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https://doi.org/10.1177/0011128718770817
Crime & Delinquency
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DOI: 10.1177/0011128718770817
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Original Research Articles
Is a Minimum Age
of Juvenile Court
Jurisdiction a Necessary
Protection? A Case Study
in the State of California
Laura S. Abrams1, Elizabeth S. Barnert1,
Matthew L. Mizel1, Isaac Bryan1, Lynn Lim1,
Antoinette Bedros1, Patricia Soung2,
and Michael Harris3
Abstract
Several U.S. states are considering setting or raising a minimum age of
juvenile court jurisdiction. However, there is scant evidence to suggest
if a state minimum age law would protect children from developmentally
inappropriate proceedings beyond existing capacity and competency statutes.
To address this central question, this case study focuses on the state of
California and considers (a) existing state laws, (b) state juvenile crime data,
and (c) opinions of diverse juvenile justice stakeholders. Triangulated analysis
found that a low number of California children below the age of 12 years
are petitioned in juvenile court and most are referred for misdemeanor
or status offenses. Existing legal protections are present yet inconsistently
implemented. A minimum age law would address some of these policy gaps.
1University of California, Los Angeles, USA
2Children’s Defense Fund-California, Los Angeles, USA
3National Center for Youth Law, Oakland, CA, USA
Corresponding Author:
Laura S. Abrams, Professor and Chair of the Department of Social Welfare, UCLA Luskin
School of Public Affairs, University of California, Los Angeles, 3250 Public Affairs, Building,
Los Angeles, CA 90095-1656, USA.
Email: abrams@luskin.ucla.edu
770817CADXXX10.1177/0011128718770817Crime & DelinquencyAbrams et al.
research-article2018
2 Crime & Delinquency 00(0)
Keywords
juvenile justice, California law, juvenile court, capacity, competency.
I’ve seen children as young as eight in juvenile delinquency court. . . . Believe
it or not one kid put a “kick me” sign on the back of a boy. Our client kicked
the kid who was wearing the “kick me” sign, but that’s typical third-grade
conduct. They charged him with battery on school grounds.
—California Public Defender
The minimum age of juvenile court jurisdiction refers to the youngest age that
a child can be referred to a juvenile court for a delinquent act. The United
States lacks a national minimum age standard. As of 2017, 21 states have an
established minimum age law: one state at age 6 years, five states at 7 years,
three states at 8 years, 11 states at 10 years, and one state at 11 (National
Juvenile Defender Center, 2016; Nebraska Juvenile Court, 2017). As such, the
majority of state laws permit the possibility of prosecuting a child, such as the
third grader described above, in a juvenile court. There are several reasons that
involving children in the juvenile justice system can be problematic, including
that court proceedings are developmentally inappropriate for children (Grisso
et al., 2003), formal systems involvement can increase the likelihood of poor
health and future criminal justice involvement (Barnert et al., 2017), and chil-
dren with disruptive behavior may be more effectively handled outside the
formal justice system (Loeber & Farrington, 2000).
California state legislators are currently considering a bill (SB 439) to
establish a minimum age of 12 years for juvenile court jurisdiction. This
would be the oldest minimum age threshold in the nation and the only one to
be aligned with the minimum age recommendation of the United Nations
Convention on the Rights of the Child (Committee on the Rights of the Child,
2007). However, there is a dearth of existing empirical information on mini-
mum age laws and related statutes surrounding capacity and competency.
Nearly all of the literature and policy analysis related to “raising the age” have
been focused on the transfer or waiver of minors (i.e., those below the age of
18 years) to adult criminal court (Monahan, Steinberg, & Piquero, 2015). It is
important to note that this article is not about the waiver or transfer of minors
to adult court; rather, we are investigating state law and policy related to the
minimum age of juvenile court jurisdiction.
Centered on the state of California, our driving question is whether the pro-
posed bill, which would set a minimum age of juvenile court jurisdiction at age
12 years, is a necessary protection for children given the status of existing
capacity and competency statutes. Using multiple data sources and case study
Abrams et al. 3
methodology, we explore the following questions: (a) What demographic char-
acteristics and offenses are associated with children below age of 12 years in
California referred to the juvenile court? (b) What is the scope of existing legal
protections for children in California in regard to juvenile court jurisdiction?
(c) To what extent do juvenile justice stakeholders converge on the perceived
strengths and/or weaknesses of existing protections? (d) Would a minimum age
policy address key policy gaps?
Background and Significance
The Jurisdiction of the Juvenile Court
The federal government sets minimal parameters on state juvenile court juris-
diction, and state law determines age boundaries surrounding the juvenile
court (National Juvenile Defender Center, 2016). As mentioned, the “base-
ment,” or the minimum age of juvenile court jurisdiction in the United States
ranges from 0 to 11 years. The 21 states with minimum age laws exclude
children below a predetermined age threshold from juvenile court prosecu-
tion. In those states, the child is simply considered ineligible for prosecution
based on chronological age.
In states with and without a minimum age law, legal standards of capacity
and competency may also exclude children from juvenile court jurisdiction.
