Justice for Emerging Adults after Jones: the Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older
FRANCIS X. SHEN
FENELLA MCLUSKIE
ERIN SHORTELL
MARIAH BELLAMOROSO
ELIZABETH ESCALANTE
SummaryOriginal

Summary

Supreme Court sets 18 as sentencing boundary, but brain science suggests extending protection to early 20s. Despite some state courts' interest, Eighth Amendment arguments for older juveniles face challenges.

Justice for Emerging Adults after Jones: the Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older

Keywords Juvenile justice; Young adults; Teenagers; Courts

Abstract

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

INTRODUCTION

emerging. Adj. starting to exist, grow, or become known1 

In 1999, five youths—ranging from ages 15 to 19—participated in the carjacking, kidnapping, and murder of two youth pastors in Texas.2 All five were convicted of homicide,3 but at sentencing, their paths diverged.4 

Brandon Bernard (age 18 at the time of the offense) and Christopher  Vialva (age 19 at the time of the offense) were both sentenced to death.5 Vialva was executed on September 24, 2020,6 and despite a high-profile  clemency campaign, Bernard was executed on December 10, 2020.7 Tony  Sparks (age 16 at the time of the offense) was initially sentenced to life  without the possibility of parole (LWOP), but in the wake of the Supreme  Court’s 2012 ruling in Miller v. Alabama,8 his sentence was reduced to  thirty-five years.9 Christopher Lewis (age 15 at the time of the offense) and  Terry Brown (age 17 at the time of the offense) were both sentenced to  twenty years and four months’ imprisonment.10 Brown was released in January 2020, mere months before Bernard, his childhood best friend, was  executed.11 On the day Bernard was executed, Brown hugged his mother,  prayed for the murder victims, and cried.12 

The differing paths of these five youth illustrate a bright line currently  drawn by the United States criminal legal system: youths who commit a  crime when they are 17 years, 364 days, 23 hours, 59 minutes, and 59  seconds old cannot be put to death or receive mandatory life without parole.13 

One second later, these constitutional protections disappear.  This line was drawn in part based on scientific research on the behaviors  and brains of adolescents, which was included in various briefs and cited by  the United States Supreme Court in a series of cases in which the Court ruled  that the Eighth Amendment prohibits the death penalty for those under age  18 at the time of their capital offense;14 prohibits life without the possibility  of parole for non-homicide offenders under age 18 at the time of the  offense;15 and prohibits mandatory LWOP for those under age 18 at the time  of their offense, even for homicide offenses.16 These cases “establish that children are constitutionally different from adults,”17 specifically for  mandatory LWOP sentences. The Court’s recent decision in Jones v.  Mississippi18 retained the Court’s previous determination that “children are  constitutionally different from adults for sentencing purposes,”19 but held  that, in a sentencing proceeding to determine whether the defendant should  get life with parole, Miller and Montgomery v. Louisiana20 do not  specifically require a “separate factual finding of permanent  incorrigibility.”21 

The question now arises: In light of a recent growing evidence base  in developmental neuroscience about the still-maturing brains of emerging  adults, should youth ages 18 to early 20s receive the same constitutional  protections as those under the age of 18? While the law retains a bright line  at age 18, before which mandatory LWOP may not be imposed, recent  developments in neuroscience increasingly show that brain circuitry relevant  to decision-making and culpability continues to develop in significant ways  through an individual’s early 20s.22 This science has been persuasive to some  legal actors. For example, in the Brandon Bernard case discussed above, one  of the prosecutors on his case later publicly supported Bernard’s appeals for  a stay of execution, noting recent advancements in developmental science  suggesting that there are no meaningful distinctions between the brains of  17- and 18-year-olds.23 

In this Essay, we provide the first examination of cases in which  neuroscience is being deployed to argue that the death penalty and  mandatory LWOP should be constitutionally prohibited for emerging adults.  We focus here on the use of neuroscience to argue for the categorical  application of Miller to cases involving emerging adults, not necessarily the  use of neuroscience for mitigation or other purposes in individual cases. As  we discuss later, using brain evidence for extending the adolescent category  in juvenile courts, LWOP, and prison conditions is not the same as using  brain evidence in an individual case. 

