Cheryl L. Kates P.C.



Neuroscience is a mitigating factor: Why doesn’t NYS Parole Board’s recognize this scientific factor?

Neuroscience is a mitigating factor: Why doesn’t NYS Parole Board’s recognize this scientific factor?

Neuroscience is advancing rapidly and introducing legal defenses which weren’t available until recently based upon advanced technology (Davis, 2012). Defense attorneys now are able to introduce high technology such as advanced brain imaging at trial to show and explain how advanced technology explains injured defendant’s culpability and competence, (Davis, 2012).

Recent developments in legal and psychological theory demonstrate the adolescent mind does not have the same criminal culpability of an adult. The director of the Brain Behavior Lab at the University of Pennsylvania, Neuro-psychologist Dr. Ruben Gar, presented from his research:

“The evidence is strong the brain does not cease to mature until the early 20’s in the relevant parts of the brain that govern impulsivity, judgment, planning for the future, foresight of consequences and other characteristics that make people morally culpable”

(American Bar Association (ABA), 2004).

MRI studies indicate the frontal lobe controlling aggression, long-range planning, mental flexibility, abstract thinking and moral judgment is not developed fully at adolescence. There is a late phase of development of myelin formation indicating there is a neural basis for assuming teens are less blameworthy than adults for criminal acts (ABA, 2004, Brower, 2004,).

This concept is recognized by doctors and insurance companies as a risk factor when considering driving ages. Allstate insurance company features an ad stating, “Why do most 16 year olds drive like they’re missing part of their brain? Because they are”. The ad continues: “Even bright, mature teenagers sometimes do things that are stupid”. It then states, “But when it happens it’s not really their fault. It’s because their brain hasn’t finished developing. The underdeveloped area is called the dorsal lateral pre-frontal cortex. It plays a critical role in decision making, problem solving and understanding future consequences of today’s actions. Problem is, it won’t be fully mature until they’re into their twenties”(Allstate ad).USA Today featured an article, “Is 16 too young to drive a car?” The article cites to research showing the brain isn’t developed and indicates the higher incidence of accidents with 16-year-old drivers (Davis, 2005).

These theories are filtering into the legal analysis of whether an adolescent is morally culpable for criminal acts. In analyzing whether a mentally retarded person should be executed, the Supreme Court recognized there was a different level of culpability due to the lack of development in the brain, Atkins v. Virginia, 536 U.S. 304 (2002).

Further arguments state adolescents do not have the same level of moral culpability, Roper v. Simmons, 543 U.S. 557 (2005). Evidence submitted by various sources support the above research. American society viewed juveniles as categorically less culpable than the average criminal and provided three reasons: 1. There is a lack of maturity and an underdeveloped sense of responsibility; 2. Juveniles were more vulnerable or susceptible to negative and outside pressures including peer pressure; and 3. The character of a juvenile was not the equivalent of an adult, Roper, (id).

Wiley indicates brain development begins within the womb (Wiley, 2008). Pre-natal exposure to toxins such as exposure to alcohol, drugs and or nicotine may have an adverse affect on the child’s brain development (Wiley, 2008). Experiences including abuse, neglect, domestic violence, etc., affect both the structural development and chemistry development in the brains of children (Wiley, 2008). Wiley notes children exposed to these types of environments often develop post-traumatic stress disorder (Wiley, 2008). This syndrome is often mistaken for other issues such as attention deficit, learning disabilities or other psychological diagnosis given to children (Wiley, 2008).

Modecki indicates juveniles lack judgmental maturity to make decisions in the same manner as adults (Modecki, 2008). Researchers have indicated three factors that do not occur in adolescent decision-making that do occur in the decision-making of adults: the ability to act independent and be self-sufficient, the ability to evaluate a situation before acting, and the ability to consider different view points when making decisions (Modecki, 2008, p. 3).

