Can Malice Supply the Want of Years?
August 27, 2011 by Brian O. Brown
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Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.
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