Law professor Kevin Lapp has a new article up on SSRN titled "As Though They Were Not Children: DNA Collection from Juveniles." Admittedly, my schedule these days leaves little time to read 55 page law review articles, so I have only skimmed the article this morning, but one theme of the article is commonplace and needs to be rebutted: Teenagers are not children.
Yes, all lawyers know that the law treats those less than 18 years of age as minors and rarely makes any distinctions between teens, tweens, and young children (although not always, see, e.g., family law) but it frankly ought to. A 17-year-old "child" has cognitive and developmental abilities that are clearly and categorically different than a 10 year old. Indeed, the old common law understood this simple proposition when it held that minors 14 years or older were presumptively responsible for crimes and could be punished as adults.
Now, of course, we are a more advanced society one might say, with our evolving standards of decency and reasoned moral responses. These trendy new standards are based on things such as neuroscience which shows that the brain does not become fully myelinated until one's late 20s. Never mind that we have no finding for how much myelination is necessary for reflective moral judgment nor have we tackled the much harder question of how much brain power and maturity is necessary for legal responsibility. Presumably, one is not required to have an optimal brain since 20-year-olds can vote, sign contracts, be conscripted, and enjoy the other privileges of adult life. They can even run for political office if they so desire.
Yes, all lawyers know that the law treats those less than 18 years of age as minors and rarely makes any distinctions between teens, tweens, and young children (although not always, see, e.g., family law) but it frankly ought to. A 17-year-old "child" has cognitive and developmental abilities that are clearly and categorically different than a 10 year old. Indeed, the old common law understood this simple proposition when it held that minors 14 years or older were presumptively responsible for crimes and could be punished as adults.
Now, of course, we are a more advanced society one might say, with our evolving standards of decency and reasoned moral responses. These trendy new standards are based on things such as neuroscience which shows that the brain does not become fully myelinated until one's late 20s. Never mind that we have no finding for how much myelination is necessary for reflective moral judgment nor have we tackled the much harder question of how much brain power and maturity is necessary for legal responsibility. Presumably, one is not required to have an optimal brain since 20-year-olds can vote, sign contracts, be conscripted, and enjoy the other privileges of adult life. They can even run for political office if they so desire.
So we can assume, safely I hope, that optimal brain development is
neither necessary for a responsible adult life nor for legal culpability
because if that is not the case, almost no one is responsible. Even for
those us who have passed our 30th birthday and have finished our myelin
journeys, along the way we've had what brain scientists like to call
"insults" to our precious three pounds of flesh that lays between our
ears. We've hit our heads, consumed caffeine and alcohol, deprived
ourselves of sleep and engaged in other activities that are detrimental
for a healthy brain. And yet we go on as fully culpable legal and moral
agents.
Frequently I come across articles that parallel the Supreme Court's juvenile jurisprudence arguing that teenagers are impulsive and foolhardy and therefore are not fully responsible. They act without fully considering the consequences of their actions, steeply discount the future, fail to plan ahead, and are less guided by social norms. There is no question about it, these attributes are true for most teens but they are also true for most people who end up in prison. Just because maturity delivers most teens from this impetuous existence does not answer the question of how much maturity, cognitive power, or brain development is necessary to be fully culpable. Should the bar be high or low? If it is lower for a category of offenders simply because that category is a transitory developmental one, why should that be the case? Would moral culpability not be more attenuated in those for whom this predilection of immaturity was lifelong as it is for those with intellectual disabilities rather than transitory as it is with teenagers? If impulsive brains are the marker of reduced culpability, I've got news for you: No one in prison is culpable. But to say that a category of people is less culpable because of their cognitive abilities simply begs the question of how much cognition is necessary for culpability.
At base, law is a system of rules that guides behavior. People act for reasons, even if those reasons are sometimes imprudent ones. We don't punish young children as adults because we understand that they don't know the rules of society. When asked why some behavior is wrong, they often say it's wrong because it's just wrong. They do not appreciate the moral force of the law that binds every person to the social contract. But by the time they're teenagers they surely do. They know that actions have consequences and that rights have responsibilities. They can empathize and appreciate that their actions can impinge on another person's safety and well-being. In other words, they are not children.
