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August 17, 2011

"Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?"

The title of this post is the title of this notable new piece by Professor Craig Lerner now available on SSRN. Here is the abstract:

Can the young be held accountable for their crimes?  At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years.  In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.

This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that that there are violent juvenile offenders -- fortunately rare -- who are as least as mature and culpable as the typical adult violent offender.  The Article also considers lower court applications of Graham and finds, for the most part, marked skepticism.  The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world.  Lower court judges have access to a wider data set in reaching contrary conclusions.

August 17, 2011 at 09:53 PM | Permalink


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We get morality around age 2, after hearing that most shocking word, no. Most criminals can be identified and are shunned by peers by age 3. Peer shunning is a reliable predictor of adult criminality. The Supreme Court in Roper does not seem to understand what the average 3 year old does. It reversed another precedent in Roper with justifications that were straight ipse dixit, cliches, and wrongheaded.

Nature makes us adults at 14, in the sense of the ability to have children. That is a bright line biological landmark of adulthood. Maturity progresses from experience. So the 60 year old is more mature than the 40 year old. The lawyer will use any pretext to protect the criminal. By age 18, the average criminal has led a life in the full time Roman Orgy lifestyle richer and more eventful than the average 60 year old. After seeing the example of the criminal, one should question one's own choices. The criminal has full protection from the lawyer, does not have to worry about the legal system. He is far freer to act on his desires. He is also more efficient. Why spend 4 years at Harvard, studying 80 hours a week, to gain a feeling of self-satisfaction? One can duplicate the feeling in 5 minutes smoking crack, and at $5, not $50,000 for tuition.

Posted by: Supremacy Claus | Aug 18, 2011 7:53:32 AM

The claim of the abstract ignores the court's central point in Graham: That even though there are undoubtedly cases of full culpability in juveniles, the risk of erroneously assuming it in any particular case is too great and therefore a bright line rule is required

Posted by: jacob berlove | Aug 19, 2011 8:58:35 AM

Thank you Mr. Berlove. It only takes that one sentence to expose the mammoth flaw in this article. The article is a classic straw-man takedown, characterizing the opponent's rationale in inaccurate terms and then dismantling those terms, without ever addressing the strongest points underlying the opponent's *actual* rationale.

Posted by: Anon | Aug 19, 2011 12:50:27 PM

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