31 uclalr 503 for educational use only page 1 31 ucla l ... · fashion. [fn16] common law criminal...

UCLA Law ReviewFebruary, 1984

*503 THE INFANCY DEFENSE IN THE NEW JUVENILE COURTAndrew Walkover [FNa]

Copyright 1984 by the Regents of the University of California; Andrew Walkover

I. INTRODUCTIONDuring the past twenty years two successive waves of reform have struck the juvenile justice system, [FN1] radicallyrevamping both *504 its conceptual basis [FN2] and its constituent elements. [FN3] Led by the Supreme Court, the judiciaryhas substantially eviscerated the parens patriae doctrine [FN4] by imposing basic requirements of procedural *505 dueprocess [FN5] on the juvenile court. In response, many legislatures have reformulated the substantive law of the juvenilejustice court by limiting its jurisdiction to youths committing acts that would be crimes if committed by adults [FN6] and bysubstituting principles of personal accountability and punishment for treatment as the animating forces in allocatingdispositions. [FN7]

This rejection of parens patriae theory, the constitutionalization of juvenile process, and the shift toward more traditionalprinciples of criminal law raises practical and conceptual problems for the juvenile justice court that can no longer be wishedaway by reference to its "benign"' purposes. In particular, the criminalization of juvenile justice theory raises the issue ofwhether the "infancy defense"'--which states in part that children between the ages of seven and fourteen are presumedincapable of committing crimes [FN8]--should be applicable to juvenile justice *506 proceedings.

The common law infancy defense met its demise when legislatures created the juvenile court as an entity separate from thecriminal court. Treatment was substituted for the traditional aims of the criminal law [FN9] as the conceptual basis in thelaw's dealings with juvenile offenders. [FN10] Despite the recent shift back in the juvenile law toward process, punishment,and accountability, legislatures and courts have been slow to recognize that the infancy defense is essential in justifyingjuvenile justice jurisdiction over accused offenders. [FN11] Without resort to the infancy defense, a juvenile proceeding mayproduce the unacceptable result of subjecting a child who has not been found to know the wrongfulness of his act to a systemthat is largely criminal in nature.

This Article proposes that in juvenile justice proceedings the state should shoulder the burden of proving that a defendantbetween the ages of seven and fourteen had capacity to understand the wrongfulness of his conduct. [FN12] My argumentessentially rests *507 on the observation that the new juvenile system harbors many of the same systemic characteristicsintrinsic to the common law's scheme for dealing with juvenile deviance. The infancy defense was an essential component ofthe common law limitation of punishment to the blameworthy. It is urged here that the recent switch from treatment back toblameworthiness as the hallmark of juvenile offender law lays the basis for recognizing the infancy defense's crucial role inthe new juvenile justice court. Integral to this argument is a reconstruction of juvenile justice theory that locates the newjuvenile justice court's rationale in making children accountable for criminal acts. [FN13] I assert that appropriate limits *508on the accountability principle must be grounded in a conception of the child's limited capacity to be culpable and not in aperception of his vulnerability or need for treatment.

This Article first briefly reviews the infancy defense at common law. The focus then shifts to the social and intellectual

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origins of the American juvenile court and the rise of parens patriae theory to provide a systematic explanation for the demiseof the infancy defense. Next, the recent transformation in juvenile justice theory is examined in Supreme Court decisions andjuvenile justice legislation is explored. The Washington statute is offered as a paradigmatic legislative statement of this trend.[FN14] Having established *509 the criminal nature of the juvenile justice system, the Article then advances argumentssupporting application of the infancy defense in the new juvenile justice court. [FN15] These arguments proceed in severalstages.

First, the concept of criminal culpability as a core component of the criminal law is explored. Then psychological research onchild moral development is reviewed, indicating support for intuitive judgments embodied in the infancy defense concerningbasic differences in child and adult capacity to be culpable. The Article next addresses the key role played by the infancydefense in ensuring the jurisdictional legitimacy of the juvenile justice track of the overall criminal process. The Articleconcludes by defining the parameters of an acceptable infancy defense in analyzing the burden of production, burden ofpersuasion, and measure of proof required in the capacity determination.

II. THE INFANCY DEFENSE AT COMMON LAWAt common law there was no separate juvenile court. All offenders were processed through the same criminal court system,were bound by the same substantive law, and, absent the greater likelihood of pardon for children, were punished in similarfashion. [FN16] Common law criminal culpability was based on both an assumption of capacity to know wrongfulness andproof of the specific mens rea required to commit a crime. [FN17] It has long been *510 recognized that children are lesscapable than adults of understanding wrongfulness or of possessing the intent required to legitimately impose punishment.[FN18]

The common law's resolution of this basic tension between culpability and juvenile status [FN19] was lodged in the infancydefense. [FN20] This defense constituted a series of presumptions that embodied largely intuitive judgments concerning achild's capacity to take responsibility for individual acts. These presumptions had the effect of screening out the non-culpablefrom treatment as adult offenders. Children under the age of seven were conclusively presumed to be incapable of takingresponsibility for their acts and thus were precluded from criminal adjudication. [FN21] Children over the age of fourteenwere regarded as adults and thus *511 were presumed capable of committing crimes. Between these two ages the commonlaw created a rebuttable presumption of incapacity. [FN22] For a child between the ages of seven and fourteen to be subjectto the criminal jurisdiction of the court, the state had to overcome a presumed incapacity [FN23] on the part of the child byshowing that the child knew the wrongfulness of his act. [FN24]

*512 At common law the infancy defense was grounded in an unwillingness to punish individuals incapable of formingcriminal intent and thus incapable of assuming responsibility for their acts. [FN25] Linked to that normative imperative wasthe common sense judgment that punishment cannot deter an individual from commission of future wrongful acts where he isin fact incapable of knowing right from wrong. [FN26]

As legal doctrine, the structure of the infancy defense stemmed from fundamental common law concerns with responsibility,punishment, and deterrence. As a social construct, the infancy defense served as a means for dealing with emerging concernsabout the welfare of children [FN27] and, in particular, perceived cruelties to children that inevitably occurred when theywere punished as adults. Blackstone, for instance, cites a case in which an eight-year-old boy was hanged for burning down abarn. [FN28] Such horror stories were not easily ignored. [FN29] Both in England and America children were potentiallysubject to long sentences and to incarceration with hardened criminals. [FN30] In the late 1800's, however, shifting attitudestoward children and an emerging sense of unease with retributive punishment heightened the effect of such practices in thelegal and public imagination and cleared the way for a radical transformation in the law's treatment of children. By the late



1920's the infancy defense and its underlying basis--inclusion of children within the criminal justice system--*513 had largelyfallen into desuetude. [FN31] Special juvenile courts had been created extending jurisdiction to all children in need of the aidof the state. [FN32] Treatment of offending juveniles supplanted culpability as the animating spirit of the law's dealings withjuvenile offenders. [FN33] In turn, the focus of judicial inquiry shifted from the offense to the offender. Diagnosis and itstrappings replaced the traditional fact and fault-finding function of the common law. [FN34]

III. PARENS PATRIAE THEORY AND THE JUVENILE COURTThe causes of this radical transformation in society's dealings with its deviant children are the subject of heated historicaldebate. The traditional view was that juvenile court partisans were motivated solely by the spirit of reform in opposingbarbaric treatment of children. This position has come under sharp attack by critics who view juvenile court proponents asbureaucrats and profiteers desiring to extend unbounded, self-aggrandizing physical and intellectual control over lower-classchildren. [FN35] Whichever*514 account of this transformation is accepted, it is clear that juvenile court reformers couldconceive of changing the way in which deviant children were treated only because of broader shifts within the structure of thefamily.

In feudal times the transformation from infancy to adulthood was an abrupt transition. [FN36] Several phenomena thenoccurred which changed the nature of this transformation: there were shifts in the post-feudal family away from virtuallyexclusive emphasis on paternal authority towards a more egalitarian structure; there was a significant drop in the infantmortality rate; and there was a movement of children toward the emotional center of the family. [FN37] These changesresulted in the emergence of childhood as a psychic boundary between infancy and adulthood. [FN38]

In America, rooted in Lockean individualism and an optimistic democratic spirit, childhood rapidly became idealized as theembodiment of innocence and hope. [FN39] The brutal contradiction *515 between the newly-minted sentimental view ofchildhood and the horrors of juveniles in the poor house and prison paved the way for a juvenile court separate in theory andpractice from adult courts. Through the juvenile court movement childhood within the family was externalized throughoutthe broader society. The juvenile court served as a legal borderland that mediated between the common law's sanctification ofpaternal authority [FN40] and the harsh strictures of the state criminal process.

The view that juveniles were both impressionable and innocent, and neither adults nor infants in the eyes of the law, had bythe early nineteenth century become a commonplace in the legal and popular literature. [FN41] From this beginning amovement grew *516 which eventually led to the creation of juvenile courts in every state in the Union. [FN42] The newjuvenile court's jurisdiction swept well beyond children committing criminal acts. It included all children defined as being inneed of treatment. Reflecting its broad jurisdictional base and its interventionist rationale, juvenile court procedure was bothinformal in mode and paternalistic in tenor. [FN43] Juvenile process was non-adversarial. The state proceeded as parenspatriae. An accused child received few if any of the traditional procedural protections required in the adult criminal court.[FN44]

The reasons for this attenuated process went to the core of parens patriae theory. The juvenile proceeding was viewed as civiland not criminal, thus by definition excluding from its ambit basic criminal procedure protections. More importantly, thecourt was empowered to determine the "needs"' of the child, and its inquiries were not limited to examination andadjudication of criminal conduct. Procedural protections merely interfered with this task. As a consequence of the diagnosticfunction of the court, juveniles were systematically deprived of access to a lawyer, to a jury trial, to the presumption ofinnocence, to the right to cross-examination, and to the protections afforded by the hearsay rule. [FN45]

The rehabilitative rationale precluded attempts to raise the infancy defense in the newly constituted juvenile court. [FN46]



Because parens patriae theory depends on the notion that the child is being helped and thus is not being tried for a crime andpunished as a criminal, there was no need to determine whether the child had the capacity to act in a culpable fashion. [FN47]Indeed, assertion of the defense could be viewed as wrongfully precluding treatment for those very children most susceptibleto the benefits of intervention, *517 children who had committed wrongs without a clear sense of the wrongfulness of theiracts.

The classic case illustrating this analysis is Ex rel Humphrey, [FN48] decided in 1918. There the Tennessee Supreme Courtrejected the infancy defense raised by a seven-year-old adjudicated delinquent after killing a playmate. Relying on argumentsechoed to this day in infancy cases, the court held that the passage of Tennessee's juvenile court act had implicitly abolishedthe infancy defense. Basing its opinion on the non-criminal nature of the delinquency adjudication, the court also noted thatthe imposition of the infancy defense would deprive the delinquent of the benefits of necessary treatment.

In the early years of the juvenile court there were few who questioned the rehabilitative premises assumed in Ex relHumphrey. [FN49] Dean Pound's oft-quoted remark that "the powers of the Star Chamber were a trifle in comparison withthose of our juvenile courts"' [FN50] reflected an early, insightful, if overly-dramatic concern with the potential arbitrarinessof juvenile court adjudication. By the mid-1960's the juvenile court system was under furious attack; an attack which in turnlaid the basis for the recharacterization of the juvenile court as criminal in nature. In the next section the reasons for andconsequences of this attack will be explored.

IV. THE DEMISE OF PARENS PATRIAE THEORY IN THE JUVENILE COURTThere is a certain irony in the fact that in the eyes of its critics the juvenile court's greatest flaw was the clear disparitybetween its rehabilitative goals and the vagaries of its process and harsh realities of its institutions. [FN51] In a very realsense, parens patriae theory fell victim to the expectations it had created. Without a clear record of success in rescuingpotential delinquents from their criminal fate, [FN52] defenders of informal, discretionary juvenile court *518 procedurescould no longer easily resort to a rehabilitative rationale in defense of their program. Moreover, lawyers and commentatorsschooled in the new criminal procedure jurisprudence that came to fruition in the Warren Court era found a vulnerable targetin the discretionary practices of the juvenile court. Linking the commands of criminal due process jurisprudence [FN53] to arecognition that the de facto consequences of juvenile proceedings more closely matched their criminal counterpart than thepromise of the rehabilitative model resulted in a powerfully critical picture of the existing juvenile court system and itsunderlying premises. [FN54]

The demise of parens patriae theory as the key principle underlying juvenile court jurisdiction and practice can be traced tothe Supreme Court's 1966 decision in Kent v. United States. [FN55] In Kent, the District of Columbia juvenile court waived[FN56] jurisdiction over Morris Kent, a sixteen year old charged with robbery and rape, sending him to district court for trialas an adult. [FN57] The District of Columbia's Juvenile Court Act only allowed such a *519 waiver after a "fullinvestigation."' [FN58] Contrary to the statutory command, the investigation into Kent's suitability for treatment by thejuvenile court and truncated at best. [FN59] Dismissing the procedure afforded Morris Kent as inadequate, the SupremeCourt held that juvenile waiver orders must be grounded in a hearing, that counsel must have access to records and reportsconsidered by the court, and that a statement of reasons must accompany the waiver order. [FN60]

The Kent decision can be understood as based solely on statutory interpretation [FN61] and the requirement of a full recordfor purposes *520 of appellate review. [FN62] Yet the opinion, in its use of due process language and in its critical thrusts atthe juvenile court, foreshadowed a more comprehensive rethinking of juvenile court jurisprudence.

Questions as to the constitutional stature of the juvenile justice transformation begun in Kent were resolved one year later in



In re Gault. [FN63] In Gault the Court held that the essentials of due process were required in the adjudicatory stage ofjuvenile justice proceedings. Gault argued that in the delinquency hearing he had been denied his constitutional rights tonotice, counsel, confrontation, cross-examination, the privilege against self-incrimination, and appellate review. The Courtconcluded that all of the rights asserted by Gault--save appellate review--were guaranteed by the due process clause and thuswere binding in a juvenile justice adjudication.

The Gault Court was not willing to fully equate the delinquency finding with a criminal conviction for purposes of the dueprocess clause. The Court did recognize that a delinquency finding was criminal in nature and comparable in the seriousnessof its consequences to a felony proceeding. [FN64] The Gault opinion echoed juvenile court critics in asserting thatregardless of what euphemistic title is used for an "industrial school"' or a "receiving home,"' it is still an institution in whichthe child is incarcerated. [FN65] The Court concluded there is little justification for maintaining that the state is acting asparent and that due process protections are inapplicable [FN66] when delinquency carries a stigma only slightly lessburdensome than being termed a criminal, and when the consequences of being adjudged a delinquent are the same restraintof liberty and commitment to "whitewashed walls, regimented routine and institutional hours."' [FN67]

In re Winship, [FN68] decided three years after Gault, is perhaps the most significant component in the Supreme Court'serosion of parens patriae doctrine. [FN69] In Winship, the Court found that due process required the application of thecriminal-based proof beyond a reasonable doubt standard in juvenile court adjudications. The Winship Court reaffirmed theassertion made both in Kent *521 and Gault that arguments based on the "'civil' label-of-convenience which has beenattached to juvenile proceedings,"' [FN70] and on the non-punitive, treatment-oriented nature of the juvenile court did notjustify stripping juveniles of due process protections. Moreover, in recognizing that the "same considerations that demandextreme caution in factfinding to protect the innocent adult apply as well to the innocent child,"' [FN71] the Court formallyplaced the concept of criminal culpability at the heart of the juvenile proceeding. [FN72] Only by assuming a distinctionbetween culpable and non-culpable conduct did the Court's concern with protecting the innocent from conviction whenreasonable doubt exists make sense. To the Winship Court it was the reasonable doubt standard, with its function ofprotecting the innocent from conviction, that reaffirms the moral core of the criminal, and now the juvenile law. [FN73] Werethe true objects of the juvenile justice system rehabilitation and treatment alone, less than a reasonable doubt standard *522might suffice in screening out those not needing the benefits of treatment.

Kent, Gault, and Winship go a long way toward transforming the juvenile justice adjudication into a duplicate of its adultcounterpart. The Supreme Court's attack on the parens patriae model fell short of a total reworking of the juvenile court,however. McKeiver v. Pennsylvania [FN74] put a stop to the full integration of adult criminal procedural protections into thejuvenile court. In McKeiver the Court concluded that trial by jury in the juvenile court's adjudicative stage is not aconstitutional requirement. [FN75] The Court theorized that because the juvenile system is not completely criminal in nature,not all the rights afforded to an adult in a criminal trial are required. The Court stood by its earlier conclusion that the juvenilehearing must measure up to the essentials of due process and fair treatment. [FN76] But to the McKeiver Court, the jury wasno more fair or effective a fact finder (at least for juveniles) than the judge sitting alone.

McKeiver can in part be explained as a product of the Burger Court's generally skeptical attitude toward the jury and itsreluctance to assign factfinding functions to the jury where stare decisis does not compel it to do so. [FN77] Echoing Gault,McKeiver's refusal to fully integrate all adult criminal procedures into the juvenile court may also be based on deference tothe remaining, if diminished, claims and interests supporting the parens patriae doctrine. [FN78]

On a theoretical level McKeiver does not pull back from the central thrust of Kent, Gault and Winship. While McKeiver'srhetoric resembles pre-Kent juvenile court cases, its specific rationale and holding confirm the procedure for dealing with



delinquency that Gault initiated: a two-track system for determining culpability *523 in which a juvenile conviction isperceived as having similar but ultimately less devastating effects than an adult conviction. [FN79] More recent SupremeCourt juvenile justice opinions lend credence to this analysis by rejecting McKeiver's rhetoric and adhering to the positionthat a delinquency proceeding "is 'designed to vindicate the very vital interest in enforcement of the criminal laws."DDD"[FN80]

The Supreme Court's transformation of procedural aspects of juvenile proceedings has had a profound, if less direct, effect onthe conceptual foundations of positive juvenile justice law. Spurred by Gault and its progeny to rewrite juvenile procedurallaw, courts and legislatures have largely rethought the problems posed by juvenile delinquency. This process has resulted inthe emergence of a new juvenile law, based in great measure on principles of due process, accountability, and punishment.The elements of and reasons for this reformulated juvenile law are discussed in the next section.

V. THE NEW JUVENILE DELINQUENCY LAWFour key characteristics delineate the new juvenile law. [FN81] First, in many jurisdictions accountability and punishmenthave emerged among the express purposes of juvenile justice statutes. [FN82] *524 Second, much of the law comports withthe dictates of due process. [FN83] Third, delinquency jurisdiction in general is limited to children committing offenses thatwould be crimes if committed by adults. [FN84] Fourth, there is a movement toward weighing issues of culpability andaccountability more heavily in the waiver [FN85] and dispositional decisions. [FN86]

*525 The roots of the new juvenile law are complex and interdependent. Fear of rising juvenile crime, [FN87] a perceivedshift in the kinds of crime committed (and race of the individual committing the crime), [FN88] and shifting publicperceptions of the nature of childhood and adolescence [FN89] led to the movement toward accountability. Much of theconceptual framework of the new juvenile law was triggered by Gault and its progeny. Both the impetus for the Gaultdecision and its acceptance in the legal, political, and academic worlds were enhanced in large measure by a growingcriticism of the rehabilitative ideal in general, and the effectiveness of the treatment modality in particular. [FN90]

Two threads of particular importance in giving intellectual justification to the new juvenile court may be drawn out of thisfabric, one sociological and the other philosophical. In the 1960's and 1970's, students of juvenile delinquency largelyabandoned the interventionist model of dealing with the problem of delinquency that had dominated sociological studies ofthe juvenile court and had provided its theoretical basis since its inception. *526 Prior to the 1960's, social theories ofdelinquency had located the causes of deviant behavior in discrete environments. Explanations of the causes of delinquencywere rooted successively in a variety of sources, including the family, [FN91] the gang, [FN92] and class-bound behavior.[FN93] Each of these theories served to justify broad intervention into the lives of children exhibiting deviant behavior. Morerecent sociological work largely discounted environmentally based delinquency theories. [FN94] To the so called "labeling"'theorists, all children are seen as experiencing delinquent episodes. [FN95] The process of becoming delinquent is capturedby a model in which those children caught in delinquent acts react to the delinquency label by taking further actionsconsistent with their new identity. [FN96]

*527 Concluding that contact with the juvenile court is a key event in the creation of further deviant behavior, labelingtheorists urged a broad prohibition against unwarranted and potentially counterproductive juvenile court intervention into thelives of children experiencing deviant episodes. [FN97] In order to reduce the number of delinquents, warranted interventionwas limited to cases of blameworthy acts. [FN98] The critical thrust of labeling theory aimed at the heart of the "helping"'rationale of the juvenile court, ultimately providing both an argument for transforming the purpose of the juvenile court fromtreatment [FN99] to accountability and for severely limiting its delinquency jurisdiction.



The second major intellectual force shaping the new juvenile court grew from the post-World War II emphasis on retributiontheory in defining the limits of the criminal sanction. [FN100] Retribution theory presupposes that the criminal sanction isjustifiably imposed only where blameworthy behavior exists. Reacting in part to the social engineering program of the legalrealists, retribution theory drew strength both from concerns about the appropriate reach of the criminal sanction in a liberaldemocratic society [FN101] and from philosophical and ethical imperatives. [FN102] The impact of retribution theory,embodied in part in the Model Penal Code's culpability requirements, [FN103] did not remain exclusively within the adultcriminal justice system. Its concern with individual autonomy provided a powerful intellectual force against the claims oftreatment-oriented juvenile courts.

That retribution theory has spread its influence from the *528 adult to the juvenile system is reflected in the adoption of theInstitute of Judicial Administration/American Bar Association's Juvenile Justice Standards of the Model Penal Coderequirement that culpability precede imposition of criminal liability. [FN104] The Standards, the definitive professionalstatement on the new juvenile justice, reject the rehabilitative rationale. It is instead the concept of culpability that animatesits purposes section, [FN105] that justifies its limitation on juvenile justice jurisdiction to the blameworthy, [FN106] and thatinforms its determinate sentencing scheme. [FN107]

Basic criminal procedural protections and substantive juvenile law rooted in the logic of non-interventionism and retributiontheory are reflected increasingly in state juvenile codes. Washington's revised juvenile justice code, discussed in the nextsection, may be seen as a paradigmatic expression of the new juvenile justice, both in the criminalization of its law andprocess and in its ambiguous posture toward the infancy defense.

IV. THE WASHINGTON MODELIn Washington's new Juvenile Justice Act [FN108] classical principles of justice have largely replaced diagnosis and therapyin the law's treatment of juveniles. [FN109] As revised, the Act's purposes include *529 a litany of traditional criminal justiceconcerns. Focus on the needs of the offender is tempered by a systematic commitment to making juveniles accountable fortheir criminal behavior, [FN110] providing punishment commensurate with their age, crime, and criminal history. [FN111]

Consistent with its new theoretical underpinnings, the Act restricts juvenile justice jurisdiction to those juveniles who commitoffenses that would be crimes or violations if committed by adults. [FN112] Responsibility for providing services to childrenwhose behavior is troublesome rather than criminal is assigned to the Department of Social and Health Services. [FN113]Procedures for dealing with dependent children [FN114] and families in crisis [FN115] are *530 clearly distinguished fromthose procedures embodied in the new criminal jurisdiction of the juvenile court.

