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

EGAN, J.,

dissenting.

The majority ultimately concludes that all that is required to “appreciate the nature and quality of the conduct involved” in the commission of a crime is that a youth “understand what they are doing in a physical sense and understand that their actions are wrong or will likely have criminal consequences.” 268 Or App at 539. The majority reaches this extremely low-threshold interpretation of ORS 4190.349(3) through a mistaken analogy to the adult criminal insanity defense statute. Because the long-recognized and legislatively dictated goals of the juvenile code are not comparable to those of the adult criminal code, the majority’s analogy is inapt. Moreover, an interpretive gloss pulled from the adult insanity defense statute is not needed to give meaning to the words of the juvenile waiver statute or to effectuate the intent of the legislature because ORS 419C.349(3) has a logical meaning that follows from the text and context of that statute. Consequently, I respectfully dissent.

ORS 419C.349 provides, in relevant part:

“The juvenile court, after a hearing * * * may waive a youth to a circuit * * * court * * * for prosecution as an adult if:
a* * ‡ * *
“(3) The youth at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved; and
“(4) The juvenile court, after considering the following criteria, determines by a preponderance of the evidence *541that retaining jurisdiction will not serve the best interests of the youth and of society and therefore is not justified:
“(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.”

I. IMMATURITY IS PROFOUNDLY DIFFERENT FROM A MENTAL DEFECT IN ADULTS

The majority draws a false analogy between the waiver statute and the adult criminal insanity defense statute. That analogy is based on the words “nature and quality.” 268 Or App at 518-19. Those words are present in the waiver statute but absent from the adult criminal insanity defense statute.

ORS 161.295(1), the adult criminal insanity defense statute, provides:

*542“A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.”

(Emphases added.)

Given that the words “nature and quality” are absent from that statute, to create a connection between the adult insanity defense statute and the waiver statute, the majority relies on State v. Dyer, 16 Or App 247, 518 P2d 184 (1974). In Dyer, the majority reversed its prior interpretation of the insanity defense statute on reconsideration and held, over a dissent,1 that the condition required to find a person guilty except for insanity under ORS 161.295(1)— that a person “lacks substantial capacity * * * to appreciate the criminality of the conduct” — was the “functional equivalent” of the former test in Oregon. 16 Or App at 257. The Oregon Supreme Court articulated that former test in State v. Gilmore, 242 Or 463, 468, 410 P2d 240 (1966):

“Insanity, to excuse a crime, must be such a disease of the mind as dethrones reason and renders the 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.)

A prior formulation of the test for incapacity due to insanity used the phrase “nature and quality and consequences.” The current statute does not use that phrase. The use of two words does not persuade me that the adult insanity defense statute ought to be used as a template for the juvenile waiver statute.2 This is especially so because, *543as explained below, the juvenile code is sui generis and contains legislatively mandated policies that starkly diverge from those of the criminal code. Moreover, the words “nature and quality” in the waiver statute have a logical meaning, independent of any analogy to the adult criminal code, that follows from the text and context of that statute. As we have long recognized, the statute’s text is “the best evidence of the legislature’s intent.” PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993).

A. “Nature and quality” within the context of the waiver statute

A comparison of the words of the adult insanity defense statute to the words of the waiver statute demonstrates their stark difference. The adult insanity defense statute is concerned with the effects of a “disease or defect” on a person’s “capacity,”3 whereas the waiver statute is concerned with “sophistication and maturity.” To say it another way, the adult insanity defense addresses impaired adult minds, while the waiver statute deals with undeveloped juvenile minds. The majority’s definition of “nature and quality” nullifies that distinction. It is only after nullifying that critical distinction that the majority can reach the conclusion that the youth waiver statute is analogous to the adult insanity defense statute.

