Pragmatic arguments the strongest for 'raise the age' proposal

In politics, wisdom counsels humility when one's opponents make true, valid arguments undermining one's position. So let's acknowledge the truth of criticisms regarding the proposal to raise the age of criminal culpability in Texas from 17 to 18, a measure endorsed in the House Criminal Jurisprudence Committee's interim report.

Over at the Texas Tribune, the Marshall Project's Maurice Chammah has a feature story on the topic, which he's covered before. Like an Austin Statesman editorial earlier this week, Chammah pins the bill's fate largely on the shoulders of Senate Criminal Justice Committee John Whitmire, a critic of the idea who recently told the Houston Chronicle, "I think at 17 you should know right from wrong.”

And you know what? Whitmire's right. I laughed aloud when I read that quote, not at the senator but at my own expense. A couple of weekends ago, my granddaughter was visiting. Following an uncharacteristically rude display toward another child, and a self aggrandizing attempt to justify it, I told her, near verbatim, "You are eight years old, you know right from wrong." And so admonished, she trundled back to issue a half-hearted apology to the slighted party.

So I'm not one to accept such excuses from kids. If I won't tolerate it from an eight year old, I've even less sympathy when you're 17 (barring mental illness or developmental disabilities). But to me, that's beside the point.

At 17, the issue isn't whether you know right from wrong, it's that you think you're right about everything, even if you're profoundly wrong. A combination of incomplete brain development and a lack of personal experience combine to create a strongly held but myopic worldview (a.k.a., immaturity).

But the most compelling reasons Texas should "raise the age" have nothing to do with one's sympathy for the defendants. Being out of kilter with federal law creates looming, practical problems: For example, Texas county jails face potentially budget busting civil litigation if they fail to comply with the strictures of the Prison Rape Elimination Act, which would require adult jails to renovate and staff up portions of their facilities where 17 year olds are held to meet the more stringent juvie standards.

Numerous other situations arise, big and small, where the disjuncture between state and federal law creates problems for front-line practitioners. In recent years, perhaps the most prominent example has been on capital punishment, where Texas having a different age from the feds has created tremendous, ongoing legal complications. The law would be cleaner and simpler if state and federal law were in synch.

Finally, I think most voters will find the normative argument put forward by the Houston Chronicle compelling: “In Texas, you have to be 21 to apply for a concealed handgun, 18 to play the lottery and 18 to get a body piercing without a parent’s consent. Yet a nearly century-old Texas law treats a 17-year-old who shoplifts an iPhone as an adult criminal.” When you can be charged with a felony as an adult but still aren't old enough to get your ears pierced without parental permission, something's amiss.

Prosecutors can always seek to certify 17 year olds as adults if they commit very serious crimes. But for the workaday stuff, it makes more sense to treat them through the juvenile system, just like the overwhelming majority of other states and prevailing federal law. Not because they don't know right from wrong, but because we do.