England and Wales have Europe’s youngest criminals. Fifty years ago, the age of criminal responsibility was set at 10 years old – and it hasn’t been changed since.

If anything, public support for a low minimum age of criminal responsibility (MACR) became more entrenched after the killing of two-year-old James Bulger in 1993. The two 10-year-old killers were tried as adults, and the case was used as justification for punitive legislation, causing record numbers of young people to be criminalized [See also: East and West – signs of hope in the wake of atrocities].

Perhaps because the low MACR is politically expedient, it has remained in place for half a century despite advances in the understanding of young people’s capacity to understand their unlawful behavior or participate in the youth justice system. Recent government reports on reforming youth justice do not challenge the current MACR.

Is it time for a rethink?

High time, suggests a clinical psychologist with the UK’s National Society for the Prevention of Cruelty to Children (NSPCC). Elly Farmer, writing in a special issue of the Journal of Children’s Services, makes a case for raising the minimum age of criminal responsibility (MACR) to at least 12 years, based on evidence from developmental science.

Farmer explains the developmental science behind three important questions: “How culpable are young people for the unlawful behaviour they engage in; how competent are they to participate in the YJS [Youth Justice System] as individuals alleged of a crime; and what is the impact of involving them in the criminal justice system?”

Culpability: the blameworthiness of young people for their actions
First is the question of culpability – the degree to which people are fully responsible for their criminal behavior.

Farmer reviews the way the brain develops over the years from 10-14 that affect the way young people are able to make decisions, plan ahead, and understand the consequences of their actions. The prefrontal cortex in the front of the brain, which controls these capacities, matures very gradually over adolescence and is only nearly finished by 18 years of age.

During the same years, the brain systems linked to social and emotional understanding become more reactive, creating a potent mix of increased impulsivity, sensation-seeking and risk-taking. Furthermore, early adolescents have diminished ability to recognize emotions, and they are exceptionally vulnerable to peer influence.

Farmer points out: “All of this does not mean that young people bear no responsibility for their behaviour, but rather that they may be less responsible.”

Competence: the ability of young people to take part in the criminal justice system
Second is the question of competence – how well people can understand court processes, the purpose of interviews, and the significance of answers given.

Young people’s competency is threatened by their greater suggestibility and compliance. That is, young people are more likely to change their minds as a result of suggestion from others, or to go along with others’ instructions even if they don’t agree with them. Suggestibility and compliance increase the chance that young people will accept plea offers in police interrogations or make false confessions.

One study found that while 75% of 11-13 year olds accepted plea offers and over half gave full confessions of their crimes, only half of slightly older teens chose to accept pleas and 15% chose full confessions – showing that “decision-making biased by compliance was substantially influenced by age.”

The consequences of criminalizing young offenders
Finally, what is the impact of involving children in the criminal justice system?

The impact of the criminal justice system on children exacerbates their existing vulnerabilities, Farmer finds. The traumatizing effects of the trial process and imprisonment, combined with a lack of adequate education and care while in the system, lead to more mental health problems and hinder brain development.

Furthermore, contact with the youth justice system of even the most minimal kind, such as being charged with an offence, increases rather than reduces re-offending [See also: Juvenile Justice: what works and what doesnʼt]. Once labeled as a criminal, children who are still working out their personal identities often come to identify as criminals and act as criminals. In short, criminalizing children may actually harm public safety more than it helps.

Human rights
In conclusion, Farmer says, what we know about children’s development means that their participation in the criminal justice system runs counter to their human rights. A fair trial, for example, is not possible for young offenders who are not competent to navigate the criminal justice system.

The evidence of the last 50 years shows that children have reduced culpability and competence, and that criminalizing children is ineffective in preventing crime and reoffending. The evidence also shows that criminalizing children discriminates against the most vulnerable. However, the minimum age of criminal responsibility remains at 10 years old, just as it was set in 1963.

Farmer calls for a rise in the MACR to “a minimum age of 12 years, although somewhere in the 14-16 age range is most desirable.” As she suggests, increasing the MACR to 12 could be a “conservative” first step in bringing public policy into line with developmental science and human rights.

Tomorrow’s Prevention Action story will look further into why those young people who come into contact with criminal justice system are also least competent to deal with it.

References:
Farmer, E. (2011). The age of criminal responsibility: developmental science and human rights perspectives. Journal of Children’s Services: Special edition on youth justice 6(2), 86-95.

Smith D. (ed) (2010). A New Response to Youth Crime. Cullompton: Willan