Criminal Culpability and the Political Meaning of Age

In The Age of Culpability, Gideon Yaffe argues that all minors who commit crimes should be treated more leniently by the criminal law than similarly situated adults. All “kids” deserve a break, he contends, because they are less culpable as a class than adults. They are less culpable because they less of a “say” over the content of the law, and they have less of a “say” because they are denied the right to vote. Yaffe attacks the belief that kids should get a break because they are psychologically different from adults in relevant ways, arguing that difference-based rationales for giving kids a break do not go far enough in justifying the result he seeks – lenient treatment by the criminal law for all kids, all the time. Yaffe proposes to replace the Difference Hypothesis with the affirmative argument that all kids deserve a break because all kids are denied the right to vote. This review essay raises questions about both Yaffe’s negative argument against what I call the “Difference Hypothesis”, and his affirmative argument that kids deserve leniency for their crimes because they lack voting rights. The review suggests that for purposes of deciding criminal policy, Yaffe’s affirmative proposal suffers from a number of potential weaknesses that call for further explanation, while the Difference Hypothesis has demonstrated a number of important strengths which Yaffe fails to consider.