Capacity refers to the cognitive ability that a person must possess to be held
accountable for a crime, including the ability to understand right from wrong
(Gardner, 2009). In the legal context, competency is the ability to understand
the charges and the legal proceedings, to consult meaningfully with counsel,
and to assist in one’s own defense (Ryba, Cooper, & Zapf, 2003). Policies
rooted in capacity or competency are intended to provide prosecutors, defense
attorneys, and judges with guidelines to inform their discretion in decisions
about suitability for prosecution. These two key factors are reviewed below
as they relate to protecting children from unnecessary or developmentally
inappropriate legal proceedings.
The Infancy Defense and Capacity
Under English common law, the infancy defense was expressed as a set of
presumptions in a doctrine known as doli incapax, such that a child below the
age of 7 years was presumed incapable of possessing criminal responsibility.
The presumption was conclusive, prohibiting the prosecution from offering
evidence that a child had the capacity to appreciate the nature and wrongful-
ness of what he or she had done. Prior to the establishment of the juvenile
4 Crime & Delinquency 00(0)
court, the United States imported this standard into broader criminal justice
system and considered children below the age of 7 years to be incapable of
committing any crime based on their developmental stage and expected
immaturity (Walkover, 1983). Youth aged 7 to 14 years were also presumed
doli incapax under the common law (i.e., to lack criminal responsibility), but
at varying degrees and with fewer legal protections for those nearing age 14
years. As the American legal system evolved, children’s rights advocates dis-
agreed with youth in this age group being prosecuted alongside adults and
strived to create a separate justice system that eventually became the juvenile
courts (Bazelon, 2000). As the American juvenile justice system was based
on separation from adult criminal proceedings, the concept of infancy defense
became less relevant in juvenile court. However, as the U.S. juvenile justice
system has become increasingly punitive in treatment and more akin to adult
court, the issue of capacity has re-emerged (Feld, 1998).
In determining capacity, the legal construct of mens rea (the intention or
knowledge of wrongdoing) is concerned with cognitive ability and the fac-
ulty to make choices; it disregards other factors (e.g., values) that may influ-
ence decision making. Any person who has the ability to decide how to act is
deemed to possess criminal responsibility, provided insanity is not estab-
lished (Walkover, 1983). Thus, even very young children may be deemed to
have acted purposefully and with knowledge of the wrongfulness of their
actions. The defense can raise the issue of capacity based on low chronologi-
cal age, cognitive ability, and/or developmental immaturity (Feld, 1998).
Capacity as a protection for young children is highly relevant in states with-
out an established minimum age law and in states with low minimum age
thresholds. However, there is a stark absence of research in the scope and
implementation of capacity laws in the juvenile justice system, particularly
relative to the more robust literature on competency.
Competency to Stand Trial
Protections established by the U.S. Supreme Court and the Sixth Amendment
of the U.S constitution guarantee children a meaningful right to a fair trial (In
re Gault, 1967). Specifically, federal and state laws require that children sub-
ject to juvenile court proceedings must be competent to stand trial. To meet
this standard, the child must satisfy factors in three areas: mental wellness,
intellectual ability, and developmental maturity (Bath & Gerring, 2014).
Within intellectual ability exist specific legal functional abilities, known as
the “Dusky criteria” (Dusky v. United States, 362 U.S. 402, 1960). The Dusky
criteria apply to all criminal defendants but have special relevance to chil-
dren. These criteria for legal competency include basic comprehension of the
purpose and nature of the trial process, capability to provide relevant
Abrams et al. 5
information to counsel, ability to reason about this information in a logical
fashion, and ability to apply information to one’s own situation in a manner
that is neither distorted nor irrational (Grisso, 2006). As of 2015, 21 states
had competency laws specific to juveniles (National Conference of State
Legislatures, 2015; Woolard, Fried, & Reppucci, 2013). States vary in their
implementation of the standards for juvenile competency set forth by Dusky
v. United States. This means that states and often local court jurisdictions use
a variety of techniques when determining competency, often employing an
outside expert to provide testimony to the juvenile court judge.
On measures of abilities relevant to competency, research has found that
youth aged 15 years and younger are more likely to display a level of impair-
ment consistent with adults who are found incompetent to stand trial (Grisso
et al., 2003). In addition, compared to youth found to be competent to stand
trial, youth determined to be incompetent are younger, have severe special
education needs, and have extensive mental health treatment histories
(Baerger, Griffin, Lyons, & Simmons, 2003; Bath, Reba-Harrelson, Peace,
Shen, & Liu, 2015; Warren, Aaron, Ryan, Chauhan, & DuVal, 2003). That
said, children without a cognitive disability can still be found incompetent to
stand trial due to developmental immaturity that is often consistent with a
young chronological age. Existing literature also suggests that many youth
who lack competency do not receive quality competency evaluations, a prob-
lem that also disproportionately affects youth of color (Cross, Bazron,
Dennis, & Isaacs, 1989; Ryba et al., 2003).
Research Gaps
Several U.S. states are currently considering setting or raising the minimum
age of juvenile court jurisdiction (National Juvenile Defender Center, 2016).
