How guilty are adolescents for their crimes?

In 2012 the Supreme Court heard two related cases involving adolescents convicted of murder and sentenced to life in prison without parole because of mandatory minimum sentencing guidelines in their states.  One of the boys, Evan Miller along with an accomplice, had beat a man unconscious with a baseball bat after a fight that ensued when the man awoke to find Miller robbing him.  Miller and his friend then decided to set fire to the home to cover up the evidence.  This resulted in the man’s death.  The second petitioner, Kuntrell Jackson, had accompanied two other boys to a convenience store in order to rob it.  During the robbery, one of the boys, not Jackson, shot and killed the clerk.  

Both boys were convicted and were sentenced according to minimum sentencing guidelines to life in prison without parole.  The decision that the court was asked to make was not whether the boys should have been convicted, but instead, whether the sentencing guidelines that resulted in them being given life without parole constituted cruel and unusual punishment.

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Transcript

Welcome to PsyDactic.  I am Doctor O’Leary, a 4th Year psychiatry resident in the National Capital region.  Today is Saturday, March 2, 2024. This is a podcast about Psychiatry and Neuroscience that I produce in my free time.  While I try to be as correct and informed as possible, I don’t have the staff to double check my facts or point out my errors.  If you, the listener, want to make a comment, you can go to PsyDactic.Com and fill out the form at the bottom of the page there.  You can also go to YouTube and type @PsyDactic into the search bar and use the comment feature there.  When available, I post my transcripts and references for each episode at psydactic.buzzsprout.com.  Everything I say here is my own opinion, even if I quote someone else, that is just my opinion about their opinion.  I do not speak for anyone else including the Department of Defence, the Defense Health Agency, the US Army or the Supreme Court of the United States.

Today I am going to discuss a Supreme Court ruling that limited legislatures from requiring minimum sentences of life in prison without parole for minors.  The decision itself, I think, is less interesting than some of the reasons that the decision was made.  Many of these were technical legal points.  However, developmental biology also had something to contribute to this decision.

In 2012 the Supreme Court heard two related cases involving adolescents convicted of murder and sentenced to life in prison without parole because of mandatory minimum sentencing guidelines in place in their states.  One of the boys, Evan Miller along with an accomplice, had beat a man unconscious with a baseball bat after a fight that ensued when the man awoke to find Miller robbing him.  Miller and his friend then decided to set fire to the home to cover up the evidence.  This resulted in the man’s death.

The second petitioner, Kuntrell Jackson, had accompanied two other boys to a convenience store in order to rob it.  During the robbery, one of the boys, not Jackson, shot and killed the clerk.  

Both boys were convicted and were sentenced according to minimum sentencing guidelines to life in prison without parole.  The decision that the court was asked to make was not whether the boys should have been convicted, but instead, whether the sentencing guidelines that resulted in them being given life without parole constituted cruel and unusual punishment.  Let me start with some background on the judicial branch.

The courts make decisions based on their interpretation of the law, which is presumed to be based not only on their understanding of the letter of the law, but also of the intent of lawmakers.  Laws can be in conflict with each other or in conflict with the constitution which constrains the law.  Courts get to decide if laws are valid or if the enforcement of the law is within the power of those who executed that power.  Courts are not like religious scientific associations.  When they decide on laws they are not deciding whether the law is morally right or scientifically and empirically defensible.  They are deciding whether or not those that pass or enforce the law have the authority to make or enforce the particular law that was passed, regardless of its content.  A law can be entirely absurd, such as requiring that citizens pay higher sales taxes on Tuesday than on Friday.  If a law like this is challenged in the courts, the courts are not deciding whether the law appears arbitrary or not.  They are merely deciding whether or not it meets the standards that laws have to meet in order to be laws or to be enforced.

