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July 11, 2019

"Against the Received Wisdom: Why Should the Criminal Justice System Give Kids a Break?"

The title of this post is the title of this notable new paper authored by Stephen Morse now available via SSRN. Here is its abstract:

Professor Gideon Yaffe’s recent, intricately argued book, The Age of Culpability: Children and the Nature of Criminal Responsibility, argues against the nearly uniform position in both law and scholarship that the criminal justice system should give juveniles a break not because on average they have different capacities relevant to responsibility than adults, but because juveniles have little say about the criminal law, primarily because they do not have a vote.  For Professor Yaffe, age has political rather than behavioral significance. The book has many excellent general analyses about responsibility, but all are in aid of the central thesis about juveniles, which is the central focus of this essay review.

After addressing a few preliminary issues, the essay discusses Professor Yaffe’s negative argument against the validity of the behavioral difference rationale for giving juveniles a break.  If the negative case fails, which the essay argues it does, then the only issue is whether the book’s alternative is desirable.  Again, the essay argues that it is not, and concludes by offering three positive arguments for the traditional rationale: 1) coherence and simplicity; 2) a benignly definitional argument that survives the negative argument and supports giving juveniles a break in the exceedingly unlikely event that the empirical assumptions of the traditional rationale are proven incorrect; and 3) a proposal for individualization of the culpability assessments of juveniles so that the criminal justice system blames and punishes them proportionately to their culpability.

July 11, 2019 at 03:51 PM | Permalink


The real issue though is can one separate out the way we treat youth in the criminal law from the way we treat youth in the civil law? I've argued here in the past for giving 10 year olds the right to vote. But it is real question as to whether we as a society can go back to the Victorian Age when the age of consent was 12 for both sex and marriage. America has done a masterful job of persuading most of the rest of the world that pedophilia is the devil's work (there are a few scattered and isolated pockets that still reject this claim but they are fast dying out). So it is going to feel /culturally/ a lot like regression *whatever the intellectual justification* may be. Which is another way of saying the ship has sailed and there is no turning back.

This is one aspect of academia that never ceases to bug me. In a democracy, the question isn't just one of intellectual correctness or moral rightness but of persuadability. The long term trend has been to increase the age of culpability and I can't see any arguments that this trend is going to change.

Posted by: Daniel | Jul 11, 2019 5:34:42 PM

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