STATE OF FLORIDAFOURTH DISTRICT COURT OF APPEALCase No. 4D01-1306STATE OF FLORIDA,Appelleev.LIONEL TATE,AppellantReview of a Decision of the Circuit Court of the SeventeenthJudicial Circuit in and for Broward County,Case Number 99-14401CF10A, Honorable Joel T. Lazarus PresidingBrief of Center on Children & the Law; Center on Juvenile &Criminal Justice; Children & Family Justice Center; JuvenileJustice Project of Louisiana; Juvenile Law Clinic of the Districtof Columbia School of Law; National Mental Health Association;The Sentencing Project; Youth Law Center; Law Professor Robert E.Shepard, Jr; and Psychology Professor Laurence Steinberg asAMICI CURIAE IN SUPPORT OF LIONEL TATE, APPELLANTSTEVEN DRIZINNorthwestern UniversitySchool of LawBluhm Legal ClinicChildren & Family Justice Ctr.357 East Chicago AvenueChicago, IL 60611-3069(312) 503-8576 (phone)MICHAEL J. DALE*Nova Southeastern UniversityShepard Broad Law Center3305 College Ave.Fort Lauderdale, FL 33314(954) 262-6100 (phone)* Local Counsel - FL # 724149ROBERT G. SCHWARTZMARSHA L. LEVICKLOURDES M. ROSADOJuvenile Law Center1315 Walnut Street, 400Philadelphia, PA 19107(215) 625-0551 (phone)ATTORNEYS FOR AMICI CURIAE

TABLE OF CONTENTSTABLE OF AUTHORITIES. iiiINTEREST OF AMICI CURIAE . 1SUMMARY OF ARGUMENT . 1ARGUMENT. 3I.INTRODUCTION . 3II.THE STATE SHOULD HAVE BEEN REQUIRED TO REBUT THE COMMONLAW PRESUMPTION THAT LIONEL, AS A 12-YEAR-OLD, LACKEDTHE CAPACITY TO COMMIT CRIMES . 6A.Children are fundamentally different from adults. 9B.The infancy defense remains viable in criminalcourt . 13III.IV.THE TRIAL JUDGE ERRED IN FAILING TO ADDRESS, SUASPONTE, THE ISSUE OF LIONEL’S COMPETENCE TO STANDTRIAL. 16THE FLORIDA TRANSFER SCHEME VIOLATES THE DUE PROCESSAND EQUAL PROTECTION CLAUSES OF THE FOURTEENTHAMENDMENT TO THE UNITED STATES CONSTITUTION. 20A.Lionel was denied due process of law when thestate transferred him from the jurisdiction of thejuvenile court to the criminal court. 20B.Section 985.225 violates the Equal ProtectionClause of the Fourteenth Amendment and Article I,Section 2 of the Florida Constitution . 271.§ 985.225 creates two identical classes ofjuveniles and treats them differently, withno criteria to guide the selection process. 29i

2.The disparate sentencing scheme authorized byFlorida’s transfer laws violates the EqualProtection Clause . 33V.SECTION 985.225 OF THE FLORIDA STATUTES VIOLATESFLORIDA’S NON-DELEGATION DOCTRINE, AS SET FORTH INARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION . 35VI.A SENTENCE OF LIFE WITHOUT PAROLE TO A TWELVE YEAR-OLDOFFENDER VIOLATES BOTH THE U.S. AND FLORIDACONSTITUTIONS. 41A.The Florida sentencing statute, which mandates asentence of natural life without possibility ofparole, violates the Florida Constitution asapplied to a 12 year-old child . 41B.A sentence of natural life without possibility ofparole, violates the Eighth Amendment of theUnited States Constitution as applied to a 12year-old child. 451.The sentence of life imprisonment withoutparole is unconstitutionally disproportionateas applied to 12-year-old Lionel Tate. 462.The sentence of life imprisonment withoutparole violates “evolving standards ofdecency” . 48CONCLUSION . 54APPENDIX- Description of Amici . A-1ii