That distinction is crucial. A youth’s ability to know that something is wrong or criminal bears little relationship to the adult-like qualities denoted by the words “sophistication and maturity.” 268 Or App at 516 (concluding that the words “sophistication and maturity,” in isolation, “describe qualities that are associated with a normal well-adjusted adult”). Put another way, if a 13-year-old did not know that murder was wrong or criminal, we would not think that the youth’s problem was one of “sophistication and maturity.” We might, of course, think that the youth’s problem related to a “disease or defect,” but the waiver statute does not use that language. The majority’s reduction of “nature *544and quality” to wrongfulness and physicality4 is inconsistent with the meaning of the other words used in the statute — that is to say, the majority’s proffered interpretation of ORS 419C.349(3) does not make sense in the context of that statute.5 We must interpret the meaning of the words in a statute as used in context. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

Turning to examine ORS 4190.349(3) within the context of the remainder of the waiver statute, it is apparent that subsection (3), relating to a youth’s “sophistication and maturity,” is intended to combine with subsection (4), which contains a list of best-interest factors, to form a two-part test. Likewise, it is apparent that the best-interest factors in subsection (4) do not address development and, therefore, subsection (3) is the only portion of the waiver statute that allows courts to inquire into a youth’s developmental capacity.6 The majority’s interpretation of ORS 419C.349(3) sets the bar so low that this inquiry loses nearly all significance. Such an interpretation of ORS 419C.349(3) is inconsistent with the context of the statute.

The legislature isolated the developmental capacity inquiry in subsection (3) from the best-interest factors inquiry in subsection (4). This is significant because a factor test requires a court to consider a combination of criteria and weigh each criterion against the others. By removing *545the developmental capacity inquiry from the factor test, the legislature confirmed that a youth’s developmental capacity is of primary importance to the waiver statute and requires a court’s exclusive consideration. In other words, a court must confront the developmental capacity inquiry squarely on its own terms, before balancing the best-interest factors.7 The majority’s interpretation of ORS 419C.349(3), which downplays the significance of the developmental capacity inquiry, belies the primary role that the inquiry plays in the structure of the waiver statute.

B. The waiver statute within the context of juvenile law

The legislature’s decision to make the developmental capacity inquiry primary in the waiver statute is in conformity with the long-recognized distinction between the juvenile code and the criminal code in Oregon law. The Oregon Supreme Court thoroughly analyzed the history of the treatment of juvenile offenders under Oregon law in State ex rel Juv. Dept. v. Reynolds, 317 Or 560, 857 P2d 842 (1993).8 *546Aside from restating that the juvenile code is civil, not criminal, id. at 567 n 6, the court concluded:

“Without exception, this court’s cases support the conclusion that the Oregon juvenile justice system always has been focused on the rehabilitation of delinquent youth. See, e.g., State v. Gullings, 244 Or 173, 177, 416 P2d 311 (1966) (juvenile court salvages and guides rather than punishes); Hitts v. Pierce, 113 Or 386, 231 P 652 (1925) (the purpose of juvenile court is not to convict or punish but to protect); State v. Dunn, [53 Or 304, 309-10, 99 P 278 (1909)] (juvenile court treats delinquent children not as criminals but as wards to be protected); State v. Eisen, 53 Or 297, 300, 99 P 282 (1909) (general purpose of juvenile code is not to punish, but to reform).”

Id. at 568. Then, despite the apparent “trend in the United States * * * toward the ‘crime control’ model of juvenile justice, especially for children who are involved with drugs, gang activity, or physical violence,” the court recognized that Oregon remained faithful to its emphasis on rehabilitation and cited to the predecessor waiver statute as an example of that faithfulness. Id. at 568 n 7 (citing former ORS 419.533 (1985), renumbered as ORS 419C.349 (1993), the predecessor of the current waiver statute). The current text of ORS 419C.349(3) mirrors that of the predecessor statute. Compare ORS 449.533 (1985) and ORS 4190.349(3). Given the divergent goals of the juvenile code and the adult criminal code, the majority’s analogy to the adult criminal insanity defense statute is a questionable source of meaning at best, and it is a particularly inapt analog to the waiver statute, which embodies the rehabilitative policy of the juvenile code. Reynolds, 317 Or at 568 n 7.

