Looking out at the tapestry of age-limited situations reveals a rather eclectic pastiche. In many of these cases, the cut-off age seems both arbitrary and inappropriate given the statistics. Consider the legal driving age. Is it the case that 16 year olds are responsible drivers? 16 years olds have higher crash rates than any other age group in the United States, are more likely to die in a car crash than the average of all other age groups, and car crashes are the leading cause of death among 16 year olds. North Dakotans believe that 14 year olds can drive a car. They may have fewer drivers on the road, but that doesn’t mean that a 14 year old won’t hit them or drive off the road after irresponsibly drinking. Why not keep all youths off the road until 21 when the statistics on fatal car crashes drop? Or why not follow the lead of car rental agencies and wait for the 25" birthday?
There are at least two common answers to the driving age problem, both utilitarian: in farming communities, and other environments where children work with their parents, it is essential to have children driving as soon as possible; and throughout the country, many parents look forward to the day when their children can drive, thereby alleviating the need for their private chauffeur service. There is no question that these are benefits. But if the cost is death to the child and others, the economics just don’t work out. One option would be to lower the legal driving age for those communities or situations in which parents demonstrate the significance of young children driving for their financial security and well being. Those without this justification must wait until they are 21, frontal lobes matured and the novelty of intoxication lowered.
The most interesting and relevant age-related issue is when someone is treated as an adult as opposed to a juvenile criminal. Within the United States, most states set the bar at 18 years, but some as young as 16. Where a state sets its bar determines whether or not the individual is eligible for the death penalty or a life sentence, as well as a host of social services. Many states with the bar currently set below 18, including my own state of Massachusetts, are presently debating whether the age limit should be raised. For some, the issue is simply one of parity: this is not an issue where states should differ, and thus everyone should be with the majority at 18 years. Others add to this discussion by arguing that it should be 18 because of brain maturation. Although it is absolutely the case that a more mature brain brings with it better self-control and less sensation-seeking or risk-taking, there is no evidence of a reliable difference between 16, 17 and 18 year olds. Some 16 year olds are remarkably patient and risk- averse whereas some 18 years olds are remarkably impulsive and risk-prone. If this is to be a meaningful discussion about future risks, plasticity, and the opportunity for rehabilitation, it will have to grapple with the scientific evidence that is presently on offer.
When we use age to distinguish between legally permissible and forbidden actions, we have acknowledged that our biology and upbringing represent mitigating factors. We believe that juvenile crimes are forgivable and their actions correctable. In fact, their crimes are forgivable because their actions are correctable. Once we admit nature and nurture into the legal calculus concerning our youths, we must also allow such factors to guide our decisions about adults with developmental disorders, brain damage, and different genetic make-up. Yet, the law seems to have a double standard: youths lack free will, whereas adults have it, even if it is somewhat diminished. But if we believe that juveniles lack a sufficiently mature capacity for self-control, planning and thinking about alternative options, then we must recognize that fully mature adults can lose these capacities as they naturally age, and can lose them at any age if they suffer from brain damage. We must also wrestle with the fact that some people are born with a genetic constitution that makes them more vulnerable to addictions, sensation-seeking, violence, and a lack of compassion. Perhaps they too should be banned from driving, voting, drinking, marrying and military combat. When do we look at the excessive harms caused by individuals or groups and hold them responsible? When do we punish them to pay for their crimes and fend off future atrocities?
The law often invokes the notion of future dangerousness as a means of evaluating risk. So too does the public and media. The general presumption is that for certain kinds of offences, there is a predictably high level of recidivism, of doing the same thing over and over again. But the implication of this judgment is that those who are deemed guilty are, in some way, not responsible for their future. Their future is determined for them. In fact, it is so determined that the law is willing to make a confident wager and send these criminals to prison or to their death. On this view, someone who has already
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