Reading About Culpability

This page will provide visitors with a list of literature–books, law review articles, and so on– about the issue of culpability and juvenile criminals.

Articles and Blogs

Are Juveniles Categorically Less Culpable?

This article was written by an NOVJM volunteer and expresses her views rather than those of NOVJM as an organization. In sum, she argues that juveniles are not categorically less culpable because they are able to understand the nature of their crimes as well as adults. Typical juvenile traits do not reduce this ability, nor do they apply to all juveniles.

The Brain on the Stand by Jeffrey Rosen for The New York Times 

Rosen discusses the increased use of neuro-imaging in law.

Right From Wrong — At What Age Do Children Develop A Moral Sense, And Understand What It Means To Commit A Crime by Carey Gelernter in The Seattle Times.

In this article, several experts in adolescent psychology discuss moral development and the ages we can expect people to understand moral choices and consequences. According Dr. James Farrow, associate professor of medicine and pediatrics at University of Washington School of Medicine, director of the Division of Adolescent Medicine at the UW Medical Center, and director of Nathan Hale High School’s Teen Health Center, juveniles’ cognitive functioning should usually be like the cognitive functioning of adults at about 14. Though each individual teen should be assessed on a case by case basis, “Kids over 14, you might be able to make the case, they should be thinking like an adult.”

Teen Brains on Trial: The Science of Neural Development Tangles with the Juvenile Death Penalty by Bruce Bower.

This article discusses the science surrounding teen brain development and the use of that science in the legal arena. Many scientists believe that brain science does not belong in the legal arena because there is no evidence linking specific characteristics of adolescent brains to any legally relevant condition, like impaired moral judgment or an inability to control murderous impulses. “The scientific data aren’t ready to be used by the judicial system,” says UCLA scientist Elizabeth Sowell. “The hardest thing [for neuroscientists to do] is to bring brain research into real-life contexts.” Other important opinions include:

  • Dr. BJ Casey, Director of the Sackler Institute of the Weill Medical college at Cornell University says, “Brain science offers no simple take-home message about adolescents.”
  • Neuroscientist Bradley S. Peterson, Columbia College of Physicians and Surgeons in New York City says, “The ambiguities of science don’t mix well with the social and political causes.”
  • “Juvenile death sentences bother me, but this is an ethical issue,” says Harvard University psychologist Jerome Kagan. “The brain data don’t show that adolescents typically have reduced legal culpability for crimes.”

With Friends Like These . . .”: New Critiques of Graham and Miller by Michael O’Hear for the Marquette University Law School Faculty Blog.

Mr. O’Hear discusses various criticisms of the Graham and Miller rulings.

Law Reviews

Brain Overclaim Syndrome and Criminal Responsibility: A Diagnostic Note by Stephen Morse for the University of Pennsylvania Law Review.

Mr. Morse, a University of Pennsylvania Law School professor, describes what he calls Brain Overclaim Syndrome (BOS). BOS, a thinking process that is certainly apparent in the anti-JLWOP movement, results in brains being blamed for offenses rather than the assailants. But this is inaccurate as “Brains do not commit crimes; people commit crimes.”

This brief diagnostic note identifies a cognitive pathology, “Brain Overclaim
Syndrome [BOS],” that often afflicts those inflamed by the fascinating new
discoveries in the neurosciences. It begins by suggesting how one should think
about the relation of neuroscience (or any other material explanation of human
behavior) to criminal responsibility, distinguishing between internal and external critiques based on neuroscience. It then describes the signs and symptoms of BOS, the essential feature of which is to make claims about the implications of neuroscience for criminal responsibility that cannot be conceptually or empirically sustained. It then applies the diagnostic lens of BOS to the claims in Roper v. Simmons. Finally, the article recommends Cognitive Jurotherapy [CJ] as the therapy of choice for BOS.

 Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? by Craig Lerner for the Tulane Law Review.

