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Children who have committed criminal misdeeds deserve a break – this is the conclusion that Gideon Yaffe seeks in justify in his new monograph The Age of Culpability. By children, he means those who have not yet reached the age of legal majority, and by a break, he means reduced sentencing or procedural protections that make it harder to convict children in the first place. Putting this together, Yaffe wants to supply a rationale for treating minors less harshly than adults in criminal matters.
Before providing my summary and assessment of the book's claims, I should flag at the outset that this book is ambitious and intricate. As such, no digestible review can cover all the wonderful turns of argument present in the text. I consider the main set of arguments. Potential readers are on notice that other gems are to be found.
The book begins with a negative argument in Chapter 1. There, Yaffe claims that the break children deserve does not owe to psychological differences between them and adults. This should be surprising because various proponents of lenience for kids make much of new findings in developmental psychology. Indeed, recent caselaw emerging from the United States Supreme Court stresses psychological data about differences between children and adults when concluding that children deserve a break. Roper v. Simmons (2005) (outlawing the death penalty for children), Miller v. Alabama (2008) (outlawing mandatory life without parole for children), and Graham v. Florida (2010) (outlawing life without parole for non-homicidal children) all highlight the unique psychological profile of children, and these cases contend that this profile is culpability-reducing.
Yaffe does not deny these claims about child psychology, though he does question the mitigating force of some of this data. When talking about susceptibility to peer pressure, he writes, "Why, exactly, is someone who commits rape or robbery to impress his friends diminished in responsibility in comparison to someone who does it for the thrill of it?" (pg 26). Still, Yaffe's main problem with data about child psychology is neither that he subscribes to different psychological theories about children nor that 'children's traits' generally fail to reduce culpability. Instead, he thinks psychological data about children cannot be our reason for giving kids a break.
Yaffe appears to get some mileage from the sociological claim that "Everybody thinks that kids ought to be given a break" (pg 19). As he sometimes frames it, the book's project is to articulate the reason for our conviction about lenience for children. The aforementioned train of thought about children's psychology "does not capture the rationale to which we are committed for giving kids a break" (pg 30). The psychology rationale – that children generally, but not invariably, possess a trait that generally distinguishes them from adults and mitigates their culpability for wrongdoing – that is one version of what he calls the Proxy for Culpability Argument. He calls it that, for age, under that way of thinking, is a mere proxy for the psychological trait that does the real mitigating work. The Proxy Argument cannot be our rationale, Yaffe claims, because it would make our conviction for across-the-board lenience for juveniles fragile. If we discovered that age is not the best proxy for the mitigating psychological trait, we would no longer have reason to grant universal lenience for children. Our conviction is more robust than that, he claims, so we must seek a more robust rationale. One might be bothered by this "everybody thinks…" claim, but it is innocent. Yaffe needs not attribute to any of us any rationale or conviction. Instead, he only needs to claim that the Proxy Argument is less robust than the argument he offers later.
Yaffe's positive argument, the "political meaning of age" argument, occurs in Chapter 6 (pg 159). There is insightful setup for this argument especially in Chapters 3 ("Criminal Culpability") and 4 ("Desert for Wrongdoing"). For reasons of space, I skip over these. The main action is Chapter 6, and the argument, best as I can reconstruct it, looks like this.
- For a criminal defendant D, D's culpability for φ-ing is a function of the amount of say D has in determining how the law deals with φ-ing.
- If D enjoys rightly reduced say (vis-à-vis some control) in determining how the law deals with φ-ing, D has reduced culpability (vis-à-vis some control) for φ-ing 
- For any legal subject S, if equality and self-government demand that S enjoy reduced say in determining how the law deals with φ-ing, then if S enjoys reduced say, S enjoys rightly reduced say
- Equality and self-government demand that kids have reduced say
- Therefore, if kids enjoy reduced say in determining how the law deals with φ-ing, kids enjoy rightly reduced say [3, 4]
- Kids enjoy reduced say in determining how the law deals with φ-ing.
- Therefore, kids enjoy rightly reduced say in determining how the law deals with φ-ing [5, 6]
- Therefore, kids enjoy reduced culpability for φ-ing [2, 7]
- If D has reduced culpability for φ-ing, D deserves a break (vis-à-vis others)
- Therefore, kids deserve a break [8, 9]
A little exposition is in order. Several premises including (1) refer to the amount of "say" a criminal defendant has. This is a term of art from Yaffe. Having say over the law is having some entitlement to try to influence the law. Paradigmatically, a person has say by having a vote, but she may also have say by being allowed to freely speak about political issues. Children in the United States have some say because they have free speech, but they have reduced say, as they cannot vote.
Equality and self-government as they figure into the schema are arguments, and these are both supposed to establish that children deserve reduced say. The equality argument is the following. Childless people will have their say, in particular their votes, diluted by giving children the ballot because parents will essentially get more say since they have say over their children. Vote dilution is clearly inegalitarian. The self-government argument is the following. Self-government requires an ability to shape legal outcomes today and in the future; parents would lose "real and meaningful opportunities to exert influence over tomorrow's law" if their children were permitted to vote (pg 179).
With this added information, the gist of Yaffe's full positive argument becomes clear: Children deserve a break because they are disenfranchised, and, because it would be wrong to enfranchise children, the break they deserve is robust. Ingenious as this is, I have four key problems with it.
