Infancy, Age of Responsibility and Culpability of Adolescents

1. Infancy, Age of Responsibility and Culpability of Adolescents Class 6

2. CASE OF THE DAY • Kirk 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 court • Facts • Robbery-homicide committed at age 14 • Victim was “celebrated” member of community • Facts considered by the Court in transfer hearing included maturity, prior record, premeditation, heinousness, maturity, IQ, environment, moral reasoning

3. Background • Parents were age 14 when defendant was born, raised by grandparents • Child abuse, mental health problems, hospitalized and medicated, behavioral and disciplinary problems during hospitalization • School discipline problems • Therapeutic juvenile placement was available, Court doubted efficacy • Legal 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?

4. INFANCY • Does defendant below specified age have the capacity (mensrea) 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 mensrea • 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

5. Minimum transfer age indicated in section(s) of juvenile code specifying transfer provisions, 1997

6. 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 (mensrea) 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 society • Capacity to exercise control over impulses • Intent? You can have mensreaand still be developmentally immature. So, mensrea is separate from moral development, and orthogonal to capacity • Difference between capacity for constraint or control and reasoning capacity • Rebuttable?

7. Culpability in Constitutional Law

9. Three dimensions • Moral culpability – understanding law and social norms • Developmental culpability – developmental and functional maturation • Organic culpability – fully developed organic functioning to regulate emotions and behavior • Doctrinal bases • Excuse and Mitigation • Calibrated into criminal law doctrine • Immaturity as mitigator? • Other (contextual) factors?

10. Distinguishing Juveniles and Adults • In what ways are juveniles different from adults that makes them less blameworthy for their offenses? The components of maturation? • Evidence from Social Science • Understanding of Risks, Future Orientation(Social Experience) • Cognitive discrimination of social meaning • Risk and Thrill Preferences (Decision Making) • Emotional Regulation, Control of Impulses • Autonomy and Identity (Resisting Peer Influence) • Evidence from Natural Science • Frontal 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

11. Venables and Thompson – Comparative Case • Two boys ages 10 or less killed a child 2 years of age • Clearly not an accident • UK 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

12. The Difficulties of Bright Lines and Binary Categories • Historical 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 variances • The problem of errors • And are errors weighted by their consequences? • And if so, which consequences? Kennedy quote in Roper • Is Age a mitigator or an aggravator? (State in Roper)

13. Bright Line Age Thresholds 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?

14. Cumulative Rates of Maturation

15. 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 argument • Blended sentencing • Recreating 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 adolescence • New science comes full circle to early juvenile court • What would a “developmental jurisprudence” look like?