Rethinking the tough sentencing of teenage neonaticide offenders in the United States

Fordham Law Review

Volumn 67, Issue 6, 1999, Pages 3109-3167

  Fazio, Christine A ^a   Comito, Jennifer L ^a  

^a NONE

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EID: 0033437047     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (462)

1. Recently, prosecutors have responded to public demand for harsh treatment of teenage neonaticide offenders. In the past few years, the media's coverage of neonaticide and the public's corresponding dismay have exploded. For example, in Tucson, Arizona, after 19-year-old Marianne Biancuzzo was accused of drowning her newborn in a toilet, a police officer stated to a local newspaper: "It's an outrageous type of crime and totally unacceptable. We want to give the message to people contemplating this type of action that it will be thoroughly investigated and aggressively prosecuted . . . ." Marie McCullough, In Newborn Killings, a New Profile, Phila. Inquirer, Nov. 23, 1997, at A21 (quoting Tucson Police Lt. Rick Middleton). There was also a media blitz that demanded the death penalty for Amy Grossberg, who killed her newborn in a Delaware motel room in November 1996. See Full-Birth Abortion, Wash. Times, Dec. 1, 1996, at 37, available in 〈http://home.revealed.net/celeste/FullBirthAbortion.html〉.
2. Recently, prosecutors have responded to public demand for harsh treatment of teenage neonaticide offenders. In the past few years, the media's coverage of neonaticide and the public's corresponding dismay have exploded. For example, in Tucson, Arizona, after 19-year-old Marianne Biancuzzo was accused of drowning her newborn in a toilet, a police officer stated to a local newspaper: "It's an outrageous type of crime and totally unacceptable. We want to give the message to people contemplating this type of action that it will be thoroughly investigated and aggressively prosecuted . . . ." Marie McCullough, In Newborn Killings, a New Profile, Phila. Inquirer, Nov. 23, 1997, at A21 (quoting Tucson Police Lt. Rick Middleton). There was also a media blitz that demanded the death penalty for Amy Grossberg, who killed her newborn in a Delaware motel room in November 1996. See Full-Birth Abortion, Wash. Times, Dec. 1, 1996, at 37, available in 〈http://home.revealed.net/celeste/FullBirthAbortion.html〉.
3. See Full-Birth Abortion, supra note 1, at 37.
4. Neonaticide was first defined by Dr. Phillip J. Resnick in 1970 as "the killing of a neonate on the day of its birth." Phillip J. Resnick, Murder of the Newborn: A Psychiatric Review of Neonaticide, 126 Am. J. Psychiatry 1414, 1414 (1970). Interestingly, Black's Law Dictionary does not include the term. Black's does, however, define "infanticide" as "[t]he murder or killing of an infant soon after its birth. The fact of the birth distinguishes this act from 'feticide' or 'procuring abortion,' which terms denote the destruction of the fetus in the womb." Black's Law Dictionary 778 (6th ed. 1990). Black's also defines "prolicide" as "the destruction of the human offspring." Id. at 1213.
5. Neonaticide was first defined by Dr. Phillip J. Resnick in 1970 as "the killing of a neonate on the day of its birth." Phillip J. Resnick, Murder of the Newborn: A Psychiatric Review of Neonaticide, 126 Am. J. Psychiatry 1414, 1414 (1970). Interestingly, Black's Law Dictionary does not include the term. Black's does, however, define "infanticide" as "[t]he murder or killing of an infant soon after its birth. The fact of the birth distinguishes this act from 'feticide' or 'procuring abortion,' which terms denote the destruction of the fetus in the womb." Black's Law Dictionary 778 (6th ed. 1990). Black's also defines "prolicide" as "the destruction of the human offspring." Id. at 1213.
6. Neonaticide was first defined by Dr. Phillip J. Resnick in 1970 as "the killing of a neonate on the day of its birth." Phillip J. Resnick, Murder of the Newborn: A Psychiatric Review of Neonaticide, 126 Am. J. Psychiatry 1414, 1414 (1970). Interestingly, Black's Law Dictionary does not include the term. Black's does, however, define "infanticide" as "[t]he murder or killing of an infant soon after its birth. The fact of the birth distinguishes this act from 'feticide' or 'procuring abortion,' which terms denote the destruction of the fetus in the womb." Black's Law Dictionary 778 (6th ed. 1990). Black's also defines "prolicide" as "the destruction of the human offspring." Id. at 1213.
7. In some cases, the girl is pregnant due to sexual abuse or rape, compounding her intense feelings of shame. See, e.g., Geoffrey Knox, A Revolution Brewing in Women's Health, Open Soc'y News, Spring 1999 4, at 4 ("[I]n Nigeria, . . . [i]t is common, for example, for school girls to be coerced into sex by taxi drivers in exchange for transportation to school. Girls are blamed and punished for pregnancies that occur.").
8. See, e.g., James W. Prado Roberts & Jason Method, Denial of Pregnancy Called Common Among Teens, Asbury Park Press, Feb. 4, 1998 (describing how at her senior prom, "Melissa Drexler gave birth to a full-term baby boy in a bathroom stall," placed the baby in a garbage can, and returned to the dance), available in 〈http://www.thnt.com/prom/prom4.htm〉 (visited apr. 30, 1999).
9. See infra Part II.B.2. a 6.
10. For instance, one study of 47 neonaticides found that all of the neonaticide cases presented the same basic facts: [T]he women experienced severe cramping and stomach pains, which they often attributed to a need to defecate. They spent hours alone, most often on the toilet, often while others were present in their homes. At some point during these hours, they realized that they were in labor. They endured the full course of labor and delivery without making any noise. After delivering the baby, the women's actions range from exhaustion to utter panic. Many of the women temporarily lost consciousness, leaving the baby to drown in the toilet . . . . More commonly, the women suffocated or strangled the babies in order to prevent them from crying out. A few of the women silenced the babies with blows to its head or stab wounds inflicted with scissors. Michelle Oberman, Mothers Who Kill: Coming to Terms with Modern American Infanticide, 34 Am. Crim. L. Rev. 1, 24-25 (1996) (footnotes omitted).
11. After killing the infant, the mother typically hides the baby. See C.M. Green & S.V. Manohar, Neonaticide and Hysterical Denial of Pregnancy, 156 Brit. J. Psychiatry 121, 122 (1990).
12. Neonaticide is considered a crime no greater than manslaughter under the English Infanticide Act. See English Infanticide Act; see also infra note 211 and accompanying text (discussing the English Infanticide Act); infra note 217 (discussing similar statutes in Canada and Australia).
13. See infra note 211.
14. See infra Part I.C-D.
15. See infra Part I.A.
16. See infra notes 220-24 and accompanying text.
17. In most American jurisdictions a juvenile, defined as "one who has not reached the age of eighteen," is prosecuted in the juvenile court. See Gordon A. Martin, Jr., The Delinquent and the Juvenile Court: Is There Still a Place for Rehabilitation?, 25 Conn. L. Rev. 57, 60 (1992). He cannot be "found guilty," but is rather "adjudicated delinquent." Id. A juvenile so adjudicated may then be placed in the custody of a state authority, or agency, which will attempt treatment. See id.
18. For a thorough treatment of the history of juvenile justice going back to the Code of Hammurabi, see Charles W. Thomas & Shay Bilchik, Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis, 76 J. Crim. L. Criminology 439, 442-46 (1985). But see Steven Schlossman & Stephenie Wallach, The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progressive Era, in 3 Crime & Justice in American History: Delinquency & Disorderly Behavior 253, 255 (Eric H. Monkkonen ed., 1991) ("The sparse historical writing about female delinquency concentrates on reformatories, especially the pioneering nineteenth-century institutions, rather than on the juvenile justice system as a whole." (footnote omitted)).
19. For a thorough treatment of the history of juvenile justice going back to the Code of Hammurabi, see Charles W. Thomas & Shay Bilchik, Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis, 76 J. Crim. L. Criminology 439, 442-46 (1985). But see Steven Schlossman & Stephenie Wallach, The Crime of Precocious Sexuality: Female Juvenile Delinquency in the Progressive Era, in 3 Crime & Justice in American History: Delinquency & Disorderly Behavior 253, 255 (Eric H. Monkkonen ed., 1991) ("The sparse historical writing about female delinquency concentrates on reformatories, especially the pioneering nineteenth-century institutions, rather than on the juvenile justice system as a whole." (footnote omitted)).
20. See generally Susan A. Burns, Is Ohio Juvenile Justice Still Serving Its Purpose?, 29 Akron L. Rev. 335 (1996) (surveying the history and purpose of juvenile law, analyzing the jurisdictional waiver under Ohio law, and offering suggestions for reforms for the juvenile system in light of its original rehabilitative purposes); Barry C. Feld, The Juvenile Court Meets the Principle of Offense: Punishment, Treatment, and the Difference it Makes, 68 B.U. L. Rev. 821 (1988) (discussing the early rehabilitative purpose of juvenile law and subsequent changes under Supreme Court decisions such as In re Gault); Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & Criminology 137 (1997) (examining changes in policy responses to juvenile crime in light of perceptions of developmental capacity of juveniles).
21. See generally Susan A. Burns, Is Ohio Juvenile Justice Still Serving Its Purpose?, 29 Akron L. Rev. 335 (1996) (surveying the history and purpose of juvenile law, analyzing the jurisdictional waiver under Ohio law, and offering suggestions for reforms for the juvenile system in light of its original rehabilitative purposes); Barry C. Feld, The Juvenile Court Meets the Principle of Offense: Punishment, Treatment, and the Difference it Makes, 68 B.U. L. Rev. 821 (1988) (discussing the early rehabilitative purpose of juvenile law and subsequent changes under Supreme Court decisions such as In re Gault); Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & Criminology 137 (1997) (examining changes in policy responses to juvenile crime in light of perceptions of developmental capacity of juveniles).
22. See generally Susan A. Burns, Is Ohio Juvenile Justice Still Serving Its Purpose?, 29 Akron L. Rev. 335 (1996) (surveying the history and purpose of juvenile law, analyzing the jurisdictional waiver under Ohio law, and offering suggestions for reforms for the juvenile system in light of its original rehabilitative purposes); Barry C. Feld, The Juvenile Court Meets the Principle of Offense: Punishment, Treatment, and the Difference it Makes, 68 B.U. L. Rev. 821 (1988) (discussing the early rehabilitative purpose of juvenile law and subsequent changes under Supreme Court decisions such as In re Gault); Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. Crim. L. & Criminology 137 (1997) (examining changes in policy responses to juvenile crime in light of perceptions of developmental capacity of juveniles).
23. See Thomas & Bilchik, supra note 15, at 440 (describing two ideological camps both critical of juvenile justice, the "due process liberals" and the "crime control conservatives").
24. The term "criminal justice system" is also referred to as "the adult criminal court" and "criminal court," to distinguish it from the juvenile court system.
25. See Joshua Dressier, Understanding Criminal Law 7 (2d ed. 1995).
26. As Dressier observes: [T]he principles of criminal responsibility, which are at the core of the criminal law, seek to identify the point at which it is fair to go from the factual premise, "D caused or assisted in causing X (a social harm) to occur," to the normative judgment, "D should be punished for having caused or assisted in causing X to occur." Id. at 3.
27. There are numerous theories to justify punishment of criminal offenders. For an overview of these theories, see Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its Processes 101-53 (6th ed. 1995).
28. See Dressier, supra note 19, at 15.
29. See Franklin D. Roosevelt, Looking Forward 208 (1933) ("[T]here is no doubt that probation, viewed from the selfish standpoint of protection to society alone, is the most efficient method that we have.").
30. But see Sara Sun Beale, What's Law Got to Do with It? The Political, Social, Psychological and Other Non-Legal Factors Influencing the Development of (Federal) Criminal Law, 1 Buff. Crim. L. Rev. 23, 24-26 (1997) (arguing that popular beliefs about crime and the effectiveness of harsher punishment are not bolstered by opinions of experts in the field of criminal policy).
31. See Kadish & Schulhofer, supra note 21, at 119 ("[O]ur penal policy is seen to move in three main stages. In the earliest the salient feature is a crude utilitarianism aiming at the reduction of crime through the weapon of terror." (quoting Leon Radzinowicz & J.W. Cecil Turner, A Study of Punishment I: Introductory Essay, 21 Can. B. Rev. 91, 91 (1943))).
32. In the seventeenth century Providence Plantations (now Rhode Island), treason, murder, manslaughter, witchcraft, burglary, buggery, sodomy, arson, and rape were all punishable by death. See The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations: 1647-1719 16-26 (John D. Cushing ed., 1977).
33. See, e.g., People v. Corapi, 42 Misc. 2d 247, 250 (N.Y. App. Term. 1964) ("The barbarities and cruelties of an early day, when society took over the function of revenge on those individuals who broke its laws, in time gave way to the belief that punishment should be imposed as a deterrent.").
34. See infra Part I.E.
35. For an example of the movement toward harsher standards in the federal system, see the Federal Sentencing Guidelines, 28 U.S.C. § 994, and 18 U.S.C. § 3553. For discussion of the shift toward a harsher juvenile standard, see Eric J. Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study of Texas 1973-1995, 23 Am. J. Crim. L. 563, 564-66 (1996) (discussing the transfer of juveniles to adult court and analyzing Texas statutes aimed at serious juvenile offenders); John B. Leete, Treatment and Rehabilitation or Hard Time: Is the Focus of Juvenile Justice Changing?, 29 Akron Law Rev. 491 (1996) (observing recent trends in Pennsylvania juvenile law and the politicization of the issue of juvenile crime); Danielle R. Oddo, Note, Removing Confidentiality Protection and the "Get Tough" Rhetoric: What Has Gone Wrong with the Juvenile Justice System?, 18 B.C. Third World L.J. 105, 106, 115-16 (1998) (commenting on the erosion of confidentiality protections for juveniles under the "get tough" standard of juvenile justice).
36. For an example of the movement toward harsher standards in the federal system, see the Federal Sentencing Guidelines, 28 U.S.C. § 994, and 18 U.S.C. § 3553. For discussion of the shift toward a harsher juvenile standard, see Eric J. Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study of Texas 1973-1995, 23 Am. J. Crim. L. 563, 564-66 (1996) (discussing the transfer of juveniles to adult court and analyzing Texas statutes aimed at serious juvenile offenders); John B. Leete, Treatment and Rehabilitation or Hard Time: Is the Focus of Juvenile Justice Changing?, 29 Akron Law Rev. 491 (1996) (observing recent trends in Pennsylvania juvenile law and the politicization of the issue of juvenile crime); Danielle R. Oddo, Note, Removing Confidentiality Protection and the "Get Tough" Rhetoric: What Has Gone Wrong with the Juvenile Justice System?, 18 B.C. Third World L.J. 105, 106, 115-16 (1998) (commenting on the erosion of confidentiality protections for juveniles under the "get tough" standard of juvenile justice).
37. For an example of the movement toward harsher standards in the federal system, see the Federal Sentencing Guidelines, 28 U.S.C. § 994, and 18 U.S.C. § 3553. For discussion of the shift toward a harsher juvenile standard, see Eric J. Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study of Texas 1973-1995, 23 Am. J. Crim. L. 563, 564-66 (1996) (discussing the transfer of juveniles to adult court and analyzing Texas statutes aimed at serious juvenile offenders); John B. Leete, Treatment and Rehabilitation or Hard Time: Is the Focus of Juvenile Justice Changing?, 29 Akron Law Rev. 491 (1996) (observing recent trends in Pennsylvania juvenile law and the politicization of the issue of juvenile crime); Danielle R. Oddo, Note, Removing Confidentiality Protection and the "Get Tough" Rhetoric: What Has Gone Wrong with the Juvenile Justice System?, 18 B.C. Third World L.J. 105, 106, 115-16 (1998) (commenting on the erosion of confidentiality protections for juveniles under the "get tough" standard of juvenile justice).
