Trying Juveniles as Adults

There is an interesting discussion going on at Left2Right in reponse to one of the items in this post. Here is the story:

The first item reports the arraignment of a 16-year-old student for murdering a classmate with a shotgun. My wife and I do not know the boys, but we have grieved for them and their parents since the incident was first reported. Our grief was only deepened by the story linked here, reporting that the accused will be tried as an adult.

There are people arguing from both sides (those in favor of trying children as adults, and those opposed to it), and some of the comments are very good. For instance, some have cited neuroimaging research that shows juvenile brains to be less developed in the areas related to decision making and reasoning about the consequences of one's action. The most interesting comment, to me, is the one by Rob Kar. He writes:

I am currently teaching a course on contract law at Loyola Law School in Los Angeles, and one of the common law defenses to a breach of contract claim that I teach is--as several have noted--minority. (With some exceptions, minors are typically allowed to disaffirm a contract entered into as a minor.) The typical rationale for this defense is well captured by a number of things people have said here: minors are often thought somehow less than fully capable of (i) making appropriate judgments about what to do and/or (ii) conforming their behavior to those judgments. Minority is also typically a defense (or at least a mitigating factor) in criminal prosecutions. And I think it's often assumed that whatever capacity is lacking in one case is the same as what is lacking in the other.

His argument, in essence, is that if contract law assumes that children are not fully capable of making rational judgements and "conforming their behavior to those judgements," why should criminal law assume that they are? Thus, toward the end of the comment, he writes:

Here is the dilemma I pose to those who propose harsher treatment of juveniles: Either they must accept that there should be no distinction between the capacities needed to freely enter a contract and those needed to freely commit a tort or crime, or they must accept that something accounts for this distinction. I take it that they will be reluctant to take the former route and will want to take the latter. If, however, the best account of this latter distinction (and a number of their other intuitions) is fundamentally developmental, then the people making these proposals must accept that what it means to be capable of being legally responsible for one's actions has a specific developmental etiology. Then they must explain why they believe this capacity has developed at an earlier age than the law has thus far presumed.

I think there's another distinction between juveniles and adults that might make trying juveniles as adults inconsistent even with the philosophy of most conservatives. Adults can vote, while juveniles cannot. Similar to Kar's example, this fact carries the obvious implication that juveniles are not capable of the sort of rational decision-making with the consideration of consequences that voting requires, but it also carries with it an even deeper problem. Juveniles, by virtue of not being able to vote, have no say in the law-making process. For this reason, holding them responsible, to the full measure of the laws enacted by individuals for or against whom they are not able to vote is thoroughly undemocratic. By trying juveniles as adults, you are subjecting them to a system within which they are unrepresented. Juveniles, then, are not much different from various disenfranchised minority groups of the past.

This doesn't mean that juveniles should be immune to punishment. The responsibility of parents, and perhaps society as a whole, toward minors is to educate them in such a way that they can be integrated into society as responsible members. Parents can, in fact, be subject to punishments (both criminal and civil) when they fail to meet this responsibility, and the result is some harm to individuals or society at the hands of their children. This responsibility should extend to the sorts of laws that adults can pass with respect to the punishment of juveniles for criminal or civil offenses. These laws should be designed to aid in the "social education" of minors. Kar makes this distinction as well. Here is how he puts it:

This all leads me to make to another distinction that I take to be very important, and that is already implicit in what I have said thus far. This is the distinction between holding someone responsible *for the purposes of moral and social education* and holding them responsible *for the purposes of criminal sanctions.*

The point, then, is that while it is unjust to subject juveniles to punishment for the purpose of punishment, when they are not represented in the system that determines crimes and their corresponding punishments, it is just, and in fact imperative, that they be held responsible for their actions "for the purose of moral and social education." Thus, juveniles should be subject to prosecution for any crimes they may commit, but democratic principles demand that their be a distinction between the sanctions for adults and the sanctions for minors, and that distinction should be based on the differences in the justifications for those sanctions.