WHAT DOES ALL THIS REALLY MEAN?: A Discussion on Legal Culpability

by Brandon Moody

"[T]he legal system embraces the adversary process to achieve 'truth,' for the ultimate purpose of attaining an authoritative, final, just, and socially acceptable resolution of disputes. Thus law is a normative pursuit that seeks to define how public and private relations 'should' function.... In contrast to law's vision of truth, however, science embraces empirical analysis to discover truth as found in ‘verifiable facts.’ Science is thus a descriptive pursuit, which does not define how the universe ‘should be' but rather describes how it ‘actually is.’"

- Strengthening Forensic Science in the United States: A Path Forward by the National Research Council of the National Academies, 2009, Ch. 3, "The Admission of Forensic Science Evidence in Litigation; Law and Science."

In light of the above passage and due to a plethora of information that has been exposed regarding adolescent brain development, and mental health issues in general, I was hoping to invoke a serious discussion and consideration on some theories I have been contemplating for the past few years based on conversations I have had with many decent intellectual individuals (too many to name here), in conjunction with what I have read in a number of publications authored by other intellectual prisoners, advocates, journalists, etc., so please bear with me as I piece this thesis together.

For a starting point I would like to highlight something that I believe has been overlooked in the recent U.S. Supreme Court decisions related to the sentencing of juveniles to LIFE with or without parole. Since those of you reading this more than likely have good general knowledge on this topic I will not delve in too deep on any case in particular but will rather cite portions of Miller v. Alabama, 183 L.Ed 2d 407 (2012) that is relevant to this discussion.

The first matter to be addressed is what I proclaim to be the High Court's deviation from the spirit of the science it applied in its rulings when they distinguished juveniles as a class unto itself rather than a category (or stage) in “one class," effectively discriminating against the remaining categories (stages) in the class. Please be mindful that what I am proposing is not to diminish the juvenile cause or cause division amongst the ranks in the battle for fair sentencing practices, but rather is an attempt to make the matters more cohesive based on the nature of this discussion. In any event, what I mean by “one class” is the state of "Adolescence," defined in the medical community as: “[T]he period between puberty and maturity. The approximate ages, are: 12-21 for girls, who mature earlier than boys, and 13-22 for boys." See Dictionary of Psychology, 2nd Revised Ed. by J.P. Chaplin, Ph.D., Pp. 13. Take heed that when the court in Miller discussed its ruling they stated, "Our decisions rested not only on common sense- on what any parent knows but on 'science and social science' as well." id. at 418-19. Based on this quote is why I claim they have deviated from the very science they asserted to rely upon when they isolated juveniles from older adolescents because according to the experts who contributed to their decisions, "Science cannot -- draw bright lines precisely demarcating the boundaries between childhood, adolescence, and adulthood; the qualities that distinguish juveniles from adults do not disappear when an individual turns 18." See Amici Curiea Brief for the American Psychological Association, et. al., Re: Miller v. Alabama, supra., Pp. 6, Fn. 3 (hereinafter "APA Brief"). To support the proposition that being a juvenile is no more than a category (or stage) in "adolescence” take notice that in the arguments of the APA Brief the term "mid-adolescence" was repeatedly used and described as "roughly 14-17 (yrs old)." id. at Pp. 30. This is consistent with the above definition of adolescence and also with the fact that in their brief the APA, et. al. rarely ever used the "legal terms” child, juvenile, or minor unless they made reference to a legal citation, instead when they described the different traits of "adolescence” they were prudent in identifying whether it was the pre, early, mid, or late stages being addressed. In this regard I believe it is fair to conclude that the parallels to the legal terms child, juvenile, and minor are the scientific terms pre/early adolescence (ages prior to 14), mid-adolescence (ages 14-17), and late adolescence (ages 18-20's), respectively, making all those who fall within any one of these "categories” parties of “one class” of offenders whose culpability is diminished due to their lack of psychophysiological development as "Adolescents." See e.g., an excerpt from an article titled "The New Science of the Teenage Brain," by David Dobbs out of the Oct. 2011 issue of National Geographic (hereinafter "NG Art.") stating, "Our brains -- take much longer to develop than we had thought. -- The first full series of scans of the developing adolescent brain -- showed that our brains undergo a massive reorganization between our 12th and 25th years..." With this assessment the goal now is to not only interpose a possible argument for a claim of discrimination and denial of equal protection of law, but to also rally the criminal justice reformist community to embrace the all inclusive term “Adolescent” when discussing the brain development science, as does the scientific community, instead of continuing to use semantic terminology dictated by the law that is archaic and has imposed stringent, austere, and arbitrary demarcation lines within this transient “class." In addition to the above reasoning, the other purpose for identifying adolescence as one class is for a sake of clarity in the discussion below that I believe is equally applicable to all the age groups determined by science to fit within the meaning of the term and I will use this term only henceforth.