The Act mandates that due process be provided for alleged juvenile offenders. [FN116] Statutory provisions require notice ofcharges, [FN117] access to counsel at all critical stages of the proceeding, [FN118] use of the proof beyond a reasonabledoubt standard, [FN119] and make the privilege against self-incrimination applicable to juvenile proceedings. [FN120] Inaddition the Act provides for police custody of juveniles only upon probable cause or where grounds exist for taking an adultinto custody, [FN121] for release of the juvenile upon posting of a bond, [FN122] for information [FN123] and preliminaryhearing [FN124] procedures, for discovery as provided in criminal cases, [FN125] and for a right to appeal delinquencyconvictions. [FN126]

On a symbolic level the criminalization of Washington juvenile justice is revealed most clearly in the opening of juvenileproceedings to the public. [FN127] The new juvenile justice is no longer a closed, informal, and private forum for theresolution of family problems, with the state acting as parent. Now the system, like its adult model, is open to public scrutiny.

A presumptive sentencing scheme plays a key role in ensuring juvenile accountability for offenses committed. Presumptive



dispositions are tied to the youth's age, the offense committed, and the history and seriousness of previous offenses. [FN128]The statute provides both upper and lower limits on the standard dispositional range [FN129] and sets out aggravating andmitigating factors for sentencing within the range. [FN130] Dispositions can be made outside the standard range only whereto do otherwise would create a *531 manifest injustice. [FN131] The import of this shift should not be underestimated.Juvenile sentencing practice may be said to no longer focus on the "needs"' of the offender. Rather, dispositions are carefullytailored to hold juveniles accountable in proportion to the culpability of their acts and their criminal history.

Provisions of the Act dealing with the maturity of juveniles are consistent with its overall concern with accountability andprocess. For example, factoring age into dispositional ranges reflects a frank recognition that the capacity to be culpable, andthus to be held accountable, increases with age. Provisions for diversion programs and community service do not undercutthe Act's punishment-oriented rationale. Their use is clearly suggested only where less blameworthy offenses are committedand a less blameworthy criminal history is presented. Finally, provisions limiting waiver of rights without the consent of theparent or guardian for juveniles under twelve [FN132] reaffirm the Act's commitment to fair process tailored to the juvenilecourt's clientele.

In spite of its clear sensitivity to the problems posed by the maturational limits of juveniles in holding them accountable fortheir acts, the Washington Juvenile Justice Act does not include an infancy defense among its provisions. [FN133] Theinfancy defense is included, however, in Washington's criminal code. [FN134] A close reading of the criminal code and ofthe Juvenile Justice Act reveals no easy answer to the question of whether the infancy defense is applicable in juvenileproceedings. [FN135] The criminal code employs a standard "catch-all"' extending the reach of its provisions, including theinfancy defense, to all offenses defined by Washington statute unless otherwise specifically provided. [FN136] The JuvenileJustice Act nowhere specifically precludes application of the infancy defense in juvenile proceedings. [FN137] Still,exclusive authority for the adjudication and disposition of juveniles is reposed in the Act, [FN138] and thus might impliedlypreclude application of the *532 infancy defense to juvenile proceedings. Neither the specific provisions of the Act noranalysis of legislative intent viewed with the aid of maxims of statutory interpretation resolve this issue. [FN139]

Indeed, the problem posed by the relationship of the statutory or common law infancy defense to a reformulated juvenile*533 code is not unique to Washington. States revising their juvenile justice acts uniformly make no specific mention of theinfancy defense or of its abrogation. [FN140] Thus, for these jurisdictions, a common problem is raised: are basic criminallaw principles, underlying common law and statutory infancy defenses, consistent with the premises of the new juvenilejustice proceedings?

VII. THE PREMISES OF THE CRIMINAL LAW, THE INFANCY DEFENSE AND THE NEW JUVENILEJUSTICE

A. Culpability and the Criminal Sanction

The reformulated juvenile justice system punishes juveniles whose conduct violates substantive criminal law. Substantivecriminal law is a description of harms that society seeks to discourage, the commission of which society finds blameworthy.[FN141] The substantive criminal law also includes an elaborate body of qualifications that ensure the culpability of thosepunished. [FN142] These substantive qualifications, such as the defenses of mistake, excuse or infancy, as well as the mensrea element of the common law criminal offense, may be viewed as aspects of the criminal law's screening function. [FN143]The ultimate objective of this screening is to determine the proper objects of the criminal sanction.

Limits on use of the criminal sanction derive from the relationship of the criminal law as a mechanism of social control to itsrole in assigning blame. [FN144] Blame allocation may be viewed as an *534 imperfect but persistent limit on the criminal



law's function of maintaining social control [FN145] through sanctioning deviant behavior. Blame allocation as a limitingprinciple is grounded in a societal commitment to values of human dignity and autonomy. [FN146] The stigma and loss ofliberty associated with a criminal conviction impinge on both dignity and autonomy. The persistence of blame allocation as alimiting principle is reflected in pressure from courts [FN147] and commentators [FN148] to restrict the criminal sanction*535 exclusively to the culpable, at least where a common law crime is at issue. [FN149]

Because of the pre-eminent position of the values of dignity and autonomy in our political tradition, [FN150] use of thecriminal *536 sanction is limited to punishment of the culpable. That is, we generally punish only those capable of takingresponsibility for the harmful acts they have committed. [FN151] Indeed, our commitment to *537 culpability is so great thatwe weight the criminal law screening process in favor of protecting the innocent at the expense of acquitting the guilty.[FN152]

The commitment to punishing only the culpable is manifested in the related concepts of mens rea [FN153] and legalresponsibility. [FN154] Put simply, mens rea is the state of mind required to commit a blameworthy act. [FN155] Theconcept of legal responsibility, or the capacity to have a culpable state of mind, overlaps, in part, with mens rea. Unless anaccused has the capacity to be culpable, it is impossible for him to maintain the specific mental state, or mens rea, requiredfor commission of a criminal offense. Legal responsibility may also be viewed as a fundamental pre-requisite to the existenceof mens rea.

The mens rea inquiry focuses on whether the accused, when assumed capable of complying with the law's command,possessed *538 the specific state of mind required to consider an act blameworthy. [FN156] Legal responsibility focusesinstead on the question of whether the accused's deficiencies of judgment distinguish him from others in society such that wedo not expect him to comply with the law. [FN157] In that sense legal responsibility defenses may be viewed as precludingthe unwarranted exercise of criminal jurisdiction over the defendant. [FN158]

Legal responsibility and mens rea also differ in terms of the time frame in which the court analyzes the problem ofculpability. The mens rea inquiry focuses on the time period in which the harmful act was committed. Proof of the capacity tobe legally responsible for one's acts focuses on the life experience of the individual. By widening the time frame, legalresponsibility differences allow the court to explore a broader range of behavior that might exculpate the accused. This tilt ofthe screening process in favor of the accused is consistent with core values of the criminal law.

Like its adult counterpart, the juvenile justice system operates as a screening device. It shares with and complements the adultsystem's functions of imposing social controls and attributing blame. Moreover, as a consequence of juvenile justiceproceedings, convicted youth may suffer the social stigma and loss of liberty associated with the adult criminal process.[FN159] It follows that the commitment to punishing only the culpable that animates adult criminal jurisprudence should alsobe applicable to the juvenile process.

The criminal law assumes adults possess the capacity for culpable conduct until a prima facie case is made to the contrary.With younger children no such assumption can safely be made. This Article next explores psychological research on childdevelopment in an attempt to ascertain why we treat children differently from adults regarding their capacity to be culpable.

B. Child's Capacity for Culpability

In the criminal law the idea of free will [FN160] and the legitimacy *539 of punishment are largely coterminous: we willpunish where the accused has the capacity [FN161] to understand the substantive nature of acts we consider right or wrong,to generate an internalized set of moral [FN162] values and, in most jurisdictions, to exercise control over impulses that



conflict with such values. The infancy defense rests on the assumption that a child's capacity to make moral judgments issubstantially different from his adult counterpart. Review of research and analysis of moral development in children providesan avenue for exploring key concerns involving a child's capacity to be culpable relevant to the infancy defense and to thejuvenile justice system. While there appears to be major disagreement over how children develop the capacity to make moraljudgments, [FN163] consensus exists as to the kinds of mental activities we *540 can categorize as types or stages of moraljudgment, and when these stages appear in the child's development. [FN164] Underlying this research is the assumption thatthe capacity to make moral judgments cannot be evaluated in substantive terms. Rather, the research focuses on a child'scapacity to make moral judgments in terms of processes by which external norms are internalized and understood.

Perhaps the most impressive and influential research done in this area is the work of Jean Piaget. [FN165] Piaget and hiscollaborators systematically questioned children about morally problematic situations. From their responses, Piaget drewthree basic stages of moral development that remain central to research in the area. In the first stage, moral judgment takesthe form of an automatic, unreflective response to rules set out by adults. [FN166] This is known as the morality of constraintand is common to children up to seven or eight. To the extent that children evaluate behavior at this point, it is done largely interms of objective consequences of the act being assessed. [FN167]

To illustrate this principle consider two hypothetical situations. In the first, a child, John, is called to dinner. Unknown to*541 John, behind the dining room door are fifteen cups. As he enters the room the door hits the cups and they break. In thesecond situation, a young child, Henry, breaks a single cup trying to get jam from the cupboard without asking forpermission. Piaget found that in assessing blameworthiness, young children will generally focus on the objectiveconsequences of that act rather than on subjective intent, identifying John as the greater wrongdoer. At this point in a child'sdevelopment it may be concluded that no real capacity exists to judge right from wrong in a fashion shared by the broadersociety.

Piaget's second stage, the "morality of cooperation or reciprocity"' generally begins after age seven. [FN168] Rules are nolonger solely regarded as fixed laws emanating from an external authority. The mental activity associated with moraljudgment begins to reflect internalized norms. Evaluation of behavior reflects this change. The child will consider intention,or subjective responsibility, rather than objective causation in assessing blame. Using the example of John and Henry, Henryis now regarded as naughtier because he intended to commit a bad act (reaching for the jam without permission). At thispoint, children begin to have the capacity to make judgments in a manner that suggests a rough correspondence with that ofan adult. The third stage, which begins to emerge at adolescence, culminates in a capacity to maintain a generalizedcommitment to an internalized morality and to a sense that rules have their origin in cooperation and mutual respect. [FN169]As a consequence, it can be recognized that rules may be altered by consent and that transgressions can be forgiven.

While research since Piaget has tended to view moral development more in terms of a continuum than stages [FN170] andhas indicated *542 that social class [FN171] and national origin [FN172] have an impact on shaping moral development, theconclusion that younger children generally lack the internalized set of social controls found in late adolescents has beenconfirmed. [FN173] In addition to validating the basic thrust of Piaget's work, two findings of post-Piaget research are ofparticular relevance to our inquiry. First, research also indicates that despite the presence of some internalized sets of controlsthere is a clear lack of consistency in children's moral behavior. [FN174] Moral behavior in children appears to be situationspecific. This point underscores the critical distinction between capacity to know right from wrong and actual behavior. Tostate the obvious, capacity to know right from wrong in the same manner as adults does not determine a child's behavior. Itdoes, however, provide a framework in which we can assess culpability by assuming the capacity to choose right fromwrong.



Research also indicates that the development of moral judgment is both a cognitive and affective event [FN175] developingfrom the interaction of impulse with the response of key externalities, *543 such as parental approval or disapproval. Giventhe interactive nature of this process it can be concluded that a child's capacity to master impulses roughly parallels cognitivematuration, the achievement of a basic knowledge of right and wrong, and the internalization of that knowledge. A truecoalescence of these threads of personality and their formation into a relatively stable constellation only comes at lateadolescence, if then. [FN176]

Review of these data confirms our intuitive and experiential judgments concerning children. First, it can safely be said thatunlike an adult, a pre-adolescent's capacity to be culpable cannot be assumed. Second, the data suggest the internal coherenceof the components of the infancy defense. That is, the research indicates that children under seven [FN177] generally lack thecapacity to be culpable, that it is problematic whether children in mid-childhood have that capacity, and finally, thatadolescent children may be generally regarded as possessing the capacity to be culpable, although quite often not at the levelone would expect of a mature adult. This last point suggests a justification for continuing to maintain a two-track system ofculpability in which juvenile offenders, though accountable for their acts, are regarded generally as less blameworthy thanadults.

By viewing the criminal justice process in terms of a two-track system of criminal culpability, the essential role that theinfancy defense plays as a "'screen"' on the juvenile track is highlighted and clarified. It is to this subject that the Article nowturns.

*544 C. The Two-Track System of Culpability and The Infancy Defense as a Screening Device

Emphasis within the new juvenile justice system on accountability and punishment has created a tension between legalresponsibility principles implicit in criminal punishment and the juvenile's limited capacity to be culpable. It is thereforecrucial that the infancy defense be available to the accused juvenile offender. This point is underscored by viewing theinfancy defense and the juvenile justice process within the context of the overall criminal justice system.

Recent changes in juvenile justice law illustrate that our criminal justice system is made up of parallel tracks or processes:one for adult and the other for juvenile offenders. Both tracks are bounded by substantive criminal law and by procedural dueprocess. Sanctioning in both systems is generally limited to culpable behavior. But the stigma and long term consequencesattending the juvenile process are ultimately less severe than their adult counterparts. [FN178]

Some commentators, focusing on similarities between the juvenile and adult systems, have called for the reintegration ofjuvenile offenders into the adult process. [FN179] This position, however, has received no support from legislaturesreconsidering the problem of juvenile justice. Most courts and commentators maintain that a separate juvenile justice systemis justifiable. The terms of this justification are of critical importance in understanding both the new juvenile justice systemand the role the infancy defense plays in it.

Three arguments may be advanced in support of the continued existence of the two-track system. First, children--even childcriminals--are often perceived to be physically and emotionally *545 more vulnerable than adults and thus in need ofprotection by the state. [FN180] Second, it is asserted that the informal paternalistic proceeding of the juvenile courtcontinues to be a valuable social asset and that the juvenile court retains the capacity to provide effective treatment. [FN181]Third, children's deviant behavior may be regarded as generally less culpable than similar adult behavior for the reason thatthe child's capacity to be culpable--e.g., his capacity to know right from wrong and to control impulses--is not as fixed or asabsolute as an adult's. [FN182]



The claims of a greater vulnerability in the adjudication and sanctioning process [FN183] provide an inadequate limit on thepower of the state. This position does not take account of, and indeed masks the fact that the juvenile justice track of thecriminal justice system involves punishing culpable youthful offenders. It ignores the reality that the state has little to offerthe vulnerable juvenile by way of protection. [FN184]

Argument in support of maintaining the informal nature of the juvenile justice process by reference to rehabilitativeaspirations also misses the mark. This argument ignores the fact that the juvenile process has been largely formalized andimposes sanctions upon the juvenile offender roughly equivalent to criminal penalties. [FN185] It also flies in the face ofclear evidence that the juvenile court's treatment goals have not been realized. [FN186]

The third argument--diminished culpability--provides the best explanation of the two-track system and sheds the greatestlight on its workings. The juvenile justice process may be viewed as one component of a two-track criminal justice system,with differing levels of culpability attaching to each track. This position provides adequate limits on state power, correspondsrealistically to the actual juvenile process, and yields a useful conceptual tool for analyzing juvenile justice issues. [FN187]In particular, it clarifies *546 the important role that the infancy defense plays in the overall process of screening thenon-culpable out of the criminal justice system.

The juvenile justice proceeding is a significant incursion on the autonomy and dignity of the accused. Where legalresponsibility is lacking there is no purpose in testing the existence of mens rea, or indeed any other elements of the allegedcrime. The infancy defense provides a means of assessing the juvenile's capacity to be culpable. If capacity does not existbecause of infancy, the accused is entitled to be dealt with outside the criminal process. If capacity is proven to exist, onlythen can legitimate criminal jurisdiction over the offender be exercised.

Within the juvenile justice system the function of the infancy defense can be compared profitably to that of the waiverhearing. The waiver hearing may be said to have the function of screening those deviants regarded as generally less culpableand thus as appropriate objects of juvenile justice jurisdiction from those youthful offenders whose culpability may be equalto that of an adult. [FN188] Its screening function relates to choices between appropriate sanctioning tracks. The infancydefense, on the other hand, screens the non-culpable from the culpable. It is the primary switching station between parentalcontrol [FN189] and state coercive power.

The law has long recognized that care, custody, and control of the child is lodged with its parents. [FN190] The ambit ofpower given to the state over the child is limited by that reservation of authority. [FN191] The infancy defense goes to thecore of the issue of who should have jurisdiction over the child--parent or state. Our law weighs against divestment ofparental control where the parent both wants to and is capable of exercising control over the child. Indeed, the grounds forsuch a divestment of control are increasingly more narrowly construed. [FN192] It is consonant with our respect for familyautonomy and parental rights that exclusive *547 control over a non-culpable child be given to the parent at the first possibleopportunity where parental control is available and criminal law objectives cannot be served by continued juvenile courtjurisdiction. If in fact the state must act as parens patriae, dependency, not delinquency, is the appropriate vehicle for testingthe issue of parental versus state control over the child.

I have argued that the juvenile justice system may be regarded as one aspect of the larger criminal justice system and that thecriminal law's culpability requirement, as embodied in the infancy defense, is applicable to the juvenile justice court.Unfortunately, recent case law dealing with the infancy defense in juvenile justice court provides an inadequate analysis ofthe problem, retreating in large measure to a pre-Gault framework that allows for sanctioning the non-culpable. The nextsection reviews this case law.



VIII. RECENT CASES ON THE INFANCY DEFENSE IN JUVENILE COURTSince the most recent wave of procedural and substantive changes in juvenile justice law took hold, nine jurisdictions haveconsidered the question of whether the infancy defense is applicable in juvenile proceedings. [FN193] Unfortunately, courtsdealing with this issue in the near future may receive little effective guidance from existing case law. Cases denying use ofthe infancy defense rely largely on the now generally discredited rehabilitative rationale. Cases favoring use of the infancydefense rest on undeveloped or misguidedrationales. [FN194]

State v. D.H., [FN195] decided by the Florida Supreme Court in 1976, is the leading case denying applicability of the infancydefense in juvenile proceedings. D.H. involves consolidation on appeal of three cases arising from the Florida Court ofAppeals, State v. D.H. [FN196], Porter v. State, [FN197] and R.D.C. v. State. [FN198] All *548 three cases involveddelinquency petitions lodged against minors falling within the common law range of presumptive incapacity. In D.H. anine-year-old was charged with breaking and entering a store and stealing a television set; in Porter a twelve-year-old wasaccused of taking and dismantling a lawn mower without permission; and in R.D.C. a twelve-year-old was accused ofrobbery and assault with a deadly weapon. [FN199] In D.H. the Florida Court of Appeals, Second District, affirmed the trialcourt's granting of a motion to dismiss based on the state's intention to present no evidence as to capacity and to limit itsevidence to the crime itself. [FN200] In Porter and R.D.C. the First and Third District Courts of Appeals, respectively,sustained delinquency findings, holding that proof of capacity to commit a crime is not required for Florida courts toadjudicate delinquency.

In apparent disregard of twenty years of evolving juvenile court jurisprudence, the Florida Supreme Court relied largely onthe rehabilitative purpose of the juvenile process in holding the infancy defense inapplicable to juvenile court proceedings.Acknowledging that no legislative act had explicitly repealed the infancy defense, the Florida court argued that the defensewas implicitly repealed by the legislature's statutory mandate that violations of laws by children should not be treated ascrimes, but rather as delinquent acts. [FN201] Consistent with pre-Gault thinking on the infancy defense, [FN202] the D.H.court found that the juvenile law's purposes of training, treating, and rehabilitating the offender precluded reliance on theinfancy defense, justified as it is by reference to substantive criminal law principles. This resurrection of rehabilitation as thepurpose of juvenile justice jurisdiction provided the basis for the court's conclusion that the common law presumption ofinfancy might very well frustrate the remedial purposes of the juvenile court and deny its benefits to the needy offender.

Such an approach is seriously flawed. Despite rhetorical bows in the direction of rehabilitation, juvenile justice law in Floridaand elsewhere is rooted largely in procedural and substantive criminal law principles moderated, if at all, by considerations of*549 the juvenile's maturational limitations. [FN203] Restricting juvenile justice jurisdiction to acts that would be crimes ifcommitted by adults in effect imposes the limits of culpability on the juvenile justice process. Procedural due processprotections, imposed on the juvenile court and grounded in screening the innocent out of the adjudicatory process, are robbedof meaning if the accused cannot raise incapacity as a defense. Recent judicial and legislative reworkings of the juvenilejustice system require a rejection of rehabilitation as the central goal of juvenile justice law, and mandate at least a roughconsistency with criminal law principles. [FN204]

Reliance on the rehabilitative ideal as the justifying spirit of a separate juvenile court threads its way through the reportedcases denying use of the infancy defense. [FN205] In In re Davis, [FN206] arguments rooted in the civil nature of thejuvenile court and the benefits *550 of its mode of treatment are supplemented by a focus on the technical legal effect ofestablishing juvenile court jurisdiction over young offenders. In Davis, it was asserted that by raising the age at which aperson is conclusively presumed to be incapable of commiting a criminal act from seven to eighteen, [FN207] the legislaturehad abrogated the infancy defense. The court held that the conclusive presumption that children under eighteen are incapableof commiting criminal acts by definition precludes inquiry into questions regarding a child's criminal capacity.



The Davis court's resort to argument by definition is sterile and unrewarding, inconsistent both with the current state ofjuvenile justice law and with the overall approach to the problem of responsibility in juvenile justice law. Jurisdiction in thejuvenile court over child offenders is not based on a child's lack of maturational "capacity"' to commit a crime. Moreaccurately, the phrase "capacity to commit a crime,"' as used in the jurisdictional sense, refers on a purely technical level to acategorical preclusion of control over child offenders by criminal courts.

By rejecting the infancy defense the Davis opinion ignores the juvenile justice system's role of assigning blame for culpableconduct. The conclusion that the existence of a separate juvenile justice system summarily removes the issue of capacityfrom the courtroom claims too much. Taken literally, it would preclude assertion of the insanity defense in the juvenile courtand render exploration of the mens rea requirement inapposite. All three concerns--infancy, insanity, and mens rea--are waysof describing the mental activity of an accused individual. That both the mens rea [FN208] requirement and the insanitydefense [FN209] continue to play a vital role in juvenile justice proceedings lends weight to the conclusion that the exerciseof juvenile court jurisdiction over minor offenders must include consideration of the culpable conduct requirement.

