Indian Springs
Juvenile Crime
Contractarianism NC
Jan/Feb ‘11
To negate1 means “to deny the existence or truth of,” so the neg burden is to deny that the
U.S. ought to treat juveniles as adults in the criminal justice system. Since the aff defends a
moral obligation to do so, I can negate by proving it is either permissible or obligatory to treat
them differently, as both would deny the existence of such an obligation.
I value morality. Since morality guides action, it must provide reasons that could
actually obligate us, which is possible only if it is derived from principles that we would
willingly accept. Otherwise, individuals would just choose moral skepticism: we only follow
moral claims since we recognize we are better off for morality’s existence. Only a contractarian
system that derives principles of mutual restraint from individuals’ self-interest accounts for this
fact. Gauthier 12:
Moral principles are introduced as the objects of full voluntary ex ante agreement among rational
persons. Such agreement is hypothetical, in supposing a pre-moral context for the
adoption of moral rules and practices. But the parties to agreement are real, determinate
individuals, distinguished by their capacities, situations, and concerns.
would
In so far as
[Since] they
agree to constraints on their choices, restraining their pursuit of their own interests, they acknowledge a
distinction between what they may and may not do. As rational persons understanding the
, they recognize a place for mutual constraint, and so for a moral
structure of their interaction
dimension in their affairs.
And, only this contractarianism system provides a non-circular origin for morality. Gauthier3 2:
A contractarian theory of morals, developed as part of the theory of rational choice, has evident strengths. It enables us to
demonstrate[s] the rationality of impartial constraints on the pursuit of individual
interest to persons who may take no interest in others' interests. Morality is thus
given a sure grounding in a weak and widely accepted conception of practical rationality. No
alternative account of morality accomplishes this. Those who claim that moral principles are
objects of rational choice in special circumstances fail to establish the rationality of
actual compliance with these principles. Those who claim to establish the rationality of such
compliance appeal[s] to a strong and controversial conception of reason that seems to incorporate[s]
prior moral suppositions. No alternative account generates morals, as a rational constraint on choice and action, from a non-moral, or morally neutral,
base.
1
"negate." Merriam-Webster Online Dictionary. 2010. Merriam-Webster Online. 18 August 2010.
<http://www.merriam-webster.com/dictionary/negate>
2
Gauthier, David P. Morals by Agreement. Oxford: Clarendon, 1986. Print.
3
Ibid.
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Indian Springs
Juvenile Crime
Contractarianism NC
Jan/Feb ‘11
Thus, the standard is consistency with contractarian principles of mutual restraint, defined as
those principles by which rational individuals would constrain their actions with the belief that
doing so would serve their self-interest. The point is not that some actual agreement directly
binds the contractors, but to provide a thought experiment by which to discover what ethical
principles should constrain actions.
[Finally, prefer contractarianism since it is based on consent—implicit in acceptance of a
contract—which ultimately determines what qualifies as a net good or harm, i.e. whether
intercourse is rape or if euthanasia is murder.]
I contend that no contractarian principle can be justified that requires the U.S. to treat
juveniles as adults in the criminal justice system. Contractarianism cannot ban practices outside
of a context of mutual benefit. Gauthier4 3:
But the strengths of a contractarian theory may seem to be accompanied by grave weaknesses. We have already noted that for
a contractarian, morality requires a
context of mutual benefit. John Locke held that 'an Hobbist . . . will not easily admit a great many plain duties of morality'. And this may seem equally to apply to the Hobbist's
modern-day successor. Our theory does not
assume[s] any fundamental concern with impartiality, but only a concern derivative from
the benefits of agreement, and those benefits are determined by the effect that each
person can have on the interests of her fellows. Only beings whose physical and mental capacities
are either roughly equal or mutually complementary can expect to find cooperation beneficial to all. Humans
benefit from their interaction with horses, but they do not co-operate with horses and may not benefit them.
Among unequals, one party may
benefit most by coercing the other, and on our theory would have no reason to
refrain.
We may condemn all coercive relationships, but
only within the context of mutual benefit can our
condemnation appeal to a rationally grounded morality.
In the criminal justice system, coercion between adults and children is unequal, so juveniles have
no reason to adopt a principle of mutual restraint. CWCY5:
Just like faulty eyewitness identifications and junk science, youth is a cause of wrongful convictions.
A disproportionate number of
exonerees were accused and convicted when they were adolescents or younger. However, insufficient attention has been paid
to the unique issues that may contribute to these wrongful convictions of youth. False Confessions False confessions are one of the leading causes of wrongful convictions, accounting
for roughly 25% of all DNA exonerations. There is no doubt that, contrary to what seems logical, people do falsely confess to heinous crimes.
