Elon Law scholar: Age at time of offense should determine jurisdiction of juvenile courts

A new law review article by Assistant Professor Erin Fitzgerald urges states to amend their laws to protect the most vulnerable populations within the nation’s criminal justice system.

An Elon Law professor who previously served as a prosecutor in New Hampshire is making the case for why states should take a closer look at how they use age to determine the jurisdiction of juvenile courts.

Across the country, many states use age at the time of proceedings to decide in which court a juvenile is tried. For example: If someone is 17 when a crime takes place, but turns 18 before an arrest is made, the case can start in adult criminal court.

Relying upon numerous policy-based rationales, Assistant Professor Erin Fitzgerald argues against that approach in a new law review article: all states should rely on age at the time of a crime, not the time of proceedings, to determine which court – juvenile or adult – has jurisdiction. Doing so ensures uniformity in treatment of youth offenders and honors the national trend of expanding access to juvenile courts.

“Put the Juvenile Back in Juvenile Court” appears in the latest issue of the Villanova Law Review. 

Fitzgerald’s article traces the history of the juvenile court system in the United States and the evolving emphasis policymakers have placed on rehabilitation versus punishment for youth found responsible for crimes. She likewise notes the protections to those in the juvenile court systems: confidentiality, a focus on rehabilitation, a decreased reliance on incarceration, and adjudication as a “delinquent.”

“The juvenile court system today, with its formalities and constitutional protections, more closely resembles the adult criminal court system than it did at its inception,” Fitzgerald writes. “However, recent legislative efforts to increase the jurisdictional reach of juvenile courts leave little doubt that the juvenile justice system has returned to its rehabilitative roots.”

Fitzgerald, who teaches criminal law and evidence, also addresses potential arguments against her position – namely, that statutes of limitations in most jurisdictions make it highly unlikely for anyone over the age of 23 to be tried in juvenile courts. Even then, she writes, neuroscience now shows the human brain doesn’t fully develop until the mid 20s, making rehabilitation and not punishment a worthy goal.

“Today, it is universally accepted that juvenile offenders, because of their youth and its attendant circumstances, are developmentally different than adult criminals,” she states. “Over the last two decades, the U.S. Supreme Court has repeatedly held that these developmental deficiencies make juvenile offenders less culpable and more deserving of special treatment under the law.”

“Determining the jurisdiction of juvenile courts based upon the juvenile offender’s age at the time of proceedings fails to recognize juvenile offenders’ lessened culpability, as well as fails to ensure similarly situated juvenile offenders are treated alike, incentivizes the delay in the prosecution of juvenile offenders, increases recidivism, and fails to honor the national trend to increase offenders’ access to the juvenile court system.”

Fitzgerald joined the Elon Law faculty in 2023 after serving as a Faculty Fellow for New England Law | Boston where she taught criminal law, incarceration and the law, torts, and insurance law.

Following law school, she clerked first for the New Hampshire Superior Court, and then for the Hon. Carol Ann Conboy of the New Hampshire Supreme Court. She next served as an assistant county attorney in New Hampshire, focusing on sexual assault and domestic violence cases.

Fitzgerald also served as an assistant attorney general and deputy chief of the Homicide Unit in the Criminal Justice Bureau of the New Hampshire Attorney General’s Office.

Fitzgerald graduated in 2013 from New England Law | Boston where she served as an editor of the New England Law Review. Her current scholarship centers on the intersection of the criminal justice system and juvenile law, with a particular focus on juvenile justice reform.