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Recent Developments in
the Science of Adolescent
Brain Development and Its
Application in Juvenile
Defense Representation
Arthur L. Bowie
Supervising Assistant Public Defender
Sacramento County, California
National Geographic Magazine, Oct.
2011
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"Roper established that because juveniles have lessened
culpability they are less deserving of the most severe
punishments. 543 U.S., at 569.... As compared to adults,
juveniles have a 'lack of maturity and an underdeveloped
sense of responsibility'; they 'are more vulnerable or
susceptible to negative influences and outside pressures,
including peer pressure'; and their characters are 'not as
well formed.' Id., at 569-570.... These salient
characteristics mean that '[i]t is difficult even for expert
psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects
irreparable corruption.' Id., at 573.... Accordingly, 'juvenile
offenders cannot with reliability be classified among the
worst offenders.' Id., at 569.... A juvenile is not absolved
or responsibility for his actions, but his transgression 'is not
as morally reprehensible as that of an adult.' [Citation.]"
Graham v. Florida (2010) 130 S.Ct. 2011, 2026
Detention Hearing or Transfer
Hearing - Culpability
"Because juveniles have lessened culpability they are less
deserving of the most severe punishment."
A "reasonable child" is less culpable for his or her actions
and therefore should not be exposed to undue
punishment in the detention or transfer setting.
Detention Hearing or Transfer
Hearing - Normative Behavior
Although seemingly undesirable, the accused actions of
the client are often within the range of normative
adolescent behavior.
The court should not detain or transfer a youth for acting
the part of a "reasonable child."
Pretrial - Competency Issues
Acknowledgement of the implications of age on ability to
fully comprehend certain legal constructs, consequences
or situations indicates that immaturity must be a factor in
competency determinations in both juvenile and adult
court.
"[D]evelopments in psychology and brain science
continue to show fundamental differences between
juvenile and adult minds.... [P]arts of the brain involved in
behavior control continue to mature through late
adolescence....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. [Citation.] 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.' [Citation.] These matters relate to the
status of the offenders in question. Graham, at 2026-
2027.
Pretrial - Suppression of Tangible Evidence,
Search and Seizure
J.D.B v. North Carolina (2011) 131 S.Ct. 2394, citing
Graham, "finding no reason to ‘reconsider’ . . .
observations about the common ‘nature of juveniles.’"
• Consent searches: Challenge the consent of the client
because a "reasonable child" would have a harder time
knowingly and voluntarily consenting, when pressured
by a police officer or other authority figure, to a search
or seizure--a "reasonable child" may not understand the
right to refuse.
• Terry Stop/Arrest: consider whether a contact with law
enforcement rises to the level of "seizure" within the
meaning of the 4th Amend. based not on whether a
reasonable person would feel free to leave, but rather a
"reasonable child."
Suppression of Confessions,
Admissions, and Other Statements
J.D.B. con't...
• Age as a factor relevant to Miranda warnings.
• Age as a factor in considering voluntariness.
• Counsel should make the argument that youth, due to
limited capacity and ability to reason, are required to
have attorneys at any interrogations, including in
school or police station settings, i.e., they simply are
incapable of waiving their constitutional right to an
attorney prior to consultation.
• Counsel should be prepared to make such arguments
both on an individual and policy level.
Plea Bargaining and Any Other Waiver
of Constitutional Rights
Any time that a client is asked or decides to waive any
constitutional rights, trial counsel and appellate counsel
should consider whether the age of the child affected his
ability to voluntarily, knowingly, and intelligently make
such a waiver.
Reasonable children are subject to coercion and
pressure, particularly from authority figures, in ways that
adults are not.
Trial/Theory of the Case
Lack of Mens Rea:
Try to extend the courts' understanding of youth's capacity
to form the requisite mens rea to commit a crime (the
question of a youth's capacity to have formed specific
intent defined by the legal charge, i.e., intentional,
knowing, or reckless harm, at the time of the alleged
offense).
Especially true of any specific intent crimes or crimes
where the mens rea required is negligence or
recklessness.
Trial/Theory of the Case
Self-Defense
A "reasonable child" will have a different understanding of
he objective test of when he or she may be facing an
imminent threat of bodily harm. The same goes for
defense of others, defense of property, necessity, resisting
arrest and duress, which is especially important in the
realm of gang-related activity.
Trial/Theory of the Case
Defense Against Accomplice Liability:
Graham should affect the court's assessment of a youth's
capacity to form the necessary intent to be considered an
accomplice for two reasons:
1) youth are more easily coerced and
2) because a youth with inherently limited capacity could
not "reasonably foresee" a series of events in the same
way an adult could.
Trial/Theory of the Case
Defense to Conspiracy:
Just as contract law limits a child's ability to agree to a
contract, J.D.B.'s recognition of the "reasonable child" will
affect a child's capacity to agree to commit a crime.
Trial/Theory of the Case
Defense to Felony-Murder:
Counsel should challenge any claims by the state that
attempt to establish the intent (including the foreseeability
of death or dangerousness of actions) necessary to find a
child guilty of felony-murder, particularly in adult court,
considering the limited ability to foresee consequences
based on their immaturity.
"'[W]hether viewed as an attempt to express the
community's outrage or as an attempt to right the balance
for the wrong to the victim, the case for retribution is not
as strong with a minor as with an adult.' [Citations.] . . .
"Because juveniles' 'lack of maturity and underdeveloped
sense of responsibility . . . often result in impetuous and
ill-considered actions and decisions, [citations] they are
less likely to take a possible punishment into
consideration when making decisions. This is particularly
so when that punishment is rarely imposed. That the
sentence deters in a few cases is perhaps plausible, but
'[t]his argument does not overcome other objections.'
[Citations.]" Graham, at pp. 2028-2029.
Disposition/Sentencing
Because juveniles have lessened culpability they are less
deserving of the most severe punishments.
The Trifecta: Roper, Graham & J.D.B.
Developmental research, as recognized by the Supreme
Court in the trilogy of cases, confirms what we know from
commonsense, that youth are impulsive, bow to peer
pressure, and act without consideration of the
consequences.
Counsel should consider how that evidence not only
supports a "reasonable child" standard, but may also be
used in other realms of advocacy.
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