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Determining Age Exactly

A number of rules in criminal law have sharp cut-offs based on age.  We have constitutional rules limiting sentencing based on the age of the defendant in Roper v. Simmons and Graham v. Florida, and there are a host of statutory rules as well.  A murder might be death-eligible if the victim is a "child" as the law defines child.  And of course there are sex-with-minors laws where the difference between perfectly legal and a serious crime may turn on a single day.

Eugene Volokh points us to an immigration case where the Sixth Circuit pondered when exactly a person turns 18.  In Duarte-Ceri v. Holder, the government wanted to deport a habitual criminal. His mother had been naturalized on his 18th birthday.  When aliens are naturalized, their children under 18 get derivative citizenship.

Duarte claimed he was born in the evening, and therefore his mother was naturalized before he was fully 18 years old.  The majority bought that theory, but the dissent did not.  Judge Livingston stuck with the traditional view that only day matters, not time.  If the relevant event occurs on the 18th anniversary of the birth, the person is 18.

The majority's theory is unworkable.  Birth is not an instantaneous event, as all mothers and most fathers are well aware.  Births are not necessarily well documented.  Not everyone is born in a hospital.  Even determining date may be hard enough, especially for persons born in countries less developed than ours.  Determining time is harder still in such cases.

It is important to keep in mind that these sharp cut-offs are arbitrary to begin with.  We draw the age-of-majority line at 18 years not because it is magic but because it is as good a place as any once we decide we need a cutoff.  The main advantage of a sharp cut-off is simplicity, and we should therefore keep it as simple as possible.  Let us hope this decision is reversed before it causes mischief beyond the immigration laws.


The dissent is correct. For all other purposes, you become 18 at 12:01 am on the anniversary date. You can vote, buy cigarettes etc. anytime on that day. Why is this any different?

Even if you wanted to entertain this twisted argument, shouldn't the court demand strict proof via a birth certificate?

Who wants to bet the court took his word for it!

I have actually litigated the issue of age where it mattered a whole lot in a case involving a Hmong defendant (the hill people of Laos, in case you're wondering). The various documents we had showed no less than four different birthdates for the defendant, and given that the Hmong haven't even had a written language until relatively recently, and given that they usually mark dates of significance relative to other events (celestial events, harvests, etc.), it was all but impossible to fix the defendant's actual birthdate with any degree of certainty.

I can only imagine how much more difficult things would be if courts were then required to fix the time, as well as the date.

What a disaster.

Yes, the Hmong are exactly who I had in mind.

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