Abstract
Should an adolescent offender be punished more leniently than an adult offender? Many theorists believe the answer to be in the affirmative. According to the diminished culpability model, adolescents are less mature than adults and, therefore, less responsible for their wrongdoings and should consequently be punished less harshly. This article concerns the first part of the model: the relation between immaturity and diminished responsibility. It is argued that this relation faces three normative challenges which do not allow for easy answers and which are still widely ignored in the comprehensive discussion of the diminished culpability model.
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Notes
This paper does not intend to present an overview of how adolescent offenders are punitively dealt with in the criminal justice systems of different countries. However, it should be mentioned that there are large contrasts between the approaches to juvenile justice in different jurisdictions. For an overview of different approaches to adolescent offenders see, for instance, [3–5, 17, 22, 27].
One of the theorists to have emphasized in various writings that the ascription of responsibility is a moral question is Morse [27].
In this paper I focus solely on capacitarian responsibility, that is, the capacities that constitute necessary conditions for criminal responsibility. Obviously, the possession of these capacities is not sufficient for being criminally liable. As Hart has put it, criminal liability responsibility also requires “causal or other connexions between a person and harm …”. [20], p. 221.) However, the important thing is that capacitarian responsibility can be thought of as a precondition for criminal liability responsibility.
In this paper, I shall not discuss the significance of the fact that there might well be major differences in the maturity between different adolescents at the same age. For a discussion of generalization and individualization, see e.g. [23].
It might be held that, once the morally relevant types of capacity have been identified, the question as to whether, and to what extent these capacities are manifested in a particular type of crime remains an empirical question (that should perhaps be left for the criminal justice system to determine in individual criminal cases). However, even if this is correct, the questions would still have to be dealt with in a consistent manner within a proportionalist penal system and it is clear that very little has been said to clarify how important different capacities—and the fact that they are not fully developed—should be regarded as being in relation to specific types of crime (e.g. does a not fully developed ability to control his impulses and behaviour leave the adolescent less responsible if he commits a violent attack than if he commits rape?)
Obviously, there is a clear disanalogy between making mistakes when one is dealing with an arithmetical problem and committing a crime. While the first mistake is one that one seeks to avoid, this is not the case with regard to the crime. However, this difference is irrelevant in the present context.
It might perhaps be suggested that A and B should be regarded as equally responsible if their capacities by far exceeds what is required to appropriately reflect and decide on a particular act, and this is so irrespective of the fact that A’s capacities are somewhat more developed than B’s capacities. However, even if this suggestion has some appeal we still need an argument as to why the capacity difference between A and B should be ignored. Moreover, it has to be shown that it is the case that both the capacities of the adult and of the adolescent clearly exceed what is required for dealing appropriately with a possible criminal act. This premise seems hard to sustain.
Whether there could be pragmatic reasons for maintaining the concept of full responsibility in criminal justice practice, even if it does not fit the most plausible view on responsibility, is not an issue I shall address here.
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Ryberg, J. Punishing Adolescents—On Immaturity and Diminished Responsibility. Neuroethics 7, 327–336 (2014). https://doi.org/10.1007/s12152-014-9203-6
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DOI: https://doi.org/10.1007/s12152-014-9203-6