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AbbePetuchowskiSecondEssay 4 - 22 May 2021 - Main.EbenMoglen
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| | | Lastly, for cases involving youth defendants, the inclusion of testimony and other evidence from psychologists, family members, and teachers will likely bring salient insight into the individualized nature of a defendant’s criminal capacity, offering an alternative to ill-fitting binary tests, overbroad generalizations, and harmful biases. Moreover, the stakes are high, Steinberg and Cauffman warn. Since adolescence is a formative period marked by malleability, a poorly-decided case can have especially devastating consequences. | |
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This was the right revision, well executed. You are now saying what you want to say, clearly, without overselling.
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AbbePetuchowskiSecondEssay 3 - 19 May 2021 - Main.AbbePetuchowski
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< | Culpability and The Infancy Defense
-- By AbbePetuchowski - 16 Apr 2021 | >
> | Reforming Maryland’s Infancy Doctrine
-- By AbbePetuchowski - 18 May 2021 | | | | |
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< | It doesn’t take a scientist or a parent to realize that children act and think in ways different than adults. If a toddler hits someone when they are angry, it is viewed in a more sympathetic light than if it were a middle-aged man engaging in the same action. In criminal law, the infancy defense serves as an attempt to reconcile this difference in cognitive development by determining a defendant’s culpability based on whether she “at the time of doing the act knew the difference between right and wrong.” In re Devon T., 85 Md. App. 674, 678 A.2d 1287 (1991) (quoting Regina v. M'Naghten, 10 Cl. and Fin. 200, 8 Eng.Rep. 718, 720 (1843)). While courts have applied variations on this test, this essay will specifically examine the use of the defense in In re Devon T. and its adequacy to measure culpability and justify punishment. | >
> | It doesn’t take a psychologist to recognize that children think and behave differently than adults. If a toddler hits someone while angry, it is viewed more sympathetically than if a middle-aged man engaged in the same action. The infancy defense is an early common law doctrine, now codified by several states, that generally establishes a conclusive presumption against criminal capacity for children under seven and a rebuttable presumption for youth between the ages of seven and fourteen. LaFave? & Scott, Criminal Law. While variations of this doctrine differ by state, this essay will specifically examine Maryland’s approach and its conformity with theories of childhood development. | | | | |
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< | In re Devon T.
In 1991, the Maryland Court of Special Appeals spoke on the issue of youth criminal capacity, when a defendant was charged with possession of heroin with intent to distribute. In re Devon T., 85 Md. App. at 679. On appeal, the defendant raised the infancy defense, since the offense had occurred when he was 13 years and 10 months of age. Id. However, the court held that circumstantial evidence rebutted this defense, since it demonstrated that beyond a reasonable doubt the defendant was capable of knowing that his act was wrong. Id. at 700. | >
> | Maryland’s Test for Capacity
As stated in In re Devon T., to rebut the presumption of incapacity, prosecution must produce evidence showing, beyond a reasonable doubt, that “the individual knew what he was doing and that it was wrong.” 85 Md. App. 674, 692. A.2d 1287 (1991). Furthermore, although the prosecution carries this burden, the standard of proof is sliding and the quantity of evidence required lessens as the defendant’s age increases. Id. at 694. Lastly, the court can infer cognitive capacity to differentiate right from wrong through circumstantial evidence of the criminal or his delinquent act itself. Id. | | | | |
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< | Infancy defense test
The infancy defense test, as stated by the In re Devon T. court, holds that children under the age of seven are definitively unable to form criminal intent, while children fourteen years of age and older are fully capable of criminal intent. Id. at 680. On the other hand, for children between the ages of seven and fourteen years, there is a “rebuttable presumption of criminal incapacity,” which the prosecution can overcome by demonstrating that the defendant knew the difference between right and wrong. Id. at 680, 688. Furthermore, this presumption functions on a sliding standard of proof, where a defendant’s presumed criminal capacity increases as his age increases. Therefore, in In re Devon T., where the defendant was only two months away from turning fourteen at the time of the offense, the State only had to overcome a minimal burden of proof. Id. at 694. | >
> | Applying Child Development Theories
Chronological age
While psychological theories vary regarding the causes and stages of moral development, there is a general consensus on the transitional nature of adolescence. Yet, although there is an overall pervasiveness of developmental change during this time period, psychologists note the enormous differences likely to be present between two individual adolescents and the inaccuracy of drawing generalizations about maturity based on chronological age. Steinberg and Cauffman. Moreover, environmental factors can also impact an individual’s moral development, causing further variation between peers of the same age. Womack. Therefore, Maryland’s use of a rebuttable presumption, rather than a bright-line standard for age, aligns with findings showing the ineffectiveness of measuring development by age alone. Furthermore, by establishing a threshold, the doctrine necessitates an initial individualized inquiry. For charges designed to minimize jury or judge discretion, such as felony murder or those with mandatory minimum sentences, this required fact-intensive analysis likely serves as a significant protection for youth.