*551 The conceptual overlap between the infancy defense and the mens rea requirement raises further arguments against theinfancy defense in juvenile justice court, unrelated to shopworn reliance on the court's non-punitive nature. For example,assuming that culpable conduct is a prerequisite to juvenile justice adjudication, are there sufficient continuities between theinfancy and mens rea inquiries such that the mens rea inquiry renders the infancy exploration superfluous? This question isanswered affirmatively in a New York case, In re Robert M. [FN210] In Robert M. the court accepted the premise that thenew juvenile law mandates adherence to the basic principles of culpability. [FN211] The court held that the requirement thatmens rea be proven beyond a reasonable doubt provided sufficient protection against punishing "developmentally abnormal"'or "grossly immature"' individuals. The court concluded that allowing juveniles over seven [FN212] to disprove the existenceof criminal intent satisfies basic policy concerns underlying the infancy defense.

The argument relied on in Robert M. obscures crucial conceptual distinctions between the infancy defense and the mens rearequirement. Responsibility defenses such as infancy involve a legal determination of the capacity of the wrongdoer tounderstand the nature and wrongfulness of his act. Mens rea involves an inquiry into the mental state required by thedefinition of the offense. Different concerns animate these concepts. [FN213] In the mens rea inquiry we assume the capacityto be culpable. The infancy defense acts as a critique of the possibility of intentional behavior. Furthermore, the positiontaken by the Robert M. court overlooks the key role the infancy defense plays in justifying extension of juvenile justicejurisdiction by screening out those individuals incapable of culpable conduct. The same factors requiring applicability of theinfancy defense in the adult process compel its inclusion in the juvenile process. There is no single aspect of the juvenilejustice process that so distinguishes it from the adult process as to compel disregard of the juvenile infancy defense.

Cases holding that the infancy defense is applicable to juvenile proceedings rely on a more realistic vision of the juvenile*552 court than is offered in D.H. and Davis. In re Gladys R., [FN214] decided in 1970 by the California Supreme Court, laidthe groundwork for a more sophisticated analysis of infancy defense buttressed by an accurate understanding of the juvenilecourt.

Gladys R. involved interpretation of the two California statutory provisions relating to infancy and juvenile justicejurisdiction. Section 26 of the California Penal Code states that all people, with certain exceptions, are capable of committingcrimes. Notably, "[c]hildren under the age of fourteen, in the absence of clear proof that at the time of committing the actcharged against them, they knew its wrongfulness"' [FN215] are among those excluded from the Code's criminal provisions.Section 602 of the California Welfare and Institutions Code, enacted after Section 26, provides that any minor who violatesany law of California that defines a crime comes under the delinquency jurisdiction of the juvenile court. [FN216] The



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California Supreme Court, utilizing the canon of statutory construction that the two acts must be irreconcilable, clearlyrepugnant, and so inconsistent that they cannot be construed concurrently, found nothing irreconcilable in the language andpolicy of Sections 26 and 602. [FN217] The court read the requirements of capacity to know wrongfulness into California'sdefinition of delinquency jurisdiction. In doing so, the court made much of the fact that the reach of Section 26 was notexplicitly limited by the juvenile act. [FN218]

In support of its holding, the court also analyzed the function of Section 602 in giving the juvenile court jurisdiction overchildren who have violated a criminal law [FN219] and contrasted its reach with that of the two other statutory bases forjuvenile court jurisdiction: Section 600, concerning dependent children, [FN220] and Section 601, dealing with childrenwhose deviant acts fall short of criminal conduct. [FN221] To the Gladys court, Section 602 delinquency jurisdiction isunique among jurisdictional bases of the juvenile court in that it alone involves inquiry into criminal responsibility. Onlyjuveniles faced with Section 602 proceedings are entitled to rely on Section 26, which embodies the basic precept*553 that ayoung child cannot be presumed capable of criminal conduct. The court noted that children found to be without such capacityin a Section 602 proceeding might very well become wards of the juvenile court under Section 600 or Section 601. [FN222]Successful assertion of the infancy defense then would shield the non-culpable defendant child from the more seriousconsequences of a delinquency adjudication.

Based on what may be interpretation of unique statutory language, the Gladys R. opinion unfortunately has had littleinfluence in later cases dealing with the infancy defense. This lack of compelling authority favoring the infancy defense wasnot remedied when, in Commonwealth v. Durham, [FN223] the second major court to sustain use of the infancy defense injuvenile court relied on a flawed constitutional argument in support of its holding. In that case nine-year-old Regina Durhamwas charged with aggravated assault. Following a scuffle with another young girl, Regina went into her house saying she wasseeking her mother's aid. Instead of appealing to her mother to stop the fight, Regina obtained a knife and stabbed herantagonist.

In Durham, the superior court reversed the lower court judge's holding that the Pennsylvania Juvenile Court Act hadimpliedly preempted the common law presumption of infancy, thus precluding its use in juvenile proceedings. The supremecourt's opinion begins with the wholly correct assertion that Gault's rejection of parens patriae theory in favor of a retributiverationale had signaled a shift in juvenile justice jurisprudence. The opinion then takes notice of Winship's holding that dueprocess requires all elements of a crime be proven beyond a reasonable doubt in a delinquency proceeding. The Pennsylvaniacourt concluded from this that the infancy defense was applicable in the juvenile court. Evidence as to Regina's capacity,drawn from her behavior in stating she was seeking aid but returning with a knife, was held neither to rebut the presumptionof incapacity nor to satisfy the prosecutor's burden of proving all elements of the crime beyond a reasonable doubt.

Durham has been interpreted as assuming that capacity is an element of the offense charged and thus subject to the dueprocess requirement that all elements be proven beyond a reasonable *554 doubt. This due process argument is unsound andmisleading. Capacity, unlike mens rea, is not a statutory element, despite the fact that its existence is required before anycriminal offense may be committed. Given the United States Supreme Court's reluctance toconstitutionalize substantivecriminal law and its refusal to read the Winship requirement to reach non-elements of an offense, attempts to argue that proofof a non-element such as capacity is constitutionally required seem foolhardy.

Of the courts making the infancy defense available in juvenile justice court the most cogent opinion stems from the NewYork Family Court. In In re Andrew M. [FN224] the court relied both on Gault and Winship for the proposition that juveniledelinquency adjudication involved imposition of "almost"' criminal liability. [FN225] After using Gault and Winshipdescriptively rather than prescriptively, the court turned its focus to the New York statute, a product of the post-Gault











revolution in juvenile justice law. [FN226] The court concluded that the rebuttable presumption of incapacity, ostensiblyswallowed up by the previous civil family court act, had regained its meaning when applied to the newly criminalizedjuvenile justice court. [FN227] In support of its conclusion, the court noted that the presumption of incapacity is notinconsistent with the dictates of due process, that it will not likely overburden the already overworked juvenile court system,and that it can serve as a jurisdictional screen prior to disposition. [FN228]

While the Andrew M. opinion is soundly reasoned it does not bear the imprimatur of a major court. For that reason alone itmay be overlooked. The fact that a second New York court [FN229] has held against the infancy defense further mitigatesagainst its influence. It would be unfortunate if, because of this, the superior logic of Andrew M. is disregarded in favor ofD.H.'s reliance on the rehabilitative rationale or Durham's misguided locus in the constitution.

Use of the infancy defense raises a number of procedural questions regarding the structure of the defense, the burden ofproduction and proof in raising the defense, and the appropriate standard and sufficiency of evidence for testing capacity.These questions are addressed in the following sections of the Article.

*555 IX. THE STRUCTURE OF THE INFANCY DEFENSEA. The Capacity Issue: Children Under Seven

The particular structure of the common law infancy defense--an absolute bar to criminal prosecution for children under sevencoupled with presumptive incapacity for children seven through fourteen--is a product of concrete historical factors rooted inthe development of the common law. One could structure the infancy defense in a variety of ways that would serve itspurpose of screening non-culpable youth out of the juvenile justice process. [FN230] For example, one could imagine aninfancy defense in which capacity could be assumed on the part of all juvenile offenders unless a prima facie case is madeotherwise by the accused.

This construction of the infancy defense, sans presumption, would closely parallel other affirmative defenses. [FN231] Itwould, in essence, remove the barrier to delinquency jurisdiction for children under seven and put the burden of productionregarding infancy on the accused aged seven to fourteen. Such a construction of the infancy defense, however, ignores whatwe know is unique about a child's capacity to be culpable, and would undercut the screening function of the infancy defense.

A presumption is a standardized procedure by which it is recognized that certain oft-recurring fact groupings call for uniformtreatment whenever they occur. [FN232] Uniform treatment is justified on the theory that proof of the existence of theunderlying facts *556 generally establishes the conclusions sought to be established. Presumptions, like the presumption ofinnocence, may also incorporate important political and societal values.

The infancy defense, in barring proceedings against children under seven, embodies a recognition that young children are sodifferent from the rest of us that we presume them to be incapable of complying with the criminal law. The presumption thatchildren under seven lack capacity may be said to assume the status of an irrebuttable presumption, in part because of theinfancy defense's role in maintaining the general tilt of the criminal justice screening process toward protecting the innocent.It resolves what little ambiguity exists regarding the child's capacity in favor of innocence. The irrebuttable presumption isrooted as well in a sense of fairness expressed in terms of proportionality. The spectre of bringing the vast criminal authorityof the state to bear on the very young presents an unappealing picture of the uses of power. [FN233]

B. Rebuttable Incapacity: The Burdens of Production and Persuasion

The burdens of production and persuasion regarding the rebuttable presumption of infancy for children seven to fourteen



have traditionally been placed on the state in adult criminal proceedings [FN234] as well as in cases imposing the infancyrequirement in juvenile justice courts. [FN235] The practical effects of putting this burden on the state are clear. Where theaccused has raised the capacity issue for consideration and the state produces no evidence as to the existence of capacity to beculpable, the case must be dismissed. [FN236]

*557 The practice of putting the risk of non-production on the state where capacity is at issue is illuminated when infancy iscompared with other affirmative defenses that put the burden of production on the accused, such as insanity, automatism,compulsion, and self-defense. Experience shows that most persons who commit crimes are sane, conscious, not compelled tocommit the crime, and not acting in self-defense. [FN237] It makes sense that if any of these unusual features are to beinjected into a case, the accused should do so. These defenses involve information easily accessible to the accused. In light ofthis, to require the state to affirmatively disprove each defense in the absence of evidence that a prima facie case supportingthe defense will be raised would be wasteful.

These traditional justifications for putting the burden of production on the accused where affirmative defenses are raised areinapposite when applied to the infancy defense. Lack of capacity is not unusual among pre-adolescents. Evidence as tocapacity is not inaccessible. [FN238] Finally, necessary issue narrowing is accomplished by requiring that the accused raisethe infancy defense for consideration.

Putting the burden of persuasion on the state is both compelled by logic and sound policy. One could imagine an infancydefense in which, once the state had met its burden of production and rebutted the presumption of incapacity, the burden ofpersuasion would then shift to the juvenile. This posture would give insufficient weight to important criminal and juvenilejustice concerns. The existence of the infancy defense goes to the question of guilt or innocence. It is basic to our criminallaw that in matters bearing on guilt the state has the burden of persuasion. While limited exceptions to this policy may befound in some jurisdictions' approaches to affirmative defenses, [FN239] the infancy defense is clearly distinguishable. Inthose jurisdictions where the defendant bears the burden of persuasion as to an affirmative defense, he also carries the burdenof production. That the burden of production is placed on the state in the infancy determination signals a recognition thatultimately it is the state's obligation to prove lack of capacity due to immaturity. The infancy defense plays a unique role inensuring that extension of juvenile court control over a young deviant child is legitimate. This function would be undercut byputting the burden of persuasion on the *558 child. Moreover, limits on coercive government authority and respect forfamilial control demand no less than a requirement that the state affirmatively show that a child has capacity to commit acrime before a criminal sanction is imposed.

C. Standard of Proof

The question of the appropriate standard or measure of proof required for the state to demonstrate capacity yields no uniformanswer among jurisdictions considering the issue. In cases where the infancy defense has been raised in adult criminalproceedings, the standard utilized has ranged from beyond a reasonable doubt [FN240] to clear and convincing evidence[FN241] to what appears to be a variant on the preponderance of the evidence test. [FN242] In juvenile justice proceedingsjurisdictions vary as well as to the proper measure of proof. [FN243] The cases provide little in the way of a rationale for useof a given standard.

Although it appears that the proof beyond a reasonable doubt standard is not constitutionally mandated when affirmativedefenses [FN244] such as the infancy defense are asserted, arguments rooted in the policies underlying the adult and juvenilejustice processes may be marshalled in favor of its use. Proof beyond a reasonable doubt can be justified, in part, by referenceto the criminal justice system's deliberate slant toward screening out the innocent. This standard is regarded as indispensable



to our criminal procedure because it is a prime instrument for reducing the risk of convictions resting on factual error. Forthis reason, proof beyond *559 a reasonable doubt is required as to every element of an offense. [FN245] While the capacityto be culpable is not, per se, an element required for conviction, there is a substantial overlap between the infancy defenseand mens rea. Thus the interest in protecting the innocent served by requiring proof of the specific mental element of a crimewill also be served by requiring the same stringent standard of proof when capacity is at issue.

The fact that the infancy defense is raised in a juvenile proceeding should make no difference in this regard. The animatingprinciples justifying the existence of the juvenile justice system have been held not to support a distinction as to the standardof proof required for conviction in a juvenile proceeding. [FN246] The loss of liberty and stigmatizing effects attending ajuvenile proceeding speak in favor of minimizing the risk of sanctioning the culpable by requiring that capacity be provenbeyond a reasonable doubt.

Finally, imposing a reasonable doubt standard on the state in infancy matters may be required as a corrective measure againstthe historical propensity of juvenile court officials to read their mandate in the broadest possible light. [FN247] Whilejudicial officers have some flexibility in interpreting evidentiary sufficiency, the reasonable doubt standard may serve as animportant reminder that culpability, not vulnerability, provides the justification for juvenile justice intervention.

D. The Test for Capacity

Various tests have been used in defining what is required for the state to prove capacity. [FN248] Most center on the child'scapacity to understand the nature and consequences of his acts and to distinguish right from wrong in reference to the chargedoffense. [FN249] While this test appears to be sufficient, it may be appropriate to address a second concern in the infancyinquiry: is the child mature enough to conform his behavior to the requirement of the *560 law? A child's moral developmentis a compendium of substantive knowledge of right and wrong learned in the context of controlling impulse. [FN250] Lack ofimpulse control is a real aspect of childhood. Punishment in the absence of such control is as violative of the culpabilityprinciple as is punishment where the offender cannot distinguish right from wrong. Courts committed to fully exploring thecapacity issue should address the impulse control question.

E. Evidence Required to Prove Capacity

While case law on the infancy standard is relatively undeveloped, the issue of the type of evidence required to satisfy thecapacity burden has been explored in at least one line of cases beginning with In re Gladys R. [FN251] There the CaliforniaSupreme Court suggested avenues of inquiry that might profitably be analyzed in determining whether capacity exists. Thesefactors include the child's age, experience, knowledge, and conduct. [FN252]

In cases since Gladys R., courts making the capacity determination have looked at evidence gleaned from a variety ofsources, including interviews of the child by psychologists [FN253] and school personnel, [FN254] police interrogation ofthe accused on the right/wrong issue, [FN255] opinions of relatives and others as to the child's substantive knowledge of rightand wrong [FN256] and his capacity to make judgments concerning right and wrong, [FN257] admissions of the accused toparents, [FN258] conduct and circumstances surrounding the crime suggesting consciousness of guilt, [FN259] and *561prior involvement in wrongdoing. [FN260] While such evidence taken in combination may be probative, legitimate concernmay be raised when there is reliance on only one source or type of evidence to prove capacity, especially when that evidencerelates only to the act charged.

Gladys R.'s suggestion that a multi-dimensional inquiry into capacity is required has not been clearly confirmed in the caselaw. While it has been held that sole reliance on proof that the act was committed [FN261] or on a single inquiry into the



child's knowledge of whether he knew that the act committed was wrong [FN262] is insufficient to meet the clear proofstandard, there is no definitive holding that the capacity inquiry be multi-dimensional. At least one court of appeals opinion,In re Cindy R., [FN263] has rejected a proposed requirement that courts must consider evidence regarding the accused'sintelligence, education, experience, or moral frame of reference in making the capacity determination.

*562 The Cindy R. court may be correct in its determination not to put a burden on the state of producing a rigid evidentiarylaundry list. On the other hand, evidence of conduct alone may merely duplicate proof of the elements of the crime. Tosafeguard the state's interest in screening out the non-culpable, it would seem appropriate to require more than proof ofconduct coextensive with the elements of the crime. In addition, once the state has apparently met its burden in rebutting thepresumption of incapacity, it would be inappropriate for the court not to hear multi-dimensional evidence presented by theaccused in his defense. By requiring something more than a superficial ventilation of the capacity issue by the state, and byallowing the accused to present a multi-dimensional array of evidence in his defense, the underlying policies of the infancydefense will be served.

CONCLUSIONCareful review of the recent history of the juvenile court reveals that the juvenile justice system has turned fromrehabilitation to principles of accountability in dealing with youthful offenders. In light of this, continued reliance on therehabilitative ideal to undercut key protections against sanctioning the innocent in the justice process, such as the infancydefense, is intellectually and institutionally problematic. In analyzing juvenile justice problems it is imperative that courts andcommentators realize that the juvenile justice court's function is to punish children.

Non-culpable children faced with the criminal process must be protected, not by the state, but from the state. There is nothingunique in the juvenile process, including the concept of lesser culpability, that excludes it from this conclusion. This, in sum,is the received wisdom of the last twenty-five years of juvenile sociological and jurisprudential study.

By focusing on children's lesser capacity to be culpable, a sorely needed justification for the existence of a separate juvenilecourt is provided, limits on the state's power to intervene in the lives of its citizens are reaffirmed, and the role played by theinfancy defense in legitimating juvenile court jurisdiction is highlighted. By screening the non-culpable out of the juvenilecourt, the infancy defense reinforces both the authority of the juvenile court to assign blame and the intellectual andinstitutional integrity of our criminal law. Its existence is integral to a justice system based on culpability principles. Theinfancy defense should be applicable in juvenile court. Respect for the autonomy of our citizens and dignity of our processdemands no less.

[FNa] Associate Professor of Law and Academic Chair, University of Puget Sound School of Law. B.A. 1971, StanfordUniversity; J.D. 1976, University of Michigan. The author would like to express his thanks to Vicky Bjorkman, J.D. 1983,University of Puget Sound, and John Bjorkman, J.D. 1983, University of Puget Sound, for their assistance with early drafts ofthis Article. Special thanks is also due to my colleagues Pierre Schlag, John Strait, and John Mitchell and to Barbara CoxWalkover, Ph.D., who reviewed the portions of this Article dealing with psychological research.

[FN1]. By juvenile justice system, I refer to that aspect of juvenile court jurisdiction dealing with adjudication ofdelinquency. Forty-three states and the District of Columbia define a delinquent act as, inter alia, an act that violates adultcriminal statutes. ALA. CODE § 12-15-1(8) (1975); ALASKA STAT. § 47.10.010(1) (1979); ARIZ. REV. STAT. ANN. §8-201(9) (Supp. 1983); ARK. STAT. ANN. § 45-403(2) (Supp. 1983); CAL. WELF. & INST. CODE § 602 (West Supp.1983); COLO. REV. STAT. § 19-1-103(9) (1978 & Supp. 1983); CONN. GEN. STAT. ANN. § 46 b-120 (West Supp. 1983);DEL. CODE ANN. tit. 10, § 901(7) (1974 & Supp. 1982); D.C. CODE ANN. § 16-2301(7) (1981); FLA. STAT. ANN. §



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39.01(8) (West Supp. 1983); GA. CODE ANN. § 24A-401(e) (Supp. 1982); IDAHO CODE § 16-1803 (Supp. 1983); ILL.ANN. STAT. ch. 23, § 2360a (Smith-Hurd 1968); IND. CODE ANN. § 31-6-4-1 (Burns 1980 & Supp. 1983); IOWA CODEANN. § 232.2(11) (West Supp. 1983); KAN. STAT. ANN. § 38-802(b) (1981); KY. REV. STAT. § 208.010(7) (1982)(repealed effective July 15, 1984); LA. REV. STAT. ANN. § 1570(A)(5); ME. REV. STAT. ANN. tit. 15, § 3103 (1980 &Supp. 1982-1983); MD. CTS. & JUD. PROC. CODE ANN. § 3-801(k) (Supp. 1982); MASS. GEN. LAWS ANN. ch. 119, §52 (West 1975); MINN. STAT. ANN. § 260.015(5) (West 1982); MISS. CODE ANN. § 43- 21-105(j) (1981); MONT.CODE ANN. § 41-5-103(12) (1983); NEV. REV. STAT. § 62.040(c) (1981); N.H. REV. STAT. ANN. § 169.2 (III) (1977);N.J. STAT. ANN. § 2A.4A-23 (West Supp. 1983) (effective Sept. 1, 1983); N.M. STAT. ANN. § 32-1-3(0) (1981);JUD.-N.Y. FAM. CT. ACT § 712(a) (McKinney 1983); N.C. GEN. STAT. § 7A-517(12) (1981); N.D. CENT. CODE §27-20-02(3) (Supp. 1981); OHIO REV. CODE ANN. § 2151.02 (Baldwin 1978); OKLA. STAT. ANN. tit. 10, § 1101(B)(West Supp. 1983-1984); PA. CONST. STAT. ANN. tit. 42, § 6302 (Purdon 1982); R.I. GEN. LAWS § 14-1-3(F) (1981);S.D. CODIFIED LAWS ANN. § 26-8- 7 (Supp. 1983); TENN. CODE ANN. § 37-202(3) (1977 & Supp. 1983); TEX. FAM.CODE ANN. tit. 3, § 51.03(a) (Vernon Supp. 1982-1983); VT. STAT. ANN. tit. 33, § 632(a)(3) (1981); VA. CODE §16.1-228(H) (1982); WASH. REV. CODE ANN. § 13.40.020(11) (Supp. 1983); W.VA. CODE § 49-1-4 (1980); WIS.STAT. ANN. § 48.02(3m) (West Supp. 1983-1984); WYO. STAT. § 14-6-201 (ix) (1978). The juvenile codes of seven statesdo not contain explicit definitions of delinquency, but do grant juvenile courts jurisdiction over acts by children that violateadult criminal law. See HAWAII REV. STAT. § 571- 11(1) (Supp. 1982); MICH. COMP. LAWS ANN. § 712A.2(a)(1)(West Supp. 1982) (MICH. STAT. ANN. § 27.3178 (598.2) Sec. 2(a) (Callaghan Supp. 1982)); MO. ANN. STAT. §211.031(3) (Vernon 1983); NEV. REV. STAT. § 62.040(c)(i) (1973); OR. REV. STAT. § 419.476(1)(a)(1981); S.C. CODEANN. § 20-7-400(d) (Supp. Law. Co-op. 1982); UTAH CODE ANN. § 78-3a-16(1)(Supp. 1983). In addition to delinquencyjurisdiction, the juvenile courts generally have jurisdiction over children who are truants, incorrigibles, and runaways (statusoffender jurisdiction), and children found to be without adequate parental supervision and thus dependent on the state(dependency jurisdiction). This Article focuses largely on the juvenile justice function of the juvenile court. For a generalreview of the jurisdictional bases of the juvenile court, see S. DAVIS, RIGHTS OF JUVENILES: THE JUVENILEJUSTICE SYSTEM 16-20 (1974 & Supp. 1979). See also Rosenberg, Juvenile Status Offender Statutes--New Perspectiveson an Old Problem, 16 U.C.D. L. REV. 283 (1983).

