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REBIRTH OF THE INFANCY DEFENSE

By Robert E. Shepherd, Jr.

Robert E. Shepherd, Jr., is a professor of law at the University of Richmond T.C. Williams School of Law in Virginia and a contributing editor for Criminal Justice magazine.

Six years ago this column addressed the related subjects of age and mental capacity in juvenile delinquency proceedings, with the focus being largely historical and theoretical with respect to age as an issue of capacity. (See, Robert E. Shepherd, Jr., Juvenile Justice, 6(1) Crim. Just. 48 (Spring 1991).) However, legislative and other policy developments over the intervening period have transformed the brief discussion in that column into a far more relevant issue worthy of greater elaboration. Since 1992 all but 10 of the states have greatly liberalized the ability of the state to try juveniles as adults, a number of them at earlier ages than previously. In addition, public and law enforcement access to juvenile court records has been broadened considerably. (Patricia Torbet, Richard Gable, Hunter Hurst IV, Imogene Montgomery, Linda Szymanski & Douglas Thomas, State Responses to Serious and Violent Juveniles (1996).) In more than half the states juveniles may be transferred to criminal court by judicial waiver, prosecutorial waiver, or statute for certain serious offenses committed prior to their fourteenth birthday, with a significant number of these jurisdictions permitting adult treatment for children of any age for at least some offenses. (Linda Szymanski, Stat Variations in Age Restrictions for Trying Juveniles in Criminal Court, (NCJJ 1997).)

Even those youths retained in the juvenile or family court for handling as delinquents are increasingly exposed to sanctions that focus more on accountability than treatment, and they may be deprived of their liberty for longer periods of time pursuant to serious offender statutes. (Torbet et al., 1996.) Juvenile court adjudications may be utilized more freely to enhance subsequent adult sentences under three-strikes laws or pursuant to sentencing guidelines in both the federal and state criminal justice systems. In other words, the once large gulf between juvenile or family court rehabilitation and treatment and adult criminal court handling has narrowed considerably, if it has not disappeared entirely. In light of these major developments, the defense of infancy deserves a new look and fresh consideration by those involved in the juvenile justice process.

The common law approach

Prior to the establishment of the juvenile system as a separate jurisdictional entity beginning in 1899 in Cook County, Illinois, children who committed criminal acts were tried and largely sentenced as adults in the criminal courts. A benign movement had begun earlier in the 19th century to develop separate institutions for the incarceration of these youthful offenders, such as through the House of Refuge or Reformatory movements. Nonetheless, the principal vehicle for differentiating between children and adults in criminal law was through the common law rules on criminal capacity. Those rules defined 14 as the age of adulthood for purposes of criminal responsibility, seven as the minimum age for those same purposes, and the period between seven and 14 as the zone of presumptive incapacity with a duty on the government to prove capacity beyond a reasonable doubt if it wished to prosecute the youngster for the crime. A child below the age of seven was conclusively presumed to be incapable of being held responsible in the criminal law for his or her acts. (Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law (2d edition, 1986).) As a practical matter, the rebuttable presumption between ages seven and 14 was at its strongest at seven and diminished in strength as the youthful defendant approached 14.

The impact of the juvenile court movement

With the establishment of the juvenile court at the turn of the 20th century, the status of these common law rules became far less clear. Did they still have legal vitality? Could a child under the age of seven be charged with delinquency, or even a crime? Was the prosecution obligated to prove criminal capacity beyond a reasonable doubt for any juvenile under the age of 14? The answers to these questions were far from clear. Pleas of infancy, or incapacity based on age have generally proven to be ineffective in juvenile delinquency proceedings around the country. Courts almost universally rejected arguments based on the common law rules on the theory that those rule were formulated to insulate particularly young children, or immature older children, from the severe rigor and singular penal focus of the criminal justice system, at least prior to the landmark decision constitutionalizing juvenile justice in In re Gault, 387 U.S. 1 (1967). Consequently, as the reasoning logically progressed, since the juvenile court itself was established to protect young children from exposure to the adult criminal system, the reason for the previously protective rules of the common law no longer existed. (State v. D. H., 340 So.2d 1163 (Fla. 1976); S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1973); In re Davis, 17 Md. App. 98, 299 A.2d 856 (1973).) The cases place great emphasis on the rehabilitative ideal and focus of the juvenile justice system and the protection that it affords to juveniles charged with antisocial behavior, and they posit that the juvenile court can provide for the protection and treatment of young offenders. A typical early case was Ex rel Humphrey, 139 Tenn. 549, 201 S.W. 771 (1918), wherein the Tennessee Supreme Court rejected the viability of the infancy defense for a seven-year-old accused of killing a playmate on the assumption that the success of such a defense would deprive the fledgling juvenile court of its ability to provide necessary treatment to the child.

