State v. J. C. N.-V.

No. 32 May 26, 2016 559

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of J. C. N.-V.,

a Youth.

STATE OF OREGON,

Respondent on Review,

v.

J. C. N.-V.,

Petitioner on Review.

(CC J090600; CA A147958; SC S063111)

On review from the Court of Appeals.*

Argued and submitted November 9, 2015.

Angela Sherbo, Youth, Rights and Justice, Portland,

argued the cause and filed the briefs for petitioner on review.

Erin K. Galli, Assistant Attorney General, Salem, argued

the cause and filed the brief for respondent on review. With

her on the brief were Ellen F. Rosenblum, Attorney General,

and Paul L. Smith, Deputy Solicitor General.

Jordan R. Silk, Schwabe, Williamson & Wyatt, P.C.,

Portland, filed the brief for amici curiae Megan E. Annito,

Neelum Arya, Tamar R. Birckhead, Caroline Davidson,

Barry C. Feld, Erik J. Girvan, Martin Guggenheim, Leslie

Harris, Carrie S. Leonetti, Susan F. Mandiberg, Margie L.

Paris, and Barbara Bennett Woodhouse.

Marsha Levick, Juvenile Law Center, Philadelphia,

Pennsylvania, and Roy Pulvers, Holland & Knight LLP,

Portland, filed the brief for amici curiae Juvenile Law Center,

American Probation and Parole Association, The Barton

Child Law and Policy Center, The Campaign for the Fair

Sentencing of Youth, Campaign for Youth Justice, Center on

Children and Families, Michele Deitch, Fight for Lifers West,

Inc., Kristin Henning, Justice Policy Institute, Louisiana

______________

* On appeal from Washington County Circuit Court, James L. Fun, Jr.,

Judge. 268 Or App 505, 342 P3d 1046 (2015).

560 State v. J. C. N.-V.

Center for Children’s Rights, Mental Health America of

Oregon, National Association of Criminal Defense Lawyers,

national Center for Youth Law, National Juvenile Defender

Center, National Juvenile Justice Network, Pacific Juvenile

Defender Center, Rutgers-Camden School of Law Children’s

Justice Clinic, Sothern Poverty Law Center, Youth Law

Center, Youth M.O.V.E. Oregon.

Sara F. Werboff, Portland, filed the brief for amicus cur-

iae Oregon Justice Resource Center. With her on the brief

were Lindsay Burrows and Elizabeth G. Daily.

Bronson D. James, Portland, filed the brief for amici cur-

iae American Academy of Child and Adolescent Psychiatry

and individual academics.

Before Balmer, Chief Justice, Kistler, Walters, Landau,

Baldwin, and Brewer, Justices.**

WALTERS, J.

The judgment of the juvenile court and the decision of the

Court of Appeals are reversed, and the case is remanded to

the juvenile court for further consideration.

______________

**  Linder, J., retired December 31, 2015, and did not participate in the deci-

sion of this case. Nakamoto, J., did not participate in the consideration or decision

of this case.

Cite as 359 Or 559 (2016) 561

Case Summary: Youth, who was 13 years old when he allegedly participated

in a violent murder and robbery, was deemed to be within the exclusive juris-

diction of the juvenile court due to his age. The state petitioned to waive youth

into circuit court to be tried as an adult under ORS 419C.352, which provides for

waiver of juveniles as young as 12 who allegedly have committed certain serious

crimes. Under that statute, the juvenile court was required to make certain find-

ings before it waived youth into adult court, including a finding, incorporated by

reference from another statute, ORS 419C.349(3), that, at the time of the conduct

alleged, youth “was of sufficient sophistication and maturity to appreciate the

nature and quality of the conduct involved.” The juvenile court found that that

requirement was satisfied insofar as youth appeared to understand what he had

done and that it was wrong and was of “average” sophistication and maturity

for his age. Youth appealed, arguing that ORS 419C.349(3) was not satisfied by

showing a youth’s bare mental capacity to understand the physical nature and

wrongfulness of the conduct and that, instead, the statute required a more adult-

like ability to appreciate the conduct’s gravity, consequences and wrongfulness

on an intellectual and emotional level. The Court of Appeals rejected that argu-

ment and affirmed. Held: ORS 419C.349(3) requires a juvenile court to deter-

mine whether the youth in question has sufficient adult-like mental social and

emotional developmental capabilities to appreciate the conduct, its consequences

and criminality, and the juvenile court did not undertake that kind of analysis

before making the required finding with respect to youth.

The judgment of the juvenile court and the decision of the Court of Appeals are

reversed, and the case is remanded to the juvenile court for further consideration.

562 State v. J. C. N.-V.

WALTERS, J.

This case involves a challenge to a juvenile court’s

decision to waive its jurisdiction over a 13-year-old boy who

was alleged to have committed aggravated murder. Under

the relevant statutes, ORS 419C.352 and ORS 419C.349, a

youth under the age of 15 who is alleged to have committed

murder may be waived into adult court only if, at the time

of the conduct, he or she “was of sufficient sophistication

and maturity to appreciate the nature and quality of the

conduct involved.” In this case, based on evidence suggest-

ing that youth was of “average” sophistication and maturity

for his age and was “just as effective” as peers of his age

in understanding that his conduct was wrong, the juvenile

court found that the statutory “sophistication and matu-

rity” requirement had been satisfied. The Court of Appeals

affirmed in an en banc decision, holding that the “sophis-

tication and maturity” provision requires only an aware-

ness of the physical nature and criminality of the conduct

at issue—a test that generally has been considered suffi-

cient to establish criminal capacity. State v. J. C. N.-V., 268

Or App 505, 539, 342 P3d 1046 (2015). As discussed below,

we agree with youth that the “sophistication and maturity”

requirement is more demanding. Accordingly, we reverse

the judgment of the Court of Appeals and the decision of the

juvenile court, and remand the case to the juvenile court for

further proceedings in accordance with this opinion.

I.  FACTUAL BACKGROUND

Youth was 13 years and eight months old when

he allegedly participated in a violent murder and robbery.

When he was taken into custody, youth was deemed to be

within the exclusive jurisdiction of the juvenile court. ORS

419C.005(1); ORS 419C.094. The state, however, petitioned

the juvenile court to waive youth into Washington County

Circuit Court so that he could be tried as an adult for, among

things, aggravated murder, ORS 163.095.

At a hearing on the state’s petition, the parties pre-

sented evidence addressing the requirements for waiver.

To show that youth possessed “sufficient sophistication and

maturity to appreciate the nature and quality of the conduct

Cite as 359 Or 559 (2016) 563

involved,” ORS 419C.349(3), the state relied in large part on

facts about youth’s alleged participation in the murder. It

presented evidence that Aguilar-Mandujano, the 20-year-old

brother of youth’s girlfriend, had solicited youth’s assistance

in a plan to rob and murder an adult acquaintance; that

youth had agreed to participate; that youth had initiated

the attack on the victim by striking him with a tire iron that

Aguilar-Mandujano had provided; that youth had repeatedly

hit the victim with the tire iron while Aguilar-Mandujano

stabbed him with a knife; that Aguilar-Mandujano had given

the knife to youth, who also had stabbed the victim in the

chest and neck; that youth had assisted Aguilar-Mandujano

in disposing of the murder weapons and in pushing the vic-

tim’s body down to the river that ran next to the park where

the murder occurred; and that youth had later returned to

the river with another associate and, finding the victim’s

body still visible, had kicked the body completely into the

river. The state suggested that the requisite “sophistication

and maturity to appreciate the nature and quality of the

conduct” was evident from youth’s own admission that he

had understood Aguilar-Mandujano’s plan and what he was

being asked to do, from his “high degree of participation”

in the actual killing, from his efforts to conceal evidence of

the murder, and from his own acknowledged apprehensions

about being caught and going to jail for his participation in

the murder.

The state also relied on an evaluation of youth sub-

mitted by a psychologist, Dr. Sebastian. Dr. Sebastian’s

report acknowledged youth’s immaturity. She reported

that, on a well-accepted “Sophistication-Maturity Scale”

designed for use by courts in making waiver decisions,

youth was immature in many ways: he “ha[d] not developed

an internal locus of control,” he was “influenced and led

by older youth,” and his “self-concept [was] not yet solidly

developed.” His “moral development [was] still immature in

that he c[ould] identify the impacts of his behavior on his

immediate family * * * but he was unable to appreciate the

impact of his behavior on his victims.” Dr. Sebastian’s con-

clusion, however, was that youth exhibited average sophis-

tication and maturity for his age and that he understood

that his conduct was wrong:

564 State v. J. C. N.-V.

“By structured interview, testing and collateral dat[a],

it is this examiner’s opinion that [youth] is as sophisticated

and mature as one might expect of a thirteen/fourteen-year

old. In other words, he is average in sophistication and

maturity for his age. Using records, testing and interview

it is clear this young man has the ability to: (1) think inde-

pendently, (2) understand behavioral norms and expec-

tations of adolescents in the larger picture, (3) weigh the

risks and benefits of his action, (4) demonstrate age appro-

priate social skills, (5) anticipate the consequences of his

actions, [and] (6) discern which of his behaviors are antiso-

cial. When compared to his age mates, he is just as effective

or more effective (because of his strong cognitive ability) in

understanding that his crime was wrong and identifying

alternatives to his actions. He is less able than his peers at

understanding his emotions, resolving conflicts effectively

and resisting the influence of other youth.”

To counter the state’s contention that, at the time of

the murder, youth had sufficient “sophistication and maturity

to appreciate the nature and quality of [his] conduct,” youth

presented neuro-scientific evidence about the limitations of

adolescent brains in relation to those of adults. An expert,

Dr. Nagel, testified about the undeveloped nature of the pre-

frontal cortex in adolescents, and about how that neurolog-

ical difference makes it harder for adolescents to access the

brain’s higher level, logical functions. Dr. Nagel also testified

that not only do adolescents thus remain deficient in higher

level thinking and decision-making, but the onset of puberty

causes additional neurological “disequilibrium” by “turning

up the volume” on the brain’s emotional and reward centers.

The result, Dr. Nagel testified, is that adolescents have sig-

nificantly more trouble than both adults and younger chil-

dren in making moral choices in emotionally-charged or

social reward-based situations. Although adolescents may

have the capacity to understand the act of killing someone

in a cold situation, Dr. Nagel explained, that capacity is eas-

ily overridden in emotionally-laden situations.

