Men do not make laws. They do but discover them.
From the vantage of the present, it is easy to take the long view of history and pronounce it an unending march of progress and enlightenment. However, each advancement, each ascension, from within the setting in which it occurred, was a near-run thing: hemmed in by natural obstacles, beset by traditions, and buffeted by contrary opinions. It was by no means obvious, from just about any historical perspective, that each person, regardless of appearance or perspective, should have a vote. It was not obvious that the law should view everyone as equal. It was not obvious that children should have a period of unencumbered development called adolescence, a period to become educated, a period where life-altering decisions were held in abeyance, waiting to be made by a mature version of self the child would someday become.
These truths, and many others, are matters of course for us now—axioms we dare not question. While they were far from obvious at one time, they have become plain truths, undeniable to any rational person. It is easy to forget they were hard won. Some were won by philosophy and argument; some by conflict and war; and some by the sciences, polishing the lenses of our perspective and opening new vistas. This process has been a dynamic one, an interchange between the known and the unknown. It is an ongoing process.
Recent brain research has contributed to that dynamism, compelling us to adopt a broader, more nuanced view of what the law should recognize. This research obliges us to consider de novo what it means to be an adult in the eyes of the law. Is eighteen an age the law has arrived at by reasoned and informed progression? Or is it a conclusion drawn partly from tradition, partly from convenience and ignorance?
Western law has progressed through many evolutions of this question. The earliest solutions worked off of the ancient Hebrew concept of the “knowledge of good and evil.” Someone was an adult and, therefore, culpable in criminological considerations if they were possessed of some basic understanding of moral rectitude. That meant that children as young as seven or eight were weighed in adult balances. A combination of historical and cultural influences pushed up that threshold age of adulthood to ten, then twelve, then fourteen. Philosophical and speculative considerations of the question by Jean Piaget and Kohlberg later led to more systematic approaches, classifying children by stages of development and capability. While these later evolutions represent a far more balanced approach, and while they have certainly advanced the question, they are limited by the absence of gritty and substantial observation. Those limitations, fortunately, have been largely done away with in the twentieth century.
We can now peer into the workings of the mind, measure the differences that occur at each age, and understand the degree to which those differences affect reasoning capacity and, potentially, incorrigibility. We are no longer left to rely on ambiguous definitions of culpability or nebulous categories of development. Whereas the surface elements of the body are largely developed by eighteen or nineteen years, the mind continues to develop and change into the early twenties.
The largest body of research is based on the work of Yakovlev and Lecours, who determined that development is slowest in regions of the brain most associated with what make humans unique: language expression, abstraction and reasoning, impulse control and planning, and aspects of attention and memory. These are the last to become fully integrated into the workings of the developing brain. Subsequent research has been at pains to discover how and why the adolescent brain is different and where it develops differently.
Researchers have determined that the adolescent brain differs from the adult in just the sort of ways we might have expected: “Parts of the brain associated with more basic functions matured early: motor and sensory brain areas matured first, followed by areas involved in spatial orientation, speech and language development, and attention… Later to mature were areas involved in executive function, attention, and motor coordination…” I say we might have expected this because anyone who has children or has taught children knows that they are lacking in what researchers call “executive functioning.” What has come as a surprise, however, is the developmental point at which those higher order functions begin to emerge and, finally, become superordinate.
That a child does not metamorphose, overnight, on the 364th day of his seventeenth year into a full-fledged adult is obvious enough when we give it a moment’s thought. Investigation has indeed confirmed that maturation is an incremental, gradual process. The binary of 17 to 18 as a threshold between adolescence and adulthood may be a convenient test for bureaucracies, but as a scientific theory, it is severely lacking and unsupported by empirical underpinnings.
A solid body of evidence has emerged to frame the definition of adolescence. We can say with great certainty that a child is not a fully-formed decision-maker at eighteen. We can say definitively that executive functioning is an essential element in what constitutes an adult. We can say with great certainly that the concomitants of adulthood—executive and emotion systems—are not fully integrated until the 20s.