TABLE OF AUTHORITIESFEDERAL CASESBrady v. United States,397 U.S. 742 (1970) . 19Bush v. Gore,531 U.S. 98 (2000). 29City of Cleburne v. Cleburne Living Ctr., Inc.,473 U.S. 432 (1985) . 26, 27, 28Cox v. United States,473 F.2d 334 (4th Cir. 1973). 22, 24Dusky v. United States,362 U.S. 402 (1960) . 18Eddings v. Oklahoma,455 U.S. 104 (1982). 12, 13In re Gault,387 U.S. 1, (1967). 21Harmelin v. Michigan,501 U.S. 957 (1991). 43, 44Kent v. U.S.,383 U.S. 541 (1966). 21, 22, 24Pate v. Robinson,383 U.S. 375 (1966). 16, 17Romer v. Evans,517 U.S. 620 (1996). 26Russell v. Parratt,543 F.2d 1214 (8th 1976) . 22Solem v. Helm,463 U.S. 277 (1983). 43, 44Stokes v. Fair,581 F.2d 287 (1st Cir. 1978)Thompson v. Oklahoma,iii. 23

487 U.S. 815 (1988)Trop v. Dulles,356 U.S. 86 (1958). 13, 44, 45, 46. 43United States v. Bland,472 F.2d 1329 (D.C. Cir. 1973). 23United States v. Quinones,516 F.2d 1309 (1st Cir. 1975). 22Weems v. United States,217 U.S. 349 (1910) . 46Woodward v. Wainwright,556 F.2d 781 (5th Cir. 1977). 37STATE CASESAllen v. State,636 So. 2d 494 (Fla. 1994). 40, 41, 42Askew v. Cross Key Waterways,372 So. 2d 913 (Fla. 1978) . 37B.H. v State,645 So. 2d 987 (Fla. 1985)Brennan v. State,754 So. 2d 1 (Fla. 1999). 34, 35, 37, 38. 40, 41Bunney v. State,603 So. 2d 1270 (Fla. 1992). 9Cherry Lake Farms, Inc. v. Love,176 So. 486 (Fla. 1937) . 39Chestnut v. State,538 So. 2d 820 (Fla. 1989). 9, 14Chiles v. Children A-F,589 So. 2d 260 (Fla. 1991). 35D.P. v. Florida,597 So. 2d 952 (Fla. 1st DCA 1992) . 34Dept. Of Insurance v. Southeast Volusia Hosp. Dist.,iv

438 So. 2d 815 (Fla. 1983), appeal dismissed, 466 U.S.901 (1984) . 35Duncan v. Moore,754 So. 2d 708 (Fla. 2000). 27Fronton Inc. v. Florida State Racing Com'n,82 So. 2d 520 (Fla. 1955) . 31Hale v. State,630 So. 2d 521 (Fla. 1994). 40, 43, 44Illinois v. Sprinkle,307 N.E.2d 161 (Ill. 1974). 23Jackson v. Mississippi,311 So. 2d 658 (Miss. 1972). 23Johnson v. State,314 So. 2d 573 (Fla. 1975). 21, 24, 36Kansas v. Sherk,538 P.2d 1399 (Kan. 1975). 23Lasky v. State Farm Ins. Co.,296 So. 2d 9 (Fla. 1974) . 28M.Z. v. State,747 So. 2d 798 (Fla. 1st DCA 1999), review denied, 767So. 2d 458 (2000) . 38McCray v. State,424 So. 2d 916 (Fla. 4th DCA 1982). 14McKnight v. Florida,727 So. 2d 314 (Fla. 3d DCA 1999), aff'd, 769 So. 2d 1039(Fla. 1999) . 25, 37Morris v. Florida,456 So. 2d 925 (Fla 4th DCA 1984)Myers v. Dist. Ct.,518 P.2d 836 (Colo. 1963)v. 14. 22

