Should We Treat Juvenile Defendants as Adult Criminals?

Two cases from Virginia raise troubling questions.

Before long Richmond, Virginia, will watch two highly charged criminal trials that should make everyone think hard about how we treat juveniles.

The first involves Del. Joe Morrissey, who is accused of having sex with a 17-year-old girl who worked in his office. Morrissey, who is 57, denies the charges. He says he was set up—that someone hacked into his phone and planted incriminating text messages and the topless pic he allegedly shared with a third party.

Even if he beats the charges, "Fightin' Joe"—as he likes to call himself—will never become the sort of role model parents will point to and ask, "Why can't you be more like him?" His history of fistfights, ethical imbroglios, indictments, disbarment, and serial unwed fatherhood will make sure of that.

The Morrissey case is scandalous. The second case is tragic. It concerns the death of 8-year-old Martin Cobb, the brave and quiet little boy who died defending his 12-year-old sister from an attacker back in May.

Martin's killing shocked and moved the community, which held a vigil for him. A local Crime Solvers chapter called him Richmond's "greatest superhero." Majority Leader Eric Cantor took to the House floor to memorialize Martin as "a fighter against all odds" who "showed he was a bigger man than most men ever dream to be." It is hard to look at the charming photos of Martin and not want the person who killed him to rot in prison until the sun burns out.

Last week, a grand jury indicted Mairese Jershon Washington on a second-degree murder charge in Martin Cobb's death. It also indicted him on charges of malicious wounding and strangulation in the attack on Cobb's sister.

And here is where things get messy. Washington will be tried as an adult, even though he is only 16—a year younger than the young woman in the Morrissey case. So beyond all the carnality, the notoriety, the tragedy and the raw emotions, the two cases raise a serious question about public policy—in Virginia and across the country.

The rationale for prosecuting Morrissey is fairly straightforward: Minors are not intellectually, emotionally or morally mature enough to possess the sort of agency we ascribe to adults. In short, they are not entirely responsible for their own actions. So when a 17-year-old has sex with a much older person, the older person is taking advantage, and the younger person is a victim. Period, full stop. The same sort of reasoning supports laws (including Virginia's) that require parental consent for medical treatment, including abortion.

Yet at the same time, Virginia allows children as young as 14 to be tried as adults. To permit that, courts must take numerous factors into consideration: the seriousness of the offense, the child's education, his or her disciplinary history, and—significantly—his or her mental, emotional, and physical maturity.

Virginia has lots of company. Texas sets the age of sexual consent at 17, and requires parental consent for an abortion—but allows children as young as 14 to be tried as adults. In Mississippi, children as young as 13 can be tried as adults, but cannot have an abortion without parental consent until 18. In Kansas, the age of sexual consent is 16, but the age at which a child can be tried as an adult is 10.

Most states also have hard, bright lines about tattoos and body piercings. Depending on the state and the person's age, a minor either cannot get a tattoo or piercing at all (except for ear piercing), or can't get one without written (and sometimes notarized) parental consent.

The upshot is that, in many parts of the country, a boy or girl who has sex at 16—or who tries to get a tattoo or a nose ring—is treated as a defenseless child. But if the same individual shoots a gas-station owner during a robbery, he or she can be treated as a fully culpable adult. It's hard to see how those two conflicting perspectives can be reconciled.

This isn't an argument for letting Morrissey skate. If he did what he's accused of, then it's fair to say he deserves a long stretch in a cold cell. But if you accept the reasoning for that conclusion, then you also have to ask: Does Washington belong in there with him?