In this powerful article, George Mason University law professor Craig Lerner argues that SCOTUS’s decision in Graham is based on a simplifying assumption about juvenile culpability and a belief that homicides offenders are categorically worse than non-homicide offenders.

Contrary to the opinion of several SCOTUS Judges, many juvenile criminals are as culpable as adult criminals and commit truly unspeakable horrors. Even if the typical adolescent traits such as susceptibility to peer pressure, impulsivity, and so on, reduced culpability, why should we assume that extremely violent juveniles are typical? It is possible that severely violent juvenile criminals are generally more mature than typical non-violent juveniles. Another possibility Lerner presents is one that seems extremely obvious upon hearing it. It’s one of those ideas that makes you say to yourself “of course, that’s so obvious, why didn’t I think of tat before?” What if serious violent crimes committed by juveniles, rather than being less likely to be evidence of corrupt character, are actually more likely to be evidence of bad character. Lerner introduces a hypothetical scenario involving a Angela, 13, and Bob, 18. Both take the math SAT and score an 800. Bob’s score is three standard deviations above the mean of mathematical ability while Angela’s score is five standards above the mean of mathematical ability. If you had to guess, who would be a Cal Tech physics professor at age 30, who would you pick? The better guess is Angela. She is more mathematically talented when compared to others her age than Bob is when compared to those his age. She reached a high level of achievement far faster than average. Perhaps, a taste for violence and cruelty is similar. The peak age of violent criminals is 18 and a half. Those who commit crimes violent and depraved enough to warrant LWOP have reached the peak far quicker than average. They are also more violent when compared to others their age. Could that be evidence that they are more depraved? Obviously, all cases are different, and even if this is generally true, it may not be true in every specific case. But it is certainly an idea to consider given the narrative that juvenile criminals are all less culpable and capable of rehabilitation.

The abstract

Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. This Article argues that embedded in the Court’s holding is a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides – both this assumption and this claim are demonstrably false in a nontrivial number of cases.

This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that there are violent juvenile offenders – fortunately rare – who are at least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, in many instances, marked skepticism. The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.

 Neuroscience and Juvenile Justice by Jay Aronson for the Akron Law Review.

This article discusses the use of brain science in the legal field. In his conclusion, Aronson writes:

While few people would disagree with continuing efforts
to understand why certain people commit crimes and others do not, we
must not submit to a new kind of biological determinism which posits
that behavior is merely the “calculable [consequence] of an immense
assembly of neurons firing.”

What any Parent Knows” But the Supreme Court Misunderstands: Reassessing Neuroscience’S Role in Diminished Capacity Jurisprudence by Jamie D. Brooks in the New Criminal Law Review.

Mr. Brooks argues that SCOTUS’s attention towards brain data distracted them from analyzing “the precise legal relationship between diminished capacity and diminished culpability.” Rather, nuerobiological abnormalities should not lead to the conclusion that there is less legal culpability.

Abstract

In Miller v. Alabama, the Supreme Court appealed to neuroscience studies concerning the diminished capacities of adolescents to justify leniency in the sentencing of juvenile offenders. Reflecting on the recent proliferation of juvenile proportionality cases, the Court noted “[o]ur decisions rested not only on common sense—on what ‘any parent knows’—but on science and social science as well.” This Article casts a skeptical eye on the legal import of these scientific insights into the adolescent brain for normative evaluations of criminal culpability. Although the studies cited offer little probative value beyond the common sense wisdom about children that “any parent knows,” the Court’s efforts to employ psychiatric data to objectify mitigating criteria have distracted the Justices from analyzing the precise legal relationship between diminished capacity and diminished culpability, while intractably confusing the Eighth Amendment doctrine of proportionality. After analyzing the history of both proportionality review and the diminished capacity defense, this Article cautions that judges should not automatically equate factual findings of neurobiological abnormalities—that merely evidence diminished capacity—with a moral-legal conclusion of lessened culpability. Given the wide applicability of this defense, such reductionist interpretations contravene the principles of moral responsibility, which seek to differentiate culpability among individual offenders. As an alternative means of reconciling the burgeoning role of neuroscience with the established tenets of the criminal doctrine, this Article proposes a novel framework for assessing the mitigating effect of brain science that judges could equally apply to all classes of offenders, including juveniles.

