Center for Gender & Sexuality Law
This essay addresses how law makers should think about developmental immaturity in assigning criminal punishment to young offenders. This issue has received little attention in policy debates or in the academic literature, in part because young offenders traditionally have been dealt with in a separate system that held to the view that their disposition was not governed by the criminal law. In the past generation, this model of juvenile of juvenile justice has become obsolete, and, under recent reforms, youths are increasingly tried and punished as adults. These policy changes have proceeded with little attention to the conventional limits on punishment under the criminal law. Our goal is to fill this conceptual void by analyzing the culpability of young offenders within the broader framework of criminal law doctrine and theory. The essay uses the tools of developmental psychology to examine dimensions of adolescence that distinguish this group of offenders from their adult counterparts in ways that are important to criminal culpability. First, the scientific evidence indicates that teens are simply less competent decision-makers than adults, largely because typical features of adolescent psycho-social development contribute to immature judgment. Second, adolescence is a developmental period in which personal identity and character are in flux and begin to take shape through a process of exploration and experimentation. Youthful involvement in crime is often a part of this process, and, as such, it reflects the values and preferences of a transitory stage, rather than those of an individual with a settled identity. Most young law violators do not become adult criminals, because their youthful choices are shaped by factors and processes that are peculiar to (and characteristic of) adolescence. Because these developmental factors influence their criminal choices, young wrongdoers are less blameworthy than adults under conventional criminal law conceptions of mitigation. Contemporary theorists debate whether the source of criminal responsibility - and the basis for excuse and mitigation - ultimately derives from the actor's choice or his character. Choice theorists measure criminal blameworthiness by focusing on the actor's capacity for rational choice and opportunity to conform to the law. Character theorists argue that culpability is reduced when the actor can negate the inference that his act derived from bad character. Our analysis demonstrates that a model of juvenile justice that acknowledges the immature judgment and unformed character of young actors fits comfortably within both of these frameworks. The mitigation-based model is also consistent with criminal law doctrine and practice. Excuse and mitigation are available to two kinds of wrongdoers: those who are very different from ordinary people (because of endogenous incapacity such as mental disorder), and those who are ordinary people whose acts were responses to extraordinary circumstances or were aberrant in light of their past reputations and conduct. We argue that young offenders in a real sense belong in both groups. Adolescent decision-making capacity is diminished as compared to adults due to psycho-social immaturity. At the same time, the scientific evidence supports that most young law breakers are quite different from typical criminals in that normal developmental forces, and not defective character, drive their criminal conduct.
Elizabeth S. Scott,
Texas Law Review, Forthcoming
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1272