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2011-01-14 27页 pdf 170KB 35阅读

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未成年犯 NORVIN RICHARDS CRIMINAL CHILDREN During a six-month period in 1993, The Tuscaloosa News printed the following stories from the national wire-services: “Kids sentenced for trying to hurt teacher” “Six fourth-graders held on drug charges” “Boys raped woman, then w...
未成年犯
NORVIN RICHARDS CRIMINAL CHILDREN During a six-month period in 1993, The Tuscaloosa News printed the following stories from the national wire-services: “Kids sentenced for trying to hurt teacher” “Six fourth-graders held on drug charges” “Boys raped woman, then went to play, police say” None of these stories headlined the edition in which it appeared; none even made the front page, for that matter. Evidently, events of the sort they report are too commonplace for that, even though the kids who tried to poison their teacher’s iced tea were only in the sixth grade, the ones arrested for possession and intent to deliver cocaine were as young as nine years old, and the boys who gang-raped a woman and then stayed nearby to play basketball ranged from thirteen to seventeen. It is still distressing to read about children doing such things, but it is no longer astounding; it is no longer even particularly difficult to believe. That is largely because it happens so often. According to the FBI Crime Index, in 1992 there were 112,409 arrests of persons under 18 for violent crimes – for murder, forcible rape, robbery, and aggravated assault, that is.1 More than 300 every day, to put it differently. Children under fifteen accounted for 34,233 of these: on an average day, 94 people that young were arrested for violent crime.2 The number who committed such crimes but eluded arrest is incalculable, of course. 1 Uniform Crime Reports for the United States, 1992, p. 277. Unfortunately, this is scarcely a temporary aberration: “Between 1960 and 1981, arrests of juve- niles for violent crime increased nearly 250%, more than double the figure for adults during the same period. Although the juvenile court age group constitutes less than 14% of the population, it accounts for nearly one-fourth of those arrested for major violent crime such as homicide, rape, robbery, and felonious assault” (Martin Gardner, ‘Punitive Juvenile Justice: Some Observations on a Recent Trend’, International Journal of Law and Psychiatry, vol. 10, 1987, p. 140). 2 Uniform Crime Reports, p. 277. Law and Philosophy 16: 63–89, 1997. c 1997 Kluwer Academic Publishers. Printed in the Netherlands. 64 NORVIN RICHARDS Given all this, it is hard to sustain a certain picture of children that many of us have. According to that picture, a child is an innocent whose misbehavior, apart from that of the truly exceptional “bad seed,” is limited to minor mischief and the occasional great blunder. Children do sometimes do wrong, on this view, but in a very different way than adults do. The child’s wrongdoing never flows from an evil heart, the idea is – it is never a deed done coldly and responsibly, but something that simply happens, a kind of blameless error emerging from the storm of forces to which the child is subject. The child who does wrong must be corrected before he grows into a criminal, of course, but the point is that he isn’t a criminal yet – he is only a child, and one who needs our help. This picture seems hopelessly naive and old-fashioned, when one is confronted with the stories and the statistics. That is signif- icant, since it is not merely a fond image in the minds of nostalgic adults, but the conception upon which our juvenile court system was founded and that still gives that system much of its form. This image of children is the reason we don’t find adolescents to be criminal but only delinquent, hold adjudications for them, rather than trials, expect juvenile judges to function more as social workers than as dispensers of justice, and so on.3 If the old picture is to be discarded, though, what is the new one to be? Especially when it comes to children who act in ways that would be criminal if they were adults: if such children are not blameless innocents, what are they, exactly? One answer focuses on adolescents, defined as those between 14 and 18 years old. It contends that someone of this age who acts in a way that would be criminal if he were an adult should be considered capable of having acted culpably, but, if he does turn out to have done so, will have acted less culpably than an adult who committed the same crime would have. Adolescents can be criminals, on this view, but only criminals of a junior kind. The reason for their junior status is not that crimes are less serious or less harmful when committed by an 3 For a history of the juvenile system, see The Cycle of Juvenile Justice, by Thomas J. Bernard (Oxford: Oxford University Press, 1992). Serious efforts to move the system toward a penal model have