Naovarath v. State,779 P.2d 944 (Nev. 1989). 47, 48, 49, 50Nebraska v. Grayer,215 N.W.2d 859 (Neb. 1974). 23New York v. Drayton,350 N.E.2d 377 (N.Y. 1976). 23Nolan v. Moore,88 So. 601 (Fla. 1921). 14People v. Dillon,668 P.2d 697 (Cal. 1983). 45Perkins v. State,576 So. 2d 1310 (Fla. 1991). 36State v. Benitez,395 So. 2d 514 (Fla. 1981). 39State v. Cain,381 So. 2d 1361 (Fla. 1980). 15, 22, 23, 24State v. Cotton,769 So. 2d 345 (Fla. 2000). 34, 39State v. Egan,287 So. 2d 1 (Fla. 1973). 14State v. Mohi,901 P.2d 991 (Utah 1995). 29Tillman v. State,591 So. 2d 167 (Fla. 1991). 39Traylor v. State,596 So. 2d 957 (Fla. 1992). 40Wallace v. State,724 So. 2d 1176 (Fla. 1998). 5Workman v. Commonwealth,429 S.W.2d 374 (Ky. 1968)vi. 49, 50

DOCKETED CASESPhillips v. State,No. 2D99-3734 (Fla. 2nd DCA 2002). 42, 44FEDERAL STATUTESU.S. Const. Amend. VIII. 44STATE STATUTESAla. Code 12-15-34.1 (1997). 47Ariz. Rev. Stat. Ann. §§ 13-501(E)and 13-921 (2001). 25Ark. Code Ann. § 9-27-318(e)-(g). 25Conn. Gen. Stat. Ann. § 46b-127 (West Supp. 1998). 48D.C. Code Ann. § 22-2104(a)(1996)Del. Code Ann. Tit. 10, 1010 (1997)Fla. Const., Art. 1, § 17. 47. 47. 39, 40Fla. Const., Art. 1, § 15(b) . . 34Fla. Const. Art. 2, § 3. 33, 34Fla. Const, Art. 3, § 1. 34Fla. Stat., §§ 775.082. 48§ 775.082(8)§ 794.011. 25, 39, 48. 31§§ 985.03(6), 985.219(8),§ 985.225§ 985.225(1). 2020, 27, 28, 29, 32, 33, 35, 36, 37, 39. 20, 22, 36vii

§ 985.225(3)(c)§ 985.226. 27, 30, 32§ 985.226(3). 30§ 985.226(4)(a)§ 985.227. 15. 32. 26, 29, 30, 32, 38§ 985.227(1)(a)§ 985.227(2)(d)2§ 985.227(4). 30. 32. 31Ga. Code Ann. § 15-11-28(b)(2)(B) (2001). 25Haw. Rev. Stat. § 571-22(b) (Supp. 1997). 48Idaho Code § 18-4004 (1998)Iowa Code § 902.1 (West 1994). 48. 48Kan. Stat. Ann. § 21-4633, -4638 (1995). 48Ky. Rev. Stat. Ann. § 532.030 (Michie 1990). 48La. Rev. Stat. Ann. §14:30.1(B) (1997) . 48Mass. Gen. L. Ann. Ch. 119, §§ 52 and 58 (2001). 25Minn. Stat. Ann. §§ 260B.125, 609.184 (West Supp.1998). 48Mo. Rev. Stat. § 565.020(2) (West Supp. 1997)Mont. Code Ann. § 41-5-206(3) and (6) (2001)N.C. Gen. Stat. § 14- 17 (Supp. 1997). 25. 48N.H. Rev. Stat. Ann. §169-B:24 (Supp. 1997)N.M. Stat. Ann. § 31-21-10 (Michie 1994)viii. 48. 48. 48

