Should A Child Who Commits A Terrible Crime Be Tried As An Adult?

   This question arises both from my own recent research (for the book I am trying to write!) and from an op-ed in today's Boston Globe.  There was a terrible murder in an affluent suburban school.  A 16-year old, with a form of autism, stabbed and killed a 15-year old.  A sad, sad story.  It seems that, under Massachusetts law, that persons as young as 14, if they are indicted on murder charges, will stand trial as an adult, and face the possibility of a sentence of life in prison (there is no death penalty in MA).  Thus, today's op-ed was entitled, "A too-harsh law on juvenile murder."  James Alan Fox, Professor of Criminal Justice at Northeastern University, argues:

Codified in 1996, the law mandates that offenders as young as 14 charged with murder are automatically to be tried as adults -- no wiggle room for special or mitigating circumstances. The bill was fashioned in a climate of concern over unprecedented levels of youth violence in the early 1990s and the popularized notion of "superpredators" terrorizing our streets....

....

What the prevailing juvenile murder statute overlooks is that teen killers are simply not adults. They may walk, talk, and even kill like adults, but they think and reason like the immature youngsters they are. Recent research on brain development confirms that adolescents do not have the same capacity for judgment as do adults.

 I think both Confucians and Taoists would agree with him, though for somewhat different reasons. 

    A Taoist would reject the idea that a single, universal law can adequately, and fairly, be applied to a broad range of diverse individual cases.  Each thing is unique unto itself; each thing has its own inherent integrity (te) that unfolds according to its own destiny (and we might even say, logic), its tao.  Thus, not all "children" are the same.  Although it would be difficult to imagine what a Taoist jurisprudence would look like (the aversion to universal categories would make the articulation of laws near impossible), a Taoist-influenced judge might focus on the particularities of each case and not feel bound to impose strictly defined legal categories. 

     A Taoist response to the question - should children be tried as adults - would, therefore, come rather close to Fox's argument: generally, no.  "Children" are not "adults" - a sentiment that Taoists would embrace.  Children have different capacities and tendencies.  But Taoists would push this idea further than Fox would likely accept.  At what point does a "child" become an "adult"?  A standard age, applied to all individuals, would not be in keeping with Taoist sensibilities.  It would depend on the individual character of each person.  Some children might mature and become adult rather early; others much later.  Indeed, a Taoist might well jettison the distinction altogether.  What would matter is not some falsely universalized, one-size-fits-all notion of development but, rather the unique qualities of the individuals in question.

     For most children, those who are obviously immature and, perhaps, not fully aware of the effects of their actions, there would be little problem for a Taoist judge: if he or she is not an adult he or she should not be judged as an adult.  But neither would their be an absolute age at which everyone becomes an adult.  Some 16-year olds might well be held to more severe standards of punishment; others not.

     Again, in this particular case, given the defendant's autism and personality, a Taoist would likely say that he is not an adult and should not be treated as one legally.

     A Confucian would take a somewhat different view.  While agreeing that there should not be a single, age-based definition of "child" and "adult" - some individuals will come to moral maturity (and it is moral education that would matter for a Confucian) earlier than others - a Confucian would look beyond the individual involved and ask about his or her social context, especially the family context.

     For a child to commit murder, a Confucian would likely assume that there has been some sort breakdown in the child's moral education. 

     Obviously, a very young child will not have a sufficient moral understanding and might make a horrible mistake.  In such cases, the child cannot be held responsible.  If the parents were found to be uncaring or inattentive to the child's moral learning, then they might be assigned some portion of the blame.  But if the parents were making a sincere effort to raise the child well, and the child still committed such a terrible crime, then we might have to step back and say it was all just a tragic encounter that must now become a lesson for all involved.

    A 16-year old might pose a more difficult case for a Confucian.  At that point, while still young, a child might be expected to have taken on more of a moral sensibility.  And parents might be expected to have done more to make sure the child understood right from wrong.  Again, and I want to stress this here, the general approach would be a careful consideration of the particulars of each case.  A Confucian would broaden the analysis to include questions of parental care and attention.  But there would be no prior presumption of either the child's or the parents' guilt. 

     But even though they might ask somewhat different questions, a Taoist and a Confucian would probably agree on this case.  Given the particular qualities of the individual involved and assuming that the parents had done a reasonable job addressing their son's condition and educating him morally, he should not be tried as an adult.  Indeed, both ancient Chinese perspectives would even be open to an outcome that many modern Americans might reject: that, while the action was obviously wrong, we should not impose an unduly harsh punishment on the perpetrator.   

Comments

[lirelou]

As a former Massachusetts trial attorney who represented a 12 year old in Juvenile Court who swaggered about his neighborhood with a kitchen knife stuck in his belt, I support trying children as adults when and if the facts of their "crime" (yes, the word does not exist in juvenile courts) merit such. My client's next case was with a different attorney. He had by then stabbed a 13 year old girl in the stomach.

[Sam Crane]

The key here, I think, is discretion. In the case you cite perhaps the "child" needs to be dealt with seriously - though putting him in an adult prison hardly seems the right outcome. Some kind of restricted and monitored setting so he can not do harm to others: yes; thrown in with hardened adult offenders: no. Here's a question: what was the 12 year old's family situation? I imagine his parents were irresponsible....

[The Rambling Taoist]

I think the key to this specific case is much less age and should be focused more on the individual's autism. For individuals who suffer moderate to severe autism, I believe they should be tried in juvenile court REGARDLESS of their chronological age.

Of course, autism in and of itself is often mischaracterized in society. There are many individuals with this condition who can function relatively well in society. It depends on the depth and breadth of the autism and how it specifically impacts any given individual.

[lirelou]

Sam, single Latin mother, living in a mixed neighborhood full of welfare mothers where the kids served as lookouts and errand runners for the druggies. The druggies pumped the kids up with "They can't do nothin to you, man. You're a juvie". Could appear contrite and sincere with adults, but when in the company of children near his own age immediately became domineering, using either the threat of violence, or violence, depending upon who was present. But I like your suggestion.