Document Type

Article

Publication Date

2-2019

Abstract

Modern doctrine and scholarship largely take it for granted that offenders should be criminally punished for reckless acts.1 Yet, developments in our understanding of human behavior can shed light on how we define and attribute criminal liability, or at least force us to grapple with the categories that have existed for so long. This Article examines recklessness and related doctrines in light of the shifts in understanding of adolescent behavior and its biological roots, to see what insights we might attain, or what challenges these understandings pose to this foundational mens rea doctrine. Over the past decade, the U.S. Supreme Court has concluded that youth are categorically different for purposes of criminal sentencing, and that these categorical differences in maturity, ability to make reasoned decisions, resist outside pressure and influences and the like lead to objective lines being drawn between youth and adults. The Court's distinctions have drawn on a significant body of research literature, including brain imaging scans that help us understand the maturation of the human brain over the course of adolescence. This Article posits that these developments, when mapped onto existing criminal law, call into question holding youth responsible for offenses that require actual foresight of the consequences of their risky behavior. Instead, the U.S. Supreme Court's recent analyses of the categorical differences between youth and adults in the criminal realm, 2 as well as the science and social science research underlying these differences, wears away - for this category of individuals - the basis for holding youth in juvenile or adult court accountable for crimes of "foresight" and express disregard for risk. In Part I, the Article describes the Court's significant cases addressing the line between children and adults under the Eighth Amendment and Miranda. Discussion of these decisions has largely been limited, with a few exceptions, to implications for sentencing law and the law of confessions. This Article draws connections between these cases, and, more importantly, considers the theoretical and doctrinal implications of these cases beyond the confines of their immediate setting.3 Part II reviews some of the research literature on youth decision­making, with a focus on the studies on risk-taking. It takes a particular interdisciplinary look at the literature of the impact of peers on youth decision-making and the impact of stress or lack of time for reflection on youth decision-making. Part III addresses the areas in criminal law for which the juvenile cases and research have, I argue, significant implications: places where there is criminal liability based on foreseen consequences. Part III addresses the role of recklessness in criminal law, as well as the "natural and probable consequences" doctrine - the other major area of substantive criminal law where accountability is based on what the offender is supposed to have actually foreseen. In Parts IV and V, I consider what this youth foresight doctrine would look like, consider some drawbacks, and provide a few possible tools for its implementation. Part IV also connects back to other theoretical and doctrinal implications of adopting a youth foresight approach. The Article demarcates reckless offenses from negligent offenses - asserting that we can still embrace the reasonable person (i.e., reasonable adult) with respect to negligence. Shifting our recklessness inquiry, and maintaining the negligence standard for youth is also consistent with the U.S. Supreme Court's approach to youth crime, which looks not to excuse or justify juvenile behavior, but to adjust culpability to more closely align with expected behavior.

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