The next issue that I truly want to bring forth in relation to application of the science of adolescent brain development is that I propose the “cart has been put before the horse” when it appears it is being exclusively assessed during the "punishment phase” of criminal proceedings rather than being equally applicable to the “guilt phase” as well. Throughout Miller, and it's precedent authority, the court used the phrases "lesser culpability” and "diminished culpability," id. at 418, with the common denominator being the word "culpability," which may not seem so significant unless we truly evaluate what the word really means. According to Black's Law Dictionary, Tenth Ed. by Bryan A. Garner (hereinafter "BLD'), it is defined as: “2. The mental state that must be proved for a defendant to be held liable for a crime." id. at Pp. 461. And so as not to appear misleading be aware that in the explanation section describing this word a notation was made distinguishing moral culpability (evaluated for punishment phase) and legal culpability (evaluated for guilt phase). Since the High Court's decisions were all based on 8th Amendment grounds it is understandable that there rulings only focused on "moral culpability." Miller, id. at 419. Nonetheless, as the subtitle implies, this precis is to determine what part the science used in crafting the above decisions, in conjunction with other science that will be mentioned below, should play in determining one’s actual "legal culpability." Acknowledging this I would like to touch more on the layered meaning of culpability. Accordingly, culpability has been interlaced with the the legal term Mens Rea [Law Latin "guilty mind'], denoted as: "The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime." BLD, id. at 1135. Furthermore, of even more importance is the connotation for Mental State, which is: "1. The condition of a person's 'mental health or capacity,’ as determined by an expert who examines a person; and 2. The condition of a person's mind based on thoughts and feelings." BLD, id. at.

From this point what will now be explored is what science and the experts who have interpreted it have to say in regards to an adolescent's mental state in general. And since the state of adolescence is not a matter of mental health, per se (which will be addressed below in another context), then it must be a matter of one’s 'mental capacity,' so briefly before moving forward I would like to touch on the legal definition of capacity. It is described as: "1. The role in which one performs an act: -- (and) criminal capacity as: The mental ability that a person must possess to be held accountable for a crime; the ability to understand right from wrong." BLD, id. at 249. In the APA Brief it was expressed that, "Adolescents striking tendency to engage in risky and even 'illegal behavior' stems in part from their lesser capacity for mature judgment. -- Even older adolescents who have developed general cognitive capacities similar to those of adults show deficits in these aspects of social and emotional maturity." id. at Pp. 8. It was further relayed that; “It should be noted that multiple abilities contribute to mature judgment, and those abilities develop at different rates. Sound judgment requires both cognitive and psychosocial skills, but the former mature earlier than the latter." id. at Pp. 12. Be mindful that these explanations are not based on just a "theory," but actual verifiable scientific methods that show "well into late adolescence there is an increase in connections not only among cortical areas but between cortical and subcortical regions that are especially important for ‘emotional regulation,'" id. at Pp. 28, and those same "studies have shown that the prefrontal cortex is among the last areas in the brain to mature fully." id. at Pp. 29. And in a recent News Week article, Tech & Science issue of Apr. 2016 titled, "Neuroscience is changing the debate over what role age should play in the courts," experiments conducted by B.J. Casey, Director of the Sackler Institute For Developmental Psychobiology at Cornell's Weill Medical College showed; “[B]rain scanners revealed a telltale pattern: Areas in the prefrontal cortex that regulate emotion showed reduced activity, while areas linked to emotional centers were in high gear." Casey then explained that, "These results support previous brain-imaging studies and postmortem examinations. Brain areas involved in reasoning and 'self-control,' such as the prefrontal cortex, are not fully developed until the mid 20's --. This pattern of brain development creates a perfect storm for crime: Around the ages of 18-21, people have the capacity for adult emotions ‘yet a teenager's ability to control them.’'' In this respect, if science has determined that based on the nature of one’s adolescence, marked by psychobiological defects, they engage in criminal activity due to their lesser capacity for mature judgment, reasoning skills, and inability to regulate their emotions (all factors that make up one’s mental state) than how is it fair to hold them accountable for the highest degree or grade of an offense? Take into consideration that I am not proffering that as an adolescent one should be absolutely absolved of a criminal act, but as science has undeniably determined through empirical analysis and as the law has acknowledged in it's recognized doctrines, they should at least receive serious consideration of falling under their respective jurisdictions doctrine of "diminished capacity," in the context of the guilt phase of the criminal process. For the record, diminished capacity is deciphered as: "1. An impaired mental condition -- that is caused by intoxication, trauma, or disease and that prevents a person from having the mental state necessary to be held responsible for a crime. (In some jurisdictions, a defendant's diminished capacity can be used to determine the 'degree of the offense....') and is explained as: "the use of evidence of mental abnormality to negate a mens rea required by the definition of the crime charged (the mens rea variant) and the use of mental abnormality evidence to establish some type of partial affirmative defense of excuse (the partial excuse variant)." BLD, supra.

