Tennessee Juvenile Law Update: Efforts to Treat More Juveniles Charged with Crimes as Adults
A bill is working its way through the Tennessee General Assembly that would change the way the State of Tennessee treats juveniles charged with certain crimes.
Presently in Tennessee, when a child is charged with a crime, the child is under the jurisdiction of the juvenile court system. There, the focus is on rehabilitation. In some cases involving certain serious crimes, a prosecutor can request that the juvenile court judge transfer the child to adult court where the focus is on punishment.
More specifically, a juvenile is now only eligible for a transfer if the child was:
(i) Less than fourteen (14) years of age at the time of the alleged conduct and charged with first degree murder or second degree murder or attempted first or second degree murder;
(ii) Fourteen (14) years of age or more but less than seventeen (17) years of age at the time of the alleged conduct and charged with the offense of first degree murder, second degree murder, rape, aggravated rape, rape of a child, aggravated rape of a child, aggravated robbery, especially aggravated robbery, aggravated burglary, especially aggravated burglary, kidnapping, aggravated kidnapping, especially aggravated kidnapping, commission of an act of terrorism, carjacking, or an attempt to commit any such offenses;
(iii) Sixteen (16) years of age or more at the time of the alleged conduct and charged with the offense of robbery or attempt to commit robbery; or
(iv) Seventeen (17) years of age or more at the time of the alleged conduct;
Tenn. Code Ann. § 37-1-134(a)(1)(A).
If a prosecutor requests a transfer and the juvenile is eligible, a full hearing is then required wherein a juvenile court judge must determine whether transfer is appropriate. Such transfer is only appropriate if the court finds that there is probable cause to believe that the child committed the delinquent act, the child is not committable to an institution for the developmentally disabled or mentally ill; and the interests of the community require that the child be put under legal restraint or discipline. Tenn. Code Ann. § 37-1-134(a)(4).
In order to make the “interests of the community” determination, a juvenile court judge has broad discretion and considers the following factors involving both the nature of the crime and the child’s character and history:
- The extent and nature of the child’s prior delinquency records;
- The nature of past treatment efforts and the nature of the child’s response thereto;
- Whether the offense was against a person or property, with greater weight in favor of transfer given to offenses against the person;
- Whether the offense was committed in an aggressive and premeditated manner;
- The possible rehabilitation of the child by use of procedures, services and facilities currently available to the court in this state;
- Whether the child’s conduct would be a criminal gang offense, as defined in § 40-35-121, if committed by an adult; and
- Whether the child has a history of trauma or abuse, including, but not limited to, the child being a victim of a human trafficking offense as defined in § 39-13-314.
Tenn. Code Ann. § 37-1-134(b). Simply put, the juvenile court judge looks at the big picture and applies their training and expertise in working with children to determine whether the child is capable of rehabilitation or needs to be transferred to adult court.
House Speaker Cameron Sexton has introduced a bill that would reverse the current process, taking away the discretion of juvenile court judges and sending children charged with certain crimes directly to adult court.
Under this proposed legislation, children accused of certain serious crimes would be immediately placed in the adult court system. The crimes are the same as those making a juvenile eligible for transfer now with two additions:
- Transfer required for children aged 14 to less than 17 at the time of alleged aggravated battery when the victim is less than thirteen (13) years of age; and
- Transfer required for children aged sixteen (16) years or more at the time of the alleged conduct and charged with any offense if a deadly weapon was used during the commission of the offense.
H.B. 1029, Amendment 4849, 113th Tenn. Gen. Assembly (2023), amending Tenn. Code. Ann. § 37-1-134(a)(1)(B).
The pending legislation then requires the criminal court judge to decide if the child remains in criminal court. The law, as drafted, mandates that the child be tried as an adult in criminal court if the criminal court finds probable cause to believe that:
- The child committed the delinquent act as alleged;
- The child is not committable to an institution for the developmentally disabled or mentally ill; and
- The interest of the community requires that the child be put under legal restraint or discipline.
H.B. 1029, Amendment 4849, 113th Tenn. Gen. Assembly (2023), amending Tenn. Code Ann. § 37-1-134(b)(1).
And, in considering the “interest of the community” the criminal court judge is only instructed to consider the nature of the crime itself and whether the child has been a victim of human trafficking. Otherwise, the history and characteristics of the child (and whether they are candidates for rehabilitation) are not considered. More specifically, criminal court judges are only required to consider:
- Whether the offense was against a person or property, with greater weight in favor of a determination that the child shall be tried as an adult in criminal court if the offense was against a person;
- Whether the offense was committed in an aggressive and premeditated manner;
- Whether the child’s conduct would be a criminal gang offense, as defined in 40-35-121, if committed by an adult; and
- Whether the child’s history demonstrates the child is, or has been, a victim of human trafficking.
