Tracking the use of behavioral science evidence in juvenile criminal cases is more difficult than tracking it for adults. Juvenile cases often proceed under seal or confidentiality and the decisions rendered are rarely in legal databases. The result is that we don’t know as much as we’d like to on the use of behavioral sciences in juvenile cases. (My colleague, Terry Maroney, has published an insightful piece on the use of neuroscience in juvenile cases.)

The two cases today represent two different subsets of behavioral science and juveniles cases. The first subset involves the use of neuroscience to make individual claims about neurological or genetic impairments. The first case presents an interesting (and ultimately unsuccessful) application of this claim, to argue that the particular juvenile defendant should not be transferred and tried in adult court.

The second case falls into a second subset, which I call the “developing-brain” theory. In these cases the defendant claims that juveniles as a category or class (rather than as the individual defendant) should be treated differently because of the neurological or development stage of the adolescent brain.

Juveniles, Individualized Neurological Impairment, Transfer to Adult Court
U.S. v. Juvenile Male No. 2, 2011 WL 223599 (E.D.N.Y. 2011)
After filing a Juvenile Information charging juvenile with conspiracy to commit murder in aid of racketeering, murder in aid of racketeering, discharging a firearm during a crime of violence, and causing the death of another through the use of a firearm, the government moved to transfer the case to district court in order to prosecute the juvenile as an adult. The court here granted the government’s motion to transfer to adult status. At the transfer hearing, the Court heard testimony from a clinical neuropsychologist and a forensic neuropsychologist, both of whom prepared evaluations and reports on behalf of the defendant. The neuropsychologist opined that the defendant was of “normal intelligence” and that the defendant’s “problems aren’t with his intellect; they are with the systems in his brain that control[ ] his behavior … and also with his emotional development and the development of a stable sense of self or stable personality.” Both doctors were “struck by … how changeable his personality is … [and][h]ow vulnerable to peer influence he is.” The Court found that, on balance, there are elements of the defendant’s intellectual development and psychological maturity that weigh both for and against transfer, and that this factor was therefore neutral in the transfer analysis. After balancing all of the statutory factors, the Court concluded that transfer of the defendant to adult status was warranted in this case in the interest of justice.

Juveniles, Developing Brain Theory, 8th Amendment Challenge to Sentence
McKinney v. Commonwealth, 2011 WL 43235 (Ky. App. 2011)
In this case the juvenile defendant pled guilty to charges of intentional murder, robbery, and burglary was sentenced to life imprisonment (for murder) and to a consecutive sentence of 35 years on to rest. Twenty years after his initial plea, the defendant requested that his sentence be set aside in light of the decision in Roper v. Simmons, 543 US 551 (2005) that in light of “evolving standards of decency” it was cruel and unusual punishment to execute juveniles. The defendant pointed to the “new understanding about adolescent brain development” as articulated in Roper that was not recognized at the time of his sentencing hearing. The trial court found that the original court had considered the defendant’s “age and lack of maturity” in rejecting the death penalty and applying a less onerous sentence. Moreover, Roper v. Simmons applied to the death penalty and not a sentence of imprisonment. On appeal, the court held that the trial court did not abuse its discretion. [Editor’s note: the more recent case of Graham v. Florida, 550 U.S. (2010) applies only to cases in which the juvenile defendant did not commit a homicide. The Court found that some applications of life imprisonment, but not all applications, would be cruel and unusual punishment for a crime committed by a juvenile].