Although the adolescent brain development science may not fit squarely within the diminished capacity doctrine, to me, it is too closely related to the other mental conditions with respect to one’s mental state not to be, at least considered in the context of this discussion. On this thought in particular brings us to the next crucial phase of this discussion. As I briefly highlighted above, "trauma” is one of the mental conditions recognized under diminished capacity; and like the adolescent-development issue, science has been able to prove it's psychobiological effect on a person through verifiable neuroimaging scans, which is why I proposed the adolescent issue should be included under this doctrine. Nevertheless, distinct from the adolescent issue, for the moment, I would like to bring to head what some experts have expressed about trauma and its effects on one's mental state. In a "Report of the American Psychological Association Presidential Task Force on Violence and the Family," titled "Violence and the Family (1996)," it was noted; "[N]eurobiology researchers have -- suggested that trauma may cause changes in neurotransmitters that 'alter brain and central nervous system development,' possibly influencing an individual's propensity toward (or vulnerability to) violence as well as other responses to stressors in the environment. For example, 'development and regulation of emotions may be altered by biochemical and structural changes in parts of the brain influencing emotions.’” In an even more recent publication a Sept. 2012 issue of the "Philadelphia Magazine' an article titled, "Welcome to Hell: Philadelphia has a serious case of Post-Traumatic Stress Disorder," by Steve Volk it was observed that, "According to some medical experts, a diagnosis we most commonly associate with troubled military combat veterans now fits many 'thousands' of people in our poorest neighborhoods: post-traumatic stress disorder." (Article referred to hereinafter as "Phi. Mag"). They identified "PTSD symptoms include intrusive, upsetting memories; nightmares; chronic anxiety and fear; memory loss; diminished interest in life; emotional numbing and angry outbursts," id., also to be included is, "that hypervigilance is a PTSD symptom; (and) such a symptom would cause a PTSD sufferer to be more likely to react against perceived threats." See Com. v. Sepulveda, 55 A.3d 1108, 119-20 (Pa. 2012) (Opinion of Dr. Pablo Stewart a Psychiatric Consultant.). Based on the research conducted, "Drexel (University) doctors John Rich and Theodore Corbin have found PTSD rates of more than '70 percent’ among young men who survive being shot or stabbed. Steven Berkowitz, of (University of Pennsylvania's) psychiatry department -- suggests the PTSD rate among the urban poor at large could be as high as 40 percent." Phi. Mag, supra. Again, as mentioned in the adolescent discourse, this is not just "theoretics" but something science has verified because “[v]iolent or traumatic events can produce what some researchers have termed limbic scars - real, measurable, physical damage to the brain," not only an "effect of violence. But it's also a 'cause,' because the damage done impairs brain function --." id. They concluded that the chemicals “cortisol and adrenaline (which) are what fuel the fight-or flight response -- (and) narrow our focus to the source of a perceived threat and produce our sudden burst of energy to fight or run -- (becomes a) problem -- when they're released in large amounts, (because) these chemicals actually cause damage to the brain." id. So, "[w]hat -- soldiers and the citizens of -- poor neighborhoods have in common is the regular, repeated experience of undergoing this fight-or flight response. -- (producing) [p]eople in impoverished neighborhoods (with) brains that are essentially bathed in cortisol." id. This in effect "[c]an damage crucial areas of the brain -- the prefrontal cortex, the hippocampus, the amygdala - central to long-term thinking and reflection, learning and memory, and emotions like fear and anger. In fact, 'imaging scans' of a PTSD sufferer's brain show the winnowing of gray matter responsible for 'adult reasoning and thinking.’ They also show hyperactivity in the more primitive, ‘emotional parts of the brain[;]’ (and) 'urban poor may be even worse off than -- soldier's.’ Among the clearest risk factors for developing PTSD is undergoing trauma as a child -- something 'inner-city kids are particularly prone to.'" id. Making this much worse is that, "[p]oor urban neighborhoods comprise test labs where vast numbers of people with PTSD - 'tens of thousands, if not more' - live in close proximity to one another, ‘undiagnosed and untreated.’ This dynamic, in which poverty, violence and a 'large traumatized population' coexist, points toward a second condition that Drexel's doctors call toxic stress, wherein people 'enduring persistent threats and trauma’ may suffer from many of the symptoms of PTSD without qualifying for that diagnosis." id. Last to be noted: "[T]rauma produces extreme reactions to real threats, ‘like an argument,’ and smaller trials, like peer pressure. In fact, under the constant threat of violence, inner-city kids tend to bond in extreme ways - hanging onto friendships even if it means putting themselves at risk[;] (and) the ability to plan for the future, 'to put problems in perspective and respond accordingly' - these are some of the functions trauma destroys." (according to Drexel Researcher Sandra Bloom). id. Unfortunately, there is a depressing statistic reflecting the real threat an adolescent from an urban inner-city environment is faced with on an any-given-day basis that provides tangible proof to the discussions articulated herein; and that is: "[T]he victims of most kinds of crime are most likely to be black, young, poor, urban, single, and except for rape and domestic violence, male. -- And while senior citizens often feel most vulnerable to crime, it is teenagers who are most likely to be victimized by all kinds of crime. Children 12-19 years old are almost ‘20 times' as likely to be victims of violent crime as people over the age of 65." (Quoted out of "The New York Times Almanac; The Almanac of Record (2009)" edited by John W. Wright: Crime and Punishment Section; Crime Victims. Please forgive me for the following observation, hoping not to appear insensitive, indifferent, or unremorseful, but: Is it so unrealistic to fathom that a paradox is being perpetuated by adolescents, and potential PTSD sufferer's in the inner-city, who unwittingly contribute to this statistic vigilantly attempting to prevent themselves from actually being tallied in this very same decadent census? I proffer that it's not and has been established by the above science.

