Juvenile Brain Development – Why criminal defense attorneys

must understand it.

Why is it important to understand juvenile brain development? It goes without saying that it is important to understand if you represent juveniles. But it is
also important if you represent adults.

Before we talk about why it is so important, we need to understand what we mean when we say “juvenile brain development.”
Understanding juvenile brain development is necessary for any criminal defense attorney.

The Basics of Juvenile Brain Development

There has been an astounding amount of developments in the area of juvenile brain functions. We now understand that the brain continues to grow and
develop well into a person’s 20’s.

In the rst 3-5 years of a person’s life, the structure of their brain develops at a rapid pace. As the person grows, their brain continues to develop. The last part
to develop is the frontal lobe, which controls things like memory, expression of emotion, sexual behaviors, and judgement. It is basically a person’s control
panel.

If a child or young adult su ered trauma or was exposed to drugs or alcohol during the various stages of brain development, their cognitive development
may have been negatively impacted.

Because the juvenile and adolescent brain is developing, the actions of people in their teens and early twenties, may not re ect who that person is as a fully
developed adult.

The Law and Juvenile Brain Development

The United States Supreme Court has recognized these developments in brain science. In 2005, the Court observed that “A juvenile is not absolved of
responsibility for his actions, but his transgression ‘is not as morally reprehensible as that of an adult.’” Roper v. Simmons, 543 U.S. 551, 553 (2005); Graham
v. Florida, 560 U.S. 48, 68 (2010).

The United States Supreme Court has also recognized that “juveniles have diminished culpability.” Miller v. Alabama, 567 U.S. 460, 471 (2012). This
“diminished culpability” is a re ection of juvenile’s lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and
heedless risk-taking.” Id.

The Court further recognized in Miller that juvenile’s “are more vulnerable” to outside, negative in uences. In Roper, the Court noted that “the character of a
juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less xed.”

In recognizing the di erence between adults and juveniles, the Court observed that such di erences are not only based on common sense, but also the fact
that ‘developments in psychology and brain science continue to show fundamental di erence between juvenile and adult minds.” These di erences are not
“crime speci c.”

Do The Holdings in Miller and Roper Apply To People Over 18?

The Supreme Court has not yet addressed the applicability of its reasoning in Miller and Roper to persons over the age of 18. Those questions were not before
the Court. More importantly, since Miller and Roper, juvenile brain science has continued to develop.

Other jurisdictions, however, have begun to address juvenile brain development science and its application to persons over the age of 18.

“The features of youth identi ed in Roper and Graham simply do not magically disappear at age seventeen—or eighteen for that matter. See Elizabeth S. Scott
& Laurence Steinberg, Rethinking Juvenile Justice 60 (2008) (“[S]ubstantial psychological maturation takes place in middle and late adolescence and even into
early adulthood.”).” State v. Sweet, 879 N.W.2d 811, 837 (Iowa 2016).]; See also, People v. Sanchez, 63 Misc. 3d 938, 945 (New York Cnty. Ct.  2019)(“the
development of the adolescent brain does not end at age 18, or any point close to that. Rather, a wealth of brain research has shown that the attributes of
adolescent brains which have led courts to prohibit certain punishments for children continue to some degree until age 25).

Why Brain Science Matters In Criminal Law

It is easy to understand why brain science and juvenile brain development matters when representing kids. But what about adults?

Many of your adults clients will be between the ages of 18-25.

That means, according to the science, that their brains are still developing!

You need to make sure that you educate the prosecutor and the judge about juvenile and adolescent brain development in such cases. They want to hold
your client to the standard of a fully developed adult. Without you educating them about the science, your client will be held to an unfair standard.

Educating the prosecutor and the judge about juvenile and adolescent brain development will also help you in sentencing. If you client’s brain is still
developing that will mean two things. First, your client’s actions do not fully re ect who they are as a person. Second, your client can be rehabilitated.

Many of your adult clients will have prior criminal records from ages 18-25

Understanding juvenile brain science is particularly important when you represent an adult client who has a prior criminal record.

You can utilize the science and quotes from cases, like the ones I have cited in this article, in the sentencing context. Even if your client is in their 30’s or 40’s,
or even older, you can utilize juvenile brain science to explain why the court should give less, if any, weight to those prior convictions when your client was
between the ages of 18-25.