Our analysis finds that litigants regularly argue that drawing the line at  age 18 is inconsistent with current neuroscientific consensus.24 It is clear,  however, that courts are presently unreceptive to raising the age for Miller  protections. In our database, the record for Eighth Amendment challenges is  0 wins and 494 losses.25 One temporary win, in federal district court, was  subsequently vacated and remanded at the appellate level.26 A second win,  in the Illinois Supreme Court, was made on the basis of a state constitutional  provision rather than the Eighth Amendment.27 

Courts are rejecting attempts to extend Miller both on the basis of stare  decisis and because of a perceived lack of legal relevance of advances in  neuroscientific knowledge about the emerging adult brain.28 Courts  consistently point out that because the Supreme Court’s constitutional line  drawing at age 18 was based in large part on societal norms reflected in  legislative determinations defining juvenile and adult criminal jurisdiction,  rather than exclusively on the neuroscientific understanding of the  developing brain, new arguments premised on neuroscience are  unpersuasive.29 While the Supreme Court’s recent verdict in Jones would  seem to signal that it is unlikely the Court would expand protections for  youths 18 and older, developments at the state level suggest that challenges  based on state constitutional provisions may be more successful.30 We  discuss the implications of these trends for the future use of neuroscientific  evidence in litigation concerning the constitutionality of the death penalty  and LWOP for emerging adults. 

The Essay proceeds as follows. Part I briefly reviews scholarly  literature scrutinizing age 18 as the boundary line for constitutional  protections. Part II introduces the methods we used to identify and analyze  cases that utilize neuroscience evidence to try to extend Miller and illustrates  general trends and notable exceptions in courts’ responses to this evidence.  Part III discusses the implications of these results for the future use of  neuroscience evidence in law and policy concerning the sentencing of  emerging adults. 

I. LINE DRAWING AT AGE 18: CONSENSUS AND CONFLICT 

Current neuroscientific consensus is that age 18 is not a magic number  in the development of legally-relevant brain circuitry.31 Cross-national  behavioral evidence suggests sensation-seeking behavior peaks around age  19, with self-regulation developing through the mid-20s.32 However, the  concept of brain maturity remains “fuzzy,” and “there is little agreement  among scientists on what properties of a brain should be evaluated when  judging whether a brain is mature.”33 

In Roper v. Simmons, Justice Kennedy recognized this fundamental  tension: “[t]he qualities that distinguish juveniles from adults do not  disappear when an individual turns 18.”34 Just as “any parent knows” that  16-year-olds are not as mature as adults, parents also know that their child’s  18th birthday does not mark the end of development.35 This understanding is  

not limited to parents. Car rental companies and insurers, for instance, charge  significantly higher rental prices for rental drivers under age 25.36 As one  scholar observed, “[p]arents, neuroscientists, and car rental companies  appear to be on the same track here; it is the criminal justice system that is  out of sync.”37 While there is a general agreement that drawing a bright line at age 18  needs to be reexamined, it is less clear what a viable path forward looks like  in the context of criminal sentencing. The primary, and not necessarily  mutually exclusive, recommendations are: (1) to extend constitutional  protections already afforded to juveniles (application of LWOP) to  encompass young adults at least to age 21 and perhaps to age 25; (2) to raise  the age limit for juvenile courts; (3) to create specialized young adult courts  and diversion programs; and (4) to treat young adults differently within  existing systems.38 

In this Essay, we focus on the first possibility: extending constitutional  protections for LWOP and the death penalty to those older than age 18.  

II. ANALYZING NEUROSCIENCE-INFORMED MILLER CHALLENGES

The Supreme Court decided Miller on June 25, 2012.39 As of this writing, over 5,000 court decisions have cited Miller.40 This Essay examines  a subset of these cases in which litigants use neuroscientific evidence to  argue that Miller’s holding should be extended to those age 18 and older.41 From an initial finding of 5,384 cases, we established a database of 494 cases  that substantively discuss neuroscience and involve defendants aged 18 or  older at the time of their offense.42 Using a sixteen-case convenience sub sample from this database, we then more deeply investigated how the most  recent litigants are employing neuroscience.43 

Our analysis indicates that federal courts have refused to extend Miller to defendants age 18 and above. Despite litigants’ regular use of  neuroscientific arguments, none of the 494 petitions identified in our  database were ultimately successful.44 In this Part, we analyze (A) trends  over time and across geography, (B) differences in the age of the defendant  at the time of the offense, (C) the specific neuroscientific evidence proffered  by litigants, and (D) our core concern: how courts respond to these  arguments that include an introduction of neuroscientific evidence.  

A. Distribution of Cases Across Time and Geography 

1. Time Distribution 

Between 2013 and 2016, courts considered in each year an average of  thirty cases attempting to extend Miller to defendants age 18 and older.45 In  January 2016, the Supreme Court ruled that Miller applied retroactively,  which opened the doors for additional litigants.46 The number of annual cases  in our database tripled after 2016, and although our database ends in 2020, it  appears that cases continued to be plentiful in 2021.47 The appellate process may delay this timeline. In many states, lower level court cases are not published on Westlaw, the source of our data. Lower  court cases in these states would not appear in our database unless and until  they were appealed. For example, a petition filed in a Pennsylvania county court in March 2016 did not appear in our database until a verdict was  reached on appeal in October 2017. More broadly, increases in the number  of petitions may not be reflected in our data until several months or even  years later. 