Cognitive capacity
Piaget, and later Kohlberg, outlined stages of moral development marked by changes in a child’s cognitive capacity. Piaget’s work framed cognitive growth with relation to one’s ability to understand rules. With regards to moral judgments, he theorized that children move from viewing morality in terms of one’s adherence to fixed rules to developing a more nuanced understanding of mutually-formed rules promoting fairness. On the other hand, Kohlberg’s stages examined a child’s thought process in determining whether a behavior was right or wrong. In his theory, a child’s development begins with an awareness of externally-imposed rules and concepts of morality are based in self-interest, where an action is right if she can avoid punishment and wrong if she cannot. As her development progresses, she builds an understanding of morality grounded in her relationships with others, and eventually, in abstract values.
While the text of Maryland’s capability test appears to coincide with cognitive stages of moral development, it presents shortcomings when examined in conjunction with its application. Dismissing the need for evidentiary evidence from psychologists, parents, or teachers, the In re Devon T. court inferred capability based on circumstantial evidence alone, including the defendant’s use of his grandma’s house to hide his activities. 85 Md. App. at 698-700. Yet, the court’s declaration that “children who are unaware that what they are doing is wrong have no need to hide out or conceal their activities” seemingly satisfies only initial stages of moral development marked by an awareness of externally-fixed rules that must not be violated. Id. at 700. Although the court also inferred cognitive capacity from the nature of selling drugs itself, its use of terminology, such as “street wise young delinquents” notedly demonstrates the impact of bias on interpretation. Id. Without the requirement of additional evidence, it is unclear whether the defendant has matured to subsequent development stages, leaving concerning implications. Under Piaget’s theory, a child’s guilt at this initial stage is determined by the extent of his rule violation, rather than by his intent, thus providing inadequate insight into his criminal capacity. | | | | |
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< | Evidence sufficient to prove knowledge of right and wrong
In order to rebut the infancy defense, the State pointed out various factors, including that the defendant was essentially on grade level at school and, based on observations of his behavior during the hearing, he had the ability to understand the significance of criminality and incrimination. Id. at 696-697. However, the court placed the most weight on circumstantial evidence relating to the defendant’s conduct surrounding the offense and the nature of the act itself. Id. at 698-700. Specifically, the court inferred that the defendant knew his act was wrong, because he was using his grandma’s house as a “hide out” and the crime of selling drugs in its nature involves an awareness of its illegality. Id. | >
> | Proposed Reforms
While aspects of Maryland’s capacity test depart from developmental theories, the doctrine’s rebuttable presumption serves as a structural protection for youth defendants. With this in mind, there are two reforms that would better align this doctrine with development theories. First, in accordance with research dismissing the relevance of chronological age and the practical difficulty of requiring a jury to apply statistical probability to its capacity analysis, the sliding standard of proof should be removed. | | | | |
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< | Issues with culpability
The infancy defense doctrine establishes a child’s culpability based on her capacity to understand right and wrong and the wrongfulness of her actions. However, this distinction raises several issues with regards to child brain development. First, the In re Devon T. court relied substantially on evidence that the defendant hid his activities to infer that he knew what he was doing was wrong. The court stated that “children who are unaware that what they are doing is wrong have no need to hide out or conceal their activities.” Further, the court stated that it was “clear” that the defendant and his friends were “street wise young delinquents” based on this circumstantial evidence alone. Id. at 700. | >
> | Second, Maryland should consider adopting a definition of capability that is similar to the Model Penal Code’s test for legal insanity. MPC §4.01. Specifically, the wording could hold that a youth is not capable of forming criminal intent if she lacks substantial capacity to either appreciate the wrongfulness of her conduct or conform her conduct to the law’s requirements. By using “appreciate,” rather than “know” the prosecution would have an increased evidentiary burden that more closely aligns with later stages of moral development. Moreover, this new definition includes a volitional element, conforming to research showing that adolescents’ brains differ from adult brains biologically. This has an effect on behavior and decision-making, as adolescents are more likely to act impulsively and dangerously, while less likely consider the consequences of their actions. | | | | |