Youth also presented the report of a psychologist,

Dr. Bolstad, who had performed an intensive examination

of youth and his history. Dr. Bolstad concluded that cog-

nitively and in most other respects youth was “average” or

“normal” for a 13-year-old. Dr. Bolstad noted, however, that

Cite as 359 Or 559 (2016) 565

young adolescents as a whole are considerably less capable

of independent thinking than are adults; they are “vulner-

able to turning their own decision making responsibilities

over to their peers or leaders in their peer group.” Based on

his review of youth’s testing record, Dr. Bolstad opined that

youth was even more strongly affected in that respect than

most adolescents; he had “an immature orientation toward

peer group associations, even in comparison with his own

same-aged group.”

Dr. Bolstad also noted that, because of their imma-

ture brains, 13-year-olds generally lack sophistication in

terms of understanding abstract principles and have diffi-

culty in weighing alternatives and in anticipating the con-

sequences of their actions and decisions. Dr. Bolstad added

that, because empathy and remorse require abstract think-

ing, 13-year-olds generally have limitations in those areas

as well. He opined that much of the deficits in empathy and

remorse that he and others had observed in youth was a

product of his young age. He suggested, too, that a family

culture of not talking about feelings and youth’s own per-

sonal strategies for distracting himself from difficult feel-

ings also might play a role in those deficits. When pressed

to speak to the “sophistication and maturity” requirement

of ORS 419C.349(3), Dr. Bolstad seemed to acknowledge

that, at the time that youth participated in the murder, he

could understand that what he was doing was against the

law and that it potentially was going to harm someone; he

opined, however, that, although youth thus could appreciate

the nature of the crime at some level, he could not do so “at

a level of having empathy because * * * that’s a much more

challenging task for a 13-year-old with an immature brain.”

Dr. Bolstad concluded that the “cognitive deficits” associated

with the typically undeveloped brain of adolescents “likely

would have interfered with [youth’s] capacity to appreciate

the nature and quality of the conduct involved.”

The parties also offered evidence on another

requirement for waiver—that the juvenile court find that

retaining jurisdiction over the youth would not serve “the

best interests of the youth and of society,” ORS 419C.349(4).

That evidence addressed the considerations identified in

566 State v. J. C. N.-V.

the statute—youth’s amenability to treatment, the serious-

ness of the offense and the aggressive, violent, premeditated

or willful manner in which it was committed, youth’s his-

tory, including criminal history, the gravity of the injury

caused by the offense, etc. The state’s evidence included

Dr. Sebastian’s psychological evaluation, which suggested

that youth was amenable to treatment; an analysis of

treatment resources that suggested that similar resources

were available in the juvenile and adult criminal systems

up until the age of 25, but that only in the adult system

would any sort of supervision or treatment extend beyond

the age of 25; evidence of the willful and violent nature of

youth’s involvement in the murder; and evidence of youth’s

significant history of violent and delinquent acts, beginning

as early as age nine. Youth’s evidence focused primarily on

youth’s personal history and his amenability to treatment:

Through Dr. Bolstad’s testimony and the testimony of teach-

ers, youth detention providers and the like, youth sought to

demonstrate that he had performed well in the past in more

controlled environments, that he was a normal 13-year-old

in many ways, although even more susceptible to peer pres-

sure than the typical youth of that age, and that, by the age

of 25 when the juvenile court would no longer have juris-

diction, treatment and the simple maturation of his brain

would transform him into a person who could be released

without endangering the community.

After hearing the parties’ evidence, the juvenile

court granted the state’s petition to waive youth into adult

court. As required by ORS 419C.355, the court issued writ-

ten findings in support of the required determinations

under ORS 419C.349(3) and (4). Although the juvenile

court’s findings suggest some confusion about the signifi-

cance of the determination required by ORS 419C.349(3),1

1

In its introduction to the issues to be decided, the juvenile court stated:

“If at the time of the alleged offense Youth was older than age 12 and

under the age of 15, the state must establish be a preponderance of the evi-

dence that the best interest of the youth and society justify that Youth be

prosecuted as an adult. The foregoing consideration is informed by the youth’s

sophistication and maturity to appreciate the nature and quality of the conduct

of the alleged offense together with an evaluation of the amenability of youth

to rehabilitation and treatment available to the juvenile court and the adult

court. Specific consideration is given to the nature of the alleged crime, the

Cite as 359 Or 559 (2016) 567

it nevertheless expressly made the required determination

under that provision—that youth had sufficient “sophistica-

tion and maturity to appreciate the nature and quality of

the conduct involved.” The juvenile court based that deter-

mination on a number of factors. It particularly noted that

youth had acknowledged to the police that he was aware of

Aguilar-Mandujano’s intentions before the actual murder,

that his participation in the murder was purposeful and

“intimate,” and that he had acted purposefully after the

murder to make detection of his participation more difficult.

The court also observed that youth “was capable of under-

standing and appreciating his Miranda rights before his

interview by the police, and sufficiently mature to partici-

pate in the police interview.” Ultimately, the juvenile court

concluded that youth’s conduct

“demonstrate[d] a degree of maturity consistent with

Youth’s biological age at the time of the event, and in sev-

eral respects reflect[ed] a degree of maturity consistent

with an older youth. Youth’s response to the police in the

interview was coherent and responsive. Youth was able to

respond to questions of motivation and intent, explain his

behavior, and the decisions behind his conduct. * * * Youth

was aware of the criminality of his conduct and told police

he did not want to ‘get in trouble’ or ‘go to jail.’ Although

Youth’s decisions were tragically flawed, his statements to

police demonstrate awareness regarding the nature of the

criminal act, the degree of his participation in the criminal

act, and an awareness of the consequences of the criminal

act if apprehended by authorities.”

In considering the issue of whether retention of

the juvenile court’s jurisdiction over youth was in the best

interests of youth and of society, ORS 419C.349(4), the juve-

nile court paid considerable attention to youth’s history of

youth’s prior history treatment and efforts, youth’s prior record of behavior

that would be crimes if committed by an adult, the violent and willful nature

of the alleged acts, the physical, emotional and mental health of the youth,

and the premeditated, willful nature of the alleged offense.”

(Emphasis added.) As youth observes, that statement suggests that the juve-

nile court may have viewed the “sophistication and maturity” determination of

ORS 419C.349(3) as one of many considerations going to the discretionary “best

interest of the youth and of society” determination required by ORS 419C.349(4),

rather than—as the legislature clearly intended it—a stand-alone requirement

for waiver.

568 State v. J. C. N.-V.

unlawful and sometimes violent conduct, beginning at the

age of nine. It also contrasted youth’s behavioral difficul-

ties in public school with his exemplary behavior in the

“structured and supportive environment” of juvenile deten-

tion facilities. Finally, the court considered whether youth’s

significant treatment needs, which youth’s own expert had

acknowledged, would be best met through juvenile or adult

adjudication. It found that there would be no significant

difference between the two adjudication paths until youth

reached the age of 25, but that, at that point, the fact that

only the adult adjudication system offered additional super-

vision made adult adjudication preferable. The court con-

cluded that the interests of both youth and society would

best be served by prosecution as an adult. Having thus made

the determinations required under ORS 419C.349(3) and

(4), the court entered a judgment and order waiving youth

into adult court for prosecution on charges of Aggravated

Murder, Robbery and Unlawful Use of a Weapon.2

Youth appealed the judgment and order of waiver,3

primarily arguing that the juvenile court had misunder-

stood what the “sophistication and maturity” requirement

of ORS 419C.349(3) entailed and, consequently, had incor-

rectly determined that that requirement was satisfied.

Youth specifically argued that the legislature intended to

impose a requirement that a youth have a “more adult-like”

understanding of the conduct and its consequences than an

average 13-year-old would possess.

In an en banc decision, the Court of Appeals rejected

youth’s interpretation of ORS 419C.349(3) along with

youth’s ultimate contention that the juvenile court’s decision

was in error. It opined that the legislature had drawn the

provision’s “nature and quality” wording from the common-

law test for criminal capacity as it relates to the insanity

2

Although the aggravated murder charge was the only charge against youth

that was waivable under ORS 419C.352, the nonwaivable robbery and weapons

charges were consolidated “for purposes of conducting the adjudicatory hearing”

under ORS 419C.358.

3

In the meantime, youth’s criminal prosecution proceeded in Washington

County Circuit Court. He was adjudged guilty of aggravated murder and other

crimes and sentenced to life in prison with the possibility of parole after 30 years.

The Court of Appeals has ordered that his appeal from that conviction and sen-

tence be held in abeyance pending resolution of the present case.

Cite as 359 Or 559 (2016) 569

defense, which has been held to require only that the person

understand the physical nature and criminality of the act.

J. C. N.-V., 268 Or App at 518-20. It further opined that the

legislature’s purpose in employing the “sophistication and

maturity” wording was only to exclude children who are

less sophisticated and mature than their same-age peers,

such as children who are “mentally retarded,” “extremely

emotionally disturbed,” or “too immature to understand the

nature of the act.” Id. at 533. The Court of Appeals thus

determined that ORS 419C.349(3) requires only that youths

“understand what they are doing in a physical sense and

understand that their actions are wrong or will likely have

criminal consequences,” id. at 539, a level of understanding

that any normally-abled child of 12 to 14 years of age (or

much younger) would possess and that, historically, was con-

sidered sufficient to establish criminal capacity. The Court

of Appeals concluded that the juvenile court spoke to that

requirement when it found that youth demonstrated “aware-

ness regarding the nature of the criminal act, the degree of

his participation in the act, and an awareness of the conse-

quences of the criminal act if apprehended by authorities,”

and that evidence in the record supported those finding. Id.

at 539-40. Consequently, the Court of Appeals affirmed.4

II.  THE STATUTE AND

THE PARTIES’ ARGUMENTS

Youth is eligible for waiver under ORS 419C.352,

which provides:

“The juvenile court, after a hearing, * * * may waive a

youth under 15 years of age at the time the act was commit-

ted to circuit court for prosecution as an adult if:

“(1)  The youth is represented by counsel during the

waiver proceedings;

4

The Court of Appeals opinion was not unanimous. In a dissenting opinion,

Judge Egan, joined by Judge Ortega, took the position that the majority’s reli-

ance on the common law predecessor to the criminal insanity defense statute

was inappropriate and that an interpretation based on the ordinary meaning of

the statutory terms supported youth’s view that ORS 419C.349(3) required an

“individualized consideration of a youth’s developmental capabilities—and not

just a low-threshold inquiry of the youth’s intellectual ability to ‘know’ or ‘under-

stand’ that he or she committed a criminal act.” 268 Or App at 555 (Egan, J.,

dissenting).