38. See infra Part I.E.
39. See infra Part I.C.
40. See infra notes 94-96 and accompanying text.
41. See Burns, supra note 16, at 337 n.10 (noting that under the common law children under seven lacked criminal capacity, children from seven to thirteen were rebuttably presumed to lack criminal capacity, and children fourteen and older had adult capacity to commit crimes); Paul Lerman, Delinquency and Social Policy: A Historical Perspective, in 3 Crime & Justice in American History: Delinquency & Disorderly Behavior 23, 23 (Eric H. Monkkonen ed., 1991) ("As might be expected, the colonists used the law of their native land as a basis for forming an American response to wayward youth.").
42. See State v. Doherty, 2 Tenn. (2 Overt.) 79 (1806) (finding twelve-year-old girl not guilty of murder, after arraignment and indictment in the criminal court, with only a cursory discussion of capacity).
43. See id.
44. Black's Law Dictionary defines doli capax as "[c]apable of malice or criminal intention .. . and so to become amenable to the criminal laws." Black's Law Dictionary 483 (6th ed. 1990).
45. See Doherty, 2 Tenn. at 88.
46. For instance: By the 1830s and 1840s, much of the urban seacoast population was composed of Irish and Germans who had been encouraged to immigrate as a result of food shortages and political repression. Once in the United States, they were channeled into low paying industrial work and poorly housed in expensive but squalid slums. Institute for the Study of Labor and Economic Crisis, The Iron Fist and the Velvet Glove: An Analysis of the U.S. Police 22 (3d ed. 1982).
47. Even worse, perhaps, children were put to work in factories: ("[B]y the action of Modern Industry, all family ties among the proletarians are torn asunder, and their children transformed into simple articles of commerce and instruments of labour . . . ."). Karl Marx & Freidrich Engels, Manifesto of the Communist Party, in The Marx-Engels Reader 473, 487-88 (Robert C. Tucker ed., 2d ed. 1978).
48. See Burns, supra note 16, at 336-37 nn.8-10 (citing Dean J. Champion & G. Larry Mays, Transferring Juveniles to Criminal Courts: Trends and Implications for Juvenile Justice 35 (1991)); see also Feld, supra note 16, at 822-23 & nn.5-7 (citing to articles discussing changes in family structure and function as the result of economic modernization and the Progressive response thereto). See generally Julian W. Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 122 (1909) (discussing the "palliative [and] curative" work of the juvenile courts).
49. See Burns, supra note 16, at 336-37 nn.8-10 (citing Dean J. Champion & G. Larry Mays, Transferring Juveniles to Criminal Courts: Trends and Implications for Juvenile Justice 35 (1991)); see also Feld, supra note 16, at 822-23 & nn.5-7 (citing to articles discussing changes in family structure and function as the result of economic modernization and the Progressive response thereto). See generally Julian W. Mack, The Juvenile Court, 23 Harv. L. Rev. 104, 122 (1909) (discussing the "palliative [and] curative" work of the juvenile courts).
50. But see Lerman, supra note 33, at 25-26 (discussing how, under the 1899 Illinois juvenile court statute, "distinctions among dependents, neglected children, status youth, and criminal offenders were often blurred . . . [so that] a youth . . . [could] be held in detention or sent to a state training school if he was destitute; or if he was homeless[,] . . . or if he had improper parental care").
51. The system was not always used as conceived. During the Progressive era, delinquency charges against female offenders often reflected racial stereotypes about immigrants and Victorian sexual mores. One example is the case of fifteen-year-old Deborah Horwitz, who was committed to a state girls' reformatory because of her sexual "adventures," based on evidence that included photographs taken of her hatless and with the top button of her high-necked blouse undone. See Schlossman & Wallach, supra note 15, at 262-63.
52. Black's Law Dictionary defines parens patriae as literally "parent of the country," referring] traditionally to [the] role of state as sovereign and guardian of persons under legal disability, such as juveniles . . . . It is the principle that the state must care for those who cannot take care of themselves, such as minors . . . [and] originates from the English common law . . . . In the United States, the parens patriae function belongs with the states. Black's Law Dictionary 1114 (6th ed. 1990); see also State ex rel. Caillouet v. Marmouget, 35 So. 529, 532 (La. 1903) (stating that in a juvenile action, the judge "takes the place of a father or the friend of a family, and decrees what, in his judgment, is best calculated to secure the morals of the child and her safety from evil associates").
53. See Feld, supra note 16, at 848.
54. See Illinois Juvenile Court Act of 1899, 1899 Ill. Laws 131; Thomas & Bilchick, supra note 15, at 451.
55. See Thomas & Bilchik, supra note 15, at 451.
56. See Catherine R. Guttman, Note, Listen to the Children: The Decision to Transfer Juveniles to Adult Court, 30 Harv. C.R.-C.L. L. Rev. 507, 511, (1995).
57. See State v. Taylor, 43 So. 54, 55 (La. 1907) ("The powers conferred on the judge holding a session of juvenile court are by the very terms of the act intended to be 'clearly distinguished from the powers exercised in the administration of the criminal law.' The care of dependent and neglected children is purely a civil matter."); see also Feld, supra note 16, at 825 ("In separating child from adult offenders, the juvenile court system also rejected the jurisprudence and procedure of adult criminal prosecutions.").
58. The term "delinquent child" has been defined as "any child under the age of 17 years who violates any law of this state . . . or who is incorrigible . . . [who] absents itself from its home . . . ." Robison v. Wayne Circuit Judges, 115 N.W. 682, 683 (Mich. 1908).
59. Children could be remanded to jails or alternate institutions. See State v. Shattuck, 45 N.H. 205, 206 (1864) (observing that boys under age 17 and females of any age could, at the judge's discretion, be sentenced to the House of Reformation rather than prison); see also Lita R. Holden, Juvenile Law, 73 Denv. U. L. Rev. 843, 845-46 & nn.21-25 (1996) (discussing due process debate over juvenile status offender classification).
60. The juvenile courts also had jurisdiction over offenses committed against children, such as parental abuse and neglect. See Hunt v. Wayne Circuit Judges, 105 N.W. 531, 539 (Mich. 1905) (discussing "the inherent power of the court . . . [to] exercise the removal of the child from a bad to a better environment" (citation omitted)).
61. See State ex rel. Caillouet v. Marmouget, 35 So. 529, 531 (La. 1903) (commenting that the purpose of an ordinance providing commitment to a detention home for vagrant juveniles was to "save children from their immature judgment from evil and from evil influences"); Robison, 115 N.W. at 685-86 (nullifying the Detroit Juvenile Court Act of 1907 on the grounds that the Act defined juvenile proceedings in a manner echoing criminal court proceedings to such an extent that the absence of procedural due process rendered the act unconstitutional, and noting, in dicta, that to so find is "regrettable in view of its beneficent purpose" which was to care for "unfortunate, delinquent, or neglected children"); Holden, supra note 50, at 843 nn.4-5 (discussing the "best interests" philosophy underlying juvenile court systems).
62. See Hunt, 105 N.W. at 539 ("The law recognizes, as the physical and the social senses recognize, the requirements of nurture and of education, mental and moral. Infancy imports wardship. It implies control, direction, restraint, supervision."); Scott & Grisso, supra note 16, at 142 ("Juvenile offenders, because they were young and malleable, were believed to be ideally suited to a regime grounded in rehabilitation.").
63. See State v. Taylor, 43 So. 54, 55 (La. 1907) (commenting on the purpose of a statute defining the power of the state with reference to the "care, treatment, and control" of juveniles, and noting that the statute "gives the juvenile court jurisdiction, not to try, convict, and punish, but to inquire into the matter and to determine 'what order for the commitment and custody and care of the child, the child's own good and the best interest of the state may require'").
64. See Smith v. Daily Mail Publ'g Co., 443 U.S. 97, 107 (1979) (Rehnquist, J., concurring) (observing that the "prohibition of publication of a juvenile's name is designed to protect the young person from the stigma of his misconduct"); Paul F. Kfoury, Confidentiality and the Juvenile Offender, 17 New Eng. J. on Crim. & Civ. Confinement 55 (1991).
65. Until the eighteenth century, little distinction was made between children and adults for the purpose of adjudication and sentencing. See Robert M. Mennel, Attitudes and Policies Toward Juvenile Delinquency in the United States: A Historiographical Review, in 3 Crime & Justice in American History 76-77, 85-86 (noting the proliferation of children's reformatories in the mid-1800s and the Illinois Act's combination of the concept of probation with the separation of juveniles from adults in adjudication and detention).
66. See infra note 60 and accompanying text.
67. See Taylor, 43 So. at 55 ("[T]he [jurisdiction of the] 'juvenile court' may be exercised . . . on the petition of any citizen setting forth that the child is neglected, dependent, or delinquent, and is in need of the care and protection of the court . . . .").
68. Scott & Grisso, supra note 16, at 143 n.26 (quoting Martin R. Gardner, The Right of Juvenile Offenders to be Punished: Some Implications of Treating Kids as Persons, 68 Neb. L. Rev. 182, 191 (1989)).
69. See In re Gault, 387 U.S. 1, 16 & n.18 (1967).
70. See id. at 16-17.
71. See Burns, supra note 16, at 338 (noting "[t]he juvenile system and its parens patriae philosophy remained relatively stable from its inception in 1899 through 1966" and pointing out that the Supreme Court decided its first juvenile law case with the Kent decision (citing Kent v. United States, 383 U.S. 541 (1966))).
72. See Dorszynski v. United States, 418 U.S. 424, 436 (1974) (quoting H.R. Rep. No. 81-2979, at 1 (1949)).
73. Mass. Ann. Laws ch. 119, § 53 (Law. Co-op. 1994).
74. Id. But see Feld, supra note 16, at 886 (criticizing the leniency of the rehabilitative model and noting that juvenile courts administering light sentences come under attack when juvenile offenders commit new crimes upon release).
75. See supra Part I.C.
76. See Larry J. Siegel & Joseph J. Senna, Juvenile Delinquency: Theory, Practice and Law 329-30 (1981).
77. Id. at 330.
78. See Mark A. Small, Introduction to Juvenile Justice: Comments and Trends, 15 Behav. Sci. & L. 119, 120 (1997).
79. Siegel & Senna, supra note 67, at 331.
80. See N.Y. Fam. Ct. Act § 351.1 (McKinney 1999). Designated felonies include: murder in the first and second degree, kidnapping in the first degree, arson in the first degree, assault in the first degree, manslaughter in the first degree, rape and sodomy in the first degree, aggravated sexual abuse, some kidnappings in the second degree, arson in the second degree, and robbery in the first degree for a 13-, 14-, or 15-year-old; burglary in the second degree, robbery in the second degree for a 14- or 15-year-old; assault in the second degree or robbery in the second degree for a 14- or 15-year-old who has committed a prior felony; and a felony committed by a child between the ages of seven and 16 if the court found that she committed two prior felonies. See id. § 301.2(8).
81. See id. § 351.1(1). Following a determination of a designated felony, the court must order a probation investigation and a diagnostic assessment. See id. For any other delinquent act, the court shall order a probation investigation and may order a diagnostic assessment. See id. § 351.1(2).
82. See id. § 351.1(1).
83. See id.
84. See id. § 351.1(4).
85. See id. § 352.1(1). Adjudication at the dispositional hearing is based on a preponderance of the evidence. See id. § 350.3(2).
86. Id. § 352.2(2)(a). For designated felony acts, the court will order a disposition required under § 352.2 that includes restrictive placement. See id. § 353.3. The court can determine, however, that restrictive placement is not necessary by considering: (a) the needs and best interests of the [child]; (b) the record and background of the [child] . . . ; (c) the nature and circumstances of the offense, including whether any injury was inflicted . . .; (d) the need for protection of the community; and (e) the age and physical condition of the victim. Id. § 353.5(2). With an order for restrictive placement in the case of a child who has committed a designated class A felony (e.g., murder), the child is placed with the division of youth for an initial period of five years and the child must be confined to a secure facility for 12 to 18 months and then a nonsecure facility for 12 additional months. See id. § 353.5(5)(a). If the child committed a designated felony act other than a class A felony, the child is placed with the division of youth for an initial period of three years, and is initially confined in a secure facility for six to 12 months and then a residential facility for six to 12 months. See id. § 353.5(5)(a). The placement can be extended up until the child's twenty-first birthday. See id. § 353.5(5)(d).
87. For instance, if neonaticide were treated in New York as a designated class A felony act, the teen could be sentenced with the division of youth for five years, and any extensions to restrictive placement may not go beyond the teen's twenty-first birthday. See id. For designated felony acts, the court will order a disposition required under § 353.5 that includes restrictive placement. The court can determine, however, that restrictive placement is not necessary by considering the mitigating factors listed above. See supra note 77.
88. See N.Y. Penal Law § 30.00(2) (McKinney 1998).
89. See id. §§ 60.10, 70.05.
90. See id. § 70.05.
91. See id. § 60.10(2) (directing that a person who commits a felony after having reached the age of 16 is sentenced under the adult criminal statutes unless adjudicated a juvenile offender under New York Penal Law § 720.20 or a previous or predicate felony offender under §§ 70.04; 70.06, 70.08, or 70.10).
92. See id. §§ 70.00, 70.02.
93. See N.Y. Crim. Proc. Law § 720.10 (McKinney 1995).
94. See id. § 720.10(2)(a)(i).
95. See id. § 720.20(1)(a); N.Y. Penal Law § 60.02.
96. See N.Y. Penal Law § 60.02(2) (directing that the sentence must be one to be imposed upon a conviction of a class E felony).
97. See id. § 60.02 & practice commentary. Under Article 65 of the New York Penal Code, the judge can sentence the teen to probation if he or she decides: institutional confinement for the term authorized by law is not appropriate; the defendant is in need of guidance, training, and assistance which can be effectively administered through probation supervision; and "such disposition is not inconsistent with the ends of justice." N.Y. Penal Law § 65.00.
98. See Burns, supra note 16, at 335 (noting that in Ohio, children 17 and younger "comprised 12% of . . . total arrests for murder in 1992, and 20% of violent crime arrests" in that year); Eric Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study in Texas 1973-1995, 23 Am. J. Crim. L. 563, 564 (1966); David M. Kennedy et al., Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 Law & Contemp. Probs. 147, 147 (1996) ("Since the mid-1980s, there has been a dramatic increase in youth gun violence."); Richard Rosenfeld & Scott H. Decker, Consent to Search and Seize: Evaluating an Innovative Youth Firearm Supression Program, 59 Law & Contemp. Probs. 197, 198 (1996) (noting that the percentage of juvenile offenders in St. Louis more than tripled from the early 1980s to the early 1990s); Jay B. Rosman, Beyond Contempt-Rethinking the Problem of Juvenile Crime, 27 Stetson L. Rev. 629, 630 n.4 (1997) ("Arrests of juveniles for violent crimes increased by 57% from 1983 to 1992, with juvenile arrests for murder increasing 128% in the same time period."); Kathleen A. Strottman, Note, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 708 (1998) (noting that between 1985 and 1995, juvenile arrests for violent offenses increased 63.7%, arrests of children aged 12 rose 211%, and arrests for 13- and 14-year-olds rose by 301%).
99. See Burns, supra note 16, at 335 (noting that in Ohio, children 17 and younger "comprised 12% of . . . total arrests for murder in 1992, and 20% of violent crime arrests" in that year); Eric Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study in Texas 1973- 1995, 23 Am. J. Crim. L. 563, 564 (1966); David M. Kennedy et al., Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 Law & Contemp. Probs. 147, 147 (1996) ("Since the mid-1980s, there has been a dramatic increase in youth gun violence."); Richard Rosenfeld & Scott H. Decker, Consent to Search and Seize: Evaluating an Innovative Youth Firearm Supression Program, 59 Law & Contemp. Probs. 197, 198 (1996) (noting that the percentage of juvenile offenders in St. Louis more than tripled from the early 1980s to the early 1990s); Jay B. Rosman, Beyond Contempt-Rethinking the Problem of Juvenile Crime, 27 Stetson L. Rev. 629, 630 n.4 (1997) ("Arrests of juveniles for violent crimes increased by 57% from 1983 to 1992, with juvenile arrests for murder increasing 128% in the same time period."); Kathleen A. Strottman, Note, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 708 (1998) (noting that between 1985 and 1995, juvenile arrests for violent offenses increased 63.7%, arrests of children aged 12 rose 211%, and arrests for 13- and 14-year-olds rose by 301%).
