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Ask a prosecuter, or a defense attorney, or a child psychiatrist how old we are when we understand the difference between right and wrong, and you’ll get a lot of different answers. Yet the question is key in many juvenile delinquency cases. AFP PHOTO / Robyn BECK (Photo credit should read ROBYN BECK/AFP/Getty Images)
The case of a grade schooler who shot his neo-Nazi father to death centered mostly around one question: did the boy know what he was doing when, at the age of 10, he put a gun to his sleeping father's head?
It's a common question in juvenile delinquency courts across the nation. Prosecutors are tasked with proving that the youngest offenders knew their actions were wrong. In California, they must do so for offenders younger than 14.
But there's no clear age at when a child knows right from wrong -- nor a test to prove it.
Pinpointing an age at which offenders appreciate their crimes would be arbitrary said Eraka Bath, a Forensic Child Psychiatrist at UCLA who helps courts make those determinations. She said the issue goes beyond a child's age.
“These things are multifactorial,” she said.
The area of the brain we use to make decisions and distinguish right from wrong --the prefrontal cortex--isn't fully formed until around the age of 23. Before then, it's arguable that we don't fully have a conscience. And its development can be impaired in indiviudals with a history of drug use, depression, or abuse.
Bath said advances in neuroscience within the last 20 years have influenced policy in the U.S. Supreme Court's handling of juvenile cases.
“They are more thoughtful in their application of the most severe penalties because of these differences” between the juvenile and adult brain, she said.
In the last decade, the court has distinguished between adults and minors in important ways. In 2005, in Roper v. Simmons, the court found that kids under the age of 18 can't be sentenced to death. In 2010, in Graham v. Florida, it outlawed life without parole for children under 18, except in cases of murder. And in 2012, in Miller v. Alabama, it made life without parole unconstitutional for minors even for killing someone.
But in the day-to-day matters in juvenile court, neuroscience isn't playing much of a role.
While lawyers in juvenile court have been talking about right from wrong for a long time, it’s been in an anecdotal sense, said Maureen Pacheco, co-director of Loyola's Juvenile Innocence & Fair Sentencing Clinic.
“I think that the juvenile courts would say, well, you know, I’d know what a teenager is like, I know they’re impulsive," Pacheco said. "I haven’t seen a change.”
In the vast majority of cases, prosecutors are able to prove a juvenile offender knew what he was doing was wrong simply by pointing out guilty behavior.
For 15 years, Sacramento prosecutor Rick Lewkowitz has been training newly minted prosecuters in juvenile court how to do it.
“I’ll take a very easy example: petty theft,” he said. “[If] they are looking both ways when they conceal something in their coat, or, whatever, and then they’re looking over their shoulder as they leave, and then when they hit the front door of the store they start running away.”
That's about all it takes, he said.
In last week’s Riverside case, Deputy Public Defender Matthew Hardy took the usual step of calling a psychiatrist to argue that the boy did not understand it was wrong to shoot his father, Jeff Hall, a regional director of the white supremacist National Socialist Movement.
But Superior Court Judge Jean Leonard took the side of the prosecution’s psychiatrist, who said that the boy did understand the consequences of his actions. In her ruling, she cited the boy’s statement that “if you want to kill someone, you shoot them in the head,” among others.
Jean Jordan, a lawyer with the California District Attorney’s Association, said it could present a real dilemma if lower courts were to ultimately become convinced that some young children don't have the capacity to appreciate the consequences of their bad acts.
“If someone doesn’t know the difference between right and wrong based on age, lack of brain development, or circumstances of their upbringing, how do you balance that against community safety?" she asked. "I mean, do we just say, okay, they were too young to know right from wrong?”
Juvenile court judges rarely allow offenders to walk away after they've hurt someone or stolen something. They may send them to less structured environments where they're more likely to get treatment.
Those are the kinds of outcomes which defense attorneys like Pacheco want. She's hopeful that the hard science will begin coming up more often in court.