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BY Michael P. Orsi
Recently, a number of shocking crimes committed by children have so frightened the public that prosecutors have sought to try youthful offenders as adults.
Many people think that these exceptions to the rule are justified and necessary for society to defend itself. History, however, will attest that when human beings feel threatened, the traditional lines set by law to indicate caution, reason and due process give way to the injustice of mob rule. The turn-of-the-century lynchings of African-Americans in this country and the pseudo-justice of Nazi Germany stand as cases in point.
In the end, the denial of justice to some inevitably diminishes the rights, dignity and lives of all. Might the adult trials and sentencing in Florida of 12-year-old Lionel Tate, sentenced to life in prison for wrestling his 6-year-old playmate to death, and 13-year-old Nathan Brazille, who will serve 28 years for shooting his teacher — a term some criticized as “insultingly lenient” — presage a lowering of standards for western society's traditional concept of justice and punishment? I believe so. Here's why.
Most of our country's statutory law is derived from the English common law, which is based on precedent. Those who adjudicated these earlier cases were formed in Christian religious traditions that shaped their basic concepts of justice and punishment for wrongdoers. These judges' archetypal worldview was that the natural order of society was in need of correction due to the disruption and damage caused by a crime. The primary purpose of punishment, therefore, was always retribution — a biblical concept — which is justified when the offender deserves it, it is in proportion to the offense, and the perpetrator is morally culpable or responsible.
Culpability is vitally important to the discussion at hand since the judges recognized that minors usually do not have a requisite full understanding of the wrongness of their actions and/or consequences of those acts, thereby diminishing the magnitude of their crime and guilt. A child's limited ability to reflect on his actions and his limited free will thus lessen the punishment needed for correction of the individual and the reparation needed to reestablish the good order of society. Concomitant with this, good jurists have always prescribed the punishment of minors with rehabilitation in mind, believing that a productive life in the future was a real possibility for them.
For most, the awakening of concepts of right and wrong begins around age 7. Few, however, would deem a second-grader fully competent to commit a mortal sin for the same reasons as mentioned above. Legal authorities have usually recognized 14 to be the point where the law begins to question claims of incompetence, and only if proven competent would the person be treated as an adult offender.
Though age is somewhat arbitrary, society has and does set certain ages as guides for the common good. For example, it is a criminal act for a person over 18 to have a sexual relationship with a minor, laws regulate by age when a person is deemed mature enough to drive and the Social Security Administration sets specific ages for the disbursement of benefits. Imagine the harm, chaos and injustice that would ensue if these dates were arbitrary, depended on a case-by-case evaluation or were changed capriciously according to public whim or temperament.
At a time when the sacredness of life and the dignity of persons is so threatened by relativism and utility, is it wise to further muddy the waters by inflicting adult penalties and punishment on children who are at least questionably less responsible for their actions than adults? Or to inflict punishments on them that may cause even greater damage to their underdeveloped psyches and that diminish or end their chances of ever becoming morally upright and healthy citizens?
These are exactly the questions now being asked about Michigan's new laws that allow a child of virtually any age to be tried as an adult. The testimony of Christie Clore, an eighth grader just turned 14 — who was sentenced to one year in a Michigan women's prison for setting a fire to a home that left a mother and son homeless — deserves serious consideration.
Clore said that during her seven-month incarceration, her first cellmate was a sex offender and that a killer became her best friend. She said she learned about things she had never been exposed to before, cocaine and promiscuous sexual activity being two of them. How could such friendships and negative experiences be useful in the rehabilitation of a child? This type of punishment seems rather to contribute to their destruction. (See No. 2266 of the Catechism.)
The current trend of punishing children as adults reeks of vengeance and not retributive justice, which demands punishment that is proportionate to the guilt and encourages the reform of the offender with education as its primary aim. The cases mentioned earlier and others like them that are sure to come contradict both the teachings of the Church and the enduring practice of western jurisprudence.
For the childrens' sake and for the sake of a humane society, this frightening aberration must be resisted.
Father Michael P. Orsi is chaplain of, and a research fellow at, Ave Maria Law School in Ann Arbor, Michigan.