However, scant empirical evidence exists to inform these policy decisions,
and existing diversity in state laws make this issue a particularly complex
topic. Presently, the California legislature is debating SB 439, a bill that
would make California the only state in the United States to set a minimum
age of juvenile court jurisdiction at 12. As California is the most populous
state in the nation and often on the cutting edge of criminal justice changes,
this case study can be used as a model to inform research and policy occur-
ring in other states.
Method
An interdisciplinary team including professors and graduate students of
social work, law, public policy, and medicine, as well as two juvenile justice
legal experts conducted an in-depth case study of California law and policy.
6 Crime & Delinquency 00(0)
To address the research questions, the team selected the following research
methods and data sources: (a) textual analysis of California statutes and rel-
evant case law to understand current capacity and competency statutes, (b)
quantitative analysis of state juvenile crime data to illustrate the scope of who
might be affected by a minimum age statute, and (3) semistructured inter-
views with diverse juvenile justice stakeholders in three California counties
to understand the implementation of existing laws. Together, these formed
elements for a triangulated case study (Yin, 2013) and are detailed below.
Legal Analysis
The legal analysis identified relevant legal history related to competency and
capacity statutes for minors in the state of California. California’s juvenile
court code was initially identified in the legal database Westlaw using a Boolean
Terms and Connectors query involving a combination of the following search
terms: juvenile, delinquent, child, juvenile court, and/or juvenile delinquent.
The relevant juvenile court acts were then identified; in this case, it was Welfare
and Institutions Code 601/602. Relevant provisions were collected from the
juvenile code, and relevant cases (i.e., those discussing the issues of juvenile
justice jurisdiction, capacity, competency, diversionary methods, or synony-
mous terms) were identified using Westlaw’s “Notes of Decisions” section.
After reviewing the relevant cases, we also engaged in a broad Boolean
Terms and Connectors query. For example, when focusing on the issue of
capacity for the state of California, we entered the following search terms, lim-
ited only to cases emanating from California state courts: juvenile delinquent/
capacity, odds ratio (OR), juvenile delinquent and capacity. As the search
method generated a large number of cases, we then filtered the results using
West’s Key Numbers System. To identify Key Numbers, we went through the
list of Key Numbers identified in the initial search results and first filtered by
the “Infants” key number. We further filtered our results by selecting additional
key number filters from the “Infants” filter and selected those that involved
capacity, competency, diversionary methods, and synonymous terms. Finally,
to ensure that we had found all relevant cases relating to our research questions,
we conducted additional specific and general Boolean Terms and Connectors
queries. We then reviewed the search results from the general and specific
Boolean Terms searches and identified the most relevant case law.
Analysis of State Juvenile Justice Data
The California Department of Justice (DOJ) supplied data on cases involving
children below the age of 12 years who referred for delinquency from 2010
Abrams et al. 7
to 2015. The California DOJ Criminal Justice Statistics Center collects infor-
mation on the juvenile court and probation systems from 54 of 58 California
counties. County probation offices report data monthly to DOJ to track refer-
rals to juvenile probation through disposition (e.g., case dismissal). These
data do not include information about point of arrest. The research team
examined probation referrals and dispositions for children below the age of
12 years for the year 2015 (the most recent year that data were available) and
a descriptive review of the 5 prior years. Although many cases had duplicate
charges with unique identifiers, the researchers counted separately only refer-
rals that took place on different dates within the data set. In addition, if a
minor was referred on the same day for multiple charges, we analyzed the
“highest level” charge. This method is consistent with state DOJ analysis
(Criminal Justice Statistics Center, 2015).
In regard to demographics, the California DOJ coded cases into 19 race/
ethnicity categories and then collapsed those into the following six catego-
ries: American Indian, Asian/Pacific Islander, Black, Hispanic, White, and
Unknown. Age refers to the age of the youth at referral. Referral means a
minor was brought to the attention of the probation department for alleged
behavior under Welfare and Institutions Code Sections 601 and 602. A refer-
ral offense is the specific charge of a referral. Multiple referral offenses can
be made at one time for a single child’s referral. A petition is the legal docu-
ment filed by the district attorney (DA) for a case to proceed for formal pro-
cessing with the juvenile court. Disposition refers to a decision or action
taken by a probation officer or juvenile court as the result of a referral.
Semistructured Stakeholder Interviews
We purposively sampled key informants from three large California counties
(one southern, one central, and one northern) to participate in semistructured tele-
phone interviews. The counties were selected to provide a mix of geographic
locations and variation in demographics, poverty rate, and population density
(see Table 1). Although they had similar percentages of White residents, they
varied widely in their populations of Latinos and Asian Americans and moder-
ately with African Americans. The varying rates of education, poverty, and popu-
lation density also indicate that the three counties provided diverse perspectives.
For each county, we sought to interview at least one key informant from the
following five groups: a juvenile court judge, a juvenile public defender (PD),
a probation chief or juvenile division director, a police chief, and a district
attorney (DA). Our response rate for queries about the research via email was
70%, and in some cases the initial invitation was passed along to someone
working under the original invitee. We completed a total of
8 Crime & Delinquency 00(0)
14 distinct interviews with 15 juvenile justice stakeholders, including five
juvenile probation chiefs/division directors, two PDs, two police chiefs, four
DAs, and two juvenile court judges.