100. See Burns, supra note 16, at 335 (noting that in Ohio, children 17 and younger "comprised 12% of . . . total arrests for murder in 1992, and 20% of violent crime arrests" in that year); Eric Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study in Texas 1973- 1995, 23 Am. J. Crim. L. 563, 564 (1966); David M. Kennedy et al., Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 Law & Contemp. Probs. 147, 147 (1996) ("Since the mid-1980s, there has been a dramatic increase in youth gun violence."); Richard Rosenfeld & Scott H. Decker, Consent to Search and Seize: Evaluating an Innovative Youth Firearm Supression Program, 59 Law & Contemp. Probs. 197, 198 (1996) (noting that the percentage of juvenile offenders in St. Louis more than tripled from the early 1980s to the early 1990s); Jay B. Rosman, Beyond Contempt-Rethinking the Problem of Juvenile Crime, 27 Stetson L. Rev. 629, 630 n.4 (1997) ("Arrests of juveniles for violent crimes increased by 57% from 1983 to 1992, with juvenile arrests for murder increasing 128% in the same time period."); Kathleen A. Strottman, Note, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 708 (1998) (noting that between 1985 and 1995, juvenile arrests for violent offenses increased 63.7%, arrests of children aged 12 rose 211%, and arrests for 13- and 14-year-olds rose by 301%).
101. See Burns, supra note 16, at 335 (noting that in Ohio, children 17 and younger "comprised 12% of . . . total arrests for murder in 1992, and 20% of violent crime arrests" in that year); Eric Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study in Texas 1973- 1995, 23 Am. J. Crim. L. 563, 564 (1966); David M. Kennedy et al., Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 Law & Contemp. Probs. 147, 147 (1996) ("Since the mid-1980s, there has been a dramatic increase in youth gun violence."); Richard Rosenfeld & Scott H. Decker, Consent to Search and Seize: Evaluating an Innovative Youth Firearm Supression Program, 59 Law & Contemp. Probs. 197, 198 (1996) (noting that the percentage of juvenile offenders in St. Louis more than tripled from the early 1980s to the early 1990s); Jay B. Rosman, Beyond Contempt-Rethinking the Problem of Juvenile Crime, 27 Stetson L. Rev. 629, 630 n.4 (1997) ("Arrests of juveniles for violent crimes increased by 57% from 1983 to 1992, with juvenile arrests for murder increasing 128% in the same time period."); Kathleen A. Strottman, Note, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 708 (1998) (noting that between 1985 and 1995, juvenile arrests for violent offenses increased 63.7%, arrests of children aged 12 rose 211%, and arrests for 13- and 14-year-olds rose by 301%).
102. See Burns, supra note 16, at 335 (noting that in Ohio, children 17 and younger "comprised 12% of . . . total arrests for murder in 1992, and 20% of violent crime arrests" in that year); Eric Fritsch & Craig Hemmens, An Assessment of Legislative Approaches to the Problem of Serious Juvenile Crime: A Case Study in Texas 1973- 1995, 23 Am. J. Crim. L. 563, 564 (1966); David M. Kennedy et al., Youth Violence in Boston: Gun Markets, Serious Youth Offenders, and a Use-Reduction Strategy, 59 Law & Contemp. Probs. 147, 147 (1996) ("Since the mid-1980s, there has been a dramatic increase in youth gun violence."); Richard Rosenfeld & Scott H. Decker, Consent to Search and Seize: Evaluating an Innovative Youth Firearm Supression Program, 59 Law & Contemp. Probs. 197, 198 (1996) (noting that the percentage of juvenile offenders in St. Louis more than tripled from the early 1980s to the early 1990s); Jay B. Rosman, Beyond Contempt-Rethinking the Problem of Juvenile Crime, 27 Stetson L. Rev. 629, 630 n.4 (1997) ("Arrests of juveniles for violent crimes increased by 57% from 1983 to 1992, with juvenile arrests for murder increasing 128% in the same time period."); Kathleen A. Strottman, Note, Creating a Downward Spiral: Transfer Statutes and Rebuttable Presumptions as Answers to Juvenile Delinquency, 19 Whittier L. Rev. 707, 708 (1998) (noting that between 1985 and 1995, juvenile arrests for violent offenses increased 63.7%, arrests of children aged 12 rose 211%, and arrests for 13- and 14-year-olds rose by 301%).
103. 387 U.S. 1 (1967).
104. See id. at 55 (protecting the juvenile's constitutional privilege against self-incrimination); id. at 56 (granting juveniles a limited right to confront witnesses, and stating that sworn testimony is required where there is no valid confession "adequate to support the determination of the Juvenile Court"). For an examination of cases following the Gault decision that discuss due process in juvenile proceedings, see Feld, supra note 16, at 826-31.
105. See Gault, 387 U.S. at 18-19 nn.23-25 (discussing the failure of the juvenile court system to adequately treat juveniles); id. at 17 ("[Tjhe highest motives and most enlightened impulses led to a peculiar system for juveniles . . . . The constitutional and theoretical basis for this . . . is . . . debatable.").
106. See Scott & Grisso, supra note 16, at 145-48 (discussing reforms in the juvenile system in wake of the Gault decision).
107. See Martin, supra note 14, at 58; Scott & Grisso, supra note 16, at 145-48 ("In the post-Gault period, policymakers grappled with the challenge of constructing a retributive system that recognized the youth and immaturity of juvenile offenders."). See generally Feld, supra note 16, at 821-22 (discussing the change in juvenile sentencing practices toward a "justice model").
108. See Burns, supra note 16, at 339 & n.26 ("The purpose of the transfer proceedings . . . [is t]o protect the public in those cases where rehabilitation appears unlikely and . . . society would be better served by the criminal process by reason of the greater security which may be achieved or the deterring effect which that process is thought to accomplish." (quoting In re Mack, 260 N.E.2d 619, 620-21 (Ohio Ct. App. 1970))); Scott & Grisso, supra note 16, at 148.
109. See Burns, supra note 16, at 338 & n.22 (noting that the transfer procedure has existed since 1899); id. at 339 & n.27 (observing the significant increase in transfers with the onset of the "get tough" policy, and citing a study that found approximately 176,000 juvenile cases were transferred to adult courts nation-wide, as compared to fifteen per year, or around one percent).
110. See Stacey Sabo, Note, Rights of Passage: An Analysis of Waiver of Juvenile Court Jurisdiction, 64 Fordham L. Rev. 2425, 2425-28 (1996) (containing a thorough treatment of the three types of transfer statutes and listing which states have enacted such statutes).
111. See Charles Patrick Ewing, When Children Kill: The Dynamics of Juvenile Homicide 114 (1990) ("Today, all jurisdictions in the United States provide for the prosecution of some juveniles as adults."); see, e.g., Alaska Stat. § 47.12.030 (Michie 1998) (waiving juvenile court jurisdiction over minors at least 16 who commit felonies against a person, arson, traffic violations, and fish and game violations); id. § 47.12.100 (directing that the juvenile court hold a hearing to determine whether the minor is amenable to treatment under the juvenile statute, and if not, the minor may be prosecuted as an adult); Ariz. Rev. Stat. Ann. § 13-501 (West Supp. 1998) (waiving juvenile court jurisdiction over juveniles 15, 16, or 17 years old who are accused of seven enumerated offenses including first and second degree murder, forcible sexual assault, armed robbery, and other violent felonies or any felony committed by a chronic felony offender); Cal. Welf. & Inst. Code § 707 (West 1998) (describing hearing procedures to determine whether the juvenile is fit to be dealt with under the juvenile court, considering the age of the juvenile (16 or older) and the crime committed: including murder, attempted murder, rape by force, arson, assault with a firearm, etc.); Conn. Gen. Stat. Ann. § 46b-127 (West 1995) (mandating transfer to adult criminal court for children 14 or older who have been charged with a capital felony or class A or B felony, committed after such child reached the age of 14); Fla. Stat. Ann. §§ 985.225, 985.226 (West Supp. 1999) (mandating that a child be treated by the court as an adult where the child is indicted by a grand jury for an offense punishable by death or life imprisonment, or where the child is 14 or older and has been previously adjudicated for three felonies including one felony of violence against a person or use of a firearm, and allowing a voluntary waiver of juvenile court jurisdiction on demand by the child, or on motion by the state attorney where the child is 14 or over and has previously been adjudicated for murder or other violent crimes); 705 III. Comp. Stat. Ann. 405/5-4 (West 1993) (directing that juveniles 17 and older may be prosecuted in criminal court for any offense committed after the seventeenth birthday, but mandating transfer to criminal court for minors 15 or older who are accused of a forcible felony in connection with gang activity, if previously adjudicated delinquent for a felony offense); Ind. Code Ann. § 31-30-1-4 (Michie 1997) (directing that the juvenile court, in a discretionary waiver hearing, may waive jurisdiction of a child 14 or older to criminal court, where probable cause exists to believe the child committed a delinquent act, waiver would be in the best interest of the child and the community, and the state has established that the child is not amenable to rehabilitation); Kan. Stat. Ann. § 38-1636 (e)(1)-(2) (Supp. 1998) (directing the court to consider, in determining whether or not to prosecute as an adult, the necessity of protection of the community and whether the offense was committed in an aggressive, premeditated manner); Me. Rev. Stat. Ann. tit. 15, § 3101(4) (West 1998) (directing the juvenile court to consider, in a proceeding to determine the appropriateness of "bind-over" to criminal court, whether the offense was committed in a violent, premeditated manner, the "emotional attitude and pattern of living" of the juvenile, public safety and its need for protection, and whether future offenses would be deterred by prosecution as an adult); Md. Code Ann., Cts. & Jud. Proc. §§ 3-804, 3-817(c) (1995) (allowing juvenile court waiver of jurisdiction over a child under 15, charged with an act which would be punishable by death or life imprisonment if committed by an adult, but not until the court has determined by a preponderance of the evidence that the child is an "unfit subject for juvenile rehabilitative measures," and further directing that the court consider the age, mental
112. See generally Sabo, supra note 97, at 2436-46 (surveying state juvenile transfer statutes).
113. For further discussion of state juvenile transfer laws, see infra Part I.E.2-3.
114. See infra Part I.E.2-3.
115. For a list of states with such laws and a description of the waiver process, see Sabo, supra note 97, at 2427-28 & n.18. Since Sabo's writing, Oregon and Arizona have amended their juvenile statutes to provide a mandatory waiver of juvenile jurisdiction for enumerated crimes including, in the case of Arizona, first and second degree murder, forcible sexual assault, armed robbery, and any felony committed by a chronic felony offender. See Ariz. Rev. Stat. Ann. § 13-501(A) (West Supp. 1998); Or. Rev. Stat. §§ 7306-1.1, 7306-2.6 (1998). In addition, Wyoming has amended its statute to provide that certain juvenile cases may be commenced in the criminal court, including felony cases where the offender is at least 17 years old, and cases against a juvenile at least 14 and charged with a violent felony. See Wyo. Stat. Ann § 14-6-203(f) (Michie 1997 & Supp. 1998); see also Colo. Rev. Stat. § 19-2-517 (1998) (formerly § 19-2-805, amended and relocated, effective Jan. 1, 1997) (permitting prosecutor to file indictment directly in criminal court without a hearing when the juvenile is 14 or older and charged with class one or class two felony, use of a deadly weapon, or has been adjudicated a juvenile delinquent in conjunction with a felony within the previous two years).
116. See, e.g., Ind. Code Ann. § 31-30-1-4(a) (Michie 1997) (listing crimes that the juvenile court does not have jurisdiction over, including murder, kidnapping, rape, carjacking, and criminal gang activity).
117. See, e.g., Me. Rev. Stat. Ann. tit. 15, § 3101(4)(E) (West 1998) (stating that the juvenile court shall bind a juvenile over to the Superior Court if it finds probable cause to believe murder or another felony was committed, and after considering the seriousness of the crime, the need for public safety, and characteristics of the offender, the State establishes it is appropriate to prosecute the juvenile in adult court, and the juvenile has failed to provide proof of the opposite); Tenn. Code Ann. § 37-1-134(a)(1)-(4) (1996) (stating "[t]he disposition of the child shall be as if the child were an adult" if the child were 16 or older, a hearing was held, on notice, to determine probable cause, the child is not mentally ill, and the interests of the community require the child be legally restrained).
118. See, e.g., Ariz. Rev. Stat. Ann. § 13-501(A) (listing, among others, first or second degree murder and forcible sexual assault); Del. Code. Ann. tit. 10, § 1010(a) (1998) (listing crimes of first or second degree murder and kidnapping, a judgement of non-amenability to rehabilitation, and a previous adjudication of delinquency under a felony charge, as determinants for a child of any age to be automatically subject to adult criminal court jurisdiction; and listing first degree conspiracy, rape, arson, robbery, or drug charges for automatic waiver of juvenile jurisdiction over a child 16 or older); N.Y. Penal Law § 30.00(2) (McKinney Supp. 1999) (listing kidnapping, arson, first degree assault, first degree manslaughter, first degree rape, aggravated sexual abuse, sodomy, robbery, and burglary, as crimes that, if committed by a child 14 or older, mandate proceeding against such child as an adult; and listing second degree murder, charged against a child 13 or older, as mandating proceeding against such child as an adult).
119. See Ill. Comp. Stat. Ann. 405/5-4(3.1)(i)-(ii) (West 1993); Ind. Code Ann. § 31-30-1-4(7),(8) (Michie 1997); Mont. Code Ann. § 41-5-206(1)(b)(xi) (1997); N.J. Stat. Ann. § 2A:4A-26(a)(2)(f) (West Supp. 1998).
120. See Alaska Stat. § 47.12.030(a)(3) (Michie 1998); Ariz. Rev. Stat. Ann. § 13-501(A)(4); Colo. Rev. Stat. § 19-2-517(1)(a)(II)(C) (1998); Ind. Code Ann. § 31-30-1-4(10)-(11); Md. Code Ann., Cts. & Jud. Proc. §§ 3-804(e)(4)(vii), 3-804(e)(4)(xii) (1995); Nev. Rev. Stat. Ann. § 62.080 (2)(b) (Michie 1996).
121. See Conn. Gen. Stat. Ann. § 46b-127(a) (West 1995); Del. Code Ann. tit. 10, § 1010(a)(1); Fla. Stat. Ann. § 985.225(1) (West Supp. 1999); Md. Code Ann., Cts. & Jud. Proc. § 3-804(e)(1) (1995).
122. See Alaska Stat. § 47.12.030(a)(2); Mont. Code Ann. § 41-5-206(1)(b)(ii) (limiting mandatory transfer in the case of arson and other enumerated crimes to juveniles 17 or older); N.Y. Penal Law § 30.00(2).
123. See Alaska Stat. § 47.12.030(a)(3); Ariz. Rev. Stat. Ann. §§ 13-501(A)(5), 13-501(A)(6); Colo. Rev. Stat. §§ 19-2-517(1)(a)(II)(A), 19-2-517(1)(a)(III), 19-2-517(1)(a)(V); Fla. Stat. Ann. § 985.226(2)(b); Minn. Stat. Ann. § 260.125 subd. 3a (West 1998).
124. See Md. Code. Ann., Cts. & Jud. Proc. § 3-804(e)(4)(vi); Mont. Code Ann. § 41-5-206(1)(a)(i); N.Y. Penal Law § 30.00(2).
125. A lengthy discussion on the mechanism of prosecutorial waiver (laws that allow prosecutors, in their discretion, to request a hearing on the issue of jurisdiction, or in some cases, to file an indictment directly in the criminal court) is beyond the scope of this Note. For an excellent discussion of such statutes, arguing that judicial discretionary waiver laws are the proper statutory response to juvenile crime, see Sabo, supra note 97, at 2436-39, 2445-46.
126. See Cal. Welf. & Inst. Code § 707(a) (West 1998) ("[T]he juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law . . . .").
