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Juvenile Criminal Responsibility: Can Malice Supply the Want of Years?

Craig S. Lerner

George Mason University School of Law

August 12, 2011

Tulane Law Review, Vol. 86, No. 2, December, 2011, pp. 309-387
George Mason Law & Economics Research Paper No. 11-34

Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. This Article argues that embedded in the Court’s holding is a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides - both this assumption and this claim are demonstrably false in a nontrivial number of cases.

This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that there are violent juvenile offenders - fortunately rare - who are at least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, in many instances, marked skepticism. The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.

Number of Pages in PDF File: 80

Keywords: Atkins, Brain, Deterrence, Eddings, Eighth Amendment, Fare, Haley, Helm, Joe Sullivan, JWLOP, Lockett, LWOP, Murder, Neuroscience, Pardon, People, Punishment, Retribution, Roper, Sentencing, Simmons, Solem, State, Terrance, Thompson, Uttecht, W.I. Beveridge, Weems, William Blackstone, Yarborough

JEL Classification: K4

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Date posted: August 17, 2011 ; Last revised: October 22, 2013

Suggested Citation

Lerner, Craig S., Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? (August 12, 2011). Tulane Law Review, Vol. 86, No. 2, December, 2011, pp. 309-387; George Mason Law & Economics Research Paper No. 11-34. Available at SSRN: http://ssrn.com/abstract=1908953 or http://dx.doi.org/10.2139/ssrn.1908953

Contact Information

Craig S. Lerner (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
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