570 State v. J. C. N.-V.

“(2)  The juvenile court makes the findings required

under ORS 419C.349(3) and (4); and

“(3)  The youth is alleged to have committed an act or

acts that if committed by an adult would constitute one or

more of the following crimes;

“(a)  Murder or any aggravated form thereof * * *;

“(b)  Rape in the first degree * * *;

“(c)  Sodomy in the first degree * * *; or

“(d)  Unlawful sexual penetration in the first degree[.]”

(Emphasis added.) Subsection (2) of ORS 419C.352 refers to

provisions from a different waiver statute, ORS 419C.349,

that authorizes waiver of youths “15 years of age or older

at the time of the commission of the alleged offense” who

have committed any one of a number of specified criminal

acts—but only if

“(3)  The youth at the time of the alleged offense was of suf-

ficient sophistication and maturity to appreciate the nature

and quality of the conduct involved; and

“(4)  The juvenile court, after considering the following

criteria,5 determines by a preponderance of the evidence

5

The criteria referenced in ORS 419C.349(4) are:

“(a)  The amenability of the youth to treatment and rehabilitation given

the techniques, facilities and personnel for rehabilitation available to the

juvenile court and to the criminal court which would have jurisdiction after

transfer;

“(b)  The protection required by the community, given the seriousness of

the offense alleged;

“(c)  The aggressive, violent, premeditated or willful manner in which the

offense was alleged to have been committed;

“(d)  The previous history of the youth, including:

“(A)  Prior treatment efforts and out-of-home placements; and

“(B)  The physical, emotional and mental health of the youth;

“(e)  The youth’s prior record of acts which would be crimes if committed

by an adult;

“(f)  The gravity of the loss, damage or injury caused or attempted during

the offense;

“(g)  The prosecutive merit of the case against the youth; and

“(h)  The desirability of disposing of all cases in one trial if there were

adult co-offenders.”

Cite as 359 Or 559 (2016) 571

that retaining jurisdiction will not serve the best interests

of the youth and of society and therefore is not justified.”

Thus, the dispute in this case concerns the meaning of

the italicized requirement set out in ORS 419C.349(3), as

incorporated by reference in ORS 419C.352. As noted, ORS

419C.349(3) permits waiver of youths 15 years of age and

older at the time of the commission of the offense. Although

419C.352 now permits waiver of younger juveniles, includ-

ing those who, like youth, are 13 at the time of the commis-

sion of an offense, it is the meaning of ORS 419C.349(3) at

the time of its enactment in 1985 that must be determined. 6

The state contends that ORS 419C.349(3) requires

that a youth have “enough knowledge of the world and

enough of the qualities associated with a normal adult

that the youth can understand what he physically did and

that it was wrong.” So understood, the state acknowledges,

the requirement sets a low threshold, based on historical

notions of criminal capacity, that only a few intellectually-

challenged adolescents would be expected to fail. Generally,

the state asserts, ORS 419C.349(3) is a rule of inclusion,

and, therefore, youths of average abilities can be expected to

meet the statutory standard.

Youth, on the other hand, argues that the provision

sets a higher bar, permitting adult prosecution only of those

juveniles who possess greater maturity and sophistication

6

In 1994, voters adopted Measure 11, which required that youths 15 year of

age or older who were charged with Measure 11 crimes be tried in adult court.

In 1995, in response to Measure 11, the legislature amended the waiver statutes

to permit waiver of youths under the age of 15 on the condition that (1) that

the youth was represented by counsel during the waiver proceedings, (2) that

the juvenile court made the findings specified in ORS 419C.349(3) and (4); and

(3) that the youth was alleged to have committed an act that if committed by an

adult would constitute one or more of four specified crimes, one of which was mur-

der. Or Laws 1995, ch 422, § 78. Those provisions of the 1995 statute are codified

at ORS 419C.352. The statute also lowered the age of criminal responsibility to

12, so that children under that age would not be exposed to the newly-adopted

possibility of waiver for youths “under the age of 15.” Or Laws 1995, ch 422, § 58.

Thus, the 1995 statute made the requirement of ORS 419C.349(3) at issue in this

case, that the “youth at the time of the alleged offense was of sufficient sophisti-

cation and maturity to appreciate the nature and quality of the conduct involved”

applicable to 12-, 13- and 14-year-old offenders who are charged with murder.

However, as discussed later in this opinion, there is no evidence in the 1995 stat-

ute itself or its legislative history of an intent to alter the meaning given to ORS

419C.349(3) by the 1985 legislature.

572 State v. J. C. N.-V.

than the average adolescent—an adult-like ability to appre-

ciate the gravity and wrongfulness of their conduct and its

consequences on a deeper intellectual and emotional level.

And certainly, youth argues, the statute does not permit

waiver of a youth who is only of “average” sophistication and

maturity for his age. Such a youth may have the mental

capacity to understand the physical nature of an act and its

wrongfulness, but will not necessarily have sufficient adult-

like capabilities to appreciate its consequences and wrong-

fulness in the ways that make adults culpable for their

crimes.

III.  LEGAL BACKGROUND

Before we analyze the parties’ arguments, we think

it helpful to describe the relevant legal framework in place

at that time that the legislature enacted ORS 419C.349,

along with the changes that the legislature made in that

framework. That legal framework includes the common law

and statutory standards for determining criminal capacity

and the statutes defining the juvenile court’s jurisdiction

and governing the waiver of that jurisdiction.

A.  Criminal Capacity

In 1985, when ORS 419C.349 was enacted, a youth

could be considered lacking in criminal capacity either

because the youth was too immature to be held criminally

responsible or because the youth had a mental disease or

defect that constituted a defense to criminal responsibility.

The concepts are similar but their origins and the particu-

lar terms used to describe them are somewhat different.

1.  Immaturity

At common law, the law used a child’s age to assist

in determining whether the child was too immature to

have criminal capacity, distinguishing between children

under and over the age of 14. Children under the age of 14

were presumed to lack criminal capacity that would justify

holding them criminally responsible for their actions. For

children under seven, that presumption was conclusive; for

children between the ages of seven and 14, the presump-

tion could be rebutted in individual cases. Wayne R. LaFave,

2 Substantive Criminal Law § 9.6(a) (2d ed 2003); State v.

Cite as 359 Or 559 (2016) 573

Nice, 240 Or 343, 345, 401 P2d 296 (1965); State v. Ewing,

174 Or 487, 506, 149 P2d 765 (1944). For the latter class of

children, a jury was required to decide whether the child was

“in possession and exercise of sufficient mentality to make

an intelligent choice and possessed a knowledge of right and

wrong and of the wrongfulness of the act charged.” LaFave,

§ 9.6(a). Once a child reached age 14, however, the child was

“deemed to be criminally responsible.” State ex rel Juv. Dept.

v. Reynolds, 317 Or 560, 566, 857 P2d 560 (1993).

In 1971, the Oregon legislature codified the defense

of immaturity, making the presumption of lack of criminal

capacity conclusive for children who were under the age of

14 when the conduct occurred. ORS 161.380 (1971). The

1971 statute provided that a person being tried “in a court of

criminal jurisdiction,” i.e., as an adult, was not “criminally

responsible” for any conduct that occurred when the person

was under 14 years of age.7 Thus, at that time that ORS

419C.349 was enacted, youths who were 14 and older at the

time that they committed an allegedly criminal act were not

entitled to claim immaturity and were deemed criminally

responsible for their conduct.

2.  Insanity

At common law, the insanity defense was first

described in an 1843 case, M’Naghten’s Case, 10 Clark &

Fin 200, 8 Eng Rep 718 (1843). The original M’Naghten

rule, which early Oregon cases often quoted verbatim, set

out a two-part test, one having to do with knowledge of the

“nature and quality” of the act and the other having to do

with the actor’s knowledge of the act’s wrongfulness:

“If at the time of committing an act, the party was

laboring under such a defect of reason from disease of the

mind as not to know the nature and quality of the act he

was doing, or if he did know the nature and quality thereof,

that he did not know that he was doing what was wrong, he

should not be held responsible under the criminal law.”

State v. Layton, 174 Or 217, 226, 148 P2d 522, cert den 323

US 728 (1944) (emphasis added). See also State v. Wallace,

7

That statute remained in effect until 1995, when the legislature amended

it to lower the age of criminal responsibility to 12. Or Laws 1995, ch 422, § 58.

574 State v. J. C. N.-V.

170 Or 60, 78, 131 P2d 222 (1942) (same); State of Oregon v.

Zorn, 22 Or 591, 597, 30 P 317 (1892).

In 1971, the Oregon legislature adopted a statutory

definition of insanity that negated criminal responsibility,

and the common law rule and its “nature and quality of the

act” wording fell out of usage in Oregon. The statutory for-

mulation, which was imported from the Model Penal Code

and which now is codified, as amended, at ORS 161.295(1),

provides:

“A person is guilty except for insanity if, as a result of

mental disease or defect at the time of engaging in crimi-

nal conduct, the person lacks substantial capacity either to

appreciate the criminality of the conduct or to conform the

conduct to the requirements of the law.”

B.  Juvenile Court Jurisdiction and Waiver

1.  Before 1985

Prior to 1959, juveniles, i.e., persons under 18 years

of age, could be prosecuted in courts of criminal jurisdiction

provided that they were of sufficient maturity to be crim-

inally responsible. Beginning in 1907, however, juveniles

also were subject to the jurisdiction of separate juvenile

courts which emphasized rehabilitation rather than crime

control. Reynolds, 317 Or at 567-68 (describing history). In 1959,

the legislature gave those separate juvenile courts exclusive

jurisdiction over juveniles and specified that adjudication

by a juvenile court was not a criminal conviction. Or Laws

1959, ch 432, § 2, 36. Still, under the 1959 Juvenile Code, any

juvenile 16 or older at the time of a “remand” hearing could

be “remanded” to circuit court for prosecution as an adult

on any criminal charge, based solely on a juvenile court’s

determination that retaining jurisdiction would not serve

the child’s best interests. See ORS 419.533 (1983) (providing

for waiver of any youth 16 years old or older upon a finding

by the juvenile court that retaining jurisdiction would not

serve the best interests of the child).

