Ivashkiv Blog 6

Professor Berg defended the use of bright lines in juvenile criminal cases. Her logic was rooted in epistemic concerns. Judges often are not able to accurately discern the development of a juvenile versus a fully-formed adult. The impacts of over-punishing an immature juvenile are obviously drastic. Berg discusses how age is used as a bright line. Specifically, the line is eighteen. She recognizes that this is not a perfect bright line. She proposes that the courts eventually adopt a bright line that relies on “relevant evidence” to the domain in question (18). Relevant evidence could be “psychological, sociological, economic” (18) After all, what is the physiological difference between an eighteen-year-old, a seventeen-year-old, and a nineteen-year-old? 

But, Berg does argue to use age as a bright line instead of judicial discretion. This initially seems like an indictment on the legal system in general. What is the point of an intensive, long appointment process if “arbitrary” measures like age are better judges? (14). However, I think that age-based bright lines are not actually arbitrary. Age-based bright lines are not all the same. The consent age differs by state and the legal age to drink is twenty-one. Of course, there is rationale to make different age-based bright lines: the physical and emotional maturity in the consent case, the recklessness of drunk driving in the alcohol case, and general maturity issues in the juvenile case.  I don’t see how age-based bright lines get around the issue of judicial discretion, as these bright lines are not arbitrary but are decided by human discretion.

In this view, bright lines are outdated forms of judicial discretion. The process of codifying bright lines actually makes judicial discretion rather difficult to evade in court cases. So, it seems like the case to protect bright lines is not an argument against judicial discretion but rather against the practice of over punishment. Professor Berg’s account of the unintended consequences of over punishment in juvenile criminal cases was very compelling. I wonder if a law that asks judges to under punish in cases with seemingly undeveloped defendants, kind of like beyond a reasonable doubt, would be an alternative to age-based bright lines that would also accept the influence of judicial discretion in all aspects of the law. This kind of system seems like it would protect the nineteen-year-old defendant from unfair punishment. 

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