Experts: Prosecuting 6-year-old unlikely
Boy accused of shooting teacher faces different path in justice system
The criminal justice system for juveniles in Virginia differs in many ways from that for adults. But when the child accused of committing a crime is only 6, the distinctions become even more pronounced.
On Friday, police said a firstgrade student at Richneck Elementary School in Newport News shot his teacher inside a classroom. Abigail Zwerner, 25, suffered injuries initially described as life-threatening, but as of Saturday afternoon, she was in stable condition at Riverside Regional Medical Center. No one else was hurt.
Police have revealed little about the boy’s status other than to say he was taken into custody. For a child that age, that could include multiple possibilities, according to a local attorney and a University of Virginia School of Law professor and expert on juvenile justice.
Young children charged with an offense as serious as a shooting can be ordered held a juvenile detention facility, said Mario Lorello, a local defense lawyer and former Virginia Beach prosecutor who was on the office’s juvenile court team for several years. But that’s unlikely for someone as young as 6, he said.
A more probable option would be for prosecutors to ask a judge to place the child in the custody of the Department of Social Services, Lorello said. If the request is granted, social services would then decide the best housing choice under the circumstances. That could include keeping the child with their parents, placing them with another relative or putting them in foster care, he said.
Lorello and Andrew Block, a University of Virginia School of Law professor who served as director of the school’s Department of Juvenile Justice for five years, said while it’s possible under Virginia law to charge and prosecute a
child that young, they don’t believe it’s likely.
“I think it would be incredibly hard to prosecute a 6-year-old, no matter how serious a crime they’ve committed,” Block said. “It would be incredibly difficult and not likely to lead to a satisfactory or helpful outcome for anybody involved.”
One hurdle for such a prosecution is the infancy defense, which operates under the idea that young children are incapable of forming criminal intent, and therefore aren’t legally capable of committing a crime, Block said. Another obstacle is the belief that children that young are not competent to stand trial.
In order to be competent, the accused must be able to understand the legal process they face, and be able to assist in their defense, Block said.
“It’s hard to imagine a 6-year-old would be able to meet either of those criteria,” he said. The child could be ordered to take classes to teach them about the process, but Block said such action probably wouldn’t be successful.
“A 6-year-old just isn’t going to have the ability to understand any of that,” he said.
Instead of charging the child with a crime, prosecutors could seek to file a Child in Need of Services petition, according to Block and Lorello. Such petitions are filed for children under the age of 14 whose behavior, conduct or the conditions they’re living under has made them a danger to others or themselves.
The court has plenty of options in such cases, and a wide array of services for the child to address whatever issues are identified, Block said. The services could include a variety of treatment, rehabilitative and counseling services, and could include jurisdiction over the parents, Lorello said.
“Depending on the actual facts of the case, that’s probably the easiest, most appropriate and most helpful path,” Block said.
Even if prosecutors chose to pursue a criminal case, the options for punishment for a child so young are limited, Lorello said. Youth under the age of 11 can’t be committed to the Department of Juvenile Justice, he said. To be tried as an adult in Virginia, a juvenile must be at least 14.