Raising the Age of Juvenile Delinquency: What Science Says About the Age of Maturity and Legal Culpability.

• Author: Cicirello, Brittany

In Roper v. Simmons, 543 U.S 551 (2005), the United States Supreme Court incorporated recent discoveries in developmental neuroscience to eliminate the death penalty for persons under the age of eighteen. Since that case, advocates have pointed to Roper to justify raising the age of juvenile delinquency and protect a newly-created category of emerging adults (aged 18-35 years old). While psychology and developmental neuroscience have made significant progress in documenting the development changes of adolescents (ages 12-18), both lack concentrated attention on emerging adults. Each discipline also comes to a different conclusion concerning an individual's maturity. Psychological studies, which focus on cognitive differences between adolescents and adults, recognize a person reaches maturity at age 16. So cognitively speaking, by age 16 a person has the same ability to logically reason as an adult. Behavioral, or psychosocial, studies document the non-cognitive factors that affect a person's maturity. Those studies found maturity, that is a person's ability to make pro-social decisions, peaks at age 19. Developmental neuroscience, however, shows brain development may well last until a person is 35 years old. Thus, developmental neuroscience may be the only scientific support for including emerging adults in the juvenile justice system. What proponents of developmental neuroscience, and of the psychological studies as well, fail to address is (1) how these differences in maturity affect a person's pro-social decision-making and (2) how these differences are legally significant.

These scientific developments do have a place in informing policymakers decisions regarding treatment options, sentencing mitigators, or changes to expungement laws. To stretch the science to support wholesale reform of the juvenile justice system and raise the age of juvenile delinquency from eighteen to twenty-five years old is unwarranted. Such a change has far-reaching impacts from the potential increase in gang recruitment of younger members who may commit crimes knowing the consequences do not involve prison sentences or college students who will rape with impunity, to raising the age of emancipation and the ability of emerging adults to contract, vote, drink, marry, and drive. Raising the age of juvenile delinquency would have a profound societal impact that is not appropriate at this time. The science, rather than providing an independent basis to reform juvenile justice, reinforces the need for juvenile justice programs for the current age range.

This article first discusses the recent developments in adolescent brain science and summarizes the most common conclusions. It then confronts what developmental neuroscience does not say and why advocates seeking to raise the age of juvenile delinquency push the science beyond its limitations to reach unsupported conclusions. Finally, this article argues that the appropriate role for adolescent science is to inform the treatment of persons between the ages of 18 and 35 years old. The science may support the need to include age as a mitigating factor at sentencing as well as increase the expungement opportunities for crimes committed by the emerging adult group. Any change beyond that is not supported by the scientific findings at this time.

1. WHILE THE SCIENCE SUPPORTS OUR COMMON SENSE ACKNOWLEDGMENT THAT ADOLESCENT BRAINS ARE DIFFERENT, IT NEITHER COMES TO A CONSENSUS ABOUT THE AGE OF "ADULTHOOD" NOR DOES IT EXPLORE THE LEGAL SIGNIFICANCE OF THE VARIOUS BIOLOGICAL, COGNITIVE, AND PSYCHOSOCIAL FACTORS THAT INFLUENCE A DEVELOPING BRAIN.

   In the last three decades psychology and developmental neuroscience have confirmed what common sense already tell us: adolescent brains work differently than adult brains. Since the 1980s, adolescent brain science developed in three disciplines: cognitive, behavioral or psychosocial, and neuroimaging. Cognitive studies analyze how adolescents reason and think differently than adults. (1) Behavioral or psychosocial studies measure deficiencies in adolescents' social and emotional capabilities. (2) These two areas of psychology taken together influence a persons' "maturity of judgment," which describes how likely a person is to make an antisocial or a pro-social decision (i.e. the difference between robbing a store and not robbing a store). (3) Advances in neuroimaging technologies, which takes pictures of the brain to show its development, demonstrate the biological reasons why adolescents often lack the ability to make social or antisocial decisions compared to adults. (4) Each of these areas has come to a different conclusion regarding when an adolescent has reached an adult-like ability to make pro-social decisions. This section presents the generalized conclusions each of the three sciences regarding adolescent brain development and pro-social decision-making skills.

   Before 2000, most psychological studies focused on the cognitive abilities of adolescents. (5) These studies focused on why adolescents take more risks, behave more egocentrically, and lack logical ability. (6) There is substantial evidence that adolescents are well-aware of the risk they take, but choose to take the risks anyway, which cannot be explained by their cognitive ability. (7) Cognitive studies also demonstrated that adolescents are no more likely than adults to behave egocentrically. (8) Furthermore, adolescents are "no less likely than adults to employ rational algorithms in decisionmaking situations." (9) To make matters worse, cognitive studies analyzed the effects of increasing an adolescents' awareness of the risks of certain conduct, such as smoking, and found that information has little impact on pro-social decisionmaking. (10) Thus, these studies concluded that adolescents are as cognitively capable by the age of 15-16 as adults and no substantial growth in logical abilities occur past the age of 16. (11) Simply put, an adolescent at age 16 is as cognizant as an adult of whether the actions taken are right or wrong.

   The question remained unanswered as to why adolescents continued to make antisocial decisions if their logical abilities are nearly as refined as an adults by age 16. In 2000, a study published by Elizabeth Cauffman and Laurence Steinberg studied the non-cognitive (i.e. psychosocial) factors that might explain why adolescents make antisocial decisions. The research focused on the different capabilities of adolescents in three psychosocial categories: (1) "responsibility, which encompasses such characteristics as self-reliance, clarity of identity, and independence;" (2) "perspective, which refers to one's likelihood of considering situations from different viewpoints and placing them in broader social and temporal contexts;" and (3) "temperance, which refers to tendencies to limit impulsivity and to evaluate situations before acting." (12) The goal of the study was to measure a persons' "maturity of judgment," by hypothesizing that those who are more responsible, temperate, and perspective would make better decisions. (13) The sample was drawn from junior high and high schools in the Philadelphia area as well as local collages, and the college-aged sample was divided into those under twenty-one years old and those twenty-one years old and older. The study is unique in that it encompassed test subjects from ages 12 to 48. (14) Test subjects were asked a series of questions about themselves to test responsibility, perspective, and temperance. The study then asked subjects about a variety of scenarios to judge the persons decision-making ability with an emphasis on "antisocial" decisions such as shoplifting, joyriding in a stolen car, smoking marijuana, cheating on a test, and deceiving one's employer. (15) An "antisocial" decision was one in which the individual chose a socially unacceptable choice, thus the study focused on the legally significant factor of culpability or whether a juvenile has the ability to follow the law. (16)

   The results of the study concluded that antisocial decisionmaking was significantly affected by age and sex, but not by the interaction between the two. (17) As for psychosocial maturity the same correlation exists. Adolescents in 8th and 10th grade displayed the lowest levels of maturity and females were more perspective and more temperate than their male counterparts. Overall, "older participants exhibit higher levels of psychosocial maturity, and females exhibit greater psychosocial maturity than males." The study concludes that while age may be a significant predictors...