The distinction in Oregon law between the juvenile and adult criminal code aligns with, and has been informed by, a similar distinction in federal constitutional law.9 This *547is particularly the case with regards to ORS 419C.349(3), which quotes language approved by the United States Supreme Court in Kent v. United States, 383 US 541, 86 S Ct 1045, 16 L Ed 2d 84 (1966).10 Kent is the beginning of a string of United States-Supreme Court cases interpreting the limits of the state’s ability to prosecute and sentence youths. A more recent case in this line, Roper v. Simmons, 543 US 551, 125 S Ct 1183, 161 L Ed 2d 1 (2011), echoes the concerns expressed in Kent, and reasons that, because juveniles have lessened culpability due to their youth, they are less deserving of the most severe punishments. As compared to adults, the court noted that juveniles have a “‘lack of maturity and an underdeveloped sense of responsibility’”; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure”; and their characters are “not as well formed.” Id. at US 569-70. In Graham v. Florida, 560 US 48, 68, 130 S Ct 2011, 176 L Ed 2d 825 (2010), the court reached a similar conclusion based, in part, on the fundamental differences between adolescent and adult brains. (Citing the brief for the American Medical Association and the American Academy of Child and Adolescent Psychiatry as Amici Curiae.)

Similar to federal law, Oregon law distinguishes between youths and adults who engage in criminal conduct, because juveniles do not have the same developmental capacity as adults. See Reynolds, 317 Or at 566 (discussing early notions of youths’ criminal capacity in Oregon); State ex rel Juv. Dept. v. Fitch, 192 Or App 56, 64, 84 P3d 190 (2004) (concluding that, under the juvenile code, youths are not “criminally responsible for their conduct”). Similarly, because youths are not culpable in the same sense as adults and are considered amenable to rehabilitation, the juvenile code focuses on rehabilitation and not punishment. See generally Reynolds, 317 Or at 367-70 (tracing the history and policy of the juvenile code); ORS 419C.001 (outlining the rehabilitative policy of the juvenile code).

*548Oregon law and federal constitutional law have long been in conformity with the conclusions that science has only more recently reached through the development of brain imaging technology. According to the American Medical Association’s summary of recent research into brain development, adolescent “brains are physiologically underdeveloped in the areas that control impulses, foresee consequences, and temper emotions. They handle information processing and the management of emotions differently from adults.” Brief of the American Medical Association et al. as Amici Curiae at 5, Roper, 543 US 551. Because of the particularities of an adolescent’s brain development, “stress, emotions, and peer pressure * * * operate on the adolescent mind differently and with special force.” Id. at 7-8. In terms of decision making, adolescents rely on the amygdala, “the area of the brain associated with primitive impulses of aggression, anger, and fear,” whereas adults “tend to process similar information through the frontal cortex, a cerebral area associated with impulse control and good judgment,” and, moreover, “the regions of the brain associated with impulse control, risk assessment, and moral reasoning develop last, after late adolescence.” Id. at 11. Thus, according to the American Medical Association, “adolescents are not simply miniature adults, with less experience or wisdom. They are also not as equipped as adults to engage in moral reasoning and adjust their conduct accordingly.” Id. at 21.

Science confirms the fact that adolescents are fundamentally different from adults when it comes to criminal capacity — a fact that Oregon law has recognized for over 100 years, and a fact that our courts have repeatedly reconfirmed throughout the history of the juvenile code and earlier laws related to youthful offenders. See Reynolds, 317 Or at 567-70 (analyzing pre-1993 cases related to Oregon’s policies regarding youths who engage in criminal conduct); Fitch, 192 Or App at 64 (concluding that youths are not “criminally responsible for their conduct”). Of course, the courts cannot take credit for any premonition concerning the development of scientific data. Rather the legislative assemblies, juvenile authorities, and courts have all understood a deep psychological and spiritual truth: The manner in which we treat children defines us as a people; if we sow the fashionable and tawdry political wind of retribution toward juveniles, *549we reap the whirlwind of inhumanity waged against us all as citizens. There must be a distinction between adults and children. The waiver statute is an embodiment of that distinction. Reynolds, 317 Or at 568 n 7. An interpretation of the waiver statute that depends on the adult criminal code is, therefore, fundamentally mistaken.