Scientific Studies

Adolescent Engagement in Dangerous Behaviors Is Associated with Increased White Matter Maturity of Frontal Cortex by Gregory Berns, Sara Moore, and Monica Capra.

This study found that adolescents who engage in dangerous behavior usually have frontal white matter tracts that are more mature than their peers. This finding stands contrary to the claim that the risky and reckless behavior of some adolescent criminals is a result of immature and underdeveloped brains.

Abstract

Background

Myelination of white matter in the brain continues throughout adolescence and early adulthood. This cortical immaturity has been suggested as a potential cause of dangerous and impulsive behaviors in adolescence.

Methodology/Principal Findings

We tested this hypothesis in a group of healthy adolescents, age 12–18 (N = 91), who underwent diffusion tensor imaging (DTI) to delineate cortical white matter tracts. As a measure of real-world risk taking, participants completed the Adolescent Risk Questionnaire (ARQ) which measures engagement in dangerous activities. After adjusting for age-related changes in both DTI and ARQ, engagement in dangerous behaviors was found to be positively correlated with fractional anisotropy and negatively correlated with transverse diffusivity in frontal white matter tracts, indicative of increased myelination and/or density of fibers (ages 14–18, N = 60).

Conclusions/Significance

The direction of correlation suggests that rather than having immature cortices, adolescents who engage in dangerous activities have frontal white matter tracts that are more adult in form than their more conservative peers.

Adolescent Risk Taking, Impulsivity, and Brain Development: Implications for Prevention by Daniel Romer.

This study found that “There is virtually no direct evidence to support a relation between natural maturation in brain structure during adolescence and impulsive behavior” (page 270).

Abstract

Individual differences in impulsivity underlie a good deal of the risk
taking that is observed during adolescence, and some of the most hazardous forms
of this behavior are linked to impulsivity traits that are evident early in
development. However, early interventions appear able to reduce the severity and
impact of these traits by increasing control over behavior and persistence toward
valued goals, such as educational achievement. One form of impulsivity, sensation
seeking, rises dramatically during adolescence and increases risks to healthy
development. However, a review of the evidence for the hypothesis that limitations
in brain development during adolescence restrict the ability to control impulsivity
suggests that any such limitations are subtle at best. Instead, it is argued that lack of
experience with novel adult behavior poses a much greater risk to adolescents than
structural deficits in brain maturation. Continued translational research will help to
identify strategies that protect youth as they transition to adulthood.  2010 Wiley
Periodicals, Inc. Dev Psychobiol 52: 263–276, 2010.

Books

The Case Against Adolescence by Dr. Robert Epstein.

In this book Dr. Epstein argues that teens are highly capable, in some ways more capable than adults. Once we hit puberty, we function as adults. But America has artificially extended childhood, creating the idea of “adolescence” after the Industrial Revolution. Dr. Epstein argues against “infantilizing” young people and recognizing them for the capable beings that they are.

https://mises.org/library/book-review-case-against-adolescence

https://strugglingteens.com/artman/publish/CaseAgainstAdolescenceBR_080916.shtml

The Gift of Fear by Gavin de Becker.

This book is not about the topic of teens who kill but it is useful for anyone who wants to learn about the criminal mind. Mr. de Becker, an expert in security, explains how various types of criminals think and how people can be safe from them. The book includes information on juvenile criminals.

Without Conscience: The Disturbing World of the Psychopaths Among Us by Dr. Robert Hare. Though this book is not about juvenile offenders, it is very useful for those interested in criminal culpability. Dr. Hare, a world-expert on psychopaths, explains how they manipulate and harm us. Criminals are disproportionately psychopaths and there is no doubt that many of the juvenile criminals who murdered our family members are as well. For more information on psychopaths read our page on Psychopathology and Teen Killers.