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< | However, the fact that a child knows that she is breaking a rule or law does not in itself establish capability to form criminal intent, as there is a difference between knowing you are breaking a rule and understanding the consequences of your actions on others. Psychological theories on the stages of moral development, such as those proposed by Piaget, Kohlberg, and Gilligan, acknowledge that a child’s cognitive ability to understand morality is developed with age. In early stages of development, a child may be able to understand that there are rules imposed by authority figures that must be obeyed or else there will be punishment, and, therefore, she may try to hide her prohibited behavior. However, a child’s ability to comprehend the impact of one’s actions on others and society as a whole is developed at later stages. Devon T. stated that his motivation was, “He just wanted something to do.” Id. at 700. If a child is developmentally unable to consider the impact of her actions on others, can he form the requisite criminal intent? | >
> | Lastly, for cases involving youth defendants, the inclusion of testimony and other evidence from psychologists, family members, and teachers will likely bring salient insight into the individualized nature of a defendant’s criminal capacity, offering an alternative to ill-fitting binary tests, overbroad generalizations, and harmful biases. Moreover, the stakes are high, Steinberg and Cauffman warn. Since adolescence is a formative period marked by malleability, a poorly-decided case can have especially devastating consequences. | | | | |
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< | Unjustified punishment
If a child is biologically prohibited from the ability to foresee and apprehend the extent of the consequences of her actions, the justifications for punishment are significantly weakened. First, the theory of retribution is premised on an individual's free, conscious choice to cause harm. If a child is not capable of understanding her action's harm, there is no retributive justice served by punishing her. In a practical sense, this same philosophy is evident in the way adults generally are more sympathetic to a child’s misconduct. Second, the efficacy of prisons serving the purposes of rehabilitation and incapacity for youth has been called into question by studies. Lastly, as psychological research suggests that children have less capacity for impulse control and rational decision-making, punishment serves as much less of a deterrent. In short, the test for the infancy defense does not align with justifications for punishment. However, rather than simply devising a new test, it is also crucial to reexamine these justifications more broadly as they relate to children and the possibility of utilizing alternatives to incarceration.
I think the best route to improvement might be described as compression and expansion. The basic law of juvenile criminal responsibility can be stated very briefly, buttressed by sparse necessary links. Then it is possible to state succinctly that developmental age, rather than numbers like "7" or "14," might be more psychologically exact. But whether Piaget and the Maryland Court of Appeals are actually differing is not demonstrated here, nor is it clear what you would substitute for a rebuttable presumption that children become responsible in our culture around the time that they have been deemed responsible in other cultures. Here is where I think the most interesting space for your own ideas is opened.
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AbbePetuchowskiSecondEssay 2 - 02 May 2021 - Main.EbenMoglen
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Culpability and The Infancy Defense
-- By AbbePetuchowski - 16 Apr 2021 | | | Unjustified punishment
If a child is biologically prohibited from the ability to foresee and apprehend the extent of the consequences of her actions, the justifications for punishment are significantly weakened. First, the theory of retribution is premised on an individual's free, conscious choice to cause harm. If a child is not capable of understanding her action's harm, there is no retributive justice served by punishing her. In a practical sense, this same philosophy is evident in the way adults generally are more sympathetic to a child’s misconduct. Second, the efficacy of prisons serving the purposes of rehabilitation and incapacity for youth has been called into question by studies. Lastly, as psychological research suggests that children have less capacity for impulse control and rational decision-making, punishment serves as much less of a deterrent. In short, the test for the infancy defense does not align with justifications for punishment. However, rather than simply devising a new test, it is also crucial to reexamine these justifications more broadly as they relate to children and the possibility of utilizing alternatives to incarceration. | |
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I think the best route to improvement might be described as compression and expansion. The basic law of juvenile criminal responsibility can be stated very briefly, buttressed by sparse necessary links. Then it is possible to state succinctly that developmental age, rather than numbers like "7" or "14," might be more psychologically exact. But whether Piaget and the Maryland Court of Appeals are actually differing is not demonstrated here, nor is it clear what you would substitute for a rebuttable presumption that children become responsible in our culture around the time that they have been deemed responsible in other cultures. Here is where I think the most interesting space for your own ideas is opened.