To summarize, examining ORS 419C.349(3) in the context of the other provisions in the youth waiver statute, the legislature’s intention to make the developmental capacity inquiry contained in that subsection exclusive and primary is clear. Next, examining the waiver statute within the context of the juvenile code as a whole, it is clear that the juvenile code is premised on, and primarily concerned with, the goal of rehabilitation and the distinction between youths and adults — a distinction which is echoed in federal constitutional law and buttressed by the science of brain development. Under the majority’s interpretation — with its dependence on the adult criminal insanity defense statute — we would have to infer that the legislature wished to abrogate the distinction between the juvenile and the criminal code in the case of the waiver statute. Were this the case, the legislature could have easily said so, but it did not. Barring contrary evidence of legislative intent, we do not infer intent from silence. State v. Hess, 342 Or 647, 660-61, 159 P3d 309 (2007).

II. INTERPRETING THE TEXT OF THE STATUTE IN THE CASE AT HAND

As noted above, the majority depends on the words “nature and quality” for its analogy to the adult insanity defense statute. 268 Or App at 518-19. It is unnecessary to use that mistaken context to interpret those words because the meaning of the words follows logically from their use in the context of the waiver statute.

According to their dictionary definitions, both words relate to the “essential character” of a thing.11 The *550thing that “nature and quality” relate to in this statute is the “conduct involved” in the commission of the crime. Thus, our task of interpreting the plain meaning of “the nature and quality of the conduct involved” reduces to the question, what is essential to the criminal conduct at issue? That question may appear to present a vexing problem, but the solution is simple: We ask whether, if we removed an aspect from the conduct, that conduct would still be criminal. If, once an aspect is removed from the calculus, the conduct is no longer criminal, then that aspect must be essential.

Notably, the legislature instructed courts to consider whether a youth could appreciate the “conduct involved” in the particular crime. Consequently, depending upon the conduct at issue, the essential character of the conduct that the youth must appreciate may differ. Therefore, when applying the test outlined above, we must use a concrete example to determine what is included in the “nature and quality” of a particular type of criminal conduct.

Here, the alleged criminal conduct was murder and the majority identifies youth’s understanding of what he is “doing in a physical sense” to be part of the “nature and quality” of that conduct. Applying the test for “nature and quality” outlined above, we would ask, if a person killed another but did not understand what he was doing in a physical sense, would the conduct be criminal? Murder requires intent, and a person who does not know what he is doing in a physical sense lacks intent. Therefore, physicality is part of the essential character of that criminal conduct, and thus, part of its “nature and quality.” The same is true for the wrongfulness of the conduct — also identified by the majority — because if the conduct was not wrongful, it would not be criminal. Moreover, in person-to-person crimes, the “nature and quality” of the criminal conduct must also include the effect on the victim. This is so because person-to-person crimes necessarily involve victims, and if the victims were not affected, the conduct would not be criminal.

I agree with the majority that the meaning of “appreciate” “encompasses both an intellectual and emotional component.” Dyer, 16 Or App at 258; 268 Or App at 520-21. Consequently, because the effect on the victim, along *551with wrongfulness and physicality, is part of the nature and quality of the criminal conduct, in order to “appreciate the nature and quality of the conduct involved,” the youth must possess an emotional and intellectual understanding of the effect on the victim.

That reading of “appreciate” parallels the majority’s conclusion that “appreciate” includes an intellectual and emotional understanding of the consequences of one’s actions. Id. However, because the majority depends so heavily on an analogy to the adult insanity defense statute, it subsequently reduces its discussion of an appreciation of the consequences of the youth’s conduct — here, murder — to a mere intellectual understanding of the legal consequences of the conduct — i.e., an understanding that the conduct was wrong or criminal. Put differently, the majority acknowledges that a youth must have an emotional understanding of the consequences of the crime, but drops that requirement from its final analysis, and instead focuses its analysis solely on the consequences of the crime for the murderer. The consequences of murder are greater than the mere legal consequences for the murderer.

