1. Infancy, Age of Responsibility and Culpability of Adolescents Class 5

2. CASES OF THE DAY Tate Update –Freed to custody of his mother just before 17 th birthday –Plea agreement to second degree murder –Competency issues to be addressed –Time in incarceration has been in a juvenile facility where he received counseling –Total time served is a little more than three years, plus pretrial detention –Continuing obligation for 1,000 hours community service, counseling and school attendance –Issues?

3. Simmons Update –SC will take up question of juveniles and the death penalty –Who is the fifth vote? What is the significance of the court taking up the appeal? –What factors will the decision turn on? Atkins parallels?

4. Kirk Otis –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 –Delay in processing affects window of “rehabilitation” and alters calculus of decision making in transfer hearing –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

5. –Background Parents were age 14 when defendant was born, raised by grandparents Mental health problems Low IQ (below Atkins threshold) –Legal questions about transfer statute Extended jurisdiction applies to “infants” (below 14) in capital cases, and to adolescents (14+) for a longer list of offenses –Jurisprudential questions ? Tensions?

6. Infancy Does defendant below specified age have the capacity (mens rea) to understand the wrongfulness of his actions? The infancy defense in effect creates a third category of age-related culpability: –Infants –Adolescents –Adults Traditional boundary was 7 years of age. Based on capacities for understanding and reasoning

7. Now, some states have no minimum age, a reflection of celebrated and horrific cases (e.g., AK case of Golden and Johnson; Bulger case) Recent discourse conflates capacity for action with developmental state (mens rea) of the offender? –what dimensions of his or her developmental state are relevant? Intent? Separate from moral development, and orthogonal to capacity

8. Venables and Thompson Ages 10 killed child age two 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

9. Culpability

10. 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?

11. 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

12. The Difficulties of Bright Lines and Binary Categories Historical Development and Change –Changing notions of adolescence (see, Bazelon’s discussion of “superpredators”) When are People Mature? –For what social and individual functions? –The problem of variances

13. Bright Line Age Thresholds Marry Drive a Car Join the Military Enter into Contracts Consent to Medical Procedures Vote Drink Alcohol Consent to Sexual Activity Criminal punishment

14. Cumulative Rates of Maturation

15. Translating Doctrine of 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