I’m pleased to introduce a new NDPR Forum, on Gideon Yaffe’s The Age of Culpability: Children and the Nature of Criminal Responsibility (OUP 2018), which was recently reviewed at NDPR by Doug Husak. As usual, the author of the reviewed book is invited to speak first in response to the review (or to speak about anything else the author is interested in discussing about the book), the reviewer is invited to reply, and there are other discussants who may chime in as well. But our readers are of course also invited to join in on the discussion. Feel free to comment on any aspect of the book, the review, or previous comments.
From the OUP blurb: “Why be lenient towards children who commit crimes? Reflection on the grounds for such leniency is the entry point into the development, in this book, of a theory of the nature of criminal responsibility and desert of punishment for crime. Gideon Yaffe argues that child criminals are owed lesser punishments than adults thanks not to their psychological, behavioural, or neural immaturity but, instead, because they are denied the vote. This conclusion is reached through accounts of the nature of criminal culpability, desert for wrongdoing, strength of legal reasons, and what it is to have a say over the law. The centrepiece of this discussion is the theory of criminal culpability. To be criminally culpable is for one’s criminal act to manifest a failure to grant sufficient weight to the legal reasons to refrain. The stronger the legal reasons, then, the greater the criminal culpability. Those who lack a say over the law, it is argued, have weaker legal reasons to refrain from crime than those who have a say. They are therefore reduced in criminal culpability and deserve lesser punishment for their crimes. Children are owed leniency, then, because of the political meaning of age rather than because of its psychological meaning. This position has implications for criminal justice policy, with respect to, among other things, the interrogation of children suspected of crimes and the enfranchisement of adult felons.”
From Husak’s review: “Like any good philosopher, Yaffe has produced a book with ideas that are exceedingly far-reaching. Along his journey, he discourses on developmental psychology, the nature of criminal culpability, the weight of reasons, the legal status of visitors and the indigent, the nature of desert, and a whole lot more. To be sure, Yaffe is careful to connect each of these broad topics to his central question of juvenile justice. But they are fascinating in their own right; to many of us, Yaffe’s positions on these matters may be the most interesting parts of his book — more interesting than their application to the narrow question he explicitly pursues. Yaffe himself probably concurs with this assessment. His not-so-secret ambition, he confesses, “is to forward theories of the nature of criminal culpability, of desert for wrongdoing, and of the kind of participation in the law that is required to support unmitigated liability for crime” (12). The issue of why kids (as he calls them, “juveniles”) should be given a break (that is, treated leniently) simply provides the occasion for raising these larger concerns. I found the application of Yaffe’s theoretical apparatus to his nominal question to be among the least persuasive parts of his book. As a result, I recommend it more strongly to those with a general expertise in criminal theory than to specialists in juvenile justice. The former in particular will be rewarded; this book contains a mountain of novel and important insights about several of the most central questions in the philosophy of criminal law. But I expect that specialists in the trenches of the juvenile justice system who wonder about why they dispense leniency are likely to remain uncertain about the rationale for what they do.
“Can Yaffe be right that all kids deserve a break (if indeed they do) because they have weaker reasons to refrain from committing crimes than adults? I am unconvinced; my greatest reservation with Yaffe’s analysis involves my disagreement about the relevance of legal reasons to moral judgments. Return to Simmons. How culpable is he relative to an adult for his awful murder? Assume that Yaffe is correct that the answer to this inquiry depends on the strength of Simmons’s reasons not to do what he did. An adult has a set of reasons of enormous strength for not killing. Presumably these reasons overwhelmingly outweigh any competing considerations when the murder lacks any conceivable justification but is motivated entirely by thrill-seeking. But Simmons, according to Yaffe, has less reason not to kill for the excitement of doing so. The sum total of his reasons not to kill are less weighty because his legal reasons not to kill are less strong — even though his moral reasons, Yaffe would agree, are just as powerful as those of an adult. When we ask why (that is, for what reasons) someone should not commit a murder, do the legal reasons against the act really add anything to the preexisting moral reasons? If not, why does a weaker legal reason in the case of Simons detract from the sum total of his overall reasons? I think both Simmons and an adult have equally weighty reasons not to murder. If kids deserve a break, it cannot be because the sum total of their reasons not to murder is less strong than those that apply to adults.”2