First, (4) is false because the equality argument fails. To see this, first consider the fact that an argument precisely of this form was offered to deny women the right to vote. Unmarried men claimed that granting suffrage to women would dilute their votes vis-à-vis married men because the latter would essentially have two votes. Empirically, this vote-dilution claim is shaky, but more importantly, we can now see this argument for what it was: a naked attempt to continue subjugating a politically powerless group. When employed to deny suffrage to kids, it is the same. Imagine a conversation between a childless adult and an adolescent. "It is unfair to deny me, a citizen of this country, the right to vote when all kinds of other citizens enjoy the right to vote," says the teenager. "Well, it is unfair to me to give you the vote since it might dilute my vote vis-à-vis others," the childless adult responds. That response is not compelling because, ceteris paribus, however unfair it might be to dilute one citizen's vote, it is even more unfair to deny another's vote altogether.
My second problem is another worry about premise (4), this time about the self-government component. Pace Yaffe, self-governance does not require denying children the right to vote. While some ability to shape legal outcomes in the future is surely part of self-governance, it is less clear how far into the future one must be able to project one's will or how much interference vitiates self-governance. Self-governance might be achieved by denying the vote to children too young to read. That buys anywhere from five to ten years of projecting one's will without interference. Why does self-governance require eighteen? Also, the value of self-governance seems to speak strongly in favor of allowing all competent citizens to vote.
The third problem with the argument is a counterintuitive upshot: children are not owed a break in non-democratic societies. This seems, then, to be a problem with premise (1). As an aside, I do not know why Yaffe thinks (1) is generally true, especially as a legal positivist.
Fourth, on Yaffe's view, children would not be wronged by giving them a vote instead of a break. If the argument worked, it would only establish that the state would wrong adults by giving children the ballot but no break. This seems to mislocate the wrong. If we want to talk about our conviction, our conviction is surely that the state would do something wrong to the child to hold her to the same standards as that of an adult, even if the child does have the right to vote.
These four flaws in the argument urge a return to the Proxy for Culpability Argument. What it lacks in robustness it more than makes up for in soundness.
Beyond my reasons for doubting his "political meaning of age" argument, I have another reason for wanting to return to the commonsensical Proxy for Culpability Argument: theoretical economy. We have a number of views about children. One is that they deserve a break in criminal matters. Another is that they deserve a break in moral matters. Yet another is that paternalism is less wrongful when children are its recipients. The "political meaning of age" argument, if it worked, would only cover the first of these commitments. We would need new arguments to justify the others. However, a version of the Proxy Argument might justify all three. Children generally, but not invariably, have not fully pulled themselves together into an autonomous self. This explains why children are less criminally and morally culpable and why paternalism is less wrongful when applied to them.
After offering his political argument for giving kids a break, Yaffe asks in Chapter 7 what other situations this argument might reach. He focuses on three groups who also fail to have full say over the laws that govern them. He mentions convicts who have lost their right to vote, visitors to a country, and the poor. About the first group, Yaffe argues that (a) we have no compelling reason to deny convicts suffrage and (b) insofar as we deny them suffrage, they deserve a break. Part (b) is precisely what one should expect from his theory. On the second group, visitors, Yaffe has a twist. Visitors qua visitors do not deserve a break, despite the fact they are not granted full say. Visitorship, says Yaffe, generally entitles one to treatment comparable to citizens. If one comes to a country, one cannot complain that one should be exempt from following the country's laws or that one deserves lenience because one is just reaping the treatment to which one is entitled. Visitor children deserve a break because they are entitled to treatment comparable to citizen children. On the third group, Yaffe says that the poor can exert all the influence over politics to which they are legally entitled. Thus, they do not deserve a break.
While I am hesitant about Yaffe's point about the poor, I only have one articulate qualm about this last substantive chapter of the book. I do not understand why Yaffe thinks that visitors generally ought to be treated as well as citizens. It is not clear that equality demands this, even in criminal matters. Suppose that one has the following view about punishment. How much punishment one should receive is a function of one's criminal culpability and how much issuing such punishment will cost society. The former element sets a ceiling, while the latter justifies downward departures. If one had a view like this, one could easily justify treating citizens and visitors differently, even when they have done the same misdeeds, because punishing citizens costs a society more than punishing visitors. When citizens and visitors are punished, society incurs the direct cost of their punishment plus the lost value of contributions to society they might have made but for the punishment. The lost value is likely larger for citizens than visitors because citizens have greater attachments to the society. If one had this view of punishment, one would end in the same place as Yaffe on adult visitors: they do not deserve a break. However, on the question of kid visitors, one would disagree with Yaffe; it does not look like they deserve a break. My point is not that we should be harsh to visitor children. Instead, I favor the Proxy Argument for all children.
Despite having harsh criticisms, I actually do recommend this book. The Age of Culpability is going to be talked about by scholars in law and philosophy for many years to come. It is daring and interesting in an age when so much of contemporary philosophy is staid. I confess that I have already assigned the book to a class of undergraduates, and they were riveted. It was a testament to the theoretical ingenuity and clarity with which Yaffe writes.
© 2018 Raff Donelson
Raff Donelson, JD, PhD, is an Assistant Professor of Law and Philosophy at Louisiana State University.