Less guilty by reason of adolescence 

Steinberg & Scott 

Authors argue that juveniles should not be held to the same standards of criminal responsibility as adults, because adolescents’ decision-making capacity is diminished, they are less able to resist coercive influence, and their character is still undergoing change.  A few countries (since 1990) have executed individuals whose crimes were committed when they were juveniles > it is time to reexamine the constitutionality of the juvenile death penalty. In this article the broader question of whether juveniles should be punished to the same extent as adults who have committed comparable crimes.  

Excuse and mitigation in the criminal law 

Penal proportionality: proportionality holds that fair criminal punishment is measured not only by the amount of harm caused or threatened by the actor but also by his/her blameworthiness > whether, and in what ways, is the immaturity of adolescent offenders relevant to their blameworthiness and, in turn, appropriate punishment for their criminal acts? 

Distinction excuse and mitigation 

• Excuse refers to the complete exculpation of a criminal defendant > he bears no responsibility for the crime and should receive no punishment. 

• Mitigation places the guiltiness of a guilty actor somewhere on a continuum of criminal guiltiness and, by extension, a continuum of punishment > actor is guilty, but the actor's capacities are sufficiently compromised, or the circumstances of the crime sufficiently coercive, to warrant less punishment than the typical offender would receive. For example, mental illness. 

The public debate about criminal punishment of juveniles is often heated because people think they have to choose between adult punishment or excuse. Instead, there should be more attention to mitigation: a juvenile offender, owing to his developmental immaturity, should be viewed as less culpable (guilty) than a comparable adult offender, but not as an actor who is without any responsibility for the crime. In general, factors that reduce criminal culpability can be grouped roughly into three categories: 

1. Endogenous impairments or deficiencies in the actor's decision-making capacity that affect his choice to engage in criminal activity. This deficiency can be due to mental illness or mental retardation, susceptibility to influence or domination. 

2. The external circumstances (provocation, threatened injury, extreme need) faced by the actor are so compelling that an ordinary person might have succumbed to the pressure in the same way as did the defendant.  

3. Evidence that the criminal act was out of character for the actor and that, unlike the typical criminal act, his crime was not the product of a bad character (but first offense, good citizenship, respect for the law's values). 

Developmental immaturity and mitigation 

1. Adolescents' levels of cognitive and psychosocial development are likely to shape their choices in ways that distinguish them from adults and that may undermine competent decision-making. 

2. Decision-making capacities are immature, and autonomy is constrained > more vulnerable than adults to the influence of coercive circumstances that mitigate culpability for all persons. 

3. Adolescents are still in the process of forming their personal identity > their criminal behavior is less likely than that of an adult to reflect bad character.  

Deficiencies in decision-making capacity 

Reasoning capabilities increase through childhood into adolescence and preadolescents and younger teens differ substantially from adults in their cognitive abilities. These basic improvements in reasoning are complemented by increases in specific and general knowledge gained through education and experience and by improvements in basic information-processing skills. In laboratory circumstances (low emotional arousal), the decision-making of mid-adolescents is comparable with that of adults. It is an open and unstudied question whether, under real-world conditions, the decision making of mid-adolescents is truly comparable with that of adults. More important, even when teenagers’ cognitive capacities come close to those of adults, adolescent judgement and their actual decisions may differ from that of adults as a result of psychosocial immaturity. Relevant differences are susceptibility to peer influence (direct and indirect), attitudes toward and perception of risk, future orientation and the capacity for self-management. There are at least two plausible explanations for this age difference in future orientation: 1) owing to cognitive limitations in their ability to think in hypothetical terms, adolescents simply may be less able than adults to think about events that have not yet occurred. 2) the weaker future orientation of adolescents may reflect their more limited life experience. There are also a number of explanations for the age differences in attitude towards risk: 1) weaker risk aversion may be related to the more limited time perspective, because taking risks is less costly for those with a smaller stake in the future. 2) adolescents may have different values and goals than do adults > calculate risks and rewards differently.  

Studies of brain development during adolescence, and of differences in patterns of brain activation between adolescents and adults, indicate that the most important developments during adolescence occur in regions that are implicated in processes of long-term planning, the regulation of emotions, impulse control, and the evaluation of risk and reward. 

Heightened vulnerability to coercive circumstances 

Because of their developmental immaturity, normative (ordinary) adolescents may respond adversely to external pressures that adults are able to resist. Although plausible inferences can be drawn about how developmental influences may affect adolescents’ responses to external pressures, we don't have sufficient research comparing the behavior of adolescents and adults at varying levels of duress, provocation or coercion.  

Unformed character as mitigation 

Youthful culpability is also mitigated by the relatively unformed nature of their characters. The process of identity formation includes considerable exploration and experimentation over the course of adolescence. Although the ‘identity crises' may occur in middle adolescence, the resolution of this crisis, with the coherent integration of the various retained elements of identity or early adulthood. Until then, teens will experiment with risky behavior. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood. Thus, research on identity development in adolescence supports the view that much youth crime stems from normative experimentation with risky behavior and not from deep-seated moral deficiency reflective of “bad” character.  

Moffit: adolescent offenders fall into one of two broad categories: adolescence-limited offenders, whose antisocial behavior begins and ends during adolescence, and a much smaller group of life-course-persistent offenders, whose antisocial behavior begins in childhood and continues through adolescence and into adulthood. The criminal activity of both groups during adolescence is similar, but the underlying causes of their behavior are very different. LCP offenders show longstanding patterns of antisocial behavior that appear to be rooted in relatively stable psychological attributes that are present early in development and that are attributable to deficient socialization or neurobiological anomalies. AL offending is the product of forces that are inherent features of adolescence as a developmental period. The causes of AL offending weaken as individuals mature into adulthood.  

A claim that an adult’s criminal act was out of character requires a demonstration that his or her established character is good. The criminal choice of the typical adolescent cannot be evaluated in this manner because the adolescent’s personal identity is in flux and his or her character has not yet stabilized. However, like the adult offender whose crime is mitigated because it is out of character, adolescent offenders lack an important component of culpability—the connection between a bad act and a bad character. 

Developmental immaturity, diminished culpability, and the juvenile crime policy 

The developmental factors that drive adolescent decision making may predictably contribute to choices reflective of immature judgment and unformed character. How should the legal system recognize the diminished responsibility? An important policy choice is whether immaturity should be considered on an individualized basis, as is typical of most mitigating conditions, or as the basis for treating young law violators as a separate category of offenders. The age boundary is justified if the presumption of immaturity can be applied confidently to most individuals in the group, as we believe is the case for juveniles. Moreover, a categorical approach to the separation of juveniles and adults offers substantial practical efficiencies over one which immaturity must be assessed on a case-by-case basis. 

 A developmentally informed boundary restricting the dispositions that can be imposed on juveniles who have entered the criminal justice system represents a precommitment to taking into account the mitigating character of youth in assigning blame.