Abstract

During the 1980s and 1990s, fear of a juvenile crime wave spurned legislation that expanded the reach of adult criminal court. An “adult time for adult crime” ideology took hold, and between 1992 and 1997, 44 states and the District of Columbia enacted or expanded provisions to transfer children to adult courts. Although in the past two decades courts and state legislatures have exhibited a deeper understanding of the neurological differences between children and adults, most states have retained the ability to criminally prosecute children under 18 if they are charged with certain crimes. As a result, prosecutors can often use the threat of adult criminal charges as a bargaining chip against children in juvenile court plea negotiations. This practice drastically raises the stakes in a process that adolescents are developmentally ill-equipped to handle.

In this article I consider how juvenile defenders might mount an attack against prosecutors who wield the threat of adult prosecution against children in juvenile court. I argue that the practice of threatening children with adult prosecution is likely to disproportionately harm Black and Latinx youth, who are routinely seen as older, more dangerous, and more responsible for their actions than their white peers. Additionally, I review findings that adolescents struggle to make risk-reward calculations in situations characterized by high emotion or stimulation, thereby indicating that adolescents are at a distinct disadvantage in the plea bargaining process. I discuss promising Supreme Court decisions rooted in adolescent neuroscience that limited the most extreme sentences for youth—capital punishment and juvenile life without parole in non-homicide offenses—after recognizing that children are fundamentally different from adults. These decisions provide a strong basis for bringing prosecutorial vindictiveness claims against prosecutors who wield the threat of adult charges against children in juvenile court. Although the Supreme Court in its newest composition has not explicitly overruled these decisions, its most recent decision on youth sentencing, Jones v. Mississippi, seriously undermined them. Jones poses a grave danger to children in the adult criminal legal system, making it all the more important to keep them out of it.