Mark R. Fondacaro, J.D., Ph.D. (John Jay College – CUNY) has posted Rethinking the Scientific and Legal Implications of Developmental Differences Research in Juvenile Justice (17 New Crim. L. Rev. 407 (2014)) on SSRN.
Here is the abstract:
A recent string of Supreme Court cases now ensures that fewer juveniles will be subjected to our most extreme punitive sanctions, a sign of forward movement toward evolving standards of decency in our culture and jurisprudence. However, this article will argue that there are potential long-term costs associated with the interpretation of developmental differences research relied upon by the Court, not only to juveniles and adults accused and convicted of serious crimes, but to the credibility of science and the legitimacy of the criminal law. The article draws on cutting-edge scientific research to argue that juveniles should indeed be treated differently than we currently treat adults for criminal offenses. However, the primary reason we should treat them differently is not because they are developmentally immature (which many of them may indeed be), but because our retributive justifications for adult punishment do not and will not stand up to scientific scrutiny and the ongoing, inevitable advances in the behavioral and biological sciences. Adolescent immaturity is just one example of the growing number of diminished capacities taking aim at the legitimacy of retributive justifications for punishment. As philosophical and commonsense explanations for criminal behavior give way to scientific and empirical analyses across biological, psychological, and social levels, the justification for and responses to criminal responsibility will need to shift from retribution and just desert toward more forward-looking, consequentialist approaches with both juveniles and adults.