Should 25 year olds be tried as juveniles?
That is the title of a recent article in the New Republic that lays out the claim that because brain imaging suggests that some people's brains in their early 20s have not maximized their myelination (e.g., the white matter that insulates the neurons) then should not be punished as adults. This is just the latest stop on the merry go 'round of using brain images to set public policy. So let us review the problems with this line of thinking (something I've done for many years now):
1. No one has a perfect brain. All of us have brains that have been damaged by what may be called "life." We don't get enough sleep, we eat poorly, we fall and hit our heads (hopefully infrequently), many of us drink alcohol or we consume excessive amounts of sugar. And as soon as our brains finalize their myelination, they age. There is no moral agent out there with an optimal brain.
That is the title of a recent article in the New Republic that lays out the claim that because brain imaging suggests that some people's brains in their early 20s have not maximized their myelination (e.g., the white matter that insulates the neurons) then should not be punished as adults. This is just the latest stop on the merry go 'round of using brain images to set public policy. So let us review the problems with this line of thinking (something I've done for many years now):
1. No one has a perfect brain. All of us have brains that have been damaged by what may be called "life." We don't get enough sleep, we eat poorly, we fall and hit our heads (hopefully infrequently), many of us drink alcohol or we consume excessive amounts of sugar. And as soon as our brains finalize their myelination, they age. There is no moral agent out there with an optimal brain.
2. As a group, the evidence suggests that the brains of teenagers are different than those of adults in their forties. This is unsurprising since brains are living organs that change over time. It is suggested, nonetheless, that the brains of teenagers are different in ways that matter for legal culpability. In particular, the brains of teenagers are considered to be more prone to impulsive behavior. Yet most teenagers are able to control their behavior most of the time. And more importantly, impulsiveness is not a hallmark trait of premeditation, which marks the criminal conduct that is most disconcerting involving juvenile offenders.
3. The Supreme Court has not elucidated what mental capacity one needs to deserve full imposition of punishment. It is probably not the case that only agents with perfect brains can receive full punishment because then no one would deserve the maximum sentence under the law. So it is likely the case that there is some threshold that divides fully culpable agents from lesser culpable ones (and still further non-culpable agents; e.g., the insanity defense).
4. The desire to treat young adults differently than older adults in terms of legal culpability is driven by the belief that young adults, on average, have sub-optimal brain development similar to teenagers. But again, this is a false start because: (a) no one has an optimal brain; and (b) there is no legal rule that has determined what mental capacities - much less what neural development - is required for full culpability. Moreover, it is hard to imagine what such a rule would look like. Do you need 80% myelination? What p150 wave should you have? A score on the Wisconsin Card Sorting Test?
Except we do have a measure of mental capacity that does not require a multi-million dollar MRI machine or knowledge of complicated neuropsychological tests:
Behavior.
And the law already has a well known measure of culpability called the culpable mental states.
Most young adults can consciously engage in purposeful behavior and that is sufficient for culpability.
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