Excuse: Infancy

views updated


The infancy defense, which dates back to the common law and is still recognized in some form or another in the vast majority of jurisdictions, bars the prosecution of children below a specified age (age seven at common law) and presumptively precludes prosecution of older minors (ages seven to fourteen at common law) in the adult criminal justice system (although, under modern statutes, children in the latter group are still eligible for prosecution in juvenile delinquency proceedings).

Origin and rationale

At common law, children below the age of seven were deemed doli incapax irrebuttably presumed to be incapable of forming criminal intent and therefore immune from prosecution for a crime. Children between the ages of seven and fourteen were presumptively doli incapax but that presumption could be rebutted by "very strong and pregnant evidence" by the state that the child had the "discretion to judge between good and evil" and "understood what he did" (Hale, pp. 2627). According to William Blackstone, the infancy defense reflected both a judgment about the impropriety of exacting punishment upon those who were not responsible for their actions and the practical consideration that categorically immunizing all children from prosecution could "propagat[e] a notion that children might commit . . . atrocious crimes with impunity" (pp. 2224). The infancy defense was carried over into the criminal law of the United States along with other traditional concepts of English law, and it shaped the course of early prosecutions of children. Several states codified the doctrine in their penal codes.

The chronological distinctions drawn by the infancy defense comport (albeit, not neatly) with classic social scientific theories about child development and maturation, particularly the works of Anna Freud and Erik Erikson on children's mental functioning and the works of Jean Piaget and Lawrence Kohlberg on children's moral growth. Current psychological research on children's maturity and mental capacity supports the view that "decision-making capacities increase through childhood into adolescence and that, although there is great variability among individuals, preadolescents and younger teens differ substantially from adults in their abilities" (Scott and Grisso, pp. 137, 157).

Modern status

The infancy defense has been largely superseded by the establishment of a dual adult/juvenile justice system in which (1) the juvenile court has jurisdiction over prosecutions of children below a certain age (usually set at ages sixteen, seventeen, or eighteen), although typically "waiver" or "transfer" statutes provide for adult criminal prosecution of children at the upper end of the juvenile court's age bracket if they are charged with enumerated serious crimes; and (2) in some states, a juvenile court statute or case law categorically bars the prosecution of very young children (usually following the common law in designating the age at seven, although some states set the minimum age at ten). Adult penal code statutes in some states explicitly refer to the infancy defense in denominating children who fall within the juvenile court's jurisdiction as ineligible for adult court prosecution unless the state shows at a waiver or transfer hearing that the child should be deemed criminally responsible for his or her acts. (See, e.g., N.Y. Penal Code § 30.00. See also Model Penal Code § 4.10 (Official Draft 1985), "Immaturity Excluding Criminal Conviction; Transfer of Proceedings to Juvenile Court.")

In essence, the foregoing structure tracks the original contours of the infancy defense by immunizing very young children from prosecution and by treating most older minors as presumptively ineligible for adult criminal prosecution. What this approach leaves uncertain, however, is what, if any, role the infancy defense should play in juvenile delinquency cases. Most of the state courts that have addressed the issue have declared that the infancy defense is inapplicable to juvenile court prosecutions because it was intended to guard children from the harshness of the adult penal system and therefore has no relevance to a rehabilitation-oriented juvenile court system. (See, e.g., Gammons v. Berlat, 144 Ariz. 148, 696 P.2d 700 (Ariz. 1985); In re Tyvonne, 211 Conn. 151, 558 A.2d 661 (Conn. 1989); In the Interest of G.T., 409 Pa. Super. 15, 597 A.2d 638 (Pa. 1990).) Some courts, however, have relied upon the common law doctrine to construe the applicable statutes as prohibiting prosecution of young children who lack the capacity to appreciate the wrongfulness of their actions or to form the mental element of the charged offense. (See In re William A., 393 Md. 690, 698699, 548 A.2d 130, 134 (1988), infancy defense is "a firmly established principle of common law" and therefore juvenile code's silence on subject must be construed as signifying legislative intent that defense remain in effect. See also In the Matter of Robert M., 110 Misc.2d 113, 116, 441 N.Y.S.2d 860, 863 (N.Y. Fam. Ct. 1981) (although finding traditional infancy defense to be inapplicable to delinquency cases, court relies on common law and social scientific literature to construe juvenile code as prohibiting conviction of those children whose "immaturity . . . negatives the requisite specific intent" to commit charged crime).)

The infancy defense and concepts akin to it are likely to play an increasingly important role in both adult and juvenile court in the coming years. In the 1980s and 1990s, due at least in part to high-profile cases of youth violence and politicians' calls for aggressive responses, there have been significant increases in the number of children transferred to adult court for prosecution and there appear to be increases in the number of juvenile court prosecutions of very young children. At the same time, emerging psychological data are raising significant questions about the capacity of even older adolescents to make competent waivers of rights and other judgments expected of criminal defendants. As a result, there may be greater attention paid to existing infancy defense statutes that apply to adult criminal prosecutions and further litigation on the applicability of the defense to juvenile court. Moreover, a social scientist has suggested that the data available thus far calls for the adoption of a new standard of "adjudicative competence," which would prohibit adult court prosecutions of adolescents who are less capable than adults to understand the nature of the proceedings and to participate meaningfully in their own defense (see Grisso and Schwartz, forthcoming).

Although the infancy defense is framed in a way that makes it relevant solely at the guilt-innocence stage of a criminal trial, the doctrine's underlying rationale also supports the treatment of the young age of the offender as a factor that should mitigate punishment. Indeed, this reasoning is necessarily implicit in the case law deeming the defense to be inapplicable to a juvenile court system that is designed to rehabilitate, not punish, offenders. The criminal justice system has, in various ways, recognized that youth is relevant to mitigation of punishment (e.g., in death penalty statutes and sentencing guidelines that treat youth as a mitigating factor and in judges' sentencing decisions in individual cases) but the legislatures and courts thus far have not adopted a categorical approach to the subject of youth at sentencing. Indeed, the Supreme Court has held that the Eighth Amendment's cruel and unusual punishment clause does not bar execution of children who were at least sixteen at the time of the crime (Stanford v. Kentucky, 492 U.S. 361 (1989)) even though several states' statutes and international conventions prohibit the execution of individuals who were under the age of eighteen at the time of the crime.

Randy Hertz

See also Age and Crime; Excuse: Theory; Juvenile Justice: History and Philosophy; Juvenile Justice: Juvenile Court; Juveniles in the Adult System.


Bazelon, Lara. "Note. Exploding the Superpredator Myth: Why Infancy is the Pre-Adolescent's Best Defense in Juvenile Court." New York University Law Review 75 (April 2000).

Blackstone, William. Commentaries on the Law of England. Philadelphia: Robert H. Small, 1825.

Grisso, Thomas, and Schwartz, Robert G., eds. Youth on Trial: A Developmental Perspective on Juvenile Justice. Chicago: University of Chicago, 2000.

Hale, Matthew. The History of the Pleas of the Crown. Dublin: E. Lynch, 1860.

Scott, Elizabeth S., and Grisso, Thomas. "The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform." Journal of Criminal Law and Criminology 88, no. 1 (1997): 137189.

Walkover, Andrew. "The Infancy Defense in the New Juvenile Court." UCLA Law Review 31, no. 3 (1984): 503562.