Screenshot 2024-06-02 at 4.11.20 PM

2. Geographical Distribution 

Nearly half (47%) of the cases considered are from Pennsylvania. The  principal reason for this trend is that, as noted in oral argument in Miller,  Pennsylvania historically had been one of the states with the largest numbers  “of juveniles serving life without parole by a huge margin.”48 The higher  number of cases from Pennsylvania may also be a result of the state’s  sentencing procedures. Pennsylvania requires defendants to file a Post Conviction Relief Act (PCRA) petition.49 Allowing defendants to act on their  own initiative provides a standard procedure for defendants aged 18 and  older to argue that Miller should apply in their circumstance, likely  increasing the number of petitions filed.  

The substantial number of cases from Pennsylvania may also be related  to a growing movement towards youth criminal justice reform within the  state.50 After Montgomery, the Philadelphia District Attorney’s Office established a specialized “Lifer Committee,” to make concerted resentencing  efforts in the state.51 As of December 2019, Pennsylvania had resentenced  more juvenile LWOPs than any other state.52 A growing coalition of engaged  legal actors—including the Juvenile Law Center, Pennsylvania Innocence  Project, federal defenders’ offices in Philadelphia and Pittsburgh, advocates  in the Philadelphia defender’s office, an array of anti-death penalty  advocates, and the recently founded abolitionist Amistad Law Project—have  further produced, as described by attorney Marsha Levick, an “energy  point[ing] to a robust interest in reducing incarceration and extreme  sentencing” in Pennsylvania.53 The Pennsylvania outlier cases are an  important reminder that although we discuss national trends in this Essay,  state-specific developments will vary. 

B. Age of Defendant at Time of Offense 

The majority of cases in our database involve defendants who were ages 18 or 19 at the time of their offenses. The number of cases drops off approaching age 25, with some outliers (Figure 2).54

Screenshot 2024-06-02 at 4.12.59 PM

C. How Litigants Use Neuroscience 

In general, petitioners used neuroscientific evidence to bolster the  assertion that Miller should be extended to cover petitioners aged 18 to mid 20s because the brain continues to develop in critical ways through the mid 20s.55 However, the specific neuroscience evidence cited in these cases varied widely. In the sixteen-case subset for which we examined case briefs, we identified 108 unique scientific citations. These citations all generally  concerned the developing brain, but some were publications in law, others  in science, and still others were commentaries. Only 6 of these 108  publications were cited in 4 or more cases.56 The most commonly cited  source of neuroscientific evidence was a Fordham Law Review article57 that analyzes neuroscientific and psychological research on young adults and  concludes that the period between adolescence and adulthood “can be  understood as a transitional stage” different from both adolescence and  adulthood.58 Petitioners cited evidence from the article suggesting that the  brain continues developing from age 18 through the mid-20s and that the  brains of individuals in this age group typically share important similarities with the adolescent brain.  

For example, one petitioner submitted an amicus brief that cited the  Fordham Law Review article to argue that “eighteen year olds [sic] ‘are not fully mature adults’ but rather are more like adolescents under the age of  eighteen in three essential ways”: their propensity for risk-taking, their susceptibility to peer pressure, and their prospects for rehabilitation.59 Other petitioners cited a variety of sources, from scientific journal articles to news  articles, to form roughly the same general argument: The young adult brain shares similarities with the adolescent brain that require the extension of  Miller protections to those above 18 years old.60 

Follow-up interviews with attorneys and legal clinical supervisors who  have regularly utilized neuroscientific evidence in this type of litigation suggest that there is currently no centralized resource through which to  access a consolidated list of relevant and up-to-date scientific citations.61 Moreover, the sources referenced vary in terms of comprehensiveness,  timeliness, and scientific rigor. 

D. Court Responses to Neuroscientific Evidence 

We relied on the full database of 494 cases to analyze court responses  to claims that Miller should be expanded to include young adults.62 In all of  these cases, the courts rejected the petitioners’ arguments that Miller should  be extended on the merits. Most courts simply stated that Miller only applied  to LWOP for those below 18 years old, so the case did not govern the  sentencing of anyone 18 or older.63 

A few courts offered additional justification for their refusal to extend  Miller. For example, in Zebroski v. State,64 the court refused to extend Miller  despite the petitioner’s neuroscientific evidence for two reasons. First, the  Supreme Court in Roper decided to draw a line at 18 despite acknowledging that the brain does not finish developing at exactly 18 years of age.65 Second,  the Supreme Court did not base its decisions in Roper, Graham, and Miller purely on “the most advanced” neuroscience available: “The choice of age  18 was not . . . an attempt to identify . . . the developmental boundary  between childhood and adulthood. It was based on societal markers of  adulthood—the age at which the states allow individuals to ‘vot[e], serv[e]  on juries, [and] marry[] without parental consent.’”66 Because the Supreme Court’s line drawing at age 18 had been grounded at least partially on  societal norms, courts found new arguments premised exclusively on neuroscience largely unpersuasive. 