been underway since at least In re Gault 387 U.S. 1 (1967), with uneven results. CRIMINAL CHILDREN 65 adolescent, but that adolescents are less blameworthy for committing them.4 The lesser-culpability thesis has at least three versions, which I shall begin by distinguishing. One of those versions is considerably more plausible than the others, I will argue, but I will also argue that not even this version withstands examination. As far as I can see, there is no sound basis for systematically considering culpable adolescents to be any less culpable than adults who commit the same crimes. A closing section discusses briefly the implications of declining to do so. I Charles Keene had been married to Billy Thompson’s sister, and had treated her in ways that made Billy very angry. One night, Billy and three older friends hunted Charles down. Later, “(t)he evidence disclosed that the victim had been shot twice, and that his throat, chest, and abdomen had been cut. He also had multiple bruises and 4 “To be just, punishment must be proportionate to the seriousness of the offense committed. ‘Seriousness’ is determined by assessing the characteristic harmfulness of the conduct and the degree of culpability of the offender. When related to juvenile crime, these principles of justice require that juvenile offenders be punished less severely than their adult counterparts : : : considerations of : : : characteristic harmfulness seemingly do not themselves demand deviation : : : Assessments of juvenile culpability do, however, strongly support a system of scaled-down punishments for offenders dealt with through the juvenile system. While the punitive model requires holding juveniles accountable for their offense, the extent of their accountability should not be synonymous with that of a similarly situated adults” (Gardner, p. 142). Gardner’s version takes only those who would not be transferred for trial as adults to be less culpable. This is a difficult class to specify, since a juvenile cannot be transferred unless the District Attorney seeks to have this done – a decision with political implications – and is then decided by reference to several variables. (In Alabama, for example, the judge is required to take six factors into account.) Versions of this position without this modification are put forward by Justice Powell, writing for the majority in Eddings v. Oklahoma, 102 S. Ct. 869 (1982); by Justice Stevens, writing for the plurality in Thompson v. Oklahoma, 108 S. Ct. 2687 (1988); by Andrew Walkover in ‘The Infancy Defense in the New Juvenile Court’, UCLA Law Review 31 (1984); and by Barry C. Feld in both ‘The Decision to Seek Criminal Charges: Just Deserts and the Waiver Decision’, Criminal Justice Ethics, Summer/Fall 1984 and ‘The Juvenile Court Meets the Principle of Offense: Punishment, Treatment, And The Difference It Makes’, Boston University Law Review 68 (1988). 66 NORVIN RICHARDS a broken leg. His body had been chained to a concrete block and thrown into a river where it remained for almost four weeks.”5 Each of the four participants was tried separately, and each was sentenced to death. Billy Thompson appealed his sentence, on the ground that he was only fifteen years old when the murder was committed. The Supreme Court ruled in Billy’s favor, finding that his youth made executing him unconstitutional – that to do so would violate the Eighth Amendment’s prohibition against cruel and unusual punishment. In part, the Court’s reasoning was that the death penalty would necessarily exceed the deserts of anyone so young. Unlike his older companions, a fifteen-year-old could not deserve so harsh a penalty; as a fifteen-year-old, he must have acted less culpably. Here is Justice Stevens to that effect, for the plurality: Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. The basis for this conclusion is too obvious to require extended explanation. Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.6 On one plausible reading, this sets forth a categorial assertion about adolescents.7 Specifically, it asserts that no matter who the adolescent happens to be, he or she must suffer from defects that diminish responsibility: he or she must be inexperienced, unedu- cated, less intelligent than an adult, and more vulnerable to surges of emotion and to peer pressure. That is just the way we all are when we are that age, and that is why no adolescent is as culpable for “irresponsible behavior” as an adult would be who acted in the same way.8 Although Justice Stevens believes that “(t)he basis for 5 Thompson v. Oklahoma, 108 S.Ct. at 2690. 6 Id. at 2698–2699. 7 Justice Scalia so reads it in his dissent. See especially 2711–2719. 