Okl. Stat. tit. 10, §§ 7306-2.2, 2.5, 2.6, and 2.8 (2001. 25Tex. Fam. Code Ann. § 54.02(a) (West 1996)Tex. Penal Code Ann. 12.31 (West 1994). 48. 48Wash. Rev. Code §§ 10.95.030, 13.40.110 (West Supp. 1998). 48Wyo. Stat. §§ 14-6-203 and 14-6-237(g) (2001). 25MISCELLANEOUSAmerican Bar Association Juvenile Justice Center, et al.,Understanding Adolescents: A Juvenile Court TrainingCurriculum (2000)(available on the Internet 17Adolescent Decision Making, Implications for PreventionPrograms, Summary (Baruch Fischhoff et al. eds., 1999). 10Bazelon, Exploding the Superpredator Myth: Why Infancy isthe Preadolescent's Best Defense in Juvenile Court, 75N.Y.U. L. Rev. 159, 161 (2000) . 8Bonnie and Grisso, Adjudicative Competence and YouthfulOffenders. . 18D. Keating, Adolescent Thinking, in At the Threshold, 54-89(Feldman et al. eds., 1990) . 11Daniel R. Weinberger, Editorial, Teen Brains Lack ImpulseControl, Seattle Post-Intelligencer, Mar. 13, 2001,at B-4 . 11Feld, Abolish the Juvenile Court: Youthfulness, CriminalResponsibility, and Sentencing Policy, 88 Crim. L. &Criminology 68, 102-103 (1997) . 12Feld, Juvenile's Waiver of Legal Rights: Confession,Miranda, and the Right to Counsel (2000) . 19ix

Florida Department of Juvenile Justice, A DJJ Success Story:Trends in Transfer of Juveniles to Adult Criminal Court(January 8, 2002) . 6Grisso, Forensic Evaluation of Juveniles (Sarasota 1998). 17, 19Justice Policy Institute, The Florida Experiment: AnAnalysis of the Impact of Granting Prosecutors Discretionto try Juveniles As Adults (2000) . 6Krueger, When Life Means Life, St. Petersburg Times, June 3,2001, at 1-A . 42LaFave, Criminal Law, 3d Ed., § 4.11(a)(West 2000). 7, 14Matt Crenson, Brain Changes Shed Light on Teen Behavior,Times-Picayune, Dec. 31, 2000, at A18 . 11McMahon, Letters Support Mercy for Tate: 80% of Writers toJudge Urge Rehabilitation, Sun Sentinel, Mar. 9, 2001, at1-B . 13Overton, Competence and Procedures, in Reasoning, Necessityand Logic, 1-32 (Overton ed. 1990) . 11Packer, The Limits of the Criminal Sanction (Stanford 1968). 8Patrick Griffin et al., Office of Juvenile Justice andDeliquency Prevention, Trying Juveniles as Adults inCriminal Court: An Analysis of State Transfer Provisions(1998) . 25Paul Thompson, A Child Is Not A Man, Newsday, May 23, 2001,at A33 . 11Schwartz and Rosado, eds., Evaluating Youth Competence inthe Justice System (2000) . 17Scott, Criminal Responsibility in Adolescence: Lessons fromDevelopmental Psychology, in Grisso and Schwartz, eds.,Youth on Trial: A Developmental Perspective on JuvenileJustice, 291, 307 (Chicago 2000)(hereinafter Youth OnTrial) . 7, 10, 18, 19x

Scott, The Legal Construction of Adolescence, 29 Hofstra L.Rev. 547, 590 (2000) . 7Scott and Grisso, The Evolution of Adolescence: ADevelopmental Perspective on Juvenile Justice Reform, 88Crim. L. & Criminology 137, 161 (1997) . 12Shankar Vedantam, Are Teens Just Wired That Way?, Wash.Post, June 3, 2001, at A-1 . 11Sharon Begley, Mind Expansion: Inside the Teenage Brain,Newsweek, May 8, 2000, at 68 . 11Steinberg, Researching Adolescent's Judgment andCulpability, in Youth on Trial, 325, 333 (2000). 11The Florida Bar Commission on the Legal Needs of Children,Interim Report, 7 (March 2001) . 5Walkover, The Infancy Defense in the New Juvenile Court, 31UCLA L. Rev. 503, 537-38 (1984). 9Youth in the Criminal Justice System (D.C. 2001)(also available ).15, 19xi

