On at least two occasions last year, 5-year-old children in Kentucky faced charges for alleged criminal mischief, harassment, abuse of a teacher and criminal trespassing.
In all, 2,117 criminal charges have been filed against children 10 and younger in Kentucky since 2006. It's a number that shocked a key state lawmaker, who now plans to hold legislative hearings on the issue.
"It merits our attention,'' said state Rep. John Tilley, chairman of the House Judiciary Committee.
Tilley, D-Hopkinsville, said he has faith that Kentucky's juvenile prosecutors and judges were making sound decisions in the criminal cases against young children, but "we have to find out why that is happening."
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Unlike 16 other states, Kentucky puts no limits on the age at which a child may be charged. Kentucky law does prohibit placing children 10 and younger in a juvenile detention facility unless they are charged with a capital offense or one of the more serious felony charges. But children may be placed in state foster care while charges against them are pending.
Patrick Yewell, who heads the Department of Family and Juvenile Services for the Administrative Office of the Courts, said he would ask lawmakers to consider adding a minimum age for criminal charges during the 2012 General Assembly.
"The earlier a child enters the juvenile justice system, the more likely he or she is to acquire an extensive juvenile record," Yewell said. "Children in this age range have specific needs that may require interventions from early childhood specialists, social workers and mental health professionals."
Yewell said that last year he began asking his staff to notify him whenever a child 10 or younger was criminally charged so the case could be tracked.
In April 2010, a 5-year-old in Leslie County was charged with abuse of a teacher and being beyond the control of adults. That was handled with a request from a prosecutor for a formal court hearing, as were criminal trespassing and mischief charges filed last year against a 5-year-old in Jefferson County, according to state records.
Some criminal charges are handled by entering a child in the Administrative Office of the Courts's diversion program, in which court-designated workers hold children accountable for their actions but provide treatment at the same time, Yewell said. When that's the case, children don't have juvenile records.
In Fayette County, officials do not prosecute children 10 and younger unless the alleged offense is murder or something else extremely serious, said Jennifer True, one of two assistant Fayette County Attorneys who handle juvenile cases.
The 15 criminal complaints filed against children age 10 and younger in Fayette County in 2010 ended up in the diversion program or were dismissed, according to Administrative Office of the Courts records.
Because juvenile court records generally are confidential, the public cannot discover why, for example, nine criminal charges of fraud were filed in 2010 against children 10 and younger, according to a Kentucky State Police annual report.
Rebecca DiLoreto, litigation director of the Children's Law Center in Kentucky, said her center and Kentucky Youth Advocates are encouraging policy makers to ensure that children are protected and treated fairly.
"It would appear important to get behind this arrest data," she said. "Are children of a younger age being charged with crimes such as fraud ... because our society is simply more litigious? Are children being charged with the violation of narcotic drug laws because drugs are rampant in their households and law enforcement has no faith in the child protection services to intervene? ... These kind of questions probably need to be asked," she said.
DiLoreto said the U.S. Supreme Court, in three cases during the past 10 years, has stated that children should be treated differently because their brains are not fully developed.
"An undeveloped brain does not reason in the same way and cannot legally be held to the same standard of scrutiny or judgment for behavior," she said.
Stacye Rowe of Frankfort said her son had behavior problems when he was in elementary school that led his teachers and officials at a counseling center to file criminal assault and other charges against him when he was as young as 7.
The charges did not help, said Rowe, who recalled that he once was taken out of a counseling center in handcuffs and driven to a police station in the back of a police car.
Eventually, Kentucky Protection and Advocacy, an independent state agency that advocates for the disabled, convinced school officials to try other methods of helping her son. The school hired a special teacher to work with him, Rowe said.
His behavior improved and the criminal charges were dismissed against him in juvenile court, she said.
Rowe said her son, now in middle school, hasn't had a criminal charge or contact with the juvenile court system since the charges were dismissed.
"I don't see the point in putting a 6- or 7-year-old in the back of a police car," she said.