8 Thompson v. Oklahoma, 108 S.Ct. at 2687, dissenting opinion. As Justice Scalia reads them, the plurality has found a societal consensus that “no one so much as a day under 16 can ever be mature and morally responsible enough to deserve” the death penalty (2718, his emphasis). Justice Scalia contends the consensus is only that such miscreants are rare. CRIMINAL CHILDREN 67 this conclusion is too obvious to require extended explanation,” let us consider how such an explanation would run. Notice first that we could not establish the conclusion that adoles- cents are always less culpable than adults by showing that every adolescent act is performed under some mitigating circumstance or other. That would establish only that adolescents are never fully culpable, and never deserve as harsh a penalty as a perfect villain would. This differs from their always deserving less than adults who commit the same crime, since clearly not every adult felon is a perfect villain either. It would remain possible for some adolescents to be more culpable than some adults, even if we could show they were always less than fully culpable. The premise required instead to establish Justice Stevens’s conclusion is that there is always greater mitigation for adolescent misbehavior than there is for the corresponding adult misbehavior, regardless who the two individuals are and what crime they commit. We would need to show that adolescents are always more ignorant of important matters, always under greater pressure, and so on. The trouble is that this is far from obvious. It seems especially implau- sible when the adolescent is about to graduate to adulthood and the adult has only recently done so. The difference in age might be a matter of days: why must the younger felon have acted with greater mitigation than the older? We could just insist that his adolescence guarantees this, but that would hardly be persuasive. The more plausible picture appears to be the one drawn by Justice Lewis Powell in an earlier case: “Minors who become embroiled with the law range from the very young up to those on the brink of majority. Some of the older minors become fully ‘street-wise,’ hardened criminals, deserving no greater consideration than that properly accorded all persons suspected of crime.”9 In short, this first version of the lesser-culpability thesis is not very convincing. It asserts that every adolescent must be less responsible for his or her misdeeds than any adult. It is difficult to see why that would be true, and easy to imagine apparent counterexamples. Consider, then, a second version, derived from Justice O’Con- nor’s reading of the Thompson opinion. She concurs with the plural- 9 Fare v. Michael C., 442 U.S. at 734, n. 4; 99 S.Ct. at 2576, n. 4; 61 L.Ed. 2d 197 (1979) (dissenting opinion). 68 NORVIN RICHARDS ity, but she takes its position differently. As she reads him, Justice Stevens was not asserting that every adolescent is necessarily less culpable than any adult, but only “that adolescents are generally less blameworthy than adults who commit the same crime.”10 Because that is the way things generally are, her reasoning goes, it is the best rule for us to follow. We should treat every adolescent as less blameworthy not because he or she must be, but because the typical adolescent is. Admittedly, this will give the exceptional adolescent a break he or she does not deserve, but that is just an unavoidable cost of employing the rule that fits most cases. The natural question to ask in response is why we should employ a rule at all, as opposed to determining each individual’s culpability separately. There are many contexts in which we do employ rules, of course, and in some of those we are concerned to give individuals what they deserve. (Think, for example, of choosing which students to admit to law school by reference to test scores and grades: those are rules of thumb we use even though, of course, we want to admit the most deserving applicants.) In general, a defense of using rules rather than something more individualized would rest on the following points. (i) Employing rules could be the only practical method, if there were a great many cases to be handled and it were necessary to reach a decision promptly. (ii) It could be that the generalizations on which the rules rested had very few exceptions, so that we would make very few mistakes if we employed them. (iii) It could be that the mistakes we would make were unimportant. (iv) It could be doubtful that anything more individualized would be an improvement. (For example, the generalizations could be the best basis we could have for predicting who would do well in college or in law school, with individualized procedures simply permitting hunches and biases to enter the process.) Assuming that this is the general way in which to defend using a rule to make decisions, how well could we defend using the rule that every adolescent is to be punished less severely than his adult counterpart? Certainly we could start by observing that there are a 10 Thompson v. Oklahoma, 108 S.Ct. at 2708 (concurring opinion), my italics. CRIMINAL CHILDREN 69 great many cases to be dealt with, and that promptness is