FRANKFORT — Each year, the misbehavior of about 400 Kentucky children 10 or younger — some as young as 5 — results in criminal complaints on charges including harassment, assault and being beyond the control of an adult.
On Wednesday, three state officials asked legislators on the Interim Joint Committee on Judiciary for a law that would prohibit children 10 or younger from facing criminal charges. Instead, their misbehavior would be addressed through the social service system.
The legislative committee is hearing testimony to see what changes might need to be made during the 2012 General Assembly to current laws, which according to a state court official have allowed 2,704 children 10 or younger to be criminally charged from 2005 to 2010.
"All the research shows that the earlier a child is referred to court, the more likely they are to continue in the juvenile justice system," said Patrick Yewell, executive officer of family and juvenile services for the Administrative Office of the Courts.
Yewell said the State Interagency Council, composed of court representatives, social workers, early childhood specialists and mental health professionals, has recommended that children 10 or younger with high-risk behaviors are best served by social service agencies, not the criminal justice system.
He was joined by Ed Monahan, head of the state Department of Public Advocacy, and Hasan Davis, deputy commissioner in the Department for Juvenile Justice, in making the request to lawmakers.
The most frequent charges from 2005 to 2009 were being beyond the control of an adult, fourth-degree assault with minor injury and third-degree criminal mischief, according to data Yewell gave lawmakers. The complaints are filed by school officials, police agencies and residents.
Monahan said children in that age group don't have the moral or brain development "to hold them culpable as criminal offenders."
Also, Yewell said, children 10 or younger don't have the brain development to comprehend the consequences of pleading guilty.
At least 11 other states have laws that don't allow children younger than 10 to be criminally charged.
Kentucky puts no limits on the age at which a child may be charged. State law does prohibit the placement of children 10 or younger in a juvenile detention center 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.
After looking at the data Yewell provided at Wednesday's hearing, state Rep. Darryl Owens, D-Louisville, said he thought it was "mind-boggling" to see the disproportionate numbers of African-American children younger than 10 who have faced criminal charges in Kentucky.
"This is a crisis," Owens said.
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 Administrative Office of the Courts' diversion program, in which court-designated workers hold children accountable for their actions but provide treatment at the same time. If that happens, children don't have juvenile records. But in other situations, children are referred to formal juvenile court.
Davis said children younger than 10 are rarely put in detention centers. But even when a child 12 or younger is placed in one, "we have to change everything about our protocol."
"It provides for us a real challenge ... it should be addressed another way,'' Davis said.
"These kids would be better handled outside the criminal justice system," Monahan said. He said his agency represented many of the children younger than 10 who end up facing criminal charges.
"The criminal justice system is currently spending a substantial amount of money on these kids ... a lot of competency hearings," Monahan said.
Yewell said he didn't have figures yet on how much it costs to criminally charge children 10 or younger and how much it would cost to deal with their misbehavior through social services.
Lawmakers asked whether the state had the means to help the children successfully if they did not go to court.
Rep. Joni Jenkins, D-Louisville, said she agreed that "we do not need these very young children in the court system," but she wondered whether programs were in place to help them otherwise.
"We can do this," Yewell said. "We have the infrastructure."
He said he thought systems were in place, especially if the state works with community agencies.
Yewell said his agency would make sure the children would be monitored.
In Fayette County, officials typically do not prosecute children 10 or younger unless they are charged with murder or something else extremely serious.
The 15 criminal complaints filed against children 10 or younger in Fayette County in 2010 went to the diversion program or were dismissed, according to Administrative Office of the Courts records.
Juvenile court records generally are confidential, preventing the public from discovering the facts of cases involving children 10 or younger who are criminally charged.
Committee co-chairman John Tilley, D-Hopkinsville, said the panel would hear from judges, county attorneys, police, school officials and social workers in the Cabinet for Health and Family Services before deciding whether to propose legislation for the General Assembly, which begins in January.
"Everyone who has a role in this needs to be at the table," Tilley said.