A member of the research team conducted the interviews via telephone and
recorded them using a digital recording device. The interview guide included
questions about minimum age policy, implementation of the law, and alterna-
tives to juvenile justice involvement and lasted between 30 and 50 min. We
sought examples of how counties understand and implement laws related to
children’s capacity and competency, with “children” defined by the research-
ers as minors under age 12. These interviews took place prior to the introduc-
tion of California SB 439, so stakeholders discussed the idea of a minimum
age law without a concrete proposal to draw from. Interviews were profes-
sionally transcribed verbatim and analyzed by three members of the researcher
team for salient content across stakeholder types and counties. We developed
coding rubrics and matrices to drill down to the main themes, including areas
of convergence and divergence. We also sought to identify specific policy
implementation issues and gaps. The interview data were then triangulated
with the legal analysis and the quantitative data to produce a rich case study of
California law and policy. The UCLA Office for the Protection of Human
Subjects approved all aspects of the study protocol.
Results
In this section, we begin by presenting an overview of existing California juve-
nile law and then report the California DOJ data on children below the age of 12
Table 1. County Demographics, 2016.
Demographic Southern Northern Central
Race
African American 9.1% 2.8% 5.8%
Asian American 15.1% 36.5% 10.8%
Latino 48.5% 25.9% 52.8%
Multiracial 3.0% 4.1% 3.1%
White 26.5% 32.3% 30.0%
Education
High school graduate or higher 77.7% 87.1% 73.8%
Bachelor’s degree or higher 30.8% 49.1% 19.7%
Persons in poverty 16.3% 9.3% 25.5%
Population per square mile 2,419.6 1,381.0 156.2
Source. U.S. Census Quick Facts, 2016.
Abrams et al. 9
years referred to juvenile court. We then present the legal and interview data
together on the topics of competency and then capacity, examining the basis of
existing law as well as perceptions of implementation and effectiveness. We con-
clude by presenting stakeholder opinions on the relative importance of a mini-
mum age law in relation to capacity and competency statutes and procedures.
Children Below the Age of 12 Years in California Juvenile Courts
Section 602 of the California Welfare and Institutions Code (W & I Code)
states that the juvenile courts have jurisdiction over “any person” below the
age of 18 years who is alleged to have violated a law with the potential to be
declared a “ward of the court.” The major exception to this policy refers to a
set of circumstances in which minors aged 14 years and above may be referred
to adult criminal court under W & I Code 707. As mentioned previously, no
minimum age of juvenile justice jurisdiction is included in W & I Code 602.
The DOJ data provide a picture of the number of children below the age of
12 years referred to juvenile probation under W & I Code 602. It is important to
note that in California, a referral does not necessarily mean that the child’s case
is petitioned or moved to court; rather, following a referral to juvenile probation
(often by an officer, but could also be a parent or other authority), the county DA
office assesses and decides which cases to pursue. In 2015, 590 children aged 11
years and younger received a total of 687 referrals to probation from law
enforcement, school, or other sources. These 687 referrals represented just 0.8%
of the total number of referrals in California in 2015 (N = 86,539). Of these 590
children, 25% were White, 24% were African American, and 45% were Latino/a.
Of note, African Americans were over-represented in these figures relative to
the statewide child population in which 28% of children aged 5 to 11 years (the
same age range as our sample) were White, 6% were African American, and
53% were Latino/a (National Center for Health Statistics, 2016).
Table 2 indicates the number of referrals by age. As shown, the youngest
child to receive a referral was 5 years old; the referral offense was “curfew
violation.” The youngest child with a sustained petition, meaning that the
referral was found to be true in juvenile court, was 7 years old and officially
recorded as “other misdemeanor.” Regarding charge type, of the 687 refer-
rals, 411 were for a misdemeanor, 40 were for a status offense, and 236 were
for a felony. These lower level offenses are consistent with longitudinal data
showing that most referrals for those who are 11 years and below are for
minor and nonviolent offenses; from 2010 to 2015, no young child had a
sustained petition for homicide, manslaughter, or rape.
Referrals to juvenile probation that were subsequently petitioned in juvenile
court or later sustained by the court were rare. Among the 687 referrals, only
10 Crime & Delinquency 00(0)
100 of 687 (15%) resulted in a petition being filed, and 59 of the 687 (9%)
ended in a sustained court petition. Of the 59 petitions that were sustained, 37
were for a misdemeanor, one was for a status offense, and 21 were for a felony.
Last, of the 687 referrals, only 30 (4%) ultimately resulted in the disposition for
a child to be a ward of court—the most severe outcome and results in an out-
of-home placement. As case flows progressed, African American children had
increasingly higher rates of petitions filed, petitions sustained, and wardship
compared with children from all other racial/ethnic groups.
