Adult or child

by scotslawstudent

Criminal Law is a touchy area of law. It’s the part that makes the news and appears in drama —watchers of the BBC’s newest legal drama, Silk, will have noticed that she is still to handle a breach of contract case.

It’s the part of law that regular people have the most opinion about and that’s not always a good thing.

The Guardian today reports that a 12-year-old boy in the US is accused of the murder of his parents. The particular facts are typically nasty (two victims shot dead with two survivors: one stabbed and also shot and the other slashed) but the unusual question of law is how he should be tried: as an adult or a child.

He’s twelve. It really should be very easy to work this one out. The question is a bizarre legal fiction that I’ve never understood — it turns out you can define people, inherently counterfactually, as older than they actually are so that you can do things to them.

The problem (however it is presented) is the difference in sanction that the legal system gives to the two groups. Adult criminals get harsher penalties than child criminals and as a species we don’t particularly like to see criminals facing reduced penalties — you only have to look at the persistent calls for hanging to brought back to the UK to see that. Of course at this point in the process we don’t even know if he did it yet so it’s not appropriate to measure his cell anyway.

However there is no benefit in drawing a distinction between children and adults in the legal system if we get to choose to bend reality and choose which one they are. Prosecutorial discretion should not stretch that far. The reality is that the accused in this case is twelve years old. He’s a kid and there’s nothing we can do to change that.

What more is there to decide?

H/T: The Guardian