Effective January 1, 2010, Illinois raised the general age of adulthood for criminal offenses to 18-but only for misdemeanor offenses. In doing so, Illinois became the only state in the country to simultaneously route youth of the same age (17) to both juvenile court and adult criminal court by default. Instead, 17-year-olds are split between adult and juvenile court based on each county prosecutor's ordinary use of felony indictment, not because an offense is unusually severe or because a judge has noted specific aggravating factors (as happens with younger teens). Resulting practices are especially harsh because Illinois lacks several safeguards found in other states to protect against permanent adult consequences for 17-year-olds who are arrested for ordinary felonies, including property and drug crimes.

Illinois' age of juvenile jurisdiction was and is an outlier in the United States and abroad and runs contrary to professional legal standards. Importantly, jurisdictional age is still not the sole means of entry for juveniles into adult court. As a result of "transfer," "direct file," and other jurisdictional provisions, each of the 50 states is able to prosecute, try, and sentence older adolescents as adults when they are charged with very serious offenses.

Illinois' own transfer provisions are broader than those in many other states, permitting youth as young as 13 to be tried and sentenced as adults instead of juveniles-for any type of crime. However, as the name suggests, "transfer" provisions are applied only after the default application of juvenile court rules.

The number of states that routinely treat 17-year-olds as adults is dwindling, since states are trending toward making 18 the default age of adult criminal responsibility. Only 11other states use an age under 18 as the default age of adulthood for criminal charges. The age of majority for federal prosecutions, like many other federal programs, is also 18. Even among states using an age under 18 to determine adulthood, Illinois is unique. Several states with adulthood ages under 18 still provide criminal courts with the ability to send cases for younger offenders to juvenile court when warranted. Half of all states have what are known as "reverse waiver" provisions, allowing youth in adult court to be transferred to juvenile court under certain circumstances (Illinois has no such mechanisms). Other states provide special sentencing mechanisms, such as "youthful offender status" for defendants under 21, which can prevent the lifelong difficulties presented by a criminal conviction.

Illinois criminal courts, by contrast,must hear all felony cases relating to 17-year-olds-and when a 17-year-old felony defendant is found guilty or pleads guilty to a felony, Illinois criminal courts are categorically unable take age into consideration when issuing a permanent felony conviction. Few states circumscribe judicial discretion so tightly regarding offenders so young. No other state routinely gives more jurisdictional weight to a prosecutor's initial filing decision than to an offender's age.

Juvenile Justice in Illinois

To understand the current patchwork of Illinois criminal, juvenile, and transfer statutes applicable to 17-year-olds, it is important to understand our state's legal history and philosophical changes regarding young offenders.

Before the creation of the Illinois Juvenile Court in 1899, youth could only be tried in criminal court. However, state law set an outer boundary on the criminal court's jurisdiction and granted judges the discretion to exclude youth from the court. Youth under 10 could not be tried in criminal court and youth between 10-14 could only be tried if the judge decided that the youth had the maturity necessary for criminal accountability. Moreover, youth under 18 could not be incarcerated at the state penitentiary unless they were found guilty of robbery, burglary, or arson.

Illinois created the country's first juvenile court in 1899 based on the philosophy that delinquent youth should be rehabilitated, not punished. The juvenile court initially had jurisdiction over all youth under 16. Six years later the court's jurisdiction was extended to boys under 17 and girls under 18. The court was given more expansive jurisdiction over girls so it could use its parens patriae power to remove girls from "unseemly environments" in order to "protect their virtue." The Illinois Supreme Court held that the unequal treatment was unconstitutional and in 1972 the law was modified, setting the maximum age of juvenile court jurisdiction for both boys and girls at 17.

When the juvenile court was created in 1899, only juvenile court judges had the power to transfer youth to criminal court, and the transfer decision was completely within the judge's discretion. However, the juvenile court legislation was unclear as to whether a prosecutor could simply charge a youth in criminal court, bypassing the juvenile court entirely. Initially, there was a "gentleman's agreement" between the juvenile court and prosecutors, whereby almost all charges against youth were filed in juvenile court, allowing the juvenile court judges to decide whether a youth should be tried in criminal court. In exchange, the juvenile court did not exert its jurisdiction when prosecutors charged some youth in criminal court, usually older youth who committed serious crimes while on probation.

By the mid-1920's, the agreement had eroded, leading to an ever-increasing number of youth being tried in criminal court. The Illinois Supreme Court addressed the issue in People v. Lattimore, holding that the juvenile court legislation did not give the juvenile court exclusive original jurisdiction over youth. However, the General Assembly overturned Lattimore with the Juvenile Court Act of 1965. The law explicitly required that prosecutors file all charges against youth in juvenile court, allowing the judges to decide the appropriate court for each youth.

The juvenile population in Illinois increased in the 1970s as a swell of late Baby Boomers entered adolescence. The population increase was accompanied by a corresponding increase in juvenile offenses. The attendant public outcry led to the passage of an automatic transfer offense scheme in 1983. Once a youth is charged with one of these offenses, the youth is automatically transferred to criminal court, eliminating judicial discretion. The 1983 amendment required that any youth 15 or older charged with murder, rape, sexual assault, or armed robbery be automatically transferred to criminal court. Additional automatic transfer offenses were added in 1985.

The juvenile crime rate increased again in the late 1980s and early 90s. Public outcry led legislators to add new automatic transfer offenses in 1990, 1995, 1996, 1998, and 2000. A scheme of presumptive transfer offenses was also added to the Juvenile Court Act-these maintain judicial discretion but place the burden on the youth to establish that he/she should not be transferred.

The juvenile crime rate dropped at the end of 1990s. In 2005, the legislature, for the first time, reduced the list of automatic transfer offenses, returning transfer discretion for certain drug offenses to juvenile court judges.

Raise the Age History

In 2005, the General Assembly considered raising the age of juvenile court jurisdiction to 18. Proponents argued that 17-year-olds are still maturing and therefore make impulsive and childish decisions. Consequently, these teens should not suffer the stigmas and impediments that result from a permanent criminal record. Because they are still maturing, proponents noted, 17-year-olds are still capable of positive growth and change, with the right support and opportunities. Thus, they argued, 17-year-olds should be adjudicated in juvenile court because the juvenile justice system recognizes their capacity for positive change and provides the rehabilitative services necessary to bring about that change.

Critics claimed that extending juvenile court jurisdiction would be too costly. While raising the age would undoubtedly increase the number of youth in juvenile court, administrators and legislators debated the extent of the increase and its financial impact. The proposed legislation passed the Senate but died in committee in the House.

In 2008, both sides reached a compromise: include 17-year-olds charged with misdemeanors in juvenile court and revisit the feasibility of including all 17-year-olds once the consequences are better understood.

The compromise legislation garnered greater support. However, some legislators argued that even including misdemeanors would be too costly. Other legislators argued that because 17-year-olds know the difference between right and wrong, they should all be tried in criminal court. Proponents of the compromise argued that the financial impact would be small and manageable and that the well-being of Illinois' children was worth the price. The compromise legislation passed, changing jurisdiction for 17-year-olds beginning January 1, 2010. The General Assembly later charged this Commission with studying the issue and devising recommendations for the inclusion of felony-charged 17-year-olds.

Raising the Age of Juvenile Court Jurisdiction

The future of 17-year-olds in Illinois' justice system.

Illinois Juvenile Justice Commission