Some scattered thoughts regarding
the January / February 2011 LD resolution. Before proceeding, let's recall its exact words:
Resolved: In the United States, juveniles charged with violent felonies ought to be treated as adults in the criminal justice system.
- Juvenile detention is primarily based on rehabilitation; the state hopes that it's not too late for young criminals to turn it around, to become functional (or, at least, non-dysfunctional) members of society. Combine this with the prospect that justice as a deterrent may not work when juveniles can't consider the far-reaching implications of their actions, and you have two initial reasons to choose a retributive version of justice for the Affirmative.
- How are juveniles different from adults in legally or morally significant ways? Part of the distinction is sentimental: kids are kids. They're cute. They say and do funny things. They are innocent and naive. When a kid turns violent, our sentimental shock leads us in two opposite directions: either to minimize their individual responsibility (blame society, bad parenting, bad genes, insufficient brain development, etc.) or to declare them a moral monster (a "superpredator," a sociopath capable of inhuman evil). Is there a rational middle path?
- What does "treating like an adult" entail?
- And, a trickier question, what is its temporal extent--or, in other words, how long does it last? In this chain of events...
Arrest - booking / charges - detention - setting bail - arraignment - preliminary hearing - pre-trial motions - trial - deliberation - verdict - allocution - sentencing - serving time - release from incarceration or punishment - reentering society.
... the resolution begins at the "charging" stage. But where does it end?
- One can argue that the resolution concerns only those charged with violent felonies--and thus it only concerns everything from the charging stage to the verdict. After all, at that point (or at any point until charges are dropped), juveniles that are innocent are cleared of the charges. This would define the Aff ground much more narrowly, making privacy the primary difference in treatment. The Aff would argue that juveniles would have to be named in public records (and, most likely, in the media), since it's in the public's interest to know the identity of a potentially dangerous person. The Neg, of course, would argue that such a public accounting might ruin a juvenile's reputation for life, even if they're found innocent at trial.
- If the resolution covers the entire process from charging through the rest of a juvenile's time in the justice system (whenever it ends), then punishment is part of the picture. In this case, is there a way for the Aff to at least minimize the likelihood that a 6-year-old is going to be thrown into The Hole in a maximum security prison?
- Yes.
- Since we're talking about the U.S. justice system, we have to include prosecutorial discretion and jury sympathy in the equation. It can be politically unfavorable for a prosecutor to aggressively go after juveniles; it can also be strategically difficult. In the face of arguments that juveniles have diminished responsibility, the Aff can turn the argument: that very fact keeps juries from viewing juvenile defendants as fully culpable, and so a jury that is faced with levying a maximum sentence on a 12-year old will act very cautiously.
- What about the death penalty, or life without parole?
- In the classic conception of crime, two elements are jointly necessary for someone to be culpable: the actus reus, or guilty action, and the mens rea, or guilty mind. A person who only thinks about murdering their enemy may have a guilty mind, but has not committed a guilty action, and is thus not culpable. Meanwhile, a demon-possessed madman who kills a random stranger may have committed a criminal action, but was unable to appreciate the distinction between right and wrong, and is thus not culpable. (Such a person may be incarcerated in a mental institution until the end of time, for others' safety, but that is the justifying reason, not their individual culpability.) We use similar logic to deny the death penalty to adults without the cognitive faculties to distinguish right and wrong.
- Why does mens rea matter? Because it seems tacitly unfair to punish someone for an accident, for circumstances beyond their control, for something they did not will of their own accord, or would have willed differently if they had been of sound mind.
- Are juveniles fully capable--or, at least, capable enough--of distinguishing right and wrong?
- If we were to punish actions regardless of will or mental state, what might happen?
10 comments:
I don't quite understand the first point. If juveniles have a chance of reintegrating into society and can't foresee the consequences of their actions (not morally culpable), wouldn't we negate?
Which is why, as it states above, one Aff strategy to pre-empt the Neg is to win on the criterion of retributivism. In a retributive framework, justice--balancing the scales--is the only valid justification for punishment. Rehabilitation is nice, but at best a side effect of a punitive system.
The point about deterrence is a little more subtle. I didn't say that juveniles don't know right from wrong, or understand that their actions have consequences. Rather, that they can't foresee the long-term consequences, and so are less likely to be swayed by a deterrent approach.
Retributive justice is backward-looking, so again, deterrence is a side-effect, not the purpose of punishment.
can you define "treated as adults"?
It's a little complicated, and has to be done functionally, rather than with a dictionary. I outline some of the key differences in the treatment of juveniles and adults here.
How Does an Affirmative Prevent a Negative saying that we will be charging 6 year olds in adult jail. An affirmative must put a bottom floor to the word juvenile but how do they justify it?
1. By looking at past practices in jurisdictions with no minimum--there are precious few criminal defendants under the age of 10.
2. By noting that many states have minimum ages (as low as 7, I believe).
3. By noting the political / strategic inadvisability of prosecutors going after really young children; it's foolish to seek / tough to get a conviction.
4. By remembering that we affirm or negate the resolution "as a general principle," so the rare exception is tolerable.
Can you give the name of a person, say, a philosopher, who supported the "classic conception of crime" that you discussed?
Any retributive theory of justice is going to view mens rea as one of the essential components of proving moral culpability; probably the most famous retributivists are Kant and Hegel.
I'm new to LD debate and I don't see how retributive justice is in any way productive. If not a deterrent to crime, then what? I suppose that, principally, people should get what they deserve, but how does that benefit society?
Josh, even though retributivism isn't justified in terms of the societal good it produces, it it important to a good society.
1. It ensures that the guilty--and only the guilty--are punished to the proper degree, which is generally desired by people in a fair and free society, promoting social cohesion and general happiness.
2. It reduces vigilantism.
3. It promotes a moral view of the law, leading to respect for the law (and the concomitant societal advantages of a society that respects the law).
4. It is strongly allied with protections of human dignity and natural rights.
And those are all in the view that such things matter more than justice itself, which the retributive position rejects. Retribution forbids using people as a means to an end; consequentialism, on the other hand, has no in principle objection to punishing innocents if the overall benefits outweigh the costs. A retributivist would find this morally abhorrent.
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