We propose that those things we can say with certainty permit us to say the following with equal certainty: before a person has reached the age at which their brain can perform feats of executive functioning, we cannot pronounce that person utterly incorrigible. To say, as a life sentence does, that a person is beyond all repair is a serious statement indeed. We are saying that person will never change or mature to a point where they are no longer a danger to others. While we may feel that sensation when face-to-face with the crime, when the event is present and raw, we must resist the urge to allow ourselves to be swept away by it. In fact, we must pursue the path that we would rather the untempered youth to have pursued: a careful and reasoned approach that weighs the evidence and follows it to a rational conclusion. We propose the evidence is in and compels us to pronounce no person who cannot meet the cognitive requirements of being an adult should be eligible for a life sentence or anything more severe.
The law has been trending in that direction for some time. In 2005, the Supreme Court prohibited the imposition of the death penalty for anyone under 18. In 2016, the Court went further and said that an automatic life sentence without parole could not be imposed for anyone under 18 using the logic that it is not possible to determine “permanent incorrigibility” for anyone in that age range. In this latter case, the Court was certainly right to rule that permanent incorrigibility cannot be determined when someone is still a child. If a child is still developing, it is not only possible but likely that they will “age out of crime” and be suited for reintroduction. Sentencing must account for this well-documented phenomenon and see it as an indication of the layered, multifaceted thing that the life course is. Using the Court’s logic, and with the science available to us, we must go further and say that people under the age of 21 are not adults in the sense that a decision to commit an act of cruelty is an indication of their unalterable criminality. They are not now what they will be. We can go even further and say that to apply a life sentence to a person who is, based on what we now know, not an adult, is to sentence a person not yet in existence.
When that person finally does come into existence, he will be very different from the one who received the protracted sentence. Not only will his brain be different; his body will be different. The costs of caring for an inmate as he ages is not an unfamiliar topic. We are often treated with the average cost of housing an inmate for a year. In Oklahoma, that figure is around $17,000. However, that is an undifferentiated number. It is produced by taking the total of all prison expenditures in Oklahoma and dividing it by the present prison population. All the nuance of striating by age and sentence—that is, more useful information—is lost. We must seek out this nuance and modify our calculations with what we discover.
Research has indicated that the average American can expect to spend more than $300,000 on medical care in their lifetime. This figure, too, is beset by nuance, as more than sixty percent of that cost will occur after the age of sixty-five. If one lives to the age of eighty-five, more than one-third of all medical costs over the lifecycle will occur in the remaining years. Inmates are not immune to these cost patterns. As they reach middle age, the cost of caring for inmates’ medical care will increase at the same rate and schedule it does for any other American. Because sixty percent of the cost of a person’s medical costs in their life will occur after sixty-five, the average inmate is likely to cost the state an additional $22,500 more than at any other time in his lifecycle. (This number is arrived at by considering the average lifespan of a male (73 years) and dividing sixty percent of $300,000 ($180,000) by the remaining years after sixty-five.)
We can see that not only do automatic life sentences for those under twenty-one sentence a person not yet in existence, the person who comes into existence with that sentence is someone much older, much feebler and much costlier. The result is not merely unjust and ineffective; it is untenable, impractical and unsustainable.
Platt and Diamond, The Origins of the Right and Wrong Test of Criminal Responsibility and Its Subsequent Development in the United States: An Historical Survey (1966)
Giedd et al., The Teen Brain: Insights from Neuroimaging (2008)
Yakovlev and Lecours, Regional Brain Development in Early Life (1967):
“Development is slowest in cortical regions of the brain. These areas are those most associated with what make humans unique: language expression, abstraction and reasoning, impulse-control and planning, and aspects of attention and memory. These are the last to become fully integrated into the workings of the developing brain.”
Stuss and Benson, The Frontal Lobes (1986). Here Stuss and Benson determine the importance of the frontal lobes for response inhibition, emotional regulation, planning and organization.
