ROANOKE TIMES
Copyright (c) 1997, Roanoke Times
DATE: Thursday, January 16, 1997 TAG: 9701160064
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
An 8-year-old boy could become the youngest person convicted of murder in recent Virginia history, if Pittsylvania County authorities can make the charge stick.
But that's a big "if," legal experts said Wednesday.
Prosecuting someone so young raises several questions, said Robert Shepherd, a University of Richmond law professor and an expert on Virginia's juvenile justice system:
Is an 8-year-old mentally able to stand trial in a confusing court system that baffles many adults? If so, can he be held criminally responsible for acts that flow from the still-developing mind of a child?
And if he is convicted, what would the system do with him?
Virginia law does not allow someone younger than 10 to be sent to one of the state's juvenile correctional centers.
"It really doesn't look like there are a lot of options in this case," said Cari Brunelle, a spokeswoman for the state's Department of Juvenile Justice. The most a judge could do to an 8-year-old convicted of murder, she said, would be to place him on probation or perhaps send him to a home for troubled youths or a psychiatric institution.
Although Virginia's juvenile justice system was revamped last year to deal with a growing number of violent young offenders, the more punitive laws would not affect an 8-year-old. The youngest someone can be tried as an adult in Virginia is 14.
But the issue is not so much punishment as whether murder charges against an 8-year-old should even go forward, Shepherd said.
"Children are not simply miniature adults," he said. "They don't fully appreciate, in the same way that most adults do, the difference between right and wrong."
Shepherd acknowledged that Virginia law clearly allows a prosecution like the one that was started Tuesday in Pittsylvania County, where authorities charged an 8-year-old boy in the death of his stepfather, a Franklin County probation officer.
"But whether it's practical to proceed on a murder charge for an 8-year-old is an entirely different question," he said. "I think they'll have some serious problems in trying to establish that he's competent to stand trial on a charge like this."
That's what happened in a 1982 Roanoke case in which a 7-year-old was charged with starting a fire that killed his neighbor. A judge found that Jermaine Anderson - who was thought at the time to be the youngest person ever charged with murder in Virginia - was unable to help with his defense and did not understand what he was accused of doing.
A judge dismissed the charge against Anderson but ordered him to receive counseling. (Last year, Anderson was sentenced to 20 years in prison for another fire he set when he was 19.)
Maria Ramiu, a staff attorney with the Youth Law Center in San Francisco, agreed that competency to stand trial would be an immediate issue with any 8-year-old charged with murder. Some states do not allow criminal charges against someone that young, she said.
Even if the case goes forward, Ramiu said, prosecutors might have a hard time showing malice in the mind of an 8-year-old.
"There has to be a specific intent to commit the crime," Ramiu said. "So it really becomes a question of, at that age, could you form a specific intent?"
Murder charges against juveniles 10 or younger are so rare in Virginia that the system seems ill-equipped to deal with such cases.
The youngest person now in state custody is 12, Brunelle said. And youths aged 12, 13 and 14 make up just 7.4 percent of the population in the state's juvenile correctional centers.
Since 1985, the youngest person charged with murder in Virginia was 8, said Don Faggiani, a senior research analyst with the state's Department of Criminal Justice Services. Figures before 1985 are incomplete, he said.
Three 8-year-olds were charged with murder from 1987 to 1990, Faggiani said. But prosecutors in the localities he mentioned said there had been no murder convictions of 8-year-olds there.
There is no specific law in Virginia that sets a minimum age at which criminal charges can be brought, Shepherd said. But under the state's "common law" - a body of decisions that goes back to the laws of England - anyone younger than 7 cannot be held responsible for committing a crime.
There is a "rebuttable presumption" that children between 7 and 14 cannot be tried - meaning a prosecutor can bring charges in certain cases if good cause is shown.
"Obviously, the closer you get to 14, the easier it is for a prosecutor to meet that burden," Shepherd said. "And the closer you get to 7, the more difficult it would be."
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