Should youths be punished and how? Opinions on the matter are not so clear-cut. Two experts give their opinions – one from a psychiatric point of view and another from a legal.
I : Too young to incarcerate
The intersection of childhood and criminality creates an uncomfortable
tension. Crime is something we associate with adults. Childhood is generally
a time of innocence.
But when a dreadful crime is committed by a young offender we don’t know what to do. In the face of this frustration and confusion – how could a child so young do something so terrible? – many propose rash and radically wrong solutions, like prosecuting and punishing all children as if they are adults.
But juvenile offenders are not magically transformed into adults by virtue of the seriousness of their crime. As hard as it is to do after tragedies like a shooting in an elementary school, we must remember that young offenders are children who have done something terrible, not criminals who just happen to be small. And because of this, our response to juvenile crime, no matter how serious the offense, must be different than our response to adult crime.
First is the issue of culpability. Determining criminal responsibility is more complicated than deciding whether an individual knows right from wrong. To be held accountable for a crime, the person not only needs to know right from wrong, but he also needs to be able to envision and understand the consequences of his behavior and have the cognitive and emotional abilities necessary to control his behavior. Because children younger than 13 can not do this consistently, we should not hold them as accountable as we hold adults for similar crimes.
Second, children lack the skills necessary to defend themselves in court. Like it or not, under our system of justice all defendants deserve a fair trial, no matter how heinous the alleged offense or how “sure” we are of the defendant’s guilt. People who do not understand what is happening to them when they are in court – whether because of mental illness, mental retardation, or sheer immaturity – are not competent to defend themselves in a trial.
Finally, young people are not yet fully formed. Many, but not all, can be rehabilitated through counseling, education, or a change in living circumstances. Punishment, however, does not have a rehabilitative effect (if anything, it makes juvenile offenders worse), nor has it been shown to deter other kids from crime. So when we decide to punish a juvenile offender by sentencing him as an adult, we are, in effect, giving up on that child. Maybe there are some on whom we should give up. The problem is that we are terrible at predicting which children are amenable to rehabilitation and which are not. And in the absence of our ability to forecast accurately, should we not err on the side of rehabilitation?
We must respond to juvenile crime in a way that recognizes the seriousness of the offense and the suffering of the victim. But our response must be developmentally appropriate, taking into account the normal intellectual and emotional immaturity of children. Yes, a bullet fired by a child has the same impact as one fired by an adult. But we can not let the nature of the offense, no matter how disturbing, overshadow what we know about the inherent differences between children and adults.
Laurence Steinberg is the Director of the John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice and the Distinguished University Professor of Psychology at Temple University.
II : Treating children like children
As the news came that a 6-year-old boy had apparently killed a 6-year-old
classmate with a handgun, a collective feeling of shock, dismay, and outrage
was palpable around the country. Experts, advocates and commentators rushed
to dissect and unravel this latest story of violence, seeking rational
explanations for the murder of yet another child.
But this is not a murder story. Murder is a pre-meditated act done with the specific intent to take a human life. Children of six do not have the intellectual, emotional or cognitive ability to premeditate and plan such an act of violence, nor do they have the mental capacity necessary to even understand the consequences of such an act. Children of six who still believe in the tooth fairy, the Easter bunny and Santa Claus cannot possibly grasp the finality of death. Children of six copy the adults around them, for better or worse, but children of six never cease being simply children.
The law recognizes the absurdity of treating a child as young as six as a criminal. For more than 500 years, our legal tradition has recognized that children of six do not have the ability to form the “criminal intent” necessary to support the prosecution and conviction of someone charged with a crime. Significantly, no prosecutor around the country has yet stepped forward and urged the criminal prosecution of this child who is barely beyond his toddler years.
But while this is not a murder story, it is a tragic story of a failed childhood. As the grainy images of drugs, guns and long-term parental neglect begin to fill in the outlines of his short life, the emerging picture of that life reveals a little boy living with neither of his parents, and neither a home nor a bed to call his own.
While we mourn as a society the little girl who lost her life, we must also renew our commitment to give all children the opportunity to live and grow up in stable and safe homes where toys, not guns, are caught in the bedsheets. While the criminal and the juvenile justice systems have nothing to offer this little boy, we as a society do. Quick intervention to meet not only this child’s right to a loving home, but also to address whatever social, emotional and behavioral issues he is already confronting, are our best insurance against him – and others like him – doing further harm.
As states across the country have competed with one another to lower the age of criminal responsibility, this case must serve as a brake on the rush to ascribe adult qualities to younger and younger children. Children are not small adults. Childhood crimes require responses that heed the unique nature of childhood, and allow the child to grow into a responsible adult. Save the adult time for true adult crime.
Marsha Levick is the Legal Director of the Juvenile Law Center, a Philadelphia-based legal service for children that protects and advances children’s rights and well-being.
16 February 2001