Adolescents tend to be more affected by peers influence, seeking of sensations, and future-time perspective (Modecki, 2008). This research indicates that a lower level of culpability is present when looking at juveniles because their brains are less developed than adult offenders (Modecki, 2008).

In 2010, a ruling of the US Supreme Court in Graham v. Fla. regarding juveniles and their life incarceration indicated juveniles could not receive a life sentence when they hadn’t committed murder. This court held the execution of juveniles under 18 was cruel and unusual punishment.

Justice Kennedy remarked: “Young criminals are different than adults. A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity…As compared to adults, juveniles have a lack of maturity and an underdeveloped sense of responsibility. They are more vulnerable or susceptible to negative influences and outside pressures” (Biskupic, 2010).

In Miller v. Alabama, No. 10-9646, decided June 25, 2012, by the US Supreme Court, it was determined imposing a life sentence in juvenile homicide cases without considering mitigating factors was a violation of the 8th amendment (cruel and unusual punishment).

The court indicated:

“Although we do not foreclose a sentencer’s ability to make the judgment in homicide cases we require it to take into account how children are different and how those differences counsel against irrevocably sentencing them to a life time in prison,

Miller, (id).

The court further indicated: “Mandatory life without parole for a juvenile precludes consideration of the chronological age and the hallmark features; immaturity, impetuosity and failure to appreciate risks and consequences. It prevents taking into account the family and home environment from which he cannot usually extricate himself- no matter how brutal or dysfunctional, Miller, (id).

Additional arguments have emerged regarding defendants with brain injuries (Davis, 2012). Personality changes, lack of impulse control and decision-making capabilities emerge when there is damage to different parts of the brain, (Davis, 2012). Many new cases are presenting with the number of injured soldiers returning from Iran and Afghanistan (Davis, 2012). As a former brain injury nurse, I can attest when brain’s are injured, people’s personalities change. One of the most indicated factor when working with people trying to achieve rehab, was this remark made by the patient’s families.

The National Veteran’s Foundation developed a training manual for defense attorneys because this issue presents so frequently (Davis, 2012). The author’s indicate, people presenting with brain injuries slip through the legal system (Davis, 2012). Veteran’s courts were established attempting to promote rehabilitation as opposed to incarceration, (Davis, 2012). One of the pilot programs began in Buffalo, NY (Davis, 2012). There are more than 80 of these courts established in the country ( Davis, 2012). When will this scientific proof trickle down to the NYS Parole system?

NYS Executive Law requires consideration of:

The seriousness of the offense with due consideration to the type of sentence, length of sentence and recommendations of the sentencing court, the district attorney, the attorney for the inmate, the pre-sentencing probation report as well as consideration of any mitigating or aggravating factors, and activities following arrest prior to confinement;

This includes consideration of an offender’s age and circumstances at the time of the instant offense and any supporting medical mitigating factors. This is very relevant, when looking at the circumstances of an offender’s offense. This applies in juvenile offenders, veteran’s and people who suffered brain injuries. This defense was not available when many people entered please or were convicted of a crime 20 or 30 years ago. Technology advances and those people are left behind. Isn’t time we catch up?


American Bar Association (2004). Cruel and unusual punishment: The juvenile death penalty: Adolescence, brain development and legal culpability. Juvenile Justice Center. Retrieved November 14, 2007, from

Biskupic, J. (2010). Court limits harsh terms for youth. USA Today, May 18, 2010.

Brower, Bruce (2004). Teen brains on trial. Science News Online, Vol. 165 No. 19. Retrieved November 14, 2007, from

Davis, Robert (2005). Is 16 too young to drive a car? USA Today, March 2, 2005.

Davis, Kevin ( 2012). Brain Trials, American Bar Association, ABA Journal, October 2012.

Modecki, K., L. (2008). Addressing gaps in the maturity of judgment literature: Age differences and delinquency. Law and Human Behavior

New York State Division of Parole (2010). Annual Report.

Wiley, M. (2008). Conquering youth violence. NYS Bar Association

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