Gogtay and Giedd et al., Dynamic mapping of human cortical development during childhood through early adulthood (2004)
Giedd et al., The Teen Brain: Insights from Neuroimaging (2008)
Sawyer et al., The Age of Adolescence: Insights from Neuroimaging (2018):
“Although brain volume, regional functioning specialization, and cortical folding are largely similar to those of adults by mid-childhood, the processes that underpin faster neuronal connections—including synaptic pruning, dendrite arborisation, and myelination—continue into the 20s. White matter matures hierarchically: basic sensorimotor and brain systems mature before executive systems do. While areas that support integration of executive and emotion systems are not fully mature until the late 20s.”
Gur, Brain Maturation and Its Relevance to Understanding Criminal Culpability of Juveniles (2005):
“[T]here is clear evidence that the maturation process, refleceted in white matter volume, continues into the early 20s, especially for men.”
Steiberg and Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty (2003)
Gur, Brain Maturation and Its Relevance to Understanding Criminal Culpability of Juveniles (2005)
Giedd, The Teen Brain: Insights from Neuroimaging (2008):
“Many of the cognitive and behavioral changes taking place during adolescence may be understood from the perspective of increased ‘executive functioning,’ a term encompassing a broad array of abilities, including attention, response inhibition, regulation of emotion, organization, and long-range planning.”
Sawyer et al., The Age of Adolescence: Insights from Neuroimaging (2018)
Gogtay, Giedd et al., Dynamic mapping of human cortical development during childhood through early adulthood (2004):
“Parts of the brain associated with more basic functions matured early: motor and sensory brain areas matured first, followed by areas involved in spatial orientation, speech and language development, and attention (upper and lower parietal lobes). Later to mature were areas involved in executive function, attention, and motor coordination (frontal lobes). The frontal pole, involved in taste and smell processing, and the occipital pole, containing the primary visual cortex, also matured early, as expected.”
Roper v. Simmons, 543 U.S. 551 (2005)
Montgomery v. Louisiana, (2016)
Cornelius et al., Aging Out of Crime: Exploring the Relationship Between Age and Crime with Agent Based Modeling, (2017):
“The relationship between age and crime is one of the most solid within the field of criminology. It is understood that crime increases throughout adolescence and then peaks at age 17 (slightly earlier for property crime than for violent crime) and then begins to decrease over the life course moving forward. This trend has, over the years, withstood stringent testing and examination across time periods and maintains consistent results regardless of race/ethnicity, education level, or income.”
According to the National Institute of Justice, “the prevalence of offending tends to increase from late childhood, peak in the teenage years (from 15 to 19) and then decline in the early 20s.” (http://www.nij.gov/topics/crime/Pages/delinquency-to-adult-offending.aspx)
Steinberg and Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty (2003):
“[J]uveniles should not be held to the same standards of criminal responsibility as adults, because adolescents’ decision-making capacity is diminished, they are less able to resist coercive influence, and their character is still undergoing change…Finally, because adolescents are still in the process of forming their personal identity, their criminal behavior is less likely than that of an adult to reflect bad character. Thus, for each of the sources of mitigation in criminal law, typical adolescents are less culpable than are adults because adolescent criminal conduct is driven by transitory influences that are constitutive of this developmental stage.”
Farrington, Age and Crime (1986):
“Age-crime curves for individuals do not resemble the aggregate curve since incidence does not change consistently between the onset and the termination of criminal careers. This has major implications for criminal justice policy since the greatest residual length of criminal careers, and hence the greatest potential incapacitative effect, may be between ages thirty and forty, not at the peak age.”
Berhany Alemayehu and Kenneth E. Warner The Lifetime Distribution of Health Care Costs (2004)
Written by guest blogger, Chris L.
This site may contain links to affiliate websites, and I receive an affiliate commission for any purchases made by you on the affiliate website using such links.
I am a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for me to earn advertising fees by linking to Amazon.com and affiliated websites.
Find me on social media.
© 2022 Author Kevin Macklin