Capacity: Law and Implementation
Legal analysis. Although W & I Code 602 states that the juvenile courts
have original jurisdiction over youth below the age of 18 years charged
with a delinquent act, the California Supreme Court has held that jurisdic-
tion is inappropriate when the child “lacks capacity” to willfully under-
stand or participate in a criminal act. The California Supreme Court case
In re Gladys R. (1970) held that children below the age of 14 years pre-
sumptively lack the capacity to commit crimes. However, the Court also
held that although it is presumed that children below the age of 14 years
lack the requisite capacity, it may be rebutted. Hence the burden is on the
state to demonstrate by clear proof at the initiation of a juvenile proceed-
ing that a child below the age of 14 years has the requisite capacity to have
committed the alleged crime (In re Gladys R., 1970). If the state is unable
to demonstrate that the child has capacity, then the juvenile court no longer
has jurisdiction over the case. For example, in In re Michael B. (1983), a
9-year-old boy accidentally shot his playmate with his father’s gun, and
the court ruled that the case should be dismissed because the young boy
lacked criminal capacity. As a result of In re Michael B., California law
codified the age threshold of 14 years for a presumption of capacity in Sec-
tion 26 of the California Penal Code with children below 14 years pre-
sumed to lack capacity (CA Pen. Code §26, n.d.).
Table 2. Number of Referrals of Children Below Age of 12 Years in California,
2015.
Age of child (years) 5 6 7 8 9 10 11 Total
Number of total
referrals
1 0 12 22 64 136 452 687
Total Percentage 0.1 0 2 3 9 20 66 100
Abrams et al. 11
When the issue of capacity is raised, California case law dictates that sev-
eral factors should be examined to determine if the minor appreciates the
wrongfulness of his or her conduct. These factors should include the child’s
age, experience, and general understanding; parent testimony may also be
taken into account (In re Gladys R., 1970). The California courts have held
that the closer the youth is to age 14 years, the more likely that she or he
appreciates the wrongfulness of her or his conduct (In re Paul C., 1990). In
later decisions, California courts have also decided that circumstances of the
crime’s commission or concealment can also be considered when determin-
ing whether the child appreciates the wrongfulness of her or his conduct (In
re Joseph H., 2015; In re Paul C., 1990).
Interview findings. Stakeholders across types and counties were generally aware of
“Gladys R.” law stipulating that a capacity assessment is required before charges
can be formally filed for children below age 14. Interviewees conveyed that
capacity is most often established through the completion of a “Gladys R.” ques-
tionnaire that is administered to the child by the arresting police officer when the
child is taken into custody. The Gladys R. questionnaire is intended to assess if
the child knows right from wrong. However, interviewees explained that prior to
this process, law enforcement officials often have the discretion over whether to
cite children below age 14 who are alleged to have committed low-level delin-
quent acts. As one police chief explained: “It all just depends on the crime, and
the officer does have a lot of discretion.”
Analysis of the interview data also indicated that county capacity policies
and procedures may conform to the Gladys R. standard “on paper,” yet there
are many questions and unknowns regarding implementation of the law. For
example, counties use different types of officials to administer the capacity
assessment, which may include law enforcement (at time of arrest), probation
department officials, and prosecutors. They often will examine multiple factors
in determining capacity beyond the assessment. As one probation officer stated,
severity of the crime and the victim’s wishes might be taken into account when
determining capacity:
Well, it’s [whether the Gladys R. is used is] kind of the discretion of the officers,
and the victim’s wishes weigh heavy. If the victim of a crime contacted the
district attorney’s office, for an example, and says, ‘hey, my house was broken
into. I feel violated. They tossed my house. My drawers are all out. . . . We
don’t feel safe. We want somethin’ to be done about this.’ Now the DA might
say, ‘wow, everybody’s up in arms about this. This is kind of a big deal that
these people feel victimized.’ They might contact law enforcement like, “hey,
what did the kid say when they were questioned regarding this burglary?”
12 Crime & Delinquency 00(0)
Multiple stakeholders, including law enforcement officials, were unable
to specify any trainings required or offered to police offers on how to admin-
ister of the capacity assessment. Moreover, no stakeholders reported having
access to reliable data on how often the Gladys R. assessment prevents a
child from receiving a referral or what officers do when they find that a child
lacks capacity. Probation chiefs, DAs, and police chiefs across the three
counties reported that they do not receive any notification if a Gladys R. is
administered and substantiated in the process of an arrest. In that case, one
DA suggested, their office “wouldn’t hear of it.”
Stakeholders also identified several ways that DAs circumvent the law to
substantiate capacity. For example, during the administration of a Gladys R.
questionnaire, law enforcement assesses a youth’s ability to appreciate the
wrongfulness of his or her conduct. If the interview yields conflicting evi-
dence, an interview with a parent can also prove capacity, which some inter-
viewees reported may raise ethical concerns. Interviewees explained that
parents are often unaware that their responses could be used in the capacity
assessment of their child. As one DA stated,
Most parents, even if they’re trying to protect their kids, are never going to say
that they didn’t teach their kids the difference between right and wrong. I believe
parents don’t want to say that because it makes them look like not good parents.
