In today’s article in Law In Cabo we will talk about “Can a minor go to jail?”. First of all, it must be specified that minors do NOT commit crimes, but rather they commit “unjust acts”; this is due to the fact that we must remember that a crime is composed of: a conduct-typical, antijuridical and guilty (typicality, antijuridicality and culpability); however, in the case of juvenile offenders “their minority of age” prevents them from being considered as “imputable” persons, which excludes “culpability”; therefore, it would no longer be a crime, but rather it would be an unjust, since it subsists, only, as elements of the conduct displayed by the minor: a conduct-typical and anti-juridical, but NOT guilty; therefore, when we refer to the conduct-typical and anti-juridical deployed by minors, the correct term is “unjust” and NOT “crime”.

Having clarified the above, it should be noted that criminal law can only impose a penalty on a person who commits a crime or participates in it once he or she reaches the age of majority, i.e., 18 years of age; however, for adolescents (which are persons between 12 and 18 years of age) criminal law imposes “punitive measures” -articles 4 and 5 of the National Law of the Comprehensive System of Criminal Justice for Adolescents- (hereinafter LNSIJPA).

Various postulates of criminal policy, as well as the considerable increase in the participation of minors in the commission of crimes, have led some legislators to propose reducing the age of criminal responsibility from 18 to 16, since some organized criminal groups have taken advantage of this “regulatory facility” to recruit minors into their ranks and thus carry out a variety of criminal acts, since they know that minors will not have the same degree of punishment as an adult.

However, neither criminal policy arguments nor the precociousness of Mexican youths are sufficient to contravene the provisions of the international treaties to which we are a party, which oblige us to set the age of criminal responsibility at 18 years of age (Beijing Rules 2.2, paragraph a, 4 and 4.1; United Nations Rules for the Protection of Juveniles Deprived of their Liberty, article 11, paragraph a), among others.

Therefore, minors under 12 years of age are legally considered “children” and they are NOT criminally responsible. The law classifies juvenile offenders in three major age groups (age groups), as follows:

FIRST AGE GROUP From 12 to less than 14 years of age.

SECOND AGE GROUP From 14 to less than 16 years of age.

THIRD AGE GROUP From 16 to less than 18 years of age.

Based on this classification of age groups, the legislator establishes a series of measures to be imposed on minors, taking into account the psychological development of each of these groups, seeking that the sanction measure imposed on the minor is the most appropriate to their needs and above all that it is proportional to ensure the reinsertion and reintegration of the minor into society.

Therefore, the sanction measures that can be imposed on minors who commit an offense are classified by law into two main groups “non-custodial measures and custodial measures”.

The non-custodial measures, as their name implies, are all those that are imposed on the juvenile offender, with the purpose of allowing him/her to serve them in freedom, which consist of: Reprimand; Warning; Provision of services in favor of the community; Collective counseling sessions and similar activities; Family supervision; among many others.

Likewise, as regards the measures depriving or restricting freedom, they are those that restrict the freedom of movement of the minor, which are the “most exceptional” measures, which can only be imposed on minors between 14 and 18 years of age, measures that consist of: Home stay; Internment, and Semi-internment or internment in free time.

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