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Wednesday, March 04, 2015

Defining Childhood

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries. 

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults.

But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

The obvious middle ground category is adolescence. There has been a tremendous amount of research about adolescence in the last two decades that has transformed our understanding of the period between the onset of puberty and adulthood. It is clear that adolescents are neither children nor adults, and it stands to reason that lawmakers may soon have to reconsider the binary approach and confront this more complicated reality.

In a series of recent juvenile justice cases (outlawing the death penalty and life without parole for juveniles, and requiring police to account for age in determining custody for Miranda purposes), the Supreme Court did not outwardly engage with this definitional problem. In 3 sentencing cases (Roper, Graham, and Miller), the Court predominantly used a binary approach. The holdings applied equally to all those under 18 (based on developmental findings distinguishing them from adults in relevant ways), at which point the categorical protections of childhood vanish.

But word choice matters, and it’s worth noting that even though the holdings in the punishment cases reflect a binary approach, the Court seemed to recognize that it was dealing with folks in that middle ground between childhood and adulthood. The court’s decisions address the “juvenile death penalty” and “juvenile life without parole” and “juvenile offenders.” A crude ctrl+F search, for example, found 97 mentions of “juvenile” in Kennedy’s opinion in Roper an­­­d only 9 uses of “child.” Similar results come from searches of Graham and Miller – much heavier use of “juvenile” instead of “child.”

Things get more complicated when we consider J.D.B., a 2011 case holding that the police must account for age in determining custody for Miranda purposes. Sotomayor’s majority opinion proclaims that “a 7–year–old is not a 13–year–old and neither is an adult.” Embedded in that observation is something more than a binary child-adult view. By recognizing that a 7 year old is not a 13 year old, the Court may be recognizing that the adolescent brain and psychosocial research so important to its decisions does distinguish adolescents from children in ways that matter to the law. It may be that the rules for 7 year olds should be different than the rules for 13 year olds, which themselves should be different than the rules for adults.

Yet, the J.D.B. majority opinion used “child” 55 times and “juvenile” only 17 times, with zero mentions of adolescence/adolescents. I’m curious about this. Was it a rhetorical strategy, to emphasize that the core issue is the different between children (everyone under 18) and adults, and the main concern the interaction between trained adult law enforcement officers and non-adult suspects? If so, why here and not in the punishment cases? Was it a rejection of the idea that the transitional stage of adolescence should have its own rules? If so, why recognize that 7 year olds are different from 13 year olds?

I intend to look closer at those questions, and the challenges in identifying what ­­­­­­a separate legal category of adolescents might look like, in a future post. 

Posted by Kevin Lapp on March 4, 2015 at 03:54 AM in Blogging, Criminal Law | Permalink


The adult activities exception is pretty interesting to teach in class because the cases are all over the map. For example, joyriding has been held to be a juvenile activity because kids steal cars to ride around. (I never have, but apparently it happens!) I don't think it would apply to playing with a gun, for example. An intentional tort (battery) would generally apply even to a five year-old who shot someone, if the jury thought the child intended the harm. Of course, the penalty is money damages, not jail, which makes the inquiry much more weighty.

Posted by: Christine Hurt | Mar 5, 2015 3:06:40 PM

I don't teach Torts, but the structure of responsibility is similar to the common law criminal responsibility rule: not criminally responsible under 7, presumed not culpable for 7-14, and 14 and over subject to the same rules as adults. I have no qualms with the tripartite setup--indeed, I think it's more calibrated to the different abilities of children and adolescents and adults--but the science on adolescence tells us that 14 is way, way too young to make a presumption of adult maturity and responsibility.

Again, I don't teach Torts, but from what I understand, there is an "adult activities" exception in Torts law that brings young people out of the protection of the "reasonable person of same age, intelligence and experience" standard. It's an example of defining maturity by acts, not age. And it's an approach I find deeply problematic, because whatever it is a young person does (homicide, or stealing a car and getting in a crash), they remain a young person and should not lose the protections of childhood/adolescence by virtue of making the kind of bad, or impulsive, or peer-influenced, or short-sighted, or thrill-seeking decisions that define adolescence. They should be accountable, but accountable at a level appropriate to their development. Whether that's decided by a bright-line age rule or on a case-by-case basis is harder to decide.

There's a similar "adult activities" exception that lurks in the criminal law, but without a name, whereby juveniles who break the law, especially when they commit serious offenses, are seen to have forfeited the protections of childhood by their actions and are considered more culpable and accountable as adults. Call it "Adult crime, adult time." But Roper, Graham and Miller (outlawing death penalty and mandatory life without parole for juveniles) are, in my mind, a clear repudiation of an "adult activities" exception in criminal law. They insist that the criminal law cannot proceed against young people as though they were not children, however awful or "adult" their actions.

Posted by: Kevin Lapp | Mar 4, 2015 4:53:38 PM

Very interesting. Have you ever taught Torts? The Restatement rule is that children less than 5 are incapable of being negligent, but between 5 and "majority," they must conform to that of a reasonably careful person of the same age, intelligence and experience. The minority "Illinois rule" is as you describe -- below 7, children cannot be found negligent. Between 7-14, there is a rebuttable presumption that the child is incapable of meeting the adult standard. 14 and over, there is a rebuttable presumption that the child is able to meet the adult reasonable person standard.

Posted by: Christine Hurt | Mar 4, 2015 3:18:22 PM

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