Courts sometimes ruled against petitioners for reasons not directly  related to the strength of their arguments to extend Miller, such as lack of  timeliness.67 Other judges made institutional competence arguments, concluding that while courts were bound by precedent, legislatures should  consider whether to reform the law based on neuroscientific evidence about the young adult brain.68 

A few courts left open the possibility that Miller might apply beyond  the defendant’s 18th birthday, but still refused to grant such relief. One court  agreed with a petitioner that “the legal definition of ‘youth’ is expanding,” and therefore it would seem a “short step” to extend Miller’s protections to  18-year-olds.69 It nevertheless declined to take the “greater leap” of applying  Miller’s protections to a defendant who was 23 years old at the time of his  offense and whom the court did not believe actually exhibited the youthful  qualities identified in Miller.70 

The most notable exception to the general trend occurred in Cruz v.  United States,71 a Connecticut district court case concerning the application  of Miller to 18-year-olds.72 The court noted the consistency of the Supreme  Court’s restriction of Miller to those under 18, but asserted that no precedent  barred it from extending Miller to those 18 and older.73 The court then  accepted the petitioner’s argument that both national and neuroscientific  consensus supported Miller’s extension to defendants 18 years old at the time  of their crimes.74 

As for evidence of national consensus, the district court weighed  legislative enactments regarding the sentencing of young adults,75 actual  sentencing practices,76 and general trends of where society draws the line  between child and adult.77 With respect to scientific consensus, the district  court based its decision heavily on the expert testimony of Dr. Laurence  Steinberg, though it also considered various scientific articles submitted by the petitioner and his expert witness.78 Ultimately, “relying on both the  scientific evidence and the societal evidence of national consensus,” the  district court concluded “that the hallmark characteristics of juveniles that  make them less culpable also apply to 18-year-olds. . . . The court therefore  holds that Miller applies to 18-year-olds . . . .”79 In a telling, and not  unexpected, development, Cruz was subsequently overturned on appeal.80 

The Illinois state constitution’s proportionate penalties clause also  provided an alternative path for petitioners to succeed in raising a Miller  challenge. In the companion cases of People v. Johnson81 and People v.  Ruiz,82 which concerned group crimes committed by defendants of varying  ages, an Illinois state court allowed the defendants (aged 18 and 19 at the  times of the crimes) to file successive post-conviction petitions on these  grounds (petitions which would otherwise be barred):  

[Petitioners] have made prima facie showings in their pleadings that  evolving understandings of the brain psychology of adolescents require  Miller to apply to them. Their petitions and their counsel on appeal urge  that we account for the emerging consensus that the development of the  young brain continues well beyond 18 years, the arbitrarily demarcated  admittance to adulthood for those arrested and entering our criminal law  system.83 

Aside from these state court cases that dealt with procedural issues and  the ultimately overturned temporary win in Connecticut federal district  court, none of the petitions we evaluated were successful in convincing  courts to extend Miller protections to young adults 18 and above.  

III. DISCUSSION: THE PATH FORWARD 

Despite litigants’ regular use of neuroscientific evidence about the  emerging adult brain, federal courts are not yet persuaded that Miller should  be extended to defendants age 18 to early 20s. We do not conclude, however,  that ongoing litigation efforts are in vain.  

First, we are focused in this Essay exclusively on the use of  neuroscientific evidence to support Eighth Amendment (and state  constitutional) arguments concerning emerging adults ages 18 through early  20s as a class. But neuroscience also has a role to play in the arguments that  individual young adults make in challenging their lengthy sentences.  Translating group-averaged scientific data to individualized adjudication is a well-known challenge in the law.84 In the context of juvenile sentencing  since Miller, forensic experts Thomas Grisso and Antoinette Kavanaugh  have proposed an individualized approach,85 but courts have offered little  “guidance regarding application of the Miller factors or other developmental  evidence to examine mitigation in individual cases.”86 Emerging adult cases suggest that further work is needed to develop evidentiary records that are  sufficiently individualized.  

For instance, in October 2021, the Illinois Supreme Court considered  the case of Antonio House, who was sentenced to life as a 19-year-old for  his involvement as a lookout in a 1993 double homicide.87 House argued that  he was entitled to a resentencing hearing because his mandatory life sentence  violated the proportionate penalties clause of the Illinois Constitution as  applied to him.88 In remanding the case back to the circuit court to further  develop the record, the Illinois Supreme Court found that House failed to: 

[P]rovide or cite any evidence relating to how the evolving science on  juvenile maturity and brain development applies to his specific facts and  circumstances. As a result, no evidentiary hearing was held, and the trial  court made no factual findings critical to determining whether the science  concerning juvenile maturity and brain development applies equally to  young adults, or to petitioner specifically, as he argued in the appellate  court.89 

Similar as-applied challenges will require individualized evidence and  this will in turn require collaboration between the forensic and scientific  research communities. At the Center for Law, Brain & Behavior (CLBB), we foster such collaboration through programs such as the Federal Judicial Center-CLBB Workshop on Science-Informed Decision Making.90 

Second, and returning to class-based bright line challenges, it should be  recognized that high impact litigation often requires many years of  challenges to succeed and that even unsuccessful lawsuits can shift  perception over time.91 Instead, our data indicate the need for more accessible neuroscientific evidence and an increased emphasis on state court litigation  and complementary policy and legislative reform. 

