Tuesday, December 29, 2009

Killing at Age 8: How Should the Law Respond?

At common law, there was a clear gradation of criminal responsibility based on age. Children younger than 7 were conclusively presumed to be incapable of criminal capacity, and those who were over 14 were treated as fully responsible.

What about those between 7 and 14? The common law created what lawyers call a “rebuttable presumption” of criminal incapacity. In other words, children of that age were not considered criminally accountable for their actions − unless the presumption could be overcome by the particular facts of a given case.

How the common law does or does not match up with current research on juvenile brain development is beyond the scope of this post So is the question of how the common law and brain research relate to modern statuotry schemes. Suffice it to say that, for a real-life application of the interpetive relevance of the old principles, one need only turn to Arizona, where in February a boy pleaded guilty to negligent homicide for killing − at age 8! − his father and a man who rented a room from the family.

The boy has not yet been sentenced. The options under consideration, at the time of the plea in February, included confinement in a county juvenile lockup, probation, institutionalization for treatment, or being sent to live with relatives.

The New York Times account on December 1, 2008 did, however, bring out several salient facts. The boy’s father, Vincent Romero, was actually a stepfather, and the boy had kept a ledger documenting the number of times he had been spanked. The boy told a Child Protective Services worker that when the tally totaled 1,000, he would have reached his limit. And in a videotaped interview conducted the day after the shootings, the boy said that, on the day before the shootings, Vincent Romero had spanked him five times on his mother’s orders.

Regardless of what disposition is right for the son, what about the mom?

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