[FN2]. The juvenile court was premised on the theory that wayward youth could be rescued from a fall into criminality by thetimely intervention of a kindly and paternal judge. The judge, on the advice of a social worker, would diagnose the social,economic, and moral causes of the youth's problems and provide a means for arresting them. See Mack, The Juvenile Court,23 HARV. L. REV. 104 (1909) (an insider's description of the early juvenile courts). A brief overview of the history andlegal rationale of the juvenile court may be found in In re Gault, 387 U.S. 1, 14-19 (1967). For more extended discussion ofthe early juvenile court, see infra notes 35-50 and accompanying text.

[FN3]. In the reformulated juvenile justice court, the prosecutor has replaced the social worker as the key figure in decidingwhether to initiate a juvenile court proceeding against a juvenile and in recommending the disposition. The judge has beentransformed from the partisan of the child to a neutral fact finder. Introduction of defense counsel completed thetransformation into a fully adversary proceeding. See generally McCarthy, Delinquency Dispositions Under the JuvenileJustice Standards: The Consequences of a Change of Rationale, 52 N.Y.U. L. REV. 1093, 1115 (1977); for a prosecutorialview of Washington's new juvenile justice court, see Reich, The Juvenile Justice Act of 1977: A Prosecutor's Perspective, 14GONZ. L. REV. 337 (1979); for a discussion of competing claims underlying the sociological versus legalistic approaches tothe juvenile justice court, see Dunham, The Juvenile Court: Contradictory Orientations in Processing Offenders, 23 LAW &CONTEMP. PROBS. 508 (1958).

[FN4]. The parens patriae concept was initially used to describe the Chancery practice of allowing the state to act in loco



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parentis for the purpose of protecting the property interests and person of a child at common law. See H. CLARK, CASESAND PROBLEMS OF DOMESTIC RELATIONS 480 (2d ed. 1974). Parens patriae was seized upon by proponents of thejuvenile court system to stymie claims by litigants that substantive and procedural protections available to juveniles andadults in the criminal court should also be applicable in the juvenile court. See In re Gault, 387 U.S. 1, 16 (1967). It wasargued successfully that constitutional protections required in a criminal prosecution were not applicable when the statesought to aid a person in its parental capacity. See Ex parte Crouse, 4 Whart. 9 (Pa. 1839). The parens patriae argument wasamplified by the assertion that parens patriae jurisdiction did not so much pose a threat to a child's liberty inte est under thedue process clause as it assured his right to "custody."' See In re Gault, 387 U.S. at 18.Critics of parens patriae make much of the fact that historically there is no trace of the doctrine in criminal jurisprudence. Id.at 17. This is not nearly so striking a fact (nor nearly as important) as it appears. At common law, juvenile offenders weretreatedindistinguishably from adult offenders. The very purpose of the juvenile court was to provide a wholly differentsystem for dealing with the troubled youth, a system closer to Chancery treatment of wards and other children in need ofprotection than to its criminal counterpart. See Fox, Juvenile Justice Reform: An Historical Perspective, 22 STAN. L. REV.1187, 1199 (1970). Critics of parens patriae are on sounder ground in their assertion that parens patriae jurisdiction hasproved to be paternalistic in the worst sense of the word. See generally F. ALLEN, THE BORDERLAND OF CRIMINALJUSTICE 1-41 (1964).

[FN5]. In 1966, the Court decided Kent v. United States, 383 U.S. 541 (1966). The opinion has been construed as holdingthat the juvenile court's waiver of jurisdiction over juveniles was a critically important stage in the juvenile process and mustbe attended by minimum requirements of due process and fairness required by the fourteenth amendment. The followingyear, In re Gault, 387 U.S. 1 (1967), confirmed the constitutional basis of Kent in holding that the essentials of due processand fair treatment must be applied to juvenile court adjudications of deliquency. In re Winship, 397 U.S. 358 (1970),established that the proof beyond a reasonable doubt standard is required in delinquency proceedings. For additionaldiscussion of these cases, see infra notes 55-80 and accompanying text.

[FN6]. See, e.g., ARIZ. REV. STAT. ANN. § 8-201(8) (1974). See generally jurisdictions cited supra note 1.

[FN7]. See, e.g., CAL. WELF. & INST. CODE § 202 (West Supp. 1983). See generally infra note 82. This is not to say thatthe adult criminal model has fully subsumed its juvenile counterpart. Indeed, the very existence of a separate juvenile justicesystem belies complete assimilation. It should be noted that in this Article no claim is made that accountability andpunishment have completely extinguished the goal of treatment from the juvenile justice system. Rather, it is asserted that aclear shift has taken place, with treatment taking second place to the traditional goals most closely identified with thecriminal justice system. See Breed v. Jones, 421 U.S. 519, 531 (1975) (a delinquency proceeding "is designed to vindicate[the] very vital interest in enforcement of criminal laws."' (citation omitted)).

[FN8]. The Washington criminal code codifies the basic elements of the common law capacity defense but lowers the age ofassumed capacity from fourteen to twelve.Children under the age of eight years are incapable of committing crime. Children of eight and under twelve years of age arepresumed to be incapable of committing crime, but this presumption may be removed by proof that they have sufficientcapacity to understand the act or neglect, and to know that it was wrong.WASH. REV. CODE § 9A.04.050 (1977). At common law, children under seven were without criminal capacity. Childrenages seven to fourteen were presumed to be infants and without requisite capacity to commit a crime. Individuals fourteenand over were regarded as having the same criminal capacity as adults. See W. LAFAVE & A. SCOTT, HANDBOOK ONCRIMINAL LAW 351-52 (1972).The best general treatment on the common law infancy defense may be found in W. LAFAVE & A. SCOTT, supra, at




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351-53. See also R. PERKINS & R. BOYCE, CRIMINAL LAW 936-40 (3d ed. 1982); Woodbridge, Physical and MentalInfancy in the Criminal Law, 87 U. PA. L. REV. 426 (1939). For early discussions of the infancy defense see 1 M. HALE,PLEAS OF THE CROWN 22-26 (1778); 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 23-24(1769); 3 COKE, INSTITUTES ON THE LAWS OF ENGLAND 4 (1644).

[FN9]. The aims of the criminal law are generally identified as retribution, deterrence, incapacitation, and rehabilitation. SeeHart, The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401 (1958). Some commentators would reduce theaims of the criminal law to one: assigning blame. See White, Making Sense of the Criminal Law, 50 U. COLO. L. REV. 1(1978).

[FN10]. For a discussion of conceptual incongruity between the juvenile court as originally conceived and the infancydefense, see infra notes 46-48 and accompanying text.

[FN11]. For an example of a recent Washington State Attorney General's opinion rejecting the capacity defense despite thecriminalization of the juvenile justice court, see 2 Wash. Op. Att'y Gen. 3, 20 (1980). Fundamental to the Attorney General'sconclusion is the assumption that the parens patriae model of treatment and rehabilitation is still the predominant principalunderlying the state's Juvenile Justice Act. Id. at 12-13, 20-23. As will be shown, the Washington law is now guided by aphilosophy of accountability and punishment much more akin to that of the adult criminal system. See infra notes 108-32 andaccompanying text. For more extensive discussion and criticism of the opinion, see infra note 139.

[FN12]. In general, courts have found the infancy defense inapplicable to juvenile proceedings. See infra notes 193-213 andaccompanying text. Commentators finding the basic premises of the traditional juvenile court to be unchanged by the recentspate of juvenile justice reforms are generally in accord with those courts rejecting infancy as a defense. See Note, CommonLaw Presumption of Criminal Incapacity of Minors Under Age Fourteen Inapplicable to Juvenile Proceedings: In re Davis,34 MD. L. REV. 178 (1974); this position may profitably be compared to the pre-Gault rejection of the infancy defensereflected in the MODEL PENAL CODE § 4.10 comment (Tent. Draft No. 7, 1953).At least two recent commentators have urged that principles of criminal responsibility should play a role in the juvenilejustice court. See Fox, Responsibility in the Juvenile Court, 11 WM. & MARY L. REV. 659 (1970); McCarthy, The Role ofthe Concept of Responsibility in Juvenile Delinquency Proceedings, 10 U. MICH. J.L. REF. 181 (1977). Fox's argument thatthe infancy defense should be applied to juvenile delinquency proceedings is largely grounded in public policy. Fox arguesthat invocation of the infancy defense will require courts and legislatures to focus on the "not-his-fault"' factors where ajuvenile lacking capacity has committed an offense. See Fox, supra, at 672. Fox does not address the question of whether ajuvenile court has the financial or experiential resources to address the socioeconomic or psychological causes of immaturetroublemaking. Fox also asserts that a delinquent's rehabilitation may be stymied by the convicted child's perception that he isfirst condemned as a criminal and then treated rather than punished. Id. at 672-73. Finally, Fox argues that by focusing theproceeding on the immaturity of the child, public hostility toward children in trouble with the law might be replaced byattitudes of understanding and sympathy that could eventuate in allocation of more resources to the juvenile court. Id. at673-74. In grounding his argument in public policy, Fox fails to emphasize far more cogent reasons linked to traditionalcommon law concerns with culpability as to why the infancy defense should be applicable in juvenile proceedings.Dean McCarthy hits closer to the mark in his argument for reintegrating the criminal law concepts of culpability andresponsibility into the juvenile court. In stressing the congruence between the philosophical bases of criminal punishment andthe new juvenile court, McCarthy makes a compelling argument for requiring proof of mens rea in juvenile justiceproceedings. McCarthy neglects to explore the infancy defense in any depth and thus overlooks both its role in justifyingextension of juvenile justice jurisdiction, see infra notes 187-88 and accompanying text, and its function of allocating controlover the children between parent and state. See infra notes 189-92 and accompanying text. See also JUVENILE JUSTICE



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STANDARDS PROJECT (Institute of Judicial Administration & American Bar Association Tent. Draft 1977) [hereinafterSTANDARDS], which places a similar emphasis on reintegrating the concept of legal responsibility into the juvenile courtbut eschews reliance on the infancy defense.

[FN13]. Because the infancy defense has the function of screening the culpable from the non-culpable, the defense hasmeaning only in relation to the broader question of whether the juvenile court is, in general, in the business of ascertainingblameworthiness rather than diagnosing and treating troubled youth. In addition to its screening function, the infancy defensecan be viewed in its role in assigning responsibility over the youthful offender: to the state if the child is blameworthy, to theparent if the child is innocent of the offense charged. See In re Gladys R., 1 Cal. 3d 855, 464 P.2d 127, 83 Cal. Rptr. 671(1970) (arguing that the infancy defense may be used as a means for determining whether delinquency or dependency is theappropriate basis for state intervention in the life of a deviant child). The question of who decides for a child--the child, theparent, or the state--is a theme that may be traced throughout the whole of juvenile jurisprudence. See generally R.MNOOKIN, CHILD, FAMILY AND STATE (1978). Moreover, the infancy defense deals especially with those qualities ofmind that distinguish an adult's ability to choose among options and to assign meanings to those choices from that of a child.This inquiry is basic in developing a rationale for a juvenile justice system that may be said to parallel, but not merelyreplicate, the adult model.It has been argued that the juvenile justice court exists without reference to a clearly defined purpose or without adequatecharacterization. See Zimring, Pursuing Juvenile Justice: Comments on Some Recent Reform Proposals, 55 U. DET. J. URB.L. 631, 632 (1978) ("In the juvenile court, loss of faith in rehabilitation has undermined the only announced purpose of theomnibus theory of delinquency, leaving the court without any formal rationale for intervention in the lives of its subjects."').Currently, there are two competing models for understanding the juvenile justice court. The adult equivalency model adoptsintact the legal and philosophical underpinnings of the criminal law. Proponents of this position have gone so far as to call forthe reassimilation of juveniles into the adult system. See, e.g., Wizner & Keller, The Penal Model of Juvenile Justice: IsJuvenile Court Delinquency Jurisdiction Obsolete, 52 N.Y.U. L. REV. 1120 (1977). The substitute protections model rejectsthe adult equivalency paradigm and recommends an approach consistent with the constitutional requirements tailored to thevulnerable nature of the childhood experience. See Weissman, Toward an Integrated Theory of Delinquency Responsibility,60 DEN. L.J. 485, 515-17 (1983). Neither model provides an adequate rationale for the juvenile court.The adult equivalency model ignores the fact that children committing crimes have less of a capacity to be culpable thanadults and thus are less blameworthy. The substitute protections model places a parens patriae rationale on what is a criminallaw function of the juvenile court. For further discussion of the substitute protections model and for analysis of the lesserculpability model offered in this Article as an alternative to those approaches, see notes 180-86 and accompanying text. Seealso Zimring, supra, at 643-45 (suggesting diminished responsibility, inter alia, as a justifying principle of juvenile law).

[FN14]. The Washington Juvenile Justice Act of 1977 (codified at WASH. REV. CODE ANN. § 13.40 (Supp. 1983))[hereinafter cited as the Act] incorporates the basic indicia of the new juvenile justice law. Juvenile offender jurisdiction islimited solely to juveniles who have committed offenses that would be crimes or violations if committed by adults. WASH.REV. CODE ANN. § 13.40.020.15 (Supp. 1983). Status offenses are abolished and dependent children are cordoned off fromthe justice system. See infra notes 112-15 and accompanying text. The Act incorporates in the juvenile justice process all theprocedural protections afforded adults in criminal adjudication with the sole exception of trial by jury. See infra notes 116-26and accompanying text. Sanctions are determinate in nature, focusing on the offense, not the offender. See infra notes 129-31and accompanying text. The Act's avowed purposes are accountability, punishment, protection of the community, andtreatment. See infra notes 109-11 and accompanying text. Yet the Act provides for the maturational limitations of the juvenileoffender by providing a separate court and incarceration system, by expanding diversion opportunities, and providing liberalrules for waiver of rights and for notice to parents. See infra note 132 and accompanying text.





[FN15]. One road not taken in this Article is reliance on the argument that the fourteenth amendment due process clauserequires application of the infancy defense to juvenile justice proceedings. Given the Supreme Court's refusal toconstitutionalize substantive criminal law, such arguments are problematic at best. See infra notes 149, 244 for extendeddiscussion of this issue.

[FN16]. See generally Kean, The History of the Criminal Liability of Children, 53 LAW Q. REV. 364 (1937).

[FN17]. A survey of the common law requirements for culpable conduct can be found in 4 W. BLACKSTONE, supra note 8,at 23-24. A recent, sensitive treatment of the culpability requirement can be found in Kadish, The Decline of Innocence, 1968CAMBRIDGE L.J. 273. Some commentators and courts would subsume the capacity determination into the mens rearequirement. See infra notes 183, 210-11 and accompanying text. This conclusion is based on a misperception of both themeaning and function of the infancy defense and of the mens rea requirement. See id. Finally, some commentators havesuggested removing the entire body of qualifications to criminal liability embraced in both the capacity and mens reaprinciples. J. MARSHALL, INTENTION OF LAW AND SOCIETY (1968); B. WOOTTON, CRIME AND THECRIMINAL LAW chs. 52-53 (1963); Campbell, A Strict Accountability Approach to Criminal Responsibility, FED.PROBATION, Dec. 1965, at 33. A persuasive response to Lady Wootton may be found in Kadish, supra, at 285-90.

[FN18]. At early common law infancy apparently was no defense to criminal prosecution. Youthful defendants generallywere pardoned, however. See Kean, supra note 16, at 364. By the tenth century concerns raised in punishing youthfuloffenders were translated into a statute providing that children under fifteen could not be subjected to capital punishmentunless there was a refusal to give oneself up or an escape was attempted. See ATTENBOROUGH, THE LAWS OFEARLIEST ENGLISH KINGS 169 (1922). Arguably, the exceptions to the rule precluding capital punishment for youngcriminals are grounded in the fact that both refusal to surrender and escape may be viewed as reflecting the capacity tounderstand the wrongfulness of one's conduct.

[FN19]. For discussion of child development and the concept of culpability, see infra notes 163-77 and accompanying text.

[FN20]. The historical roots of the infancy defense are to be found in cases involving capital punishment. See supra note 18.Woodbridge, supra note 8, at 431, asserts that by the early fourteenth century children under the age of seven wereconsidered without criminal capacity. Doubtless, this was influenced by the fact that under Roman civil law, seven was theage of responsibility. Id. at 435. By 1338, infants over seven were presumed incapable of having the capacity to commit acrime. This presumption could be rebutted by proof of malice. It was not until the seventeenth century that the age ofpresumptive capacity became fourteen, 1 COKE, INSTITUTES ON THE LAWS OF ENGLAND 2476 (1642), leavingchildren between seven and fourteen presumptively incapable of commiting a crime. See 4 W. BLACKSTONE, supra note 8,at 23-24. LaFave and Scott note that prior to the seventeenth century the age of responsibility may have been twelve, at leastfor capital offenses. There is also some evidence that early on the infancy defense could be asserted up to age twenty-one formisdemeanors of nonfeasance, but not for misdemeanors requiring affirmative acts. W. LAFAVE & A. SCOTT, supra note8, at 352 n.7, citing 4 W. BLACKSTONE, supra note 8, at 22.

[FN21]. Capacity presumptions were linked to chronological, not mental age. Indeed, one could imagine a capacitydetermination without age bounded assumptions. See infra note 230. Woodbridge, supra note 8, at 435, asserts that thecoming of birth registration laws, combined with prevailing categorically oriented juristic modes of thought, resulted inadoption of a mechanistic approach to determinations of capacity.

[FN22]. The weight of the presumption is said to decrease as the child approaches the age of discretion. 1 M. HALE, supranote 8, at 27. The crystallization of the infancy defense in the form of a rebuttable presumption was explained on the ground



that failure to punish particularly egregious acts of children between the ages of seven and fourteen would enhance thelikelihood of other children committing similar acts. 4 W. BLACKSTONE, supra note 8, at 27.

[FN23]. See Godfrey v. State, 31 Ala. 323, 328 (1858) (a slave was convicted of murder despite his age of only eleven yearsbecause it was shown that he understood the nature and consequences of his act and showed intelligent design and malice inits execution); Miles v. State, 99 Miss. 165, 167, 54 So. 946 (1910) (remand of a case of assault and battery with intent tokill, where the evidence was conflicting as to who was the aggressor and appellant was between the ages of seven andfourteen). Blackstone indicates that English practice was to consider the defendant prima facie incapable of distinguishinggood from evil. 4 W. BLACKSTONE, supra note 8, at 23-24.

[FN24]. A variety of phrases have been employed as a means of illuminating the state of mind required to overcomepresumptive incapacity. These include "a mischievous discretion,"' Martin v. State, 90 Ala. 602, 8 So. 858 (1891) (fourteenyear old boy who, in resisting an assault by a seventeen year old boy, threw a rock killing the seventeen year old, held notguilty of murder); "malice in the execution of the act,"' Godfrey v. State, 31 Ala. 323, 327 (1858); "guilty knowledge that heor she was doing wrong,"' Rex v. Owen, 172 Eng. Rep. 685 (1830) (ten year old girl acquitted for theft of several lumps ofcoal because the prosecution did not prove that she had a guilty knowledge of her wrongdoing); "discretion to judge betweengood and evil,"' 1 M. HALE, supra note 8, at 26. More recent statements include "appreciate the wrongfulness of theirconduct,"' In re Gladys R., 1 Cal. 3d 855, 867, 464 P.2d 127, 136, 83 Cal. Rptr. 671, 680 (1970) (reversal of a judgmentdeclaring an emotionally disturbed twelve year old girl a ward of the court and committing her to an institution forperpetrating a sexual act was proscribed by the penal code section); "surrounding circumstances must demonstrate . . . thatthe individual knew what he was doing and that it was wrong,"' Adams v. State, 8 Md. App. 684, 688, 262 A.2d 69, 72(1970) (defendant who was just under fourteen years old was excluded from the category of "delinquent child"' by statute andtried as an adult for murder committed during two hold-ups); "competent to know the nature and consequences of his conductand to appreciate that it was wrong,"' CAN. CRIM. CODE § 13 (1962).At common law, proof of capacity for purposes of defeating the infancy presumption was drawn from the child's generalknowledge of the difference between good and evil as well as from conduct reflecting the capacity to know right from wrong.See State v. Nickleson, 45 La. Ann. 1172, 14 So. 134 (1893) (indictment of a defendant between the age of seven andfourteen for arson affirmed); Commonwealth v. Mead, 92 Mass. (1 Allen) 398 (1865) (new trial ordered for a girl under theage of twelve because the facts as presented at her trial did not establish her legal capacity to commit a crime). But see Willetv. Commonwealth, 76 Ky. (1 Bush) 230 (1877) (general knowledge of the difference between good and evil was deemedinsufficient to show knowledge of the consequences of the particular acts engaged in). See generally R. PERKINS & R.BOYCE, supra note 8, at 938-39. There seems to be some inconsistency as to what kinds of conduct would prove capacity.Compare State v. Milholland, 89 Iowa 5, 56 N.W. 403 (1893) (bribing a witness is evidence of capacity), with People v.Lang, 402 Ill. 170, 83 N.E.2d 688 (1949) (effort to silence witness is insufficient to show capacity).

[FN25]. 4 W. BLACKSTONE, supra note 8, at 22-24.

[FN26]. 3 COKE, supra note 8, at 4.

[FN27]. See generally L. STONE, THE FAMILY, SEX AND MARRIAGE IN ENGLAND 1500-1800 (1977), especiallyChapter Nine, "Parent Child Relations,"' for a sensitive and wide ranging analysis of shifting attitudes toward children. Stoneargues that in England between 1500 and 1800 there was a decisive transformation in the way family relations wereconstructed and conceptualized. Of interest here is his argument that as the family was transformed from a hierarchical,feudal, patriarchal structure to its modern form, children moved from the lowest rung of the family hierarchy to the emotionalcenter of the family. Stone argues that concern for the welfare of children and recognition of their vulnerability were

















heightened in this time period and moved to the forefront of both private and public discourse. Stone makes the telling pointthat high infant mortality rates common in feudal times may have lessened the likelihood of the parent forming strongaffective bonds with the child. Thus, reduction in the death rates was of particular significance in forming our modernconception of children in that it removed a significant disincentive to placing a high emotional value on children, both withinthe family and in society.

[FN28]. 4 W. BLACKSTONE, supra note 8, at 24.

[FN29]. See id. at 23-24; 1 M. HALE, supra note 8, at 26-27.

[FN30]. See authorities cited in In re Gault, 387 U.S. 1, 15 (1967). Recent commentators argue that these horror stories werelargely apocryphal. See A. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY 183-202 (1969). Thisdoes not mean, of course, that their influence on the public mind was in any sense weakened.

[FN31]. A. PLATT, supra note 30, at 139.