As impact litigation efforts continue, it is clear that there is a need for a  more focused, thorough, and sophisticated application of neuroscientific  evidence. As suggested by our review of briefs in select cases, litigators do  not have access to a “go-to” set of scientific resources. Scientific discussion  in the cases analyzed often failed to tackle nuances such as the challenge of  drawing individual inferences about a particular petitioner from group averaged neuroscientific data.92 In addition, much of the scientific literature  cited in these briefs was published before 2012, which dampens the case that  “new” science (unavailable to the Miller court) justifies raising the age. A  comprehensive review of the relevant scientific literature, summarized in an  accessible manner for lawyers and judges, would be highly useful for the  field. One step in this direction is a recent CLBB Guide,93 but more applied  tools—such as model briefs—are also needed. 

Of course, even with stronger scientific evidence and more precise  arguments, future federal litigation faces steep odds. This is particularly true  after Jones, which signaled the Supreme Court’s current reluctance to reduce  punishment for juveniles despite leaving much of the existing precedent  nominally intact. Given our review of emerging adult Miller cases to date  and the current federal court climate, arguments predicated at least partially  on state constitutional grounds may provide litigants with a more productive  way forward. Groundbreaking recent cases in Washington, Illinois, and  Massachusetts state courts together open up a potential path to navigate the  future landscape of emerging adult justice. These cases may be highly  influential in turning the tide of public perception.  

In 2021 the Washington Supreme Court extended Miller to ban  automatic life without parole sentences for 18- to 20-year-olds under the  state constitution’s bar of “cruel punishment.”94 In a 5-4 decision, the court  granted two petitioners, aged 19 and 20 at the time of their offenses, a new  sentencing hearing, concluding: 

Modern social science, our precedent, and a long history of arbitrary  line drawing have all shown that no clear line exists between childhood  and adulthood . . . . [W]hen it comes to mandatory LWOP  sentences, Miller’s constitutional guarantee of an individualized  sentence—one that considers the mitigating qualities of youth—must  apply to defendants at least as old as these defendants were at the time of  their crimes . . . . . . Just as courts must exercise discretion before sentencing a 17- year-old to die in prison, so must they exercise the same discretion when  sentencing an 18-, 19-, or 20-year-old.95 

Arguments such as these founded on state constitutions may be  particularly effective in situations involving relative culpability for group  offenses. Proportionality in sentencing may mean something different when  two similarly situated defendants receive drastically different sentences for  the same crime exclusively on the basis of their age. States such as Illinois,  as discussed above, have already extended Miller in cases involving multiple  defendants of different ages at the time of a group crime.96 

Similarly, in 2020, the Massachusetts Supreme Judicial Court  acknowledged that neuroscientific advancements necessitated reevaluation  of the policy of sentencing young adults to LWOP,97 and remanded the case  to the lower court for examination of neuroscientific evidence specific to the  defendant.98 As of this writing, Massachusetts is again considering whether  to ban LWOP sentences for defendants aged 18 at the time of their offense.99 

In the case at hand, two youths were convicted of homicide. One of them  was ten days younger than 18 at the time of the offense and will become  eligible for parole after serving a fifteen-year sentence. The other was only  eight months older, but received life without the possibility of parole.100 

Their case may have profound ramifications—both for the upwards of two  hundred people serving LWOP sentences for crimes committed as young  adults in Massachusetts and for litigants and courts across the country  following these developments. 

In addition to litigation in state courts, state legislatures and local courts  are considering (and in some cases implementing) reforms aimed at young  adults. For example, commentators in some states have suggested that young adults should be spared permanent criminal records to “facilitate their access  to education, employment, and housing” after release.101 Legislative reforms  are also underway, such as expanded parole eligibility for those incarcerated  for crimes they committed as young adults. California, for instance, grants  special parole hearings for those who are serving long prison sentences for  qualifying crimes they committed before the age of 26. At these hearings,  the parole board must consider “the diminished culpability of youth” and  provide a meaningful opportunity for the individual to obtain release.102 The  hearings are set at a fixed date during the individual’s incarceration, based  on both the length of the underlying sentence and the defendant’s age at the  time of the offense, and thus may allow for earlier parole eligibility.  