127. See id.
128. See D.C. Code Ann. § 16-2307 (e)(1)-(6) (1997).
129. See Del. Code Ann. tit. 10, § 1010 (4)(c) (1998); Fla. Stat. Ann. § 985.226(3)(c)(7)(a) (West Supp. 1999); Idaho Code § 20-508(8)(e) (1997); Iowa Code Ann. § 232.45(8)(b) (West Supp. 1998); Kan. Stat. Ann. § 38-1636(e)(5) (Supp. 1998); Mass. Ann. Laws ch. 119, § 61 (Law Co-op. 1994); Minn. Stat. Ann. § 260.125 Subd. 2b(3) (West 1998); Miss. Code Ann. § 43-21-157(5)(h) (1993); Mo. Ann. Stat. § 211.071(6)(4) (West 1996); N.H. Rev. Stat. Ann. § 169-B:24(1)(g) (1998); N.J. Stat. Ann. § 2A:4A-26(a)(1)(b) (West 1998); Okla. Stat. Ann. tit. 10, § 419C.349(d)-(e) (West 1998); Or. Rev. Stat. § 7303-4.3(B)(4) (1998); 42 Pa. Cons. Stat. Ann. § 6355(a)(4)(iii)(A) (West Supp. 1998); Tenn. Code Ann. § 37-1-134(b)(1) (1996); Utah Code Ann. § 78-3a-603(3)(f) (1996); Vt. Stat. Ann. tit. 33 § 5506(d)(2) (1992); Va. Code Ann. § 16.1-269.1(A)(4)(e) (Michie 1996); Wis. Stat. Ann. § 938.18(5)(a) (West Supp. 1998); Wyo. Stat. Ann. § 14-6-237(b)(vi) (Michie 1997 & Supp. 1998).
130. See, e.g., Md. Code. Ann., Cts. & Jud. Proc. § 3-817(d)(3) (1995); Mass. Ann. Laws ch. 119, § 61; N.D. Cent. Code § 27-20-34(1)(b)(4)(b) (1991); Tenn. Code Ann. § 37-1-134(b)(5).
131. See, e.g., Utah Code Ann. § 78-3a-603(3)(e) (1996) ("[T]he maturity of the minor as determined by considerations of his home, environment, emotional attitude, and pattern of living."); Wyo. Stat. Ann. § 14-6-237(b)(v)(Michie 1997) ("The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.").
132. See, e.g., Mass. Ann. Laws ch. 119, § 61 (determining "whether the child presents a danger to the public").
133. See, e.g., Miss. Code Ann. § 43-21-157(5)(d) (noting "[w]hether or not the alleged offense was committed in an aggressive, violent, premeditated or wilful [sic] manner"); Tenn. Code Ann. § 37-1-34(b)(4) (noting "whether the offense was committed in an aggressive and premeditated manner"); Wyo Stat. Ann. § 14-6-237(b)(ii) (noting "[w]hether the alleged offense was committed in an aggressive, violent, premeditated or willful manner").
134. See, e.g., Kan. Stat. Ann. § 38-1636(e)(7) (Supp. 1998); Mass. Ann. Laws ch. 119, § 61; Minn. Stat. Ann. § 260.125 Subd. 2b.(5); Wis. Stat. Ann. § 938.18(5)(c).
135. Alaska Stat. § 47.12.010 (Michie 1998).
136. See id.
137. Colo. Rev. Stat. Ann. § 19-2-102 (West 1998).
138. Black's Law Dictionary defines "recidivist" as a "habitual criminal; a criminal repeater. An incorrigible criminal. One who makes a trade of crime." Black's Law Dictionary 1269 (6th ed. 1990).
139. Del. Code Ann. tit. 10 § 1002 (1998).
140. See Barbara Ehrenreich, Where Have All the Babies Gone?, Life, Jan. 1998, at 68, 69 (defining neonaticide as "the killing of an infant within 24 hours of birth").
141. As Barbara Ehrenreich observed: Infanticide does not, of course, represent some unprecedented breakdown in morality. For thousands of years, in almost every culture, infanticide - and especially neonaticide . . . has been the family planning method of choice, if only because the alternatives were both dangerous and unreliable. . . . Roman law gave fathers the power to determine which of their babies would live; the ancient Assyrians countenanced infanticide while making abortion a capital crime punishable by impaling. As recently as 1899, the police reported finding 55 tiny corpses in Philadelphia alone. Id. Humans practiced infanticide as early as the Great Ice Age, roughly 70,000 years ago. See Owen D. Jones, Evolutionary Analysis in Law: An Introduction and Application to Child Abuse, 75 N.C. L. Rev. 1117, 1195 (1997). Infanticide was common among ancestral hunter-gatherers, horticulturalists, and agrarian societies. See id. Greeks and Romans widely and openly practiced infanticide, often by abandoning infants in wild areas. See id.
142. See Edward Saunders, Neonaticides Following Secret Pregnancies: Seven Case Reports, 104 Pub. Health Rep. 368, 369 (1989). As Susan Scrimshaw observed: The ancient Greeks destroyed weak, deformed, or unwanted children; the Chinese wanted many sons and few daughters and did not let some infants, particularly daughters, survive. Japanese farmers spoke of infanticide as "thinning out," as they did with their rice fields. In India, many daughters were not allowed to live. Eskimos left babies out in the snow, while in the Brazilian jungle, undesired infants were left under the trees. In London in the 1860s, dead infants were a common sight in parks and ditches. Susan C.M. Scrimshaw, Infanticide in Human Populations: Societal and Individual Concerns, in Infanticide: Comparative and Evolutionary Perspectives 439, 439 (Glenn Hausfater & Sarah Blaffer Hrdy eds., 1984) (citations omitted).
143. See Edward Saunders, Neonaticides Following Secret Pregnancies: Seven Case Reports, 104 Pub. Health Rep. 368, 369 (1989). As Susan Scrimshaw observed: The ancient Greeks destroyed weak, deformed, or unwanted children; the Chinese wanted many sons and few daughters and did not let some infants, particularly daughters, survive. Japanese farmers spoke of infanticide as "thinning out," as they did with their rice fields. In India, many daughters were not allowed to live. Eskimos left babies out in the snow, while in the Brazilian jungle, undesired infants were left under the trees. In London in the 1860s, dead infants were a common sight in parks and ditches. Susan C.M. Scrimshaw, Infanticide in Human Populations: Societal and Individual Concerns, in Infanticide: Comparative and Evolutionary Perspectives 439, 439 (Glenn Hausfater & Sarah Blaffer Hrdy eds., 1984) (citations omitted).
144. See Saunders, supra note 129, at 369.
145. See id.; see also Kathryn L. Moseley, The History of Infanticide in Western Society, 1 Issues L. & Med. 345, 345-61 (1986) (discussing the early history of infanticide including the common practice of killing handicapped newborns).
146. See Saunders, supra note 129, at 369.
147. See Judith A. Osborne, The Crime of Infanticide: Throwing Out the Baby with the Bathwater, 6 Can. J. Fam. L. 47, 49 (1987); see also Peter C. Hoffer & N.E.H. Hull, Murdering Mothers: Infanticide in England and New England 1558-1803, at 3 (1981) (noting that anthropologists have estimated that paleolithic parents killed as many as 50% of their newborn females); Jones, supra note 128, at 1195 (discussing early beginnings of infanticide).
148. See Judith A. Osborne, The Crime of Infanticide: Throwing Out the Baby with the Bathwater, 6 Can. J. Fam. L. 47, 49 (1987); see also Peter C. Hoffer & N.E.H. Hull, Murdering Mothers: Infanticide in England and New England 1558-1803, at 3 (1981) (noting that anthropologists have estimated that paleolithic parents killed as many as 50% of their newborn females); Jones, supra note 128, at 1195 (discussing early beginnings of infanticide).
149. See Saunders, supra note 129, at 369.
150. See Steven Pinker, Why They Kill Their Newborns, N.Y. Times, Nov. 2, 1997 (Magazine), at 52.
151. See id. Even today, being young and single while pregnant, especially when giving birth alone without any planning or prenatal care, is not a positive sign for successful motherhood. See id. at 54.
152. See Osborne, supra note 133, at 49.
153. See Jones, supra note 128, at 1196. Even though a crime, infanticide nevertheless continued. See id. In the early Middle Ages, people maintained a moral distinction between infanticide, which was prohibited, and exposure (where the parent abandoned the baby), which was not. See id.
154. See Osborne, supra note 133, at 49 (discussing the Stuart Bastard Neonaticide Act of 1624, 21 Jac. I, c.27).
155. See id.
156. See id.
157. See Ann Jones, Women Who Kill 44 (1980).
158. See id.
159. See id. at 45.
160. See id. at 45, 49. The last public hanging of a woman for neonaticide in the United States occurred in Massachusetts on 1778; thereafter, the compulsory death penalty was replaced with an optional prison term. See id. at 60.
161. See Constance B. Backhouse, Desperate Women and Compassionate Courts: Infanticide in Nineteenth Century Canada, 34 U. Toronto L.J. 447, 448 (1984) (stating that unmarried women who became pregnant became disgraces to their families, were cut off from families and friends, and were left to fend for themselves usually making money by prostitution); Osborne, supra note 133, at 49.
162. See Osborne, supra note 133, at 49.
163. See id. at 50.
164. See id. at 51.
165. See id. at 51; see also Backhouse, supra note 146, at 461-62 (stating neonaticide cases in Canada in the 1860s were generally dismissed, or the defendant was acquitted).
166. See Backhouse, supra note 146, at 463.
167. See id.
168. See id. Furthermore, poverty and diseases resulted in high rates of infant mortality in the nineteenth century. Because the death of newborns was so common, the killing of a child by a poor and desperate woman seemed less reprehensible. See Osborne, supra note 133, at 52.
169. See, e.g., Robyn Lansdowne, Infanticide: Psychiatrists in the Plea Bargaining Process, 16 Monash U. L. Rev. 41, 60 (1990) (discussing how illegitimacy is no longer a social stigma, better birth control methods are now available, and poverty is "alleviated by state support"); Steven E. Pitt & Erin M. Bale, Neonaticide, Infanticide, and Filicide: A Review of the Literature, 23 Bull. Am. Acad. Psychiatry & L. 375, 380 (1995) (noting that neonatal homicide rates are lower since Roe v. Wade, but neonaticide may be higher in rural areas where abortion is not socially acceptable or available).
170. See, e.g., Robyn Lansdowne, Infanticide: Psychiatrists in the Plea Bargaining Process, 16 Monash U. L. Rev. 41, 60 (1990) (discussing how illegitimacy is no longer a social stigma, better birth control methods are now available, and poverty is "alleviated by state support"); Steven E. Pitt & Erin M. Bale, Neonaticide, Infanticide, and Filicide: A Review of the Literature, 23 Bull. Am. Acad. Psychiatry & L. 375, 380 (1995) (noting that neonatal homicide rates are lower since Roe v. Wade, but neonaticide may be higher in rural areas where abortion is not socially acceptable or available).
171. See Campaign For Our Children, Daily News (visited Apr. 10, 1999) 〈http:// www.cfoc.org/september/dailynews92997.html〉.
172. See id.; see, e.g., Resnick, supra note 3, at 1419 (estimating that the incidence of neonaticide in this country is in the hundreds or even thousands).
173. Resnick, supra note 3, at 1415.
174. See infra note 264 and accompanying text; see also Oberman, supra note 7, at 4 (discussing a 14-year-old who never knew she was pregnant until giving birth on the toilet).
175. Jones, supra note 128, at 1121.
176. See supra Part II.A.
177. In general, "[a]ll organisms, including people, are products of the historical process of differential survival and reproduction that Charles Darwin called natural selection." Martin Daly & Margo Wilson, A Sociobiological Analysis of Human Infanticide, in Infanticide: Comparative and Evolutionary Perspectives 487, 487 (Glenn Hausfater & Sarah Blaffer Hrdy eds., 1984).
178. See Scrimshaw, supra note 129, at 446.
179. See id.
180. Daly & Wilson, supra note 161, at 488 (defining parental fitness as the ability of a parent to survive and raise future children that will also survive and reproduce).
181. Id.
182. See Jones, supra note 128, at 1149, 1176. Dr. Owen Jones analyzed the evolutionary characteristics of infanticide in his research on the evolution of human biology and its impact on child abuse. See id. at 1160-70 (discussing his model of how to incorporate evolutionary analysis in reviewing a particular legal goal). Although this Note does not perform an evolutionary analysis of neonaticide, the topic certainly warrants future analysis, especially as defense attorneys explore the possibility of a neonaticide syndrome defense. The four steps in Dr. Jones' model are: (1) the identification stage, to determine what is the legal goal and how evolutionary analysis will further that goal; (2) the information stage, to determine what evolutionary theories and predictions exist; (3) the integration stage, to determine whether evolutionary theories conflict; and (4) the application stage, to determine how evolutionary theories can help to generate new legal strategies and future research. See id. at 1160-1241.
183. This factor refers to the fact that babies are more likely to be killed than toddlers or older children.
184. See Jones, supra note 128, at 1182. Other theories addressed in the Jones article include the exploitation theory, the resource competition theory, and the reproductive access theory. See id. at 1175-81. Daly and Wilson label the factors linked to infanticide using cost-benefit questions: (1) what is the offspring's relationship to the parents; (2) what is the need of the offspring; and (3) what alternative uses might a parent make of the resources it must invest in the offspring. See Daly & Wilson, supra note 161, at 489-93. They predicted that a maternal incapacity to cope with the demand of child rearing is a prevalent rationale for infanticide. See id. at 492.
185. See Jones, supra note 128, at 1200-08 & nn.271-300 (studies show infanticidal mothers are young, single, and poor).
186. See Daly & Wilson, supra note 161, at 492.
187. See id. at 495-97. The study was conducted in Canada to determine if the killing of children was consistent with Daly and Wilson's cost-benefit questions, which is similar to the DPS evolutionary theory of infanticide. See id. The study examined 1059 cases of minors being killed between 1961 and 1979 of which the victim was less than one year old in 158 cases. See id. The results were as follows: 93% of cases were infants versus 59% were one year old victims; "only 39.5% of 38 mothers committing infanticide [in Canada during 1977 to 1979] were legally married"; and 15.7% of infanticidal mothers "were 17 years old or less compared to 3.1% of all new mothers in Canada in the same period." Id. at 496-97.
188. For instance, as late as 1833, over 164,000 babies were left at foundling hospitals in France in a legalized form of infanticide. See Jones, supra note 128, at 1197. Foundling hospitals became popular in Europe in the 1700s with the idea that parents would leave babies in hospitals instead of killing them. The number of babies left was so enormous, however, that their survival became rare. In fact, leaving a baby at a foundling hospital in essence was legalized infanticide. See id.
189. As Daly and Wilson put it: In societies such as our own, where infanticide is condemned in all circumstances, cases occur nonetheless, and it appears that the infanticidal parties are sensitive to these same predictors of fitness. . . . The psychology that occasionally permits such drastic failures of parental inclination nevertheless exhibits an adaptive logic and is interpreted readily, therefore, as a product of natural selection. Daly & Wilson, supra note 161, at 502.
190. Ania Wilczynski, Child Homicide 30 (1997).
191. See Oberman, supra note 7, at 23-24; see also Resnick, supra note 3, at 1415 (noting the same conclusion after studying 34 neonaticide offenders).
192. See infra notes 177-96 and accompanying text.
193. See Resnick, supra note 3, at 1416. As a note, some experts in neonaticide have interpreted Dr. Resnick's analysis as stating that the main motivation for neonaticide is the undesirability of the newborn, and not mental illness. See, e.g., Mauro V. Mendlowicz et al., A Case-Control Study on the Socio-Demographic Characteristics of 53 Neonaticidal Mothers, 21 Int'l J.L. & Psychiatry 209, 213-14 (1998) (reporting on a study of 53 neonaticide cases between 1900 and 1995 in Rio de Janeiro). In comparing mothers who committed neonaticide with a control group of mothers with normal births, the researchers found statistically significant factors to be younger age, unmarried status, lack of education, no previous children, and no previous induced abortion for the neonaticide subjects. See id. at 214-18. They concluded that the main motivation driving a mother to kill her newborn is the undesirability of the newborn. See id. at 218. As discussed in this part, however, while the mothers may not be psychotic or psychologically ill at childbirth, their denial, fear, and isolation are all substantial factors in the resulting death.
