Wednesday, June 27, 2012

"The decisions came in the context of accumulating scientific evidence"

Above is from George Will of all people, acknowledging that juvenile criminal defendants have different brains and different levels of culpability than adults:

This [Supreme Court] ruling extends two others, one holding that the Eighth Amendment bars capital punishment for children under 18, the other that it bars life without parole for a juvenile convicted of a non-homicide offense. These decisions held that regarding culpability, and hence sentencing, children are constitutionally unlike adults. The decisions came in the context of accumulating scientific evidence about increased impulsivity and diminished responsibility because of adolescent brain development.
I vacillate between wanting to react with snarkiness versus simply welcoming sanity when I find it coming from an unexpected person.  I sure wish he'd replicate his interest in accumulation of scientific evidence to the far more conclusive area of climate change.  Or better yet, I'd like to know why a person like Will can think reasonably in some regards (this isn't the first time for him) and fall so short in others.

Anyway, thanks for the sanity, George.  Consider expanding it.


Jeffrey Davis said...

Why is Will suddenly rational?

There's not much money to be made in incarcerating children for life.

Jonathan Gilligan said...

Shall we use brain scans to determine who is eligible for life without parole?

I am much more in sympathy with Richard Posner than with George Will on this:

"The court has learned from brain science that teenagers are immature! But we knew that. The problem with using it as a basis for distinguishing between murderers of different ages is that many adult murderers have problems with their brains, too. Why is it not cruel and unusual to sentence them to life in prison? A categorical distinction between a 17-year-old and an 18-year-old seems arbitrary, and in any event a reflection of feelings about children ... rather than of the teachings of brain science. If the court had said—what I imagine the justices in the majority feel, that emotion dictated the outcome—that a sentence of life imprisonment (with no parole of course) imposed on a 14-year-old is extremely distasteful, it would have the considerable virtue of candor."

David B. Benson said...

Geoorge went to Union College methinks.

Brian said...

Personally I don't believe in life in prison without possibility of parole, although it's a useful societal crutch to get beyond the waste of capital punishment.

Posner's categorical distinction is silly - we draw bright line distinctions in gray areas all the time. That's how you make policy in the real world.

Jonathan Gilligan said...

Brian: Good points. I'm with you in disapproving of draconian sentencing, and agree that we have to draw bright lines, but I doubt that brain science is more useful than our moral sentiments in deciding where to draw this bright line.

For instance, if we're trying to figure out whether to revise the voting age from 18 to 21, how useful would brain science be?

Or, which is closer to my deep concerns, if brain science were to find significant racial or sexual differences among brains, would this justify statutory differences in sentencing on the basis of race or sex?

I worry about the implications of the court's line of reasoning when I juxtapose the Bell Curve with Dan Kahan's caution about people who "go on an fMRI fishing trip & resort to post hoc story-telling to explain the 'significant' correlations [they] (inevitably) observe[]"

Am I foolish in having such concerns?

Arun said...

Is the science stuff in the SCOTUS opinion, or I this pure George Will?

Jonathan Gilligan said...

@Arun: On pages 8-10 of the slip opinion, Justice Kagan quotes previous case law and amicus briefs, emphasizing that "Our decisions [in previous cases regarding juvenile sentencing] rested not only on common sense---on what 'any parent knows'---but on science and social science as well," going on to assert that "developments in psychology and brain science" prove that juveniles have "lessened ... 'moral culpability'" and a greater "prospect that, as the years go by and neurological development occurs, [their] 'deficiencies will be reformed'"


IGeorge tends to becomespolitically unreliable whenever rising temperatures send his fact expurgating intern packing to the beach .

Brian said...

Jonathan - I say follow the facts wherever they go, but I highly doubt they'll lead us in some crazy racist or sexist direction, especially when you differentiate between individuals as opposed to groups.

For example: males have more genetic diseases like Down's that reduce intelligence, but more elderly women than elderly men have Alzheimers. I don't know how that balances out, but one of those two factors is smaller than the other, making that gender slightly more intelligent than the other. Doesn't matter tho on an individual basis.