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Penal Code Section 26(1) - Rebuttable Presumption of a Juvenile's Incapacity to Commit a Crime - A Necessary Statute?

NCJ Number
University of California Davis Law Review Volume: 12 Issue: 2 Dated: (Summer 1979) Pages: 885-898
C C Sarmiento
Date Published
14 pages
California's Penal Code Section 26(1) which holds that children under age 14 are not capable of committing crimes in the absence of clear proof that they knew the wrongfulness of the act is archaic and should be repealed to serve the best interests of the State and juveniles.
Section 26(1) was law in California when it did not have an independent juvenile justice system and has its roots in common law. It applies only to juveniles under 14 in a Section 602 proceeding, a wardship hearing for children under 18 who have violated a law which defines a crime. In this proceeding, the State has the burden of proving that the juvenile knew the wrongfulness of the act. If the State cannot meet its burden and jurisdiction is not obtainable under another provision, the offender escapes any control by the juvenile justice system. Section 26(1) is an unnecessary safeguard today because the criminal justice system treats adults and children separately. Proponents of Section 26(1) argue that it still has a valuable function in limiting judges' discretion in adjudication of Section 602 wardship through the clear proof requirements. However, the concept of clear proof is itself uncertain and vague, and judges in practice have considerable discretion in determining when the requirement is met. Section 26(1) is inconsistent with the juvenile justice system's focus on providing care, guidance, and rehabilitation because it emphasizes the criminality of a Section 602 wardship and provides little or no additional protection for a juvenile's rights. It also conflicts with the system's goal of protecting the public by allowing juveniles who could be prevented from becoming hardened criminals to escape control by the juvenile system. The paper includes 89 footnotes.


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