FLAGSTAFF, Ariz. — What do you do with an 8-year-old boy charged with two counts of premeditated murder?
Prosecutors and a defense lawyer in rural eastern Arizona are struggling to come up with an answer in the shocking case of a child accused of shooting his father and his father's friend early last month. Outside experts fascinated with the case are just as perplexed.
Although Arizona law allows 8-year-olds to be found delinquent and to be charged as adults, experts say children at that age are far from fully formed mentally and most don't understand the finality of death and the consequences of murder.
"Almost by definition, whatever they do has to be tailored to meet his specific individual needs, and it's not like 'Oh, we've got just the program for this young man. We'll send him here or we'll send him there.' That's not going to work," said Charles Ewing, a psychologist and law professor at the University at Buffalo Law School.
Prosecutors in the case in the small community of St. Johns are conflicted. They say in court documents that the juvenile system is ill-equipped to handle the third-grade boy.
It's not their desire, they say, to "persecute" a child who may not fit the description of normal. But they also say a balance must be struck between rehabilitation and justice for the victims while considering the boy's "tender age."
Police say the boy planned and methodically carried out the shootings, using a .22-caliber rifle when his father, 29-year-old Vincent Romero, and 39-year-old Tim Romans returned home from work Nov. 5.
In a police interview, the boy admitted firing at least two shots at each of the men, but the child's attorney has questioned the admissibility of the confession because no lawyer or parent was present.
The boy also told police in the interview his stepmother had spanked him five times the night before the shootings because he did not bring home some papers from school. According to documents later released by prosecutors, the boy kept a tally of spankings, vowing the 1,000th would be his last.
Judge Michael Roca recently ordered all proceedings stayed until competency evaluations of the boy are complete; a state expert is expected to evaluate the boy Dec. 17. Lingering issues include a prosecution motion to drop one of the murder charges against the boy.
Prosecutors also have offered a plea deal. Defense attorney Benjamin Brewer has said he's considering the offer, which would resolve the case without transferring it to adult court.
Apache County Attorney Criss Candelaria wrote in a court filing that the deal would resolve all the charges but neither he nor Brewer will discuss details of the offer. Attorneys in the case are bound by a gag order that often prevents them from commenting on filings or developments.
The case has tugged at the hearts of people across the country, who look at their own children and question how an 8-year-old could possibly have been responsible for such a crime.
"It is not a crime in the traditional way we define a crime," says Marsha Levick, legal director of the Juvenile Law Center in Philadelphia, "because he simply lacks the intent to commit a crime."
While many states would allow the boy to be held accountable and even tried as an adult, Levick said that doesn't mean an 8-year-old should be thrust into the criminal justice system.
"I think there should be great doubt in the public's mind of whether this child is even guilty of the crime," she said. "Even if he in fact pulled the trigger, treating him as an adult, holding him responsible in the same way we hold adults responsible is completely inappropriate."
No child 8 years old or younger committed homicide in the United States during 2005-2007, according to FBI statistics.
In 2000, a 6-year-old Michigan boy shot a first-grader at school with a gun he found at the house where he was living. The prosecutor declined to charge the boy, saying common law doesn't allow a child under the age of 7 to be held criminally responsible.
Only 13 states have set a minimum age at which children can be adjudicated delinquent, according to the National Juvenile Defender Center. In eight of those states, the age is 10; Arizona statute specifies an age of 8; three states set a minimum age of 7; and in North Carolina a 6-year-old can be found delinquent.
That there's no consensus among states adds to the difficulty in dealing with children charged with crimes. Jack Levin, a criminologist at Northeastern University in Boston, said the Arizona case is so extraordinary that even those who would support rehabilitation for the boy would likely be ambivalent.
"There's not a guideline, there's not a profile," he said. "This is all going to have to be ad-hoc. They're going to have to make it up as they go along. Hopefully, not only will they satisfy the need to punish but they'll also make sense."
Brewer, the defense attorney, has objected to the prosecution requests to drop one of the murder charges. He contends it's a tactical move aimed at trying to refile the charge when the boy is older.
If the boy is convicted in juvenile court, he could be locked up until he's 18. Brewer fears the boy could be in prison for life if he were transferred to the adult system.
The boy has been in juvenile custody since his arrest except for a 48-hour period when he was allowed out to spend Thanksgiving with his mother. She has said the boy is housed separately from the older children.
Currently, there are no 8-year-old children in Arizona's juvenile or adult corrections systems. The average age of children incarcerated in the state juvenile corrections department is 15, and the youngest was 11, said Nancy Molever, spokeswoman for the juvenile department.
"With an 8-year-old, that's going to be really no more a challenge than any other kid," she said. "Every kid who comes to us has their own set of challenges, their own needs."
Minors in the adult system are housed in a separate unit, said Nolberto Machiche, a spokesman for the Arizona Department of Corrections. In the past 20 years, no child younger than 12 has been housed there. Currently, the youngest is 15, Machiche said.