Sending juveniles and young adults to jail is just bad

You can also use brain science to explain how incarceration, in juvenile detention or adult jails and prisons, impacted your client’s development.

According to a recent study published in the o cial journal of the American Academy of Pediatrics, “[c]umulative incarceration duration during adolescence
and early adulthood is independently associated with worse physical and mental health later in adulthood.” Barnert ES, Dudovitz R, Nelson BB, et al. How
does Incarcerating Young People A ect Their Adult Health Outcomes? Pediatrics. Vol. 139, n. 2 (2017).

The National Prison Rape Elimination Act Commission Report also observed that, “Con ning youth with an adult and more experienced criminal population
has very little deterrent value and has failed to improve public safety. In fact, a recent study found that you transferred to the criminal justice system are
more likely to re-o end.”

A 2013 review of literature concerning the outcomes of incarceration on youthful o enders and rehabilitative limitations, also supports the conclusion that
incarcerating youthful o enders causes lasting behavioral and social harms. Lambie I, Randell, I The impact of incarceration on juvenile o enders. Clinical
Psychology Review 33 (2013) 448-459.

The review found that “Between 70% and 80% of juveniles who have been in residential correction programs are subsequently rearrested within a three-year
period, and research indicates that incarceration of juveniles generally is ine ective in reducing recidivism and may maintain, or even increase, levels of
engagement in antisocial behavior and criminal activity.” Further, adolescents who are subjected to secure settings lose the ability to “age out” of antisocial
behavior. “[I]ncreased contact with antisocial peers in a prison environment…is a contributing factor in negative outcomes for incarcerated adolescents.”

Your client’s history of trauma shapes who they are as adults

It is a sad reality that most of your adult clients have su ered some form of trauma as children or adolescents. This trauma impacted who they became as
adults.

It is critical for you to not only learn about your client’s trauma history, but also be able to explain how it impacted their brain development.

It is well documented that trauma during adolescence disrupts brain development. This leads to increased risk taking, impulsivity, substance abuse, and
criminal activity.

Here are some resources for you to cite to when discussing this point:

Chamberlain, L.B. (2009) The amazing teen brain: What every child advocate needs to know. ABA Child Law Practice, 28(2), 17-24;
Child Welfare Information Gateway, Understanding the e ects of maltreatment on brain development. (November, 2009);
 Wilson, K.R., Hansen, D.J., & Li, M., The traumatic stress response in child maltreatment and resultant neuropsychological e ects. Aggression and Violent
Behavior, 16(2), 87-97 (2001).

The United States Department of Veterans A airs – National Center for PTSD has also addressed the impact of trauma on children and adolescents.

“[C]hildren and adolescents who have experienced traumatic events often exhibit other types of problems.” Problems seen in children and adolescents who
have experienced non-sexual trauma, often resembles that of those who have endured sexual abuse. This includes “fear, anxiety, depression, anger and
hostility, aggression, sexually inappropriate behavior, self-destructive behavior, feelings of isolation and stigma, poor self-esteem, di culty in trusting others,
substance abuse, and sexual maladjustment.”

Additionally, “[c]hildren who have experienced traumas also often have relationship problems with peers and family members, problems with acting out, and
problems with school performance.

Get creative.

Obviously you will apply juvenile brain science is at sentencing, but that is not the only time you will.

The Rules of Evidence are important to think about in this context because they can reach into your client’s past. For example, there is Rule 609, which allows
the introduction of your client’s prior convictions for impeachment.

For convictions that do not involve acts of dishonesty, the government must show that the evidence is more probative than unfairly prejudicial. Argue that the
probative value is greatly diminished given your client’s age at the time of the act and conviction. Therefore, the conviction should not be admitted under 609.

See where I’m going with this?

Think of any rule where your client’s past bad behaviors may become relevant and admissible. There is Rule 404, 405, 413, 414, and 608.

Do Your Research!
There is a lot to read out there. I would highly recommend starting with the resources I have provided you with in this article. It is not enough to just read
Miller and Roper. You need to dig into the studies and continually search for developments in the science.

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