There’s a long tradition of the courts being lenient towards children who commit crimes. The question is why?
People tend to think kids deserve a break because they’re not as psychologically developed as adults and therefore can’t bear as much responsibility for their actions. But there are problems with this thinking.
Some offenders under the age of 18 are very aware that what they’re doing is wrong, and levels of maturity vary significantly across the age brackets, which would suggest that only certain children – not all – deserve leniency.
In a new book, The Age of Culpability: Children and the Nature of Criminal Responsibility, Gideon Yaffe grapples with this question, seeking what he calls "a rationale for a practice that I am certain has a good rationale".
Committing to a view that biology is the key factor would imply “that we ought to deny breaks to 16- and 17-year-old girls, who we have every reason to think are more like 19- and 20-year-old boys in psychological features that matter to culpability”.
Yaffe, who holds professorships at Yale University in law, philosophy and psychology, comes to the conclusion that the justification for being lenient to children springs from the fact that under-18s are denied the vote. This neat solution to the dilemma has significant implications for jurisprudence, and also deep relevance to the current debate about extending the franchise.
The Citizens' Assembly has recommended lowering the voting age to 16, and earlier this year a private members' bBill was introduced in the Seanad seeking such a reduction before the 2019 European and local elections.
But Yaffe says advocates should be careful what they wish for. As this week’s Unthinkable guest, he argues that reducing the voting age would justify treating 16- and 17-years as adults in the criminal justice system, while also creating a new type of power imbalance among over 18s.
Why be lenient towards children who commit crimes?
"It is widely assumed that the reason to be lenient towards children and adolescents who commit crimes is that their brains aren't fully developed, and so they don't understand what they are doing in the same way that adults do, or they can't control themselves in the way that adults do. But I think this is wrong.
“I think that we should be lenient even to children who are precocious in these respects, and so over the threshold of maturity of the normal adult.
“In my view, children who commit crimes should be treated more leniently than otherwise identical adults – not because of their neurological or psychological immaturity, but, instead, because they are denied the vote and so denied a full say over the laws that they violate.
“So, just as it is wrong to draft someone into the armed services who has no say over the actions of the government for whom he is asked to fight, it is wrong to give someone a full share of punishment when he has no say over the actions of the government that is punishing him.”
Should biological or developmental differences in children count for anything when decided whether to show leniency?
"If an offender has an excuse, that counts, whether the offender is an adult or a child. And biology can be useful for figuring out who has an excuse.
“The offender who has a lesion in his prefrontal cortex probably has an excuse, although we’d have to know more about how the lesion affects his psychology to know for sure. Does it interfere with his ability to form criminal intent, for instance?
“In the same way, the state of development of the offender can matter because it can matter to the question of whether he has an excuse. But this can’t be the only reason that age matters.
“Girls mature faster than boys, and so the fact that a girl is 16 is less likely to mean that she’s immature in ways that matter to culpability. But it would be appalling to conclude that girls therefore should be treated less leniently than boys when they commit crimes. As if when the offender is a girl we should throw away the key, but boys should be allowed to walk away from the courtroom.
“So, biological development can matter to individual adjudication, but age matters even when there’s no biological reason to think the person has an excuse. The reason is that age has independent political meaning: it marks the line between those who do, and those who do not, have a say over the law through the vote.”
Putting the focus on voting age highlights possible implications for criminal justice if the voting age is reduced. Should the voting age be lowered to 16?
"In my view, if you lower the voting age to 16 you have to accept that 16- and 17-year-olds are to be treated the way adults are for purposes of criminal responsibility. One of the burdens of having a seat at the table is that you're fully responsible when you violate the rules. So this is one factor that should be considered when deciding whether to lower the voting age.
“But here’s another: one of the main reasons why we deny the vote to, say, 10- and 12-year-olds is that to give them the vote would be to give extra political power to their parents. Parents of children of those ages are entitled, under the law, to control a great deal about their children’s lives that, in turn, shape voting behaviour. They are entitled to control who their young children talk to, what they read, and where they spend their time, for instance.
“So, by denying the vote to young children, we avoid an unequal distribution of political power between those who have children and those who do not.
“But notice that we have the same inequality problem if we give the vote to 16- and 17-year-olds while still giving their parents the entitlement to control a lot about their lives that matters to how they will vote.
“So, as I see it, here’s another factor that should be considered when weighing whether to lower the voting age: are we willing, also, to lower the age at which parents lose the right to control their children’s lives? If not, then lowering the voting age introduces problematic inequality in political power between those who have children and those who do not.”
It could be argued that oppressed minorities – the homeless and poor, for example – are not full citizens by virtue of their circumstances. Should they also be granted reduced culpability for any crimes they commit?
"The short answer to your question is yes. If a homeless or poor person commits a crime and that person, thanks to her poverty, has really lost her entitlement to exert influence over the law, then she is indeed reduced in criminal culpability and deserving of leniency. But this strong statement is actually weaker than it might appear.
“Poverty does not always and without exception result in this kind of disenfranchisement. It does so when it eliminates a real and meaningful opportunity to exert influence over the law of the kind enjoyed by those of us lucky enough not to be poor. But it’s important to see that even people of means do not have all that much opportunity to exert influence over the law themselves, and so the differences between rich and poor in this one respect – although not in many, many others – may not be that large.
“And, also, there are some who are poor but who, despite that, have just as real and meaningful opportunities to exert influence over the law as people with more money. And there is no special reason to treat them more leniently when they commit crimes.”
