Adolescent Brain Science After Graham v. Florida

INTRODUCTION In Graham v. Florida, (1) the Supreme Court held that the Eighth Amendment prohibits a sentence of life without possibility of parole for a nonhomicide crime committed when the offender was under the age of eighteen. (2) Justice Kennedy's majority opinion (3) in this closely watched case is remarkable for a number of reasons, chief among them its rejection of the "death is different" mantra (4) that had for so long prevented principles from death penalty jurisprudence from informing constitutional bounds on term-of-years sentencing. (5) Having broken down that wall, the Graham Court easily applied to juvenile life without parole the developmental conclusions that had partially underlain its earlier abolition of the juvenile death penalty. (6) Developmental neuroscience--that is, the study of life-course changes in the brain's structure and function (7)--contributed to this aspect of Graham. Justice Kennedy, citing to amicus briefs from the American Psychological Association and American Medical Association, wrote that: "[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds. For example, parts of the brain involved in behavior control continue to mature through late adolescence." (8) In an earlier article, The False Promise of Adolescent Brain Science in Juvenile Justice, this author noted the pendency of Graham and its companion case, Sullivan v. Florida. (9) Because both Terrance Graham and Joe Sullivan offered scientific arguments closely paralleling those made by the defendant in Roper v. Simmons, (10) and because largely the same lineup of amici had done the same, I predicted that "[t]he Court's treatment of developmental neuroscience may provide valuable insight, largely absent in Roper, to its attitude toward its relevance." (11) Did it? It did. Justice Kennedy's opinion in Graham clarified what his opinion in Roper had left ambiguous: the Court (or at least a majority of its members at that time) believed neuroscience relevant to general propositions as to the normal developmental course of adolescence. To the extent that such propositions drove conclusions as to juveniles' special legal status, neuroscience partially supported those conclusions. This Essay analyzes the influence of neuroscience in Graham and offers some predictions as to the decision's future impact. As this issue was explicitly set to one side in False Promise, the Essay provides an opportunity to both supplement that article and reflect on its conclusions. Part I distills its essential arguments and reports on subsequent developments. Part II more closely dissects the neuroscientific arguments made by the defendants and amici in Graham and Sullivan, as well as the Court's treatment of those arguments. Part III reflects on the possible impact of the decision. I predict that its most dramatic effects will have little to do with developmental neuroscience. As to that science, I argue that the Graham Court gave it the maximum weight it presently can bear. The decision therefore provides welcome support for legal policy-makers--whether in courts or legislatures--who seek to draw modestly on such science in reinforcing commitments to the special legal status of youth. But the predictable post-Graham temptation to place even greater weight on developmental neuroscience should--for the many reasons articulated in False Promise, which remain unaltered--be resisted. I. ADOLESCENT BRAIN SCIENCE IN JUVENILE JUSTICE In False Promise I sought to measure the legal impact of developmental neuroscience by identifying and analyzing cases in which arguments relying on such science--sometimes marginally, often centrally--had been made before the courts. I demonstrated that most such arguments fail to persuade and sought to explain why. Just as important, I undertook to explain why developmental neuroscience claims should have only a modest legal impact, and that only within limited parameters. …