Furthermore, the plain meaning of “appreciate” relates to judgment-making. According to the dictionary, “appreciate” means “1 a * * * (2) : to judge or evaluate the worth, merit, quality, or significance of: comprehend with knowledge, judgment, and discrimination.” Webster’s Third New Int’l Dictionary 105 (unabridged ed 2002); 268 Or App at 516. Consequently, in addition to possessing an emotional and intellectual understanding of the effect on the victim and other consequences of the crime, a youth must also be able to make judgments about that effect.

Turning to sophistication and maturity, I agree with the majority that the plain meaning of “sophistication” and “maturity” “describe qualities that are associated with a normal well-adjusted adult.” Id. However, I believe that the majority does not sufficiently heed the significance of those terms in relation to the rest of the statute.

“‘Sophistication’ means ‘the quality or state of being sophisticated’ and ‘the quality or the character of *552being intellectually sophisticated (as through cultivation, experience, or disillusionment)’” and “sophisticated” is defined as “deprived of native or original simplicity: as * * * b : WORLDLY-WISE, KNOWING <a ~ adolescents” Id. (quoting Webster’s at 2174).

Maturity is “the quality or state of being mature : full development * * * < ~ of judgment> * * Webster’s at 1395. Mature is defined as

“2 a : having attained the normal peak of natural growth and development: fully grown and developed * * * c : having or expressing the mental and emotional qualities that are considered normal to an adult socially adjusted human being <a ~ outlook> <parents were willing to be ~, to take responsibility -H.S.Canby>”

Id. at 1394 (emphasis added). Thus, under ORS 419C.349(3), the juvenile must possess “sufficient” intellectual sophistication derived from experience and be sufficiently able to express the mental and emotional qualities of a normal, fully grown and developed, socially adjusted adult. Because the court must make findings about a youth’s sophistication and maturity, ORS 419C.352(2), those findings must take into account whether the youth possesses enough of the intellectual sophistication derived from experience and the ability to express the mental and emotional qualities of a normal, fully grown and developed, socially adjusted adult to meet the demands of a specific situation, i.e., to appreciate the nature and quality of the conduct involved.

In placing all of the above together, I agree with the majority that, when contemplating whether a youth, because of his or her sophistication and maturity, is able to appreciate the nature and quality of his or her conduct, a court must make findings regarding (1) whether the youth understood what her or she was doing in a physical sense and (2) understood that that the conduct was wrong. However, at least in the case of person-to-person crimes, the inquiry does not end there. The court must also make findings regarding the youth’s intellectual and emotional understanding of the effect on the victim and other consequences of the conduct; this inquiry must, therefore, necessarily take into account (3) the youth’s empathetic capacity. Last, (4) a court must *553also make findings about the youth’s judgment-making ability, considering the youth’s capacity to think independently in light of outside influences. Furthermore, by the terms of the statute, these findings must be made regarding “[t]he youth at the time of the alleged offense.”

Those elements of ORS 419C.349(3) follow from the plain meaning of the text used in the context of the statute; additionally, they also align with the science of brain development, which shows that — due to the physical structure of adolescent brains — teenagers and younger juveniles have a limited capacity to make moral judgments and experience empathy, and are particularly susceptible to peer pressure. Given that the science of brain development confirms our commonsense understanding of human development, it is not surprising that Oregon law and federal constitutional law have long been in conformity with the conclusion that researchers have, only more recently, reached through the development of brain-imaging technology.