Sometimes there is no consensus as to the constitutionality of a law, and in these cases courts have to consider more than just the opinion of a justice or judge as to whether or not they like the law, but arguments from petitioners as to whether the law passes particular tests.  Some of those tests include things like whether the law is too vague.  If a law is such that it is frequently read and enforced differently across different jurisdictions, then it can be nullified and effectively sent back to the legislature for clarification.  This is rare.  More often, laws are judged based on whether the courts understanding of the constitution permits such a law.

To determine how a law should be interpreted, the courts rely primarily on evidence concerning the intent of the legislators and other court rulings.  If there are documents outlining the reasons that legislators passed a law, then courts can be guided by the “spirit” of the law.  If the law has been consistently interpreted by courts in the past, then that is strong evidence for or against the current interpretation.  Another consideration is the common law.  How have courts decided cases with similar questions where legislatures have not necessarily weighed in and what were the reasons that they ruled a certain way?

Public opinion may also be used as a means to interpret the law.  For example, “What constitutes cruel and unusual punishment?”  The definition of this has certainly changed over time as society's appetite for retribution has evolved.  There are judges and justices that give far more weight to legislative intent than public opinion, assuming among other things that if the public wanted a different interpretation, they would elect legislators to change the law.  There are others who are more likely to approach the concepts inherent in laws as malleable so that every time society shifts in its understanding of things like “cruel and unusual” we don’t have to completely rewrite all of our laws or change constitutions to incorporate different, more modern language.

The concept of shifting public understanding is where arguments about ethics, morality, and science most easily find their way into the courtroom.  Today I am going to focus on how the courts have most recently interpreted the capacity of adolescents and children to be able to consider alternatives, understand the consequences of their actions, make informed decisions, or control their behavior under normal or more stressful circumstances.

In 2012 when deciding the case Miller v Alabama, the Supreme Court ruled in a divided opinion that minors cannot be subject to mandatory life sentences without the possibility of parole, even if convicted of murder.  It had previously been ruled that minors could not be subjected to the death penalty.  I want to point out here, so that I don’t confuse the listener, that the Court did not rule that adolescents could not receive a life sentence.  They ruled only that it could not be mandatory.  Sentencing bodies must at least consider lesser sentences.

The logic for this ruling did not rest primarily on the science of brain development.  It rested primarily on how “cruel and unusual” had been interpreted in the past.  One of the principles that arose while deciding whether a sentence is “cruel and unusual” is proportionality.  How bad was the crime?  A death sentence for speeding obviously lacks proportionality.  What about a death sentence for speeding that resulted in the death of a pedestrian?  In Miller v Alabama, the proportionality of the sentence was not really an issue.  The issue was the culpability of the accused.  Are there mitigating factors that should be considered before a sentence is rendered?  This is where developmental science gets a chance to give an opinion.  However, like I mentioned above, the opinion of professional scientific bodies is only one of the factors considered by the court.  The court gave more weight to the reasoning of courts whose decisions, for example, limited the death penalty in youth.  They also appeared to give a large amount of weight to the assumed considerations or intent of the legislators passing mandatory sentencing laws.  Additionally, they considered public opinion.  For example, in Miller v Alabama, the justices disagreed sharply on whether one could assume that legislators had or had not considered adolescents when they made mandatory sentencing laws that did not distinguish between youth and adults.

There did seem to be a consensus that the younger a person is, the less they should be held to the same standards as adults, but it is obviously difficult to impossible for them to draw an arbitrary line at an arbitrary age (other than 18 because that is an age with a long legal tradition of having arbitrary lines drawn).  Also, how much mitigation should the mere fact of age play in the decision to sentence to life in prison or not?  Is reducing a sentence also reducing deterrence to committing crimes as an adolescent?  If they are less culpable than adults, then why not just excuse the crime, or find them not guilty by reason of adolescence?  The petitioners and justices throw around the assumption that youth have a higher chance of rehabilitation than adults, but do they?  This had been an assumption used in the past.  Questions like this are where science can make some difference in the opinion of justices.  In fact, in the opinion of the Supreme Court in Miller v Alabama, Justice Kagan referred to a 2003 paper in American Psychologist titled “Less Guilty by Reason of Adolescence” which I have also used extensively while putting this episode together.  

