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, argued the cause and 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 Center for Children’s Rights,

______________

* 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.

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. With her on the brief was Roy Pulvers, Holland &

Knight LLP, Portland.

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. 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 imma-

ture 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 fam-

ily * * * but he was unable to appreciate the impact of his

behavior on his victims.” Sebastian’s conclusion, however,

was that youth exhibited average sophistication and matu-

rity 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 anti-

social. When compared to his age mates, he is just as effec-

tive or more effective (because of his strong cognitive abil-

ity) in understanding that his crime was wrong and iden-

tifying 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 matu-

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

youth presented neuro-scientific evidence about the limita-

tions of adolescent brains in relation to those of adults. An

expert, Dr. Nagel, testified about the undeveloped nature

of the prefrontal cortex in adolescents, and about how that

neurological difference makes it harder for adolescents to

access the brain’s higher level, logical functions. 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, Nagel testified, is that adoles-

cents have significantly more trouble than both adults and

younger children in making moral choices in emotionally-

charged or social reward-based situations. Although adoles-

cents may have the capacity to understand the act of killing

someone in a cold situation, Nagel explained, that capacity

is easily 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. Bolstad concluded that cognitively

and in most other respects youth was “average” or “nor-

mal” for a 13-year-old. Bolstad noted, however, that young

Cite as 359 Or 559 (2016) 565

adolescents as a whole are considerably less capable of inde-

pendent thinking than are adults; they are “vulnerable 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, 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.”

Bolstad also noted that, because of their immature

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

of understanding abstract principles and have difficulty in

weighing alternatives and in anticipating the consequences

of their actions and decisions. Bolstad added that, because

empathy and remorse require abstract thinking, 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 personal strategies

for distracting himself from difficult feelings also might play

a role in those deficits. When pressed to speak to the “sophis-

tication and maturity” requirement of ORS 419C.349(3),

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.” Bolstad concluded that the “cogni-

tive 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 require-

ment for waiver—that the juvenile court find that retain-

ing 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 the

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

statute—youth’s amenability to treatment, the seriousness

of the offense and the aggressive, violent, premeditated or

willful manner in which it was committed, youth’s history,

including criminal history, the gravity of the injury caused

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

sion 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 Bolstad’s testimony

and the testimony of teachers, 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 pressure than the typical youth of

that age, and that, by the age of 25 when the juvenile court

would no longer have jurisdiction, 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 by 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

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

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 inter-

ests of youth and of society, ORS 419C.349(4), the juvenile

court paid considerable attention to youth’s history of unlaw-

ful and sometimes violent conduct, beginning at the age of

nine. It also contrasted youth’s behavioral difficulties in

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.

public school with his exemplary behavior in the “structured

and supportive environment” of juvenile detention facilities.

Finally, the court considered whether youth’s significant

treatment needs, which youth’s own expert had acknowl-

edged, would be best met through juvenile or adult adjudi-

cation. 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 supervision made

adult adjudication preferable. The court concluded that the

interests of both youth and society would best be served by

prosecution as an adult. Having thus made the determina-

tions 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

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

understand the physical nature and criminality of the act.

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

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;

“(2)  The juvenile court makes the findings required

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

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.

“(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

that retaining jurisdiction will not serve the best interests

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

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

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 provi-

sion sets a higher bar, permitting adult prosecution only of

those juveniles who possess greater maturity and sophis-

tication than the average adolescent—an adult-like ability

to appreciate the gravity and wrongfulness of their conduct

and its consequences on a deeper intellectual and emotional

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.

level. And certainly, youth argues, the statute does not per-

mit waiver of a youth who is only of “average” sophistica-

tion 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 suffi-

cient adult-like capabilities to appreciate its consequences

and wrongfulness 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.

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

Cite as 359 Or 559 (2016) 573

“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,

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

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

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.

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 adju-

dication 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” hear-

ing 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) (pro-

viding 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 respon-

sible for the offense. That immaturity statute set a practi-

cal limit on a juvenile court’s “remand” authority. Even if a

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

Cite as 359 Or 559 (2016) 575

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 per-

mitted 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 commit-

ted 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 suffi-

cient 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).