As noted, in 1971, the legislature adopted ORS

161.380 (1971), providing that juveniles under age 14 at the

time of an offense could not be held criminally responsible

for the offense. That immaturity statute set a practical limit

Cite as 359 Or 559 (2016) 575

on a juvenile court’s “remand” authority. Even if a juve-

nile were 16 years old at the time of a remand hearing, the

juvenile would have a defense to criminal prosecution for

offenses committed when the juvenile was under the age

of 14. And juveniles of any age could assert the defense of

insanity. In fact, a juvenile was entitled to raise an insanity

defense whether the juvenile was adjudicated in adult court

or in juvenile court. See State ex rel Juv. Dept v. L.J., 26 Or

App 461, 464-65, 552 P2d 1322 (1976) (so holding).8

2.  Legislative Changes in 1985

In 1985, the legislature enacted the waiver provi-

sion at issue in this case. Or Laws 1985, ch 631, section

1. The 1985 statute, now codified as ORS 419C.349(3),9

permitted the juvenile court to “waive” a youth10 into adult

court provided that the youth was 15 or older at the time

an act was committed and that three additional conditions

were met: (1) the youth was represented by counsel during

the waiver proceedings, (2) the juvenile court made certain

findings; and (3) the youth was alleged to have committed

an act that if committed by an adult would constitute one

or more of certain specified crimes. The two findings that

the juvenile court was required to make were: (1) that “the

youth at the time of the alleged offense was of sufficient

sophistication and maturity to appreciate the nature and

quality of the conduct involved, ORS 419C.349(3); and

(2) that, considering specified criteria, retaining jurisdic-

tion in the juvenile court “will not serve the best interests of

the youth and of society and therefore is not justified,” ORS

419C.349(4).

80

The current juvenile code includes a provision that permits a juvenile court

to find a juvenile responsible except for insanity if the court determines that the

youth “as a result of mental disease or defect at the time the youth committed

the act alleged in the petition, the youth lacked substantial capacity either to

appreciate the nature and quality of the act or to conform the youth’s conduct to

the requirements of law.” ORS 419C.411 (2). That provision was not a part of the

juvenile code when ORS 419C.349(3) was enacted.

90

In 1985, the statute was codified as ORS 419.533(1)(c).

10

We generally use the term “waiver” in lieu of the term “remand.” The term

“remand” was used in the 1985 legislation.

We generally use the modern term “youth” to refer to a person under the age

of 18. The terms “child” and “juvenile” have also been used for that purpose and

the term “child” was used in the 1985 legislation.

576 State v. J. C. N.-V.

Thus, under the 1985 statute, youths who were 14

at the time of an act remained immune from criminal pros-

ecution. Youths who were 15 and older at the time of an act

became subject to waiver, but they were afforded additional

protections that had not been available before that legisla-

tion was passed. The 1985 legislation provided a new and

more stringent standard for remand and new protections to

youths who were waived into adult court. Or Laws 1985,

ch 631, § 1. It also exempted youths who were tried as adults

from the death penalty and from mandatory minimum sen-

tences that otherwise might apply, and required that they

be sent to separate juvenile facilities if convicted. Or Laws

1985, ch 631, §§ 7(3), 9.

IV. ANALYSIS

Having set out the foregoing background, we return

to the issue at hand. To determine what the legislature

intended when it enacted ORS 419C.349(3) in 1985, we

examine the statutory text in its context, along with its leg-

islative history. State v. Gaines, 346 Or 160, 171-73, 206 P3d

1042 (2009).

A.  Text

We begin with the statute’s text, examining the

ordinary meanings of its terms. In this case, the relevant

text resolves naturally into three parts, which we analyze

separately. The text requires that a youth have (1) “suffi-

cient sophistication and maturity” to (2) “appreciate” the

(3) “nature and quality of the conduct involved.’

The words in part one of the text describe adult-like

qualities. The term “maturity,” when viewed in isolation,

describes a quality that is associated with normal, well-

adjusted adults. See Webster’s Third New Int’l Dictionary

1395 (unabridged ed 2002) (defining “maturity” as, among

other things, “having and expressing the mental and emo-

tional qualities that are considered normal to an adult

socially adjusted human being”). “Sophistication” is similar,

but carries with it a connotation of heightened worldliness

and discernment.11 “Sufficient” sophistication and maturity

11

“Sophistication” is defined primarily by reference to the related adjec-

tive, “sophisticated.” To be “sophisticated” is to be “deprived of native or original

Cite as 359 Or 559 (2016) 577

refers to the amount of those qualities necessary to a partic-

ular situation or end12 —in the case of ORS 419C.349(3), to

“appreciate the nature and quality of the conduct involved.”

Part two of the text requires that the youth have the

ability to “appreciate” the nature and quality of the conduct

at issue. The word “appreciate” ordinarily means to “com-

prehend [it] with knowledge, judgment and discrimination”

or “to judge [it] with heightened perception or understand-

ing.” Webster’s at 105.

Part three of the text describes the object of the

youth’s appreciation—the “nature and quality of the conduct

involved.” In ordinary parlance, both “nature” and “quality”

refer to a thing’s “essential character.” See Webster’s at 1507,

1858 (unabridged ed 2002) (defining “nature” as, among

other things, “the essential character or constitution of

something” and defining “quality” as “a peculiar and essen-

tial character”). In this instance, the “thing” is the conduct

that constituted the alleged offense.

Based on the dictionary definitions of the words

used in ORS 419C.349(3), the state argues that that pro-

vision requires that a youth have a level of understanding

equivalent to the common law concept of criminal capacity.

The state uses the term “criminal capacity” to mean a min-

imal level of understanding of limited aspects of a criminal

act—a mental grasp of the physical nature of an act and its

wrongfulness. Thus, taking an example from LaFave, the

state uses the term criminal capacity to mean that a per-

son knows that he or she is holding a flame to a building,

that holding a flame to a building will make it burn, and

that burning a building is wrong. LaFave, 1 Substantive

Criminal Law § 7.2(b)(3). In making that argument, the

state acknowledges that the words “maturity” and “sophis-

tication” describe adult-like qualities. However, focusing on

the qualifying word “sufficient,” and the object of the under-

standing, the “nature and quality” of the conduct, the state

simplicity” or “worldly-wise, knowing.” Webster’s Third New Int’l Dictionary 2174

(unabridged ed 2002).

12

“Sufficient” means to be “marked by quantity, scope, power or quality to

meet with the demands, wants, or needs of a situation or of a proposed use or

end.” Webster’s at 2284.

578 State v. J. C. N.-V.

contends that the statute requires no more than an adult-

like mental grasp of the physical nature of an act and its

wrongfulness.

There are two problems with that interpretation of

the statute’s text. First, an ability to have a mental under-

standing of the physical nature of an act and its wrong-

fulness is not an ability that is particular to adults, as the

defense of immaturity makes clear. At a very young age, a

child can know that she is holding a flame to a building, that

the flame will burn the building and that burning a build-

ing is wrong. In 1985, when ORS 419C.349 was enacted,

Oregon law conclusively presumed that all children 14 and

older would have criminal capacity. At common law, it was

understood that many children seven years of age and older

also would have that capability: The presumption of inca-

pacity that attached to that age group could be, and often

was, rebutted. Thus, it is seems unlikely that the legislature

used the words “maturity” and “sophistication” to describe

capabilities that all youths over age 14 and many children

under age 14 were expected to have.

Second, the understanding necessary to establish

criminal capacity—a mental grasp of the physical nature

of an act and its criminality—is a basic awareness that

would be better described by the word “know” than the

word “appreciate.” As noted, 359 Or at 577, the word “appre-

ciate,” describes an ability to comprehend with heightened

understanding and judgment. The word “know” describes

an awareness of a fact or concept.13 The statute’s use of

the word “appreciate” rather than “know” is an indication

that the legislature intended to require that a youth have a

deeper ability to understand than a basic mental awareness.

Based solely on their ordinary meanings, the leg-

islature’s choice of the words “sophistication,” “maturity,”

and “appreciate” suggests an intent to require an adult-like

understanding of the nature and quality of an act that is

beyond what ordinarily would be associated with criminal

capacity.

13

Webster’s, at 1252, defines “knows” as “to have cognizance, consciousness

of awareness of something: be aware of the existence or fact of something.”

Cite as 359 Or 559 (2016) 579

B.  Context

In interpreting a statute we also consider context.

Gaines, 346 Or at 171. A statute’s context includes other pro-

visions of the same statute as well as the common law and

statutory framework within which the statute was enacted.

Denton and Denton, 326 Or 236, 241. 951 P2d 693 (1998).

We already have described that framework to some extent.

Both parties argue that that and other relevant context sup-

port their interpretation of ORS 419C.349(3).

1.  The Insanity Defense

The state argues that the statute’s use of the words

“nature and quality” is informed by the use of those terms

in the insanity defense. As noted, 359 Or at 573, the insan-

ity defense was first described in an 1843 case, M’Naghten’s

Case, 10 Clark & Fin 200. And, as also noted, id., the origi-

nal M’Naghten rule set out a two part test, one having to do

with knowledge of the “nature and quality” of the act and

the other having to do with the actor’s knowledge of the act’s

wrongfulness:

“If at the time of committing an act, the party was

laboring under such a defect of reason from disease of the

mind as not to know the nature and quality of the act he

was doing, or if he did know the nature and quality thereof,

that he did not know that he was doing what was wrong, he

should not be held responsible under the criminal law.”

The state argues that the statute’s use of the words “nature

and quality” is drawn from that test and thus indicates an

intent to require a minimal showing of criminal capacity as

the state explains that concept.

As an initial matter, we note that, although the

phrase “nature and quality” was used in M’Naghten to

refer narrowly to the nature of the act and its physical

consequences, later cases and commentators suggested (in

an era when psychiatry was expanding notions of men-

tal incapacity) that the phrase was not so limited. For

example, some suggested that the phrase “gives import-

ant emphasis to the realization of the wrongfulness of the

act,” Abraham S. Goldstein, The Insanity Defense 50-51

(1967); State v. Esser, 16 Wis 2d 567, 115 NW2d 505,521

580 State v. J. C. N.-V.

(1962). Oregon’s most recent expression of the rule, in

State v. Gilmore, 242 Or 463, 468, 410 P2d 240 (1966),

did just that, describing the defense in terms of a disease

of the mind that “renders the person incapable of under-

standing the nature and quality and consequences of his

act or of distinguishing between right and wrong in rela-

tion to such act.” (Emphasis added.) Because the classic,

narrow reading of the M’Naghten test had been tempered

by many courts and commentators by the time that ORS

419C.349(3) was enacted, it seems unlikely that legisla-

ture had that narrow and specific conception in mind, and

the state does not disagree. The state acknowledges that

the phrase, “nature and quality” of the conduct involved,

refers to both a physical act and its wrongfulness. However,

the state argues, the phrase also captures the necessary

degree of understanding of those concepts—a mental abil-

ity to grasp them.