One of the first mitigating factors is that adolescents are less rigid or predictable in their thinking than adults and consequently are more likely to be influenced by other humans or exigent circumstances.  What might be taken as an order that could be easily dismissed or disobeyed by an adult, may be far more coercive to an adolescent.   An action committed by a minor is then assumed to be less predictive of future actions, because it is less likely to be internally motivated.  Another way to put it, that judges will understand, is that an adolescent's “character” is not as specifically attached to their actions.  Psychiatrists will understand character more as personality, which becomes more and more rigid as someone ages.  With regard to sentencing, courts have a history of giving people who they deem are of poor character more severe sentences because they see them as less redeemable or as a higher risk to society.

Even if someone were to assume that an adolescent has the same ability to reason as an adult (that their basic capacity for reason is the same as adults), it is almost certain that they have less information and experience to draw on when making decisions, which will reflect in the quality of those decisions.  Even with the same capacity for reason, they lack the substrate needed to make informed decisions.  This can be a double edged sword legally because arguing this could not only reduce culpability of a minor for a crime, but also limit their ability to autonomously make decisions about things that affect them (for example, contraception, sexual consent, or abortion).  We limit the autonomy of minors to enter into legal contracts for a similar reason.

Another consideration is not the lack of information and experience, but the presence of biased information, misinformation, or adverse experiences, which further complicate whether someone is even able to make the kind of decision that would have prevented a crime from being committed under the circumstances.  The thing I find most fascinating about this line of reasoning is that it is not confined to minors.  Many adults grew up in unpredictable, deceitful, irrational, chaotic, abusive or neglectful environments.  Should this be a mitigating factor for adults as well?  If so, this could preclude mandatory sentences of life in prison without parole for everyone.  Following Justice Kagan’s arguments, which rested at least in part on the fact that adolescents had no control of their developmental environment, I feel like this could be extended to adults in the future.  It then would also be possible to say, for example, that a sentence of death or manadatory life without parole for an adult who could demonstrate that their childhood was severely adverse is also “cruel and unusual.”   But that is speculative. Let's get back to adolescents.

Adolescents are not only more influenced by authority figures, but also by their peers, the opinions of whom exact a large influence over each other.  This might be related to the lesser developed ability of adolescents to accurately calculate risk.  Humans in general have very poor risk estimation abilities, but it is far worse in adolescents.  A poor ability to estimate risk or benefit is a hazard that can become extremely important in certain circumstances, especially highly stressful ones, or when there is very little time to consider alternatives.

Other factors that could predispose them to coercion or poor decisions is a relative lack of consideration for the future and enslavement of their thoughts to their current affectual state.  If their girlfriend of 3 weeks breaks up with them, it feels like the end of the world.  They may never love again.  This tendency toward absurd over-valuation of the present may be most famously illustrated in Shakespeare’s Romeo and Juliet.

I want to mention another paper, this one in Psychiatry, Psychology, and the Law from 2023 that broached the same subject with the title, “Old enough to offend but not to buy a hamster: the argument for raising the minimum age of criminal responsibility.”  It was written in response to the fact that the age of criminal responsibility in Australia and England is set at 10 years.  Their legal precedents are different than the states, but the author, Yolish Singh, begins the argument by stating that since the 14th Century the courts in England have recognized that criminal defendants were afforded the right to meaningfully participate in their defense because QUOTE “anything less would render the right to a trial an empty right.”  The ability to participate now is called capacity to understand the proceedings.  Singh characterizes as QUOTE “ludicrous” the fact that 10 year olds are banned from owning hamsters out of the fear that they could not care for them, but at the same time they are expected to be able to stand trial.