[FN32]. Juvenile law reformers could find "no distinction between pauper, vagrant and criminal children, which wouldrequire a different system of treatment."' M. CARPENTER, WHAT SHOULD BE DONE FOR THE NEGLECTED ANDCRIMINAL CHILDREN OF THE UNITED STATES (1875), quoted in Fox, supra note 4, at 1193. Juvenile courts mingledjuvenile dependents, criminals, and status offenders within the same system. The Washington Juvenile Court and DelinquentAct of 1913 is typical in its use of vague standards to extend juvenile court jurisdiction over a broad range of juvenilebehavior. The 1913 Act extended juvenile court control to children accused of committing a crime (delinquent children), aswell as to children found to be begging or vagrant, lacking parents or proper parental control, living in an unfit home byreason of neglect, cruelty, or depravity of his parents, having a drunkard for a parent, frequenting houses of prostitution,saloons, or pool halls, using tobacco, liquor or being incorrigible, being in danger of growing up to lead an idle, dissolute orimmoral life, engaging in street singing or peddling for money, using vile, obscene, vulgar or profane speech, found in arailroad yard or entering a railroad car without lawful authority inter alia (dependent children). 1913 Wash. Laws Ch. 160, §1 (codified at WASH. REV. CODE ANN. 13.04 (1962)), repealed by Laws 1st Ex. Sess. 1977 Ch. 291, § 81 (1978).Children found delinquent or dependent were made wards of the state and subject to the care, custody, guardianship, andcontrol of the court. Id. No functional distinction existed between delinquent and dependent, including disposition, other thanthe label attached to the child. See State ex rel. Raddue v. Superior Court, 106 Wash. 619, 622, 180 P. 875, 877 (1919)(complaint not fatally flawed where only delinquency was alleged and child was found to be dependent, given that the statehad identical powers in its capacity as ward over both delinquent and dependent).

[FN33]. See In re Gault, 387 U.S. 1, 15 (1967).

[FN34]. See id. at 15-16; see also Mack, supra note 2, at 119-20.

[FN35]. Compare the idyllic picture of the juvenile court's origins in H. LOU, JUVENILE COURTS IN THE UNITEDSTATES (1927) and Mack, supra note 2, with the devastating portrait depicted in Fox, supra note 4, and by A. PLATT, supranote 30. Justice Fortas' opinion in In re Gault, 387 U.S. at 15-16, while critical of the juvenile court in general, accepts thebenign picture of the court's origins drawn by Lou and by Mack. In Fortas' view, early reformers were essentially altruistic.Appalled by application of adult procedures and penalties to children, and by the fact that children could be given long prisonsentences and mixed in jails with hardened criminals, reformers were convinced that society's duty to protect childrennecessitated rejection of the apparent rigidities, technicalities, and harshness implicit in adult procedural and substantivecriminal law. In re Gault, 387 U.S. at 15-16.









While revisionist historians may acknowledge that reformers were motivated in part by humanitarian ideals, see Fox, supranote 4, at 1188-89, they locate the roots of the juvenile court movement largely in the reformers' desire to (a) maintainProtestant cultural hegemony over immigrant youth, (b) rationalize and extend bureaucratic control over deviant behavior,and (c) create jobs for themselves and their cohorts. Id. at 1222-28. The revisionist critique concludes that the development ofthe juvenile court did not so much radically transform the law as it maintained a continuity with the social and penal policiesthat, from early on, characterized the treatment of juveniles in America. Id. at 1195, 1222, 1230 (continuity in punitive penalpractices), 1199-1201, 1222-24 (authority over poor and homeless youth merely shifted from poorhouse to juvenile court),and 1221-22 (lack of procedural protections for most juvenile deviants existing in both pre- and post-juvenile court). Thisrewriting of juvenile court history is consistent with general left-revisionist attempts to transform the historical interpretationof the Progressive era as a period characterized by the spirit of reform, to one in which leading sectors of the capitalist andprogressive classes used reform movements to solidity and extend their control over America's social and economic structure.See, e.g., G. KOLKO, THE TRIUMPH OF CONSERVATISM: A REINTERPRETATION OF AMERICAN HISTORY,1900-1916 (1977).

[FN36]. According to Philippe Aries, the leading historian of childhood:In the Middle Ages, at the beginning of modern times, and for a long time after that in the lower classes, children were mixedwith adults as soon as they were considered capable of doing without their mothers or nannies, not long after a tardy weaning(in other words, at about the age of seven). They immediately went straight into the great community of men, sharing in thework and play of their companions, old and young alike.P. ARIES, CENTURIES OF CHILDHOOD 411 (1962).

[FN37]. See L. STONE, supra note 27, at 254-85.

[FN38]. Id.

[FN39]. Links between the democratic spirit, republican ideology, and the premise of individualism, and shifts in the internalstructure of the family and consequent idealization of childhood are reviewed in Katz, Legal History and Family History: TheChild, the Family, and the State, 21 B.C.L. REV. 1025 (1980). The literature on the experience of childhood in America isvast. See generally A. DOUGLAS, THE FEMINIZATION OF AMERICAN CULTURE (1977); C. LASCH, HAVEN IN AHEARTLESS WORLD: THE FAMILY BESIEGED (1977); E. SHORTER, THE MAKING OF THE MODERN FAMILY(1975); B. WISHY, THE CHILD AND THE REPUBLIC: THE DAWN OF MODERN AMERICAN CHILD NURTURE(1968); Demos & Demos, Adolescence in Historical Perspective, 31 J. OF MARRIAGE AND THE FAM. 632-38 (1969);Demos, Developmental Perspectives on the History of Childhood, 2 J. OF INTERDISCIPLINARY HIST. 315-38 (1972);Keniston, Youth: A "New"' Stage of Life, 39 THE AM. SCHOLAR 631-54 (1970). For fictionalized inquiries into thenineteenth century sentimentalization of childhood, compare M. TWAIN, TOM SAWYER (1876), with L. ALCOTT,LITTLE WOMEN (1868). See generally L. FIEDLER, LOVE AND DEATH IN THE AMERICAN NOVEL (1966); A.WALKOVER, THE DIALECTS OF EDEN (1973); D. NOBLE, THE ETERNAL ADAM AND THE NEW WORLDGARDEN (1968).

[FN40]. At common law, parents, in particular fathers, had virtually total power over the care, custody, and upbringing oftheir children. See 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 446-54 (1877). This powerhad its source in the parental duty to maintain dependent children. In America, child neglect laws (also known as dependencylaws) enforced through the juvenile court were enacted to provide a minimal basis of appropriate parental behavior towardchildren. For a comprehensive summary of child neglect statutes, see Katz, Howe & McGrath, Child Neglect Laws inAmerica, 9 FAM. L.Q. 1 (1975). Neglect laws, supplemented by the offender and status bases of juvenile court jurisdiction,



gave justification for the establishment of a series of reform schools and foster homes that provided an alternative to eitherparental custody or criminal institutionalization. This practice of removing delinquent children from the home necessarilyinvolved judicial adjustment of competing claims between the parent and the state acting as parens patriae. See State ex rel.Pulakis v. Superior Court, 14 Wash. 2d 507, 128 P.2d 649 (1942) (involving a parental challenge to a seventeen-year-olddaughter's commitment to a state training institution because of unexcused absence from school, where the parent wasavailable to exercise custody). Recently, broad based neglect statutes have come under attack by the courts, see Roe v. Conn,417 F.Supp. 769 (M.D. Ala. 1976); but see People v. Schools, 15 Ill. App. 3d 964, 305 N.E.2d 560 (1973); by legislatures,see CAL. WELF. & INST. CODE § 361.5 (West Supp. 1983); and by commentators, see Wald, State Intervention on Behalfof "Neglected"' Children: Standards for Removal of Children from Their Homes, Monitoring the Status of Children in FosterCare and Termination of Parental Rights, 28 STAN. L. REV. 625 (1976).

[FN41]. For an early example of this phenomenon, see Society for The Prevention of Pauperism in the City of New York,Report on the Penitentiary System in the U.S. 59-60 (1822), cited in Fox, supra note 4, at 1190. This perception of thejuvenile as essentially "good"' and thus deserving of society's solicitude rather than blame reached full flower in thejustificatory literature surrounding the juvenile reform movement. For a telling example of this, see Mack, supra note 2, at120.

[FN42]. See NATIONAL COUNCIL OF JUVENILE COURT JUDGES, DIRECTORY AND MANUAL 1-80 (1963).

[FN43]. For a revealing self-description of judicial attitudes toward the juvenile court, see Mack, supra note 2.

[FN44]. For a discussion of the lack of due process guarantees in the early juvenile court, see F. ALLEN, supra note 4;Paulsen, Fairness to the Juvenile Offender, 41 MINN. L. REV. 547 (1957); Note, Rights and Rehabilitation in the JuvenileCourts, 67 COLUM. L. REV. 281 (1967); REPORT BY THE PRESIDENT'S COMM'N ON LAW ENFORCEMENT ANDTHE ADMIN. OF JUSTICE, THE CHALLENGE TO CRIME IN A FREE SOCIETY 81, 85-95 (1967).

[FN45]. In re Gault, 387 U.S. 1, 27 (1967).

[FN46]. See generally Fox, supra note 12. For a description of the demise of the infancy defense in the face ofpre-delinquency theory, see id. at 661- 66.

[FN47]. Juvenile court statutes made no specific mention of the infancy defense. See, e.g., 1899 Ill. Laws 131-37.

[FN48]. 139 Tenn. 549, 201 S.W. 771 (1918).

[FN49]. See Fox, supra note 12, at 672. But see Waite, How Far Can Court Procedure Be Socialized Without ImpairingIndividual Rights, 12 J. CRIM. L. & CRIMINOLOGY 339, 340 (1921).

[FN50]. The phrase is taken from a foreword written by Dean Pound to P. YOUNG, SOCIAL TREATMENT INPROBATION AND DELINQUENCY XVII (1937). It is quoted in In re Gault, 387 U.S. 1, 18 (1967).

[FN51]. See sources cited supra note 44. See also In re Gault, 387 U.S. 1, 12-13 (1967).

[FN52]. See studies cited in In re Gault, 387 U.S. at 21-23.Generally, two main themes can be discerned in the anti-rehabilitation literature. First, the simple but powerful claim is madethat rehabilitation does not work. Id. The second major attack on the rehabilitative rationale largely stems from politicaltheory. Critics of rehabilitation point out that the popularity of the rehabilitative ideal has declined due to an absence of








http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=1000298&DocName=CAWIS361.5&FindType=L







meaningful consensus over what behavior is deviant and what treatment regimes are legitimate. In addition, critics assert thatthe rehabilitative rationale insufficiently reflects intrinsic limitations on both the police and parens patriae powers, and fails toadequately protect values of personal autonomy and dignity deeply rooted in our pluralistic society. For a sophisticatedoverview of these problems, see F. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL (1981).

[FN53]. The first ten amendments to the Constitution were enacted as limitations solely on the federal government. Barron v.Mayor of Baltimore, 32 U.S. 243 (1833). The adoption of the fourteenth amendment in 1868 significantly extended federalconstitutional claims over the acts of state governments. The relationship of the fourteenth amendment limitations on thestates to the Bill of Rights limitations on the federal government, however, has never been completely and adequatelyresolved. See Y. KAMISAR, W. LAFAVE & S. ISRAEL, MODERN CRIMINAL PROCEDURE 28-41 (5th ed. 1980). Ingeneral, it may be said that criminal due process requires that the state afford "that fundamental fairness essential to the veryconcept of justice."' Lisenba v. California, 314 U.S. 219, 236 (1941).

[FN54]. See, e.g., In re Gault, 387 U.S. 1, 28 (1967) ("Under our Constitution, the condition of being a boy does not justify akangaroo court."').

[FN55]. 383 U.S. 541 (1966).

[FN56]. The waiver proceeding may be linked historically to child saving concerns of the early juvenile court movement. Inessence, the waiver proceeding was used to explore whether a child could still benefit from the care and treatment of thejuvenile court (and thus be "saved"') or should be given over to adult authorities and punished. For a general discussion ofwaiver, see S. DAVIS, supra note 1, at 105-21.

[FN57]. The statutory waiver provision relied on in Kent gave no standards to guide the court in determining which of thechildren eligible for waiver should in fact be waived. See D.C. CODE ANN. § 11-914 (1961), quoted in Kent v. UnitedStates, 383 U.S. at 547-48. The statute merely requires that a "full investigation"' be made prior to ordering a child to trial. Id.The most influential aspect of the Kent decision appears to be a product of the Court's decision to append a PolicyMemorandum of the District of Columbia Juvenile Court Judges, setting out suggested criteria to govern waiver decisions.The criteria are:1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.2. Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner.3. Whether the alleged offense was against persons or against property, greater weight being given to offenses againstpersons especially if personal injury resulted.4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to returnan indictment . . . .5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the allegedoffense are adults who will be charged with a crime in the [criminal court].6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation,emotional attitude and pattern of living.7. The record and previous history of the juvenile . . . .8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he isfound to have committed the alleged offense) by the use of procedures, services and facilities currently available to theJuvenile Court.383 U.S. at 566-67.These criteria, which shift the waiver decision away from its traditionally exclusive emphasis on amenability to treatment and











toward more traditional criminal justice concerns, have been widely influential in state court proceedings. See S. DAVIS,supra note 1, at 112-14. See, e.g., State v. Foltz, 27 Wash. App. 554, 619 P.2d 702 (1980). Their use is reflective of thetwo-track system of juvenile culpability in the courts set forth infra notes 179-92 and accompanying text.

[FN58]. D.C. CODE ANN. § 11-914 (1961), quoted in Kent v. United States, 383 U.S. at 547-48.

[FN59]. No hearing on the waiver or on counsel's motion for a waiver was held. The judge did not confer with petitioner, hisparents, or his counsel. The judge made no findings and gave no supporting reasons for the waiver. Kent v. United States,383 U.S. at 546.

[FN60]. Id. There is some ambiguity in the decisional basis of Kent. Compare the Court's assertion that "[T]he Juvenile CourtAct and the decisions of the United States Court of Appeals for the District of Columbia Circuit provide an adequate basis fordecision of this case, and we go no further,"' id. at 556, with the assertion that waiver of jurisdiction was a "criticallyimportant stage in the juvenile process and must be attended by minimum requirements of due process and fair treatmentguaranteed by the fourteenth amendment."' Id. at 560. The principles set out in Kent regarding the waiver proceeding are nowgenerally considered to be of constitutional dimensions. See cases cited in S. DAVIS, supra note 1, at 111.

[FN61]. S. DAVIS, supra note 1, at 111.

[FN62]. See 383 U.S. at 561.

[FN63]. 387 U.S. 1 (1967).

[FN64]. Id. at 36.

[FN65]. Id. at 27.

[FN66]. Id. at 28-31.

[FN67]. Id. at 27.

[FN68]. 397 U.S. 358 (1970).

[FN69]. To Justice Berger, in dissent, Winship "rests entirely on the assumption that all juvenile proceedings are 'criminalprosecutions' [deriving] from earlier holdings, which, like [Winship] were steps eroding the differences between juvenilecourts and traditional criminal courts."' Id. at 375-76. (Burger, C.J., dissenting).

[FN70]. Id. at 365.

[FN71]. Id.

[FN72]. Justice Harlan, in his concurring opinion in Winship, reveals the extent to which the substantive concerns of the nowprocess-bound juvenile court have shifted to parallel the criminal system.When one assesses the consequences of an erroneous factual determination in a juvenile delinquency proceeding in which ayouth is accused of a crime, I think it must be concluded that, while the consequences are not identical to those in a criminalcase, the differences will not support a distinction in the standard of proof. First, and of paramount importance, a factual errorhere, as in a criminal case, exposes the accused to a complete loss of his personal liberty through a state-imposed
















confinement away from his home, family, and friends. And, second, a delinquency determination, to some extent at least,stigmatizes a youth in that it is by definition bottomed on a finding that the accused committed a crime. Although there are nodoubt costs to society (and possibly even to the youth himself) in letting a guilty youth go free, I think here, as in a criminalcase, it is far worse to declare an innocent youth a delinquent. I therefore agree that a juvenile court judge should be no lessconvinced of the factual conclusion that the accused committed the criminal act with which he is charged than would berequired in a criminal trial.Id. at 373-74 (Harlan, J., concurring).

[FN73]. Id. at 363-64. The Winship court cites three main justifications for the reasonable doubt standard. Each justificationis anchored in the perception that culpability is a limiting factor in distributing punishment through the criminal juvenilejustice system. The court notes that in the good society, freedom from physical restraint and the moral condemnation of thecommunity requires not condemning a man for commission of a crime where there is reasonable doubt about his guilt. Id.Second, the court asserts that the moral force of the criminal law would be diluted by a standard of proof that leaves people indoubt as to whether an innocent man may be condemned. Id. Third, the court acknowledges that the moral force of thecriminal law is linked to the confidence that every person should have that his government cannot adjudge him guilty withoutconvincing a proper fact finder of his guilt to an utmost certainty. Id.The Winship opinion is the best expression of Supreme Court case law regarding its stance toward substantive juvenile law.The standard of proof required in Winship presupposes the criminalization of the substantive basis of juvenile courtjurisdiction.At the time Winship was announced, its influence was perceived to extend well beyond its basis in a reconceptualizedjuvenile law. Some commentators argued that it might very well precipitate a constitutionalization of substantive criminallaw by requiring that every fact in a criminal prosecution be proved beyond a reasonable doubt. This would have the effect ofdenying to the states the ability to avoid the reasonable doubt standard by transforming elements of a crime into defenses. SeeW. LAFAVE & A. SCOTT, supra note 8, at 314. The substantive thrust of Winship, however, has been deferred, if notdeflected. See infra note 149.

[FN74]. 403 U.S. 528 (1971).

[FN75]. Id. at 545.

[FN76]. Id. at 533.

[FN77]. Compare Duncan v. Louisiana, 391 U.S. 145, reh'g denied, 392 U.S. 947 (1968) (right to jury trial), with Williams v.Florida, 399 U.S. 78 (1970) (upholding use of a six man jury in a non-capital felony case) and Apodaca v. Oregon, 406 U.S.404 (1972) (ten to two verdict upheld as not violating fourteenth amendment).

[FN78]. Compare Gault, 387 U.S. at 17, with McKeiver, 403 U.S. at 550.

[FN79]. State court opinions following McKeiver's lead in denying the right to a jury trial in juvenile court also followMcKeiver in recognizing that a radical shift in the juvenile court has taken place toward basic principles of criminal law. See,e.g., State v. Lawley, 91 Wash. 2d 654, 659, 591 P.2d 772, 774 (1979).

[FN80]. Breed v. Jones, 421 U.S. 519, 531 (1975) (quoting United States v. Jorn, 400 U.S. 470, 479 (1971)).

[FN81]. Accountability, due process, limited delinquency jurisdiction, and an emerging concern with culpability andaccountability in waiver and sanctioning mark the most recent reconceptualizations of juvenile law, see infra notes 82-86,

















and are largely absent from prior formulations. Moreover, as a reform agenda, this particular conceptual constellationgenerally enjoys the support of a broad range of professional groups and academic commentators. See Kaufman, Protectingthe Rights of Minors: On Juvenile Autonomy and the Limits of Law, 52 N.Y.U. L. REV. 1015 (1977); Ketcham, WhyJurisdiction Over Status Offenders Should be Eliminated From Juvenile Courts, 57 B.U.L. REV. 645 (1977); McCarthy,supra note 3; Zimring, supra note 13; NATIONAL ADVISORY COMMISSION ON CRIMINAL JUSTICE STANDARDSAND GOALS (1973); STANDARDS, supra note 12; TASK FORCE TO DEVELOP STANDARDS AND GOALS ONJUVENILE JUSTICE AND DELINQUENCY PREVENTION, STANDARDS (1976). For a skeptical view of the newjuvenile law, see dissenting statement of Commissioner Justine Wise Polier to STANDARDS, supra note 12, at 50-51; for ahistorically informed and quite skeptical view of the possibilities of true juvenile justice reform, see Fox, supra note 4.

[FN82]. See, e.g., MINN. STAT. ANN. § 260.011 (West 1982), which provides that the express purpose of delinquency lawis "to promote the public safety and reduce juvenile delinquency by maintaining the integrity of the substantive lawprohibiting certain behavior and by developing individual responsibility for lawful behavior."' See also CAL. WELF. &INST. CODE § 602 (West 1972 & Supp. 1983); CONN. GEN. STAT. ANN. § 46b-120 (West Supp. 1983); DEL. CODEANN. tit. 10, § 902 (1974); FLA. STAT. ANN. § 39.001 (West 1974 & Supp. 1983); IND. CODE ANN. § 31-6-1-1 (Burns1980); ME. REV. STAT. ANN. tit. 15, § 3002 (1964 & Supp. 1982-1983); MD. CTS. & JUD. PROC. CODE ANN. § 3- 802(1980); MICH. COMP. LAWS ANN. § 712A.1 (1968) (MICH. STAT. ANN. § 27.3178(598.1) (Callaghan 1980)); MINN.STAT. ANN. § 260.011 (West 1982); MONT. CODE ANN. § 41-5-102 (1983); NEB. REV. STAT. § 43-246 (Supp. 1982);N.J. STAT. ANN. § 2A:4A-21 (West Supp. 1983-1984); N.C. GEN. STAT. § 7A-516 (1981); N.D. CENT. CODE § 27-20-1(1974); OHIO REV. CODE ANN. § 2151.01 (Page 1978); OR. REV. STAT. § 419.474(2) (1981); VT. STAT. ANN. tit. 33,§ 631 (1981); WASH. REV. CODE ANN. § 13.40.010 (Supp. 1983-1984); W. VA. CODE § 49-1-1(a) (1980 & Supp. 1983).

[FN83]. See, e.g., CAL. WELF. & INST. CODE §§ 630, 633-34 (West Supp. 1983). California law affords juveniles accusedof committing a crime the following rights: (1) the right to counsel, §§ 633-34; (2) the right to notice of the charges and timeto prepare for trial, §§ 630(a), 633; and (3) the right to confrontation and cross-examination of witnesses and against selfincrimination, § 630(b). California's concern with due process is not atypical. See infra notes 116-26 and accompanying textfor a discussion of procedural protections in Washington; see also infra note 203 (Florida).

[FN84]. See supra note 1 for jurisdictions basing delinquency on commission of an act that would be a crime if committed byan adult, inter alia.

