or older.

Durham County District Court, judges bench. Photo by Kyle Sherard.

Durham County District Court, judges bench. Photo by Kyle Sherard.

Creating a Juvenile Standard

Juvenile criminal justice has taken a number of different paths over the last two centuries, both in North Carolina and the greater United States.

Throughout the late eighteenth and much of the nineteenth centuries, juveniles who found themselves subject to the criminal justice system were treated as adults. This primarily resulted from the importation of existing English common law into the colonies, and subsequently the new American government. Under these common law principles, it was generally understood that children under the age of seven were incapable of possessing criminal intent—thus, no charges. Minors between the age of seven and fourteen were presumed incapable. However, this presumption could be overcome if sufficient evidence of intent or purposeful conduct were presented. If the presumption was in fact overcome, a child could be tried and convicted as an adult. Juveniles over the age of fourteen were prosecuted and punished as adults.

During this early period of American history, there were no separate courts or established judicial procedures for juveniles, nor were there alternative punishments for those found guilty. Rather, juvenile prosecutions took place in adult courtrooms. Guilty children were sent to adult jails. Guilty children were even sentenced and put to death in a handful of rare and extreme cases.

The first waves of juvenile criminal justice reform arose at the turn of the twentieth century and were often centered around state-owned schools and hospitals.

In 1915, North Carolina passed the Probation Courts Act. The law took into consideration a defendant’s age by sub-categorizing juveniles as “dependent” or “delinquent.” Once an individual was deemed a juvenile, they were able to benefit from judicial alternatives to traditional criminal punishment. Instead of jail, juveniles could be put on probation and assigned a probation officer or committed to a state or county training school. The Act also provided for separate trials for juveniles, a separate process for maintaining juvenile criminal records, and limitation on contact between troubled youth and adult criminals.

This act was repealed only a few years after passage. But much of the language was adopted in a replacement act called the Juvenile Court Statute of 1919. Under this new Act, juvenile and delinquent individuals were still prosecuted separate and apart from adults. However, the Act’s procedures were loosely defined and adjudged on a case-by-case basis. This often resulted in disparate treatment of minors based simply on the prosecutor’s discretion and social standing.

The most important feature of the Act was its language. The Act defined “delinquent” children as those under the age of 16. This became North Carolina’s new standard for qualifying minors. Thus, from 1919 and until 2017, sixteen and seventeen year olds were legally classified, charged, and prosecuted as adults.

While fourteen and fifteen year olds were generally classified as juveniles, they could still be transferred to criminal superior court and tried as adults. This was typically reserved for felonies and other high-profile crimes and cases. However, the social climes of the period must also be considered. In the first half of the 20th Century, many “transfer” trials were conducted behind the tide of the Jim Crow south, in a time when such transfers and convictions were motivated by mob rule. Charges could be, and often were filed, and indictments billed, simply to chill backlash and uproar from angry white mobs.

George Stinney’s Mugshot. Taken in Spring of 1944, when George was only fourteen years old.  

George Stinney’s Mugshot. Taken in Spring of 1944, when George was only fourteen years old.  

Possibly the lowest point in modern U.S. judicial history came in 1944. Late that spring, George Stinney, a fourteen-year-old African American child from a rural South Carolina town, was charged and convicted of the first-degree murder of two white girls only a few years younger than George. He was tried as an adult in a trial that lasted less than one day. No physical evidence was presented connecting George to the murders, much less the scene of the crime. Rather, officers testified that George had simply confessed to it all on his own accord. George’s appointed attorney made no objections. The all-white jury deliberated for only ten minutes before returning with a guilty verdict. George Stinney was sentenced to death and executed by electric chair in Columbia, SC on the evening of June 16, 1944. It would be another 70 years before his conviction was posthumously vacated.

As the individual states slowly began raising the age of majority to eighteen, several criminal cases cycled through the federal courts system. Each one created and expanded new constitutional protections for minors and juveniles facing criminal prosecution.

But it was not until 1988, in Thompson v. Oklahoma, that the Supreme Court found that the execution of a person under the age of sixteen was unconstitutional. (The key operative word: under.) A year later, the Court ruled in Stanford v. Kentucky, that the Eighth Amendment’s bar on cruel and unusual punishment did not prohibit the execution of sixteen-year-olds. The Stanford Court noted that the decision to bar such executions should be made locally—i.e. by the states themselves—and not dictated by the federal courts. This ruling remained in place until 2005, when the Court held that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on offenders who were under the age of eighteen when their crimes were committed. The case, Roper v. Simmons, officially overruled Stanford.

As the juvenile death penalty was slowly eroded, other harsh punishments remained intact. Chief among such punishments was life in prison without parole. Or, put another way, death by jail. That changed in 2010, when the Supreme Court held in Graham v. Florida that the Eighth Amendment's Cruel and Unusual Punishments Clause prohibits juvenile offenders from being sentenced to life in prison without parole for non-homicide crimes. In Miller v. Alabama (2012), the Court narrowed that decision and found that the Eighth Amendment also prohibited the courts from sentencing juveniles to life in prison without parole. Ordinarily such a ruling would only apply to the case brought before the Court, and all of those following the ruling. However, in 2016, the Court, in Montgomery v. Louisiana, retroactively applied Miller to all juveniles convicted of homicide and sentenced to life in prison without parole.

During this period, the State of North Carolina continued refining its own criminal code and juvenile justice system. In the 1970s, the ability to commit juveniles to training schools was sharply limited by statute as to affect only exceptional cases of juvenile delinquency. Meanwhile, juveniles sentenced to prison were typically held and housed in adult corrections facilities. The General Assembly (GA) ceased this practice in 1984 and creating a network of juvenile correctional facilities. In 1998, the GA passed the Juvenile Justice Reform Act, creating, among other things, the Department of Juvenile Justice and Delinquency Prevention. The department was charged with encouraging juvenile offense prevention, administrative restructuring, and legal refinement. Over the next decade, the state continued to refine and consolidate the juvenile system to a handful of departments and campuses scattered across the state.

Throughout all of this restructuring, however, “juveniles” encompassed only those individuals fifteen years of age and younger. Everyone else was and is considered an adult. This means that sixteen and seventeen-year-olds are to this very day prosecuted as adults, unless, that is, a prosecutor opts to pursue prosecution in juvenile court. Nonetheless, those minor-adults found guilty are incarcerated in adult jails and prisons.

The punishments throughout this article are the extremes of our criminal system. Naturally, there are lesser offenses with lesser punishments that don’t make the stomach coil. Sixteen year olds can be, and often are, prosecuted as adults for minor crimes, such as shoplifting and possession of marijuana. The punishments are often light by comparison, requiring community service and payment of court fees. Still others result in terms of probation. However, in reviewing the impact of the juvenile legal framework, it is necessary to examine the fullest and gravest extents of the law. In the next article, we’ll see how raising the age of adulthood from sixteen to eighteen alters our present system.