Amicus Curiae Brief of the Center for Law, Brain, and Behavior in Support of Appellant Evan McCarrick Jerald
Robert Kinscherff
Center for Law, Brain, and Behavior
SummaryOriginal

Summary

Evan McCarrick Jerald, 15-16, sentenced to 208 years for sexual misconduct with minors. Court upholds sentence despite age and developmental stage. Amicus urges reconsideration based on recent science on adolescent development.

2024 | State Juristiction

Amicus Curiae Brief of the Center for Law, Brain, and Behavior in Support of Appellant Evan McCarrick Jerald

Keywords Adolescent development; Neuroscience; Adolescent decison-making; Impulsivity; Future discounting; Peer influence; Risky decision-making; Adolescent brain development; Brain development; Criminal behavior; Self-desistance; Maturation; Evidence-based treatment

Argument

  1. The neuroscience of adolescent development highlights the characteristics of adolescent behavior, decision-making, and significant capacities for change.

    1. Adolescent behavior is characterized by impulsivity and recklessness; discounting future consequences; peer influences; biased risk appraisal and decision-making vulnerable to emotional states; and preferences for novelty and stimulation.

    2. Adolescents demonstrate capacities based in brain and social maturation for remarkable growth and change as they age into young adulthood.

    3. Juveniles who have engaged in criminal behavior ordinarily self-desist with maturation.

  2. Criminological evidence shows that juvenile sex offenders rarely sexually reoffend, and rarely commit sex crimes as they become adults. 

  3. Juvenile sex offenders are very responsive to evidence-based treatment.

SUMMARY OF ARGUMENT: 

Evan McCarrick Jerald is sentenced to a minimum 208 years in prison before parole eligibility following conviction on multiple counts of sexual misconduct with two minors under the age of 15 (life terms as discretionary sentences) and molestation of a minor (presumptive sentences). He was 15 - 16 years old at the time of his offenses but tried as an adult. Arizona law precludes consideration of consecutive sentences in a de facto life sentence analysis when the offender’s conduct was at the core of the criminal misconduct. The Arizona Court of Appeals affirmed that (a) this de facto life sentence cannot be reviewed on the basis of the actual outcome of imposition of individual consecutive sentences, (b) each sentence is not “grossly disproportionate” to the crimes committed, and (c) his trial as an adult was proper under A.R.S. § 13-705 (Dangerous Crimes Against Children) (State v. Jerald, No. 2 CA-CR 2021-0105 (Ariz. Ct. App. Apr. 15, 2024)). The court opined that Jerald’s severe punishment is justified by the impact of his crimes and that it saw “no basis for second guessing” a mitigation analysis by the sentencing court. Jerald will die in prison for his crimes.

Nonetheless, substantial developmental brain and social science support a view that the sentence imposed in this case is excessively “lengthy, flat and consecutive” although not mandatory, and also ”grossly disproportionate” given his age and developmental stage at the time of his offenses, minimal likelihood of sexual recidivism, and the responsiveness of sexually abusive youth to evidence-based interventions.   

Robust brain and social sciences show that juveniles are neurologically and socially distinct from adults yet uniquely capable of positive growth, and so warrant different sentencing considerations. Adolescents (puberty–age 17) and emerging young adults (ages 18–25) demonstrate significant capacities for change through social learning, social maturation, improved decision-making, and increased emotional and behavioral control reflecting profound brain maturation. Maturational changes improve impulse control, risk assessment, planning, and self-regulation—capabilities most relevant to criminal acts. Our youthful selves simply neither determine nor predict our adult lives.

The Court of Appeals upheld a sentence confining Mr. Jerald for a minimum 208 years. This sentence is not required to achieve general (especially among juvenile offenders) or specific deterrence, nor community safety by lifelong incapacitation given treatment responsiveness of juvenile sexual offenders.  It abandons rehabilitation. The sole penal justification is punishment, but the onerous sentence imposed is unnecessary to achieve even that goal and therefore grossly disproportionate.  Adolescent sexual recidivism rates are between 2 - 7 percent and these individuals respond extremely well to evidence-based treatment. Jerald’s sex offenses as a teenager - as serious as they are - should not dictate his death in prison.  The legal landscape has shifted due to consistent findings in neuroscience, developmental behavioral sciences, and criminology. The weight of this science has moved courts and legislatures to bar mandatory life without possibility of parole even for juvenile homicides, reconsider discretionary life and de facto life sentences as developmental immaturity itself mitigates culpability, and to focus on the rehabilitation of youth and emerging young adults. This shift is reflected in landmark United States Supreme Court decisions such as Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012). These cases reflect the Supreme Court’s reliance upon science to require sentencing courts to consider the unique mitigating attributes of youth, (e.g., immaturity, impulsivity, recklessness, peer influences, emotionally driven decision-making, remarkable capacities for change with maturation).