To sum up this particular portion of this synopsis, based on the above breakdown of trauma and its resultant effects on one's mental state it is plausible that a substantial argument could be made that another 'class' of individuals could be recognized, i.e., PTSD sufferer's, of having diminished culpability and/or capacity due to the nature of their psychophysiological defects. Even if this appears too idealistic then what should be easily acceptable is the strong evidentiary support suggesting that an adolescent suffering from PTSD may have even greater debilitated levels of diminished culpability, which isn't too far fetched in comparison to the following acknowledgments: "[Y]outh is more than a chronological fact. -- It is a time of immaturity, irresponsibility, impetuousness, and recklessness. -- It is a moment and condition of life when a person may be most susceptible to influence and to psychological damage[; and] just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and 'mental and emotional development' of a youthful defendant be duly considered in assessing his culpability." Miller, id. at 422. (emphasis added).

In further support of this position I propose that the two sciences emphasized herein can not only be applied for their mutual exclusive properties in relation to one's legal culpability but also in a coextensive context where tangible evidence has established a common psychological and psychophysiological defect in the same area of the brain, i.e. the prefrontal cortex. In the former sense it is the biological nature of being a steady developing human being that causes one to exhibit questionable characteristics; whereas in the latter sense it is the uncontrollable subjection to physical damage that alter one's reactions with human beings. And drawing your attention back to the NG Art where it was expressed that, "[A]s we move through adolescence, the brain undergoes extensive remodeling, resembling a network and wiring upgrade. This process of maturation -- continues throughout adolescence. When this development proceeds normally, we get better at balancing impulse, desire, goals, self-interest, rules, ethics, and even altruism, generating behavior that is more complex and, sometimes at least, more sensible. But ‘at times, and especially at first, the brain does this work clumsily; '" Is it now not fair to conclude that since a "normally developing adolescent' has a certain level of diminished culpability, that one subject to the trauma laden conditions described above are twice prone to enhanced questionable characteristics because their development is not only delayed but severely altered ultimately affecting their mental state? I contend that science has already confirmed this and it is now on the legal community to do the same. In essence of the opening passage, as one of the most infamous scientist this world has seen recognized, "A (person) should look for what is; and not what (they) believe[ ] should be." -Albert Einstein, Physicist.

On a final note, I acknowledge that the "criminal justice system" already has a "process” where this evidence could be relevant during the guilt phase of one's ‘defense;" and also there lies an opportunity to present this in support of one's post-conviction proceedings. Nevertheless, my altruistic idealistic goal here is to hopefully appeal to the “evolving standards of decency that mark the progress of a maturing (and compassionate) society,” Miller, id. at 417 (emphasis added), of those who are responsible for implementing, enforcing and upholding the very laws and policies that disproportionately affect the two most vulnerable “classes”' of “offenders." As I stated prior, I do not proclaim that these classes should be absolutely absolved of any criminal liability, but rather new policies should be imposed during the "charging and indictment" phases taking into account the above scientific factors if the “suspect" falls into one, if not both, of the classes identified. This in my opinion would prevent a possible injustice being committed where if one is not subjected to over zealous charges of the highest degree or grade of an offense then one will not be faced with the harshest form of punishment, especially any type of DEATH BY INCARCERATION. What else would be a more just, fair, and appropriate remedy for such classes of offenders who due to their "incompetencies associated with youth (and traumatization ) (have an) inability to deal with police officers or prosecutors [including on a plea agreement] or (an) incapacity to assist (their) own attorneys(?)" Miller, id. at 423. (emphasis my own).