We agree that the words “nature and quality” may

well have roots in the M’Naghten rule and that that context

is helpful to understanding what we have denominated as

part three of the statutory phrase—the object of the youth’s

appreciation. However, we are not persuaded that, when it

enacted ORS 419C.349(3), the legislature intended to use

that phrase to require only the limited understanding of an

act and its consequences described in the M’Naghten rule.

We think it significant that, although M’Naghten and other

common law criminal capacity cases referred almost uni-

formly to a capacity to “know” the nature and wrongfulness

of the conduct, the Oregon legislature, in enacting ORS

419C.349(3), chose a different word—“appreciate.” At the

time that ORS 419C.349 was enacted, jurists and lawmak-

ers had for some time been taking note of how the choice to

use one or the other of those words tended to affect the crim-

inal capacity test. For example, Goldstein noted, in his 1967

treatise on the insanity defense, that the bulk of the critics

read the word “know”

“as referring to formal cognition or intellectual awareness

alone. They distinguish this, the ‘law’s’ meaning, from

what they describe as the ‘psychiatric’ meaning—which

they take to connote a fuller, deeper knowledge, involving

emotional as well as intellectual awareness.”

Cite as 359 Or 559 (2016) 581

Goldstein, The Insanity Defense at 49. He observed that cer-

tain courts had chosen to state the rule in broader terms

like “appreciate,” on the theory that

“the act must necessarily involve more than mere knowl-

edge that the act is being committed; there must be an

appreciation of the factors involved in the act and a mental

capacity to measure and foresee the consequences of the

violent conduct. In this view, the word ‘appreciate’ draws

most psychosis under the M’Naghten rules, because it

addresses itself to the defendant’s awareness of the true

significance of his conduct.”

Id. at 50. And closer to home, the Oregon Criminal Law

Revision Commission had written commentary to accom-

pany ORS 161.295, the 1971 statutory revision of the com-

mon law insanity defense.14 After explaining that the new

statute was based on section 4.01(1) of the Model Penal

Code, which in turn represented a modernized version of

the M’Naghten rule, combined with the so-called “irresist-

ible impulse” test, the commission noted that “the draft sec-

tion substitutes ‘appreciate’ for M’Naghten’s ‘know,’ thereby

indicating a preference for the view that an offender must

be emotionally as well as intellectually aware of the sig-

nificance of his conduct.” Commentary to Criminal Law

Revision Commission Proposed Oregon Criminal Code,

Final Draft and Report § 36 (July 1970). Particularly in

light of the latter commentary, which was directed to the

Oregon legislature, it seems reasonable to assume that,

when the legislature later enacted a requirement that a

juvenile “appreciate” the nature and quality of the conduct

involved, it intended to require more than the minimal

knowledge that was required to establish criminal capacity

for purposes of the M’Naghten rule.

2.  The Kent Decision

Youth argues that the words “sophistication and

maturity” in ORS 419C.349(3) are informed by their use

in a United States Supreme Court case, Kent v. United

States, 383 US 541, 86 S Ct 1045, 16 L Ed 2d 84 (1966).

In Kent, the United States Supreme Court was confronted

14

The text of ORS 161.295 is set above, 359 Or at 574.

582 State v. J. C. N.-V.

with a challenge to a juvenile court’s somewhat perfunctory

decision to waive its exclusive jurisdiction over a juvenile

offender so that he could be tried criminally as an adult. The

court held that the waiver decision implicated the juvenile’s

due process rights and that, to satisfy those rights, the juve-

nile court was required to conduct a full investigation. Kent,

383 US at 563-65. The court appended to its decision a set

of criteria that juvenile courts in the District of Columbia

had used in deciding waiver issues, hinting that due pro-

cess would be served if juvenile courts based their waiver

decisions on such criteria. Included in those criteria were

items like the seriousness and violent nature of the offense,

the juvenile’s record and previous history, and, notably,

“[t]he sophistication and maturity of the juvenile as deter-

mined by consideration of his home, environmental situa-

tion, emotional attitude and pattern of living.” Id. at 566-

67.15 After Kent, courts and legislatures around the country

adopted the so-called Kent criteria as providing a helpful,

15

The criteria were set out in a policy memorandum, which the Court

appended to its decision. They included:

“1.  The seriousness of the alleged offense to the community and whether the

protection of the community requires waiver.

“2. Whether the alleged offense was committed in an aggressive, violent,

premeditated or willful manner.

“3. Whether the alleged offense was against persons or against property,

greater weight being given to offenses against persons especially if personal

injury resulted.

“4. The prosecutive merit of the complaint, i.e., whether there is evidence

upon which a Grand Jury may be expected to return an indictment (to be

determined by consultation with the United States Attorney).

“5.  The desirability of trial and disposition of the entire offense in one court

when the juvenile’s associates in the alleged offense are adults who will be

charged with a crime in the U.S. District Court for the District of Columbia.

“6.  The sophistication and maturity of the juvenile as determined by consid-

eration of his home, environmental situation, emotional attitude and pattern

of living.

“7.  The record and previous history of the juvenile, including previous con-

tacts with the Youth Aid Division, other law enforcement agencies, juvenile

courts and other jurisdictions, prior periods of probation to this Court, or

prior commitments to juvenile institutions.

“8.  The prospects for adequate protection of the public and the likelihood of

reasonable rehabilitation of the juvenile (if he is found to have committed

the alleged offense) by the use of procedures, services and facilities currently

available to the Juvenile Court.”

Kent, 383 US at 566-67.

Cite as 359 Or 559 (2016) 583

and sometimes required, analytical framework for remand

decisions. Office of Juvenile Justice and Delinquency

Prevention, Juvenile Justice Reform Initiatives in the States,

1994-96 44 (October 1997); US General Accounting Office,

Juvenile Justice: Juveniles Processed in Criminal Court and

Case Dispositions 1, 13-14 (1995).

Youth observes, quite correctly, that the Oregon

legislature borrowed from the Kent criteria when it adopted

the waiver criteria set out at ORS 419C.349(3) and (4). The

connection is evident from a cursory comparison of the cri-

teria set out in ORS 419C.349(3) and (4) and the Kent cri-

teria set out above, 359 Or at 575 n 8.16 Accordingly, youth

asserts, the “sophistication and maturity” wording of ORS

419C.349(3) must be read in the context of the waiver crite-

ria set out in the appendix to Kent.

The “sophistication and maturity” criterion set out

in Kent contemplated a fairly open and extensive exam-

ination of the mental, social and emotional development of

the youth in question: The broad group of sources that it

instructed courts to consider (“[the juvenile’s] home, envi-

ronmental situation, emotional attitude and pattern of liv-

ing) are evidence of that. Moreover, in Kent, the “sophistica-

tion and maturity” criterion was free standing. It required

a court to consider “the sophistication and maturity of the

juvenile” as an independent criterion relevant to a waiver

decision, indicating that the court should consider the full

panoply of a youth’s capabilities that indicate “maturity”

and “sophistication.” Based on the ordinary meaning of

those terms, those capabilities would be the capabilities of

normal adults that evidence heightened worldliness and

16

In addition, the legislative history of the bill that eventually was enacted

as ORS 419.349 shows that the bill’s proponents repeatedly referred to the Kent

criteria as a source for its waiver criteria, see, e.g., Minutes, Senate Judiciary

Committee, SB 414, April 25, 1985 (Judge Albin Norblad maintained that the

sophistication and maturity criteria from Kent was absorbed into portion of bill

that became ORS 419C.349(3)), and that the chief proponent, Senator Nancy

Ryles, specifically alluded to sophistication and maturity as a test taken from the

Kent decision, see Testimony, House Committee on Judiciary, Subcommittee 1,

SB 414, May 30 1985, Ex. A-1 (statement of Senator Ryles). We provide this leg-

islative history somewhat out of order in our analysis of ORS 419C.349(3) only to

establish that Kent and its waiver criteria are important context for understand-

ing what the legislature intended by the provision’s “sophistication and maturity”

wording.

584 State v. J. C. N.-V.

discernment. Because those terms were used to deter-

mine, among other things, whether a youth was sufficiently

blameworthy to stand trial as an adult,17 it seems logical

that they would include adult-like traits that relate to tra-

ditional notions of blameworthiness beyond those necessary

to establish criminal responsibility, such as capacities for

premeditation and planning, impulse control, independent

judgment, and a more hardened personality and outlook.

Given our understanding that the statutory phrase “sophis-

tication and maturity” came from the Kent criteria, it is log-

ical to understand the phrase as requiring an inquiry into

the extent to which a juvenile’s mental, social and emotional

developmental capabilities indicate adult-like capabilities

indicative of blameworthiness.

As we have indicated, however, under ORS

419.349(3), a trial court does not consider a youth’s sophis-

tication and maturity in isolation. That statute requires a

court to consider a youth’s sophistication and maturity “to

appreciate the nature and quality of the conduct involved.”

The issue under ORS 419C.349(3) is not the youth’s general

sophistication and maturity as it relates the waiver decision

(as it is under the Kent criterion), but the particular aspects

of “sophistication and maturity” that are involved in “appre-

ciat[ing] the nature and quality” of one’s own criminal

17

One student of the issue has observed that juvenile courts use the concepts

of sophistication and maturity in a number of ways when making remand deci-

sions, leading to a conclusion that courts are interested in

“whether youth have been committing crimes ‘like adults’ or whether youth’s

crimes have occurred in the context of immature impulsiveness and without

adult capacities to weigh the consequences before they acted. The implication

is that youth who are less mature, and therefore less capable of understand-

ing the implications of their actions and regulating their behavior, are less

appropriate subjects for criminal adjudication.

“Commentators have proposed that courts may see very immature youth as

less appropriate subjects for criminal court for two reasons. They may be

perceived as less blameworthy because of their immaturity, so that the more

severe sentences associated with criminal prosecution are less appropriate.

Less mature youth might also be perceived as less competent to participate in

criminal proceedings. That is, their immature cognitive and emotional char-

acteristics raise doubt about their capacities to participate in their trials in

a manner that satisfies due process regarding the competence of defendants

to stand trial.”

Thomas Grasso, Clinicians’ Transfer Evaluations: How Well Can They Assist

Judicial Discretion?, 71 La L Rev 157 (2010) (emphasis in original).