In all studies of
false confessions, youth are overrepresented. Traditional (and legal) police interrogation tactics
focus on convincing the suspect that their situation is hopeless, that their guilt is already known, and that the only way to improve their situation is to confess. Police accomplish this
goal by relentless and intense leading questions to suspects, rejecting any denials of guilt from the suspect, lying about the evidence they have, minimizing the culpability or moral
reprehensibility of the crime, and making implied promises of leniency. Police use these same interrogation tactics with young suspects! These tactics
4
are tailor-
Ibid.
Center on Wrongful Convictions of Youth. Why Youth Contributes to Wrongful Convictions. Northwestern
University. Bluhm Legal Clinic. http://cwcy.org/WhyYouthContributes.aspx
5
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made to get young people to confess, even innocent young people. Exonerated youth who falsely confessed often explain that they confessed
merely to stop the intense interrogation so they could go home.
Youth are taught to trust the police and categorically are unable
to view long-term consequences like adults. Even though they were confessing to heinous crime, these young people actually believed
they could go home if they confessed. Police are trained to avoid all these same techniques when they interview young victims so that they can be assured the victims’ statements are
reliable. There is no reason this same caution should not be used when interviewing young suspects. False Accusations The same
can cause youth to falsely confess
interrogation tactics that
can cause them to falsely implicate other youth. At the urging of police, youth place the blame
on someone else so that they can go home, failing to see the long-term consequences of their actions. Their lack of maturity may cause them to falsely implicate their enemies or rival
gang members. Looking to satisfy the police, youth may also
[and] make false eyewitness identifications during lineups or photo
.
arrays Often these identifications implicate other youths. Inability to Understand or Exercise Rights
Studies show that youth simply do not
understand their Miranda rights – including their rights to counsel and to remain silent –
when read to them. Accordingly, they do not exercise their rights and are often left to attempt to fend off their
interrogators on their own, without the help of counsel, a friendly adult, or even their parents. Overcharging, Transfer, and False Guilty Pleas A
prosecutor charges a young people with a serious criminal act for either innocent or minor conduct. Transfer statutes then force these charges to be heard
in adult
court, where these young people are looking at long prison sentences if they are found
guilty. To avoid a long prison sentences, the youth will take an offer to plead guilty to a lesser offense or a lesser
.
sentence It is impossible to know how often this scenario plays out, but there are known examples of youth falsely pleading guilty.
Adult coercion undermines the necessity of mutual restraint, so trying juveniles differently from
adults cannot be condemned by a contractarian morality and is thus permissible.
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Indian Springs
Juvenile Crime
Contractarianism NC
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2NR Skepticism Extension
If his answers to contractarianism are true, then moral skepticism follows. Extend that since
morality guides action, it must provide reasons that could actually obligate us, which is possible
only if it is derived from principles that we would willingly accept. Otherwise, individuals would
just choose moral skepticism: we only follow moral claims since we recognize we are better off
for morality’s existence. Even Gauthier’s critics accept that there’s no legitimate alternative. To
reject Gauthier’s moral theory is to accept moral skepticism. Gauthier6 writes:
Towards the ends of their reviews, Annette Baier and Jean Hampton allow, if only momentarily, the real spectres to surface.
Baier writes, 'Gauthier rightly sees the
dangers of exploitation and subjection inherent in a kin-based and affection-dependent morality, so purports to try for something totally different.
Even if our
moral natures cannot recognize themselves in Gauthier's version of them, the
problem that drives the attempt [for an individualist and unsentimental morality] is a real one,
. Hampton writes, 'Gauthier will point out
and so far, I think, an unsolved one; unsolved for morality as well as for moral theory '
that anyone who insists that a human being has objective value must develop a theory
that will not only justify that claim but also explain what reason one would ever
have for respecting this value. I believe this is a challenge one has no choice but to
accept, given what the moral facts are.'
6
Gauthier, David. Moral Artifice. Canadian Journal of Philosophy, Vol. 18, No. 2 (Jun., 1988), pp. 385-418.
Published by: Canadian Journal of Philosophy. <http://www.jstor.org/stable/40231614> .
