The use of “developing brain” science in criminal cases seems to be increasing, and today is yet another example of an attempt to use developing brain science to mitigate a criminal defendant’s sentence. The theory in the case today is novel, however, in that it seeks a downward departure in the sentencing guidelines sentence due, in part, to having committed a prior offense before he reached the age of 25 and had a “fully developed” brain.

The Court here finds the claim unpersuasive, particularly since by the age of 22 most individuals are able to avoid committing acts of homicide. But organizations abound on providing key facts about the developing brain and how to incorporate that evidence into the criminal justice system. The Coalition for Juvenile Justice even has an emerging concept paper to opine on the relevance of developing brain science for juvenile cases.

Previously, I’ve discussed the developing brain theory in the context of transfer to adult court, 8th Amendment challenges to punishment, and justification for sexually-inapproriate behavior. Stay tuned, as there are myriad ways in which this evidence is being introduced into criminal cases.

Developing Brain Theory, Downward Sentence Departure, Mitigation
U.S. v. Vallecillo-Rodriguez, 2011 WL 938406 (D.N.M. 2011)
This matter comes before the court based on a sentencing memorandum for the Defendant who pled guilty to reentry of a previously removed alien. The Presentence Report (“PSR”) calculated Defendant’s advisory Sentencing Guidelines range under the United States Sentencing Guidelines to be 51 to 63 months. Defendant requests a variety of departures and variances, all of which the Court declines to grant. The plea agreement allows Defendant to argue for adjustments, departures, or variances from this range. Defendant’s sentencing memo argues for a 38-month sentence, essentially time served (Defendant has been in custody since his November 2007 arrest). To support this reduced sentence, Defendant advances six different arguments, the last of which is that a below-Guidelines sentence would properly reflect Defendant’s reduced culpability for the 1994 offense, committed when he was under the age of twenty-five, the age when the human brain is fully developed. Defendant argues that since cognitive abilities are not fully developed until the age of twenty-five, as recent brain science reveals, his criminal history before that age should be discounted. His felony for second-degree murder was committed when he was twenty-two years old, some four years beyond the age of majority. The Court noted that Defendant’s criminal history did not stop at the age of twenty-five. The Court further notes that most twenty-two year olds’ brains have developed fully enough not to commit murder and that the Defendant cannot absolve himself of the consequences of his own actions by blaming “impaired mental function” due to youth. The Court refused to grant a variance on this or the other five grounds. Accordingly, Defendant’s request for a sentence of 38 months was denied.