How state and local policies should optimally respond to the unique  needs of emerging adults remains contested, even amongst experts.103 At the  core of the policy challenge is that emerging adults are neither young  children nor fully formed adults.104 It is beyond the scope of this Essay to lay  out a policy prescription for justice-involved emerging adults, and there is a  concern that leaving reform to the states could result in even worse treatment  for emerging adults depending on a legislature’s priorities. In thinking about  potential paths forward, we recommend to readers the policy analyses  conducted by the Emerging Adult Justice Project at Columbia University.105 In particular, the collaborative Emerging Adult Justice Learning Community  provides a promising model for researchers, practitioners, and youth  themselves to co-develop innovative solutions.106 

Some states have modified the structure of their criminal court systems  to better respond to emerging adults. In 2018, Vermont passed legislation  that would extend juvenile courts’ jurisdiction for qualifying crimes through  age 19 by 2022.107 Lawmakers in Connecticut, Massachusetts, New York,  Illinois, and California pushed to do the same.108 Such efforts have  successfully raised juvenile jurisdiction through age 18 in New York, as well  as in Michigan.109 A Department of Justice research committee has  recommended raising the minimum age of criminal court jurisdiction to age  21 or age 24.110 Relatedly, some have proposed specialized young adult  courts, which would focus on rehabilitation in light of evidence of young  adults’ ability to change,111 and could in theory apply less harsh sentences  than adult courts.112 

Whether these are effective reforms remains to be seen. But what does  seem clear is that reforms within the criminal legal system alone will not be  sufficient. A recent review of the literature on emerging adults suggests the  importance of community-based resources to help at-risk and justice involved emerging adults achieve employment, education, housing stability,  and healthy relationships.113 The Juvenile Law Center similarly emphasizes  the need for other systems of support beyond the criminal legal system.114 The Justice Policy Institute also looks beyond the traditional criminal legal  system, and finds that an “improved approach to young adults should be  community-based, collaborative, and draw on the strengths of young adults, their families, and their communities.”115 For example, San Francisco’s Young Adult Court (YAC) provides  employment, housing, and educational support to emerging adults charged  with crimes, and it was established after then-district attorney George  Gascón attended a lecture on brain development.116 The YAC emphasizes the still-developing brains of the young adults accused of violating the law,  and provides court staff with training on recent neuroscience.117 Upon  successful completion of the program, which usually lasts ten to eighteen  months, many young adults’ felonies are dismissed or reduced to  misdemeanors.118 In 2020, a Massachusetts county created a similar program  modeled after the YAC,119 and similar young adult courts have been  established in Orange County, California,120 Cook County, Illinois,121 Omaha, Nebraska,122 Brooklyn, New York,123 and Niagara County, New  York.124 On a national scale, the U.S. Department of Education and U.S.  Department of Justice have jointly funded the Young Adult Diversion  Project since 2017. The program aids sixteen state and local partners in  providing young adults ages 16 to 24 with alternatives to prosecution and  incarceration.125 

State-level litigation and policy developments, such as the ones we  review here, indicate a growing willingness to consider the emerging adult  category as one that deserves special consideration in the criminal legal  system.  

CONCLUSION 

To quote the Supreme Court, “any parent knows” that kids are different  from adults.126 But for those in the middle—emerging adults—a growing  body of behavioral and neuroscientific research suggests an important new  insight on developmental trajectories. Even though we may label those 18  and above as “adults” in some contexts, the decision-making of emerging  adults, ages 18 to 25, remains distinct from those who are older. Evidence of this new scientific insight is now being used in litigation and policy debates  at both the state and federal levels. Our analysis in this Essay shows that, at  present, state-level routes are more successful. Further, both state and federal  litigation would benefit from strengthening connections between litigants,  the scientific community, and the applied forensic behavioral health  community of practitioners who conduct forensic evaluations in individual  cases. Efforts should be made to further engage in science-informed policy  at the state and local levels, to ensure that appellate records reflect the most  accurate and applicable neuroscience available, and to connect group averaged scientific evidence with individualized assessments. APPENDIX 

This Appendix provides additional methodological detail for the results reported in the main text. The data described below is made publicly  available on a Google Sheet database at: 

https://docs.google.com/spreadsheets/d/1jjiRoVPjMDotDA9u5ja8r5nE9 bdcM6XHtOu_Bah4qe0/edit?usp=sharing [https://perma.cc/Y5EP U96S]. 

As described in the Essay text, the Database contains information on 494  case opinions in which neuroscience-informed arguments were made to extend Miller v. Alabama to defendants age 18 and older.  