INTEREST OF AMICI ndthecountry who have promoted the rights and needs of youth involvedin systems that serve adolescents in the United withmodernunderstandings of adolescent development as well as governed bytime-honored constitutional principles of fundamental ppliedprinciples of adult criminal law in a context in which they areso clearly inapplicable. The result was a miscarriage of justicethat should be rectified on appeal.SUMMARY OF ARGUMENTThe ruling below must be reversed because it both failed toproperly consider Lionel’s age and developmental stage as well fdueprocess, equal protection, separation of powers and the ban oncruel and unusual ionthatAmici file this brief with the consent of all parties. Lettersof consent have been lodged with the Clerk of Court. A briefdescription of each of the organizations and individuals listedon the cover appears in the Appendix. Amici also acknowledge thevaluable contributions of Northwestern University law studentStephanie E. Sawyer, who researched and drafted portions of theargument herein.1

Lionel should have had the opportunity to address the infancydefense-- which is still viable in Florida in criminal court-- asrequired by due process. Similarly, the trial judge erred infailing to address, sua sponte, the issue of Lionel’s competenceto stand trial.There is every reason to believe that Lionel wasnot competent to direct his defense, to waive his right to avoidself-incrimination, or to determine whether he should enter aplea.The Florida transfer scheme violates due process because itfails to afford juveniles a hearing prior to the state attorneydivesting the juvenile court of jurisdiction by seeking a grandjury indictment.failuretoEqual Protection is violated by the rimespunishable by death or life imprisonment for the purposes ofjuvenile or criminal court jurisdiction; provides no criteria toguide prosecutorial discretion in these cases; and denies nciplesofseparation of powers, by effectively allowing the state attorneyto define the jurisdiction of the juvenile court.Finally, asentence of life without parole for a 12-year-old violates crueland unusual punishment.2

ARGUMENTI.INTRODUCTIONA grown man with a history of abusing his wife beatsanother man to death at an ice hockey rink, isconvicted of manslaughter, and sentenced to six ts. In an equally prominent Florida case, a12-year-old boy kills a 6-year-old.Although no oneclaimed that the boy intended to commit murder, he istried as an adult and sentenced to life in prisonwithout parole.Like many tragedies, this case has the potential to setprecedents that will serve public policy well or badly.tragic first because a child is dead.withchildren,grievefirstforIt isAmici, many of whom workTiffanyEunick.Wehowever, because another child’s life is also at stake.write,Webelieve that the result in this case was unjust because the statefailed to recognize that a 12-year-old boy-- in a transitional,developmental stage of life-- is not the same as a fully grownman.The heart-rending death of Tiffany Eunick should not deterus from hard-headed thinking about the role of punishment and theappropriate balance of retribution, deterrence and rehabilitationin the life of a boy who was 12 at the time of the crime.A system that ignores the laws of adolescent development isbound to be unfair.Indeed, in this case the system stumbledbecause it sought to sidestep an American tradition of shaping3

enceofyoungAmici share a dismay with a system that appliedprinciples of adult criminal law in a context in which they areso clearly inapplicable.This is more than bad policy.It isbad law.This case offers numerous examples where the state appliedthe law incorrectly to a 12-year-old defendant.2This Courtshould reverse because the trial court misapplied law that isclear.Amici also urge the Court to take the opportunity tointerpret gray areas in Florida’s statutory scheme.In doing so,the Court should not only resolve those ambiguities in favor ofLionel, les of statutory construction, Wallace v. State, 724 So.2d 1176 (Fla. 1998), but it should also render a decision thatconforms to the laws of nature, thereby returning common senseand fairness to a system that in Lionel Tate’s case lurched out2Indeed, this case provides a hornbook’s worth of instruction onhow criminal courts must grapple with issues of adolescentdevelopment. Here there were many: at the voir dire potentialjurors appear to have been excluded if they believed thatLionel’s age was a factor in the case. In his instructions tothe jury, the trial judge’s only mention of the relevance of agewas as it relates to intent. The admissibility of a confessionby 12-year-old Lionel was surely at issue, as was his competenceto participate as a trial defendant. Lionel’s developmentalimmaturity was the elephant in the courtroom, which seemedvisible to everyone in the country except those in the courtroomitself.4

