Jan 9, 2011

age and arbitrariness

Regarding the juvenile justice resolution, one of the more intriguing Affirmative arguments I heard this weekend considered age as an arbitrary measure of competency.

The argument goes something like this:

1. Some juveniles (persons below the age of 18) are more competent (and hence culpable) than adults.

2. In the U.S. justice system, the age of majority varies from state to state, or from time to time.

3. Any brightline is a social construct, since it arises out of a political process rather than from an essential trait. (Some Affs argue further that adolescence is a social construct, which is interesting, but not necessary to make this argument.)

4. Therefore, age is an arbitrary way to determine competency and culpability.

The argument is tied to a value of justice with a criterion of "rejecting arbitrariness" (or a related phrase). At first blush, it seems powerful: arbitrariness, defined as discretion based solely on individual judgment, with connotations of caprice or despotism, is unjust.

There are at least two problems with this approach.

First, any human institution will have a degree of arbitrariness, or to phrase it more positively, discretion. Evidence and testimony, laws and statutes are open to interpretation; that's why we have juries and highly trained judges--or even panels of judges--tasked with interpreting laws. There is simply no way to entirely reject arbitrariness in the United States criminal justice system. Perhaps a more defensible criterion would be reducing arbitrariness. (As an aside, the Aff is on stronger ground to argue that the lack of a jury trial increases arbitrariness, leaving the decision in one person's hands, rather than in a unanimous verdict of strangers. But the judge is an expert, whereas the jury.... but that's another matter.)

Second, there's a deeper concern. The affirmatives who ran this argument typically promoted a test of mental competency for all defendants charged in the criminal justice system as their way to treat juveniles as adults, and overcome the arbitrary brightline of 18.

But there's a gaping hole in this approach. A measurement of competency is equally socially constructed, and more arbitrary than age.

After all, who determines the criteria of competency? Psychologists? Neurologists? Politicians? Who adjudicates the conflict between competing experts who might wish to employ different criteria? Who designs the test(s) of competency? How are the tests determined to be valid and reliable? Who administers the test(s)? Who ensures that testing bias (or interpretive bias) stays out of the process? Who ensures that test subjects aren't cleverly faking incompetence? Who draws the brightline?

And, most important, where do we draw the line? How do we know the brightline between "competent" and "not competent" is itself not completely arbitrary?

In short, a individually focused, continuum-based approach seems initially like a solid reason to affirm, but on closer inspection, produces more problems than it solves, and ultimately is self-defeating by its own logic.


Anonymous said...

On a bit of an unrelated note, I am having a hard time on the AFF coming up with ways to defend negative arguments about mental competency/culpabiliity, especially when the adult criminal justice system has conflicting views on the matter. For instance, mentally handicapped or insane people are not viewed as culpable, while many criminals (such as rapists, who psychologists claim can't always control their impulses) are. Obviously, there is jury/prosecuror disretion to help solve this problem, but it can't completely solve for for it. Any ideas on what can, or other ways to defend the negative's culpability argument? Thanks for you help.

Anonymous said...

I base A LOT of my Aff case on the problems with the criminal justice system, but I'm afraid the Neg will say something like "I don't have to defend the status quo." What do I say to this??

Avenger said...

@first anonymous. Well, the thing your talking about is the insanity plea, correct? If so, it is completely nonunique. You have insanity plea on both sides, the juveniles and the adults. mentally handicapped people and juveniles are different. juveniles are missing a part of their prefrontal cortex which makes them some lack inhibitory control. However, they can still distinguish right from wrong.

Anonymous said...

@Avenger- Ok, but at the point that juveniles have impulse control problems, why are they still culpable, and/or why should they still be treated as adults? Wouldn't it be better to keep them in a more rehab-esque juvenile system until they have fully developed impulse control if they are not culpable? I don't see a way to attack this.

Jim Anderson said...

Anonymous, I've heard some debaters quote evidence that adolescence is socially constructed--that juveniles act so impulsively because society expects them to, creating a self-fulfilling prophecy. Such is the belief, for instance, of Dr. Robert Epstein.

Avenger said...

@Jim. I see the argument, but how would you argue that on the aff side?

Jim Anderson said...

Well, one way would be to talk about the law in terms of education and virtue, and that if we expect juveniles to act, well, juvenile, we shouldn't be surprised when they disclaim responsibility for actions they should otherwise be considered responsible form.

Essentially, the Aff would be talking about how the law could be the leading edge of a cultural transformation, where adolescents are treated as mature, responsible persons--with concomitant obligations and rights.

Anonymous said...

I pretty much agree with this post, and it's come up before in discussions I've had. However, I'm not convinced that arbitrary is necessarily a bad thing. We start with a basic understanding that juveniles haven't developed all their mental faculties so far, and we draw an arbitrary line at a certain age, saying that before this you should be treated a certain way, and after you should be treated a different way. As with any system whatsoever, you're going to have situations where it shouldn't apply, but consider this:

How many water molecules do we need before something gains the quality of "wet"? We don't really have a good way to give a hard and fast definition of that, but we know it when we see it. Similarly, how many years does a person need before they qualify to be treated as an adult? Just because any specific line we draw is arbitrary, doesn't mean there isn't an important distinction to be made (and I believe there's a specific argumentative fallacy that has something to do with this).

Anonymous said...

I understand your meaning behind the idea of stating a test to determine competance is equally arbitrary, but isn't that asking for a plan? If LD is value based, NOT plan based, why should a debater need to come up with another solution?

Anonymous said...

That's what I was just about to point out - you can ask all these questions to stop them (lovely questions, I might add) but they can refute that by saying, "This is LD, I don't need to have a plan. I'm just stating an idea" (or something like that) and you're helpless. So what do we do then?
Also, you can run the "juveniles not accountable" thing under mens rea. Adults without mens rea are treated differently, we could hold the same thing with juveniles. Exactly how we'll do this? Don't bother. We're in LD debate :)

Jim Anderson said...

First Anonymous, my guess is you're thinking of the continuum fallacy, which I discuss (briefly) here.

Second Anonymous, A "plan" is a specific response to a problem, requiring a level of warranting that isn't necessary, or time-possible, in LD. However, proposing a mere alternative ("Instead of age-based distinctions, we could use competency tests") isn't creating a plan. It's talking about a potential justification for (and impact of) treating juveniles as adults, while preserving the Constitutional prohibition against cruel and unusual punishment.

Also, if you're running a consequentialism-base argument, you're already talking about impacts--which arguably requires us to weigh alternatives.

To Third Anonymous's Adults without mens rea are treated differently, we could hold the same thing with juveniles, but exactly how we don't know, the Neg response would be, "The age-based distinction offers a specific brightline with a proven track record, historical warrant, and societal support, while the Aff can advocate only for hypothetical solutions."

Which do you think the average judge will buy?

Confused said...

I dont understand the function of the argument. What does aff do differently than Neg to solve the problem? I get that there is not a line that says Juvenile or Adult so what does Aff get out of this?

Thank you Mr. Anderson said...

This argument is pretty much saying that an age is not good at measuring competency right? wouldnt it be easier for neg to agree and also say that Juveniles are special and therefore need to be treated on a case by case basis.

Anonymous said...

What would strong Affirmative arguments be? I am having trouble with contentions in my AFF case. Maybe deterrence? But I still need more ideas. Thank you for the help

Anonymous said...

I forgot to say above that my value in the AFF case is justice and the criterion is legal universalism