The Supreme Court issued its opinion in Miller on June 25, 2012.127 As of this writing, Miller has been cited in over 5,000 cases.128 The main text of  the Essay examines the subset of cases citing Miller that have utilized  neuroscientific evidence in order to argue that the protections of Miller  should be extended to those age 18 and over.129 

Here we describe the methods we used to build a new database of these cases.130 We started with the universe of all cases citing to Miller, as of  September 26, 2020 (Table A1). This initial search produced 5,384 results.  These cases were then narrowed to those that mentioned “neuro!”131 or  “brain”, which left 1,019 results (Table A1). For each of these 1,019 cases,  we then read the case text carefully to select only the cases that substantially discussed neuroscience, and in which the petitioner was age 18 or older at the time of the crime.132 This produced a final database for analysis of 494  cases (Table A1). 

For each of the 494 cases in our database, we examined the age of the  party, the use of neuroscientific evidence, and the court’s holding. Notably,  more than half (58%) of cases in the database considered pro se petitions; defendants were represented in their attempts to expand Miller in the other 42% of cases.133

Link to Article

Abstract

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

Emerging Adults and the Extension of Miller v. Alabama: The Role of Neuroscience in Legal Challenges

Introduction

In the landmark case of Miller v. Alabama (2012), the United States Supreme Court held that mandatory life without parole (LWOP) sentences for juveniles violate the Eighth Amendment's prohibition against cruel and unusual punishment. However, the Court drew a bright line at age 18, leaving open the question of whether similar protections should be extended to emerging adults (individuals aged 18 to early 20s).

Recent advancements in developmental neuroscience have shed light on the ongoing brain maturation that occurs during emerging adulthood. This evidence has prompted legal challenges aimed at extending Miller protections to this age group. This essay examines the use of neuroscience in these challenges and discusses the implications for the future of sentencing for emerging adults.

Methods

To identify relevant cases, we searched for all cases citing Miller as of September 26, 2020. This search yielded 5,384 results. We then narrowed these results to cases that mentioned neuroscience or brain development, resulting in 1,019 cases. Finally, we manually reviewed these cases to select those that substantively discussed neuroscience and involved defendants aged 18 or older at the time of the offense. This process resulted in a database of 494 cases for analysis.

Results

A. Case Distribution

The majority of cases (47%) originated in Pennsylvania. Cases increased significantly after 2016, when the Supreme Court ruled that Miller applied retroactively.

B. Defendant Age

Most defendants were aged 18 or 19 at the time of their offenses. The number of cases decreased as the defendant's age approached 25.

C. Neuroscientific Evidence

Petitioners typically cited neuroscientific evidence to support the claim that the brain continues to develop significantly through the mid-20s. They argued that emerging adults exhibit similarities to juveniles in terms of risk-taking, susceptibility to peer pressure, and potential for rehabilitation.

D. Court Responses

Federal courts have consistently rejected attempts to extend Miller to emerging adults. Courts have cited stare decisis and the Supreme Court's reliance on societal norms in drawing the line at age 18. However, some courts have acknowledged the potential relevance of neuroscientific evidence but have declined to extend Miller based on the specific facts of the case.

Exceptions

A federal district court in Connecticut temporarily granted an extension of Miller to 18-year-olds, but this decision was later overturned on appeal. In Illinois, state courts have allowed defendants to file successive post-conviction petitions based on the evolving understanding of adolescent brain development.

Discussion

A. The Need for Individualized Assessments

While neuroscientific evidence provides insights into group-level brain development, it is important to consider individualized assessments when applying this evidence to legal decision-making.

B. State-Level Litigation and Policy Reforms

State courts and legislatures are increasingly considering the unique needs of emerging adults. Some states have extended juvenile court jurisdiction, created specialized young adult courts, and expanded parole eligibility for those incarcerated for crimes committed as young adults.

C. The Importance of Community Support

Effective interventions for emerging adults require a comprehensive approach that includes community-based resources and support systems beyond the criminal legal system.

Conclusion

Neuroscientific evidence is playing an increasingly prominent role in legal challenges concerning the sentencing of emerging adults. While federal courts have been reluctant to extend Miller protections, state-level developments indicate a growing willingness to consider the unique developmental characteristics of this age group. Further research and collaboration between the legal and scientific communities are needed to inform evidence-based policies and practices for justice-involved emerging adults.

Link to Article

Abstract

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

Emerging Adults and the Law: Should Brain Science Change Sentencing?

Introduction

In 1999, five teenagers were involved in a tragic carjacking and murder. Two of them, Brandon Bernard and Christopher Vialva, were sentenced to death. However, their ages at the time of the crime (18 and 19, respectively) raised questions about whether they should receive the same punishment as adults.

The Supreme Court has ruled that the death penalty and life without parole are unconstitutional for juveniles under 18. This decision was based in part on scientific evidence showing that the brains of adolescents are still developing. Now, lawyers and advocates are using similar evidence to argue that these protections should be extended to emerging adults, those aged 18 to early 20s.

