The Toddler Problem

One of the refrains from the racist right comes in the form of arguments to end the DACA program and deport all alien born persons who were brought to the US as children, because their mere presence in the country is a violation of the law.   As the late, great, Keith Jackson intoned: “Whoa Nelly.”

As those who have even the most passing knowledge of the DACA program are aware, DACA recipients must be employed or in school, must not have committed any crimes, and must register… but what of those who were brought to this country as very young children.

A person who’s served on jury duty know that there are elements to a crime, the act must be criminal, and the person must be capable of forming the requisite intent. The fancy terms are actus reus (the criminal act) and the mens rea (criminal intent).  So who can form the requisite intent — not a toddler.

This isn’t a new idea, it goes back to English Common Law:

“At common law, children were generally regarded as incapable of committing crimes. However, different presumptions have generally been applied, depending upon the age of the child. Generally, it is conclusively presumed that a child under the age of seven is unable to form a criminal mens rea and, therefore, a child that young cannot be convicted of a crime.”

Federal statutes state that the age for “criminal responsibility” is eleven years of age.  Most states don’t directly address the age issue:

“The minimum age of criminal liability is set at the federal and state level in the United States. At the state level, 33 states set no minimum age of criminal responsibility, theoretically allowing a child to be sentenced to criminal penalties at any age [Cipriani,D. Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective, Ashgate 2009, p. 221 and 222], though in most of these states a capacity related test is applied.

Of the States that do set a minimum age of criminal responsibility, North Carolina has the lowest at seven years, while Wisconsin has the highest at ten years. [For full references of state laws see Cipriani D., Children’s rights and the minimum age of criminal responsibility..”

While Nevada does allow the transfer of cases from juvenile to adult courts, there are tests applied to determine the capacity of the individual to form the intent, and a six year old doesn’t meet the test.  Nevada assumes the jurisdiction of a juvenile court except in certain circumstances in which a person who was sixteen or older during the commission of a crime may be transferred to an adult court. [NRS]

Thus, it’s really difficult to find any rationale for the deportation of individuals who were six or under at the time they accompanied their parents into this country, especially in terms of the buzz phrase “law and order.”

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