Cite as 359 Or 559 (2016) 585

conduct. In so narrowing the inquiry, however, the Oregon

legislature did not evidence an intent to remove the issue

of the youth’s sophistication and maturity from the analy-

sis altogether, or to narrow the means by which sophisti-

cation and maturity are to be ascertained. To the contrary,

the very fact that the legislature chose to reference a youth’s

sophistication and maturity, as opposed to using terms used

in other legal contexts, such as “capacity,” suggests a com-

mitment to the kind of inquiry contemplated by the Kent

criterion. It also suggests an intent not only to require that

a youth have some ability to “appreciate” the nature and

quality of the youth’s conduct, but that the youth do so with

some level of “sophistication and maturity”—traits that are

associated with normal adults, see above, 359 Or at 576, and

that, in the Kent context, would justify adjudication as an

adult. Thus, the inclusion of the phrase “sophistication and

maturity” in ORS 419C.239(3) suggests that the legislature

intended that a court look for indicia of adult-like mental,

social and emotional development as it relates to a youth’s

ability to “appreciate of the nature and quality of the con-

duct involved.”

3.  Other common law and statutory context

Youth also directs our attention to notions of

the capacities of juveniles reflected in the law as it stood

when ORS 419C.349(3) was enacted, and the logic of ORS

419C.349(3) in that context. In 1985, there was a broad

understanding among jurists and lawmakers that, because

youths are mentally, socially and emotionally less formed,

they are inherently less capable of making critical decisions

and require society’s protection. The case law of the time is

replete with statements to that effect. See, e.g., Eddings v.

Oklahoma, 455 US 104, 115-16, 102 S Ct 869, 71 L Ed 2d 1

(1982) (“Our history is replete with laws and judicial recog-

nition that minors, especially in their earlier years, gener-

ally are less mature and responsible than adults”); Bellotti

v. Baird, 443 US 622, 634, 99 S Ct 3035, 61 L Ed 2d 797

(1979) (limitations on rights and privileges of juveniles stem

from their peculiar vulnerability, their inability to make

critical decisions in an informed, mature manner, and the

importance of the parental role). A plethora of statutes plac-

ing age restrictions on the exercise of important privileges,

586 State v. J. C. N.-V.

in Oregon and elsewhere, also reflected that thinking. See,

e.g., ORS 482.110 (1983) (driving); ORS 109.640 (medical

decisions) (1983); ORS 109.670 (1983) (donating blood); ORS

106.060 (1983) (marriage); ORS 247.002(2) (1983) (voting);

ORS 471.430 (purchase of alcohol). And it is evident that

those general sentiments about the lesser capacity of juve-

niles extended to their moral development and their capac-

ity to be criminally culpable. See, e.g., Andrew Walkover,

The Infancy Defense in the New Juvenile Court, 31 UCLA

L Rev 503, 538-47 (1984) (discussing research and analy-

sis of moral development, based in the work of traditional

theorists like Jean Piaget and B.F. Skinner, as an avenue

for exploring the idea that a child’s capacity to make moral

judgments is substantially inferior to that of an adult).

In fact, the idea that children are morally undevel-

oped and, therefore, less criminally culpable, has long been

a feature of Oregon law. As noted, at the time that ORS

419C.349(3) was enacted, Oregon law provided that juve-

niles under age 14 at the time of their conduct could not be

held criminally responsible for that conduct. ORS 161.380

(1983). But even juveniles aged 14 and older who were

deemed criminally responsible for their conduct generally

were not criminally prosecuted for that conduct. Instead,

they were held responsible for their conduct in juvenile

court, where the law emphasized rehabilitation rather than

crime control. Reynolds, 317 Or at 569-71. Juveniles aged

16 and older could be “remanded” to adult court, but the

age of remand—16 at the time of the remand hearing—was

independent of the age of criminal capacity—14 at the age of

the offense—and dependent only on the best interests of the

child. ORS 419.533 (1983).

In 1985, with the enactment of the statute at

issue here, the legislature lowered the age at which youths

could be waived into adult court to 15 (at the time of the

offense). The drafters had originally proposed to lower that

age to 14. SB 414 (1985). That proposed change would have

made the age that a youth was subject to waiver the same

as the age at which a youth was deemed to be criminally

responsible—age 14. ORS 161.380; Reynolds, 317 Or at 566.

However, the legislature rejected that proposal and permit-

ted a juvenile court to waive its jurisdiction only for youth

Cite as 359 Or 559 (2016) 587

age 15 and older. Although it is possible that the legislature

both deemed 15-year-olds to be criminally responsible under

ORS 161.380 and adopted ORS 419C.349(3) to require a

showing that a 15-year-old had criminal capacity, it seems

unlikely as a matter of logic. And certainly, the legislature

did not use words that evidence that intent. As discussed,

the words “sophistication” and “maturity” refer to capabili-

ties associated with adults, not to capabilities that the law

expects every 15-year-old to have.

Significantly, although the law treats all youths 14

and older as being criminally responsible, it assumes that

those under 18 generally will be held responsible for their

conduct in juvenile, rather than adult, court. Under ORS

419C.005, the juvenile court has exclusive original jurisdic-

tion in any case involving a person under 18 years of age who

has committed an act that, if done by an adult, would consti-

tute a crime. ORS 419C.349, allows some youths under 18 to

be waived into adult court, but only two things distinguish a

15- to 17-year-old youth who is eligible for adult adjudication

from one who is not: the type of crime with which the youth

is charged, ORS 419C.349(2), and the youth’s possession,

under ORS 419C.349(3), of “sufficient sophistication and

maturity to appreciate the nature and quality of the con-

duct involved.” Given that fact, it is logical to assume that

that threshold “sophistication and maturity” requirement

demands an ability to appreciate the nature and quality

of the conduct involved that is different from the criminal

capacity that all 15- to 17-year-olds already are deemed to

have.

The state, however, draws a different conclusion

from that statutory framework. The state suggests that it

is significant that the same “sufficient sophistication and

maturity” requirement applies to 13-year-olds under ORS

419C.352(2) and 17-year-olds under ORS 419C.349(3). The

state argues that that equal applicability shows that the

legislature intended the “sufficient sophistication and matu-

rity” requirement as a straightforward individualized deter-

mination of a youth’s mental capacity to understand what

he or she was doing and that it was wrong, and not as a

determination of the youth’s capacity in comparison to other

youths. But the comparison for which youth contends, and

588 State v. J. C. N.-V.

that the “sufficient sophistication and maturity” wording

seems to convey, is not a comparison to other youths. It is a

comparison with the capabilities of a normal adult. We cer-

tainly would expect a 17-year-old to more easily pass muster

under such a comparison than would a 13-year-old, but that

is, perhaps, as it should be. The bottom line is that there is

nothing in the fact that the same test applies regardless of

the youth’s age that compels a conclusion that the require-

ment is a minimal one that most youths would be expected

to meet.

C.  Text and context combined

The upshot of the foregoing discussion of text and

context is that ORS 419C.349(3) represents a combination of

terms and phrases, which, when given both their ordinary

and specialized meanings and considered together, convey

a requirement for waiver that is more demanding than the

one that the state proposes. If, as the state argues, the legis-

lature intended to require only that the youth know what he

or she is doing in a physical sense and that it is wrong, then

it could have expressed that intent in the terms of the classic

M’Naghten rule. And even if we agree that the legislature

took the phrase “nature and quality” from that rule, it is

obvious that the legislature chose to combine a piece of that

rule with other terms and phrases that require a deeper and

more “matur[e]” and “sophisticat[ed]” understanding than a

typical youth would have. To give meaning to each of those

terms and phrases, as we must, ORS 174.010, we interpret

the text of ORS 419C.349(3) to require that a youth have

sufficient adult-like intellectual and emotional capabilities

to appreciate the nature and wrongfulness of the conduct to

justify his or her prosecution as an adult.

The statutory context, including other provisions of

the waiver statute and the common law and statutory con-

text in which ORS 419C.349 was enacted, support that con-

struction. As discussed, the meaning that jurists attached to

the word “appreciate” in discussions of the M’Naghten insan-

ity standard likely informed the legislature’s choice of that

word in ORS 419C.349(3), and suggests that it intended to

require a deeper intellectual and emotional understanding

of the nature, consequences and wrongfulness of the conduct

Cite as 359 Or 559 (2016) 589

than mere criminal capacity would require. Similarly, evi-

dence that the legislature drew the phrase “sophistication

and maturity” in ORS 419C.239(3) from the Kent case sug-

gests that it intended juvenile courts to look for indicia of

adult-like mental, social and emotional development indic-

ative of blameworthiness as it relates to a youth’s abil-

ity to “appreciate of the nature and quality of the conduct

involved.” And the common law and statutory milieu at the

time that ORS 419.349 was enacted suggests that the leg-

islature approached the legislative process with an under-

standing that youths who are 15 and older generally have

criminal capacity, but generally lack adult-like intellectual

and emotional capabilities that would justify their exposure

to criminal prosecution and punishment.

Thus, it is not difficult for us to conclude that the

legislature did not intend to make waiver of juvenile court

jurisdiction turn on a youth’s criminal capacity. What the

legislature did intend is more difficult. Although it seems

that the legislature intended to require that a juvenile court

make a finding that a youth have adult-like intellectual

and emotional capabilities indicative of blameworthiness,

it did not set out with any specificity the standard that a

court should use to decide what those capabilities entail and

whether a youth has a “sufficient” modicum of those capabil-

ities. It is likely that the adult-like capabilities with which

the legislature was concerned were the capabilities that a

typical adult would have and that a court would consider

in deciding whether a youth is sufficiently blameworthy

that adult prosecution is warranted, such as capacities for

premeditation and planning, impulse control, and indepen-

dent judgment. However, the legislature did not specifically

describe those capabilities and the words that the legisla-

ture used do not permit us to decide, as a matter of law, the

capabilities that distinguish a typical adult from a typical

youth. As a result, based on its text and context, we interpret

ORS 419C.349(3) to permit a juvenile court to determine, as

a matter of fact, what those capabilities are and whether a

particular youth possesses them to a sufficient extent that

the court can conclude that the youth can “appreciate the

nature and quality of the conduct involved,” including its

consequences and wrongfulness.