Frequently I come across articles that parallel the Supreme Court's juvenile jurisprudence arguing that teenagers are impulsive and foolhardy and therefore are not fully responsible. They act without fully considering the consequences of their actions, steeply discount the future, fail to plan ahead, and are less guided by social norms. There is no question about it, these attributes are true for most teens but they are also true for most people who end up in prison. Just because maturity delivers most teens from this impetuous existence does not answer the question of how much maturity, cognitive power, or brain development is necessary to be fully culpable. Should the bar be high or low? If it is lower for a category of offenders simply because that category is a transitory developmental one, why should that be the case? Would moral culpability not be more attenuated in those for whom this predilection of immaturity was lifelong as it is for those with intellectual disabilities rather than transitory as it is with teenagers? If impulsive brains are the marker of reduced culpability, I've got news for you: No one in prison is culpable. But to say that a category of people is less culpable because of their cognitive abilities simply begs the question of how much cognition is necessary for culpability.
At base, law is a system of rules that guides behavior. People act for reasons, even if those reasons are sometimes imprudent ones. We don't punish young children as adults because we understand that they don't know the rules of society. When asked why some behavior is wrong, they often say it's wrong because it's just wrong. They do not appreciate the moral force of the law that binds every person to the social contract. But by the time they're teenagers they surely do. They know that actions have consequences and that rights have responsibilities. They can empathize and appreciate that their actions can impinge on another person's safety and well-being. In other words, they are not children.
Collecting and analyzing DNA from all persons lawfully arrested for serious crimes regardless of their age serves the same legitimate (indeed, powerful) governmental interest identified in Maryland v. King: Using the CODIS database to determine whether or not the arrestee is connected to unsolved crimes, including unsolved murders and rapes. In addition to the primary purpose of Arrestee DNA laws, once an arrestee knows that his DNA is in a government databse he is, arguably, less likely to commit future crimes for fear of being caught via a DNA "hit."
With respect to persons arrested for serious crimes who are under 18, these government interests are equal to, if not greater than, they would be in the case of an adult. First, it is a sad reality that the under age 18 violent crimes element in America commits a significant number of violent crimes, including murders and rapes. Running their DNA through CODIS is almost as likely to result in a cold-case "hit" as their violent criminal adult counterpart. Secondly, the deterent effect of retaining the juve's DNA in a national unsolved crimes database is greater than that which would accompany an adult criminal. The juve has a long career ahead of him. And the sooner his DNA is collected and compared to an unsolved crime database, the more likely innocent, law-abiding, members of society will be protected.
At bottom, King is about protecting society from predators by means of a minimally invasive procedure (less invasive than fingerprinting). And in many cases society needs protection from juve criminals (especially those populating criminal street gangs) more than it does regarding adult offenders.
The author's proposal to carve out yet another criminal-responsibility exception for juves is unwarranted. And has the potential to result in a significant increase in the number of victims at the hands of these criminal predators.
so happy to stumble across someone who at least skimmed a law review article I wrote, if it is months later. I agree that teenagers are not children, though I don't think that carving them out of the category of child then places them in the category of (fully-responsible) adult. It's likely, as the universal existence of juvenile courts demonstrates, that juveniles or adolescents generally fall somewhere in-between children and adults. This is true both culturally, and from what we know from developmental science. Since criminal responsibility is not just about whether an act was right or wrong and whether the actor knew it was right or wrong, but about fixing the appropriate amount of responsibility for the actor's culpability, it seems that the differences between juveniles and adults still matters. We're free to disagree as to how much.
As for the comment about the benefits of DNA databasing, they certainly do solve crime, and to the extent they catch people who otherwise would avoid detection and incapacitation, prevent some unknown amount of future crime.
But if the justification for compiling DNA databases is to solve and deter crime,and it does so based on its ability to match crime scene evidence with individuals, then the bigger the DNA database, the better. There would seem to be no compelling reason to limit our collection only to those who have been arrested or convicted of crimes. Many more people commit crimes than are arrested or convicted. Would you agree that a universal government DNA database (populated, say, by the government taking a DNA sample from every child born in the United States, every person who gets a driver's license, every person who votes, and every person entering the country via ports of entry like airports and land crossings) is the best policy position? If not, given its purpose and the way it works, why limit DNA collection in any way?
Are you Professor Lapp? Unfortunately, Yahoo does not provide us with a recognizable user name for commenters signing in that way.
Thanks for weighing in, but please note that this post is a year and a half old, so it is unlikely that anyone but the administrators of the blog will see your comment.