A Second Chance For Young Adult Criminal Offenders With Life Sentences?

Men do not make laws. They do but discover them.

-Calvin Coolidge

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.

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.

Citations

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.