important. After that, however, the defense would begin to break down. First, although there are many cases to consider, it isn’t even clear that using the rule would mean working through those cases a great deal more quickly than considering desert individually, nor is it clear that this is the only practical method by which to proceed. If we were to employ the rule that adolescents always deserve less than adults, we would still have to conduct a trial for each adolescent in order to determine his or her guilt or innocence and, if the verdict was “guilty,” decide which of the lesser adolescent penalties the defendant deserved. The rule would save us only from considering penalties so harsh that only an adult could deserve them, if there are any – execution, perhaps. That would save time, but only in those cases in which we might execute an adult. In short, this is not a context in which we can defend using our rule by saying we must do so in order to function. Nor is it easy to dismiss the errors we would make in employing our rule as unimportant slips that are not worth a great deal of trouble to avoid: they are miscarriages of justice, after all. On the one hand, they are errors in which we fail to give the wrongdoer what she deserved because we underestimate how badly she acted. On the other, they are errors in which we fail to treat equally culpable miscreants equally, since the adolescent gets off more lightly than the adult who was (in fact) no more culpable than she, and possibly even less so. The other elements of the potential defense are at best claims in need of support. It hasn’t been shown that there are only a few exceptions to the generalization that adolescents act less culpably than adults. Nor is it clear that considering adolescent culpability case-by-case would be no more accurate than employing the rule: certainly we think individualized consideration is more accurate when the defendant is an adult, and there is no reason to think that adolescence makes an individual’s culpability especially opaque to us. In sum, there are good reasons to doubt that we ought to employ the rule guaranteeing every adolescent a milder punishment than his adult counterpart. Essentially, it isn’t clear that this rule would be especially useful or desirable. Admittedly, my argument to this con- clusion has assumed that the burden is on those who want to abandon 70 NORVIN RICHARDS an individualized approach to culpability: I have assumed that we should consider cases individually unless there is good reason not to do so. This might be resisted on the ground that to individualize is to grant discretion, with discretion taken to be objectionable for a variety of reasons.11 The individualized approach I am recommend- ing for juveniles, however, is hardly the sort in which all decisions are ad hoc and the judge is expected to deploy resources of personal wisdom in the manner of King Solomon.12 I am recommending only that we treat adolescents in the same way as we do adults, individ- ualizing our consideration of them to the same extent we do that of adults we try for the same offenses. The discretion afforded by doing so has a variety of limits.13 More generally, I agree with Carl Schneider’s thesis that the proper question is not whether to allow discretion or insist on rules, but which mix of rules and discretion is best for the particular task at hand. As he argues, “The less risk of bias, the greater the need to ask whether substituting rules for bias, the greater the need to ask whether substituting rules for discretion would be more costly than 11 For extended discussions of discretion, see Discretion and Welfare, edited by Michael Adler and Stewart Asquith (London: Heinemann, 1981), Discretionary Powers: A legal Study of Official Discretion, by Dennis Galligan (Oxford: The Clarendon Press, 1986), and The Uses of Discretion, edited by Keith Hawkins (Oxford: The Clarendon Press, 1992). 12 Carl Schneider dubs this “khadi-discretion”, after Max Weber’s concept of khadi-justice. He borrows the following characterization from A. T. Kronman’s Max Weber (Stanford: Stanford University Press, 1983): : : : cases are decided on an individual basis and in accordance with an indiscriminate mixture of legal, ethical, emotional and political considerations. Khadi-justice is irrational in the sense that it is peculiarly ruleless: it makes no effort to base decisions on general principles, but seeks, instead, to decide each case on its own merits and in light of the unique considerations that distinguish it from every other case : : : The characterization of khadi-justice as a substantive form of law-making highlights another of its qualities, namely, its failure to distinguish in a principled fashion between legal and extra-legal (ethical or political) grounds for decision. It is the expansiveness of this form of adjudication-its willingness to take
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