[FN85]. See, e.g., OKLA. STAT. ANN. tit. 10, §§ 1104.2C, 1112(b) (West Supp. 1982-1983) which provides for waiverunder specific circumstances to be determined by the age, crime (aggressive, violent, premeditated), maturity, and previoushistory of the juvenile offender. Similar emphasis on culpability and accountability may be found in ALA. CODE § 12-15-34(1975); CAL. WELF. & INST. CODE § 707(a) (West 1972 & Supp. 1983); COLO. REV. STAT. § 19-1- 104(4) (1978 &Supp. 1982); CONN. GEN. STAT. ANN. § 46b-126(a) (West Supp. 1983); DEL. CODE ANN. tit. 10, § 938 (Supp. 1982);D.C. CODE ANN. § 16- 2307 (1982); FLA. STAT. ANN. § 39.09(2) (West 1974 & Supp. 1983); HAWAII REV. STAT. §571-22(b), (c) (1978 & Supp. 1982); IND. CODE ANN § 31-6-2-4 (Burns 1980 & Supp. 1983); IOWA CODE ANN. §232.45.6, . 9 (West Supp. 1983-1984); KAN. STAT. ANN. § 38-808 (Supp. 1982); MASS. ANN. LAWS ch. 119, § 61(Michie/Law Co-op. 1975 & Supp. 1983); MINN. STAT. ANN. § 260.125 (West 1982); MONT. CODE ANN. § 41-5-206(1983); NEB. REV. STAT. § 43-276 (Supp. 1982); N.H. REV. STAT. ANN. § 169-B:24 (Supp. 1983); N.J. STAT. ANN. §2A:4A-26-a (West Supp. 1983-1984); N.M. STAT. ANN. § 32-1-29 (1981); Act of June 27, 1983, 1983 Ohio Legis. Serv.5-85, 5-86 (Baldwin) (to be codified at OHIO REV. CODE ANN. § 2151.26); OR. REV. STAT. 419.533 (1981); PA. STAT.ANN. tit. 42, § 6355 (Purdon 1982); TENN. CODE ANN. § 37-234 (1977 & Supp. 1983); TEX. FAM. CODE ANN. § 54.02(Vernon 1975 & Supp. 1982-1983); VT. STAT. ANN. tit. 33, § 635a (1981); W.VA. CODE § 49-5- 10(d) (1980); WIS.






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STAT. ANN. § 48.18 (West 1979 & Supp. 1983-1984).

[FN86]. See, e.g., N.J. STAT. ANN. §§ 2A:4A-43.a, -44.a (West Supp. 1983-1984) which provides for punishmentcommensurate with the age, crime (nature, circumstances and degree of harm caused), need for dete rence, and criminalhistory of the juvenile offender. For jurisdictions evincing similar concerns, see ALASKA STAT. § 47.10.080 (1979); CAL.WELF. & INST. CODE §§ 729-731.5 (West Supp. 1983); COLO. REV. STAT. § 19-3-113 (1978 & Supp. 1982); CONN.GEN. STAT. ANN. §§ 46b-140 (West Supp. 1983-1984); DEL. CODE ANN. tit. 10, § 937 (1974 & Supp. 1982); FLA.STAT. ANN. § 39.11 (West 1974 & Supp. 1983); GA. CODE ANN. § 24A-2301 (Supp. 1982); IDAHO CODE § 16-1814(1979); IND. CODE ANN. § 31-6-4-15.3 (Burns Supp. 1983); IOWA CODE ANN. § 232.52 (West Supp. 1983-1984);KAN. STAT. ANN. § 38-1663 (Supp. 1982); KY. REV. STAT. § 208A.120 (1982); LA. STAT. ANN. C.J.P. art. 83 (West1983); ME. REV. STAT. ANN. tit. 15, § 3314 (Supp. 1982-1983); MASS. ANN. LAWS ch. 119, §§ 58, 58B (Michie/LawCo-op. Supp. 1983); MICH. COMP. LAWS ANN. § 712A.18 (Supp. 1983) (MICH. STAT. ANN. §§ 22.3178 (598.18)(Callaghan 1980)); MINN. STAT. ANN. § 260.185 (West 1982); MISS. CODE ANN. § 43-21- 605 (1981); MONT. CODEANN. §§ 41-5-403, 41-5-523 (1983); NEB. REV.STAT. § 43-2-86 (Supp. 1982); N.M. STAT. ANN. § 32-1-34 (1981); N.Y.FAM. CT. ACT § 352.2 (McKinney 1983); N.C. GEN. STAT. §§ 7A-646 to -649 (1981); Act of June 27, 1983, 1983 OhioLegis. Serv. 5-85, 5-86 (Baldwin) (to be codified at OHIO REV. CODE ANN. § 2151.355); OKLA. STAT. ANN. tit. 10, §1116 (West Supp. 1982-1983); OR. REV. STAT. § 419.507 (1981); PA. STAT. ANN. tit. 42, § 6352 (Purdon 1982); S.D.CODIFIED LAWS ANN. §§ 26-8-39, 26-8-40.1 (1976 & Supp. 1983); TEX. FAM. CODE ANN. tit. 3, § 54.04 (VernonSupp. 1982); VA. CODE §§ 16.1-279(E), 16.1-284 (1982 & Supp. 1983); WASH. REV. CODE ANN. § 13.40.150, . 160,.180 (Supp. 1983- 1984); W. VA. CODE § 49-5-13 (1980 & Supp. 1983); WIS. STAT. ANN. § 48.34 (West 1979 & Supp.1983-1984).

[FN87]. See Becker, Washington State's New Juvenile Code: An Introduction, 14 GONZ. L. REV. 289, 294-95 (1979).

[FN88]. Id. See also Kaufman, supra note 81, at 1016-17.

[FN89]. See M. WINN, CHILDREN WITHOUT CHILDHOOD (1983) (arguing that contemporary attitudes toward andexperiences of childhood reflect a new imposition of adult values, attitudes, and interests on young children). See also N.POSTMAN, THE DISAPPEARANCE OF CHILDHOOD (1982).

[FN90]. See Shepherd, Challenging the Rehabilitative Justification for Indeterminate Sentencing in the Juvenile JusticeSystem: The Right to Punishment, 21 ST. LOUIS U.L.J. 12, 20-35 (1977). See also D. LIPTON, R. MARTINSON & J.WILKS, THE EFFECTIVENESS OF CORRECTIONAL TREATMENT: A SURVEY OF TREATMENT EVALUATIONSTUDIES (1973). This highly influential work is summarized in Martinson, What Works?--Questions and Answers AboutPrison Reform, 35 THE PUB. INTEREST 22 (Spring, 1974). The Martinson study and its aftermath are reviewed in Wilson,"What Works?" Revisited: New Findings on Criminal Rehabilitation, 61 THE PUB. INTEREST 3 (Spring, 1980) (arguing,full circle, that punishment may be the only effective device in rehabilitating offenders).

[FN91]. See M. BRECKINRIDGE & E. ABBOTT, THE DELINQUENT CHILD AND THE HOME (1912). Family-basedtheories often focused on the detrimental effects of life in poor and/or immigrant homes. Flawed by poverty, weakenedparental authority, and forced labor by the mother and child, such homes were targeted as producers of delinquent behaviorand proved a magnet for child removal efforts.

[FN92]. By the 1930's, in major theoretical works on delinquency, the slum gang had replaced the family as the key causativefactor in creating the delinquent. To Clifford Shaw and Henry McKay the gang was a "tradition"' in the slum community thatembodied, preserved, and inculcated delinquent culture. The predisposition toward delinquency existing in poorer families




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was viewed as greatly enhanced by joining a slum gang. It followed that delinquent behavior could only be extinguished byremoving the child from his environment or by transforming the gang structure. C. SHAW & H. MCKAY, REPORT ONTHE CAUSES OF CRIME: SOCIAL FACTORS IN JUVENILE DELINQUENCY, NATIONAL COMMISSION ON LAWOBSERVANCE AND ENFORCEMENT (1931). See also E. SUTHERLAND & D. CRESSEY, PRINCIPLES OFCRIMINOLOGY (1970) (survey of theories of social origins of delinquency).

[FN93]. To many sociologists writing in the 1960's, delinquency was perceived as a consequence of the vast discrepancies ofwealth that marked the American class structure and the lack of opportunities for lower class youth to become economicallysuccessful through conventional means. Forced to go outside the law to attain wealth, delinquents were, in their view, victimsof their class origins. See R. CLOWARD & L. OHLIN, DELINQUENCY AND OPPORTUNITY (1960); see also A.COHEN, DELINQUENT BOYS: THE CULTURE OF THE GANG (1955). Like earlier theories, delinquency theory of the1960's justified intervention in the lives of deviant youth through the juvenile court. In addition, these theories providedrationale for the war on poverty. See F. PIVEN & R. CLOWARD, REGULATING THE POOR 183-330 (1971).

[FN94]. See E. SCHUR, RADICAL NON-INTERVENTION 153-54 (1973); see generally Lemert, The JuvenileCourt--Quest and Realities, in PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND ADMIN. OF JUSTICE TASKFORCE REPORT: JUVENILE DELINQUENCY AND YOUTH CRIME (1967); D. MATZA, DELINQUENCY ANDDRIFT (1964). Labeling theory has its roots in the effects of the deviant label on behavior. For a general theory of deviance,see H. BECKER, OUTSIDERS (1963).

[FN95]. See E. SCHUR, supra note 94, at 153-54.

[FN96]. Erickson, Notes on the Sociology of Deviance, 9 SOCIAL PROBLEMS 307 (1962). Many labeling theorists regardtheir work as descriptive only and deny the utility of a causation analysis, in general or as applied to the delinquent label andthe deviant act. Yet this self-assessment has not precluded them from advocating a non-interventionist strategy based on theirtheory. See E. SCHUR, supra note 94, at 155. Labeling theorists cannot deny causation analysis and expect to be takenseriously. The very power of their analysis is drawn from the crucial insight that all children are at one time or another introuble and yet only some of those go on to become career criminals. Either the labeling process spurs deviant behavior or thesum of their theory is to restate the obvious--that it is the juvenile court that attaches the label delinquent to those youngpeople experiencing deviant episodes.

[FN97]. See E. SCHUR, supra note 94, at 155.

[FN98]. Id. at 143-46.

[FN99]. Treatment implies a predisposition to delinquent behavior that can be treated. By repudiating the assumption that thedelinquent is fundamentally different from his innocent peers, the treatment rationale is fatally undercut.

[FN100]. The seminal work is H.L.A. HART, PUNISHMENT AND RESPONSIBILITY (1968). See also H. PACKER, THELIMITS OF THE CRIMINAL SANCTION (1968).

[FN101]. See F. ALLEN, supra note 4, at 35-41.

[FN102]. See Lewis, The Humanitarian Theory of Punishment 6 RES JUDICATAE 224 (1953). The ethical argumentagainst the rehabilitative ideal is stated in definitive terms in I. KANT, THE PHILOSOPHY OF LAW, Pt. II 195-98, mostsuccinctly in the imperative that a person must never be treated as a means to some other end. The person must be the end. Id.




If one accepts this principle, punishment cannot be used as a means of enforcing normative behavior. Rather, punishmentmust be linked to a blameworthy act. Punishment then transcends its trapping as revenge, and is revealed as integral to humanautonomy and individual dignity. See generally McCarthy, supra note 12, at 205- 06.

[FN103]. MODEL PENAL CODE § 2.02 (Proposed Official Draft 1962) (requirement of culpable state of mind); id. § 2.05(rejection of strict liability crimes).

[FN104]. Compare id. with STANDARDS, supra note 12, Juvenile Delinquency and Sanctions § 3.1 (making lack of mensrea an affirmative defense to all juvenile justice proceedings).

[FN105]. STANDARDS, supra note 12, Juvenile Delinquency and Sanctions § 1.1 (B). The Standards list as their secondpurpose (after forbidding conduct that risks substantial harm) "[t]o safeguard conduct that is without fault or culpability fromcondemnation as delinquent."DD'

[FN106]. Id. See also id. § 2.3 (limiting delinquency liability to conduct that would be designated as crime if committed byan adult) and § 3.1 (rejection of strict liability offenses in juvenile court).

[FN107]. Id. § 6.2.

[FN108]. 1977 Wash. Laws ch. 291 § 55-83 (codified as amended at WASH. REV. CODE ANN. § 13.40 (Supp. 1983)). Thebest treatment of the Act is found in Becker, supra note 87.

[FN109]. Mary K. Becker, a primary legislative sponsor of the Act, notes that "'[i]n terms of the philosophical polarities thathave characterized the juvenile court debate for more than a century, the new law moves away from the parens patriaedoctrine of benevolent coercion, and closer to a more classical emphasis on justice."' Becker, supra note 87, at 307-08. Thisview is shared by most commentators. See Patrick & Jensen, Changes in Rights and Procedures in Juvenile OffenseProceedings, 14 GONZ. L. REV. 313 (1978); Reich, supra note 3. The Washington court's inconsistent and seeminglyself-contradictory understanding of the Act's spirit is instructive, given Washington's position in the forefront of juvenile lawreform. Emphasis in the Act's purpose section on punishment and accountability has been put to use by the state supremecourt in In re Trambitas, 96 Wash. 2d 329, 331-32, 635 P.2d 122-23 (1981), in justifying its holding that pre-trial detentionconstitutes punishment and thus must be credited against the upper end of the standard incarceration range imposed. TheTrambitas majority overcame a spirited dissent, joined by three members of the court, rejecting compulsory pre-trialdetention credit in favor of the rehabilitative goals implicit in discretionary sentencing. 96 Wash. 2d at 336-38, 635 P.2d at124-26 (Doliver, J., dissenting). Trambitas is consistent with an earlier case interpreting the Act, State v. Bird, 95 Wash. 2d83, 622 P.2d 1262 (1980), in which the court found sufficient continuities between the purposes of the criminal code and theJuvenile Act to allow juvenile court judges to resort to a criminal code provision granting to judges discretionary authority tosuspend sentences. See also State v. Norton, 25 Wash. App. 377, 380, 606 P.2d 714, 716 (1980) (application of criminalcompromise of misdemeanor statute held consistent with purposes of the Juvenile Act).Yet in State v. Lawley, 91 Wash. 2d 654, 591 P.2d 772 (1979), and State v. Rice, 98 Wash. 2d 384, 655 P.2d 1145 (1982),the supreme court appears to have completely disregarded the assumptions grounding Trambitas and Bird. In Lawley thedefendant argued inter alia that the shift in purpose in the Juvenile Act toward criminal law principles of punishment andaccountability triggered his sixth amendment right to a jury trial. The court responded by finding that the legislature mighthave intended to use principles of accountability and punishment as a means of effectuating rehabilitative goals and not as ameans of punishing juveniles or holding them accountable for their acts. In Rice, the rehabilitative ideal served as theintellectual ballast for upholding imposition of a juvenile sentence exceeding the maximum period permitted for an adultconvicted of the same offense. In an opinion reminiscent of early juvenile justice, the Rice court sustained imposition of the















sentence in the face of a seemingly contrary statutory provision providing that any period of confinement and supervisionmay not exceed an adult sentence for the same offense, see WASH. REV. CODE ANN. 13.40.030(1) (Supp. 1983), on thetheory that the restriction related only to standard range sentences, and that Mr. Rice's rehabilitation would be cut short if hewas released too early from the auspices of the juvenile court.Recent amendments to the Juvenile Justice Act serve to reaffirm its original meaning by precluding suspended sentences asinconsistent with the Act's new accountability principles, by putting greater limits on judicial discretion in sentencing (clearand convincing evidence required to sentence outside the standard range), and by making explicit that the adult sentence isalso the maximum for juvenile manifest injustice-based dispositions. See SENATE COMMITTEE AMENDMENT TOENGROSSED SUBSTITUTE HOUSE BILL No. 431 (1983).

[FN110]. WASH. REV. CODE ANN. § 13.40.010(2)(c) (Supp. 1983).

[FN111]. Id. § 13.40.010(2)(d). The Act also provides for the "treatment, custody, and supervision"' of offenders. Id. §13.40.010(2)(f) and "[p]rovides a clear policy to determine what types of offenders shall receive punishment, treatment, orboth . . . ."' Id. § 13.40.010(2)(j).

[FN112]. Id. § 13.40.020(15).

[FN113]. See Becker, supra note 87, at 310.

[FN114]. See WASH. REV. CODE ANN. §§ 26.44, 13.34.030-.170 (Supp. 1983).

[FN115]. Id. § 13.32A.050. This provision gives the juvenile court non-offender jurisdiction over children of families inconflict. Children found to be in conflict with their parents are placed in an Alternative Residential Placement (ARP). TheAct does authorize the police to take runaways and children whom the police reasonably believe are in circumstances whichare a serious danger to their physical safety into custody for a limited period of time. Truancy may be one component of anARP petition. It is not a basis for juvenile court offender jurisdiction. See Washington v. Turner, 98 Wash. 2d 731, 658 P.2d658 (1983).

[FN116]. WASH. REV. CODE ANN. § 13.40.010(2)(e) (Supp. 1983).

[FN117]. Id. § 13.40.140(7).

[FN118]. Id. § 13.40.140(2).

[FN119]. Id. § 13.40.130(3).

[FN120]. Id. § 13.40.140(8).

[FN121]. Id. § 13.40.040(1)(a) & (b).

[FN122]. Id. § 13.40.040(4).

[FN123]. Id. § 13.40.070(2).

[FN124]. Id. § 13.40.130(1) & (2).

[FN125]. Id. § 13.40.140(7).











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[FN126]. Id. § 13.40.230.

[FN127]. Id. § 13.40.140(6).

[FN128]. Id. § 13.40.030(1)(a).

[FN129]. Id.

[FN130]. Id. § 13.40.160.

[FN131]. Id. § 13.40.160(1).

[FN132]. Id. § 13.40.140(10). See also id. § 13.40.100(2) (requiring notice by summons be directed to parents, guardian, orcustodians if the juvenile is under twelve).

[FN133]. See 2 Wash. Op. Att'y Gen. 12 (1980).

[FN134]. WASH. REV. CODE ANN. § 9A.04.050 (1977).

[FN135]. This issue will be presented to the Washington State Supreme Court in State v. Dawson, No. 50198-0, to be arguedin March of 1984. At least one court in Washington has nimbly sidestepped solving the infancy issue while raising it forconsideration. See State v. Early, No. 11538-3-1 (Ct. App. Div. I).

[FN136]. WASH. REV. CODE ANN. § 9A.04.090 (1977).

[FN137]. 2 Wash. Op. Att'y Gen. 12 (1980).

[FN138]. WASH. REV. CODE ANN. § 13.04.450 (1981). "'The provisions of chapters 13.04 and 13.40 RCW, as now orhereafter amended, shall be the exclusive authority for the adjudication and disposition of juvenile offenders except whereotherwise expressly provided."' One could argue that the mandate of § 13.04.450 combined with § 13.04.020 precluding ajudgment of delinquency from being considered a crime establishes an impenetrable barrier between the provisions of thejuvenile act and the criminal code. In fact, Washington courts have not been reluctant to import aspects of the criminal codeinto the juvenile act where congruence in purpose exists. See State v. Bird, 95 Wash. 2d 83, 622 P.2d 1262 (1980) (statutoryauthority to suspend sentence held applicable to juvenile proceedings); State v. Norton, 25 Wash. App. 377, 380, 606 P.2d714, 716 (1980) (function of compromise of misdemeanor statute found consistent with and thus applicable to the juvenileAct). Sharp distinctions between "crime"' and juvenile "offense"' whether in the light of a realistic assessment of theconsequences of the juvenile proceeding. See Breed v. Jones, 421 U.S. 519 (1975). See also Matter of Ericson, 24 Wash.App. 808, 604 P.2d 513, 514 (1979) (juvenile dispositional order constitutes "punishment for crimes"' sufficient to fall withinconstitutional provision excepting punishment for a crime from pro ibition against slavery or involuntary servitude).

[FN139]. The Attorney General makes three basic claims in his opinion interpreting the Washington statutory scheme topreclude applicability of the infancy defense in juvenile proceedings. 2 WASH. OP. ATT'Y GEN. 12 (1980). He first arguesthat legislative intent that the infancy defense not apply in juvenile offense adjudications may be implied from the Act'sinclusion of age criteria in its waiver, summons, and disposition provisions and by its silence on the infancy defense. Second,he relies on the long-held "understanding"' that the infancy defense was not applicable in juvenile proceedings. Finally, heargues that the "spirit"' of the legislation requires rejection of the infancy defense.The opinion is fundamentally misguided. Age criteria used in waiver, summons, and disposition go respectively to concerns





















with capacity to understand process and with a sliding scale conception of culpability. Legislative concern over theappropriate recipient of notice or summons clearly does not translate into a mandate for condemning the non-culpable.Indeed, in the strained logic of legislative intent, the waiver and summons provisions may reflect a legislative awareness ofcriminal code capacity categories. Similarly, a recognition that younger offenders in general may be less capable of culpablebehavior and thus deserving of less blame for their acts does not constitute a basis for removing the very question of capacityto be culpable from judicial concern. Reliance on the maxim inclusio unius est exclusion alterius takes us no further towardresolution of this issue than the use of countervailing maxims that might be applied here, e.g., a literal interpretation must begiven to criminal statutes, State v. Gibson, 16 Wash. App. 119, 127, 553 P.2d 131, 137 (1976); the rule of leniency isapplicable to problems of statutory construction of criminal statutes. State v. Workman, 90 Wash. 2d 443, 454, 584 P.2d 382,388 (1978). See also In re Gladys R., 1 Cal. 3d 855, 862-64, 464 P.2d 127, 133-34, 83 Cal. Rptr. 671, 677-78 (1970) (rule ofconstruction requiring statutory provisions to be read together unless clear repugnancy relied on to impose criminal statutoryinfancy defense on juvenile proceedings).The Attorney General's second and third claims fail for the very reason that the Act of 1977 invalidated past understandingsof juvenile process by radically revising the spirit of the substantive juvenile law. Compare supra note 14 with supra notes108-32 and accompanying text. Refutation of the Attorney General's opinion, however, does not necessarily end our inquiry.Ultimately we are left with the fundamental question of whether the policies underlying the criminal code's infancy defenseare congruent with and effectuate the purposes of the Juvenile Act. This question can be answered by viewing the purposes ofthe new juvenile justice in light of the general policies of the criminal law, and the functions of the infancy defense.

[FN140]. See, e.g., jurisdictions discussed infra notes 193-229 and accompanying text.

[FN141]. There are countless descriptions of the criminal justice system. A general consensus might be said to exist along thefollowing lines: (a) the purpose of the criminal law is to deter harmful conduct; (b) the deterrence of harmful conduct by themeans of the criminal law is limited to culpable acts deserving a retributive response on the part of the community; and (c)the form punishment takes should be shaped by principles of deterrence, incapacitation, and rehabilitation. See H.L.A.HART, supra note 100; H. PACKER, supra note 100; N. MORRIS, PUNISHMENT AND REHABILITATION, U.S. DEPT.OF JUSTICE, EQUAL JUSTICE UNDER THE LAW (1976). This view has largely been adopted in the MODEL PENALCODE § 4.10 comment (Tent. Draft No. 7, 1953). For discussions and critique of this position, see White, supra note 9, at12-15.

[FN142]. See Kadish, supra note 17, at 273. For a general description of qualifications to criminality, see W. LAFAVE & A.SCOTT, supra note 8, at 57- 413.

[FN143]. The analysis of the criminal justice system as a screening process tilted in favor of the individual citizen is drawnfrom Mitchell, The Ethics of the Criminal Defense Attorney--New Answers to Old Questions, 32 STAN. L. REV. 293(1980). Professor Mitchell identifies a series of procedural, substantive, ethical, and institutional screens that function toassure that intrusion by the state into an individual's life will be halted at the soonest appropriate juncture. These screensinclude substantive limits on the reach of the criminal law, limits on the ability of the police to stop, search and arrest, limitson the District Attorney and grand jury in determining if the defendant should stand trial, and limits on the trial court in termsof the standard of proof and admissibility of evidence at trial, inter alia.