194. See, e.g., infra note 182 and accompanying text.
195. See Green & Manohar, supra note 8, at 122. For instance, in two case studies, Dr. Brozovsky and Dr. Falit observed the following: Both perpetrators - one 14, the other 15 - feared abandonment by their mothers. This fear was heightened when they became pregnant, and the girls dealt with their condition by massive denial. When they were no longer able to deny the reality with the birth of the child, they became acutely disorganized and murdered their infants. Saunders, supra note 129, at 370 (citing M. Brozovsky & H. Falit, Neonaticide: Clinical and Psychodynamic Consideration, 10 Am. Acad. Child Psychiatry 673-83 (1971)).
196. See David H. Strauss et al., Maladaptive Denial of Physical Illness: A Proposal for DSM-IV, 147 Am. J. Psychiatry 1168, 1168 (1990).
197. See Robert Kaplan & Therese Grotowski, Denied Pregnancy: A Case Report, (visited Oct. 8, 1998) 〈http://www.ozemail.com.au/~rkaplan/papers/Denied.html〉 (addressing cases of denial).
198. See id. (citing C. Brezinka et al., Denial of Pregnancy: Obstetric Aspects, 15 J. Psychosomatic Obstetrics & Gynecology 1, 1-8 (1994)). This denial is understandable, because nearly all the subjects reported irregular menstruation-like bleeding during their pregnancy. See id.
199. See id. (citing C. Bonnet, Adoption at Birth: Prevention Against Abandonment or Neonaticide, 17 Child Abuse & Neglect 501, 501-13 (1993)).
200. Wilczynski, supra note 174, at 49. In another study, Dr. Margaret G. Spinelli, Director of the Maternal Mental Health Program at Psychiatric Institute, interviewed 15 women charged with first or second degree murder after alleged infanticides, 10 of which were neonaticides. See Infanticide: Crime? Disorder? (visited Oct. 8, 1998) 〈http://156.111.80.209/n13/Infant.htm〉. Dr. Spinelli found similar backgrounds and symptoms for all including suffering childhood traumas, dissociative disorder, denial of pregnancy, and long-standing mood disorders. See id. Labor and delivery were unassisted and carried out in secret. See id. "Unable to recall the actual delivery, the mothers were often unable to be witness in their own defense." Id.
201. See Kaplan & Grotowski, supra note 181 (citing D. Bluestein & C.M. Rutledge, Determinants of Delayed Pregnancy Testing Among Adolescents, 35 J. Fam. Prac., 406, 406-410 (1992)).
202. See supra note 182; infra note 189 (regarding menstrual bleeding during pregnancy).
203. See Merle Hoffman, Fatal Denial?: The Tragic Case of Amy Grossberg and Brian Peterson (visited Oct. 8, 1998) 〈http://www.womensnet.apc.org/onissues/ sp97hoffman.html〉.
204. Id. (quoting Dr. Phillip J. Resnick, Psychiatry Professor at Case Western Reserve Medical School). The emotional response called bonding is more complex than the public believes. See Pinker, supra note 135, at 52. "A new mother will first coolly assess the infant and her current situation and only in the next few days begin to see it as a unique and wonderful individual. Her love will gradually deepen in ensuing years." Id.
205. Several psychiatrists proposed that an adjustment disorder called "maladaptive denial of physical illness" be added to the Diagnostic and Statistical Mental Disorders (DSM-IV). See Strauss, supra note 180, at 1168. Psychiatrists define this disorder as persistent denial of having a physical disorder in response to symptoms, signs, or diagnosis of a physical illness that exposes the individual to a significantly higher risk of serious physical illness or death. See id. at 1169. Some psychiatrists have suggested that this new diagnosis include denial of physical conditions such as pregnancy because such denial can lead to a mother's failure to receive prenatal care and to neonaticide. See Laura J. Miller, Maladaptive Denial of Pregnancy, 148 Am. J. Psychiatry 1108, 1108 (1991); see also Johann Kinzl & Wilfried Biebl, Disavowel of Pregnancy: An Adjustment Disorder, 148 Am. J. Psychiatry 1620, 1620-21 (1991) (suggesting that denial of pregnancy be included in this new diagnosis because the denial of pregnancy is an adjustment disorder in which the mother denies her pregnancy to reduce unpleasant affects). In response, the psychiatrists diagnosing the new adjust- ment disorder agreed to include denial of pregnancy in the maladaptive denial of physical illness disorder. See David H. Strauss et al., Dr. Strauss and Associates Reply, 148 Am. J. Psychiatry 1108, 1108 (1991). It is unclear, however, if "maladaptive denial of physical illness and pregnancy" is truly recognized by psychologists and whether it could be used as a defense in a neonaticide criminal proceeding. See American Psychiatric Association, Diagnostic And Statistical Manual of Mental Disorders 623-27 (4th ed. 1994) (listing of subtypes under adjustment disorder which does not include "maladaptive denial of physical illness"). Nevertheless, defense attorneys should be aware of the proposed disorder when arguing a neonaticide defense. Maladaptive denial of pregnancy can be distinguished from psychotic denial of pregnancy among chronic mentally ill women and pregnancy kept secret from others but not actually denied by the mother. For a discussion of psychotic denial of pregnancy, see Laura J. Miller, Psychotic Denial of Pregnancy: Phenomenology and Clinical Management, 41 Hosp. & Community Psychiatry 1233 (1990). Denial of pregnancy by women who are not psychotic is characterized by evanescent awareness of pregnancy that is quickly eliminated from consciousness, lack of emotional response to pregnancy, and a high incidence of lack of somatic changes (e.g., no significant increase in weight and continuation of cyclic vaginal bleeding). See id. at 1235. Typically, family members and friends also are unaware of the pregnancy. See id. In contrast, women with psychotic denial go back and forth between denial and acceptance of pregnancy, undergo the typical body changes associated with pregnancy, and others around them are aware of the pregnancy. See id.
206. Several psychiatrists proposed that an adjustment disorder called "maladaptive denial of physical illness" be added to the Diagnostic and Statistical Mental Disorders (DSM-IV). See Strauss, supra note 180, at 1168. Psychiatrists define this disorder as persistent denial of having a physical disorder in response to symptoms, signs, or diagnosis of a physical illness that exposes the individual to a significantly higher risk of serious physical illness or death. See id. at 1169. Some psychiatrists have suggested that this new diagnosis include denial of physical conditions such as pregnancy because such denial can lead to a mother's failure to receive prenatal care and to neonaticide. See Laura J. Miller, Maladaptive Denial of Pregnancy, 148 Am. J. Psychiatry 1108, 1108 (1991); see also Johann Kinzl & Wilfried Biebl, Disavowel of Pregnancy: An Adjustment Disorder, 148 Am. J. Psychiatry 1620, 1620-21 (1991) (suggesting that denial of pregnancy be included in this new diagnosis because the denial of pregnancy is an adjustment disorder in which the mother denies her pregnancy to reduce unpleasant affects). In response, the psychiatrists diagnosing the new adjust-ment disorder agreed to include denial of pregnancy in the maladaptive denial of physical illness disorder. See David H. Strauss et al., Dr. Strauss and Associates Reply, 148 Am. J. Psychiatry 1108, 1108 (1991). It is unclear, however, if "maladaptive denial of physical illness and pregnancy" is truly recognized by psychologists and whether it could be used as a defense in a neonaticide criminal proceeding. See American Psychiatric Association, Diagnostic And Statistical Manual of Mental Disorders 623-27 (4th ed. 1994) (listing of subtypes under adjustment disorder which does not include "maladaptive denial of physical illness"). Nevertheless, defense attorneys should be aware of the proposed disorder when arguing a neonaticide defense. Maladaptive denial of pregnancy can be distinguished from psychotic denial of pregnancy among chronic mentally ill women and pregnancy kept secret from others but not actually denied by the mother. For a discussion of psychotic denial of pregnancy, see Laura J. Miller, Psychotic Denial of Pregnancy: Phenomenology and Clinical Management, 41 Hosp. & Community Psychiatry 1233 (1990). Denial of pregnancy by women who are not psychotic is characterized by evanescent awareness of pregnancy that is quickly eliminated from consciousness, lack of emotional response to pregnancy, and a high incidence of lack of somatic changes (e.g., no significant increase in weight and continuation of cyclic vaginal bleeding). See id. at 1235. Typically, family members and friends also are unaware of the pregnancy. See id. In contrast, women with psychotic denial go back and forth between denial and acceptance of pregnancy, undergo the typical body changes associated with pregnancy, and others around them are aware of the pregnancy. See id.
207. Several psychiatrists proposed that an adjustment disorder called "maladaptive denial of physical illness" be added to the Diagnostic and Statistical Mental Disorders (DSM-IV). See Strauss, supra note 180, at 1168. Psychiatrists define this disorder as persistent denial of having a physical disorder in response to symptoms, signs, or diagnosis of a physical illness that exposes the individual to a significantly higher risk of serious physical illness or death. See id. at 1169. Some psychiatrists have suggested that this new diagnosis include denial of physical conditions such as pregnancy because such denial can lead to a mother's failure to receive prenatal care and to neonaticide. See Laura J. Miller, Maladaptive Denial of Pregnancy, 148 Am. J. Psychiatry 1108, 1108 (1991); see also Johann Kinzl & Wilfried Biebl, Disavowel of Pregnancy: An Adjustment Disorder, 148 Am. J. Psychiatry 1620, 1620-21 (1991) (suggesting that denial of pregnancy be included in this new diagnosis because the denial of pregnancy is an adjustment disorder in which the mother denies her pregnancy to reduce unpleasant affects). In response, the psychiatrists diagnosing the new adjust- ment disorder agreed to include denial of pregnancy in the maladaptive denial of physical illness disorder. See David H. Strauss et al., Dr. Strauss and Associates Reply, 148 Am. J. Psychiatry 1108, 1108 (1991). It is unclear, however, if "maladaptive denial of physical illness and pregnancy" is truly recognized by psychologists and whether it could be used as a defense in a neonaticide criminal proceeding. See American Psychiatric Association, Diagnostic And Statistical Manual of Mental Disorders 623-27 (4th ed. 1994) (listing of subtypes under adjustment disorder which does not include "maladaptive denial of physical illness"). Nevertheless, defense attorneys should be aware of the proposed disorder when arguing a neonaticide defense. Maladaptive denial of pregnancy can be distinguished from psychotic denial of pregnancy among chronic mentally ill women and pregnancy kept secret from others but not actually denied by the mother. For a discussion of psychotic denial of pregnancy, see Laura J. Miller, Psychotic Denial of Pregnancy: Phenomenology and Clinical Management, 41 Hosp. & Community Psychiatry 1233 (1990). Denial of pregnancy by women who are not psychotic is characterized by evanescent awareness of pregnancy that is quickly eliminated from consciousness, lack of emotional response to pregnancy, and a high incidence of lack of somatic changes (e.g., no significant increase in weight and continuation of cyclic vaginal bleeding). See id. at 1235. Typically, family members and friends also are unaware of the pregnancy. See id. In contrast, women with psychotic denial go back and forth between denial and acceptance of pregnancy, undergo the typical body changes associated with pregnancy, and others around them are aware of the pregnancy. See id.
208. Several psychiatrists proposed that an adjustment disorder called "maladaptive denial of physical illness" be added to the Diagnostic and Statistical Mental Disorders (DSM-IV). See Strauss, supra note 180, at 1168. Psychiatrists define this disorder as persistent denial of having a physical disorder in response to symptoms, signs, or diagnosis of a physical illness that exposes the individual to a significantly higher risk of serious physical illness or death. See id. at 1169. Some psychiatrists have suggested that this new diagnosis include denial of physical conditions such as pregnancy because such denial can lead to a mother's failure to receive prenatal care and to neonaticide. See Laura J. Miller, Maladaptive Denial of Pregnancy, 148 Am. J. Psychiatry 1108, 1108 (1991); see also Johann Kinzl & Wilfried Biebl, Disavowel of Pregnancy: An Adjustment Disorder, 148 Am. J. Psychiatry 1620, 1620-21 (1991) (suggesting that denial of pregnancy be included in this new diagnosis because the denial of pregnancy is an adjustment disorder in which the mother denies her pregnancy to reduce unpleasant affects). In response, the psychiatrists diagnosing the new adjust- ment disorder agreed to include denial of pregnancy in the maladaptive denial of physical illness disorder. See David H. Strauss et al., Dr. Strauss and Associates Reply, 148 Am. J. Psychiatry 1108, 1108 (1991). It is unclear, however, if "maladaptive denial of physical illness and pregnancy" is truly recognized by psychologists and whether it could be used as a defense in a neonaticide criminal proceeding. See American Psychiatric Association, Diagnostic And Statistical Manual of Mental Disorders 623-27 (4th ed. 1994) (listing of subtypes under adjustment disorder which does not include "maladaptive denial of physical illness"). Nevertheless, defense attorneys should be aware of the proposed disorder when arguing a neonaticide defense. Maladaptive denial of pregnancy can be distinguished from psychotic denial of pregnancy among chronic mentally ill women and pregnancy kept secret from others but not actually denied by the mother. For a discussion of psychotic denial of pregnancy, see Laura J. Miller, Psychotic Denial of Pregnancy: Phenomenology and Clinical Management, 41 Hosp. & Community Psychiatry 1233 (1990). Denial of pregnancy by women who are not psychotic is characterized by evanescent awareness of pregnancy that is quickly eliminated from consciousness, lack of emotional response to pregnancy, and a high incidence of lack of somatic changes (e.g., no significant increase in weight and continuation of cyclic vaginal bleeding). See id. at 1235. Typically, family members and friends also are unaware of the pregnancy. See id. In contrast, women with psychotic denial go back and forth between denial and acceptance of pregnancy, undergo the typical body changes associated with pregnancy, and others around them are aware of the pregnancy. See id.
209. See supra Part II.B.1 (addressing evolutionary characteristics of neonaticide). It is expected that besides denial, the evolutionary and biological features of women also results in no bonding when the mother is more interested in preserving herself or existing or future offspring.
210. See Saunders, supra note 129, at 370 (citing K. Gummersbach, Die Drimmalpsychologische: Personlichkeit-der Kindermoderns und ihre Werstung im Gerichtsmedizinischen Gutachten, 88 Wien Med Sehr 1151, 1151-55 (1938)).
211. See Pitt & Bale, supra note 154, at 379.
212. See Saunders, supra note 129, at 370.
213. Id. Other psychiatrists, including Dr. Resnick, have endorsed Gummersbach's observation that passivity is the single personality factor that most clearly separates women who commit neonaticide from those who obtain abortions. See Mendlowics, supra note 177, at 211 ("Women who seek abortion are activists who recognize reality early and promptly attack the danger. In contrast, women who commit neonaticide often deny that they are pregnant or assumed that the child will be stillborn."); see also Oberman, supra note 7, at 71 (addressing studies that have found that these girls have so little self-esteem that they are incapable of acting to protect themselves, which "contributes to their becoming pregnant in the first place, and it leads to their paralysis once pregnant").
214. See Saunders, supra note 129, at 370 (citing V.J. Hirschmann & E. Schmitz, Structural Analysis of Female Infanticide, 8 Psychotherapy 1, 1-20 (1958)).
215. Julia Brienza, When the Bough Breaks: Can Justice Be Served in Neonaticide Cases?, Trial, Dec. 1997, at 13, 13.
216. Id. (quoting Dr. Margaret Spinelli).
217. This Note has only explored in a cursory way the evolutionary and psychological effects that may contribute to neonaticide. A full article or note could be dedicated to just performing the evolutionary model suggested by Dr. Jones in part II.A or the psychological influences that contribute to teenage neonaticide. Nevertheless, as state legislatures, prosecutors, and defense attorneys continue to deal with neonaticide cases, the psychological and evolutionary influences raised in this Note should be compelling reasons to treat neonaticide as a crime no greater than manslaughter so as to allow teens to be adjudicated in the juvenile court.