Neuroscience and the Emerging Adult Brain

Research shows that the brain continues to mature well into the 20s. The areas of the brain responsible for decision-making and impulse control are still developing during this time. This means that emerging adults may be more likely to make impulsive or risky decisions than older adults.

Legal Challenges

Lawyers have filed numerous lawsuits arguing that the Supreme Court's ruling in Miller v. Alabama should apply to emerging adults. They argue that the same scientific evidence that protects juveniles should also protect those who are slightly older.

Court Responses

So far, courts have been reluctant to extend Miller to emerging adults. They have pointed out that the Supreme Court's decision was based on societal norms, such as the age at which people can vote and serve on juries, rather than solely on brain science.

State-Level Successes

While federal courts have not been receptive to these arguments, some state courts have been more willing to consider them. For example, the Washington Supreme Court recently ruled that automatic life without parole sentences are unconstitutional for 18- to 20-year-olds.

Policy Implications

The debate over whether to extend Miller to emerging adults raises important questions about how we should treat young people who commit serious crimes. Some argue that they deserve a second chance, while others believe that they should be held fully accountable for their actions.

Conclusion

The use of neuroscience in legal challenges is still relatively new, but it is likely to play an increasingly important role in the future. As our understanding of the brain continues to grow, we may see more courts and legislatures reconsidering the way we sentence emerging adults.

Link to Article

Abstract

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

Should Young Adults Get the Same Legal Protections as Kids?

In 1999, five teenagers were involved in a terrible crime. Two of them, Brandon Bernard and Christopher Vialva, were sentenced to death. The other three received lesser punishments. The difference? Bernard and Vialva were 18 and 19 at the time of the crime, while the others were younger.

The Law Says...

The law says that kids under 18 can't be sentenced to death or life in prison without the possibility of parole. This is because their brains are still developing, and they may not fully understand the consequences of their actions.

But What About Young Adults?

Some people believe that the same protections should apply to young adults, who are 18 to early 20s. They argue that the brains of young adults are still developing in important ways.

The Science Behind It

Scientists have found that the parts of the brain responsible for decision-making and understanding consequences continue to develop until the mid-20s. This means that young adults may not be as mature as older adults, even though they are legally considered adults.

What the Courts Say

So far, courts have not agreed to extend the protections for kids to young adults. They say that the law is clear that the line is drawn at age 18. They also point out that society has other ways of defining adulthood, such as the age at which people can vote or join the military.

What's Next?

People are still trying to convince courts to change the law. They are using scientific evidence to support their arguments. It remains to be seen whether they will be successful. However, some states are starting to consider reforms that would treat young adults differently in the criminal justice system.

Link to Article

Abstract

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18. While federal courts have not been receptive to this argument, some state courts are. Groundbreaking recent cases in Washington, Illinois, and Massachusetts state courts may signal a potential path forward. In light of these many recent developments, this Essay provides the first empirical analysis of how courts are receiving the argument to raise the age for constitutional protections and introduces a publicly accessible, searchable database containing 494 such cases. The data suggest that at present, Eighth Amendment arguments to categorically extend federal Miller protections to those 18 and above are unlikely to win. At the same time, however, state constitutions and state-level policy advocacy provide a path to expand constitutional protections for emerging adults. We discuss the implications of these trends for the future use of neuroscientific evidence in litigation concerning the constitutionality of the death penalty and LWOP for emerging adults. As this litigation moves forward, we recommend further strengthening connections between litigants and the scientific and forensic communities. Whether at the state or federal level, and whether in courts or legislatures, the record should contain the most accurate and applicable neuroscience.

Young Adults and the Law: Should They Be Treated Differently?

Scientists have learned that there's a special group of people called "emerging adults." These are people who are between 18 and 25 years old. And guess what? Their brains are still growing and changing!

Even though we call them "adults," emerging adults make decisions differently than older adults. That's because the parts of their brains that help them think things through and control their actions are still developing.

Some people think that because of this, emerging adults should be treated differently by the law. They believe that if someone commits a crime when they're 18 or 19, they shouldn't get the same punishments as someone who is older.

Lawyers have been using this science about the brain to argue in court that young adults deserve special protection. They say that these young people should not be sentenced to life in prison without the chance to get out, just like kids under 18.

But so far, most judges have said no. They believe that the law is clear: anyone over 18 is an adult and should be treated the same.

However, some states are starting to change their laws. They're making it so that young adults can get a chance to prove that they deserve a second chance. They're also creating special programs and courts that focus on helping young adults get their lives back on track.

It's an interesting question: should emerging adults be treated differently by the law? It's something that people are still debating and trying to figure out.

Link to Article

Footnotes and Citation

Cite

Shen, F. X. et al. (2022). Justice for Emerging Adults after Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older. NYUL Rev. Online, 97, 101.

    Highlights