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The impact of developmental neuroscience on law and its limitations

fault as it would otherwise be, and the quantum of appropriate punishment is less.281

But why should such a reduced culpability not be applied to an adult offender displaying similar deficits in brain maturation to an adolescent? This can be related to a time factor. The evaluation of what is right and wrong – morally, emotionally, and legally – develops as the young person grows older, experiences different social and emotional situations, communicates with others, and is educated by other individuals. An adolescent’s understanding of harm is not yet fully adequate. This understanding grows through the influence of external factors as the young person gets older. Von Hirsch and Ashworth call this a developmental process.282 Adolescents have not had the same opportunity to internalize the values of society in the same way as adults have – simply because they have had less time in which to do so. In other words, society has different normative expectations of adolescents from those it has of adults. Law has to reflect what can reasonably be demanded of an adolescent by recognizing their lack of cognitive and volitional maturity.

2.4. The impact of developmental neuroscience on law

of brain maturation cannot be accelerated, such approaches cannot influence a young offender in a positive way. The remaining options would be either incarceration or no response at all; the young offender’s brain will mature and he or she will learn from experience and develop in the right direction come what may.

But one should not make the mistake of taking developmental neuroscience to be more important than the behavioural sciences. Maroney cautions against the false notion that teens’ propensity to offend is “hard-wired”, a view that not only makes societal reform seem pointless but, by implying the impossibility of deterrence, could support the unnecessary incapacitation of many adolescents until their brains “grow up”.284 Regarding a possible deterrent effect, developmental neuroscience seems not to offer groundbreaking new insights but rather supports older findings from the behavioural sciences. Concerning well-established approaches to juvenile delinquency, Paternoster points to the greater confidence that non-legal factors are more effective in securing compliance than legal threats.285 This is also confirmed by Hill, Lockyer, and Stone, who emphasize that a fair degree of consensus has emerged in the field of juvenile justice about effective intervention. Among the key conclusions are that structured, focused work with individuals and families, often having a cognitive-behavioural component, tends to be most effective.286

Apart from that, developmental neuroscience also has its weaknesses. One is that it is not able to provide individual assessments.287 Neuroscience analyses group trends, which does not reflect the importance that an individual assessment has when it comes to young offenders. Maroney puts this problem as follows:

284 See Terry A. Maroney, “The False Promise Of Adolescent Brain Science In Juvenile Justice,”

(Notre Dame Law Review 2009, Vol.85, No.1: 89–176), 174.

285 See Paternoster (2010), 765

286 See Malcolm Hill, Andrew Lockyer, and Fred Stone, Youth Justice and Child Protection (London: Jessica Kingsley Publishers, 2007), 15. In the same line of thought, see also David P.

Farrington, “Longitudinal and Experimental Research in Criminology,” (Crime and Justice 2013, Vol.42, No.1: 453–527), 502.

287 See Maroney (2009), 146.

Normal brains follow a unique developmental path bounded roughly by the general trajectory; that is, while all humans will pass through the same basic stages of structural maturation at more or less the same stages of life, the precise timing and manner in which they do so will vary. […] Researchers therefore consistently agree that developmental neuroscience cannot at present generate reliable predictions or findings about an individual’s behavioral maturity.288 Another problem is linked to this one. Developmental neuroscience has not been able to establish the detailed connection between brain immaturity and adolescents’ behaviour or the extent to which the latter mirrors the former. This connection is crucial, and it cannot be established by neuroscience alone.

Developmental psychology and sociology play an irreplaceable role. This also means that there is no one-sided linear causality from the biological level to the level of social behaviour, for there are numerous feedback functions between environment and biological processes.289 Developmental neuroscience cannot, by itself, explain why some young people become offenders and some do not.

What developmental neuroscience has brought to light are the relative deficiencies which are partly attributable to biological constraints that have an effect on the degree to which a young offender is blameworthy.290 In terms of the hormonal changes mentioned above, we can say that the increase of sexual and other hormones may make a certain behaviour more likely, but it does not cause the behaviour by itself. There are still environmental factors at work.291 There are also considerations concerning legal equality which prohibit relying too heavily on developmental neuroscience. It is well established that girls mature considerably faster than boys, which would imply that there should be different legal consequences depending on gender. But this is prohibited by the constitutional principle of equal treatment. Legal values cannot be outweighed by biological findings. This illustrates the interplay of developmental neuroscience with other disciplines like law, social sciences, etc. Though some behaviour is biologically driven, other brain changes are the consequence of experience. This means there is a way to influence the brain of an adolescent. It has been argued that the brain is malleable, and there is a good deal of evidence

288 Ibid.

289 See Kreissl (2011), 115.

290 See Maroney (2009), 150.

291 See Meier et al., (2011), §105 margin no.11.

that adolescence is a period of especially heightened neuroplasticity.292 Experience may be crucial here, since the brain seems to mature through social learning. Steinberg points out that there is growing evidence that the actual structure of prefrontal regions active in self-control can be influenced by training and practice.293 Note, though, that some laboratory research indicates that individuals are more attentive to risks when they are described verbally rather than experienced as outcomes in a learning task. In other words, risky options are avoided when they are described verbally but are preferred when outcomes are experienced.294

Consequently, developmental neuroscience cannot by itself explain the lesser culpability or the increased sensitivity to sanctions of young offenders. It cannot offer guidance about how to respond to a young person’s offending.

Nevertheless, it can contribute tremendously to our understanding of young offenders. In Steinberg’s words:

The brain science, in and of itself, does not carry the day, but when the results of behavioral science are added to the mix, I think it tips the balance toward viewing adolescent impulsivity, short-sightedness, and susceptibility to peer pressure as developmentally normative phenomena that teenagers cannot fully control.295

However, the practical influence of developmental neuroscience in the courtroom may be further limited by the fact that the individual judge has a choice about whether or not to consider it. There is always a way out for the judge because of the scope of discretion; that is, the judge may claim that in a particular case the young offender was mature enough to know what he or she was doing and emotionally developed enough to act accordingly. This means that the knowledge of developmental neuroscience may be valuable on a policy basis, but in the courtroom it might only serve to support the judge’s pre-existing attitude.296

292 Steinberg (2012), 72; this is also the reason why adolescence is a period of vulnerability to many forms of mental illness. See also Corrado and Mathesius (2014), 152.

293 See Steinberg (2012), 73.

294 See Reyna and Farley (2006), 33.

295 Steinberg (2012), 76.

296 Maroney (2009) reached this conclusion after looking into judgments in the US, where developmental neuroscience is far more developed and recognized than in Europe. He says: