The day Christopher Simmons was sentenced to death row in Missouri for a crime he committed when he was seventeen, he probably didn't know his opportunity for freedom lay in the nether regions of his frontal lobe. Simmons' case, which led the U.S. Supreme Court to overturn the death penalty for individuals under eighteen, rested in part on neuroscientific research which shows some of the ways that the adolescent brain is still developing. Simmons' case was a victory for those who are seeking a sense of justice and fairness in the application of the law, but the use of this research, and its recent proliferation in the media, in policy papers, and in two Supreme Court cases heard last week, raises considerable concerns about the research's impact on the civil rights and liberties of young offenders.
We should question how hard this 'hard' science about the brain works to fight the use of adult-level penalties against young people. Reformers' reliance on this research raises some troubling questions about the drift of reform strategies in the juvenile justice system towards natural science at the cost of engagement with social science, which demonstrates that young people charged with crimes often suffer from a variety of socio-structural disadvantages that may play a role in their entry into the juvenile justice system. This research also shows that young people's pathways out of punishment rely on the development of social capital -- relationships, networks, and opportunities -- as much as they do on the development of their human capacities.
This brain research may convince the public that development is a fixed, undisputed path toward rational thought, thus further marginalizing those children who stray from the path of 'normal' development. Knowledge about developmental stages is in fact highly contested, as educationalists will attest. Our preoccupation with developmental stages implies that children are in the process of becoming, rather than being individuals with valid moral and ethical claims to stake in the process of their punishment.
Secondly, advocates' uses of brain research, and their reliance on 'hard' science, raise some potentially troubling questions about the potential impact of this science on ideas about human potential. Nikolas Rose of the BIOS Research Centre for the study of Bioscience, Biomedicine, Biotechnology and Society at the London School of Economics argues that the brain has become the repository of what was once left to the psyche. He suggests that new technologies which draw from brain research, and in particular those that seek out abnormalities in the human brain, raise important questions about how notions of identity and human potential might be altered by this research. He and his colleague Ilina Singh argue that new ideas about risk or susceptibility (to psychiatric disorders, for example) that emerge through the study of the brain could potentially be used in stigmatizing or coercive ways. Legal thinkers have raised related civil liberties concerns about the uses of neuroscience in legal proceedings.
This research may also push us toward the notion that once a child has reached adulthood, his or her opportunity for change may be eclipsed. To use the language of the majority opinion of the Supreme Court in Roper v. Simmons, adults who commit crimes may soon be seen to have entered the realm of the "irretrievably depraved." If children 'deserve' less punitive sanctions, then should we assume that adults 'deserve' more serious ones?
This research may lead to a more deeply paternalistic approach in the treatment of young people in a legal system that is already rooted in -- and arguably limited by -- the idea of children in need of protection and governmental intervention. We need to engage more critically with the stories we have about young people in the criminal justice system that are rooted in their experiences as individuals and as members of a social and political community, and which begin to convey some of the consequences of punishment on their abilities to flourish as human beings and to express their dignity. As the Australian scholar Judith Bessant argues, the brain scan is an inadequate substitute for the more holistic, empirically grounded knowledge we have of young people in the criminal justice system.
The Supreme Court will decide next year about whether they will allow the use of life without parole for juvenile offenders. Though these cases cover relatively narrow issues, this is an opportune time to start raising more serious questions about meaningfully fighting the extraordinary levels of punitiveness toward young people and adults that should be a source of shame for our nation