218. See infra note 218 and accompanying text.
219. See Wilczynski, supra note 174, at 163.
220. See infra note 237 and accompanying text.
221. See Oberman, supra note 7, at 26 (stating that many cases settle out of court).
222. See infra note 236 and accompanying text.
223. See infra note 236 and accompanying text.
224. See infra notes 211-17 and accompanying text.
225. See infra note 218 and accompanying text.
226. See infra note 218 (discussing how infanticide is used as a defense in Australia).
227. See infra notes 220-27 and accompanying text.
228. See infra notes 211-17 and accompanying text.
229. Infanticide Act of 1922, 12 & 13 Geo. 5, ch. 18 (Eng.).
230. Infanticide Act of 1938, 1 & 2 Geo. 6, ch. 36 (Eng.). The full text of the Act is as follows: (1) Where a woman by any wilful act or omission causes the death of her child being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then, not withstanding that the circumstances were such that but for this Act the offence would have amounted to murder, she shall be guilty of felony, to wit of infanticide, and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide. (3) Nothing in this Act shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter, or a verdict of guilty but insane. Id.
231. See supra note 211.
232. See supra note 211.
233. See Wilczynski, supra note 174, at 150; see also Osborne, supra note 133, at 51 (observing that in Canada, where the mandatory death sentence was suppose to be applied in a conviction for murder, juries regularly returned a verdict of "not guilty" even though there was overwhelming evidence to the contrary). Other reasons for jury sympathy were that infant mortality was high in the early twentieth century, juries recognized that the mother was trying to hide her shame of an illegitimate birth, doctors lacked proof as to whether the baby's death was of natural causes or at the hands of the mother, and juries did not want to sentence the mother to death. See Osborne, supra note 133, at 52-53. The Infanticide Act of 1922, 12 & 13 Geo. 5, ch. 18 (Eng.), has an interesting background. In England, the Stuart Bastard Neonaticide Act of 1624 created a presumption of guilt if an unmarried woman concealed her pregnancy and the baby died; to rebut this presumption, the woman had to find a witness to give evidence that the baby was born dead. See Lansdowne, supra note 154, at 43.
234. See Wilczynski, supra note 174, at 150. By having a medical reason to explain why women kill their newborns, courts could feel more comfortable granting such women a very lenient sentence. See Lansdowne, supra note 154, at 45 (stating that the "promoters of reform were as much, if not more, concerned with social conditions such as poverty, abandonment by the father, and social disgrace as with the effect on the woman's state of mind [as the result] of giving birth").
235. Lansdowne, supra note 154, at 46
236. The following three states in Australia developed statutes similar to the English Infanticide Act: New South Wales, Victoria, and Tasmania. The Victorian Crimes Act of 1958 reads as follows: Offence of Infanticide. (1) Where a woman by any wilful act or omission causes the death of her child, being a child under the age of twelve months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child, or by reason of the effect of lactation consequent upon the birth of the child, then, notwithstanding that the circumstances were such that but for this section the offence would have amounted to murder, she shall be guilty of . . . [infanticide], and may for such offence be dealt with and punished as if she had been guilty of the offence of manslaughter of the child. (2) Where upon the trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are satisfied that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may, notwithstanding that the circumstances were such that but for the provisions of this section they might have returned a verdict of murder, return in lieu thereof a verdict of infanticide. (3) Nothing in this Act shall affect the power of the jury upon a charge of murder of a child to return a verdict of manslaughter, or a verdict of not guilty on the ground of insanity, or a verdict of concealment of birth. Crimes Act, 1958, § 6 (Vict); see also Crimes Act, 1900, as amended, § 22A N.S.W. (same). The Tasmania law is as follows: Any woman who, by any wilful act or omission, causes the death of her newly born child, being at the time not fully recovered from the effect of giving birth to such child, and the balance of her mind being, by reason thereof, disturbed, is guilty of a crime, which is called infanticide, although the offence would, but for this section, have amounted to murder. Criminal Code Act, 1924, § 165A (Tas.). Section 216 of the Criminal Code of Canada states: A female person commits infanticide when by a wilful act or omission she causes the death of her newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then disturbed. Criminal Code, R.S.C., ch. C-34, § 216 (1970) (Can.). Section 590 of the Criminal Code of Canada states: Where a female person is charged with infanticide and the evidence establishes that she caused the death of her child but does not establish that, at the time of the act or omission by which she caused the death of the child, (a) she was not fully recovered from the effects of giving birth to the child or from the effect of lactation consequent on the birth of the child, and (b) the balance of her mind was, at that time, disturbed by reason of the effect of giving birth to the child or of the effect of lactation consequent on the birth of the child, she may be convicted unless the evidence establishes that the act or omission was not wilful. Id. § 590; see also Crimes Act, 1961, § 178 (N.Z.) (providing similar language as Canada's § 590); Oberman, supra note 7, at 18 n.68 (providing a list of other countries and territories that recognize infanticide as a less culpable form of homicide: Austria, Finland, Greece, India, Italy, Korea, Phillippines, Turkey, and Western Australia).
237. See Wilczynski, supra note 174, at 153. In Wilczynski's study, two-thirds of the women were prosecuted for infanticide and not murder, whereas in other cases with a potential diminished responsibility defense, all were prosecuted for murder. See id. In only three infanticide cases were the women initially charged with murder because of lack of evidence to support infanticide. See id. The charging of women in Australia has mixed results. In the Victorian case of R. v. Hutty, (1953) V.L.R. 338, 339-40, the court recommended that women only be charged with infanticide rather than murder where appropriate. In Victoria, the common practice is to reduce charges to infanticide at an early stage of the criminal justice process. See Wilczynski, supra note 174, at 153. Nevertheless, the practice in New South Wales is to prosecute the woman for murder and use infanticide as a defense to reduce the charge. See id. In the Lansdowne study of five women who killed their babies in 1976 to 1980 in New South Wales, the women were all charged with murder and then pleaded guilty to the lesser charge of infanticide. See Lansdowne, supra note 154, at 48. "[Tjhe compelling reason for the prosecution to prefer infanticide to be used as a defense is that it allows the [prosecutor] to maintain a superior bargaining position. A charge of murder encourages the defendant to plead guilty to the lesser offence of infanticide rather than face trial . . . ." Id. at 49.
238. See Wilczynski, supra note 174, at 153 ("In England there has been a steady shift in sentencing patterns since the creation of the offence in 1922, from an even split between custodial and non-custodial disposals, to the almost total abandonment of prison sentences by the late 1950s." (citation omitted)); infra notes 220-27 and accompanying text.
239. See Wilcysnki, supra note 174, at 153-54.
240. See id. at 48, 142. In Wilczynski's English sample of cases during 1983 and 1984, eight of the 11 women convicted of infanticide received probation orders, in four cases with a condition of psychiatric treatment. See id. at 154. One woman received a supervision order and two received unrestricted hospital orders. See id. In NSW, Australia, the sentence in all three of the infanticide cases between 1990 and 1994 was a bond (in one case with supervision). See id. In a study by P.T. d'Orban of 89 women charged with killing their children in England and Wales from 1970 to 1975, nine of the 11 neonaticide subjects were granted bail. See P.T. d'Orban, Women Who Kill Their Children, 134 Brit. J. Psychiatry 560, 560, 566 (1979). Ten of the 11 neonaticide offenders were ultimately convicted of infanticide; eight were subject to probation, one to probation on condition of psychiatric treatment, and the other two were either conditionally discharged, received an extradition order, or received a one day prison sentence. See id. at 566-67.
241. See Wilczynski, supra note 174, at 142.
242. See Daniel Maier-Katkin & Robbin Ogle, A Rationale for Infanticide Laws, 1993 Crim. L. Rev. 903, 911 (researching unpublished data from the English Home Office).
243. See id. One prison sentence was for seven years, and the others were for terms less than three years. See id. In another study of 21 killings of newborns in England between 1982 and 1985, the majority of the woman pleaded guilty to infanticide. See R.D. Mackay, The Consequences of Killing Very Young Children, 1993 Crim. L. Rev. 21, 22 (using records from the Crown Prosecution Service regarding 47 infanticides under one year of age in England and Wales during years 1982 to 1985). Of 34 cases in which the prosecutor proceeded with, six cases involved neonaticide. For three of the neonaticide cases which involved schoolgirls (two had stabbed the victim with scissors and the third killed the victim by asphyxiation), each were charged with infanticide to which they pleaded guilty and received a three-year supervision order. See id. at 24. In the other three cases of neonaticide, two were charged with infanticide and pleaded guilty, while the third was charged with murder but pleaded guilty to infanticide. See id. There were other cases that the prosecutor did not proceed with as a homicide. In one neonaticide case, the woman was charged with concealment of birth and in four cases, the case was dismissed due to lack of evidence of a live birth. See id. at 23, 26. In addition, in another three cases of neonaticide and three cases of concealment of birth, the prosecutor decided that it was not in "the public interest to proceed." See id. at 26-27. The facts in one of the public interest cases were as follows: A 17-year-old secretly gave birth at home and wrapped a scarf tightly around the child's head. She claimed that at no time did the child move or cry. A psychiatric report stated that she must have been in a state of near panic during the birth and that she probably had limited awareness of her actions. . . . [I]n view of D's age it was decided not to proceed. Id. It is unclear from the study how the prosecutor distinguished between pleas to infanticide that resulted in no jail time and the decision not to pursue the case in the "interest of justice."
244. See Wilczynski, supra note 174, at 154.
245. See P.T.K. Cheung, Maternal Filicide in Hong Kong, 1971-85, 26 Med. Sci. & L. 185, 185, 188 (1986) (studying 35 filicides in Hong Kong).
246. See id. at 189-90.
247. See infra notes 425-27 and accompanying text.
248. See infra note 433 and accompanying text. [T]he sentencing policy for infanticide is very remarkable for an offence of homicide. As in historical times, there are clearly many varied and complicated reasons why the infanticidal offender is perceived sympathetically. These include stereotypical beliefs that women and mothers are "normally" incapable of violence, and recognition of the connection between child-birth and mental disorder [ ]. There may also be a sense of collective guilt about the social pressures which can lead women to kill their offspring. A further possible factor is that infants are not perceived as being as "human" as older children: this is illustrated by the fact that among the [English] sample cases, the victim was less likely to be referred to by someone as "it" in the file as s/ he became older (comparing the age groups under one day, one day - one year, and over one). Female [infanticide] also touches on the deep-seated fear and mystery surrounding the female reproductive system. For example, the image of the "ambiguous mother" who gives life but also takes it away is a powerful theme in folk stories around the world. Wilczynski, supra note 174, at 154 (citing Nigel Walker, Crime and Insanity in England, Vol. 1: The Historical Perspective (1968), and F. Sautman, Woman as Birth-and- Death-Giver in Folk Tradition: A Cross-Cultural Perspective, 12 Women's Studies 213 (1986)).
249. See infra note 433 and accompanying text. [T]he sentencing policy for infanticide is very remarkable for an offence of homicide. As in historical times, there are clearly many varied and complicated reasons why the infanticidal offender is perceived sympathetically. These include stereotypical beliefs that women and mothers are "normally" incapable of violence, and recognition of the connection between child-birth and mental disorder [ ]. There may also be a sense of collective guilt about the social pressures which can lead women to kill their offspring. A further possible factor is that infants are not perceived as being as "human" as older children: this is illustrated by the fact that among the [English] sample cases, the victim was less likely to be referred to by someone as "it" in the file as s/ he became older (comparing the age groups under one day, one day - one year, and over one). Female [infanticide] also touches on the deep-seated fear and mystery surrounding the female reproductive system. For example, the image of the "ambiguous mother" who gives life but also takes it away is a powerful theme in folk stories around the world. Wilczynski, supra note 174, at 154 (citing Nigel Walker, Crime and Insanity in England, Vol. 1: The Historical Perspective (1968), and F. Sautman, Woman as Birth-and-Death-Giver in Folk Tradition: A Cross-Cultural Perspective, 12 Women's Studies 213 (1986)).
250. See supra text accompanying note 200.
251. See infra note 237 and accompanying text.
252. See State v. McGuire, 490 S.E.2d 912, 918 n.11 (W. Va. 1997); Resnick, supra note 3, at 1418. The State has to establish beyond a reasonable doubt that the baby had an independent circulation and respiration system prior to its death. See McGuire, 490 S.E.2d at 918 n.11. If the jury finds beyond a reasonable doubt that the baby was born alive, then the jury must determine that the State has proved beyond a reasonable doubt that the defendant committed the offense charged or any lesser included offense. See id.; see also Singleton v. State, 35 So. 2d 375, 378 (Ala. Ct. App. 1948) (discussing the state's burden of proving that the child was born alive).
253. See Pitt & Bale, supra note 154, at 384.
254. See infra note 236 and accompanying text.
255. See Oberman, supra note 7, at 26.
256. See id.
257. See id. at 26, 93-94, 100. It should be noted, however, that because the study focused on journalistic reports and many of the outcomes of the 47 cases were unknown, Professor Oberman stresses that there is a risk of inaccuracy in making inferences from the study; the study is instructive in showing the wide variation of sentencing in the United States. See id. at 22, 26.
258. See id. at 94, 98 (based on convictions that were consistent with original charges; the numbers do not include pleas or verdicts of a lesser offense).
259. See id. at 94, 100.
260. See id. at 94-95, 100
261. See id.
262. 574 N.E.2d 806 (Ill. App. Ct. 1991).
263. See id. at 808.
264. See id. at 807-08. Dr. Vernon Cook, a physician who specialized in obstetrics and gynecology, testified as an expert for Diana Doss in this case. See id. at 808. According to Dr. Cook, "[Y]oung women may initially have irregular menstrual cycles for up to two years. Many women experience bleeding throughout pregnancy which may appear to be menstrual periods. Further, it is possible for a woman to be unaware of her own pregnancy." Id.
265. See id. at 807. The defendant's mother found the baby on top of the trash can and took the baby and her to the hospital, but the baby died of the stab wounds. See id.
266. See id. at 808-09.
267. See id. at 808.
268. See id. at 808-09.
269. See id. at 809. In another Illinois case, a 19-year-old who committed neonaticide was sentenced to 34 years for first degree murder and five years for concealment of a homicide. See United States ex rel Jones v. Washington, 836 F. Supp. 502, 504 (N.D. Ill. 1993). The appeals court did recognize that the length of the sentence was excessive, but stated that the court could not address this and it must be addressed in a petition for clemency. See id. at 510. In addressing the excessiveness of the sentence, the court stated: At the time Jones gave birth she was nineteen years old and lived in a three-bedroom apartment with eleven other people. She had dropped out of high school and had a limited education. When she gave birth, Jones was undoubtedly under considerable stress, since she was alone in the bathroom of her mother's apartment and no one knew that she was pregnant. Jones did not have a previous criminal record and, during the trial, was portrayed by her family and friends as a shy teenager who cared deeply for her son Darryl. Id. Both Doss and Jones demonstrate that sentences for neonaticide offenders can be quite lengthy, considering these are young women (really only teenagers) with no prior criminal records.
270. Moffitt v. Arkansas, No. CACR 92-444, 1993 Ark. App. LEXIS 171 (Ark. Ct. App. Mar. 17, 1993).
271. Id. at *6.
272. See id. at *7-*8.
273. See id. at *10. The factors to consider in Arkansas to decide whether a case should be transferred to juvenile court include the seriousness of the alleged offense, "whether violence was allegedly used, and whether the alleged offense is part of a pattern of adjudicated offenses, along with the [offender's] prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile's prospects for rehabilitation." Id. at *8.
274. See id. at *9-*10; see also infra notes 360-67, 386-90 and accompanying text (discussing factors in removal to juvenile court and criticism of the "male gender" considerations used to develop those factors).
275. See Moffitt, 1993 Ark. App. LEXIS 171, at *13. The trial court found it would not be in the interests of the state or the defendant to resort to alternative sentencing as a youthful offender, and the appeals court said there is no error in this decision. See id.
276. 492 S.E.2d 700 (Ga. Ct. App. 1997).
