Adolescence and The Law – Current Challenges

Adolescence and The Law – Current Challenges

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The new issue of the Association for Psychological Science’s journal
*Current Directions in Psychological Science* is a special issue devoted to
“The Teenage Brain.”

One of the many articles in this special issue s “Adolescent Brain Research
and the Law.”

The authors are Richard J. Bonnie & Elizabeth S. Scott.

Here’s how the Adolescence and the Law article starts:

In recent years, policymakers, the media, and the public have shown a great
deal of interest in the expanding body of knowledge on adolescent brain
development–an interest that reflects an expectation that accumulating
knowledge about the structure and functioning of the developing teenage
brain can usefully inform law and public policy (Wallis, 2004). In this
article, we examine the relevance of developmental neuroscience to legal
policies dealing with adolescents and discuss several applications.
Specifically, we explain how developmental understanding of teenage risk
taking and criminal activity can contribute to legal policies that protect
adolescents during this distinct developmental period and that also promote
the public interest. We emphasize, however, that current knowledge does not
provide a scientific basis for evaluating the “maturity” of adolescents on
an individual basis for legal purposes.

Adolescence in American Law

Although adolescence is recognized by developmentalists as a distinct stage
separate from childhood and adulthood, the law typically does not adopt
rules applicable specifically to adolescents. Instead, on various issues,
lawmakers have tended to draw binary age boundaries between “minors,” who
are presumed to be vulnerable, dependent, and incompetent to make
decisions, and adults, who are viewed as autonomous, responsible, and
entitled to exercise legal rights and privileges (Scott, 2000). Although
adolescents become legal adults for most purposes at 18 years of age (the
“age of majority”), the threshold for defining adult status is not uniform.
For example, driving privileges are extended to adolescents in many states
at 16 years of age and the right to purchase alcohol at 21 years of age; in
most states, youths 14 years of age (or even younger) can be tried as
adults when charged with serious crimes. The statutory age for making
health decisions (especially reproductive decisions and treatment of
behavioral health disorders) has been set at 14 years in many states.
Policies setting these age boundaries are based on many considerations,
depending on the issue–administrative convenience, parental rights, child
welfare, economic impact, and the public interest–as well as assumptions,
often rooted primarily in conventional wisdom, about whether youths at a
given age are sufficiently mature, as a class, to be treated as adults for
the particular statutory purpose.

On most issues, the threshold of adult status is relatively settled and is
not highly controversial; this may explain why brain science has not played
much of a role (Woolard & Scott, 2009). In general, research indicating
that substantial structural and functional changes in the brain occur
during adolescence has reinforced a background supposition favoring
protective policies until teenagers reach 18 years of age. This approach
has been generally satisfactory, except to some youth advocates who favor
extending adult rights and privileges to younger adolescents and who,
therefore, are generally hostile to neuroscience input in the policy arena
(Steinberg, 2009).

Linking Neuroscience Evidence to Youthful Risk Taking

Developmental neuroscience research that can be linked to youthful risk
taking and offending is in a relatively early stage, and currently its
relevance to the key policy issues is indirect. Nonetheless, the existing
research on the timing of developments in brain structure and function is
consistent with and supplements the larger body of behavioral research;
this new research provides the basis for understanding why many adolescents
become involved in risky activity and desist as they mature into adulthood
(Casey, Getz, & Galvan, 2008; Steinberg, 2009).

The Limits of Neuroscience

A recent study published in Science suggests that neuroscience evidence
that does no more than describe the biological underpinning of a behavioral
diagnosis (psychopathy in this study) can have an influence (whether
legitimate or not) on judges making decisions in individual criminal cases
(Aspinwall, Brown, & Tabery, 2012). Not surprisingly, prosecutors and
attorneys like Alex Spiro working with juveniles increasingly seek to introduce neuroscience evidence in criminal trials–to demonstrate that the brain functioning of a particular juvenile facing criminal charges was or was not sufficiently
mature to hold the youth responsible for his or her offense.

This has
largely been unsuccessful, often because courts have found it to be
irrelevant to the legal issue at hand–such as whether the youth lacked
criminal intent (Maroney, 2009). However, the use of this research is also
highly problematic on scientific grounds. So far, neuroscience research
provides group data showing a developmental trajectory in brain structure
and function during adolescence and into adulthood; however, the research
does not currently allow us to move from that group data to measuring the
neurobiological maturity of an individual adolescent because there is too
much variability within age groups and across development (Dosenbach et
al., 2010). Indeed, we do not currently have accurate behavioral measures
of maturity. At some point, neuroscience and accompanying behavioral
studies may provide age norms against which an individual adolescent’s
brain development and functioning can be measured. However, today an expert
who offers an opinion that a particular 14-year-old defendant has a mature
or immature brain as compared with other 14-year-olds (or “has the maturity
of a 17-year-old”) is exceeding the limits of science. Currently, the only
legitimate use of adolescent brain research in individual cases is to
provide decision makers with general descriptions of brain maturation.

It is difficult to predict the extent to which developmental neuroscience
research will inform legal policy and practice in the future. Legal policy
toward adolescents will always be based on many considerations, of which
developmental maturity is only one. Currently, the research is important
primarily in domains of public policy relating to adolescent risk taking,
particularly in juvenile justice policy, where it is invoked to support
rehabilitative programs in juvenile courts and to challenge policies that
subject juvenile offenders to the same punishment as their adult
counterparts.

The article is online at:
<http://bit.ly/KenPopeAdolescentBrainResearchAndLaw>