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You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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AbbePetuchowskiSecondEssay 1 - 16 Apr 2021 - Main.AbbePetuchowski
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Culpability and The Infancy Defense
-- By AbbePetuchowski - 16 Apr 2021
It doesn’t take a scientist or a parent to realize that children act and think in ways different than adults. If a toddler hits someone when they are angry, it is viewed in a more sympathetic light than if it were a middle-aged man engaging in the same action. In criminal law, the infancy defense serves as an attempt to reconcile this difference in cognitive development by determining a defendant’s culpability based on whether she “at the time of doing the act knew the difference between right and wrong.” In re Devon T., 85 Md. App. 674, 678 A.2d 1287 (1991) (quoting Regina v. M'Naghten, 10 Cl. and Fin. 200, 8 Eng.Rep. 718, 720 (1843)). While courts have applied variations on this test, this essay will specifically examine the use of the defense in In re Devon T. and its adequacy to measure culpability and justify punishment.
In re Devon T.
In 1991, the Maryland Court of Special Appeals spoke on the issue of youth criminal capacity, when a defendant was charged with possession of heroin with intent to distribute. In re Devon T., 85 Md. App. at 679. On appeal, the defendant raised the infancy defense, since the offense had occurred when he was 13 years and 10 months of age. Id. However, the court held that circumstantial evidence rebutted this defense, since it demonstrated that beyond a reasonable doubt the defendant was capable of knowing that his act was wrong. Id. at 700.
Infancy defense test
The infancy defense test, as stated by the In re Devon T. court, holds that children under the age of seven are definitively unable to form criminal intent, while children fourteen years of age and older are fully capable of criminal intent. Id. at 680. On the other hand, for children between the ages of seven and fourteen years, there is a “rebuttable presumption of criminal incapacity,” which the prosecution can overcome by demonstrating that the defendant knew the difference between right and wrong. Id. at 680, 688. Furthermore, this presumption functions on a sliding standard of proof, where a defendant’s presumed criminal capacity increases as his age increases. Therefore, in In re Devon T., where the defendant was only two months away from turning fourteen at the time of the offense, the State only had to overcome a minimal burden of proof. Id. at 694.
Evidence sufficient to prove knowledge of right and wrong
In order to rebut the infancy defense, the State pointed out various factors, including that the defendant was essentially on grade level at school and, based on observations of his behavior during the hearing, he had the ability to understand the significance of criminality and incrimination. Id. at 696-697. However, the court placed the most weight on circumstantial evidence relating to the defendant’s conduct surrounding the offense and the nature of the act itself. Id. at 698-700. Specifically, the court inferred that the defendant knew his act was wrong, because he was using his grandma’s house as a “hide out” and the crime of selling drugs in its nature involves an awareness of its illegality. Id.
Issues with culpability
The infancy defense doctrine establishes a child’s culpability based on her capacity to understand right and wrong and the wrongfulness of her actions. However, this distinction raises several issues with regards to child brain development. First, the In re Devon T. court relied substantially on evidence that the defendant hid his activities to infer that he knew what he was doing was wrong. The court stated that “children who are unaware that what they are doing is wrong have no need to hide out or conceal their activities.” Further, the court stated that it was “clear” that the defendant and his friends were “street wise young delinquents” based on this circumstantial evidence alone. Id. at 700.
However, the fact that a child knows that she is breaking a rule or law does not in itself establish capability to form criminal intent, as there is a difference between knowing you are breaking a rule and understanding the consequences of your actions on others. Psychological theories on the stages of moral development, such as those proposed by Piaget, Kohlberg, and Gilligan, acknowledge that a child’s cognitive ability to understand morality is developed with age. In early stages of development, a child may be able to understand that there are rules imposed by authority figures that must be obeyed or else there will be punishment, and, therefore, she may try to hide her prohibited behavior. However, a child’s ability to comprehend the impact of one’s actions on others and society as a whole is developed at later stages. Devon T. stated that his motivation was, “He just wanted something to do.” Id. at 700. If a child is developmentally unable to consider the impact of her actions on others, can he form the requisite criminal intent?
Unjustified punishment
If a child is biologically prohibited from the ability to foresee and apprehend the extent of the consequences of her actions, the justifications for punishment are significantly weakened. First, the theory of retribution is premised on an individual's free, conscious choice to cause harm. If a child is not capable of understanding her action's harm, there is no retributive justice served by punishing her. In a practical sense, this same philosophy is evident in the way adults generally are more sympathetic to a child’s misconduct. Second, the efficacy of prisons serving the purposes of rehabilitation and incapacity for youth has been called into question by studies. Lastly, as psychological research suggests that children have less capacity for impulse control and rational decision-making, punishment serves as much less of a deterrent. In short, the test for the infancy defense does not align with justifications for punishment. However, rather than simply devising a new test, it is also crucial to reexamine these justifications more broadly as they relate to children and the possibility of utilizing alternatives to incarceration.
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