If a parent asserts to a judge that he or she did indeed teach a child right
from wrong, this can be viewed as sufficient evidence to prove that a child
had the capacity to commit a crime, placing the parent in a “no-win” situa-
tion. One PD stated: “They put the parent of the child into this just really
awful situation where they’re actually testifying against their child.” In addi-
tion, in the absence of all forms of primary testimony, circumstantial evi-
dence can be used to assert a minor’s capacity. For example, one DA explained
that hiding a stolen device, such as an iPod, in one’s backpack to be sufficient
evidence to establish that a child understood the wrongfulness of the act and
thus had criminal capacity.
Last, stakeholders across the board concurred that the Gladys R. standard
is rarely, if ever, challenged in court, partly because capacity proof is sup-
posed to be settled prior to charges moving forward. One DA said, “It’s
extremely rare to bring it up at trial. I’ve seen it seriously litigated maybe
three times in the last six years.” Thus, while stakeholders agreed that the
Gladys R. capacity protection is an important state law for minors, it may not
protect children from prosecution, particularly when the DA sees a compel-
ling reason to pursue the case.
Abrams et al. 13
Competency: Law and Implementation
Legal analysis. The state of California has statutorily enacted a juvenile com-
petency standard in Section 709 of the California Welfare and Institutions
Code. A child is incompetent to stand trial in juvenile court if
[S]he/he lacks sufficient present ability to consult with counsel and assist in
preparing his or her defense with a reasonable degree of rational understanding,
or lacks a rational as well as factual understanding of the nature of the charges
or proceedings against him or her. (CA Welf. & Inst. Code §709)
If the child is unable to effectively assist his or her attorney or is unable to
understand the nature of the criminal charges against him or her, then the
child is determined to lack competency and deemed unfit to stand trial. Any
party in the court proceedings—including the judge, prosecutor, or defense—
may raise the issue of the child’s competence. In the case of In re RV (2015),
a California appellate court held that the issue of the child’s competence to
stand trial should only be raised after the child’s capacity has first been estab-
lished. Furthermore, the party that raises the issue of incompetence then has
the burden of proving by a “preponderance of the evidence” that the child is
incompetent. This means that the party raising the challenge must provide the
evidence that the child is unfit to stand trial.
If the issue of competency is raised, Section 709 of the California Welfare
and Institution Code requires that the juvenile court judge suspend the pro-
ceedings until a special competency hearing can take place (CA Welf. & Inst.
Code §709). Section 709 requires that the judge must then appoint an expert
in childhood and adolescent development to evaluate whether the child suf-
fers from a mental disorder, developmental disability, developmental imma-
turity, or another condition that could make the child unfit to stand trial (CA
Welf. & Inst. Code §709). Importantly, California courts have held that a
developmental disorder or mental disability is not required to establish
incompetence. Instead, the determination of a child’s competency is depen-
dent on a variety of factors, including the child’s developmental immaturity
and age. It follows that the younger the child, the more likely it is that he or
she is unfit to stand trial (In re Timothy J., 2007). Ultimately, the judge must
consider the unique facts of the case along with the expert’s testimony to
determine whether the child is competent to stand trial (In re RV, 2015; In re
Timothy J., 2007). If a child is deemed incompetent, a judge may order “res-
toration” services to prepare that child for competency or to allow him or her
to mature before standing trial. These services may be rendered in secure
detention or at home, depending on the seriousness of the crime.
14 Crime & Delinquency 00(0)
Interview findings. Stakeholders in all three counties were aware of county-spe-
cific mechanisms to implement the provisions of California Welfare and Insti-
tutions Code 709. For example, some county protocols mandate a team meeting
of experts around competency, whereas others mandate an independent, expert
evaluation to be submitted to a judge within a given number of days. Across the
different roles, stakeholders felt that competency laws were an important pro-
tection for youth. That said, they also noted several barriers to raising the com-
petency standard in juvenile court. For example, the intensiveness and cost
associated with the competency process can result in avoiding the assessment
and potential restoration processes by dismissing the case or taking a plea deal.
One stakeholder described that the level of complexity and expense pushes
court actors to resolve cases dealing with competency more quickly (with a
sentence of diversion, community service, or probation) rather than moving to
a lengthy and expensive coordinated process. As one judge stated, “My court
and many other courts will bend over backwards when competency starts to
rear its head to try to figure a way to resolve the case without raising that issue.”
PDs and DAs also stated that they were more inclined to look for a plea deal to
avoid a potentially lengthy competency restoration process.
Time limits to achieve competency are varied and often contested by
stakeholders. Most agreed that competency cases take too long to be resolved,
and by the time they are, the child has matured beyond the person he or she
was at the time of the crime. Several interviewees expressed that this is a
potential violation of due process. One probation chief stated:
They just didn’t have the ability to understand right from wrong at that moment in
time, and then somehow that goes away. It’s like, they’re competent now, and so
they’re competent to stand trial on what occurred two years ago. It just baffles me.
The prosecution/law enforcement participants expressed that they often
have to challenge the time limits to follow through on a case, confirming that
it can be several years after the crime.
Although most youth are sent home to receive competency restoration
services, they can also be detained in a juvenile hall or another out-of-home
placement. According to the PDs, some children are unjustly detained while
receiving costly competency restoration services, and whereas some counties
have time limits for detention around competency restoration, others do not.
