Beyond Sentencing: It's Time to Rethink How We Determine "Culpable Kids"

By: Quinn Rickert  

    The way our legal system determines whether a child is "culpable" for a crime is, as Professor Cara H. Drinan argues in her insightful article, "Culpable Kids," profoundly flawed. For too long, we have tinkered with the sentencing of minors, acknowledging their developmental differences at the back end of the process, while largely applying the same adult-centric substantive criminal laws at the front end to determine guilt. Drinan compellingly argues that this bifurcated approach is insufficient and that the very definition of culpability needs to be reformed for young people.

    The core of Drinan's argument rests on the Supreme Court's "kids are different" jurisprudence, most notably the Miller trilogy. These cases established that youth are fundamentally different from adults in ways that are constitutionally significant for punishment. Cara H. Drinan, Culpable Kids, 12 Tex. A&M L. Rev. 1373, 1374 (2025) . As the Court recognized, children exhibit immaturity, impulsivity, a heightened susceptibility to external pressures, and a greater capacity for reform. Id. at 1375–76 . Drinan powerfully contends that these differences are "equally relevant to kids' culpability" as they are to their punishment. Id. at 1374 .

    Currently, as Drinan points out, "when it comes to culpability, states employ the same substantive law whether the defendant is 50 or 15." Id. at 1373 . A child accused of reckless endangerment, for example, is assessed "just like an adult facing the same charge." Id. at 1375 . This approach ignores the robust scientific and legal consensus that a "reckless kid" is not the same as a "reckless adult." Id. The procedural safeguards, like juvenile courts or competency evaluations for very young children, are important, but they don't address the fundamental issue: the underlying legal standards for determining guilt are not designed with a child's developmental stage in mind. Id. at 1373, 1377.

    Drinan's call to tailor substantive criminal law for minors—addressing elements like actus reus, mens rea, causation, and affirmative defenses—is a necessary evolution. Id. at 1376-77 . It is a logical extension of the Supreme Court's own reasoning. If children's "failure to appreciate risks and consequences" is a factor in sentencing, as noted in Miller v. Alabama, 567 U.S. 460, 477 (2012) , should it not also inform whether they possessed the requisite criminal intent in the first place?

    While Drinan’s thesis is compelling and a crucial step forward, we can push the idea further and anticipate some challenges to refine its application:

 1. Developing Age-Appropriate Standards Without Overcomplication: Crafting genuinely "tailored" substantive laws for minors is a monumental task. How do we create standards that reflect developmental differences without making the legal framework unmanageably complex or variable? For instance, how would a "reasonable juvenile standard," perhaps hinted at by the J.D.B. v. North Carolina decision regarding Miranda custody analysis, be defined and consistently applied across different offenses and age groups within "juvenile"? See J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011) . The article acknowledges implementation challenges will be addressed , and this will be key.

 2. The Spectrum of "Kid": The term "kid" or "minor" encompasses a wide developmental range. The culpability considerations for a 12-year-old versus a 17-year-old, while both are minors, are vastly different. The revised substantive law would need to be nuanced enough to account for these significant developmental variations, perhaps incorporating more individualized assessments rather than broad-stroke age categories, though this could reintroduce subjectivity.

 3. Balancing Diminished Culpability with Accountability and Victim Rights: A significant hurdle will be ensuring that a system recognizing diminished culpability does not negate accountability or feel unjust to victims. The purpose of tailoring substantive law is not to excuse harmful behavior but to accurately assess a young person's true level of legal blameworthiness. The revised framework must still allow for meaningful interventions and consequences, even if the legal label for the conduct changes.

 4. Navigating the "Transfer" Dilemma: Drinan notes that transfer laws allow minors to be tried in adult court. Culpable Kids, at 1379 . If substantive criminal law is tailored for minors, how would this apply in cases where a minor is transferred to adult court? Would the adult court then apply these tailored juvenile culpability standards, or would the act of transfer revert the minor to adult standards of culpability, thereby undermining the proposed reform in serious cases? This intersection needs careful consideration.

 5. Educating Legal Actors: For such a paradigm shift to be effective, extensive education and training would be required for judges, prosecutors, and defense attorneys. These legal actors would need to thoroughly understand adolescent development and how it intersects with the revised legal standards, moving beyond the ingrained "miniature adult" model. See Miller, 567 U.S. at 481 .

    Professor Drinan's work pushes us to confront an uncomfortable truth: our current system often fails to recognize the inherent differences in children when it matters most—at the determination of guilt itself. By advocating for substantive changes to criminal law as applied to young people, she charts a course toward a more just, accurate, and developmentally appropriate legal system. Addressing the critiques and practical hurdles will be essential to realize the full, beneficial potential of this "culpable kids" revolution.