Singh reports that from the 1800s to the 1960s children were subjected to a welfare model of justice in which they had little autonomy to affect the outcome, but also were thought of as less culpable and more amenable to rehabilitation.  In the 1960s, advocates for more due process for youth and less paternalistic state involvement helped change the system into one that visualized justice NOT as what was best for the child but as that which was best for society.  Singh asserts that society traded a focus on rehabilitation where children were seen as something that needed repair, to a due process of a justice model where children became a focus of retribution, similar to how adults are treated.  Indeed, Singh points out that sentences were steadily made more severe, and barriers to moving a defendant from the youth system to the adult system were reduced.

Being published in 2023, this paper refers to knowledge subsequently gained in the 11 years since the Miller v Alabama decision.  It especially highlights the neuroscience advances.  For example, it has been demonstrated that during adolescence there are rapid changes in the limbic system and the executive networks.  Singh refers to these as the socio-emotional system and the cognitive-control system.  The socio-emotional system develops more rapidly and these developments include greater dopamine delivery to the limbic system resulting in more reward and novelty seeking, which can be manifested as impulsive or risky behaviors.  There is no such thing as reward without risk, and adolescents tend to prioritize reward over risk, especially hypothetical risk, if they even consider the risk at all.

The cognitive control system in the prefrontal cortex also gets more dopamine, but this system develops more slowly.  You could say that it is constantly playing catch-up with the limbic system.  It makes sense that our ability to plan and predict outcomes would come only after more novel experiences, many of which are far more risky that our parents would be comfortable with, especially those instigated by social pressure.

There is also of course, all those pesky hormones, like testosterone and estradiol, oxytocin and vasopressin.  These (among other things) influence how we establish social connections and hierarchies and how we develop our values.  Testosterone in particular is famous for inspiring us to move more aggressively toward a goal.  Additionally, there is accelerated synaptic pruning, which results in more efficient, less noisy signals.  Signals also are progressively sent faster as myelin is laid down on axons.  Even though this process is generally mostly complete by age 16 and 16-year-olds can generally think as fast and efficiently as adults, they still have substantially less experience to draw on and their frontal lobes continue to develop higher reasoning abilities into the mid thirties.  You could say a 16-year-old is like a computer right out of the box.  In order to become truly functional, you still need to load a lot more software.  That is my own metaphor.

Given that our executive centers are programmed by our experiences, experiences like childhood neglect, abuse, maltreatment, or merely having to survive in an unpredictable environment can have dramatic effects on how the limbic system identifies and responds to possible rewards or threats and how the cognitive centers develop ways to adapt behaviors.  The word we use for behaviors that develop in these environments is maladaptive.  If a child is used to lose-lose situations, then the strategies developed to cope with this may involve defiance, avoidance, deceit, and a lack of the ability to be able to predict more than superficially the emotional states of others.  The brain might stop trying to play a game that it can’t win or it may develop rules that seem illogical to us, because they are responding to a game that most of the rest of society never has to play.

In the end, our society is moving more toward less culpability for youth, with younger age predicting less accountability.  Historically, this pendulum has swung back and forth on this issue.  Before the 1800s, children were frequently executed or punished similarly to adults for similar crimes.  At least in Australia and England, a more paternalistic approach replaced that, with youth being treated as highly malleable and reformable.  However, the state necessarily exerted a large degree of control over their future and prevented them from making their own decisions.  In the late 20th Century, ideas shifted toward more autonomy and rights for youth to choose for themselves, but this also resulted in greater culpability for crimes.  In the 1980s and 90s in the US, when legislators began to pass more and more minimum sentencing guidelines, youth were subjected more frequently to sentences that may not have been imposed in the past.  Now, it appears that the pendulum is swinging in the opposite direction again.  However, in the Supreme Court, the decision to disallow mandatory life without parole sentencing for minors passed by a mere 5-4 majority, which indicates that there is still disagreement about whether severe punishments for minors without considering the exigencies of youth are in fact “cruel and unusual.”