For the Defense - Vol. 7, Issue 1 - 6

and ill-considered actions and decisions " ; (2) are
" more vulnerable or susceptible to negative influences
and outside pressures, including peer pressure " ;
and (3) " the character of a juvenile is not as well
formed as that of an adult. " 13
These key differences
suggest that youth are less culpable for their actions
than their adult counterparts, and therefore the
traditional justifications for criminal punishment-
retribution, deterrence, and incapacitation-are less
applicable to young criminal defendants. The reasons
for this reduced culpability do not magically vanish
at age eighteen. In fact, scientific research suggests
that the differences between children and adults
that render children less morally culpable persist until
approximately age twenty-five.14
Brain Development
Recent brain studies reveal that youths aged
eighteen to twenty-five continue to have many of the
same characteristics that make children less culpable
for criminal behavior. There have been a substantial
number of recently published psychological studies
and legal scholarship recognizing that the brain,
most importantly the prefrontal cortex, continues
developing until the mid-twenties, rather than
stopping at age eighteen.15
The prefrontal cortex
is essential for both impulse control and decisionmaking
in complex or high-stress situations and
" [t]he fact remains that young people between the
ages of eighteen and twenty-five do not have fullydeveloped
capacity to control impulses and make
rational choices. " 16
Reduced juvenile culpability has therefore commonly
been attributed to the underdevelopment of the prefrontal
cortex.17
Children and youth's delayed brain
development makes them prone to poor decisionmaking
and peer pressure, reduces their understanding
of long-term consequences of their behavior, and
means they lack the self-control to refrain from
engaging in risky behavior.18
This is because " [t]he
prefrontal cortex is central to what psychologists call
executive functions, advanced thinking processes
that are employed in planning ahead and controlling
impulses, and in weighing the costs and benefits of
decisions before acting. " 19
Studies show that this part
of the brain causes youth to rely on " gut reactions,
instinct, and overall emotional responses " in contrast
to adults who rely on " judgment, reason, and
planning " when they act.20
As the prefrontal cortex
develops, this diminished capacity will fade and
socially acceptable behavior will override emotionally
driven behavior.21
In this way, before the brain fully
matures, a youth will likely " grow out of antisocial
behavior patterns " which " renders him susceptible to
rehabilitation " 22
and thus renders the personalities of
6 For The Defense l Vol. 7, Issue 1
those aged eighteen to twenty-five " more transitory,
less fixed. " 23
Since these characteristics make eighteen to
twenty-five-year-olds " in many respects . . . more
similar to juveniles than to adults, " 24
they are more
receptive to rehabilitation just like juveniles. A child
without a fully-developed brain is better suited for
rehabilitation because " with time and attendant
neurological development, " the child's " deficiencies
will be reformed. " 25
Additionally, because their
unformed character is easily malleable-especially
by social and peer influence-they are " better
candidates for rehabilitation. " 26
Youth are more
likely to remold their behaviors as they fully develop
since " the same peak in dopamine that makes
dangerous behaviors so appealing also increases an
adolescent's ability to learn and to rehabilitate. " 27
Some studies suggest that focusing on rehabilitation
for youth in this age group decreases recidivism rates,
highlighting one of the many potential benefits of a
rehabilitative approach.28
The Age-Crime Curve
Research shows that once the brain is fully
developed, criminal behavior significantly decreases.
This is what many researchers refer to as the " agecrime
curve. " 29
The age-crime curve tells us that,
in general, a person's propensity for criminal
behavior begins around " puberty, peaks at age
twenty, and then decreases " significantly during
the mid-twenties.30
Therefore, " adolescents and
individuals in their early twenties are more likely
than either children or adults to engage in risky
behavior. " 31
Although we see a high amount of
crime committed prior to age twenty-five, the agecrime
curve indicates that most will desist from crime
either in late adolescence or early adulthood.32
Only
an estimated five percent of youth offenders will
continue committing crimes in adulthood.33
This is
because adolescent experimentation in risk-taking is
transient for most individuals.34
Given this behavioral trend, by sentencing youth
aged eighteen to twenty-five to the same lengthy
sentences as adults, too many young offenders are
sitting in prisons when they likely no longer pose a
danger to society.35
These offenders tend to abstain
from crime as their brains develop, " reducing
any incapacitation benefits of long sentences. " 36
Additionally, " aging out " of crime is much more
likely if the youth has " enhanced social connections "
with the opportunity to develop " an identity, sense
of purpose, or self-awareness " which is improbable
if the youth is in a prison cell.37
Placing youth of this
age group into the punitive adult system can actually
For the Defense - Vol. 7, Issue 1

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