The Delinquent “Toddler”

Twenty-first century juvenile justice jurisprudence has focused on the criminal responsibility of adolescents, including, notably, the interface between psychological and neurological development and social accountability. The focus has led to a growing awareness that teenagers should not be equated with or held as accountable as adults. For example, several states, including Connecticut, Illinois, and Mississippi, have raised the age of criminal responsibility from 16 or 17 to 18, with a corresponding expansion of juvenile court jurisdiction. Of potentially greater significance, the principle of diminished criminal responsibility has gained credibility. Witness, for example, the US Supreme Court holding that capital punishment cannot be imposed on persons under the age of 18 (Roper v. Simmons, 543 U.S. 551 (2005)), while life without the possibility of parole cannot be imposed when a juvenile has been convicted of a nonhomicide offense (Graham v. Florida, 130 S. Ct. (2010).) Simultaneously, several states have statutorily restricted the transfer of cases from the juvenile courts to the adult criminal court, partially reversing the late twentieth century “get tough” approach. Overlooked has been the younger or preteen child. Most American states do not maintain a minimum age limitation for juvenile delinquency jurisdiction. Thirty-five states lack any statutory provision, permitting at least the theoretical prosecution of an infant. The remaining 15 have enacted statutes establishing minimum ages ranging from six to 10. The vast majority of American children under the age of 12 may be charged with criminal activity. The vast majority may consequently be subject to detention, confinement in residential institutions, and the adverse collateral consequences of a delinquency finding