Many commentators agree that the trend to try juveniles as adults fails to recognize that there should be an asymmetry in our treatment of juvenile and adult crime such that all else being equal juvenile crime deserves less punishment than does adult crime. This essay explores different rationales for this asymmetry. A political rationale claims that the disenfranchisement of juveniles compromises the state’s democratic authority to punish juveniles in the same way it is permitted to punish adults. A developmental rationale claims that juveniles deserve to be punished less than adults because their immaturity makes them less responsible and, hence, less culpable for their wrongdoing. Gideon Yaffe’s new book The Age of Culpability expresses skepticism about the developmental rationale and defends a version of the political rationale. By contrast, this essay finds important limits to the political rationale and defends a qualified version of the developmental rationale. In the process, it argues against treating the asymmetry between juvenile and adult crime as a categorical one.
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See, e.g., Barry Feld, Bad Kids: Race and the Transformation of the Juvenile Court (New York: Oxford University Press, 1999); Elizabeth Scott and Laurence Steinberg, “Blaming Youth,” Texas Law Review 81(3) (2003): 799–840; and David O. Brink, “Immaturity, Normative Competence, and Juvenile Transfer,” Texas Law Review 82(3) (2004): 1555–1585.
Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility (Oxford: Clarendon Press, 2018). Parenthetical references in this essay will be to chapters or pages in this book.
1978 N.Y. Laws, Chapter 478 §2(h) (codified as amended at N.Y. Penal Law §30.00 (McKinney 1998)).
Cal. Pen. Code §§187–188.
The trend is well documented in Patrick Griffin, Patricia Torbert, and Linda Szymanski, Trying Juveniles as Adults in Criminal Court: An Analysis of State Transfer Provisions (Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention, 1998); Howard Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report (Washington D.C.: Department of Justice, Office of Juvenile Justice and Delinquency Programs, 2006), Chapter 4; and John Whitehead and Steven Lab, Juvenile Justice, 9th ed. (Boston: Routledge, 2018), Chapter 8.
Michael Moore, Placing Blame (Oxford: Clarendon Press, 1997), p. 548, describes excuse as “the royal road” to responsibility. It’s important to recognize that it is a two-way street.
For fuller discussion, see David O. Brink and Dana K. Nelkin, “Fairness and the Architecture of Responsibility” Oxford Studies in Agency and Responsibility 1 (2013): 284–313 and David O. Brink, Fair Opportunity and Responsibility (Oxford: Clarendon Press, forthcoming).
For one useful survey, see Laurence Steinberg, Adolescence, 11th ed. (New York: McGraw-Hill, 2017). Also see Elizabeth S. Scott, N. Dickon Reppucci, and Jennifer L. Woolard, “Evaluating Adolescent Decision Making in Legal Contexts,” Law and Human Behavior 19(3) (1995): 221–244; and Youth on Trial: A Developmental Perspective on Juvenile Justice, edited by Thomas Grisso and Robert G. Schwartz (New York: Oxford University Press, 2000).
See, e.g., P. Finn and B. Bragg, “Perception of the Risk of an Accident by Young and Older Drivers” Accident Analysis and Prevention 18 (1986): 289–298; M. Tester, W. Gardner, and E. Wilfong, “Experimental Studies of the Development of Decision-making Competence” in Children, Risks, and Decisions: Psychological and Legal Implications (New York: American Psychological Association, 1987); and Scott, et. al., “Evaluating Adolescent Decision Making in Legal Contexts.”
See, e.g., T. Berndt, “Developmental Changes in Conformity to Peers and Parents” Developmental Psychology 15 (1979): 608–616; S. Steinberg and S. Silverberg, “The Vicissitudes of Autonomy in Early Adolescence” Child Development 57 (1986): 841–851; Scott et. al., “Evaluating Adolescent Decision Making in Legal Contexts.”
See, e.g., S. Anderson, A. Bechara, H. Damasio, D. Tranel, and A. Damasio, “Impairment of Social and Moral Behavior Related to Damage in Human Prefontal Cortex” Nature Neuroscience 2 (1999): 1032–1037; F. Benes, “The Development of Prefontal Cortex: The Maturation of Neurotransmitter Systems and their Interactions” in Handbook of Developmental Cognitive Neuroscience, ed. C. Nelson and M. Luciana (Cambridge: MIT Press, 2001).
Disenfranchised felons might also complain about incarceration without representation. However, in their case, disenfranchisement, whether right or wrong, is the consequence of conviction and incarceration. By contrast, juvenile offenders are incarcerated without ever having had the franchise.
For a sample of justifications of democracy, see Charles Beitz, Political Equality: An Essay in Democratic Theory (Princeton: Princeton University Press, 1989); Thomas Christiano, The Rule of the Many (Boulder: Westview Press, 1996); Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997); Richard Arneson, “Democracy is Not Intrinsically Just” in Justice and Democracy, ed. K. Dowding, R. Goodin, and C. Pateman (Cambridge: Cambridge University Press, 2004); and David Estlund, Democratic Authority (Princeton: Princeton University Press, 2007).
This concern about how the democratic rationale for the juvenile/adult asymmetry can avoid exculpating criminal wrongdoing by foreign visitors extends to Yaffe’s willingness to assimilate juvenile disenfranchisement to the disenfranchisement of felons. Though I don’t want to defend the political legitimacy of disenfranchising felons during, much less after, incarceration, it’s not clear why the state couldn’t equally well insist that disenfranchisement is part of the price of criminal offense, with the result that felons could be construed as having consented to forfeit the franchise when they choose to engage in criminal activity.
The worry that the democratic rationale for the differential treatment of juvenile offenders is not a free-standing rationale should be especially troubling for someone like Yaffe, who wants to accept the democratic rationale and reject the developmental rationale. Yaffe describes this kind of concern as “facile” (p. 8). But I’m not sure he ever explains why it is facile. The only reply he makes is to defend a comparatively high threshold for the franchise by appeal to claims about the way in which parental interests in influencing the further future through legislation, constrained by equality of influence, militates against setting the franchise threshold substantially lower (pp. 172–182). I found this discussion both hard to follow and normatively problematic insofar as it posits a legitimate adult interest in having a say not just about present policy but also about further future policy.
See Model Penal Code §2.10 and Manual for Courts Martial 2012, Rule 916(d).
Here, I revisit and express doubts about a position I defended in “Immaturity, Normative Competence, and Juvenile Transfer,” 1576–1577.
Currently, there is no provision for transferring immature young adults to juvenile court. Their options could be partial excuse or sentence mitigation in adult criminal court. However, these options are often excluded by mandatory minimum sentences in adult criminal court.
Though the argument is developed over four chapters, it is effectively summarized at pp. 158–159.
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Brink, D.O. The Moral Asymmetry of Juvenile and Adult Offenders. Criminal Law, Philosophy 14, 223–239 (2020). https://doi.org/10.1007/s11572-019-09518-4
- Adult offenders
- Categorical asymmetry
- Democratic authority
- Developmental rationale
- Juvenile justice
- Juvenile offenders
- Political rationale