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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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