Amicus urges the Court to reconsider the reality of Mr. Jerald’s sentence in light of robust science findings in neurodevelopment, developmental psychology and social sciences, and criminology. 

ARGUMENT: 

1. THE NEUROSCIENCE OF ADOLESCENCE HIGHLIGHTS BOTH VULNERABILITIES AND A SIGNIFICANT CAPACITY FOR CHANGE.

A. Adolescent Vulnerabilities Reflect Brain and Social Development

The paradigmatic teenager is well-described in brain and developmental sciences as more impulsive and reckless, novelty and sensation-seeking, over-focused on immediate rewards to their own future detriment, less capable of assessing risks or applying risk judgments to their own situations, more sensitive to peer influences, and more susceptible to emotional turmoil. However, adolescents also exhibit remarkable capacities for positive growth and change as they mature into young adulthood. even if they have engaged in persistent or dangerous misconduct. Risky and impulsive behaviors based in still-developing neural pathways peak in adolescence but diminish through young adulthood with maturation of the frontal cortex.

Adolescents also tend to discount future positive or negative consequences in favor of short-term gains (“temporal discounting”). Those aged 12–20 exhibit diminished capacities to weigh the likely long-term outcomes of their actions that obstruct the ability to reliably assess risk and make good decisions (particularly when applying those appraisals to themselves). This amplified sensitivity to rewards that biases risk appraisal and decision-making makes them vulnerable to reckless behavior. These features attenuate with maturation as accelerated prefrontal cortex development improves impulse control, planning, and anticipation of likely outcomes.

B. Adolescents Demonstrate Capacities for Positive Growth As They Mature.

For nearly all adolescents, the aforementioned traits recede with maturation into early adulthood. This reflects the brain’s mutability and reorganization as teens mature. Connections between the striatum and prefrontal cortex are strengthened in late adolescence—reducing impulsivity while improving risk-appraisal and decision-making towards short- and long-term goals.  This improves capacities to control emotions, consider the consequences of actions, and plan for the future.

Personality traits contributing to misconduct also change with maturation. Negative emotions and emotional instability decrease while agreeableness, conscientiousness, and openness to new experiences increases. Even youth with callous-unemotional youth traits earlier labeled as “psychopathic” show positive personality changes as they age.  

C. Youth Who Engaged in Criminal Conduct Routinely Self-Desist With Age.   Adolescents tend to make better decisions and adopt positive adult roles as they mature. Even most youth who are chronically engaged in violent and/or sexual misconduct tend to self-desist from crime as they mature - regardless of whether or not they have been punished through justice systems for those behaviors. One consistent finding in criminology is the “age-crime curve” — misconduct sharply increases with the onset of puberty but then sharply decreases in early adulthood. Both violent and property crime markedly decrease upon entering the early 20’s, tracking closely the interplay of brain and social development.  2. NEARLY ALL JUVENILE SEX OFFENDERS SELF-DESIST FROM SEX CRIMES AND/OR RESPOND TO EVIDENCE-BASED TREATMENT Very few juveniles who commit sex offenses sexually reoffend. Caldwell’s (2016) meta-analysis examined 106 studies of adolescent sex offender recidivism from 2000 to 2015 and found a sexual recidivism rate of 2.75 percent, substantially lower than adults with sexual recidivism rates of 24%. Adolescents tend to have less fixed sexual behaviors, interests, and arousal patterns. They are more amenable to change than adults and very few commit new sex offenses after detection.  As with most other adolescent offenders, juvenile sexual offenders self-desist with maturation and are also amenable to evidence-based interventions. Indeed, (1) adolescents with abusive sexual behavior are remarkably responsive to treatment services, and (2) evidence-based treatment models are highly effective at reducing sexually abusive behavior among youth. Adolescent treatment programs for sexual misbehavior typically yield dramatic reductions in sexual offense behavior.

CONCLUSION

Amici ask that the court consider the reality of Mr. Jerald’s de facto life sentence in light of extensive developmental social and neuroscience. Mr. Jerald was a juvenile at the time of his sexual offenses. This may first seem a negative prognostic factor reoffense risk. However, robust research demonstrates that nearly all juvenile sex offenders desist upon detection and as they mature and that their sexual misconduct is ordinarily extremely responsive to evidence-based intervention. Consideration of his developmental immaturity, youthful capacities for rehabilitation, and likelihood of responsiveness to intervention are warranted to avoid the “gross disproportionality” of a sentence that is —in reality—a sentence of life without hope of eventual consideration for parole.

Open Amicus Brief as PDF

Summary

This document argues that Evan McCarrick Jerald's sentence of 208 years in prison, with no chance of parole, is grossly disproportionate and unjust, particularly considering his age at the time of the offenses and the robust body of scientific evidence regarding adolescent development.