590 State v. J. C. N.-V.

D.  Legislative History

1.  1985 Legislative History

Finally, we examine the provision’s legislative his-

tory for evidence that supports or undermines that tenta-

tive conclusion. As discussed above, 359 Or at 576, ORS

419C.349(3) is part of a 1985 statute that both lowered the

age when a juvenile might be waived into adult court and

adopted more stringent standards for all waivers. When the

legislature considered the underlying bill, SB 414 (1985), it

did not discuss the specific wording of ORS 419C.349(3) that

is at issue here in a way that is helpful.18 However, some

more general comments by proponents of the bill are sugges-

tive. For example, Senator Nancy Ryles, who introduced the

bill, described the bill’s intent as providing a waiver option

“for those more mature 14- and 15-year-olds so that those

who commit a violent crime will not be prematurely released

back into society.” Testimony, Senate Judiciary Committee,

SB 414, Apr 25, 1985, Ex B (statement of Senator Ryles).

And other testimony in support of the bill in the 1985 legis-

lature reiterated the theme that the bill was directed at par-

ticularly mature 14- and 15- year-olds. Keith Meisenheimer

of the Multnomah County District Attorney’s office testified

that

“when we retain within the juvenile system individu-

als whose characteristics and attitudes are more adult

than juvenile, who are hardened and immune to programs

designed to meet youthful needs, we not only fail to treat

those individuals appropriately, but we undermine the pro-

gram for the youths who are appropriate for it.”

Testimony, Senate Judiciary Committee, SB 414, Apr 25,

1985, Ex G (statement of Keith Meisenheimer). Meisenheimer

also testified that

18

With regard to the “sufficient sophistication and maturity” wording,

Senator Nancy Ryles did, at one point, attempt to explain: “So you’re really say-

ing yes, the person knew what they did, they knew the consequences of what they

did, and they were of sufficient maturity to understand that at the time.” Audio

Recording, House Committee on Judiciary, Subcommittee 1, SB 414, May 30,

1985, Tape 692 (statement of Senator Ryles). That statement, however, does not

advance our inquiry because it does not discuss what is necessary to establish

“sufficient maturity.”

Cite as 359 Or 559 (2016) 591

“by reason of advanced maturity, sociopathic character,

past record of failure in juvenile court programs, estab-

lished history of criminal conduct, large size, independence

of parental or other adult authority or influence, etc. are

dangerous to the community and not amenable to signifi-

cant rehabilitation in juvenile programs.”

Id.

Those comments are contrary to the state’s view that

the statute only excludes exceptionally immature youths

who do not have the mental capacity to understand their

conduct and its criminality from the possibility of waiver.

They suggest that the legislature intended to require that,

to obtain waiver, the state establish that a youth have adult-

like capabilities different than those of other youths, who, at

age 14, are deemed to have criminal capacity.

We also note that, although the legislature was con-

sidering a bill that was directed in part at lowering the age

when a youth could be waived into adult court, it continued to

be deeply concerned with protecting youth offenders, whom

legislators saw as being amenable to rehabilitation and in

need of protection. In that respect, it is significant that the

bill, for the first time, imposed specific legal requirements

as a prerequisite to waiver. Legislators were made aware

that, prior to the bill’s enactment, Oregon had one of the

highest rates of remand to adult court in the country, as

well as a highly inconsistent use of the procedure, largely

due to the fact that the existing remand statute provided

no standards for remand other than that the juvenile court

find that retaining jurisdiction was not in the best inter-

ests of the child. By limiting the juvenile court’s authority

to remand to specified, more serious offenses, and by pro-

viding specific criteria to be considered by the juvenile court

when evaluating the remand option, the proponents of SB

414 believed that they would eliminate such “abuses” of the

remand option. Testimony, Senate Judiciary Committee, SB

414, Apr 25, 1985, Ex B (statement of Senator Ryles).

The discussions surrounding the adoption of

the waiver criteria show that the legislature believed

that juveniles generally should be adjudicated in the

more treatment-oriented juvenile system and that adult

592 State v. J. C. N.-V.

prosecution should be limited to individuals whose cul-

pability made adjudication in the juvenile justice system

inappropriate. See, e.g., Audio Recording, Senate Judiciary

Committee, SB 414, Apr 25, 1995, Tape 109, Side B (com-

ment of Judge Albin Norblad, co-drafter of SB 414, that it

should be more difficult to remand juveniles but that some,

few, exceptionally dangerous juveniles should be remanded

for society’s protection); Audio Recording, Senate Judiciary

Committee, SB 414, May 7, 1985, Tape 123, Side A (com-

ment of Committee Chairman William Frye that, while

14-year-olds are not proper subjects for adult prosecution

and incarceration, laws are needed that cover the rare

dangerous juvenile criminal). In the eyes of the bill’s pro-

ponents, one of the significant things that made juvenile

jurisdiction inappropriate was the fact that, if left in the

juvenile system, such hardened and dangerous individuals

might victimize other juveniles who also are in the juvenile

justice system. Audio Recording, House Committee on the

Judiciary, Subcommittee 1, SB 414, May 30, 1985, Tape 693

(comment of Multnomah County District Attorney Keith

Meisenheimer that when more sophisticated and hardened

individuals are retained in juvenile system, they under-

mine purpose of having a separate system for juveniles by

victimizing other juveniles).

While not wholly incompatible with the interpreta-

tion of ORS 419C.349(3) for which the state contends, the

generally protective attitude reflected in the foregoing legis-

lative history is more consistent with the idea that juveniles

who are cognitively and emotionally average should be adju-

dicated within the more protective juvenile justice system.

In that respect, the legislative history of ORS 419C.349(3)

adds some support to the idea that the provision demands

an adult-like rather than child-like understanding of the

nature, consequences and wrongfulness of a youth’s conduct.

The parties’ other arguments about the 1985 leg-

islative history are, however, unpersuasive. The state finds

significance in the fact that, during consideration of the bill,

the ACLU suggested that criminal responsibility sufficient

to justify remand should include not only “a capacity to dis-

tinguish right from wrong [but also] an ability to conform

one’s actions to that understanding.” Testimony, House

Cite as 359 Or 559 (2016) 593

Judiciary Committee, Subcommittee 1, SB 414, May 30,

1985, Ex D (statement of Claudia Burton, ACLU). The state

argues that the fact that the legislature did not act on those

comments establishes an affirmative intent not to include

consideration of youthful impulsivity in the waiver analy-

sis. Given that the comments were not attached to a pro-

posed amendment, we are reluctant to say that the legisla-

ture’s “failure to act” has any significance. But, in any event,

youth has not made a focused argument to this court that,

in addition to or as an aspect of requiring “sufficient sophis-

tication and maturity to appreciate the nature and quality

of the conduct involved,” ORS 419C.349(3) requires an abil-

ity to conform one’s actions to the requirements of the law.

As such, the legislature’s inaction in the face of the noted

comments by the ACLU is not relevant to any issue before

the court.

Youth’s primary appeal to SB 414’s legislative his-

tory is similarly unpersuasive. It focuses on the fact that

proponents of the bill repeatedly stated that, if the bill

were enacted, only a few 14- to 15-year-olds would be eli-

gible for waiver each year. In youth’s view, the necessary

premise underpinning those statements must have been

that the bill set an extremely high threshold for remand—a

level of maturity and sophistication that very few 14- and

15-year-olds could possess. However, when the cited state-

ments are read in the context in which they were made, it is

clear that the speakers were not referring to the stringency

of the “sophistication and maturity” requirement but to the

fact that very few 14- and 15-year-olds were committing

the kinds of crimes that would trigger eligibility for waiver

under the bill. The statements, therefore, add nothing to our

present analysis.

2.  1995 and 1983 Legislative History

The legislative history associated with two other

bills is also potentially relevant here. First, it is important

to acknowledge that the waiver statute that applies directly

to youth in this case and that incorporates by reference the

requirement at ORS 419C.349(3) was enacted in 1995. It

was in 1985 that the legislature enacted ORS 419C.349—

the statute that lowered the age when waiver to adult court

594 State v. J. C. N.-V.

was permitted to 15 and set out the standard for waiver that

is now under consideration. It was in 1995, however, that

the legislature enacted ORS 419.352, the statute that per-

mitted waiver of youths under the age of 15, including the

youth who is the subject of this proceeding. Although it is

therefore appropriate that we consider the legislative his-

tory of the 1995 statute that incorporates by reference the

waiver standard that we interpret here, the parties do not

point to anything in that legislative history that suggests

that the legislature had any particular understanding of

ORS 419C.349(3) when it acted. We also are not aware of

any aspect of the 1995 legislative history that might speak

to the meaning of the earlier provision.

The state does rely, however, on the legislative his-

tory for another bill—HB 2955 (1983)—which was passed

by the House in the 1983 legislative session but which ulti-

mately died in the Senate. SB 414 (1985) was introduced in

the 1985 legislature as identical to the engrossed version

of the bill that had failed in the prior session. Testimony,

Senate Judiciary Committee, SB 414, Apr 25, 1985, Ex B

(statement of Senator Ryles). The state argues that, because

the substance of the 1983 bill is the same as the 1985 bill

that actually was enacted, the legislative history of the ear-

lier bill is relevant to the legislature’s intent in enacting the

later bill. The state begins by noting that, when Senator

Ryles introduced HB 2955 (1983) to the House committee to

which it had been assigned, she described that bill’s central

directive—that the age of waiver be lowered to 14 for violent

crimes—as an “exception” to the

“general philosophy that juveniles may be lacking in under-

standing and information and therefore may not be fully

responsible for the crime they have committed and that

they should not be typed by past misdeeds but should have

the opportunity to grow and change.”

Testimony, House Committee on Judiciary, Subcommittee 1,

HB 2955, May 18, 1983, Ex A (statement of Senator Ryles).

She explained that it was not realistic to say “that a 14-

or 15 year-old is not sufficiently mature to understand the

gravity of a violent crime which a 16-year-old is.” She then

added:

Cite as 359 Or 559 (2016) 595

“We cannot persist in defining juveniles by an arbitrary

age limit, ignoring the fact that maturation is a gradual

process and that some 14 and 15-year olds may well under-

stand the serious nature of the violent crimes they have

committed.”

Id. In the state’s view, those and other comments by Senator

Ryles establish that the 1983 bill sought to lower the age

of waiver for violent crimes in a way that focused less on

the youth’s age and more on the youth’s actual maturity.