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Indian Springs
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Additional Contention
As non-rational agents, juveniles cannot enter in contracts. Vopat7:
What few accounts of children’s rights there are in the philosophical literature fall into one of three general categories, namely, property, liberationist or protectionist. The property
account of children is exemplified by Jan Narveson in his The Libertarian Idea, in which he holds that the
lack of rationality [in] on the part of
children precludes them from being rights bearers. On Narveson’s libertarian account, the derivation of rights is
contractarian. Legitimate
as
contracts require a particular type of contractor, or what he terms a practical agent, A practical agent is defined
“anything with a rational will to act, and enough inthe way of a physical body to be at least
inherently
capable of putting that will into effect. Practical agents have their own intentions and interests which they desire to have
fulfilled. Further,
such agents are viewed as capable of deciding in accordance with these interests.
Since children lack some, if not all, of the requisite abilities of a practical agent, they cannot
be participants in the “social contract,” and are thus ruled out as rights bearers. Since they do not have fundamental rights, they may be
treated as the property of their parents.
Juveniles lack full restraint over impulsive behavior. Beckman8 04:
The defense is focusing on the "culpability of juveniles and whether their brains are as capable of impulse control, decision-making, and reasoning as adult brains are," says law
professor Steven Drizin of Northwestern University in Chicago. And some brain researchers answer with a resounding "no."
The brain's frontal lobe, which
exercises restraint over impulsive behavior, "doesn't begin to mature until 17 years of age,"
says neuroscientist Ruben Gur of the University of Pennsylvania in Philadelphia. "
The very part of the brain that is judged by the
legal system process comes on board late."
But other researchers hesitate to apply scientists' opinions to settle moral and legal questions.
Although brain research should probably take a part in policy debate, it's damaging to use science to support essentially moral stances, says neuroscientist Paul Thompson of the
University of California, Los Angeles (UCLA). Structurally,
the brain is still growing and maturing during adolescence,
beginning its final push around 16 or 17, many brain-imaging researchers agree. Some say that growth maxes out at age 20. Others, such as Jay Giedd of the National Institute of
Mental Health (NIMH) in Bethesda, Maryland, consider 25 the age at which brain maturation peaks. Various types of
brain scans and anatomic dissections show
that as teens age, disordered-lookingneuron cell bodies known as gray matter recede, and neuron projections covered in a protective
fatty sheath, called
white matter, take over. In 1999, Giedd and colleagues showed that just before puberty, children have a growth spurt of gray matter.
This is followed by massive "pruning" in which about
1% of gray matter is pared down each year during the teen
years, while the total volume of white matter ramps up. This process is thought to
shape the brain's neural connections for adulthood, based on experience.In arguing for leniency, Simmons's supporters cite
some of the latest
research that points to the immaturity of youthful brains, such as a May study of children and teens,
led by NIMH's NitinGogtay. The team followed 13 individuals between the ages of 4 and 21, performing magnetic resonance imaging (MRI) every 2 years to track changes in the
physical structure of brain tissue. As previous research had suggested, the frontal lobes matured last. Starting from the back of the head, "we see a wave of brain change moving
forward into the front of the brain like a forest fire," says UCLA's Thompson, a co-author.
The brain changes continued up to age 21,
the oldest person they examined. "It's quite possible that the brain maturation peaks after age 21," he adds.
7
8
Vopat, Mark. “Contractarianism and Children”. University of Illinois Press, Jan 2003.
Beckman, Mary. Crime, Culpability, and the Adolescent Brain. Science. July 30, 2004. 596-599.
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Indian Springs
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Even if children are able to recognize “self-interest,” their overall self-interest is still best
protected by treating them differently from adults. Vopat 2:
According to Purdy,
a child’s welfare is best served by denying them an equal status with competent
adults. Rights, according to Purdy, are important insofar as they protect the interests of the
individual. On this account of rights, the liberationist argument fails because treating children as full fledged rights
bearers is not in their best interest. Children will be much better off if we accept a protectionist
position and
place the responsibility for children in the hands of adult decision makers. Purdy argues for placing
decisions regarding a child’s welfare in the hands of adult decision makers by claiming that
adults [who] have the required background
knowledge and reasoning skills necessary to make informed choices. Further, good parents and
teachers
know and care for individual children, and so are in the best position to make
the decisions which will positively impact on a child’s life. Also, children need to acquire the virtue of self-control, which
Purdy believes is necessary for success later in life. Parents help children acquire this virtue by setting rules and disciplining children when they fail to observe the rules. Parental
control of children is justifiable based on the considerations of children’s welfare. It is also justified because it has the added effect of benefitting society as a whole. Parents who
raise children with the proper dispositions prepare children for their place within the given society. While the positive effects of parents having control does not necessarily explain
why they have the control, it does suggest a means of viewing the relationship between parents and children.
6