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May 11, 2015

"Brain Science and the Theory of Juvenile Mens Rea"

The title of this post is the title of this notable new paper by Jenny Carroll now available via SSRN. Here is the abstract:

The law has long recognized the distinction between adults and children.  A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders.  In the cases of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, the Court's jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents' cognitive abilities and thought processes differ from their adult counterparts.  Children are different than adults.

In these rulings, the Court recognized that brain development affects the legal construct of culpability and so should affect punishment.  The Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders.  As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole.  To date, the Court has limited the application of this principle to punishment. The logic of the Court's decisions, however, applies just as strongly to the application of substantive criminal law.  Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea.  In this paper I argue that the failure to extend this jurisprudence of youth to the mental element undermines the very role of mens rea as a mechanism to determine guilt.

May 11, 2015 at 12:18 PM | Permalink


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This myth has been rebutted conclusively, over and over. All behavior is brain based. Brain malfunctions are a serious aggravating factor, not a mitigating factor. The ultimate proof is their lower crime rate than that of adults. They are so impetuous, Justices have claimed. So how come they control themselves better? One possible answer? Not allowed to drink.

Posted by: Supremacy Claus | May 11, 2015 12:29:10 PM

The term mens rea is from the analysis of mortal sin in the church Catechism. That makes the term lawless in our secular nation. The Sharia is associated with low crime rates, all over the world. If one wants inspiration, use that instead. No? So why is the Catechism any more acceptable?

Posted by: Supremacy Claus | May 11, 2015 12:35:54 PM

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