Towards a Principled Legal Response to Children Who Kill

Abstract

This article surveys common-law jurisdictions, finding that the typical response to a homicide charge against a child is prosecution and sentencing in the adult jurisdiction. Reforms, such as alterations to trial procedure, and lower sentencing starting points have focussed on mitigating the excesses of adult trial and sentence. A principled approach requires a different lens. Practical strands of an age-appropriate response include custody as a last resort and only where there is a risk to public safety, an automatic prohibition on publication of identifying biographical details, and a child-specific jurisdiction. The prevailing societal interest is in reintegration.

Beyond the Life Sentence – A Children’s Rights Lens on Sentencing for Murder

“…This article centres children's rights and human rights as its theoretical framework. This article scaffolds on previous work (Lynch, 2018a). It extends the comparative analysis of penal responses to children who commit murder, and further elucidates what a children's rights-compliant response to serious offending by children should involve (Lynch 2018b(Lynch , 2018cLynch and Liefaard, 2020).…”

“…Tables 1 and 2 (derived from Lynch, 2018a) which follow give a simplified overview of common law systems' approach to the sentencing of young offenders for murder.…”

What is Left in the “Too Hard Basket”? Developments and Challenges for the Rights of Children in Conflict with the Law

“…Cognitive difficulties may arise from traumatic brain injury, abuse and neglect, neuro-disabilities such as autism, adhd, foetal alcohol spectrum disorders, intellectual disability and mental illness. Children with these difficulties are highly over-represented in the criminal justice system, particularly in the custodial population (Hughes, 2012;Lynch, 2016). While all children may struggle with comprehension of complex legal processes simply as a result of their stage of development, children with cognitive difficulties face further barriers in the vindication of their rights to effective and meaningful participation in particular, and also recognition of their conditions as a mitigating factor in sentencing.…”

Juvenile Justice

“…154 A nuanced, evidence-based, children's rights-based construct of children in conflict with the law can be seriously challenged by the politicized nature of the debate around juvenile justice and the continuous pressure to address children's accountability when they commit a criminal offense, particularly when this offense is a serious one. Although one has to acknowledge that children do commit serious offenses, 155 which may justify and even call for an intervention to protect public interests and/or interests of victims, the reality of stigmatization and controversy high lights a serious challenge for the implementation of children's rights and therefore re quires states' full attention. 156 For example, it has implications for sentencing policies and practices and can explain the use of harsh sentences resulting in institutionalization of children for long periods of time.…”