Abstract
Don Cipriani’s book surveys current policies surrounding the minimum age of criminal responsibility (MACR, the youngest age at which a child can be held responsible for violating criminal law) worldwide and ‘how MACRs – as one small but important piece of a larger puzzle – can best be integrated with and reinforce children’s rights’. This is an important task – one that has not been undertaken to date – which Cipriani handles skillfully.
Cipriani begins by providing a basic definition of rights, including the key distinction between protection (claims that others owe a duty to protect the interests of the rights holder) and liberty rights (an individual’s right to act freely within limits), and of childhood as a culturally and historically constructed stage of life. He then succinctly outlines the history of juvenile justice and how it has shifted from a ‘welfare approach’ focused on the supposed needs of children without the requirement that courts determine culpability, to a ‘justice approach’ which relies on notions of children’s culpability and criminal responsibility. In the welfare approach, children are presumed to need protection, so the state is given wide discretion to intervene in their lives. In practice this allows for punitive responses toward children while denying them the ability to contest the intervention. Since the mid-1900s, this approach has eroded and been replaced by a justice approach in which children can only be subject to criminal sanctions if they can be held responsible for their actions, in which case they are entitled to due process. Here the MACR is a key concept: children below it are presumed to be incapable of thinking rationally and choosing freely and thus cannot be held responsible for crimes, while those above it can be held responsible and punished criminally.
After discussing this background, Cipriani turns to the growth of international law surrounding children’s rights and how the MACR attempts to resolve tensions inherent in the welfare and justice approaches. Under current international law, below the MACR the ‘best interests of the child’, presumed to be best met by parents and communities, should guide state intervention which must be non-punitive with strict limits on depriving children of their liberty. Children older than the MACR are still to be dealt with in a way that protects their interests, but they are also entitled to due process, including the right to participate in proceedings against them. The MACR alone is not enough to protect children’s rights, according to Cipriani. Instead, a larger vision that takes into account their evolving capacities is necessary. The concept of ‘evolving capacities’ is complex and includes: (1) the notion that adults are responsible for helping children to develop their capacities to participate and become responsible for their actions; (2) that children should be allowed to take greater responsibility for their actions and move gradually from being protected to having greater liberty rights as their capacities increase; and (3) the idea that children should be protected from having to accept responsibilities they are not ready for.
Within this framework, state responses to children who break the law should balance protection and liberty rights which are to be seen as lying along a continuum. In other words, as children develop, protection rights slowly recede and liberty rights increase. In this context, the MACR is meant to protect children from having to take responsibility before they are ready, but it is not the only consideration. In addition, to take one example, all children who break the law, no matter their age, are entitled to a response that helps them develop the capacity to understand consequences and take responsibility for their actions.
Chapter 4 moves to the history of international law surrounding MACRs and the foundations of this concept in the world’s legal traditions. Chapter 5 provides information about current MACR policies in every country, pointing out that information about how these policies operate in practice is often hard to come by. After examining the available evidence, Cipriani finds that most countries do not have MACR policies in line with the international standards described in Chapter 3. Among other problems, many countries have MACRs below the age of 12 (which is seen as an appropriate age by many); some do not have, in practice or as a matter of law, MACRs at all; and children below the MACR can be and are punished criminally. A discussion of important trends in setting MACRs around the world follows – most interestingly, the pressure to lower MACRs in the wake of sensationalized violent crimes committed by children. Chapter 6 outlines challenges to implementing MACRs including situations in which children younger than the MACR who break the law are not dealt with at all, missing the opportunity to prevent delinquency later in life; and situations in which the MACR is ignored altogether.
Cipriani concludes that simply focusing on setting an MACR at an appropriate age, which is often the major point of public debate, is not enough to ensure that children’s rights are respected and their capacities nurtured. Although most countries do have an MACR, this does not, in practice, always protect young children from criminal punishment and responses toward children who break the law do not always respect and nurture their evolving capacities.
Cipriani’s book provides a useful overview of an important point of debate about international children’s rights law that remains focused on the larger goal of protecting children’s rights. The global focus is admirable, and he does an excellent job of synthesizing a great deal of information and presenting the larger children’s rights history and context succinctly and clearly. It would have been useful, however, to also include critiques of international rights discourse and possible alternatives to this framework. Overall, Cipriani provides an important framework for understanding and evaluating efforts to protect the rights of children as currently defined in international law. It remains for other scholars to investigate and analyze, in specific regional, national and local contexts, how children who break the law are treated in practice.