III. LEGISLATIVE HISTORY

Finally, recognizing that the legislative history of the waiver statute should be given little weight compared with the statute’s text and context, Gaines, 346 Or at 172-73, I nonetheless turn to the legislative history to explain the differences between my reading of that history and the majority’s. I agree that the majority correctly focuses on the early history of the sophistication and maturity criteria. That history begins in 1983 with the proposed amendments to former ORS 419.533 that were aimed at reforming the waiver process then known as “remand.” As I explain in more detail below, my review of that history persuades me that the majority’s reading is too reductive and fails to take into account the context of the legislative debate. Specifically, the majority’s reading ignores the fact that the legislature was committed to the rehabilitative policy of the juvenile code and mindful of its distinction from the criminal code and was focused on creating a system for individualized consideration of a youth’s developmental capabilities. Further, the majority’s reading discounts legislators’ statements that waiver is intended to apply only in exceptional cases.

*554The legislative history of former ORS 419.533 confirms that the legislature was acutely aware of the distinction between the juvenile code and the criminal code. The concerns that spurred the 1983 reform efforts led by Senator Ryles grew out of the “general philosophy” of the juvenile system to focus on rehabilitation. As expressed by Senator Ryles, “juveniles may be lacking in understanding or 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 Sen Nancy Ryles) (emphasis added).12

The legislature was also mindful of the need for individualized consideration of a youth’s developmental capabilities. Senator Ryles discussed the criteria that would ultimately become ORS 419C.349(3) and (4), explaining that the criteria were designed to “protect [] those who truly are not maturing or are not sophisticated enough to understand the gravity of their act — regardless of their chronological age.” Testimony, Senate Committee on Judiciary, SB 414, Apr 25,1985, Ex B (statement of Sen Nancy Ryles). She added:

“It is not realistic to say that a 14 or 15 year-old is not sufficiently mature to understand the gravity of a violent crime, while a 16 year-old is. We cannot persist in totally 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 understand the serious nature of the violent crime they have committed, while others may not”

Id. (emphasis added).

*555Perhaps most importantly, the legislative history further indicates that legislators were sensitive to the fact that waiver was intended to apply only to “exceptional cases,” and that the bill was the exception to the general rule that the juvenile court would retain exclusive, original jurisdiction over most juveniles. Testimony, House Committee on Judiciary, Subcommittee 1, HB 2955, May 18, 1983, Ex A (statement of Sen Nancy Ryles). Senator Ryles stated that, although “we have not yet come to terms with those exceptional cases where a younger teenager commits a violent crime,” those “exceptional cases” “represent a very small percentage of all juvenile arrests,” but they do exist. Id.

In sum, the legislature considered and crafted language that recognized the need to retain the distinction between the juvenile system and the adult criminal system, which involves 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 “understand” that he or she committed a criminal act. Further, the legislative history confirms that waiver was intended to apply only to those “exceptional cases” in which the court had considered the youth’s developmental capacity. In contrast to those legislative concerns, the low threshold developed by the majority — an intellectual understanding of the wrongfulness of the conduct and that the youth physically engaged in the conduct — will ensure that all but the most developmentally challenged youths will be capable of being waived into the adult criminal system, as long as the youth’s conduct constituted one of the enumerated crimes if charged as an adult.

Accordingly, I dissent.

Ortega, J., joins in the dissent.

The dissent rejected the conclusion that the phrase the person “lacks substantial capacity * * * to appreciate the criminality of the conduct” was the functional equivalent of the former test. Dyer, 16 Or App at 265-66 (Thornton, J., dissenting).

The majority also argues that the words “nature and quality” have been imbued with special meaning by the early history of the common-law insanity defense. 268 Or App at 518-19. However, that argument fails to address the critical distinction between a lack of capacity due to a disease or defect and a lack of capacity due to inadequate sophistication and maturity, which I discuss more fully below.

As relevant here, the dictionary defines “capacity” as “2 : legal qualification, competency, power, or fitness.” Webster’s Third New Int’l Dictionary 330 (unabridged ed 2002).

To be sure, the majority’s formulation of wrongfulness — an “understand [ing] that [a youth’s] actions are wrong or will likely have criminal consequences”— and the majority’s formulation of physicality — an “understand [ing of] what [a youth is] doing in a physical sense” — is more detailed than my shorthand reference to wrongfulness and physicality. However, for clarity, I use these shorthand references throughout the remainder of this dissent.