277. See id. at 700. "B.L.M. claimed she was not aware [that] she was pregnant until she gave birth, and that the baby did not show signs of life." Id. at 701. B.L.M. placed the baby in the trash can. See id. B.L.M.'s mother heard the baby whimpering and took it to the hospital, where it died that night. See id. A doctor testified that the infant was born prematurely and had a lung problem, giving it only a one percent chance to survive. See id. But the doctor also observed that the cause of the death was both the baby's prematurity and its exposure to the elements. See id. The sentencing of B.L.M. was not mentioned in the case.
278. 234 Cal. Rptr. 698 (Ct. App. 1987).
279. See id. at 698. In a tape-recorded interview, Sophia told the police that she gave birth alone in the bathroom. See id. at 699. She covered the baby's mouth to stifle its cries so her mother would not hear, placed the baby in a grocery bag, and dropped the bag over the back fence. See id. During the trial the doctor could not conclude whether the baby was born alive. See id.
280. See id. at 699. The court affirmed the voluntary manslaughter conviction, finding that the prosecution did introduce evidence that creates a reasonable inference that the death could have been caused by a criminal agency even though there was an equally plausible noncriminal explanation of the event. See id. at 700-01. Further, based on her tape-recorded statements, the court found that there was sufficient evidence to prove that the girl had the intent to kill. See id. at 702.
281. See id. at 698.
282. 376 S.E.2d 801 (Va. Ct. App. 1989).
283. See id.
284. See id. at 802.
285. See id.
286. See id. at 803.
287. See id. at 806. The court observed that a mother has a legal duty to attend to her newborn baby, and the sole fact that she has recently experienced childbirth does not excuse her from a legal duty to care for the baby. See id. at 804.
288. See id. at 807.
289. See id.
290. See Oberman, supra note 7, at 27-30.
291. See id. at 27.
292. See id.
293. See id.
294. See id.
295. See id. at 28; State v. Hopfer, 674 N.E. 2d 1187 (Ohio 1997).
296. See Oberman, supra note 7, at 29.
297. See id. at 29 nn.124-25; see also Brienza, supra note 196, at 13 (discussing Professor Oberman's surprise with the range of punishment neonaticide offenders receive).
298. See Oberman, supra note 7, at 29 n.127.
299. See Full-Birth Abortion, supra note 1, at 37.
300. See, e.g., Ronald Smothers, Guilty Plea By Mother, 20, in Prom Death, N.Y. Times, Aug. 21, 1998, at B1.
301. See id. One of the twelve cases involving neonaticide which did go to trial in New Jersey resulted in the offender receiving a 30 year sentence. See id.
302. See id.
303. See id.
304. See Wilczynski, supra note 174, at 164.
305. See id.
306. See id.
307. See id.
308. See id.
309. See id. While the American press sensationalizes such stories and treats the teenage mother as a cold-blooded murderer, the jury that hears her story tends to sympathize with the offender. See Oberman, supra note 7, at 4-5 (discussing the duality of moral outrage by society and the justice system on the one hand and judges' and jurors' empathy for the offender on the other).
310. See Wilczynski, supra note 174, at 164.
311. See Lansdowne, supra note 154, at 47 ("[The] infanticide law was initially designed to meet the case of a desperate woman who, having concealed her illegitimate pregnancy for fear of social disgrace and consequent poverty, continued the concealment by killing the child shortly after its birth.").
312. See Wilczynski, supra note 174, at 164.
313. See supra Part II.B.2 (discussing psychological perspectives of neonaticide); Wilczynski, supra note 174, at 30 (stating that neonaticide usually involves a single, young girl who has concealed her pregnancy and gives birth alone in a state of panic and denial).
314. See supra notes 177-79 and accompanying text; see also Wilczynski, supra note 174, at 50 (stating that a typical woman who later commits neonaticide continues her routine and does not seek medical attention during pregnancy).
315. See supra notes 7, 157 and accompanying text.
316. See supra note 8 and accompanying text.
317. See Vaughan v. Virginia, 376 S.E.2d 801, 804 (Va. Ct. App. 1989) (noting it is only a homicide as long as the prosecutor can prove the child was born alive and had a separate existence apart from the mother).
318. See supra notes 174-79 and accompanying text.
319. See Dressier, supra note 19, at 101 ("[E]xcept in rare circumstances, a person is not guilty of an offense unless he performs a voluntary act (or omits an act that is his legal duty to perform) that causes social harm . . . with a mens rea (literally a 'guilty mind').").
320. See id. at 105 ("At common law, a person 'intentionally' causes the social harm of an offense if: (1) it is his desire (i.e. his conscious object) to cause the social harm; or (2) he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct." (footnote omitted)).
321. See supra Part II.B.2 (discussing how the denial of pregnancy by neonaticide offenders is very common); see also, e.g., Green & Manohar, supra note 8, at 122-23 (describing one case study of a neonaticide offender who had "gross hysterical denial" until the baby was actually born).
322. See Oberman, supra note 7, at 80 ("[M]ost neonaticide defendants do not plan to kill their babies. Quite to the contrary, everything about the circumstances surrounding labor and delivery in these cases speaks to the sudden and impulsive nature of the mother's response."); see also Wilczynski, supra note 174, at 50 (stating that neonaticide offenders involved in her study had no plans for birth or for after the birth).
323. See supra notes 7, 174-79 and accompanying text.
324. Under the common law, the mens rea for murder is: intent to kill (sometimes state laws use willful or premeditated); intent to inflict grievous bodily injury; or acts in an extremely reckless fashion or with a depraved heart. See Dressier, supra note 19, at 463-78. The mens rea for murder is also presumptively found if the person commits a murder during the course of a felony. See id. at 479-89. Murder can be reduced to voluntary manslaughter if committed in the heat of passion. See Kadish & Schulhoffer, supra note 21 at 405-437. One who kills another in a criminally negligent manner is guilty of involuntary manslaughter. See id. The Model Penal Code defines the mens rea for murder in a similar manner: intent to kill; extreme recklessness; and felony murder. See id. See generally Model Penal Code § 210.1 (1980) (defining elements of criminal homicide). Manslaughter is defined as homicide committed recklessly (not with an extreme indifference to human life) or committed under extreme mental or emotional disturbance. See id. § 210.3. Also, negligent homicide is similar to criminal negligence. See id. § 210.4.
325. See supra Part II.B.1.
326. See supra notes 162-68 and accompanying text.
327. See Illinois v. Doss, 574 N.E.2d 806, 808 (111. App. Ct. 1991); supra notes 247-49 and accompanying text.
328. See Oberman, supra note 7, at 80.
329. See, e.g., supra note 248 and accompanying text (discussing case where disposal of newborn indicates the death of newborn was not accidental).
330. See infra Part IV.B.4.
331. See infra Part IV.B.4.
332. See Maier-Katkin & Ogle, supra note 223, at 904 (addressing reasons why some are calling for rescission of infanticide statutes). For a discussion on diminished capacity and extreme emotional disturbance defenses, see Brenda Barton, Comment, When Murdering Hands Rock the Cradle: An Overview of America's Incoherent Treatment of Infanticidal Mothers, 51 SMU L. Rev. 591, 601-05 (1998). Barton also notes that only a few states recognize the two defenses, again making it very difficult for a teenage neonaticide offender to reduce a murder charge to manslaughter. See id. at 601, 618.
333. See Maier-Katkin & Ogle, supra note 223, at 905 ("[T]he [Infanticide] Act does not require psychotic or severe mental illness to be proven, but only a disturbance of the balance of the mind.").
334. See Wilczynski, supra note 174, at 162 (discussing how the Royal College of Psychiatrists and others have analyzed the infanticide statutes and found that the mental abnormality for infanticide is much less than what is required for diminished capacity); see also Barton, supra note 312, at 596 ("England's Infanticide Act presumes that all women are ill if they kill their infants within the first twelve months of life.").
335. Maier-Katkin & Ogle, supra note 223, at 905 (footnote ommitted). In the United States, on the other hand, to defend against a charge of manslaughter, an alleged offender must affirmatively prove a diminished capacity. See Dressler, supra note 19, at 340-45.
336. See Mackay, supra note 224, at 29 (addressing Report of the English Committee on Mentally Abnormal Offenders (1975) (The Butler Report)).
337. See id. (referring to d'Orban's study, d'Orban, supra note 221, at 566).
338. Osborne, supra note 133, at 55 (quoting Walker, supra note 229, at 136).
339. See Mackay, supra note 224, at 23 tbl.3 (studying infanticides in England and Wales from 1982 to 1985, which showed that the prosecutors in each case either charged the woman in the first instance with infanticide or allowed her to plead down to infanticide, and by doing so, the prosecutor conceded mental disturbance); Osborne, supra note 133, at 55 (discussing that the wording of the Canadian infanticide statute makes it unnecessary to establish a causal connection between the psychological disorder and the child killing; the connection is conceded by the prosecutor).
340. See Wilczynski, supra note 174, at 161.
341. See id. In Lansdowne's study, five of the infanticide cases were sentenced to probation for periods of three to five years usually conditioned on the woman receiving psychiatric care. Five of the seven women convicted of manslaughter, including two by virtue of diminished responsibility, were given custodial sentences. See Lansdowne, supra note 154, at 59.
342. See Maier-Katkin & Ogle, supra note 223, at 910.
343. As Brenda Barton explained: Unlike England, infanticide in America generally is not considered a separate class of crime. Infanticidal mothers, therefore, usually are charged under murder or manslaughter statutes. Because American mothers in most jurisdictions lack a presumption of mental illness, evidence of mental illness must be asserted and proven in order to escape or mitigate harsh sentences. Barton, supra note 312, at 597.
344. See Lansdowne, supra note 154, at 52.
345. See id. at 53.
346. 17 C.M.R. 911 (A.F.A.B.R. 1954).
347. See id at 916.
348. See id. at 921-23.
349. Id. at 921. The psychiatrist testified: In my opinion this girl was suffering at the time of the alleged incident from a gross stress reaction. That is a psychiatric term which is in the language of the American Psychiatric Association. This gross stress reaction was manifested or brought on by anxiety intensified to the personality. The patient, I believe, is a basic hysterical individual. Her personality is that of a hysterical personality and at the time of the alleged crime she was so disorganized by the incident, the situation surrounding her, . . . emotional shock, physiological shock, . . . the intense pain associated with childbirth . . . and the fact that she had lost so much blood that she was in shock would mean that mechanically even the loss of blood will check out the higher centers and make anybody act instinctively so that all these things happening together made her act in a completely disorganized, disintegrated pattern. She acted instinctively without any thought, was completely unable to make a judgment at that point and the loss of blood, emotional shock, psychological shock, everything associated around the incident made her completely unable to exercise any judgment whatsoever. Now since that time in our experience people with hysterical, rigid personalities will blot out that into an hysterical fugue such hysterical phenomena so that when something happens to a personality of this sort that is overwhelming, incidents when they are not the idea of themselves they dissociate it from the stream of consciousness and to them it did not happen . . . . Id. at 930.
350. Id. at 921.
351. Id.
352. See id. at 922.
353. See supra notes 314-19 and accompanying text.
354. See Gibson, 17 C.M.R. at 922.
355. See id. at 931-32. The appeals court stated that the mental responsibility of the accused was a question of fact for the trial court to determine. See id. at 931.
356. With a neonaticide statute or similar provision in state penal codes, emotional stress and hysteria would be adequate to demonstrate that the infanticide statute should apply to a case like Gibson, and a fact finder will more likely convict for infanticide than for murder. Cf. Barton, supra note 312, at 598 (discussing Commonwealth v. Reilly, 549 A.2d 503 (Pa. 1988), where a mother was adjudged guilty of murder under the M'Naghten test even though she had experts testify that she suffered a brief reactive psychosis and did not know the nature and quality of her act).
357. For infanticidal mothers, the American Psychiatric Association recognizes postpartum disorders as a Diagnostic and Statistical Mental Disorder. Since most discussions of postpartum disorders address mothers who kill their babies after 24 hours of birth, this Note does not explore that area. For law journal articles discussing postpartum disorders, see Debora K. Dimino, Postpartum Depression: A Defense for Mothers Who Kill Their Infants, 30 Santa Clara L. Rev. 231, 234-35 (1990); Barton, supra note 312, at 602-05; Lori A. Button, Comment, Postpartum Psychosis: The Birth of a New Defense, 6 Cooley L. Rev. 323, 324-27 (1989); Jennifer L. Grossman, Note, Postpartum Psychosis - A Defense to Criminal Responsibility or Just Another Gimmick?, 67 U. Det. L. Rev. 311, 320-27 (1990).
358. For infanticidal mothers, the American Psychiatric Association recognizes postpartum disorders as a Diagnostic and Statistical Mental Disorder. Since most discussions of postpartum disorders address mothers who kill their babies after 24 hours of birth, this Note does not explore that area. For law journal articles discussing postpartum disorders, see Debora K. Dimino, Postpartum Depression: A Defense for Mothers Who Kill Their Infants, 30 Santa Clara L. Rev. 231, 234-35 (1990); Barton, supra note 312, at 602-05; Lori A. Button, Comment, Postpartum Psychosis: The Birth of a New Defense, 6 Cooley L. Rev. 323, 324-27 (1989); Jennifer L. Grossman, Note, Postpartum Psychosis - A Defense to Criminal Responsibility or Just Another Gimmick?, 67 U. Det. L. Rev. 311, 320-27 (1990).
359. For infanticidal mothers, the American Psychiatric Association recognizes postpartum disorders as a Diagnostic and Statistical Mental Disorder. Since most discussions of postpartum disorders address mothers who kill their babies after 24 hours of birth, this Note does not explore that area. For law journal articles discussing postpartum disorders, see Debora K. Dimino, Postpartum Depression: A Defense for Mothers Who Kill Their Infants, 30 Santa Clara L. Rev. 231, 234-35 (1990); Barton, supra note 312, at 602-05; Lori A. Button, Comment, Postpartum Psychosis: The Birth of a New Defense, 6 Cooley L. Rev. 323, 324-27 (1989); Jennifer L. Grossman, Note, Postpartum Psychosis - A Defense to Criminal Responsibility or Just Another Gimmick?, 67 U. Det. L. Rev. 311, 320-27 (1990).
360. 674 N.E.2d 322 (N.Y. 1996).
361. Id. at 325-26.
362. People v. Wernick, 632 N.Y.S.2d 839, 840 (App. Div. 1995), aff'd, 674 N.E.2d 322 (N.Y. 1996).
363. See id. at 840 (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which requires that before an expert can testify about "the existence of a mental disease or syndrome, the party seeking the introduction of such testimony must establish that the disease or syndrome is generally accepted in the field of psychiatry or psychology and that it would assist the jury in rendering a verdict."). It is important to note that the Wernick case did not rule out the possibility of a "neonaticide syndrome" affirmative defense. The court here denied the defense because Wernick's attorneys did not agree to a Frye hearing to decide if such testimony could be admissible. See id. at 840-41. Nevertheless, Wernick's experts were still able to inform the jury that the defendant had denied her pregnancy, that such denial occurs in almost all cases in which women kill their children after birth, and that in a significant number of neonaticide cases, the women did not know they were pregnant. See id. at 840. The expert witnesses were also not precluded from referring to relevant literature and experiences in expressing opinions about the defendant's mental state before, during, and after the crime. See id. at 841-42. Wernick was convicted of criminal negligence probably because she had such expert witnesses. Nevertheless, not all defendants can afford expert witnesses.
364. See supra Part I.F.
365. See infra note 415 and accompanying text (discussing how neonaticide offenders are unlikely to be repeat offenders).
366. See infra note 415 and accompanying text.
367. See supra Part I.F.
368. Many transfer statutes list the amenability of the juvenile to rehabilitation in the juvenile system as a criteria for the judge to consider in making a jurisdiction decision. See, e.g., Idaho Code § 20-508(8)(f) (1997) (listing the factor of "likelihood that the juvenile will develop competency and life skills to become a contributing member of the community by use of facilities and resources available to the [juvenile] court"); Minn. Stat. Ann. § 260.125(2)(b)(4) (West 1998) (naming the child's past willingness to participate in available programming as a factor for the court to consider in a determination whether or not the case should be certified to criminal court); Tenn. Code Ann. § 37-1-134(b)(5) (1996) (directing the court to consider the "possible rehabilitation of the child by use of procedures, services and facilities currently available to the court"); Utah Code Ann. § 78-3a-603(3)(g) (1996 & Supp. 1998) (naming the "likelihood of rehabilitation of the minor" as a factor for the court to consider).