As one probation chief described, the juvenile hall becomes a “holding place”
for youth with developmental delays and mental health challenges as well as
those of very young age. That same probation chief believed that the juvenile
hall is inappropriate for competency cases.
Abrams et al. 15
In sum, a broad agreement was found across counties and stakeholders
that competency protections are of the utmost importance but remain a “gray
area” in definition and implementation. For example, one judge was satisfied
if a child learns to memorize “what a prosecutor is and what a misdemeanor
is and things like that, even if they [the children] don’t really have the capac-
ity to meaningfully apply those concepts to their own situation.” As a result
of these gray areas, several stakeholders questioned the legitimacy of current
county competency policies, particularly with regard to younger children and
those with developmental disabilities.
Merits and Risks of a State Minimum Age Law
Stakeholders were not uniform in their opinions about the benefits or draw-
backs of a potential California minimum age law. There were three categories
of responses: those in strong favor of such a law, those opposed, and those who
saw the need for such a law but not at the expense of existing protections.
Those in favor of establishing a state minimum age law spanned stake-
holder roles with the exception of the DAs, who were uniformly opposed.
Supporters viewed a minimum age as a necessary protection against unclear
and inconsistently applied capacity and competency statutes. A minimum age
law might also eliminate expensive and unnecessary competency proceed-
ings for younger children. One probation chief stated, “I think it’s insane that
we don’t have an age limit, that we could book—that you could book an eight
year old. I think that is absurd.” Others argued that a minimum age law could
reduce racial disparities among young children referred to court and that it
represented a more rational response to children in need. One PD talked
about a case of a 12-year-old child who lived in a transient motel and who
was prosecuted for stealing a peanut butter cup: “If they needed to do some-
thing with him, it seems that it was a situation where the family—where they
needed to focus on more than just him and what was going on with him.”
Those opposed to a minimum age law argued that current statutes in California
work well to protect children from unnecessary court intervention and believed
that California should make decisions about which children belonged under the
jurisdiction of the juvenile court on an individual basis. One DA said, “I think you
always have an eye towards age, but setting some sort of standard or minimum or
maximum or whatever it may be—that doesn’t sit well with me.” Another DA
expressed that this is not a problem that should be addressed through legislation:
This isn’t an epidemic that you’re studying here. I think to set strict rules, to
have legislators, which is what it would be, setting strict rules and they’re not
experts in the system is a dangerous thing. I don’t think that’s a good idea.
16 Crime & Delinquency 00(0)
Those opposed to a minimum age law also believed that prosecution
should always be an option, particularly in the case of a violent crime.
Last, some stakeholders expressed reservations that a minimum age law,
while well meaning, might have the unintended effect of compromising
existing capacity and competency protections. For example, a law could
potentially contradict the current Gladys R. capacity standard of age 14 years,
resulting in broadening the scope of cases that are petitioned in the juvenile
justice system. Another point of uncertainty was whether or not a minimum
age would be able to provide flexibility in accounting for key developmental
differences among children. One judge stated when weighing these options,
Many times I see kids come to court and they’re just obviously too small to be
here. Sometimes I’ll see a 6-foot-tall 12-year-old who’s committed serious
crimes. I’m not sure an arbitrary age is going to address that kid or those crimes.
Discussion
This exploratory case study provides much needed empirical insight into ques-
tions concerning the potential for a state minimum age law to protect children
below the age of 12 years beyond existing statutes. The minimum age of juve-
nile justice jurisdiction is uncharted research territory, despite current legisla-
tive proposals to establish or raise existing minimum age boundaries. Based on
our analysis, here we appraise existing protections for young children in
California and consider if a minimum age would address identified policy gaps.
Juvenile Court Jurisdiction and Young Children
Although California is one of the many U.S. states lacking a minimum age law,
the legal analysis found that key state capacity and competency statutes are
designed to protect children from developmentally inappropriate or harmful
proceedings. Yet the question remains, are these existing protections adequate to
meet the intended goal or protecting children? Relative to the juvenile court
population as a whole, only a small proportion of probation referrals involve
children below 12 years and even fewer are petitioned in court. Thus, the ques-
tion remains whether the capacity and competency laws successfully protect
those few children who remain vulnerable to more long-standing exposure to
the juvenile court system through adjudication, detention, and/or wardship. This
is particularly relevant for African American children, a population we found to
have disproportionate overrepresentation in the justice system at young ages.
Stakeholders generally agreed that important capacity and competency laws
exist to protect children from developmentally inappropriate prosecution, but
Abrams et al. 17
counties struggle to achieve fair and consistent implementation of these laws.
With regard to capacity, most stakeholders, even those in different positions
(e.g., PDs and DAs), were aware of the Gladys R. law and felt favorably about
its intent. Yet, it appears that there is little consistency in who administers or
reviews the assessment and the extent to which capacity can be raised in the
case of a more severe crime or with pressure to proceed from the victim. More
concerning, the ease with which the capacity threshold can be met and the
unstandardized administration and documentation of the Gladys R. question-
naire calls into question the efficacy of Gladys R. to mitigate developmental
inappropriate legal proceedings.
