Class 6

Infancy, Age of Responsibility and

Culpability of Adolescents

CASE OF THE DAYKirk Otis (State v Otis, 355 Ark. 590, 142

S.W.3d 615)Arkansas case, same locale as infamous school

shooting involving offenders ages 13 and 11 (Johnson and Golden)

AK law: Children of any age can be tried as an adult for capital crime, prosecutor can elect jurisdiction

Defendant can request transfer to juvenile courtFacts

Robbery-homicide committed at age 14Victim was “celebrated” member of communityFacts considered by the Court in transfer hearing

included maturity, prior record, premeditation, heinousness, maturity, IQ, environment, moral reasoning

BackgroundParents were age 14 when defendant was born, raised by

grandparentsChild abuse, mental health problems, hospitalized and medicated,

behavioral and disciplinary problems during hospitalizationSchool discipline problemsTherapeutic juvenile placement was available, Court doubted

efficacyLegal questions about transfer statute

Although extended jurisdiction (EJJ) applies to “infants” (below 14) in capital cases, and to adolescents (14+) for a longer list of offenses – infancy question -- it was denied to Otis. Why? Why not sentence to juvenile system?

Do pretransfer proceedings delay sentencing, truncates window of “rehabilitation,” might alter calculus of decision making in transfer hearing

Is LWOP or other adult sentence an Eighth Amendment violation for a 14 year old?

Does prosecutorial discretion to elect adult jurisdiction violate equal protection? What is state’s interest in transfer? Otis: What is the difference between ‘serious’ and ‘other criminal”

offenses?Does a transfer hearing raise the risk of self-incrimination?

Clear and convincing evidence standard of proof? How many of the 10 factors must be validated? Equal weight?

INFANCYDoes defendant below specified age have the capacity

(mens rea) to understand the wrongfulness of his actions?Neither adults nor infants

Infancy defense was trumped by the creation of the juvenile court that replaced infancy with treatability and culpability, and in effect, eclipsed infancy by its “scientism” and procedural concerns -- Explain this?? Walkover at 548-551 – tension between infancy and mens rea

Jurisprudential question is the lower boundary for the juvenile court – especially true for ‘accountability’ prong of many juvenile court statutes

Traditional boundary was 7 years of age. Based on capacities for understanding and reasoning

Modern expressions of the infancy defense have created a third category of age-related culpability: Infants (below 7)Adolescents (7 -- ? 12? 14? 17?)Adults

Kent, Gault, Winship and McKeiver all mooted infancy by procedurally formalizing the juvenile court and substituting accountability (to justify punishment) for vulnerability

Alaska Arizona Delaware Dist. of Columbia Florida Georgia* Hawaii Idaho* Indiana Maine Maryland Nebraska

Nevada* Oklahoma* Oregon* Pennsylvania Rhode Island South Carolina South Dakota Tennessee Washington* West Virginia Wisconsin

Kansas Vermont Colorado

Missouri Montana

Illinois Mississippi New Hampshire New York North Carolina Wyoming

Alabama Arkansas California Connecticut Iowa Kentucky Louisiana Massachusetts Michigan Minnesota New Jersey North Dakota Ohio Texas Utah Virginia

New Mexico

*Other sections of State statute specify an age below which children cannot be tried in criminal court. This minimum age for criminal responsibility is 14 in Idaho, 12 in Georgia, 8 in Nevada and Washington, and 7 in Oklahoma. In Washington, 8- to 12-year-olds are presumed to be in-capable of committing a crime. In Oklahoma, in cases involving 7- to 14-year-olds, the State must prove that at the time of the act, the child knew it was wrong.

