KIDS GONE WRONG

On Monday, speaking at the annual Canadian Bar Association conference
in St. John's, federal Justice Minister Vic Toews proposed lowering
the minimum age of criminal responsibility in Canadian law from 12 to
10. Almost instantly, the suggestion was used to impute a certain
kind of caricatured conservative viciousness to the Minister. You
could practically hear the muttering at all this weekend's best
parties: "Typical wild-West Tory -- he wants to imprison
11-year-olds. How long before we're executing retarded teenagers?"

In fact, as Toews made clear in a follow-up letter to newspapers
yesterday, he was motivated by the liberal tendency to regard the
state as a substitute parent, not by the conservative instinct to
punish. "Young people who engage in criminal behaviour before the age
of 12 ... do not need incarceration, nor have I suggested they do,"
said the Minister. "In some cases, young people have had extensive
police and social service interaction before age 12 ... To prevent
them from falling through the cracks, we need to discuss whether the
courts should have some legal recourse to intervene in a positive fashion."

Under English common law, a child was deemed doli incapax --
incapable of forming the intent to perpetrate a crime -- below the
age of seven. (Arbitrary limits of this kind can be found in legal
codes dating from before the Norman Conquest.) Anyone older was fair
game: The Old Bailey ordered the hanging of an eight-year-old child
as late as 1814. The progressive spirit of Victorianism --
personified in Canada by the great Liberal editor George Brown --
sought improved conditions for delinquent children, first separating
them from the adult prison population and then gradually accepting
the need for a parallel system of youth justice. In 1984, the Young
Offenders Act moved the line of absolute criminal incapacity from
seven upward to 12 -- an uncontroversial move, at the time, embedded
in an otherwise unpopular new law.

Toews might be accused of seeking a quarrel on the furthest margins
of plausibility. But when the criminal culpability of young people
suddenly does become an issue, it's hard to discuss the issue with a
cool head. On February 12, 1993, at a shopping mall in a Liverpool
suburb, two ten-year-old boys enticed James Bulger, aged two, away
from his mother. They took him on a four-kilometre ramble through
Merseyside; reaching a railyard, they battered him to death with iron
and stones and left him on the tracks. Both came from violent, broken
homes well known to the police, and had done things an older child
might have been arrested for. Would Vic Toews be willing to
second-guess British justice now and state that these under-12
youngsters did not "need incarceration"? How about Liberal justice
critic Sue Barnes, who (in a Tuesday press release that stung the
mind with its dishonesty) vilified Toews for wanting to "lock up 10-year-olds"?

England has never quite recovered its equilibrium; it remains prone
to outlandish child-safety panics and vigilantism, and the killers --
freed in 2002 and now grown -- must still be protected by a ban on
the publication of their whereabouts. At the time, English
prosecutors seeking to convict a child between 10 and 14 had to
overcome a strong legal presumption of incapability. The mass rage
incited by the Bulger slaying helped bring Tony Blair to power
(thanks to an elegant speech about Britain's "sleeping conscience"),
and among his first acts was a Toews-like move to bring children 10
and up within the insuperable grasp of criminal justice. "The
Government believes," read a White Paper issued at the time, that
"presuming that children of this age generally do not know the
difference between naughtiness and serious wrongdoing ... is contrary
to common sense."

There is only paltry evidence that Blair's legislative changes have
done anything to cut youth crime. A Home Office study published in
June shows that reoffending among U.K. youths is down slightly (1.4%)
since 2000, but most of the improvement is attributable to improved
socio-economic conditions, not the law. Nonetheless, the White
Paper's argument for hauling 10-year-olds in front of a judge has
been echoed in other Commonwealth countries.

But we meet here with an insoluble conundrum. Modern children are
undoubtedly better informed than those of the past, but it's not
clear that they are better educated. Does our overpoweringly rich
media environment reinforce public norms of morality, or erode them?
Should today's 10-year-old be held more responsible because of his
sophistication, or less so because ubiquitous electronic depictions
of violence have softened his brain? Answering such questions --
which hopefully we will never have to do under English circumstances
- -- is no mere matter of applying good intentions.