Immaturity and irresponsibility.

• Author: Morse, Stephen J.
• Position: Symposium on the Future of the Juvenile Court

1. Introduction

   Our image of teenage offenders vacillates. We see them as wayward youths, as kids gone wrong, but who are nonetheless not "bad." This image is of the teen as a victim. They are misguided, immature, insufficiently socialized, but not evil. What they need is a therapeutic response that will permit natural maturation and socialization to set them on the right path. In contrast, we also see teen offenders as hostile predators, the products of unfortunate environments and perhaps heredity, who have little or no human sympathy or regard. This image is of the teen as a full-fledged criminal. Because they are evil and fully responsible, they must be punished to satisfy just deserts and to protect the public. At the extreme, they deserve to be executed. In the anecdotal reports that fill the media and that often drive public policy, it is not hard to find either image.

   The image of the teen offender as a criminal seems currently to predominate. Mid- to late-adolescence is a high-risk age for offending, especially violent offending,(1) and the increased availability and common use of weapons(2) makes teen violence particularly frightening. Although violent crime rates, including rates of violent juvenile crime,(3) are down in most major cities of the United States, the public still fears teen violence. Pictures of youths throwing a small boy to his death from a rooftop and of gang slaughter fill our minds. We are warned that a cohort of "superpredators" will soon emerge as the inevitable result of demographic variables.(4)

   The legislative and judicial reaction to public concern about serious and violent teen offenders has been substantial. Since 1992, forty-seven states and the District of Columbia have made changes in their laws governing the response to serious and violent juvenile offenders.(5) The rate at which the juvenile offender has been removed from the juvenile system and prosecuted in the criminal justice system has skyrocketed. Additionally, the traditional confidentiality of juvenile court proceedings and records is yielding to greater openness.

   Critics of these changes believe that they are unfair to juveniles, because juveniles are not fully responsible for their offenses, and that they will not protect public safety, because a criminal justice response will simply harden the antisocial tendencies already exhibited. They wish the juvenile justice system would adopt more flexible dispositional options that would give kids a genuine chance to grow up straight, while simultaneously exerting enough control over them to protect the public.

   The common law treated people fourteen-years-old as fully responsible.(6) Many think the common law was wise; many disagree. This paper addresses the claim that adolescent offenders are not fully responsible moral and legal agents. I make the assumption, which is almost universally shared in Anglo-American criminal jurisprudence, that desert based on moral fault is at least a necessary pre-condition for just punishment. If youths are to be adjudicated and punished like adults, it is therefore crucial to address the desert of youthful offenders. The focus on desert is not intended to gainsay the importance of other juvenile justice goals, such as prevention or reform. Depending on one's theory of punishment, such goals may be of great importance. But these other goals will be addressed only as they relate to the article's central question--the moral and ultimately legal responsibility of adolescent offenders.

   We cannot think sensibly about this issue unless we first have in place a robust theory of responsibility generally. Only then will we be in a position to consider the relation of what we know about juveniles developmentally and psychosocially to ascriptions of responsibility to juveniles. Indeed, the primary goal of this paper is to provide a theory of responsibility with which juvenile responsibility can be properly addressed. Part II therefore offers a theory of responsibility that is rooted in our current moral theories and actual practices of blaming and punishing. Part III explores whether juveniles meet the test of responsibility Part II provides. In particular, to determine which juveniles deserve mitigation, it reviews psychosocial and developmental variables that differentiate juveniles from adults. Part IV addresses the dispositional consequences that Parts II and III imply. I conclude that neither common sense nor behavioral science data resolve the issue of juvenile responsibility. How we should respond to juvenile offenders is ultimately a moral judgment that must be derived from our best normative account of responsibility.

2. Thinking About Responsibility

   This Part begins by explaining the law's concept of the person and how the legal conceptions of responsibility and excusing flow from the account of personhood. It then offers an account of what we are doing when we hold people responsible. This Part then offers a broader view of the criteria of responsibility. Finally, it addresses the many confusions about the premises of excusing that have hindered understanding.

   1. THE LAWS CONCEPT OF THE PERSON AND RESPONSIBILITY

      Intentional human conduct, that is, action, unlike other phenomena, can be explained by physical causes and by reasons for action. Although physical causes explain the movements of galaxies and planets, molecules, non-human organisms, and all the other moving parts of the physical universe, only human action can also be explained by reasons. It makes no sense to ask a bull that gores a matador, "Why did you do that?," but this question makes sense and is vitally important when it is addressed to a person who sticks a knife into the chest of another human being. It makes a great difference to us if the knife-wielder is a surgeon who is cutting with the patient's consent or a person who is enraged at the victim and intends to kill him.

      When one asks about human action, "Why did she do that?," two distinct types of answers may therefore be given. The reason-giving explanation accounts for human behavior as a product of intentions that arise from the desires and beliefs of the agent. The second type of explanation treats human behavior as simply one more bit of the phenomena of the universe, subject to the same natural, physical laws that explain all phenomena. Suppose, for example, we wish to explain why Molly became a criminologist. The reason-giving explanation might be that she wishes to emulate her admired mother, a prominent criminologist, and Molly believes that the best way to do so is also to become a criminologist. If we want to account for why Molly chose one graduate school rather than another, a perfectly satisfactory explanation under the circumstances would be that Molly knew that the chosen school had the most estimable criminology department. Philosophers and cognitive scientists refer to this mode of reason-giving explanation as "folk psychology."(7)

      The mechanistic type of explanation would approach these questions quite differently. For example, those who believe that mind can ultimately be reduced to the biophysical workings of the brain and nervous system--the eliminative materialists--also believe that Molly's "decision" is solely the law-governed product of biophysical causes. Her desires, beliefs, intentions, and choices are therefore simply epiphenomenal, rather than genuine causes of her behavior. According to this mode of explanation, Molly's "choices" to go to graduate school and to become a criminologist and all other human behavior are indistinguishable from any other phenomena in the universe, including the movements of molecules and bacteria.

      The social sciences, including psychology and psychiatry, are uncomfortably wedged between the reason-giving and the mechanistic accounts of human behavior. Sometimes they treat behavior "objectively," treating it as primarily mechanistic or physical; other times, social science treats behavior "subjectively," as a text to be interpreted. Yet other times, social science engages in an uneasy amalgam of the two. What is always clear, however, is that the domain of the social sciences is human action and not simply the movements of bodies in space. One can attempt to assimilate folk psychology's reason-giving to mechanistic explanation by claiming that desires, beliefs and intentions are genuine causes, and not simply rationalizations of behavior. Indeed, folk psychology proceeds on the assumption that reasons for action are genuinely causal. But the assimilationist position is philosophically controversial,(8) a controversy that will not be solved until the mind-body problem is "solved"--an event unlikely to occur in the foreseeable future.

      Law, unlike mechanistic explanation or the conflicted stance of the social sciences, views human action as almost entirely reason-governed. The law's concept of a person is a practical reasoning, rule-following being, most of whose legally relevant movements must be understood in terms of beliefs, desires and intentions. As a system of rules to guide and govern human interactions,(9) the law presupposes that people use legal rules as premises in the practical syllogisms that guide much human action. No "instinct" governs how fast a person drives on the open highway. But among the various explanatory variables, the posted speed limit and the belief in the probability of paying the consequences for exceeding it surely play a large role in the driver's choice of speed. For the law, then, a person is a practical reasoner. The legal view of the person is not that all people behave consistently rationally according to some preordained, normative notion of rationality. It is simply that people are creatures who act for and consistently with their reasons for action and who are generally capable of minimal rationality according to mostly conventional, socially constructed standards.(10)

      The law's concept of...