Immaturity, Normative Competence, and Juvenile Transfer: How (Not) to Punish Minors for Major Crimes
This essay critically examines the national trend to get tough on juvenile crime by making it easier to transfer juvenile offenders to adult criminal court. It assesses this trend in light of different rationales for punishment, arguing that immaturity provides retributive, deterrent, and corrective reasons to punish juvenile crime differently than otherwise similar adult crime. Insofar as retributive concepts determine whom to punish and how much to punish, it is especially important that immaturity involves diminished normative competence and, hence, diminished responsibility. In defending a traditional approach to juvenile criminal justice against the reforms embodied in the transfer trend, the essay critically considers an alternative proposal that abolishes the juvenile court and requires a unitary system of criminal justice but treats immaturity as a mitigating factor at sentencing. Though it appears to be a more radical reform, this proposal accepts the traditional idea, rejected in the transfer trend, that immaturity implies differential desert and punishment. Despite the appeal of this non-traditional proposal for accommodating immaturity, it is rejected for sacrificing the demands of individualized justice.
Criminal Law | Criminal Procedure | Jurisprudence | Juvenile Law
Date of this Version
David O. Brink, "Immaturity, Normative Competence, and Juvenile Transfer: How (Not) to Punish Minors for Major Crimes" (January 20, 2004). bepress Legal Series. bepress Legal Series.Working Paper 120.