of control.Although most states during the 1990s addressed the questionof punishment for young children who are charged with seriouscrimes by making it easier to try children as adults, the issueis unusually important in Florida.“While 45 states have adoptedthe get-tough philosophy of ‘adult time for adult crime,’ .Florida is the leader in direct filing juvenile to adult court.”TheFloridaBarCommissiononInterim Report, 7 (March 2001).3theLegalNeedsofChildren,Florida prosecutors in 1999transferred almost 4,700 youth to criminal court.Justice PolicyInstitute, The Florida Experiment: An Analysis of the Impact ultsAlthough Florida leads the nation in direct files of youth tocriminal court, the evidence consistently shows that the juvenilejustice system more effectively promotes public safety: youth inthe juvenile justice system have a lower rate of recidivism thansimilar youth in the adult system; when recidivism occurs, youthcoming out of the adult system commit more serious offenses.Florida Department of Juvenile Justice, A DJJ Success Story:Trends in Transfer of Juveniles to Adult Criminal Court (January8, 2002). Similarly, on February 15, 2002, the Florida Bar Newsreported, “Miami-Dade youths tried as adults and given adultsentences are twice as likely to reoffend as similar youth whoare sentenced to juvenile justice programs,” citing a study by aformer University of Miami researcher. While achieving publicsafety through rehabilitation is only one purpose of punishment,published reports, cited by Judge Lazarus in his opinion of March9, 2001, suggest that the state believed that public safety andjustice could be served by having Lionel serve a “sentence” injuvenile court.5

(2000).4As noted in fn. 2, public safety is not at issue nthesentence Lionel was initially offered by the state and the one hereceived has shocked the conscience of much of the nation.Amicibelieve that justice can be done to the memory of Tiffany Eunickwhile recognizing that Lionel Tate should not have been tried asan adult, that he was neither competent nor culpable as an adult,and that he should not have been sentenced as an adult.II.THE STATE SHOULD HAVE BEEN REQUIRED TO REBUT THE COMMON LAWPRESUMPTION THAT LIONEL, AS A 12-YEAR-OLD, LACKED THECAPACITY TO COMMIT CRIMESUnder basic principals of due process, Lionel should havehad the opportunity to address the infancy defense in mptionthat4In addition, the Florida system of transfer has adisproportionate impact on minority youth. “The most strikingfeature of Florida’s transferred youth population profile is theextent to which minority youth are overrepresented in the ranksof the youth being referred to adult court. One study conductedby the Florida Department of Juvenile Justice found that blackyouths were 2.3 times more likely than white youth to betransferred in Florida.” Id. (citations omitted)5Due process requires that a defendant be blameworthy before hecan be punished as an adult criminal, and is the basis for therange of defenses, justifications and excuses embodied in law.See generally Scott, Criminal Responsibility in Adolescence,infra.6

children between ages 7 and 14 lack criminal capacity.Criminal Law, 3d Ed., § 4.11(a)(West 2000).LaFave,In the middle ages,the presumption of incapacity could be rebutted for childrenBy the 17th Century,older than seven only with proof of malice.the age of irrebuttable capacity was established at age 14.Id.,citing 1 E. Coke, Institutes on the Laws of England 247b (1642).This rebuttable presumption of incapacity, which has made its wayinto modern jurisprudence, is known as the infancy defense.“The criminal law assumes that most offenders make rationalautonomous choices to commit crimes . . .”Scott, The LegalConstruction of Adolescence, 29 Hofstra L. Rev. 547, 590 (2000).Offenders who act out of free will are thus punishable under atbecauseautonomousThe infancy defense is thus one of severalexcuses or mitigators that has endured in Western jurisprudencebecause -imposedculpable– that is blameworthy.aunlesskeythecomponentofdefendantisSee Packer, The Limits of theCriminal Sanction (Stanford udential landscape prior to the creation of the juvenile7

