As we pointed out last week (Will Brain Scan Analysis Replace the M’Naghten Rules?), brain scans may not be far away as accepted evidence in criminal trials. In juvenile law, neuroscience has already had a dramatic influence, as this passage from the recent U.S. Supreme Court decision, Graham v Florida, shows. Graham held that the imprisonment of a juvenile for life without the possibility of parole for a noncapital offense is cruel and unusual punishment:
[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence. See Brief for American Medical Association et al. as Amici Curiae 16–24; Brief for American Psychological Association et al. as Amici Curiae 22–27. Juveniles are more capable of change than are adults, and their actions are less likely to be evidence of “irretrievably depraved character” than are the actions of adults. Roper, 543 U. S., at 570. It remains true that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Ibid.
ABA Journal focuses on the changes underway in A Revolution in Thinking About Children’s Minds Is Sparking Change in Juvenile Justice.
The opposing view to Justice Kennedy's thinking in Graham is expressed in Justice Thomas's dissent. Thomas not only objects to the way neuroscience is applied in this case, but also questions its relevance to constitutional decisionmaking:
In holding that the Constitution imposes such a ban, the Court cites “developments in psychology and brain science” indicating that juvenile minds “continue to mature through late adolescence,” ante, at 17 (citing Brief for American Medical Association et al. as Amici Curiae 24; Brief for American Psychological Association et al. as Amici Curiae 22–27 (hereinafter APA Brief)), and that juveniles are “more likely [than adults] to engage in risky behaviors,” id., at 7. But even if such generalizations from social science were relevant to constitutional rulemaking, the Court misstates the data on which it relies.
The Court equates the propensity of a fairly substantial number of youths to engage in “risky” or antisocial behaviors with the propensity of a much smaller group to commit violent crimes. Ante, at 26. But research relied upon by the amici cited in the Court’s opinion differentiates between adolescents for whom antisocial behavior is a fleeting symptom and those for whom it is a lifelong pat- tern. See Moffitt, Adolescence-Limited and Life-Course- Persistent Antisocial Behavior: A Developmental Taxonomy, 100 Psychological Rev. 674, 678 (1993) (cited in APA Brief 8, 17, 20) (distinguishing between adolescents who are “antisocial only during adolescence” and a smaller group who engage in antisocial behavior “at every life stage” despite “drift[ing] through successive systems aimed at curbing their deviance”). That research further suggests that the pattern of behavior in the latter group often sets in before 18. See Moffitt, supra, at 684 (“The well-documented resistance of antisocial personality dis- order to treatments of all kinds seems to suggest that the life-course-persistent style is fixed sometime before age 18”). And, notably, it suggests that violence itself is evidence that an adolescent offender’s antisocial behavior is not transient. See Moffitt, A Review of Research on the Taxonomy of Life-Course Persistent Versus Adolescence- Limited Antisocial Behavior, in Taking Stock: the Status of Criminological Theory 277, 292–293 (F. Cullen, J. Wright, & K. Blevins eds. 2006) (observing that “life- course persistent” males “tended to specialize in serious offenses (carrying a hidden weapon, assault, robbery, violating court orders), whereas adolescence-limited” ones “specialized in non-serious offenses (theft less than $5, public drunkenness, giving false information on application forms, pirating computer software, etc.)”).
In sum, even if it were relevant, none of this psychological or sociological data is sufficient to support the Court’s “‘moral’” conclusion that youth defeats culpability in every case. Ante, at 17 (quoting Roper, 543 U. S., at 570); see id., at 618 (SCALIA, J., dissenting); R. Epstein, The Case Against Adolescence 171 (2007) (reporting on a study of juvenile reasoning skills and concluding that “most teens are capable of conventional, adult-like moral reasoning”).
The Court responds that a categorical rule is nonetheless necessary to prevent the “‘unacceptable likelihood’” that a judge or jury, unduly swayed by “‘the brutality or cold-blooded nature’” of a juvenile’s nonhomicide crime, will sentence him to a life-without-parole sentence for which he possesses “ ‘insufficient culpability,’ ” ante, at 27 (quoting Roper, supra, at 572–573). I find that justification entirely insufficient. The integrity of our criminal justice system depends on the ability of citizens to stand between the defendant and an outraged public and dispassionately determine his guilt and the proper amount of punishment based on the evidence presented. That process necessarily admits of human error. But so does the process of judging in which we engage. As between the two, I find far more “unacceptable” that this Court, swayed by studies reflecting the general tendencies of youth, decree that the people of this country are not fit to decide for themselves when the rare case requires different treatment.That is especially so because, in the end, the Court does not even believe its pronouncements about the juvenile mind. If it did, the categorical rule it announces today would be most peculiar because it leaves intact state and federal laws that permit life-without-parole sentences for juveniles who commit homicides. See ante, at 23. The Court thus acknowledges that there is nothing inherent in the psyche of a person less than 18 that prevents him from acquiring the moral agency necessary to warrant a life- without-parole sentence. Instead, the Court rejects overwhelming legislative consensus only on the question of which acts are sufficient to demonstrate that moral agency.