H.B. 1029, Amendment 4849, 113th Tenn. Gen. Assembly (2023), amending Tenn. Code Ann. § 37-1-134(b)(2). So, while the criminal court judge could theoretically transfer a case to juvenile court, such transfers would be rare.
Reasons for the Proposed Change
As for why this drastic change is being proposed, Speaker Sexton said he is concerned juveniles do not have penalties as harsh as adults and said he believes he is seeing an increase in crimes committed by juveniles statewide1. However, no statewide statistics have been provided and the proponents of the bill appear instead to be focused on Memphis.
Representative Mary Littleton (Dickson) presented the bill on behalf of House Speaker Sexton to the Criminal Justice Subcommittee on March 14, 2023 and relied wholly on a set of statistics out of Shelby County. According to her, in 2021 the juvenile system in Shelby County saw 2,507 teens — 520 of whom were charged with a second offense, and “all the way down to the 10th” offense. Representative Littleton stated 123 teens were charged with a 10th offense.2
At the subcommittee meeting, Representative Joe Towns, Jr. (Memphis) asked for juvenile offender data from other areas of the state and Rep. Littleton had none. When asked, Rep. Littleton offered no information about juvenile court programs that were working well either.
Response & Concerns
First-Hand Account: Juvenile Justice Advocate Testifies Against Passage
At the March 14th subcommittee hearing, Cyntoia Brown testified against its passage. Now a juvenile justice advocate, Ms. Brown spoke about her own experience after she was charged with murder and robbery as a 16-year-old in 2004. At the time, she told the court she was being sex trafficked. Ms. Brown was transferred to be tried as an adult.
“I was one of those kids. I was transferred to be tried as an adult. I was removed from the juvenile justice center and sent to an adult jail and I had to spend two years in solitary confinement because whenever a juvenile is sent to a facility they have to be kept away site and sound from all of the adults. The only option that the sheriffs really have is to place them in solitary confinement, so for 23 hours a day I was kept in a cell, and most days the only sunlight I saw was through a window in a wall and the only human interaction I had was from a guard who was bringing me my food tray” explained Ms. Brown.3
Ms. Brown explained that she had several mental breakdowns as a result of solitary confinement and was unable to participate in her own defense. And, Ms. Brown talked about the lack of education juveniles receive behind bars in adult facilities, as she pointed back to her time behind bars and how her lawyer would drop off educational materials.
“[A] child who’s kept in the juvenile system can have opportunities to progress can have an opportunity to be transformed, and retrained and become a benefit to society, but a child who is placed in an adult system is pretty much just set on a downhill path,” explained Brown.4
When asked about her time in the juvenile court system twenty years ago, Ms. Brown testified that the Department of Children’s Services offered very few services. She is now more optimistic under the leadership of Director Quinn. However, Ms. Brown encouraged more investment on the juvenile justice side stating that current juvenile justice programs are effective if they are funded properly.
Juvenile Court Judges’ Expertise Overlooked
At the March 14th subcommittee meeting, Representative Gloria Johnson (Knoxville) expressed her concerns about the proposed change and stressed that juvenile judges are the most trained and qualified and “the best people to hear juvenile cases.”
Similarly, Kathy Sinback, director of the Tennessee chapter of the ACLU, has stated that the pending legislation would take the discretion away from those who have the most expertise – juvenile court judges:
“When you take away all of the considerations that need to go into the transfer decision and you make it just based on the charge, you are not looking at what their likelihood is of being successful in the future and the best way to help them become contributing adults,” Sinback says.5
Overload of Adult System
Rep. Johnson also expressed concern about the burden these juvenile cases would place on the adult court system, which is largely backlogged given the delays over the last few years due to COVID-19. The ACLU has expressed similar concerns. Under the bill, criminal court judges who see these cases would have the option to transfer kids down to the juvenile court, but Sinback says it would be rare. As a result, she is concerned that the change could overload adult criminal courts. 6
Lack of Facilities to House Juveniles
At present, juveniles that are transferred to adult court are often held in segregated areas of adult facilities. However, many adult facilities are facing overcrowding issues. When asked about where these juveniles would be housed, Rep. Littleton had no concrete plans or information. When asked about how these larger population of juveniles in adult facilities would be educated, Rep. Littleton had no concrete plans or information for this either.
Fiscal impact unknown
When asked about the fiscal impact of this bill, Representative Littleton had no information for the subcommittee. And, there seemed to be confusion as to whether any fiscal impact study had been done at all.
As of today, the bill has passed the House Subcommittee but has several steps to go before arriving on Governor Lee’s desk. If it passes, this change in law will have lasting impacts on children and families. If you or a family member is charged with a crime in the juvenile court system, it is important to consult with skilled attorneys. With decades of experience working with children and families in the juvenile court system, the legal team at Davis & Hoss is ready to help. Contact Attorney Lee Davis at firstname.lastname@example.org or by phone at 423-266-0605 for more information.