[FN144]. The social control and blaming functions of the criminal justice system are largely co-extensive. That is, punishingwrongful behavior necessarily implies control over certain kinds of deviant behavior that society regards as appropriate forcoercive state intervention. Control over non-blameworthy deviant behavior providing appropriate bases for coercive stateintervention is largely relegated to our civil commitment system. For a recent review of the purposes of civil commitment,









see La Fond, An Examination of the Purposes of Involuntary Civil Commitment, 30 BUFFALO L. REV. 499 (1981). Courtshave recognized that the risk of loss of liberty in a civil commitment requires application of procedural due processguarantees. A general distinction is made between those rights afforded where loss of liberty stems from a civil rather thancriminal proceeding. See, e.g., Addington v. Texas, 441 U.S. 418, 433 (1979) (standard of proof required for civilcommitment held to be "clear and convincing"').

[FN145]. Blame allocation is labeled an "imperfect"' limit because of the existence of some offenses in the criminal law, suchas strict liability offenses, which arguably do not require a culpable state of mind. But see infra note 160.

[FN146]. See Mitchell, supra note 143, at 300-02.

[FN147]. Courts have reviewed strict liability statutes in light of restrictive common law and constitutional principles. Strictliability offenses have been justified on the basis that penalties are minimal, that social controls are required even where thedefendant may by definition be incapable of ascertaining the facts constituting the mental element of the crime, thatprosecutions are numerous, and that the crime at issue is regulatory rather than common law in origin. See generally W.LAFAVE & A. SCOTT, supra note 8, at 221-23. Thus criminal statutes without fault language have had a fault requirementread into them where the severity of the punishment was great, see People v. Clark, 242 N.Y. 313, 151 N.E. 631 (1926), (butsee State v. Dobry, 217 Iowa 858, 250 N.W. 702 (1933)); where the defendant has the opportunity to ascertain the facts thatconstitute the mental element of the crime, see Nigro v. United States, 4 F.2d 781 (8th Cir., 1925); where the number ofprosecutions was few, see People v. Vogel, 46 Cal. 2d 798, 299 P.2d 850 (1956); and where the offense was a crime atcommon law rather than a regulatory offense. Compare Morissette v. United States, 342 U.S. 246 (1952), with United Statesv. Dotterweich, 320 U.S. 277 (1943). The California Supreme Court has gone so far as to resist application of strict liabilityin statutory rape prosecutions, People v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673 (1964) (good faith reasonable belief thatprosecutrix was eighteen as a defense to criminal prosecution), although most states prefer to adhere to the traditional view ofabsolute liability with respect to the age of a minor. See, e.g., State v. Superior Court, 104 Ariz. 440, 454 P.2d 982 (1969).Some state courts have also invalidated strict liability statutes on the theory that due process precludes a punishment for acrime unless the accused knowingly commits a crime or intends to commit a crime. State v. Lisbon Sales Book Co., 21 OhioOp. 2d 455, 182 N.E.2d 641 (Comm. Pl. 1961); see also State v. Prince, 52 N.M. 15, 189 P.2d 993 (1948). This principle,broadly construed, would invalidate all strict liability crimes. Most courts have refused to take this tack. See W. LAFAVE &A. SCOTT, supra note 8, at 221-22.

[FN148]. Commentators have been quite critical of strict liability offenses, see Packer, Mens Rea and the Supreme Court,1962 SUP. CT. REV. 107, 109; Hart, supra note 9, at 422-25; or view their usefulness as limited, see Wechsler, TheChallenge of a Model Penal Code, 65 HARV. L. REV. 1097, 1109 (1952) (strict liability offenses appropriate only wherepenalty is light, prosecutorial burden is heavy, and where knowledge normally obtains).

[FN149]. It should be noted that no argument is made in this article that culpability is constitutionally required for criminalconviction. Supreme Court explorations of the culpability requirement have been tentative and inconclusive. At one time itwas thought that the Supreme Court's decision in Robinson v. California, 370 U.S. 660 (1962), holding unconstitutional oneighth amendment grounds a statute making it a crime to be addicted to the use of narcotics, might pave the way for aconstitutionalization of the culpability requirement in the criminal law. See Kadish, supra note 17, at 283. Speculation thatRobinson might be read as imposing a broad rule that punishment is cruel and unusual in the absence of a culpable state ofmind apparently came to a halt with the Court's decision in Powell v. Texas, 392 U.S. 514 (1968). In upholding the accused'sconviction for being found in a public place in a state of intoxication, four members of the court interpreted Robinson asmerely meaning that "criminal penalties may be inflicted only if the accused has committed some act . . . which society has



















an interest in preventing,"' id. at 533, and warning that were it otherwise the Supreme Court would be "the ultimate arbiter ofthe standards of criminal responsibility, in diverse areas of the criminal law, throughout the country."' Id.Other Supreme Court cases have yielded no greater fruit than Robinson for proponents of a constitutional culpabilityrequirement. For example, in Lambert v. California, 355 U.S. 225 (1957), the court struck down on due process grounds anordinance making it a crime for a convicted felon to enter Los Angeles without registering with the police within five days.No circumstances existed which might have moved the defendant to inquire as to a legal duty to register, resulting in anabsence of an opportunity to either avoid the consequences of the law or to defend any prosecution brought under it. TheLambert holding has proven of little consequence, laboring under a strong dissent, which argued that the decision improperlylimits strict liability to those offenses involving acts, but not omissions. Id. at 230 (Frankfurter, J. dissenting). The decisionhas also been severely criticized for not extending its rationale to include acts. See Hart, supra note 9, at 434.Cases dealing with the burden of proof in criminal proceedings are similarly problematic, appearing to preclude argumentthat affirmative defenses, such as legal responsibility, are of constitutional statute unless included as an element of the crime.Compare In re Winship, 397 U.S. 358, 364 (1970) (proof beyond a reasonable doubt held required as to every fact necessaryto constitute the crime charged) and Mullaney v. Wilbur, 421 U.S. 684, 691-704 (1975) (due process requires state to proveevery element of the crime of murder; where the statute made "malice aforethought"' an element of the crime the state couldnot require defendant to prove heat of passion to negate malice and reduce murder to manslaughter), with Rivera v.Delaware, 491 U.S. 877 (1976) (appeal from post-Mullaney conviction of defendant dismissed for want of a federal questionwhere statute required defendant to prove affirmative defense of insanity by a preponderance of the evidence) and Pattersonv. New York, 432 U.S. 197 (1977) (statute entitling defendant to have crime reduced from murder to manslaughter if hecould prove by a preponderance of the evidence that he was acting under an extreme emotional disturbance sustained, andMullaney, supra, distinguished on the ground that the affirmative defense, as defined, did not negate one of the elements ofthe murder).

[FN150]. See H. PACKER, supra note 100, at 65. See also Lasswell & Donnelly, The Continuing Debate OverResponsibility: An Introduction to Isolating the Condemnation Sanction, 68 YALE L.J. 869, 871 (1959). Our social andeconomic structure is built largely on the premise of individualism. Summarized best in the writings of John Locke, thephilosophical underpinnings of our national order are rooted in fundamental premises of classical liberal thought. In thisscheme, man is regarded as possessing intrinsic dignity and autonomy pre-existing the organization of government. (Thismay be contrasted with the Hobbesian world view in which all power emanates from the state.) In entering the civil ordermen are assumed to have assented to reasonable limits on their behavior for the good of all, as embodied in the state. Allpower not given over to the state is reserved to the individual. This individualistic ethic--in which the state is regarded asintrinsically limited in its power to intervene coercively in its citizens' lives--fueled our Constitution and informs our legal,political, and cultural order. For a discussion of Lockean liberalism, see S. LAKOFF, EQUALITY IN POLITICALPHILOSOPHY 93-104 (1964); for a discussion of the limits of our political order, see L. HARTZ, THE LIBERALTRADITION IN AMERICA (1955).

[FN151]. The debate over responsibility in criminal law is one of the most lively in legal literature. Compare Goldstein &Katz, Abolish the Insanity Defense--Why Not?, 72 YALE L.J. 853 (1963), with Kadish, supra note 17 (arguing in favor ofretaining the insanity defense).Strict liability offenses--that is offenses for which criminal liability is imposed without regard to fault--are the mostfrequently noted exceptions to the culpability requirement. See Mueller, On Common Law Mens Rea, 42 MINN. L. REV.1043, 1101 (1958). For a collection of typical strict liability provisions, see MODEL PENAL CODE § 2.05 (Tent. Draft No.4, 1955). Strict liability offenses generally result in imposition of light penalties and are found most frequently in the areas ofliquor and narcotics laws, pure food laws, and traffic laws. See City of Toledo v. Kohlhofer, 96 Ohio App. 355, 361, 122











N.E.2d 20, 25 (1954). Conviction without culpability may also occur under a vicarious liability theory or where a mistake oflaw has been made. Some would suggest, however, that strict liability does not represent conviction without culpability inthat strict liability offenses may be said to presuppose a culpable failure to act. See Morissette v. United States, 342 U.S. 246,256 (1952).The question of what constitutes the minimal standard of culpability is raised most directly in the insanity defense. Modernformulations of the insanity defense derive from Daniel M'Naghten's Case, 10 Clark & Finnelly 200, 8 Eng. Rep. 718 (1843).The M'Naghten test limited the insanity defense to those instances in which the accused "was labouring under such a defectof reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, thathe did not know that he was doing what was wrong."' Id. at 210, 8 Eng. Rep. at 722. Of those jurisdictions adopting theM'Naghten test, fewer than half supplement it with the "'irresistible impulse"' test. See W. LAFAVE & A. SCOTT, supranote 8, at 283. Broadly stated, the irresistible impulse test precludes a guilty verdict if it is found that the defendant had amental disease which kept him from controlling his conduct. In Durham v. United States, 214 F.2d 862 (1954), the District ofColumbia Court of Appeals adopted yet a third formulation of the insanity defense, holding that an accused was notcriminally responsible if the unlawful act was the product of a mental disease or defect. Id. at 874- 75. This attempt tobroaden the grounds for exculpation met with much criticism and ultimately was rejected by the same court some eighteenyears later. See United States v. Brawner, 471 F.2d 969 (1972). The American Law Institute (ALI) has proposed an insanitytest that holds a person not responsible for criminal conduct if at the time of such conduct, as a result of mental disease ordefect, he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform hisconduct to the requirements of law. MODEL PENAL CODE § 4.01.(1) (Proposed Official Draft 1962).As used in the ALI formulation, "the terms 'mental disease or defect' do not include an abnormality manifested only byrepeated criminal or otherwise anti-social conduct."' Id. § 4.01(2). The ALI test, with minor modifications, has become thepredominant test of criminal responsibility in the United States. See Morris, Dealing Responsibly with the CriminallyIrresponsible, ARIZ. ST. L.J. 855, 856 (1982). Finally, two jurisdictions have substituted a technical mens rea defense basedon mental disorder for the insanity defense. See IDAHO CODE § 18-207 (1983); MONT. CODE ANN. § 46-14-101-103(1983). It is now generally acknowledged that a precise definition of insanity is impossible. See A. GOLDSTEIN, THEINSANITY DEFENSE 87 (1967).Debates over the minimal standard of culpability also mark other defenses to criminal liability. See, e.g., United States v.Calley, 46 C.M.R. 1131 (1973) (defense of obedience to orders); State v. Booth, 169 N.W.2d 869 (1969) (defense ofvoluntary intoxication); MODEL PENAL CODE, § 2.09 (Proposed Official Draft 1962) (defense of duress).See generally W. LAFAVE & A. SCOTT, supra note 8, at 192-93, 218-23.

[FN152]. "[G]uilt beyond a reasonable doubt represents . . . a standard that seeks to come as close to certainty as humanknowledge allows--one that refuses to take a deliberate risk of punishing any innocent man."' Tribe, An Ounce of Detention:Preventive Justice in the World of John Mitchell, 56 VA. L. REV. 371, 388 (1970).

[FN153]. Much of the discussion of the relation of legal responsibility to the mens rea requirement has taken place in thecontext of debate over the insanity defense. See Kadish, supra note 17, at 274-75 (distinguishing mens rea in its general sense(mental state required for a crime)). Other commentators view infancy but not insanity as a legal responsibility defense.Insanity is regarded, in that formulation, as a branch of the doctrine of the law of excuses. See generally G. FLETCHER,RETHINKING CRIMINAL LAW 836 (1978).

[FN154]. The commitment to punishing only the culpable also provides the theoretical basis for the doctrines of excuse andjustification. Excusing conditions such as duress and necessity exculpate the defendant where his conduct was all that aperson of ordinary firmness or courage would do in the situation. Justifications, such as self-defense or defense of others,exculpate because the conduct at issue was the lesser of two evils. Excuses and justifications may be used to negate the

















mental element required in certain crimes. For our purposes they serve as yet another reminder that not all harmful behaviorfalls within the scope of the criminal sanction.

[FN155]. The MODEL PENAL CODE at § 2.02(2) (Tent. Draft No. 7, 1953) divides crimes requiring mens rea into fourtypes: (1) crimes requiring intention (or purpose) to commit the forbidden act; (2) crimes requiring knowledge of the natureof the act; (3) crimes requiring recklessness in doing the act; (4) crimes requiring only negligence. Different elements ofoffense may require different mens rea. Id.

[FN156]. Kadish, supra note 17, at 274.

[FN157]. Id. at 275.

[FN158]. See G. FLETCHER, supra note 153, at 836.

[FN159]. See Breed v. Jones, 421 U.S. 519 (1975) (once evidence is taken in a juvenile proceeding, under the fifth andfourteenth amendments the case cannot then constitutionally be heard in criminal court).

[FN160]. As troublesome as the concept of free will may be, see T. DREISER, AN AMERICAN TRAGEDY (1946), it isintegral to our legal system. See Morissette v. United States, 342 U.S. 246, 250 n.4 (1952) (quoting R. Pound, Introduction toE. SAYRE, CASES ON CRIMINAL LAW xxxvi-xxxvii (1927) ( "historically, our substantive criminal law is based upon atheory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrongand choosing freely to do wrong"'); see also 4 W. BLACKSTONE, supra note 8, at 20-21. This conception of free willpresupposes that choice is meaningful, e.g., it is informed by a capacity to assess wrongfulness.Attempts to belittle free will in criminal jurisprudence have met with strong resistance. It has been asserted that people intheir own conduct tend to view themselves as free agents, not as objects of greater circumstances, and thus the law would beundercut if it ran counter to this pervasive belief. See H.L.A. HART, supra note 100, at 182. More important, ourcommitment to a contractualist basis of our democratic order and to values of human dignity and autonomy rests on the viewof man as a responsible agent. As Sanford Kadish points out, "[w]hether the concept of man as responsible agent is fact orfancy is a very different question from whether we ought to insist that the government in its coercive dealings withindividuals must act on that premise."' Kadish, supra note 17, at 287. Indeed more determinist views of man's nature mayvery well lead to a radically different form of politics. See generally S. LAKOFF, supra note 150.

[FN161]. Analysis in this section is limited to the capacity to make moral judgments and does not treat questions ofsubstantive moral judgment.

[FN162]. The concept of moral judgment historically has focused less on the process of judgment and more on the content of"correct"' answers to moral dilemmas. This may be traced, in large measure, to a normative moral consensus underlying ourJudeo-Christian heritage. See, e.g., Noonan, The Family and the Supreme Court, 23 CATH. U.L. REV. 255, 267-68 (1973).Both the breakdown in consensual values that marks the modern era and the emergence of a pluralist value structure have leftus with less agreement as to substantive moral judgments. Id.

[FN163]. At the risk of oversimplification, approaches to how children develop the capacity to make moral judgments breakdown into three major schools of thought. In psychoanalytic theory, moral judgment is a major function of the super-ego,which develops as a by-product of the child's first being denied sexual affection for the parent of the opposite sex, and theninternalizing the denial. As such, the super-ego may be the origin of harsh and punitive impulses that often contradict thedemands of instinctual energy, id impulses, for immediate gratification of desires. Control of all such impulses, according to






the demands of external reality (the child's interpersonal/social world) is a function of the ego, which is regarded as the seatof all cognitive conscious process. In the current view a child's development reflects the gradual strengthening of the ego inmastering and managing external and internal reality--largely unconscious needs (id) and prohibitions (super-ego)-- resultingin gradual growth in the capacity for mature judgment. See R. SCHAFER, ON INTERNALIZATION (1968). As childdevelopment continues, the emergence of a balance between ego, id, and super-ego leads to growth of mature judgment. It isnoteworthy that Freud saw much of the substance of moral judgment as stemming from unconscious processes rather than asa product of the rationalization in which it is often presented. This is most evident and perhaps most problematic whenpleasure in the pain of punishment--whether inflicted sadistically on others or masochistically upon oneself--is a motivatingfactor in moral judgments.Behaviorists explain learned behavior primarily in terms of the child's responses to external rewards and punishments.Behaviorism stresses the power of the child's environment in shaping behavior and minimizes the role of biologicalmaturation in forming the capacity to make judgments. See B.F. SKINNER, BEYOND FREEDOM AND DIGNITY (1971).It has been asserted that the major difficulty with the behaviorist approach to human development is that it provides aninadequate explanation of spontaneous changes in a child's behavior that cannot easily be attributed to either conditionedresponse to the environment or behavior modeled after another. P. MUSSEN, J. CONGER & J. KAGAN, CHILDDEVELOPMENT AND PERSONALITY 65 (4th ed. 1974). More recent extensions of the behavioral theory accounting fordevelopment of internal social controls have countered this criticism by focusing on how adoption of evaluative responses ofsocializing agents (such as parents) might become intrinsically reinforcing to a child. See J. ARONFREED, CONDUCTAND CONSCIENCE: THE SOCIALIZATION OF INTERNALIZED CONTROL OVER BEHAVIOR 43-122 (1968); seegenerally O. MOWRER, LEARNING THEORY AND THE SYMBOLIC PROCESSES (1960); R. SEARS, E. MACCOBY& H. LEVIN, PATTERNS OF CHILD REARING (1957). This "interactionist"' approach borrows from Jean Piaget'sconception of a child as a positive factor in his own development attempting to make cognitive and affective sense of his ownexperience. See P. MUSSEN, supra, at 38.

[FN164]. P. MUSSEN, supra note 163, at 444-50; see also J. ARONFREED, supra note 163, at 265.

[FN165]. See generally J. PIAGET, THE MORAL JUDGMENT OF THE CHILD (1932); see also J. FLAVELL,COGNITIVE DEVELOPMENT (1977) (survey of Piaget and others).

[FN166]. See J. PIAGET, supra note 165, at 121-38.

[FN167]. Id.

[FN168]. J. PIAGET, supra note 165, at 174-96.

[FN169]. Id. In Piaget's scheme, achieving this autonomous calculus is understood as a product of the child's turning fromreliance on parental authority to a more peer-oriented perspective in which democratic rather than paternal structures becomethe moral polestar.

[FN170]. [W]e may conclude that while children may acquire successive structures for the elaboration of social values, as aresult of their changing cognitive capabilities, their new acquisitions generally displace rather than transform the structureswhich were previously available. Whatever transformation does take place is not so extensive or irreversible as to make itespecially useful to think of conscience as being formed in stages or levels.J. ARONFREED, supra note 163, at 265. See also Bandura & McDonald, The Influence of Social Reinforcement and theBehavior of Models in Sharing Children's Moral Judgments, 76 JOURNAL OF ABNORMAL AND SOCIALPSYCHOLOGY 274 (1963).



Piaget's work has been extended and amplified in the work of a number of psychologists, most prominently, LawrenceKohlberg. See generally L. KOHLBERG, THE DEVELOPMENT OF CHILDREN'S ORIENTATION TOWARD AMORAL ORDER: SEQUENCE IN THE DEVELOPMENT OF MORAL THOUGHTS, VITA HUMANA II (1963).Kohlberg and his associates have divided a child's moral development into five types, grounded in three levels. At the lowestlevel (premoral) the child is guided by an orientation toward reward and punishment or a naive hedonism. At the second level(morality of conventional rule conformity) morality takes the form of approval of others or reliance on authority structured interms of contractual obligations or democratically accepted law. The third level is based on individual principles ofconscience. For a superb overview and analysis of Kohlberg's work, see MORAL DEVELOPMENT, MORALEDUCATION AND KOHLBERG, BASIC ISSUES OF PHILOSOPHY, RELIGION, AND EDUCATION (B. Munsey ed.1980). The normative content of these categories can be rejected without also rejecting their utility in describing generalpatterns of behavior. See Gjerdingen, The Coase Theorem and the Psychology of Common Law Thought, 56 SO. CAL. L.REV. 711, 730-31 n.91. Links between Kohlberg's second level of morality and the works of John Rawls are sensitivelytreated in an essay by Dwight Boyd entitled "The Rawls Connection."' MORAL DEVELOPMENT, MORAL EDUCATIONAND KOHLBERG, BASIC ISSUES OF PHILOSOPHY, RELIGION AND EDUCATION (B. Munsey ed. 1980).

[FN171]. See Boehm & Nass, Social Class Differences in Conscience Development, 33 CHILD DEVELOPMENT 565(1962).

[FN172]. See U. BRONFENBRENNER, THE ROLE OF AGE, SEX, CLASS AND CULTURE IN STUDIES OF MORALDEVELOPMENT, IN RELIGIOUS EDUCATION--RESEARCH SUPPLEMENT 57, 53-517 (1957); see also F.KLUCKHOHN & F. STRODTBECK, VARIATIONS IN VALUE ORIENTATIONS (1961). See generally Skolnick, TheLimits of Childhood: Conceptions of Child Development and Social Context, 39 LAW & CONTEMP. PROBS. 38 (Summer,1975).

[FN173]. See studies discussed in P. MUSSEN, supra note 163, at 444-50.

[FN174]. The classic work is H. HARTSHORNE & M. MAY, STUDIES IN THE NATURE OF CHARACTER (1928).Hartshorne and May found such little consistency in moral character, as exemplified in behavior across situations, that theyconcluded that such traits as deceptiveness, helpfulness, persistence, and self-control were in fact groups of specific habitsthat could not be regarded as demonstrated consistently across situations. Work done since Hartshorne and May has largelyreaffirmed their findings. For a review of the literature, see Bem & Allen, On Predicting Some of the People Some of theTime: The Search for Cross-Situational Consistencies in Behavior, PSYCHOLOGICAL REV. (1974).

[FN175]. See P. MUSSEN, supra note 163, at 449.

[FN176]. See id. at 605-11.

[FN177]. This conclusion also finds support outside the social psychology literature.The remarkable fact that the chronological age of 7 + 1 is referred to so frequently . . . suggest(s) a milestone markingdiscontinuous development. . . . Indeed, the longer view of history and sociology of childhood . . . indicates that empiricallymany cultures had already discovered the unique competence of 7-year-olds that permitted them to assume new roles notavailable when they were younger.Society seemed to know empirically when to begin its push on the child toward greater autonomy. During the Middle Ages,children were sent away from home to become pages at Court at age 7 . . . and later, at the time of the Guilds, children wereapprenticed at 7. In modern society children are considered to be ready for learning in school at age 7 + 1: grade schoolbegins at 6 in the U.S., at 7 in the USSR. There is an implicit recognition by almost all cultures of two great stages, or





transformations of development. These are the years of 5 to 7 and adolescence which respectively usher in and end the periodof compulsory education.Shapiro & Perry, Latency Revisited: The Age 7 Plus or Minus 1, 31 THE PSYCHOANALYTIC STUDY OF THE CHILD79, 80-81 (1976) (footnotes and citations omitted).

