Brain Development in Adolescence: Revising

The case of the schoolteacher and the orbitofrontal tumor discussed in the previ-ous section falls within the assessment domain of neurolaw. The case we consider in this section, Roper v. Simmons, falls within the revision domain.

50Burns also emphasizes the unique temporal aspects of the case (Choi 2002): “But if someone argues that every paedophile needs a MRI, the difference in this case was that the patient had a normal history before he acquired the problem. Most paedophiles develop problems early on in life.”

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At the age of 17, Christopher Simmons committed murder, which he planned together with two friends; at the age of 18 he was sentenced to death. In Roper v.

Simmons (2005) the U.S. Supreme Court eventually held that capital punishment for crimes that were committed while the person was under eighteen is unconstitu-tional (Glannon 2011; Scott 2005).⁵¹ Several amicus briefs were submitted to the court in this case. In such briefs, people or institutions may offer their view on a legal case to the court. An amicus brief by, among others, the American Medical Association, the American Psychiatric Association, and the American Association of Child and Adolescent Psychiatry, stated the following in its summary of the argument:

Adolescents as a group, even at the age of 16 or 17, are more impulsive than adults. They underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile, and less capable of controlling their emotions than adults. In short, the average adolescent cannot be expected to act with the same control or foresight as a mature adult. Behavioral scientists have observed these differences for some time.

Only recently, however, have studies yielded evidence of concrete differences that are ana-tomically based. Cutting-edge brain imaging technology reveals that regions of the ado-lescent brain do not reach a fully mature state until after the age of 18. These regions are precisely those associated with impulse control, regulation of emotions, risk assessment, and moral reasoning. Critical developmental changes in these regions occur only after late adolescence. Science cannot, of course, gauge moral culpability.⁵²

Quite some emphasis is put on “cutting-edge” neuroscientific findings in this short summary of the argument made in the amicus brief. However, according to Morse, the neuroscientific considerations did not have much influence on the U.S.

Supreme Court’s judgment:

Now, we already knew from common-sense observation and rigorous behavioral studies that juveniles are on average less rational than adults. What did the neuroscientific evi-dence about the juvenile brain add? It was consistent with the undeniable behavioural data, and perhaps provided a partial causal explanation of the behavioural differences. The neuroscience data was therefore merely additive and only indirectly relevant.⁵³

Walter Glannon (2011, p. 21) provides a similar view: “The imaging studies did not influence so much as confirm the Supreme Court majority opinion by Justice Anthony Kennedy, which was based largely on accepted views of developmental psychology.”

Now suppose that, indeed the neuroscientific evidence was “merely additive and only indirectly relevant,” and “confirmed” the majority opinion. Interestingly, the U.S. Supreme Court’s decision was a 5-4 decision. In such a case, “merely additive and only indirectly relevant” information may be relevant as well. Of course, we do not know for sure the precise extent to which neuro-evidence

51Roper v. Simmons, 125 S. Ct. 1183 (2005). This section is partly based on Meynen (2015a).

52https://www.aacap.org/App_Themes/AACAP/docs/Advocacy/amicus_curiae/Roper_v_

Simmons.pdf.

53Morse (2011a, p. 540); see also Introduction to Morse and Roskies (2013).

6.7 Two Neurolaw Cases and the Constellation of Findings

140 6 Neurolaw: Challenges and Opportunities

influenced the justices’ decisions in this case.⁵⁴ For the sake of argument, let us suppose that the amicus brief had pointed out that cutting-edge brain imaging showed that a seventeen-year-old brain is “mature.” Would the U.S. Supreme Court’s decision have been different?

What I aim to point out is that neuroscience may be relevant to an outcome as soon as it has a place in arguments. Just as in the schoolteacher’s case, its rel-evance depends on other evidence and considerations. In practice, as said, it may sometimes even be difficult to clearly distinguish between evidence that is

“indirect and additive” and evidence that is direct and somehow crucial to a final decision.

Five years after Roper v. Simmons, there was another U.S. Supreme Court deci-sion related to juveniles, Graham, which reversed the convictions of five minors, holding that juveniles convicted of non-homicide crimes could not be sentenced to life without parole. Neuroscientific findings played a role in this case as well.

According to Feld et al. (2013, p. 184) “Graham asserted that subsequent research in developmental psychology and neuroscience bolstered Roper’s conclusion that adolescents’ reduced culpability required somewhat mitigated sentences.” They emphasize that neuroscience was not, in itself, a decisive factor, but it “provided one more piece of confirmatory data in the Court’s holding.”⁵⁵ In this analysis of the Supreme Court’s ruling, neuroscience is, again, presented as just one relevant factor (see also Meynen 2014b); yet there is the suggestion that neuroscience became more important than in Roper v. Simmons, because later research “bol-stered” the earlier conclusion in Roper.

According to Steinberg (2013), neuroscience was not irrelevant to U.S. Supreme Court decisions about adolescents’ criminal culpability. He (2013, p. 516) writes about several U.S. Supreme Court cases, including Roper and Graham:

Because the Supreme Court justices’ deliberations are never made public, it is impossi-ble to know just how much neuroscience findings influenced the Court’s decisionmaking above and beyond the impact of the behavioural evidence. Nevertheless, a close reading of the transcripts of the oral arguments and opinions makes it clear that the attorneys and justices involved in these cases certainly paid attention to the neuroscience. At times they even insinuated that it was somehow more compelling than the behavioural evidence (as one attorney stated during oral arguments in Roper, “I’m not just talking about social sci-ence here, but the important neurobiological scisci-ence”)...

If neuroscience provided a relevant piece of information in these U.S. Supreme Court decisions, they fall within the revision domain of neurolaw. By providing piece after piece of relevant data that inform legal decisions the overall revision-impact of neuroscience may eventually become substantial.

Neuroscience is an enormous, multifaceted endeavor, with such a variety of powerful tools that it may, in many and unexpected ways, now or in the near future, somehow influence legal decision-making, including decisions about insanity. The challenge is to make sure that such influence increases rather than

54See also Steinberg (2013).

55Feld et al. (2013, p. 184) refer to Maroney (2009).

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decreases the quality of legal decisions. Although neurolaw researchers are accept-ing that challenge, they are findaccept-ing themselves confronted with a complication.

6.8 A Complicating Factor: Differences Between Legal