Dynamics of Inclusion and Exclusion: Unfitness to Plead and Infancy

Arlie Loughnan

in Manifest Madness

Published in print April 2012 | ISBN: 9780199698592
Published online May 2012 | e-ISBN: 9780191738883 | DOI:

Series: Oxford Monographs on Criminal Law and Justice

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This chapter juxtaposes two mental incapacity doctrines — unfitness to plead and infancy — that are facially quite dissimilar, but which define, by a process of exclusion, those who can be subjected to criminal law process and sanctions. Although infancy is not typically incorporated into studies of mental incapacity in criminal law, its historical, conceptual, and procedural features make it a proper inclusion. It is shown that infancy and unfitness to plead have both developed along a trajectory of formalization. The chapter suggests that formalization was shaped by a deep dynamic of inclusion — whereby the scope of these mental incapacity doctrines was drawn broadly — but, more recently, has also come to be structured by a dynamic of exclusion, whereby the scope of the doctrines is more circumscribed. The change in the dynamics structuring the process of formalization itself reflects changing concerns with matters such as dangerousness. As a result of these changing concerns, in the current era, formalization of these mental incapacity doctrines is now structured by these two dynamics of inclusion and exclusion.

Keywords: mental incapacity doctrines; unfitness to plead; infancy; criminal law; inclusion; exclusion

Chapter.  22565 words. 

Subjects: Criminal Law

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