[FN178]. As to the lesser stigma of the juvenile offense, see McKeiver v. Pennsylvania, 403 U.S. 528, 540 (1971).Adjudication of delinquency does not create any collateral civil disability. See, e.g., W. VA. CODE § 49-7-3 (1980). Manystates have statutes that prevent adults convicted of criminal acts from exercising various rights permitted other citizens, suchas the right to vote, e.g., MINN. STAT. ANN. § 204C.10 (West Supp. 1983), the right to hold public office, e.g., GA. CODEANN. § 89-101(3) (Supp. 1982), and the right to be a juror, e.g., ARK. STAT. ANN. § 39-102(e) (Supp. 1983). As of 1974,only Alaska and Arkansas lacked provisions guaranteeing that those juveniles adjudicated delinquent are not criminals. M.LEVIN & R. SARRI, JUVENILE DELINQUENCY: A COMPARATIVE ANALYSIS OF LEGAL CODES IN THEUNITED STATES 58 & n.1 (1974).

[FN179]. Arguments in favor of a unitary criminal justice system are spurred by the conceptual continuities between the twosystems. See McKeiver v. Pennsylvania, 403 U.S. 528, 551 (1971) ("If the formalities of the criminal adjudicative process areto be superimposed upon the juvenile court system, there is little need for its separate existence."'). See also Fox, Abolishingthe Juvenile Court, 28 HARV. L. SCH. BULL. 22 (1977); McCarthy, Should Juvenile Delinquency be Abolished?, 23CRIME & DELINQ. 196 (1977); Wizner & Keller, supra note 13.

[FN180]. See McKeiver v. Pennsylvania, 403 U.S. at 658.

[FN181]. Id. at 662.

[FN182]. See Zimring, supra note 13.

[FN183]. It is this very claim that animated the now largely discredited parens patriae theory, see supra notes 35-60 andaccompanying text, and that provided the justification for protecting the non-culpable child from a criminal career throughintervention by the juvenile court.

[FN184]. See materials compiled on typical conditions encountered in juvenile correctional facilities and on offenderreactions to the juvenile process in R. MNOOKIN, supra note 13, at 763-70.

[FN185]. See, e.g., statutes cited supra note 82.

[FN186]. See generally Comment, Rehabilitation as the Justification of a Separate Juvenile Justice System, 64 CALIF. L.REV. 984 (1976).

[FN187]. For example, lesser culpability both supplies a rationale for, and is consistent with, the emerging laws affordingprotection to juveniles, such as those limiting juvenile sentences to periods no greater than sentences given to adults, withoutalso providing a justification for attenuating juvenile procedural and substantive protections.

[FN188]. See supra note 56.

[FN189]. See generally supra note 40.

[FN190]. For a modern expression of the extent of parental authority over children, see WASH. REV. CODE ANN. §





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26.09.250 (Supp. 1983).

[FN191]. Reservation of authority over children in the parent is of constitutional dimension and is anchored in the fourteenthamendment due process guarantee. See Pierce v. Society of Sisters, 268 U.S. 510 (1925); Prince v. Massachusetts, 321 U.S.158, 166 (1944) ("[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whoseprimary function and freedom include preparation for obligations the state can neither supply nor hinder."'). See alsoWisconsin v. Yoder, 406 U.S. 205 (1972). See generally Hafen, Children's Liberation and the New Egalitarianism: SomeReservations About Abandoning Youth to Their "Rights,"' 1976 B.Y.U. L. REV. 605.

[FN192]. See Santosky v. Kramer, 455 U.S. 745 (1982), where a clear and convincing evidence standard was held required ina child neglect deprivation proceeding to protect the parents' due process right to the care, custody, and companionship oftheir children. For analysis and review of the trend toward less liberal grounds for removal of a child from parental care, seeauthorities cited supra note 40.

[FN193]. Cases upholding the infancy defense in juvenile court include In re Gladys R., 1 Cal. 3d 855, 464 P.2d 127,83 Cal.Rptr.671 (1970); K.M.S. v. State, 129 Ga. App. 683, 200 S.E.2d 916 (1983); In re Andrew M., 91 Misc. 2d 813, 398N.Y.S.2d 824 (1977); Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978).Cases holding contra include State v. D.H., 340 So. 2d 1163 (Fla. 1980); In re Davis, 17 Md. App. 98, 299 A.2d 856 (1973);In re Robert M., 110 Misc. 2d 113, 441 N.Y.S.2d 860 (1981); In re Michael, 423 A.2d 1180 (R.I. 1981). An Illinois case, Inre Carson, 10 Ill. App. 3d 384, 295 N.E.2d 740 (1973), holds that legal capacity is irrelevant in juvenile court but addressesonly the issue of the infancy defense in dicta.

[FN194]. But see infra note 210 and accompanying text.

[FN195]. 340 So. 2d 1163 (Fla. 1976).

[FN196]. 309 So. 2d 601 (Fla. 2d Dist. Ct. App. 1975).

[FN197]. 327 So. 2d 820 (Fla. 1st Dist. Ct. App. 1976).

[FN198]. 332 So. 2d 134 (Fla. 3d Dist. Ct. App. 1976).

[FN199]. See State v. D.H., 340 So. 2d at 1164.

[FN200]. See also In re E.P., 291 So. 2d 238 (Fla. 4th Dist. Ct. App. 1974) (not discussed in D.H. but also holding thatpresumption of incapacity is required in Florida delinquency proceeding).

[FN201]. Florida law provides that delinquent child "means a child who commits a violation of law . . . ."' FLA. STAT. §39.01(12) 1974). FLA. CONST. art I, § 15(b) distinguishes between delinquent and criminal violations of law.

[FN202]. See supra notes 47-49 and accompanying text.

[FN203]. For a discussion of general trends in juvenile justice law, see supra notes 55-86 and accompanying text. By 1976,Florida law incorporated basic tenets of the new juvenile justice. The jurisdictional reach of the juvenile court was dividedinternally between dependent children, FLA. STAT. § 39.01(10) (1974), children in need of supervision, id., § 39.01(11), anddelinquent children, id., § 39.01(12). Delinquency jurisdiction was limited to violation of the criminal law. Id. Juvenilescharged with delinquency were afforded right to counsel, see J.H.R. v. State, 278 So. 2d 314 (Fla. 3d Dist. Ct. App. 1973),





























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the same burden of proof available in an adult proceeding, see D.M.M. v. State, 275 So. 2d 308 (Fla. 2d Dist. Ct. App. 1973),the right to a complaint alleging specific charges, In re T.A.F., 252 So. 2d 255 (Fla. 1st Dist. Ct. App. 1971), the right toremain silent, and the right to cross-examine witnesses. Id. In making the waiver decision the first factors to be considered bythe Florida courts were the nature of the present offense and the nature and extent of the child's delinquency record. FLA.STAT. § 39.09(2)(d)(1) (1974). Amenability to treatment and the availability of rehabilitative facilities constituted the secondand third factors of the waiver decision. Id. at § 39.09(2)(d) 2 & 3. Limits were placed on treating delinquent children andchildren in need of supervision in similar fashion at disposition. See id. § 39.11(1)(a) (providing that first-time offenders inneed of supervision cannot be committed to the Division of Youth Services).Despite the foregoing, the first of four purposes of the Act was "[t]o protect society more effectively by substituting forretributive punishment methods of training and treatment directed toward the correction and rehabilitation of children whoviolate the laws."' Id. § 39.001(1). In 1978, after D.H. was decided, the Florida Act underwent revision, taking it even furtherin the direction of the new juvenile justice law. The new purpose section now transposes "treatment"' into "rehabilitativerestitution"' and qualifies the pre-existing language by recognizing that"application of sanctions which are consistent with theseriousness of the offense is appropriate in all cases."' FLA. STAT. § 39.001(1) (1978). See also id. § 39.09(1)(c) (openingadjudicatory hearings to the public); id. § 39.09(3) (criteria for disposition based upon the seriousness and nature of theoffense, protection of the community and the public, the child's past criminal history, and the likelihood of reasonablerehabilitation in light of the prospects for adequate protection of the public if the child is not incarcerated); id. § 39.11(3)(limiting commitment of a delinquent child to the Department of Health and Rehabilitative Services to a period not to exceedthe maximum term of imprisonment an adult may serve for the same offense).

[FN204]. See generally supra note 62-80 and accompanying text.

[FN205]. See, e.g., Jennings v. State, 384 So. 2d 104, 105 (Ala. 1980) ("[a]s does the Florida statute, our juvenile statuteremoves juveniles who have committed a crime from the jurisdiction of the criminal justice system, and establishes anentirely separate system to minister to them, a system whose aim is rehabilitative rather than retributive."').

[FN206]. 17 Md. App. 98, 299 A.2d 856 (1973), noted in 34 MD. L. REV. 178 (1974).

[FN207]. The relevant statutory provision may be found at MD. ANN. CODE art. 26 § 70-72(d) (Supp. 1973) (recodified inCTS. & JUD. PROC. CODE ANN. § 3-808 (1974)).

[FN208]. See, e.g., In re Unsworth, 276 So. 2d 337 (La. Ct. App. 1973) (failure to prove juvenile knew goods were stolen isgrounds for reversal of delinquency adjudication). See also In re Michael, 423 A.2d 1180, 1183 (R.I. 1981) (stating in dicta"it is clear that any adjudication of delinquency or waywardness must rest upon a finding beyond a reasonable doubt that thejuvenile had formed whatever criminal intent or mens rea was an element of the offense that gave rise to his being before theFamily Court)."DD'

[FN209]. See In re Winburn, 32 Wis. 2d 152, 145 N.W.2d 178 (1966) (insanity defense applicable to juvenile proceedings).See also In re Causey, 363 So. 2d 472 (La. 1978). But see In re H.C., 106 N.J. Super. 583, 256 A.2d 322 (1969).

[FN210]. 110 Misc. 113, 441 N.Y.S.2d 860 (1981).

[FN211]. See Whisenand & McLaughlin, Completing the Cycle: Reality and the Juvenile Justice System in New York State,47 ALB. L. REV. 1 (1982) (arguing that New York's new juvenile justice laws reject the rehabilitative rationale in favor ofprinciples of culpability and punishment).


















[FN212]. New York law precludes delinquency adjudication for children under seven. See In re Robert M., 110 Misc. 13,441 N.Y.S.2d 860, 862 (1981).

[FN213]. For an expanded version of this argument, see supra notes 153-58 and accompanying text.

[FN214]. 1 Cal. 3d 855, 464 P.2d 127, 83 Cal. Rptr. 671 (1970). See Fox, supra note 12, at 668-72 for criticism of thestatutory interpretation relied on in Gladys R. to sustain use of the infancy defense. Fox does agree with the result in GladysR., basing his argument on public policy. Id.

[FN215]. CAL. PEN. CODE § 26 (West Supp. 1983).

[FN216]. CAL. WELF. & INST. CODE § 602 (West Supp. 1983).

[FN217]. Gladys R., 1 Cal. 3d at 863, 464 P.2d at 133, 83 Cal. Rptr. at 677.

[FN218]. Id. at 863-64, 464 P.2d at 133-34, 83 Cal. Rptr. at 677-78.

[FN219]. Id. at 862, 464 P.2d at 132, 83 Cal. Rptr. at 676.

[FN220]. CAL. WELF. & INST. CODE § 600 (West 1972) (repealed 1976) (current version at CAL. WELF. & INST.CODE § 300 (West Supp. 1984)).

[FN221]. Id. § 601 (West Supp. 1983).

[FN222]. Gladys R., 1 Cal. 3d at 864-65, 464 P.2d at 137, 83 Cal. Rptr. at 678.

[FN223]. 255 Pa. Super. 539, 389 A.2d 108 (1978). The argument that Durham is based on flawed constitutional authorityhas dissuaded at least one court from relying on it. See Jennings v. State, 384 So. 2d 104, 106 (Ala. 1980). The Jenningsopinion also construes the opinion in In re Andrew M., 91 Misc. 2d 813, 398 N.Y.S.2d 824 (1977), as having a constitutionalbasis. Id. This is simply wrong. Andrew M. merely uses Gault and its progeny as evidence of a radical shift in the wayjuvenile law is now understood. See infra note 224 and accompanying text.

[FN224]. 91 Misc. 2d 813, 398 N.Y.S.2d 824 (1977).

[FN225]. Id. at 815, 398 N.Y.S.2d at 826.

[FN226]. Id.

[FN227]. Id.

[FN228]. Id. at 816, 398 N.Y.S.2d at 827.

[FN229]. See In re Robert M., 110 Misc. 113, 441 N.Y.S.2d 860 (1981), discussed supra note 210 and accompanying text.

[FN230]. California's infancy defense provides an interesting variation on the common law defense. In essence, all childrenunder fourteen are presumed incapable in the absence of clear proof of knowledge of wrongfulness. See supra notes 214-22and accompanying text. This approach provides no minimal chronological baseline barring juvenile (or adult) justiceproceedings. Exposure of children under seven to adult and juvenile justice proceedings suffers from similar infirmities to


























those posed by structuring infancy as a typical affirmative defense. See infra notes 231-33 and accompanying text.Another possible approach to infancy concerns would reject use of age-based presumptions as a proxy for capacity andinstead rely on individualized determinations. This approach has been rejected by the courts. See, e.g., State v. Jamison, 23Wash. App. 454, 597 P.2d 424 (1979); see also State v. Dillon, 93 Idaho 698, 471 P.2d 553 (1970).

[FN231]. In affirmative defenses other than infancy, the burden of producing evidence of an exculpatory nature is generallyon the defendant. In essence, normative behavior is presumed (i.e., the accused is sane, not intoxicated, not compelled tocommit the crime, etc.) and exculpatory behavior must be raised by the defendant. Common law infancy, on the other hand,assumes incapacity and puts the burden of production on the state. For a discussion of affirmative defenses in relation toburden of production and persuasion, see W. LAFAVE & A. SCOTT, supra note 8, at 46-54. See generally Jeffries &Stephan, Defenses, Presumptions, and Burden of Proof in the Criminal Law, 88 YALE L.J. 1325 (1979).

[FN232]. See C. MCCORMICK, EVIDENCE § 803 (1972).

[FN233]. See, e.g., In re Andrew M., 91 Misc. 2d 813, 814, 398 N.Y.S.2d 824, 825 (1977).

[FN234]. See R. PERKINS & R. BOYCE, supra note 8, at 938. It has been held that this strength of the presumption ofincapacity is extremely strong at seven but diminishes gradually over the years. See supra note 22. This tracks basicassumptions underlying child development. See supra note 170. The decline in the strength of the presumption has been saidto mean that the quantum of proof necessary to overcome the presumption declines as the child grows older. See Adams v.State, 8 Md. App. 684, 689, 262 A.2d 69, 72 (1970). In actuality, the major impact of the presumption is not on the quantumof proof necessary to show capacity. The quantum of proof required is established by measure of the burden of persuasion.Rather, the key impact of the presumption is to put the risk of non-production on the state.

[FN235]. See, e.g., Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978). In some jurisdictions, the infancydefense's burden of production and persuasion (and standard of persuasion) is codified in statute. See, e.g., In re Gladys R., 1Cal. 3d at 867, 464 P.2d at 136, 83 Cal. Rptr. 815 (1970) (construing infancy statute to require prosecutor to prove capacityby "'clear proof"').

[FN236]. For a discussion of the shifting of the risk of non-production, see Jeffries & Stephan, supra note 231, at 1332.

[FN237]. W. LAFAVE & A. SCOTT, supra note 8, at 47. For justifications for putting the burden of production on theaccused when asserting an affirmative action defense, see id. at 44-51.

[FN238]. See infra notes 251-63 and accompanying text.

[FN239]. See Jeffries & Stephan, supra note 231, at 1330-31.

[FN240]. See Adams v. Maryland, 8 Md. App. 684, 262 A.2d 69 (1970); People v. Lang, 402 Ill. 170, 83 N.E.2d 688 (1949).

[FN241]. See State v. Skeen, 137 W. Va. 806, 74 S.E.2d 413 (1953) (clear and convincing proof). See also Senn v. State, 53Ala. App. 297, 299 So. 2d 343 (1974) (clear evidence).

[FN242]. See Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979) (presumption prevails until the contrary isaffirmatively shown by the evidence).

[FN243]. Compare Commonwealth v. Durham, 255 Pa. Super. 539, 389 A.2d 108 (1978) (proof beyond reasonable doubt),



















with In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) (reasonable doubt standard rejected in favor of statutorystandard of "clear proof"').

[FN244]. Current constitutional dogma extends the constitutional proof beyond a reasonable doubt requirement to elementsof crime but not to facts necessary for a defense to criminal liability. Compare Mullany v. Wilbur, 421 U.S. 684 (1975), withPatterson v. New York, 432 U.S. 197 (1977). See generally Jeffries & Stephan, supra note 231, at 1338-44. Argumentsrelying on a constitutionally based reasonable doubt standard have been rejected in juvenile court. See In re Clyde H., 92 Cal.App. 3d 338, 343, 154 Cal. Rptr. 727, 730 (1979) ("Since the Legislature may constitutionally require an adult criminaldefendant to prove insanity by a preponderance of the evidence [citation omitted] it may constitutionally set forth by statutethe standard by which a minor of a given age shall be found capable of commiting a crime."'). These arguments have alsobeen rejected in a full fledged criminal proceeding. See Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977).

[FN245]. In re Winship, 397 U.S. 358 (1970).

[FN246]. Id.

[FN247]. Since Gault "no revolution has occurred in the implementation of due process in the juvenile court. Most judges doconcur that juvenile rights should be acknowledged and protected, but they agree far less about how and to what extentprocedural safeguards must be implemented."' NATIONAL ASSESSMENT OF JUVENILE CORRECTIONS, BROUGHTTO JUSTICE (R. Sarri & Y. Hansefled eds. 1974).

[FN248]. See supra note 24.

[FN249]. See Redman v. State, 580 S.W.2d 945 (Ala. 1979) (appreciate nature and consequences of his acts and possessknowledge of right from wrong in reference to offense charged); Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977) (minordefendant must know right from wrong in reference to offense with which she was charged); In re Gladys R., 1 Cal. 3d 855,464 P.2d 127, 83 Cal. Rptr. 671 (1970) (knowledge of wrongfulness); Adams v. State, 8 Md. App. 684, 262 A.2d 69 (1970)(knew what he was doing and it was wrong).

[FN250]. The psychological literature reveals a relationship between cognitive and affective sense of right and wrong and thecapacity to control impulse. See supra notes 175-77 and accompanying text. For that reason, even if the impulse controlinquiry is rejected as a second leg of the capacity test, inventive counsel may want to explore it under the rubric of theright/wrong inquiry. It should be noted that while this test roughly parallels the ALI insanity test, the inquiries are notcoextensive. Insanity focuses on mental disorder, capacity on the maturational process.

[FN251]. 1 Cal. 3d 855, 464 P.2d 127, 83 Cal. Rptr. 671 (1970).

[FN252]. 1 Cal. 3d at 866, 464 P.2d at 136, 83 Cal. Rptr. at 680.

[FN253]. See In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) (psychologist); In re Patrick W., 84 Cal. App.3d 520, 148 Cal. Rptr. 735 (1978) (psychologist); In re Roderick P., 7 Cal. 3d 801, 500 P.2d 1, 103 Cal. Rptr. 425 (1972)(psychologist and school personnel).

[FN254]. In re Roderick P., 7 Cal. 3d 801, 500 P.2d 1, 103 Cal. Rptr. 425 (1972) (psychologist and school personnel).

[FN255]. See In re Michael B., 44 Cal. App. 3d 443, 118 Cal. Rptr. 685 (1975).
























[FN256]. See In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979).

[FN257]. Id.

[FN258]. See In re Tanya L., 76 Cal. App. 3d 725, 143 Cal. Rptr. 31 (1977).

[FN259]. See In re Tony C., 71 Cal. App. 3d 303, 139 Cal. Rptr. 429 (1977), vacated, 21 Cal. 3d 888, 582 P.2d 957, 148 Cal.Rptr. 366 (1978); In re Cindy E., 83 Cal. App. 3d 393, 147 Cal. Rptr. 812 (1978); In re Patrick W., 84 Cal. App. 3d 520, 148Cal. Rptr. 735 (1978); In re Tanya L., 76 Cal. App. 3d 725, 143 Cal. Rptr. 31 (1977). In In re Patrick W., supra, the courtrejected the argument that evidence of the circumstances pertaining to the crime should not be admissible to show knowledgeof the wrongfulness of the act as unduly prejudicial, citing its true relevance to the issue at hand. This issue was explored ingreater depth in both the appellate court and supreme court opinions in In re Tony C., supra. In that case the trial court hadevidently relied on evidence of the acts at issue (theft of a vehicle, rape, and robbery) and the minor defendant's mother'stestimony as to the moral guidance she had given him to find capacity. The court of appeals reversed, finding the mother'stestimony insufficient proof of capacity and rejecting the Attorney General's argument that weighing the nature andcircumstances of the crime itself could serve as the basis for the capacity determination. The court theorized that if proof ofknowledge could be met by proof of the act, the knowledge requirement would be rendered meaningless. The court suggestedinquiry into objective evidence such as testimony from school personnel and psychologists.The California Supreme Court opinion in In re Tony C., supra, affirmed the trial court's holding on the capacity issue,concluding that while reliance on bare commission of the act would indeed frustrate the purposes of the knowledgerequirement, attendant circumstances of the crime such as its preparation, method of commission, and concealment wouldshed light on the child's understanding of the wrongfulness of his act. The court relied on evidence of Tony's use of deadlyforce in committing the rape, his conduct in taking the victim to a secluded location, and his inquiry as to whether the victimwould call the police to find that Tony knew the wrongfulness of his conduct. Reference was also made to Tony's age (eightweeks short of furteen) in establishing capacity to know wrongfulness.

[FN260]. In re Clyde H., 92 Cal. App. 3d 338, 154 Cal. Rptr. 727 (1979) (prior involvement in similar conduct triggeringrepeated warnings relevant to knowledge of wrongfulness of conduct); In re Harold M., 78 Cal. App. 3d 380, 144 Cal. Rptr.744 (1978) (evidence of two prior sustained delinquency petitions relevant to knowledge of wrongfulness of conduct).

[FN261]. See In re Tony C., 21 Cal. 3d 888, 900, 582 P.2d 957, 964, 148 Cal. Rptr. 366, 373 (1979) (holding that whilecircumstances surrounding commission of a crime are relevant to prove capacity "[i]t would manifestly frustrate the intent ofPenal Code section 26 to infer such knowledge [of wrongfulness] from the bare commission of the act itself."').

[FN262]. In re Michael B., 44 Cal. App. 3d 443, 118 Cal. Rptr. 685 (1975).

[FN263]. 83 Cal. App. 3d 393, 147 Cal. Rptr. 812 (1978).

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