court in 1899.The creation of the juvenile court, with itsemphasis on rehabilitation rather than punishment, lessened theimportance of the infancy defense; indeed, in those instances inwhich it has been raised in the juvenile court setting throughthe 20th century, the majority of appellate courts have thejuvenilecourtBazelon, Exploding the Superpredator Myth: Why Infancyis the Preadolescent’s Best Defense in Juvenile Court, 75 N.Y.U.L. Rev. 159, 161 (2000).6A 12-year-old like Lionel should surely be able to raise thedefense in criminal court, where he faces life without ltdefendants.76On the other hand, at least four states– California, Maryland,New Jersey and Washington– permit the infancy defense in juvenilecourt. Id.7Mens rea, which the jury found in Lionel’s case in order toconvict him of aggravated child abuse, is related to butanalytically distinct from the infancy defense:The mens rea inquiry focuses on whether the accused,when assumed capable of complying with the law’scommand, possessed the specific state of mind requiredto consider an act blameworthy. Legal responsibilityfocuses instead on the question of whether theaccused’s deficiencies of judgment distinguish him fromothers in society such that we do not expect him tocomply with the law. In that sense legalresponsibility defenses may be viewed as precluding theunwarranted exercise of criminal jurisdiction over thedefendant.8

Indeed,theFloridadefense is viable.claimsofconditions,SupremeCourthasimplied that theAlthough the Court has refused to hestnut v. State, 538 So. 2d 820 (Fla. 1989), it onlyunderstood conditions, such as intoxication or epilepsy.”Bunneyv. State, 603 So. 2d 1270 (Fla. 1992). [U]nder this analysis, while evidence ofdiminished capacity is too potentially misleading to bepermitted routinely in the guilt phase of n,epilepsy, infancy, or senility” is not.Id. at 1273 (emphasis added).A.Children are fundamentally different from adultsThe Florida Supreme Court’s recognition of the vitality ofWalkover, The Infancy Defense in the New Juvenile Court, 31 UCLAL. Rev. 503, 537-38 (1984)(footnotes omitted).Phrased slightly differently,. while a child may have intended to do theparticular bad act for which he is charged, therebysatisfying the traditional mens rea requirement forcriminal liability, in a jurisdiction recognizing theinfancy defense, the child would be precluded fromcriminal responsibility for the intended bad act if hewere too immature to fully understand the wrongfulnessof the act.Foren, 18 QLR 733, 736 (1999)(citing Walkover, supra).9

king:withyoungerbehavior differently than deed, “the evidence fromdevelopmental psychology challenges the account of adolescenceoffered by the modern punitive reformers who generally do notaccept that relevant differences exist between youthful and olescence:Lessons from Developmental Psychology, in Grisso and Schwartz,eds., Youth on Trial: A Developmental Perspective on JuvenileJustice, 291, 307 (Chicago 2000)(hereinafter Youth On Trial).Adolescents warrant different treatment than adults becausethe organic structure of the adolescent brain is different thanthe adult brain, and because their decision-making processes aredifferent from adults.thelong-standingRecent scientific research has al nature of adolescence and the difference betweenchildren and adults.8 Adolescents actually think differently fromadults. D. Keating, Adolescent Thinking, in At the Threshold, Recent findings at a National Academy of Sciences workshopconcerning adolescent development concluded that “adolescence isa time of physical, cognitive, social, and emotional growth andchange.” Adolescent Decision Making, Implications for PreventionPrograms, Summary (Baruch Fischhoff et al. eds., 1999), availableat .10

Procedures, in Reasoning, Necessity and Logic, 1-32 (Overton ed.1990).Recent neurological studies show that the adolescentbrain is not fully developed and undergoes major reorganizationin the area associated with social behavior and impulse control.See National Institute of Mental Health, Teenage Brain: A Work InProgress,; McLeanHospital, Physical Changes in Adolescent Brains May Account sthatimportantandadole

Judicial Circuit in and for Broward County, Case Number 99-14401CF10A, Honorable Joel T. Lazarus Presiding _ Brief of Center on Children & the Law; Center on Juvenile & Criminal Justice; Children & Family Justice Center; Juvenile Justice Project of Louisiana; Juvenile Law Clinic of the District