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Tuesday, August 12, 2003
Another out-there suggestion from the deep recesses of my brain: Most classical liberal political theory postulates that government is the result of a social contract between the governing and the governed. Hence, those who are not full members of this social contract, such as minors (denied full membership due to lack of suffrage), do not have all of the rights and responsibilities of a full member. So how do we justify trying minors as adults for certain crimes? Because they are not able to vote or emigrate, they cannot approve (either actively or tacitly) the social contract. They are given a jury, but this jury is explicitly not one of their peers--it is a jury of members of the social contract trying someone who is barred from participating in the social contract. That's got to be contrary to the spirit, if not the letter, of the Bill of Rights.* Now, I realize that to put a 16-year-old murderer/rapist behind bars for only five years is not adequate punishment or protection for the community at large. However, there are two ways in which the court system may be refined so as to more adequately give juvenile offenders a more just place in the social contract: 1. In all criminal cases involving a minor, at least one quarter of the jury must be made up of minors (of the same age or older than the defendant). 2. (The more controversial option) Whenever a minor is charged as an adult, the voting age in the state where the minor is tried will be automatically lowered to the age at which the prosecution claims the minor committed the crime. Of course, this option would sort of include option #1, as the voter ranks (from which juries are chosen) would now include "minors". (Of course, this option would never pass a state or federal legislature, because I have a feeling that many legislators are afraid of reprisals from the younger generation.) *I would suggest that this idea be tested by an appeal, à la Gideon v. Wainwright, to the Supreme Court
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