As explained below, 268 Or App at 550-51 (Egan, J., dissenting), I agree with the majority that wrongfulness and physicality are part of the nature and quality of the criminal conduct here. I include this example to demonstrate that considering only the youth’s intellectual appreciation of the wrongfulness and physicality of the conduct — -without also considering the youth’s appreciation of other aspects of the conduct — leads to a result that does not comport with the context of the statute.

The majority agrees that ORS 419C.349(3) is focused on capacity. 268 Or App at 517. However, because of its reliance on the adult criminal insanity defense statute, the majority concludes that incapacity in the waiver statute is equal to that caused by a disease or defect. Instead, because the waiver statute uses the words “sophistication and maturity,” I would conclude that the capacity inquiry required by the waiver statute relates to a youth’s development.

The legislative history makes explicit what is implicit in the structure of the statute. Senator Nancy Ryles, the primary proponent of changes to the waiver statute that would eventually become ORS 419C.349(3) (then known as remand), explained her preference for isolating the sophistication and maturity criterion from the best-interest factors:

“I feel it is a much stronger protection for juveniles in this position rather than being listed with the [best-interest] criteria. This clause 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, Ex P (statement of Sen Nancy Ryles) (underscoring in original). Moreover, Julie McFarlane of Juvenile Rights Project testified that she agreed with Senator Ryles that isolating the sophistication and maturity criterion gave it more emphasis and was “a good idea.” Tape Recording, House Committee on Judiciary, HB 2955, June 6,1983, Tape 408, Side A (statement of Julie McFarlane, Juvenile Rights Project).

Following a reference to Professor LaFave’s opinions on formulations of tests for criminal capacity, the majority cites Reynolds for the proposition that “it is likely that Oregon applied the common law rule” regarding crimes committed by juveniles. 268 Or App at 525 n 8. Prior to statehood, this may have been the case. See Reynolds, 317 Or at 566 (discussing law in effect before 1859). However, the legislature abrogated those rules in the late 19th century. The state’s approach to juvenile prosecution then evolved through legislation for another roughly 70 years before the legislature recodified the juvenile code in 1959 into a sui generis system with exclusive jurisdiction over youth. Id. at 567-70. Consequently, if Oregon ever followed a common-law approach to developmental capacity, it has not done so for well over 100 years.

As summarized in Kent v. United States, 383 US at 554-55, the theory of juvenile courts is

“rooted in social welfare philosophy rather than in the corpus juris. Its proceedings are designated as civil rather than criminal. The Juvenile Court is theoretically engaged in determining the needs of the child and of society rather than adjudicating criminal conduct. The objectives are to provide measures of guidance and rehabilitation for the child and protection for society, *547not to fix criminal responsibility, guilt and punishment. The State is parens patriae rather than prosecuting attorney and judge.”

Among previous criteria used by the District of Columbia Juvenile Court cited with approval by the Kent court, is a criterion which instructs courts to consider a youth’s “sophistication and maturity.” 383 US at 567.

Examining the plain meaning of the words “nature and quality,” I agree with the majority that the most applicable definition of “nature” is “the essential character or constitution of something.” Webster’s at 1507; 268 Or App at 517-18.1 also agree that “quality” is best defined for the purpose of this statute as a “peculiar and essential character.” Webster’s at 1858; 268 Or App at 517-18. However, I strongly disagree that those definitions are of limited guidance. 268 Or App at 518.

The majority discounts statements such as this as an “additional example” of a “nonspecific statement!] that could be stretched to aid youth’s argument in a general way.” 268 Or App at 534-35 n 18. Unlike the majority, I do not discount that and other similar statements, because, when viewing the totality of the legislative history, in light of the particular context in which the statements were made, the statements provide a good indication of the legislature’s views with regard to the discretionary criteria in general, and, more specifically, that, in enacting the bill that lowered the age of waiver, there was an intent to retain the distinction between the juvenile and adult systems, curtail abuse of the waiver option, and provide an even-handed rational basis on which judges could base waiver decisions.