Reforming Maryland’s Infancy Doctrine

-- By AbbePetuchowski - 18 May 2021

It doesn’t take a psychologist to recognize that children think and behave differently than adults. If a toddler hits someone while angry, it is viewed more sympathetically than if a middle-aged man engaged in the same action. The infancy defense is an early common law doctrine, now codified by several states, that generally establishes a conclusive presumption against criminal capacity for children under seven and a rebuttable presumption for youth between the ages of seven and fourteen. LaFave? & Scott, Criminal Law. While variations of this doctrine differ by state, this essay will specifically examine Maryland’s approach and its conformity with theories of childhood development.

Maryland’s Test for Capacity

As stated in In re Devon T., to rebut the presumption of incapacity, prosecution must produce evidence showing, beyond a reasonable doubt, that “the individual knew what he was doing and that it was wrong.” 85 Md. App. 674, 692. A.2d 1287 (1991). Furthermore, although the prosecution carries this burden, the standard of proof is sliding and the quantity of evidence required lessens as the defendant’s age increases. Id. at 694. Lastly, the court can infer cognitive capacity to differentiate right from wrong through circumstantial evidence of the criminal or his delinquent act itself. Id.

Applying Child Development Theories

Chronological age

While psychological theories vary regarding the causes and stages of moral development, there is a general consensus on the transitional nature of adolescence. Yet, although there is an overall pervasiveness of developmental change during this time period, psychologists note the enormous differences likely to be present between two individual adolescents and the inaccuracy of drawing generalizations about maturity based on chronological age. Steinberg and Cauffman. Moreover, environmental factors can also impact an individual’s moral development, causing further variation between peers of the same age. Womack. Therefore, Maryland’s use of a rebuttable presumption, rather than a bright-line standard for age, aligns with findings showing the ineffectiveness of measuring development by age alone. Furthermore, by establishing a threshold, the doctrine necessitates an initial individualized inquiry. For charges designed to minimize jury or judge discretion, such as felony murder or those with mandatory minimum sentences, this required fact-intensive analysis likely serves as a significant protection for youth.

Cognitive capacity

Piaget, and later Kohlberg, outlined stages of moral development marked by changes in a child’s cognitive capacity. Piaget’s work framed cognitive growth with relation to one’s ability to understand rules. With regards to moral judgments, he theorized that children move from viewing morality in terms of one’s adherence to fixed rules to developing a more nuanced understanding of mutually-formed rules promoting fairness. On the other hand, Kohlberg’s stages examined a child’s thought process in determining whether a behavior was right or wrong. In his theory, a child’s development begins with an awareness of externally-imposed rules and concepts of morality are based in self-interest, where an action is right if she can avoid punishment and wrong if she cannot. As her development progresses, she builds an understanding of morality grounded in her relationships with others, and eventually, in abstract values. While the text of Maryland’s capability test appears to coincide with cognitive stages of moral development, it presents shortcomings when examined in conjunction with its application. Dismissing the need for evidentiary evidence from psychologists, parents, or teachers, the In re Devon T. court inferred capability based on circumstantial evidence alone, including the defendant’s use of his grandma’s house to hide his activities. 85 Md. App. at 698-700. Yet, the court’s declaration that “children who are unaware that what they are doing is wrong have no need to hide out or conceal their activities” seemingly satisfies only initial stages of moral development marked by an awareness of externally-fixed rules that must not be violated. Id. at 700. Although the court also inferred cognitive capacity from the nature of selling drugs itself, its use of terminology, such as “street wise young delinquents” notedly demonstrates the impact of bias on interpretation. Id. Without the requirement of additional evidence, it is unclear whether the defendant has matured to subsequent development stages, leaving concerning implications. Under Piaget’s theory, a child’s guilt at this initial stage is determined by the extent of his rule violation, rather than by his intent, thus providing inadequate insight into his criminal capacity.

Proposed Reforms

While aspects of Maryland’s capacity test depart from developmental theories, the doctrine’s rebuttable presumption serves as a structural protection for youth defendants. With this in mind, there are two reforms that would better align this doctrine with development theories. First, in accordance with research dismissing the relevance of chronological age and the practical difficulty of requiring a jury to apply statistical probability to its capacity analysis, the sliding standard of proof should be removed.

Second, Maryland should consider adopting a definition of capability that is similar to the Model Penal Code’s test for legal insanity. MPC §4.01. Specifically, the wording could hold that a youth is not capable of forming criminal intent if she lacks substantial capacity to either appreciate the wrongfulness of her conduct or conform her conduct to the law’s requirements. By using “appreciate,” rather than “know” the prosecution would have an increased evidentiary burden that more closely aligns with later stages of moral development. Moreover, this new definition includes a volitional element, conforming to research showing that adolescents’ brains differ from adult brains biologically. This has an effect on behavior and decision-making, as adolescents are more likely to act impulsively and dangerously, while less likely consider the consequences of their actions.

Lastly, for cases involving youth defendants, the inclusion of testimony and other evidence from psychologists, family members, and teachers will likely bring salient insight into the individualized nature of a defendant’s criminal capacity, offering an alternative to ill-fitting binary tests, overbroad generalizations, and harmful biases. Moreover, the stakes are high, Steinberg and Cauffman warn. Since adolescence is a formative period marked by malleability, a poorly-decided case can have especially devastating consequences.

This was the right revision, well executed. You are now saying what you want to say, clearly, without overselling.

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