The Anti-Racist Imperative of Infancy

Cohen, Laura | April 6, 2024

In 2019, a widely disseminated video of the arrest of a six-year-old girl in her Florida elementary school provoked outrage across the country. The footage shows the girl sobbing as an armed police officer in full uniform and bullet-proof vest handcuffs and leads her from the principal’s office to a waiting patrol car. Her crime was having a temper tantrum in class after a sleepless night. When it was revealed that another six-year-old was arrested at the same school by the same officer on the same day and for similar reasons, media pundits and the general public debated questions of school discipline and the role of law enforcement in educational settings. The far more important issue, however, is why, and for what purpose, should a six-year-old be arrested at all? This is not an academic question; twenty-four of the fifty states currently set no minimum jurisdictional age for the arrest and prosecution of children, and eighteen others set jurisdictional boundary of ten years old. As a result, between 2013 and 2018, over 30,000 children under the age of ten were arrested in the United States, and, in 2019, more than fifteen percent of incarcerated youth were age fourteen or younger. Such criminalization of childhood is contrary to the teachings of developmental science; drives the gross racial disparities that have defined the juvenile legal system since its inception; and inflicts myriad harms on children, their families, and their communities, including school push-out, negative health and mental health outcomes, the threat of incarceration, and the trauma and stigma that attach to any interaction with police, among others. It also runs afoul of international human rights standards, which require adoption of a minimum age of criminal responsibility of at least fourteen.

This Article stakes out new ground by arguing that the only redress for these deep and continuing harms is the categorical exclusion of developmentally immature children from juvenile court jurisdiction and, with it, the abolition of the juvenile court in its current iteration. Part I charts the harms of legal system involvement, focusing on the immediate and long-term effects of arrest and prosecution of young children. Part II provides a history of the juvenile legal system, focusing on its deep-rooted racial inequities. Part III explores some of the causes of those injustices, including discretionary decision-making, adultification bias, and police in schools. Part IV considers the large body of developmental science establishing children’s lesser culpability, lack of adjudicative competency, and capacity for change. Part V considers and ultimately rejects revival of the common law defense of infancy within juvenile court proceedings and proposes a new doctrine of infancy rooted in the categorical exclusion of young children from arrest and prosecution, rather than case-by-case determinations. The Article concludes by providing examples of effective alternatives to prosecution and positioning age-based jurisdictional boundaries as a pathway to abolition of the structurally biased and discriminatory juvenile legal system.