Competency is likewise protected for minors according to California law, yet
questions surround how to determine competency and what resources should be
expended in competency restoration. Stakeholders generally agreed that compe-
tency proceedings, especially with regard to children, often put the court and
families in an awkward position. Once the question is raised, it is more conve-
nient for parties to settle rather than to engage in a time-consuming and expen-
sive process of competency evaluation and/or restoration. Moreover, counties
implement state law differently through various competency protocols that rely
on the availability of an expert or set of experts to provide testimony. Last, stake-
holders agreed that the competency process can drag on for several years, poten-
tially detaining children in the process and then adjudicating them for crimes
that they may not even remember. As with capacity, there is little data or careful
study to fully understand how these competency standards are operating.
Directions for California and Beyond
Although few children below the age of 12 years are subject to juvenile court
prosecution in California relative to the group as a whole, key policy gaps remain
in protecting young children from unnecessary or developmentally inappropriate
treatment. If enacted, a state minimum age law would increase uniformity across
diverse counties, thereby eliminating capacity and competency assessments that
are currently unevenly applied and that, as respondents reported, are often unnec-
essarily burdensome for families. Specific to the case of California, it appears
there is no clear-cut way to legislate a better capacity law to improve the prob-
lems with implementation specified in Penal Code 26. Thus, a benefit of a mini-
mum age law would be to uniformly protect children below the age of 12 years
from faulty implementation of the state’s intended capacity protections.
Moreover, a minimum age law might benefit the state of California by cur-
tailing hefty delays and costs associated with competency restoration.
Importantly, chronological age is not always a direct proxy for developmental
maturity, and defenses related to competency would still be applicable for any
18 Crime & Delinquency 00(0)
child, including those above a minimum age threshold should it be established,
particularly those with intellectual disabilities. Last, although a minimum age
law might not remedy all levels of systemic racial disparities, it might protect
African American youth from early, disproportionate tracking into the justice
system. In all, a minimum age law is by no means a panacea, but it would
address some of the identified inconsistencies in current policy.
Limitations
Several limitations warrant mention. Although we obtained the best available
juvenile justice data, it still did not contain details about case flow through the
system. Likewise, a lack of clarity exists about what happens to the majority
of children below the age of 12 years who are arrested or referred to juvenile
probation but not formally petitioned. This is important information to obtain
for a follow-up study. Moreover, we purposively sampled three large counties
in the northern, southern, and central regions of California, but we did not
ascertain perspectives from smaller California counties, which may be an
important gap to address in future research. In addition, the DOJ data contain
critical information pertaining to juvenile court referrals, yet important infor-
mation gaps remain. These data do not relay data on arrests that were dropped
due to Gladys R. or the number of cases delayed by competency proceedings.
When asked, county stakeholders indicated that this information was not rou-
tinely kept. Future research needs to more closely monitor case flow from the
time of arrest through the capacity assessment and subsequent referral.
Conclusion
In conclusion, children below age 12 are a small group in relation to the larger
pool of minors under juvenile court supervision, but young children are indeed
particularly vulnerable, especially when deeper system involvement occurs
(Barnert et al., 2017). One of the most interesting facets of this study was dis-
covering the absence of data or discussion about juvenile minimum age laws
and capacity and competency laws and proceedings. This study begins to
unravel this “black box” of law and policy. Through an innovative case study,
we find that existing laws are complex and unevenly implemented in California.
Using similar methodology, similar studies could be replicated in other states
and jurisdictions. In doing so, research can begin to amass more knowledge on
the implementation of effective and fair policies for vulnerable children.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research,
authorship, and/or publication of this article.
Abrams et al. 19
Funding
The author(s) disclosed receipt of the following financial support for the research,
authorship, and/or publication of this article: The resaerch associated with this article
was funded by a Transdisciplinary Seed Grant from the University of California, Los
Angeles, Office of the Faculty Senate and a pilot grant from the UC Criminal Justice
and Health Consortium.
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Author Biographies
Laura S. Abrams, PhD, is Professor and Chair of the Department of Social Welfare
at UCLA Luskin School of Public Affairs.
Elizabeth S. Barnert, MD, MPH, is a pediatrician and Assistant Professor of
Pediatrics at the UCLA David Geffen School of Medicine.
Matthew L. Mizel, MSW, is a doctoral candidate in the Department of Social Welfare
at UCLA Luskin School of Public Affairs.
Isaac Bryan is an MPP candidate in the Department of Public Policy at UCLA Luskin
School of Public Affairs.
Lynn Lim, MSW, is a graduate of the Department of Social Welfare at UCLA Luskin
School of Public Affairs. She is currently working in community mental health as s
clinical therapist in Los Angeles.
Antoinetee Bedros graduated from the UCLA School of Law with a JD and a Masters
in Public Policy. She is a licensed attorney in the State of California but is currently
practicing in Washington, D.C.
Patricia Soung, JD, is the Director of Youth Policy at the Children’s Defense Fund,
California.
Michael Harris, JD, is the Senior Director of Juvenile Justice at the National Center
for Youth Law. Michael works on reducing incarceration and racial disparities in
local and statewide juvenile corrections systems, and on cases challenging the
“school-to-prison pipeline” nationally.
