In this Note, Lara Bazelon advocates the implementation of a reformulated infancy defense by juvenile courts. The defense would create a protective presumption for juveniles ages seven to eleven who are charged with serious offenses. This presumption would require the state to prove that the charged juvenile had both the capacity to possess and was in possession of the charged crime’s requisite mens rea. The defense would grant similar protection to juveniles over the age of eleven who could demonstrate lack of capacity sufficient to justify such a presumption. In defense of her proposition, Bazelon describes the development of the infancy defense and critiques the primary justifications behind its erosion, including the Rehabilitation Theory, the Procedural Policing Theory, and the Demarcation Theory. She analyzes the ongoing trend towards treating juveniles as “miniature adults,” the emphasis on punishment over rehabilitation in juvenile courts, and the psychological underdevelopment of juveniles as it relates to criminal behavior. Bazelon concludes by proposing a model statute that recognizes and attempts to account for the unique mental state of juveniles who commit serious offenses.
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