Children deserve leniency in law, and the reason is political

<p><em>Photo by Francis Demange/Gamma-Rapho/Getty</em></p>

Photo by Francis Demange/Gamma-Rapho/Getty


by Gideon Yaffe + BIO

Photo by Francis Demange/Gamma-Rapho/Getty

Milagro Cunningham was 17 when he abducted, beat and raped an eight-year-old girl in Florida in 2005. He then placed her in a recycling bin, piled it with rocks, and left. Miraculously, she survived. If Cunningham had been 30, or even 19, we would not refrain from giving him the worst punishment his crime warrants. But he was under 18, a juvenile in the eyes of the law, in other words: a child. Should that fact matter? Should it support giving him a discount on the price he is to pay for his crime?

As a matter of conscience, it should – even kids such as Cunningham deserve a break. In fact, in every mature legal system, age matters. In the United States, a child cannot be sentenced to die for any crime, and there are restrictions on life-without-parole sentences for juveniles. Further, the vast majority of child criminals in the US are punished through juvenile courts, which are more lenient than adult courts.

But why does age matter? Why are we under an imperative to be more lenient to a child criminal than to an otherwise identical adult? Sure, children’s brains are different. But that does not justify leniency. If it did, then we should not be lenient when we have reason to think the defendant’s brain is not immature. This means, given the current state of research, that we should be less lenient, all else being equal, to girls than to boys, since girls mature faster. Sixteen-year-old girls should do adult time while their male age-mates do less. But is anyone really willing to accept such an appalling result? When a boy and a girl together conspire to commit a robbery, would you be willing to give a longer sentence to the girl than to the boy? To defer to the science is to follow it where it leads. But we deceive ourselves if we think we are willing to follow the science of child development in this domain.

Besides, if neural immaturity were what justified leniency, it would be because it provided some familiar excuse already available in law to anyone, whether adult or child. To adopt an additional policy of leniency towards kids would be unnecessary. Cunningham, for instance, was convicted not just of kidnapping and rape, but also of attempted murder. The jury needed to be convinced that when Cunningham piled the bin with rocks and walked away, he was not indifferent to whether the girl lived or died. Rather, he was positively aiming to kill her. The law is that any defendant who can raise a reasonable doubt about intent to kill thereby escapes conviction for attempted murder. If, for instance, Cunningham had anonymously called an ambulance after leaving, that would have undermined his attempted-murder conviction. It would have excused attempted murder (although not kidnapping and rape).

Cunningham made no such call. But, still, brain science might support reasonable doubt about his intent. We know that adolescents, especially when in heightened emotional states, do not think straight about consequences. Given that, perhaps Cunningham was not thinking clearly enough to be aiming at the girl’s death. Perhaps he was too addled to have had a clear goal at all when he left the scene. Cunningham had a chance to bring this kind of evidence to court to show that he did not intend to kill; he had the opportunity to call a developmental psychologist to the stand. But if the jury is not in doubt after seeing such evidence – if it is convinced that, while typical kids might have an excuse, the person in the courtroom does not – then the brain science has fallen short of supporting leniency. And yet, for all that, leniency is warranted. Cunningham deserves a break even if he did indeed attempt to kill his victim. Since we should be lenient even when the brain science does not supply an excuse, it’s not the brain science that supports leniency.

But then what does? The answer is the subordinate political position of children, as I argue in my book The Age of Culpability (2018). Even precocious kids are denied a say over the law. They do not have the right to vote, and their speech protections are diminished in comparison with adults. Our government does not have the right to punish us merely because we have done wrong. It has the right to punish us because it is our government, and we have the right to punish ourselves. The government’s behaviour is our behaviour, including both the decision about what to label a crime and the decision about what to do to those who violate our standards of conduct. Our behaviour is the government’s business because it is our business, and the government is ours. Adult citizens who are punished are complicit in the actions of the government against them thanks to their entitlement to exert influence over the law through the vote and through free-speech protections.

Complicity of this sort is crucial to the legitimacy of legal punishment. A punishment is not the action of the state against one of its outside enemies; it is not a military action. It is an action of the state against one of those whose voice guides the state’s actions. When the person punished has a say over the law, the punishment is self-inflicted. And it must be self-inflicted in this way to be fully justified. So, those who are diminished in their say over the law are diminished also in the degree to which they are fitting objects of criminal punishment.

That’s why it’s right that the voting age and the age of adulthood for purposes of criminal responsibility are aligned. If you’re not old enough to vote, then you don’t carry the same legal responsibilities as voters. Say the jury was correct about what was in Cunningham’s head. Say he chose to kill his victim by leaving her to die, rather than through more direct and immediate means. Even so, to treat him like an adult who did the same thing would be to ignore what was different about Cunningham: he was a child, and so a member of a disenfranchised class. The actions of the government against him are not his actions against himself in the same way that they would be if he were an adult. Criminal punishment has a better claim to justification in a democracy than in alternative political systems. To accept that idea is also to accept leniency towards children who are, and behave, no less monstrously than many adult criminals.

The Age of Culpability (2018) by Gideon Yaffe is published via Oxford University Press.