A new law review article by Assistant Professor of Law Erin Fitzgerald advocates national reform to juvenile court jurisdiction rules.
An Elon Law professor who served as a New Hampshire prosecutor is urging Congress to act for a national fix to juvenile justice systems: when courts determine whether a young person should be treated as a juvenile or adult.
Many states use the age at the time of court proceedings to decide which court a juvenile delinquent 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.
Published in the Pepperdine Law Review, Fitzgerald’s article, “Calling on Congress: Use the Spending Clause to Keep Juveniles in Juvenile Court,” examines the consequences of adult criminal court prosecution to national public safety and welfare. She makes the case that that the age of a juvenile delinquent at the time of the alleged offense — not at the time legal proceedings begin — should decide whether their case is heard in juvenile court. She calls on Congress to incentivize states to adopt this standard by tying it to federal funding.
“There is no denying that using a juvenile’s age at the time of legal proceedings to determine the jurisdictional reach of juvenile courts has significant collateral consequences for juveniles who have ‘aged out’ of juvenile court,” she writes. “It substantially increases the likelihood that they will recidivate, experience sexual violence and suicidal tendencies in adult correctional facilities and suffer life-long unemployment and poverty. These consequences impact the nation as they ripple through communities, decreasing our country’s public safety, health, and economic stability.”
Fitzgerald also points to brain development, which can’t fully comprehend risks and consequences until adulthood, as another reason to litigate offenses committed by juveniles within juvenile justice systems.
While many states have reformed transfer laws and raised the age of majority to keep more young people in the juvenile system, Fitzgerald says this jurisdictional gap continues to harm youth and public safety.
The article urges Congress to act by using its spending power to require states receiving certain juvenile justice funds to adopt the offense-date standard. Such a policy, Fitzgerald argues, would bring greater fairness and consistency to a patchwork of state laws and better serve both young delinquents and the public.
Fitzgerald, who teaches criminal law, evidence and juvenile justice, addresses potential pushback to her proposal, particularly concerns about federal overreach into state-controlled justice systems. Acknowledging that juvenile court jurisdiction has traditionally been governed by the states, she argues that the Spending Clause is a well-established tool that Congress can use to influence state policy. By conditioning certain federal juvenile justice funds on the adoption of a consistent jurisdictional standard, Congress can incentivize reform without mandating it outright. Fitzgerald notes that this approach has been upheld in other contexts and balances federal and state roles.
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.