SAN FRANCISCO — The decision of a California prosecutor to file charges against a six-year-old child for the attempted murder of a month-old infant has stirred a growing controversy over the future course of juvenile justice.
Violent youth crimes are, unfortunately, no longer a novelty. Youth violence, particularly associated with the growth of gangs, is propelling moves on both the federal and state levels to make it easier to try juveniles as adults. In Denver, for instance, prosecutors yesterday were expected to bring charges against a 10-year-old boy in a case similar to that in California.
What has brought national attention to the case of the Richmond, Calif., boy is his age and the decision to treat his alleged act as a criminal rather than a social problem.
The child is believed to be the youngest in the country ever charged with such a crime. Critics contend that this flies in the face of a long history of legal practice that treats children under the age of 7 as incapable of being held criminally responsible for their antisocial behavior.
"This throws out at least 100 years of social-science research, and certainly a thousand years of English common law," says Dan Macallair, an expert at the Center for Juvenile and Criminal Justice in San Francisco.
Some worry that advocates of a tougher stance toward juvenile crime will play upon public emotions over the horrific nature of the act to push their political agenda. Forty-one separate pieces of legislation are before the California Legislature alone, many of them aimed at increasing the jurisdiction of adult courts over juveniles. On May 13, President Clinton presented his own agenda for tougher prosecution of juvenile crime.
"Juvenile crime is a hot political issue now," says Patty Lee, a specialist in juvenile crime at the San Francisco Public Defenders office. She blames the heated atmosphere for the unprecedented decision to charge such a young child.
Defenders of the move argue that such legal action is the only way both to help the boy and to protect society.
"This is the way we can get jurisdiction over that child," says Deborah Spagnoli, chief counsel of the California state Assembly's subcommittee on juvenile justice.
"If it's true that this kid did commit a very serious, violent crime, there is a public-safety issue involved," says Edward Humes, author of an acclaimed new book on the juvenile-justice system. "I think the district attorney was acting responsibly."
What complicates this is a lack of clear legal principles for such cases. English common law treated children under seven years of age as unable to form criminal intent, and it allowed judges to make individual exceptions to such a treatment in the cases of children up to the age of 13. California law, which is similar to the practice followed in most American states, does not treat children younger than 14 as capable of committing crimes unless there is clear proof that the child knew the difference between right and wrong at the time of the incident and understood the consequences of the wrongful act.
But the law does not set any lower age limit, nor does it make entirely clear how to evaluate the intent of such a young child. "There's no literature on it," says clinical psychiatrist Doug Korpi, who is frequently called upon for expert testimony in court cases. "Nobody knows what to do when you have a six-year-old."
Contra Costa County Deputy District Attorney Harold Jewett strongly contends that the child in question clearly understood the difference between right and wrong. "I do not accept that a six-year-old didn't know that it's wrong to beat a baby and that a six-year-old does not have the impulse control to refrain from beating a baby," he says.
Mr. Jewett acknowledges that there is a question in his own mind as to whether a child this young could have a meaningful understanding of death sufficient to form the intent to commit murder. He indicates that following a psychiatric evaluation now under way, the charge might be reduced to one of felonious assault.
Face the consequences
Jewett defends the decision to take the case to juvenile court rather than treat it as a mental-health or social-services problem on the grounds that the boy should be compelled to face the consequences of his act. While he accepts that there is an age at which a child could not be held responsible, the prosecutor argues that in today's world "children tend to grow up faster."
But this view is rejected by many developmental psychologists, who cite considerable scientific research showing that such a young child does not have the cognitive capacity to make such moral judgments.
"A child under 7 can tell you right from wrong, but they can't make a decision about that in a particular situation of conflict," says Ronnie Blakeney, a clinical psychologist who, with her husband, Charles Blakeney, runs a treatment program in Berkeley, Calif., for juvenile girls.
Children derive their notions of right and wrong from authority figures, says Dr. Blakeney, who is frequently called on by area courts to conduct evaluations of children. But this notion can change depending on the context the child is in. "Kids can believe the right thing to do is lie, because they don't get punished if they lie," she explains.
Nor does the development stage of a child this age allow him to understand responsibility in the legal sense, Blakeney says. Simply taking a child away from his or her parent would be understood as punishment, she says.
Blakeney favors dealing with such a child as a mental-health case rather than in a court setting. A report in the San Francisco Chronicle compared the treatment of the Richmond boy to a case 25 years ago when two San Francisco brothers, aged 7 and 10, confessed to the brutal murder of a 20-month-old. In that 1971 case, the children were not charged with a crime but were placed in foster care and given intense therapy. Their identities were carefully protected, to this day.
"Children have always been involved in committing heinous crimes," says Blakeney. "What has changed is the way we approach it. Increasingly, we see it as a legal problem."