Source: Authors' adaptation of Griffin et al.'s Trying juveniles as adults in court (1997)

Minimum transfer age indicated in section(s) of juvenile code specifying

transfer provisions, 1997

If the new juvenile court is punitive, what are the implications for lower age boundary? At what age do children acquire capacity to understand wrongfulness of

the criminal act?Many states have abandoned minimum age within past 20

years, a reflection of celebrated and horrific cases (e.g., Jonesboro AK case - Golden and Johnson)

(Very) Recent discourse conflates capacity for action (mens rea) with developmental state of the offender…what dimensions of his or her developmental state are relevant? “Capacity for culpability”Understanding of whether acts are right or wrong Internalized moral and social norms of societyCapacity to exercise control over impulses

Intent? You can have mens rea and still be developmentally immature. So, mens rea is separate from moral development, and orthogonal to capacity Difference between capacity for constraint or control and

reasoning capacityRebuttable?

Culpability in Constitutional Law

Thompson: “[L]ess culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis of this conclusion is too obvious to require extensive explanation. Inexperience, less intelligence and less education make a teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons that juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.” Eddings: “[y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.”

Roper: “Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders” (1) as any parent knows and as the scientific and sociological studies tend to confirm, juveniles are comparatively immature, reckless and irresponsible, (2) “they are more vulnerable or susceptible to the negative influences and outside peer pressure, “ and (3) the character of juveniles is “not as well formed as that of an adult” and their “personality traits” are more transitory, less fixed”

Three dimensionsMoral culpability – understanding law and

social norms Developmental culpability – developmental

and functional maturationOrganic culpability – fully developed organic

functioning to regulate emotions and behavior

Doctrinal basesExcuse and MitigationCalibrated into criminal law doctrineImmaturity as mitigator?Other (contextual) factors?

Distinguishing Juveniles and AdultsIn what ways are juveniles different from

adults that makes them less blameworthy for their offenses? The components of maturation?

Evidence from Social ScienceUnderstanding of Risks, Future Orientation(Social

Experience)Cognitive discrimination of social meaningRisk and Thrill Preferences (Decision Making)Emotional Regulation, Control of ImpulsesAutonomy and Identity (Resisting Peer Influence)

Evidence from Natural ScienceFrontal lobe functions that map to maturity“Starting the engines without a skilled driver”Areas of frontal lobe development show largest

differences between juveniles and adults

Venables and Thompson – Comparative Case

Two boys ages 10 or less killed a child 2 years of age

Clearly not an accidentUK sets age for adult trial at age 10“Tariff” was set at 8 years, but Home Office

attempted to raise it to 15 years (overturned by ECHR).

Trial procedure was not ruled “degrading,” nor did ECHR disagree that adult trial was developmentally inappropriate

Released at age 18, state assisted in societal reintegration

The Difficulties of Bright Lines and Binary CategoriesHistorical Development and Change

Changing notions of adolescence (see, Bazelon’s discussion of “superpredators”)

But shouldn’t the sociological fluidity of “adolescence” argue against bright lines?

When are adolescents mature?For what social and individual functions?The problem of variancesThe problem of errors

And are errors weighted by their consequences?And if so, which consequences? Kennedy quote in

RoperIs Age a mitigator or an aggravator?

(State in Roper)

• Age-Specific Competencies –Marry– Drive a Car– Join the Military– Enter into Contracts– Consent to Medical Procedures– Vote– Drink Alcohol – Consent to Sexual Activity– Criminal punishment– Execution

• BUT see Scalia in Roper, Sect. II at 617-8

– if adolescents can consent to medical procedures at 16, why immature with respect to criminal liability?

Bright Line Age Thresholds

Cumulative Rates of Maturation

0

20

40

60

80

100

Age 15 Age 16 Age 17 Age 18 Age 19 Age 20

Cum

ulat

ive

Perc

ent M

atur

e

Impulse Control

Autonomy

Frontal Lobe

Translating Adolescent Mitigation into Institutional Arrangements

Does legal accommodation of immaturity translate necessarily into a separate juvenile court or any other institutional arrangement?The discount argumentBlended sentencingRecreating the juvenile court within the criminal court

Do stages of development mirror degrees of culpability?

Roper – why can’t juries decide about degree(s) of culpability?Because we are conflicted about adolescenceNew science comes full circle to early juvenile court

What would a “developmental jurisprudence” look like?