For instance, the state points to a number of comments by

Senator Ryles that suggest that, in her view, most normally-

abled 14- and 15-year-olds would pass the threshold test

of sophistication and maturity provided in the bill. She

explained that the “sufficient sophistication and matu-

rity” criteria would “have the effect of eliminating any

consideration of remand if, for example, the juvenile was

retarded, too immature to understand the nature of the act,

etc.” Testimony, House Committee on Judiciary, HB 2955,

June 6, 1983, Exhibit P (statement of Senator Ryles) (empha-

sis added). She later testified that the “sufficient sophistica-

tion and maturity” criteria was

“the first step one had to do. If you had a child that didn’t

know what they had done and couldn’t understand what

they had done one really didn’t even need to move to any

other criteria. * * * I think it should be the number one

criteria and the number one thing that we have in there

because in case there is a case of a mentally retarded child

or someone that is extremely emotionally disturbed or some-

thing like that that it’s the criteria the court first looks at

and then you begin to measure all these other things to see

if remand is the appropriate policy.”

Audio Recording, House Committee on Judiciary, HB 2955,

June 6, 1983, Tape 408, Side A (comment of Senator Ryles)

(emphasis added).

The problem with relying on most of those state-

ments is that they were made in the context of the legisla-

ture’s consideration of the 1983 bill, which was not enacted,

and they were not repeated when the legislature took up the

same wording in the 1985 bill.19 During consideration of the

19

Senator Ryles did repeat, in her opening statements to committees con-

sidering the 1985 bill, her suggestion that the bill proposed an exception to

596 State v. J. C. N.-V.

1985 bill, as we have observed, the bill’s proponents spoke

instead of the bill’s focus on “more mature 14- and 15-year-

olds” and juveniles of “advanced maturity.” 359 Or at 590.

And, even in 1983, Senator Ryles’ more general statements

support the idea that the bill was intended to permit waiver

for those youths who were exceptions to the general rule that

juveniles should be subject to adjudication in juvenile court.

That some 14- and 15-year-olds may well understand the

nature of their crimes in the required sense does not mean,

as the state would have it, that most youths of that age will

have that kind and level of understanding is required.

The state also observes that, during a legislative

committee’s consideration of the 1983 bill, the American Civil

Liberties Union suggested amendments to the part of the

bill that contained the “sufficient sophistication and matu-

rity” requirement. Specifically, the ACLU suggested word-

ing and placement of that requirement that was more in line

with those of the Kent criteria: It would be removed from its

place as a separate requirement and placed with other cri-

teria to be considered when determining the “best interests”

of the youth and the public, and it would look generally at

“the sophistication and maturity of the child as determined

by consideration of the child’s home environmental situation,

emotional attitude and pattern of living.” Testimony, House

Judiciary Committee, Subcommittee 1, HB 2955, May 18,

1983, Ex E (statement of George Eder, ACLU). In response

to the suggested amendment, Senator Ryles voiced her pref-

erence for the original wording and placement because, as a

separate requirement, the provision would “have the effect

of eliminating any consideration of remand if, for example

the juvenile was retarded, too immature to understand the

nature of the act, etc.” Ex P, House Committee on Judiciary,

the general philosophy that juveniles lack understanding and therefore “may

not be fully responsible” for their crimes, and her statement that some 14- and

15-year-olds “may well understand the serious nature of the violent crime they

have committed.” Testimony, Senate Judiciary Committee, SB 414 (1985),

Apr 25, 1985, Ex B (statement of Senator Ryles); Testimony, House Judiciary

Committee, Subcommittee 1, SB 414 (1985), May 30, 1985, Ex A-1 (statement of

Senator Ryles). Those statements are rather general, however, and do not appear

to undermine our general sense that the 1985 legislature continued to have a

generally protective attitude toward juveniles and that it had more adult-like

capacities in mind when it enacted the “sophistication and maturity” wording of

ORS 419C.349(3).

Cite as 359 Or 559 (2016) 597

HB 2955, June 6 1983 (memorandum to House Judiciary

Committee from Senator Ryles). The committee rejected the

suggested amendment, retaining the provision’s position as

a separate threshold requirement and its original, more lim-

ited wording: “sophistication and maturity to appreciate the

nature and quality of the conduct involved.” The state con-

tends that that history shows that the legislature explicitly

considered and rejected the idea of limiting waiver to those

with an exceptional level of sophistication and maturity, and

that it did not ascribe any specialized meaning to the phrase

“sophistication and maturity.”

Again, we do not agree with the state’s assessment

of the cited history. The offer and rejection of the ACLU

amendment in 1983 shows only that the legislature wished

to retain the “sophistication and maturity” wording as a

separate threshold provision. Nothing about the fact of the

rejection suggests any particular view of the level of sophis-

tication and maturity that the original (retained) wording

required. Moreover, the fact that the committee discussed

the provision’s origins in the Kent criteria and whether the

bill should adhere to Kent’s placement and wording confirms

our understanding, expressed above, 359 Or at 584-85, that

the legislators understood the provision as being strongly

related to Kent’s “sophistication and maturity” criterion.

V.  INTERPRETIVE SYNTHESIS

After considering the foregoing legislative history,

we affirm our initial conclusion, based on the statute’s text

and context, that the requirement that ORS 419C.349(3)

imposes is not equivalent to a requirement that a youth have

criminal capacity. Rather, to authorize waiver of a youth

who otherwise is eligible for waiver under ORS 419C.349

or ORS 419C.352, a juvenile court must find that the youth

possesses sufficient adult-like intellectual, social and emo-

tional capabilities to have an adult-like understanding of

the significance of his or her conduct, including its wrong-

fulness and its consequences for the youth, the victim, and

others.

Although the standard imposed by ORS 419C.349(3)

is not as easily met as the state would have it, it also is not

intended to be so difficult to meet that it precludes waiver

598 State v. J. C. N.-V.

of youths whose adult-like capabilities make it appropriate

for them to be tried in adult court. The legislature did not

intend to impose a requirement that a youth have every one

of the many capabilities of a typical adult. Rather, the leg-

islature intended that a juvenile court take measure of a

youth and reach an overall determination as to whether the

youth’s capacities are, on the whole, sufficiently adult-like to

justify a conclusion that the youth was capable of appreciat-

ing, on an intellectual and emotional level, the significance

and consequences of his conduct.

In making that determination, a juvenile court will

be called on to consider its own knowledge and assessment

of the capabilities of typical adults and the capabilities of the

particular youth who is subject to wavier and any evidence

on that subject that the parties may offer, such as the evi-

dence that the juvenile court in this case considered. With

regard to the capabilities of typical adults, a court could,

for instance, consider its own understanding and evidence

that the parties might offer indicating that adults have an

ability to “measure and foresee consequences,” Goldstein,

The Insanity Defense at 50, and are significantly better

than adolescents at accurately perceiving and weighing

risks and benefits. Lita Furby and Ruth Beyth-Marom,

Risk Taking in Adolescence: A Decision-Making Perspective,

12 Developmental Rev 1, 17 n 4, 9-11 (1992); Bonnie L.

Halpern-Felsher & Elizabeth Cauffman, Costs and Benefits

of a Decision: Decision-Making Competence in Adolescents

and Adults, 22 J Applied Dev Psych 257 (2001); Barry C.

Feld, Adolescent Criminal Responsibility, Proportionality

and Sentencing Policy: Roper Graham, Miller/Jackson and

the Youth Discount, 31 Law and Ineq 273, 284-90 (2013).

We cite those types of considerations and that type

evidence not as fact, but as illustrative of considerations and

evidence that, under our interpretation of ORS 419C.349(3),

a juvenile court may find helpful in deciding what consti-

tutes an adult-like capacity to “appreciate,” or comprehend,

with heightened understanding and judgment, an act’s con-

sequences and wrongfulness. After arriving at that under-

standing, the court must then determine whether the par-

ticular youth’s capabilities are sufficiently similar to those

of a typical adult that the court can conclude that the youth

Cite as 359 Or 559 (2016) 599

has the requisite appreciation of the nature and quality of

the conduct involved. That determination will again require

the court to consider its own assessment of the particular

youth’s capabilities, including evidence, such as the court

in this case considered, of the actions in which the youth

engaged and the youth’s history. A court may reach a con-

clusion about a youth’s capabilities from inferences that the

court draws from that evidence and from any expert tes-

timony that the parties may offer. Such evidence will nec-

essarily be multi-faceted; there is no one capability that a

youth must have to demonstrate that the youth meets the

requisite standard. Instead, a court may well have to com-

pile and balance competing evidence relating to a youth’s

capabilities: As one researcher in the field has observed,

“ ‘[m]aturity’ itself is not a unified concept; many youth—

especially in later adolescence—may be relatively mature

in some ways and not in others. They may be intellectu-

ally mature but socially immature; they may have mature

decision-making capacities in terms of abilities to consider

and weigh options, yet be morally immature in the ways in

which they apply those abilities.” Thomas Grosso, Clinicians’

Transfer Evaluations: How Well Can They Assist Judicial

Discretion? 71 La L Rev 157, 184 (2010). When it enacted

ORS 419C.349(3), the legislature intended to have a trial

court determine, from the evidence presented, whether the

youth in question has sufficient adult-like mental, social and

emotional capabilities to appreciate the relevant conduct, its

consequences and criminality.

VI. APPLICATION

In this case, the juvenile court did not undertake

that kind of analysis. The court’s findings, boiled down to

their essence, were that youth understood and acknowledged

his own role in the murder and knew that it constituted a

crime and would carry criminal consequences. Those find-

ings demonstrate the youth’s knowledge of his physical con-

duct and its physical consequences and criminality. They do

not demonstrate or even relate to the question of whether

the youth had the adult-like capacities that would allow him

to appreciate the significance and wrongfulness of his con-

duct and its consequences in both an intellectual and an

emotional sense. The juvenile court also relied on a finding

600 State v. J. C. N.-V.

that youth possessed a degree of maturity that was consis-

tent with his biological age (13) at the time of the murder

(and that, in several unspecified respects, he possessed “a

degree of maturity consistent with an older youth”). The

court’s reliance on the latter finding shows that the court

did not understand that ORS 419C.349(3) looks for an over-

all adult-like rather than juvenile-like capacity to appre-

ciate the nature and quality of the conduct emotionally as

well as intellectually. In short, the juvenile court’s findings

do not support a conclusion that youth possessed “sufficient

sophistication and maturity to appreciate the nature and

quality of the conduct involved,” as we have interpreted that

requirement. It follows that the case must be reversed and

remanded to the juvenile court for further consideration

under the proper standard.

The judgment of the juvenile court and the deci-

sion of the Court of Appeals are reversed, and the case is

remanded to the juvenile court for further consideration.