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

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 suggesting 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 maturity” requirement had been satisfied. The Court of Appeals affirmed in an en banc decision, holding that the “sophistication and maturity” provision requires only an awareness of the physical nature and criminality of the conduct at issue—a test that generally has been considered sufficient 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 other things, aggravated murder, ORS 163.095.

At a hearing on the state’s petition, the parties presented evidence addressing the requirements for waiver. To show that youth possessed “sufficient sophistication and maturity to appreciate the nature and quality of the conduct *563involved,” 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 victim’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 submitted 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 immature 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 family * * * 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 maturity for his age and that he understood that his conduct was wrong:

*564“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 independently, (2) understand behavioral norms and expectations of adolescents in the larger picture, (3) weigh the risks and benefits of his action, (4) demonstrate age appropriate social skills, (5) anticipate the consequences of his actions, [and] (6) discern which of his behaviors are antisocial. When compared to his age mates, he is just as effective or more effective (because of his strong cognitive ability) in understanding that his crime was wrong and identifying 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 maturity to appreciate the nature and quality of [his] conduct,” youth presented neuro-scientific evidence about the limitations 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 adolescents have significantly more trouble than both adults and younger children in making moral choices in emotionally-charged or social reward-based situations. Although adolescents 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 “normal” for a 13-year-old. Bolstad noted, however, that young *565adolescents as a whole are considerably less capable of independent 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 “sophistication 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 “cognitive 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 requirement for waiver—that the juvenile court find that retaining 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 *566statute—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 supervision 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 written findings in support of the required determinations under ORS 4190.349(3) and (4). Although the juvenile court’s findings suggest some confusion about the significance of the determination required by ORS 419C.349(3),1 *567it nevertheless expressly made the required determination under that provision—that youth had sufficient “sophistication and maturity to appreciate the nature and quality of the conduct involved.” The juvenile court based that determination 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 understanding and appreciating his Miranda rights before his interview by the police, and sufficiently mature to participate 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 several 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 interests of youth and of society, ORS 419C.349(4), the juvenile court paid considerable attention to youth’s history of unlawful and sometimes violent conduct, beginning at the age of nine. It also contrasted youth’s behavioral difficulties in *568public 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 acknowledged, would be best met through juvenile or adult adjudication. 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 determinations 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 misunderstood what the “sophistication and maturity” requirement of ORS 4190.349(3) entailed and, consequently, had incorrectly 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 4190.349(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. *569J. 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 considered sufficient to establish criminal capacity. The Court of Appeals concluded that the juvenile court spoke to that requirement when it found that youth demonstrated “awareness regarding the nature of the criminal act, the degree of his participation in the act, and an awareness of the consequences 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 committed 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

*570“(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 sufficient 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.”

*571Thus, 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 ORS 419C.352 now permits waiver of younger juveniles, including those who, like youth, are 13 at the time of the commission 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 provision sets a higher bar, permitting adult prosecution only of those juveniles who possess greater maturity and sophistication 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 *572level. And certainly, youth argues, the statute does not permit waiver of a youth who is only of “average” sophistication 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 sufficient 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 the 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 particular 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 presumption 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 “in possession and exercise *573of sufficient mentality to make an intelligent choice and possessed a knowledge of right and wrong and of the wrongfulness of the act charged.” LaFave, 2 Substantive Criminal Law § 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).

*574In 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 formulation, 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 criminal 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 criminally 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 adjudication 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” hearing 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) (providing 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 responsible for the offense. That immaturity statute set a practical limit on a juvenile court’s “remand” authority. Even if a juvenile were 16 years old at the time of a remand hearing, *575the 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. LJ, 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 provision at issue in this case. Or Laws 1985, ch 631, § 1. The 1985 statute, now codified as ORS 419C.349(3),9 permitted 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 committed 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 sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved, ORS 419C.349(3); and (2) that, considering specified criteria, retaining jurisdiction in the juvenile court “will not serve the best interests of the youth and of society and therefore is not justified,” ORS 4190.349(4).

Thus, under the 1985 statute, youths who were 14 at the time of an act remained immune from criminal *576prosecution. Youths who were 15 and older at the time of an act became subject to waiver, but they were afforded additional 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 protections 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 minimum 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 4190.349(3) in 1985, we examine the statutory text in its context, along with its legislative 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) “sufficient 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 emotional 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 particular *577ular 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 “comprehend [it] with knowledge, judgment and discrimination” or “to judge [it] with heightened perception or understanding.” 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 (defining “nature” as, among other things, “the essential character or constitution of something” and defining “quality” as “a peculiar and essential 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 provision 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 minimal 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 person 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 “sophistication” describe adult-like qualities. However, focusing on the qualifying word “sufficient,” and the object of the understanding, 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.

*578There are two problems with that interpretation of the statute’s text. First, an ability to have a mental understanding of the physical nature of an act and its wrongfulness 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 building 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 incapacity that attached to that age group could be, and often was, rebutted. Thus, it 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 “appreciate,” 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 legislature’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 *579provisions 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 context 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 insanity 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 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.”

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 consequences, later cases and commentators suggested (in an era when psychiatry was expanding notions of mental incapacity) 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 *580recent 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 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 4190.349(3) was enacted, it seems unlikely that legislature had that narrow and specific conception in mind, and the state does not disagree. The state acknowledges 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 necessary 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 uniformly to a capacity to “know” the nature and wrongfulness of the conduct, the Oregon legislature, in enacting ORS 4190.349(3), chose a different word—“appreciate.” At the time that ORS 419C.349 was enacted, jurists and lawmakers had for some time been taking note of how the choice to use one or the other of those words tended to affect the criminal 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.”

*581Goldstein, The Insanity Defense at 49. He observed that certain courts had chosen to state the rule in broader terms like “appreciate,” on the theory that

“the act must necessarily involve more than mere knowledge 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 accompany ORS 161.295, the 1971 statutory revision of the common-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 “irresistible impulse” test, the commission noted that “the draft section 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 significance 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 *582with 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 juvenile 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 process 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 determined by consideration of his home, environmental s