A few courts have examined the question of incapacity more closely, focusing on the question of age in the context of the child's ability to entertain criminal intent or have sufficient mens rea necessary to satisfy the elements of the offense. For example, pursuant to section 26 of the California Penal Code, the courts in that state have regularly held that the prosecution must rebut the statutory presumption of incapacity for children under the age of 14 as a part of its burden of proof. (In re Gladys R., 1 Cal.3d 855, 464 P.2d 127, 83 Cal. Rptr. 671 (1970); In re Nirran W., 207 Cal. App. 3d 1157, 255 Cal. Rptr. 327 (1989); In re Michael B., 149 Cal. App.3d 1073, 197 Cal. Rptr. 379 (1983); In re Tony C., 21 Cal.3d 888, 582 P.2d 957, 148 Cal. Rptr. 366 (1978).) Even Florida, which has rejected infancy as a defense in delinquency proceedings, has accepted the concept of incapacity on the basis of age where the child's age is so young as to negate the necessary criminal intent for a conviction. (Porter v. State, 327 So. 2d 820 (Fla. App. 1976).)

The IJA-ABA Juvenile Justice Standards

Thus, although the courts as a general rule have rejected an infancy defense as such, predicated on the traditional common law rules, the question of age is still highly relevant to the existence of criminal intent. The IJA-ABA Standards Relating to Juvenile Delinquency and Sanctions in Standard 2.1 propose limiting the juvenile court's delinquency jurisdiction to children who are "not less than ten" and in Standard 3.2 they urge that "where an applicable criminal statute or ordinance penalizes risk-creating conduct, it should be a defense to juvenile delinquency liability that the juvenile's conduct conformed to the standard of care that a reasonable person of the juvenile's age, maturity, and mental capacity would observe in the juvenile's situation." The juvenile's age would thus always be relevant, even in states where infancy is not a defense, and in spite of the Standards failure to recognize the infancy defense itself.

The modern view

Professor Sanford Fox, one of the sages of juvenile court jurisprudence, has argued on policy grounds that the infancy defense must be available in juvenile court proceedings and Professor Andrew Walkover has argued persuasively that the increasing criminalization of the juvenile court requires the use of the defense in order to fairly address the more basic question of the moral and criminal culpability of children. (See Sanford Fox, Responsibility in the Juvenile Court, 11 William & Mary L. Rev. 659 (1970); Andrew Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L. Rev. 503 (1984).) Walkover's arguments are the more persuasive, partly because they are farther removed from the Gault watershed than Fox's discussion, and because they reflect more the new realities on the transformed juvenile justice system. Thirteen years and almost light years of statutory revisions later, his arguments are compelling. In addition, the literature on the capacity of children to bear moral responsibility for their acts is more fully developed. The evidence in the case should focus on "the child's capacity to understand the nature and consequences of his acts and to distinguish right from wrong in reference to the charged offense." (Walkover, supra, at 559; Redman v. State, 580 S.W.2d 945 (Ala. 1979); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977); In re Gladys R., supra) However, the court should go a step further and inquire into the degree of impulse control the youth is capable of exercising. (Walkover, supra, at 559 560) Between the ages of seven and 14 the inquiry should be individualized, with attention paid to the child's age, experience, knowledge, and conduct surrounding the offense. (In re Gladys R., supra, 1 Cal.3d at 866, 464 P.2d at 136, 83 Cal. Rptr. at 680) Since Gladys R., a substantial body of case law has accumulated in California around the capacity determination and these cases and factors should be explored fully. (In re Tony C., supra; In re Nirran W., supra; In re Roderick P., 7 Cal.3d 801, 500 P.2d 1, 103 Cal. Rptr. 425 (1972).)

As previously noted, relatively few cases have addressed the question of capacity based on either age or mental ability in juvenile court cases, and many of those decisions are fairly early in the period following the Supreme Court's Gault decision. Consequently, the issue of infancy should be raised in all cases where it is appropriate. Certainly, if a juvenile under the age of 14 is being tried as an adult in a criminal court, the defense should be raised as a matter of course and the line of cases rejecting the defense in the juvenile justice system would be wholly inapposite. However, even where the proceeding is in the juvenile or family court, the defense should be considered, especially where the legislative definition of the court's role has shifted from rehabilitation to punishment and accountability, and maybe even more persuasively where the consequences of guilt adjudication are barely distinguishable from those utilized as sanctions in the criminal court. It is important to determine who has the burden of proof, or at least the burden of persuasion--the prosecutor or defense--and what the quantum of proof must be. It is also important to develop the evidence carefully, using psychologists, teachers, parents, and others, and to make a strong record for use on appeal, if necessary. The ancient nature of the defense, stemming from the common law, and yet its novelty in this century, might necessitate an appellate resolution of the issue in many states.

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