A state lawmaker plans to introduce legislation to change the way children younger than 11 are being handled in the legal system.

Rep. Darryl Owens, D-Louisville, said that under legislation he plans to introduce in the 2012 General Assembly, either social services or mental health services would handle behavior that results in criminal complaints against children ages 10 and younger for crimes, including minor assault and criminal mischief.

A Herald-Leader analysis of 748 children who had complaints filed against them in 2009 and 2010, the last two years available from the Administrative Office of the Courts, showed that complaints were filed against 63 children ages 5, 6 and 7. Eight of those children were 5.

The analysis also showed that, although black children made up 9 percent of children ages 5 to 10, they made up 25 percent of children who had complaints filed against them.

Half the complaints filed against black children were referred to official court proceedings by county attorneys, court officials or parents. But a little more than a quarter, 28 percent, of complaints against white children were referred to the courts.

Also, half the complaints against white children were either dismissed or handled outside the courts compared to a little more than a quarter, 29 percent, of the complaints against black children.

Bill Patteson, a spokesman for the Jefferson County Attorney's office, said the disproportionate numbers of black children who had complaints filed against them were an "ongoing concern."

Three state officials representing the court system, juvenile justice, and the state department of public advocacy asked lawmakers on the Interim Joint Committee on Judiciary last month to introduce legislation that would prohibit children 10 and younger from being criminally charged.

"I think we've criminalized way too much the misbehaving by children," said Rep. Stan Lee, R-Lexington, a member of the Interim Joint Committee on Judiciary.

Lee said funding might need to be taken away from the criminal justice budget and given to the social service budget.

Owens, also a member of the legislative committee, said he wanted to see the law change for a number of reasons, but he was particularly influenced by testimony from state officials that a young child's brain is not developed enough to understand criminal punishment. Owens also said he was "stunned" by the number of blacks who have been charged, but that young children being charged is an issue "whether you are black, white, yellow or purple. At 10 years old, you don't need to be caught up in the juvenile justice system."

No lower age limit

Kentucky, unlike 16 other states, puts no limits on the age at which a child may be charged. From 2005 to 2010, 2,704 children younger than 11 had complaints filed against them, according to data from the state's AOC. State law requires school principals to report a number of incidents to law enforcement, including assault and damage to school property. There are no restrictions on the age of the offender.

Once a complaint is filed against a child, the county attorney reviews it to see whether there is probable cause. In some cases, children enter the AOC's diversion program, in which court-designated workers hold children accountable for their actions and provide treatment. In that case, children don't have juvenile records. But in other cases, children are referred to formal juvenile court. Juvenile court records generally are confidential.

Each county appears to vary in how it handles cases involving young children.

Jennifer True, one of two assistant Fayette County attorneys who handle juvenile cases, has said that in Fayette County, officials do not prosecute children 10 or younger unless the crime is severe, such as murder.

Complaints are filed against young children in Fayette County, but the county typically does not prosecute young children, according to the analysis. Twenty-four complaints were filed against children in that age group in 2009-2010 but most of them were ruled to be without probable cause. None were referred to the courts.

But that isn't always the case in Kentucky, particularly in Jefferson County.

Previously, the practice in the Jefferson County Attorney's office was that if school officials in Jefferson County thought an issue was serious enough to take the case to prosecutors, the charge was handled in court, Patteson said.

But since the end of 2010, he said, the director of prosecution and the juvenile court division chief has reviewed each complaint to determine whether it should be taken to court.

In Jefferson, 174 complaints were filed in 2009 and 2010 by school officials, other agencies and parents.

Daviess County, which fell behind Jefferson County in the number of total complaints filed, takes a similar approach to Fayette's, according to the analysis. Only one child, a white 10-year-old boy facing three charges, was referred to the courts by court officials. Most were successfully diverted or dismissed.

The Kenton County Attorney's office referred only two children to court in 2009 and 2010, one white and one black, according to Charles W. Vaughn, the chief prosecutor for that office.

'Shocked at the numbers'

Patrick Yewell, executive officer of family and juvenile services for the Administrative Office of the Courts, told lawmakers in September that he thought his agency could accommodate a system in which children 10 and younger did not face charges for their behavior but received services through the social service system.

Yewell has been monitoring the cases involving young children across Kentucky since last year. He said last week that he could not comment on Owens' proposed legislation because he had not seen it.

State Rep. John Tilley, D-Hopkinsville, who co-chairs the Interim Joint Committee on Judiciary, said lawmakers haven't heard from all the stakeholders. He said they will soon hear from police, judges, school administrators and other officials who deal with cases in which young children face criminal charges.

"I am shocked at the numbers, which is why I think we need to bring everyone to the table," Tilley said.

In the Senate, Tom Jensen, R-London, the chairman of Senate Judiciary Committee, would only say, "We'll take a look at it when it comes to the committee."

House Speaker Greg Stumbo, D-Prestonsburg, said he would keep an open mind about Owens' legislation.

"I don't generally support de-criminalizing otherwise illegal activities by juveniles or otherwise, but I will keep an open mind and will remain neutral on the subject at this point," Stumbo said.

Meanwhile, Christian County District Judge Jim Adams, a former prosecutor who played a key role in updating the state's juvenile law in the late 1980s, said judges are looking for solutions.

"My fellow judges and I are very aware of the problems in dealing with juvenile offenders who are very young, and we do all we can to find the best solution for each case. That's why the identification of pilot projects that are effective is so important, "he said. "Judges work hard to make the right decisions, and expanding these options is at the core of the work we do."