Argument

1. THE NEUROSCIENCE OF ADOLESCENCE HIGHLIGHTS BOTH VULNERABILITIES AND A SIGNIFICANT CAPACITY FOR CHANGE.

A. Adolescent Vulnerabilities Reflect Brain and Social Development

Neuroscientific research consistently illustrates the unique developmental stage of adolescence, characterized by heightened impulsivity, risk-taking behaviors, and a heightened sensitivity to peer influence. These behaviors stem from the ongoing maturation of the prefrontal cortex, the brain region responsible for executive functions, planning, and risk assessment. This developmental stage often leads to a discounting of future consequences in favor of immediate gratification, making adolescents more vulnerable to engaging in risky behaviors, including criminal activity.

B. Adolescents Demonstrate Capacities for Positive Growth As They Mature.

Despite the inherent vulnerabilities, adolescents exhibit remarkable potential for positive growth and change as they mature. Brain development continues throughout adolescence, with the prefrontal cortex continuing to mature, leading to improvements in emotional regulation, impulse control, and decision-making capabilities. This neurological maturation coincides with significant social development, often resulting in a reduction of risk-taking behavior and an increased capacity for responsible decision-making.

**C. Youth Who Engaged in Criminal Conduct Routinely Self-Desist With Age.   **

Criminological evidence supports the notion that adolescents who engage in criminal behavior often self-desist as they mature into adulthood. The "age-crime curve" phenomenon illustrates the tendency for criminal activity to peak in adolescence and decline sharply in early adulthood, reflecting the interplay of brain maturation and social development.

2. NEARLY ALL JUVENILE SEX OFFENDERS SELF-DESIST FROM SEX CRIMES AND/OR RESPOND TO EVIDENCE-BASED TREATMENT

Meta-analyses of recidivism rates for juvenile sex offenders demonstrate that the majority do not reoffend, with a sexual recidivism rate significantly lower than that observed in adult offenders. This can be attributed to the fact that adolescents generally exhibit less fixed sexual behaviors and arousal patterns, making them more receptive to change and intervention. Moreover, juvenile sex offenders often respond remarkably well to evidence-based treatment programs, which have demonstrated significant effectiveness in reducing sexually abusive behaviors.

CONCLUSION

The authors argue that the court should reconsider Evan McCarrick Jerald's life sentence in light of the extensive scientific evidence regarding adolescent development. Given the high likelihood of self-desistance and responsiveness to treatment among juvenile sex offenders, the imposed sentence appears grossly disproportionate and fails to consider the substantial mitigating factors of Mr. Jerald's age and developmental stage at the time of the offenses. This sentence, in effect, removes the possibility of rehabilitation and future positive development, contradicting the vast body of scientific evidence regarding the potential for growth and change among adolescents.

Open Amicus Brief as PDF

Summary

The case of Evan McCarrick Jerald presents a situation where a juvenile, sentenced as an adult, faces a de facto life sentence for multiple counts of sexual misconduct. While the court upheld the sentence based on the severity of the crimes, this essay argues that such a lengthy sentence is grossly disproportionate considering the offender's age and developmental stage at the time of the offenses, the low likelihood of sexual recidivism among juveniles, and the responsiveness of sexually abusive youth to evidence-based interventions.

1. THE NEUROSCIENCE OF ADOLESCENCE HIGHLIGHTS BOTH VULNERABILITIES AND A SIGNIFICANT CAPACITY FOR CHANGE.

A. Adolescent Vulnerabilities Reflect Brain and Social Development

The adolescent brain undergoes significant development, making them more impulsive and reckless, driven by immediate rewards with a disregard for future consequences. Their risk assessment abilities are underdeveloped, and they are more susceptible to peer influence and emotional turmoil. These vulnerabilities stem from the incomplete maturation of the prefrontal cortex, responsible for higher-level cognitive functions like planning and impulse control.

B. Adolescents Demonstrate Capacities for Positive Growth As They Mature.

Despite their vulnerabilities, adolescents exhibit remarkable capacities for positive growth as they mature into young adulthood. The prefrontal cortex continues to develop, improving impulse control, risk assessment, and decision-making capabilities. Simultaneously, personality traits associated with risky behavior often change, with increases in agreeableness, conscientiousness, and openness to new experiences.

C. Youth Who Engaged in Criminal Conduct Routinely Self-Desist With Age.

The "age-crime curve" demonstrates that criminal behavior sharply increases with the onset of puberty but significantly declines in early adulthood. This decline is attributed to the ongoing brain maturation and social development that occur during this period.

