Minority Rule: Redefining the Age of Criminality


In the childhood years leading to Cristian Fernandez’s arrest and indictment, violence and tragedy pursued him relentlessly and left indeliblescars. When he was only twelve, his two-and-one-half-year-old half-brother, David Galarraga, died in his care, triggering both understandable outrage and unprecedented treatment in the criminal justice system. The Florida State Attorney General elected to prosecute Cristian as an adult, charging him with first-degree murder in the death of his brother. At twelve, Cristian became the youngest person to be charged as an adult in the history of Jacksonville. No one who looked at Cristian would consider him old enough to buy liquor, drive a car, or even enter an “R” rated movie unescorted. But the state of Florida deemed him an adult in criminal court. That decision–that the juvenile court lacked the ability to handle Cristian’s case-would ultimately grab headlines and catapult Cristian on to the national and global stage.

What had escaped notice until that point was the family dysfunction and abuse that punctuated and misshaped Cristian’s life. He was conceived when his then eleven-year-old mother was raped by an acquaintance. A child herself, Cristian’s mother lacked the maturity and capacity to provide the kind of stable, secure home that her baby needed. She could barely care for herself. At fifteen months old, Cristian became ill and needed treatmentfor pneumonia. Hospital records indicate that he had not seen a pediatrician since he was two months old. That hospitalization marked the first of many times that he would be referred to the Department of Child and Family Services with little positive result. At age three, Cristian’s circumstances prompted authorities to place him in foster care along with his mother. Foster care should have provided the stability he needed, but instead it brought a host of new traumas. Misfortune struck suddenly and forcefully. While there, Cristian was inappropriately exposed to sexual behavior, and then, when he was just four, Cristian’s foster mother died of a heart attack in the home while Cristian was present.

The pattern of victimization, abandonment, and loss recurred throughout his young life and offered him the only constancy he knew. At six years old, Cristian likely thought that having the chance to live with his mother and her new husband would bring him the home life that he craved. But once again, safety and security eluded him. Over a two-year period, Cristian’s twelve-year-old cousin sexually molested him. Cristian’s new stepfather taunted him for being gay and, ultimately, sent Cristian away from the family for a year to the Dominican Republic to be “cured.” When Cristian’s mother and stepfather finally permitted him to return home, Cristian endured repeated physical and emotional abuse by his stepfather. A black eye and broken rib finally attracted the attention of doctors who referred the case to the police for further investigation. By the time the police arrived, Cristian’s stepfather had shot himself fatally in the head in front of Cristian’s then two-year-old and four-year-old half-brothers. Following the suicide, Cristian’s mother decided to relocate the family to Jacksonville, Florida.

There, Cristian’s mother began to rely on Cristian–perhaps too much–to care for his younger siblings. Having grown up lacking genuine adult supervision himself, he had few tools. Managing three children under the age of six was more than he could handle. While in his care, Cristian’s half-brotherDavid suffered fatal injuries (reportedly as a result of Cristian pushing him). Despite psychologists’ determination that Cristian was amenable to treatmentand should remain in the juvenile system, the State Attorney General made the decision to charge Cristian as an adult. That decision grew out of the all too common but flawed perception that a child’s involvement in a death somehow conferred adulthood on that child. Although the State’s Attorney announced that she was not seeking a life sentence, Cristian still faced a potential sentence of more than twenty years if convicted.

When a child dies–especially one as young as David–the public almost reflexively wants vengeance, regardless of the age of the accused. However, that retributive impulse stems from a faulty premise: that the homicide committed by a young offender is the same as one committed by an adult. What we know, from both science and common sense, is that an adolescent’s act differs significantly from that of a mature adult. Adolescents are works in progress. The regions of their brains governing impulse control and risk avoidance have not yet fully formed. They are uniquely susceptible to the hormonal spikes of puberty. They succumb more readily to negative external influences such as peer pressure and the influence of unstable environments. Fortunately, the biological and behavioral evidence explains that the volatility and impetuosity that have emerged as signature traits of adolescents are transitory.The ability to resist emotional impulses and regulate behavior gradually develops throughout adolescence, corresponding to the development of brain structures and systems involved in executive function and impulse control. In sum, most adolescents will age out of offending and will not persist in a life of crime.

The Supreme Court has recognized that adolescents are unfinished products, developmentally and morally, and has determined that these factors hold constitutional significance. In assessing culpability and moral responsibility, the Court has stated emphatically that youth matters. Indeed, the Court recently noted that a sentencer “misses too much if he treats every child as an adult.”

Children have reduced culpability and a greater capacity for change than their adult counterparts. Even when convicted of the most aggravated murder, a child, according to the Court, cannot be deemed among the worst offenders, given “alack of maturity and an underdeveloped sense of responsibility.” Frankly, the “immaturity and plasticity that create an increased propensity for wrongdoing in adolescents also provide an enormous capacity for learning, development and growth.”  So, in the face of children being exposed to draconian sentences upon conviction, the Court has responded by addressing the constitutionality of that choice. But the Court has stopped short of taking action that would profoundly affect the lives of countless adolescents: a categorical ban against prosecuting an adolescent as an adult.

The Court’s failure to act decisively leaves in place a disturbing montage ofstate laws. Twenty-three states currently have no minimum age for trying a child as an adult. Among states that set a minimum age for adult prosecution through transfer provisions, fourteen is the most common age. Not only have these statutes shamefully ushered young children into the adult criminal justice system, they have done so disproportionately for youth of color. The prosecution of very young children as adults cannot sensibly be reconciled with the constitutional obligation to consider child status. Without question, homicide is the most serious offense. But developmental issues of judgment exist when a child engages in any crime, including homicide. Age is directly related to consistent judgment. Given what we know about the psychosocial and biological development of adolescents, children under age seventeen should not be charged in the adult criminal justice system, either automatically or by transfer. State legislatures need to establish a bright-line rule of minority.

Child status matters. The time has arrived for criminal justice policy to reflect that reality. Part Two of this article will explore three distinct shifts in the justice system’s approach to defining the age of criminality. This Part will examine the oscillating political currents that led to distinctive treatment for juveniles, shifted to treat youths as adults, and, finally, recognized a more detailed understanding of adolescent development and offender characteristics. Part Three explores the ways that the blurred distinction between child and adult has perpetuated and embodied unacceptable racial disparities. It then addresses the rationales behind punitive policies toward young offenders and demonstrates their faulty premises, given developments in social science and neuroscience. Part Four proposes that state legislatures issue a bright line mandate–a minority rule–preventing any child under the age of seventeen from being prosecuted in the adult system.

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