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

"You don't understand!"

"My mom's gonna have a cow."

"Wow! Look at all the pretty colors!!!"

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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.