2. NEARLY ALL JUVENILE SEX OFFENDERS SELF-DESIST FROM SEX CRIMES AND/OR RESPOND TO EVIDENCE-BASED TREATMENT

Juvenile sex offenders exhibit significantly lower recidivism rates compared to adults. This is largely attributed to their less fixed sexual behaviors and interests, making them more receptive to change. Treatment programs designed specifically for adolescents with sexually abusive behavior have proven highly effective in reducing such behavior.

Conclusion

The author argues that the de facto life sentence imposed on Mr. Jerald is grossly disproportionate given the substantial research demonstrating the unique developmental characteristics of juveniles, their low recidivism rates, and their responsiveness to treatment. This perspective highlights the need for a more nuanced approach to sentencing that considers the developmental stage of the offender and the potential for rehabilitation.

Open Amicus Brief as PDF

Summary

Evan McCarrick Jerald was sentenced to a minimum of 208 years in prison before parole eligibility for multiple counts of sexual misconduct with minors. He was 15-16 years old at the time of his offenses but was tried as an adult. The Arizona Court of Appeals upheld the sentence, stating that it was not grossly disproportionate to the crimes committed and that his trial as an adult was proper. This case raises questions about the sentencing of juveniles who commit serious crimes, especially in light of recent scientific findings about adolescent brain development and behavior.

Argument

1. The Neuroscience of Adolescence Highlights Both Vulnerabilities and a Significant Capacity for Change.

A. Adolescent Vulnerabilities Reflect Brain and Social Development

Adolescence is a time of significant brain development, and this can impact behavior. Adolescents are more impulsive and reckless than adults, often seeking novelty and sensation. They are also more likely to focus on immediate rewards, even if it means ignoring potential long-term consequences. They have a harder time assessing risks and are more sensitive to peer influences. This combination of factors can make them vulnerable to risky and impulsive behaviors.

B. Adolescents Demonstrate Capacities for Positive Growth As They Mature.

While teenagers often exhibit risky behaviors, they also have a remarkable capacity for change. As their brains mature, their ability to control impulses, plan for the future, and assess risk improves. They become less impulsive and reckless and more capable of making responsible decisions.

**C. Youth Who Engaged in Criminal Conduct Routinely Self-Desist With Age.   **

Most adolescents who engage in criminal behavior will eventually stop as they mature. This is because their brains continue to develop, making them less prone to impulsive and risky behaviors.

2. Nearly All Juvenile Sex Offenders Self-Desist From Sex Crimes and/or Respond to Evidence-Based Treatment

Juvenile sex offenders are very unlikely to reoffend. Research shows that they are more responsive to treatment than adults and that they typically desist from committing sex crimes as they mature.

Conclusion

Mr. Jerald’s sentence of 208 years in prison is essentially a life sentence. The argument is that this sentence is grossly disproportionate to his crimes, considering his age at the time of the offenses and the likelihood that he will not reoffend. Science shows that adolescents, while vulnerable to risky behaviors, are also capable of significant change as they mature.

Open Amicus Brief as PDF

Summary

Evan McCarrick Jerald was sentenced to at least 208 years in prison before he could be considered for parole. He was 15-16 years old when he committed the crimes, but he was tried as an adult. Jerald will die in prison for his crimes.

Argument

1. The Neuroscience of Adolescence Highlights Both Vulnerabilities and a Significant Capacity for Change.

A. Adolescent Vulnerabilities Reflect Brain and Social Development

Teenagers are often described as more impulsive and reckless, thrill-seeking, and focused on short-term rewards. They are also more sensitive to peer influence and emotions. These behaviors stem from a still-developing brain. However, teenagers also have a great capacity for growth and change as they mature into adults.

B. Adolescents Demonstrate Capacities for Positive Growth As They Mature.

As teenagers grow, they tend to become more responsible and make better decisions. This is because their brains continue to develop and change. They are able to control their impulses and make decisions based on long-term consequences.

**C. Youth Who Engaged in Criminal Conduct Routinely Self-Desist With Age.   **

Most teenagers who commit crimes, even violent or sexual crimes, stop committing crimes as they grow up. This is because they become more responsible and mature.

2. NEARLY ALL JUVENILE SEX OFFENDERS SELF-DESIST FROM SEX CRIMES AND/OR RESPOND TO EVIDENCE-BASED TREATMENT

Very few teenagers who commit sex crimes commit more crimes later in life. Most teenagers who commit sex crimes respond well to treatment programs. These programs help teenagers learn to control their behaviors and make better decisions.

CONCLUSION

Jerald's sentence is very long. Science shows that teenagers are still developing and that they have a great capacity for change. The science also shows that teenagers who commit crimes are very responsive to treatment. Therefore, Jerald's sentence should be reconsidered.

Open Amicus Brief as PDF

Footnotes and Citation

Cite

Brief for CLBB as Amicus Curiae, State of Arizona v. Jerald, 548 P.3d 1110 (Ariz.App. Div. 2 2024)

    Highlights