369. See infra notes 440-41 and accompanying text (addressing how other countries' responses to neonaticide do not involve incarceration).
370. See infra note 415 and accompanying text.
371. See supra Part II.B.2 (observing that neonaticide offenders are passive women who fearfully deny their pregnancy, and react in a panic, killing the baby after a tremendously stressful birth done without any assistance); see also supra notes 195, 249 and accompanying text (noting that offenders usually have no criminal record).
372. See supra Part I.E.2 (discussing factors for judges to consider in making transfer ruling).
373. Md. Code Ann., Cts. & Jud. Proc. § 3-804(e)(4) (1995).
374. See supra Part I.
375. See supra note 105 and accompanying text.
376. See supra Part I.E.2.
377. See Sabo, supra note 97, at 2436-39.
378. See supra Part I.E.3.
379. See supra Part II.B.2 (inferring from literature and other data and studies that no evidence exists showing that teenage neonaticide offenders are violent individuals or have a history of prior crime).
380. See supra Part I.E.3.
381. See id.
382. See infra note 415 and accompanying text.
383. See infra notes 440-41 and accompanying text.
384. See supra note 175 and accompanying text.
385. See supra note 7.
386. See, e.g., D.C. Code Ann. § 16-2307(e-2)(1) (1997) (charging offender with murder creates a rebuttable presumption that a child 15 through 18 years of age should be prosecuted in the criminal court); Pa. Stat. Ann. tit. 42, § 6322(a) (West 1982 & Supp. 1998) (stating that jurisdiction over children is exclusive to juvenile court except in the event child is charged with murder or other specified offenses).
387. See, e.g., Tex. Fam. Code Ann. § 54.02(a)(2)(A) (West 1996 & Supp. 1999) (allowing juvenile court to waive its original jurisdiction if a child 14 years old or older is alleged to have committed first-degree felony).
388. See supra text accompanying note 200.
389. See supra Part II.B.2.
390. See Scott & Grisso, supra note 16, at 154 n.66 (discussing Marvin Wolfgang's finding that six percent of the juvenile population committed over two-thirds of the serious crimes attributed to juveniles (citing Marvin Wolfgang et al., Delinquency in a Birth Cohort 89 (1972))).
391. See id.
392. See id. at 155.
393. See id. at 155-56 ("[T]he tendency of adolescents to engage in antisocial behavior can be understood as linked to the gap experienced by contemporary youth between early biological maturity and late social maturity and independence." (citing Terrie Moffitt, Adolescent-Limited and Life Course Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychol. Rev. 674, 686-87 (1993))).
394. See id. at 156-60 (discussing reasoning in adolescents and their tendency to focus on short-term results, noting that the differences between young children and adults are greater than between adolescents and adults in terms of decision-making ability, and commenting on how the increased cognitive skills of adolescents have provided childrens' rights advocates with arguments for competency).
395. See Alex Kotlowitz, The Unprotected, New Yorker, Feb. 8, 1999, at 43, 48 ("We attribute intentions to kids that are adult-like." (quoting Thomas Grisso, clinical psychologist and head of the Department of Forensic Training and Research, University of Massachusetts Medical School)).
396. See infra Part IV.C (discussing various state statutes that apply the adult crime/adult adjudication standard).
397. See Bellotti v. Baird, 443 U.S. 622, 634 (1979) (holding that the immaturity of children justifies the application of a different constitutional standard to children than to adults).
398. Cf. Fla. Stat. Ann. § 985.226(3)(a)(6) (West Supp. 1999) (directing the court to consider, in discretionary waiver of juvenile jurisdiction, the "sophistication and maturity of the child"); Mass. Ann. Laws ch. 119, § 61 (Law. Co-op. 1994) (directing the court to consider, in transfer hearing, the "child's age and maturity"); Utah Code Ann. § 78-3a-603(3)(e) (1996 & Supp. 1998) (directing court to consider "the maturity of the minor as determined by considerations of his home, environment, emotional attitude, and pattern of living" in a decision whether to retain juvenile jurisdiction).
399. For a discussion of the difficulty in applying a "maturity" standard, see Wendy Anton Fitzgerald, Maturity, Difference, and Mystery: Children's Perspectives and the Law, 36 Ariz. L. Rev. 11, 87 (1994) ("The flaw in the maturity standard is that our search for maturity in children is a search for an adult perspective.").
400. See generally Scott & Grisso, supra note 16, at 172-76 (discussing developmental differences between adolescents, adults, and very young children, and arguing for a reduced criminal responsibility standard for adolescent offenders).
401. See id. at 156-57 (examining the developmental influences that shape the choices of juveniles and make them different from adult decisional processes).
402. See Kotlowitz, supra note 374, at 43 (discussing the events leading up to the confessions obtained by police from two boys, aged seven and eight, for the murder of a neighborhood girl, who police claimed was killed by the boys throwing rocks at her, in order to steal her bicycle).
403. See supra note 374 and accompanying text.
404. See Fitzgerald, supra note 378, at 86-87.
405. See id. at 87.
406. See supra Part I.E.3 (discussing maturity as a factor for juvenile courts to weigh in a transfer hearing).
407. See supra Part IV.B.3 (noting the incompatibility of state juvenile transfer laws and the issue of female neonaticide offenders).
408. See Stephen J. Schulhofer, The Feminist Challenge in Criminal Law, 143 U. Pa. L. Rev. 2151, 2154-57 (1995) (noting that criminal law is a system consisting of rules "conceived and enforced by men, for men, and against men," but that this is "not exclusively an artifact of cultural bias in reporting and charging behavior" in light of the fact that criminal offenders and victims alike are disproportionately male).
409. See id.
410. But see id. at 2184-96 (noting that women are committing an increasing proportion of crimes, and are facing increasingly serious charges).
411. See supra notes 369-89 and accompanying text (discussing female neonaticide offenders and the "get tough" standard).
412. Sanctity of motherhood arguments have also provided ammunition for feminists and advocates of child protection laws. See, e.g., Reva B. Siegel, Home as Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 Yale L.J. 1073, 1109-10 n.126 (1994) ("The demand for rights in household labor was advanced in tandem with a demand for equal rights in child custody, in the pursuit of which antebellum feminists freely and passionately invoked women's role as mothers.").
413. Cf. Roe v. Wade, 410 U.S. 113, 150-56 (1973) (noting that Texas has an important and legitimate interest in protecting the potentiality of human life).
414. But see infra notes 434-38 and accompanying text (noting that infanticide statutes deter neonaticide through rehabilitation).
415. Biological ability to bear a child is not the same as emotional maturity.
416. See, e.g., Murray v. City of New York, 30 N.Y.2d 113, 120 (1972) ("The impediment may reasonably be presumed to attend infancy.").
417. See, e.g., Moffit v. Arkansas, No. CACR 92-444, 1993 Ark. App. LEXIS 171, at *4 (Ark. Ct. App. Mar. 17, 1993) (trying a 17-year-old in adult criminal court); Ohio v. Hopfer, 679 N.E.2d 321, 328-39 (Ohio Ct. App. 1996) (discussing a 17-year-old neonaticide offender who was transferred from juvenile to adult criminal court and convicted of murder and sentenced to 15 years to life); Barton, supra note 312, at 609-10 (stating that the leniency for teens, including those charged with a homicide after committing neonaticide, is disappearing in many state courts).
418. See N.Y. Penal Law § 30.00(2) (McKinney Supp. 1999).
419. See, e.g., Kent v. United States, 383 U.S. 541 (1966) (holding that children are entitled to minimal due process and fair treatment before a juvenile court can waive its jurisdiction and transfer child to adult court). With a neonaticide statute, prosecutors would retain their discretion to pursue a murder indictment if the facts support such. The typical neonaticide offender, however, presents common characteristics so that pursuing an infanticide indictment will be appropriate in most cases. For instance, the English Infanticide Act only provides that a woman can be guilty of infanticide if her mind was disturbed by having given birth. See supra note 211. The prosecutor can still pursue a murder charge. Provision three of the statute further provides: "Nothing in this Act shall affect the power of the jury upon an indictment for the murder of a child to return a verdict of manslaughter, or a verdict of guilty but insane." Infanticide Act of 1938, 1 & 2 Geo. 6, ch. 36 (Eng.). Under an infanticide statute, the prosecutor will probably need to show premeditation or some other indicia to pursue a murder charge.
420. See supra Part I.D.
421. See supra Part I.
422. See Small, supra note 69, at 120.
423. See supra Part I.D.
424. See supra note 72 and accompanying text.
425. See supra Part II.B.2 (psychological characteristics of neonaticide offenders); supra Part III.B (sample cases in the United States).
426. See supra note 73 and accompanying text.
427. See supra Part II.B.2.
428. See supra notes 78-83 and accompanying text.
429. See supra note 78.
430. See supra notes 78-88 and accompanying text.
431. See supra note 80 and accompanying text.
432. See supra note 83 and accompanying text.
433. See supra notes 85-88 and accompanying text.
434. See supra note 88 accompanying text. If neonaticide were treated as a Class C felony, the judge will have discretion to find that the teen is in need of training and assistance which can be provided through probation, not incarceration.
435. See Mackay, supra note 224, at 22 (discussing a study of 47 infanticides in England and Wales during 1982 to 1985, in which the vast majority of females had no previous convictions as opposed to the five males in the study in which all but one had a criminal record); supra notes 195, 249 and accompanying text.
436. See Pitt & Bale, supra note 154, at 384. There is no evidence that these teens need to be incarcerated. "While no wide-reaching recidivism study has ever been undertaken, probation has been the principal penological strategy for a very long time, and no statistical or even anecdotal evidence has been brought forward to suggest that the protection of the community requires that infanticidal mothers be incarcerated." Maier-Katkin & Ogle, supra note 223, at 913.
437. See, e.g., Barton, supra note 312, at 618-19 (discussing how society bears responsibility to educate and counsel teens). "Education is . . . a key to prevention of infanticide." Id. at 618; see also Wilczynski, supra note 174, at 216-17 (recommending improved education for students and community on sex, contraception, childcare, and parenthood).
438. See, e.g., supra note 249 (describing Jones as a shy teenager with no prior criminal record).
439. See Wilczynski, supra note 174, at 222 (English/Australian study shows that it is possible to deal with at least one class of homicide offenders in a way other than long term prison sentences; the damaging impact of prison on the offender outweighs judicial retributive and rehabilitative aims).
440. See Lansdowne, supra note 154, at 41 (discussing feminist objection to the infanticide statute).
441. See Wilczynski, supra note 174, at 122.
442. See Resnick, supra note 3, at 1415 (addressing study of 37 neonaticides in which 34 were committed by mother, two by father, and one by both mother and father). Indeed, "it is rare for a father to kill a newborn infant." Id. at 1417.
443. See, e.g., Maier-Katkin & Ogle, supra note 223, at 906 ("As only women are able to experience pregnancy and childbirth, illnesses associated with these phenomena must inevitably be unique to women.").
444. See Wilczynski, supra note 174, at 123.
445. See supra Part II.B.2; see also Oberman, supra note 7, at 71 ("Diminished self-esteem is commonplace for adolescent girls and seems to be a product of the socialization process by which girls grow into women."). Teenage pregnancy is still not socially acceptable. Teens feels considerable shame and guilt associated with being pregnant. See id. There is considerable pressure for a teen in confronting her parent with the fact that she is pregnant. See id. This fear and shame is a response that only a woman, and not a man, can feel.
446. See Osborne, supra note 133, at 55 (stating that infanticide statutes "were enacted not to recognize legally the connection between childbirth and infanticide, but to create it") (emphasis in original). For criticism of the medical weakness of infanticide statutes, see Walker, supra note 229, at 135-36. But see Maier-Katkin & Ogle, supra note 223, at 906-07 (stating there is evidence that there is a link between childbirth and mental disorder such that the medical principles underlying infanticide statutes are not a myth). New mothers do experience depression. See id. In a study in the City of Edinburgh from 1970 to 1981, it was found that the rate of psychiatric admissions with a diagnosis of psychosis was almost 22 times higher during the 30 days after giving birth than the average monthly rate before pregnancy, and for first time mothers, the rate was 35 times higher. See id. at 907.
447. See Wilczynski, supra note 174, at 155-57.
448. See Katherine O'Donovan, The Medicalisation of Infanticide, 1984 Crim. L. Rev. 259, 262.
449. See Mackay, supra note 224, at 21 (discussing how after the Select Committee of the House of Lords on Murder and Life Imprisonment suggested that the defense of diminished responsibility could be used instead of infanticide, the Criminal Law Revision Committee recommended that the present law be amended so that infanticide also covers "environmental or other stresses"); see also Osborne, supra note 133, at 57 (explaining how the Report of the Committee on Mentally Abnormal Offenders (the "Butler Report") suggested "that the purposes of an offence of infanticide were met by the legal concept of diminished responsibility which is available in England." Both the Royal College of Psychiatrists Working Party on Infanticide and the Criminal Law Revision Committee's Report on Offences Against the Person disagreed with the Butler Report and recommended instead that the infanticide statute remain, but be extended in its scope.).
450. See O'Donovan, supra note 427, at 263. The CLRC noted that a wide range of organizations supported the Infanticide Act's retention, including the Royal College of Psychiatrists, the National Council of Women, the Law Society, the Police Federation, and the Senate of the Inns of Court. See Maier-Katkin & Ogle, supra note 223, at 910; see also Grossman, supra note 337, at 316 & n.38 (stating that the CLRC had suggested that the Act be revised to move away from an association between hormonal change and mental disorder to looking at factors such as poverty, failure of bonding, and environmental stresses as further indicia of the mental disturbance).
451. See Maier-Katkin & Ogle, supra note 223, at 909 (stating that the English "Infanticide Act does not presume that all women who kill their children are mentally ill;" it merely allows in psychiatric evidence for mitigation purposes). "Whether the policy of mitigation is wise or necessary may be open to challenge, but the fact that it can be justified in psychiatric terms seems clear beyond question." Id. 431. See supra notes 313-19 and accompanying text.
452. See supra notes 321-22 and accompanying text.
453. See, e.g., Mackay, supra note 224, at 21 (observing that the English Parliament made no recommendation on whether to change the infanticide statute).
454. See Maier-Katkin & Ogle, supra note 223, at 910 (citing Walker, supra note 229, at 133 who says that the infanticide statute results in "virtual abandonment of prison sentences" for a crime dealing with the taking of a human life).
455. See supra note 211.
456. See supra Part IV.A.2.
457. See supra note 415 and accompanying text.
458. See, e.g. Hoffer & Hull, supra note 133, at xviii (stating that over 25% of murder cases in early modern English courts that were studied were infanticide); Saunders, supra note 129, at 369 ("Child homicide rates for the United States [today] are currently among the highest in the world."). Compare Saunders, supra note 129, at 369 (discussing seven neonaticides during 14 month period in 1987-88 in Iowa alone), with Lansdowne, supra note 154, at 59 (discussing five cases of infanticides up to one year in age in New South Wales in years 1982-84); and Ian Wilkey et al., Neonaticide, Infanticide and Child Homicide, 22 Med. Sci. L. 31, 31-33 (1982) (discussing 11 bodies of newborns found in Queensland, Australia over a ten-year period from 1969 to 1978).
459. See supra Part II.B.2.
460. See Maier-Katkin & Ogle, supra note 223, at 913 (stating that the history of the law's response to infanticide suggests that it is unlikely legal sanctions will deter infanticide).
461. See id. at 912; see also Lansdowne, supra note 154, at 60 (in discussing Australian infanticide statute, "the [lenient] sentencing pattern is a compelling reason for the retention of the offence").
462. It is important to note that most critics of the English Infanticide Act focus on its lack of a medical basis and not on the leniency of the resulting punishment. See Maier-Katkin & Ogle, supra note 223, at 911 ("[W]omen who kill their own infant children constitute a distinct class of offender . . . . They tend to be punished in the community rather than in prison.").