Thus, under the 1985 statute, youths who were

14 at the time of an act remained immune from criminal

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 419C.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.

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

act became subject to waiver, but they were afforded addi-

tional protections that had not been available before that

legislation was passed. The 1985 legislation provided a new

and more stringent standard for remand and new protec-

tions 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 mini-

mum sentences 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

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

11

“Sophistication” is defined primarily by reference to the related adjective,

“sophisticated.” To be “sophisticated” is to be “deprived of native or original sim-

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

(unabridged ed 2002).

Cite as 359 Or 559 (2016) 577

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

contends that the statute requires no more than an adult-

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

wrongfulness.

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.

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.

B.  Context

In interpreting a statute we also consider context.

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

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

provisions 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 con-

text support 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, 359 Or at 573,

the original M’Naghten rule set out a two part test, one hav-

ing 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 conse-

quences, later cases and commentators suggested (in an era

when psychiatry was expanding notions of mental incapac-

ity) that the phrase was not so limited. For example, some

suggested that the phrase “gives important 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 (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

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

person incapable of understanding the nature and quality

and consequences of his act or of distinguishing between

right and wrong in relation 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 legislature had that narrow and specific conception in

mind, and the state does not disagree. The state acknowl-

edges 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 nec-

essary degree of understanding of those concepts—a mental

ability 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 Preven-

tion, 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 419C.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

419C.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.349(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 (1983)

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

ORS 106.060 (1983) (marriage); ORS 247.002(2) (1983) (vot-

ing); ORS 471.430 (1963) (purchase of alcohol). And it is evi-

dent that those general sentiments about the lesser capac-

ity of juveniles extended to their moral development and

their capacity 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 analysis 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 permitted a

Cite as 359 Or 559 (2016) 587

juvenile court to waive its jurisdiction only for youth 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 capabilities associ-

ated 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

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

youths. But the comparison for which youth contends, and

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

Cite as 359 Or 559 (2016) 589

of the nature, consequences and wrongfulness of the con-

duct than mere criminal capacity would require. Similarly,

evidence that the legislature drew the phrase “sophistica-

tion and maturity” in ORS 419C.349(3) from the Kent case

suggests that it intended juvenile courts to look for indi-

cia of adult-like mental, social and emotional development

indicative 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

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

nature and quality of the conduct involved,” including its

consequences and wrongfulness.

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.”

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

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

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

also testified that

“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).

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

The discussions surrounding the adoption of the

waiver criteria show that the legislature believed that juve-

niles generally should be adjudicated in the more treatment-

oriented juvenile system and that adult prosecution should

be limited to individuals whose culpability made adjudica-

tion in the juvenile justice system inappropriate. See, e.g.,

Audio Recording, Senate Judiciary Committee, SB 414,

Apr 25, 1995, Tape 109, Side B (comment of Judge Albin

Norblad, co-drafter of SB 414, that it should be more diffi-

cult to remand juveniles but that some, few, exceptionally

dangerous juveniles should be remanded for society’s protec-

tion); Audio Recording, Senate Judiciary Committee, SB 414,

May 7, 1985, Tape 123, Side A (comment 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 proponents, 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 undermine purpose of having a sep-

arate 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

Cite as 359 Or 559 (2016) 593

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

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

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

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

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 419C.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).

Cite as 359 Or 559 (2016) 595

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:

“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,

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

and they were not repeated when the legislature took up the

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

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

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

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

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,

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.

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

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

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 consider-

ations and evidence that, under our interpretation of ORS

419C.349(3), a juvenile court may find helpful in deciding

what constitutes an adult-like capacity to “appreciate,” or

comprehend, with heightened understanding and judgment,

an act’s consequences and wrongfulness. After arriving at

Cite as 359 Or 559 (2016) 599

that understanding, the court must then determine whether

the particular youth’s capabilities are sufficiently similar to

those of a typical adult that the court can conclude that the

youth has the requisite appreciation of the nature and qual-

ity of the conduct involved. That determination will again

require the court to consider its own assessment of the par-

ticular 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

conclusion 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

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

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

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.