Age as Mitigation:
Adolescent Development and
Criminal Sentencing
Cathryn Crawford
Dr. Jen Woolard
Graham v. Florida, 130 S.Ct 2011
– “Roper established that because juveniles have
lessened culpability, they are less deserving of the
most severe punishments.
As compared to adults, juveniles have a “lack of
maturity an undeveloped sense of responsibility;
they are more vulnerable or susceptible to negative
influences and outside pressures, including peer
pressure” and their characters are ‘not as well
formed.’”
Purposes of Sentencing
• Incapacitation
• Retribution
• Deterrence
• Rehabilitation
Sentencing Court Considers
• Character of the Offender
• Nature and Circumstance of the Offense
• Public Interest / Safety
Distinguishing Adolescents
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Cognitive Maturation / Impairments
Peer Pressure
Foresight
Perception of Risk / Consequences
Impulsivity
Perception of threats
Effect of Trauma
CASE EXAMPLE: DAVID
• 15 year old
• Attempt Murder (shooting at school)
• Co-defendant told David that CW had made
threatening remarks
• CW pushed up against David earlier in hall
• Other two defendant older by 1 and 3 years
• Co-D handed David gun just before the shooting
• David’s statement said, “I just wanted to get him
to stop messing with me and my boys”
• Defendants all members of the same gang
“Character” of Defendant/ Factors in
Mitigation
D did not contemplate that his criminal
conduct would cause harm to another
D acted under “strong provocation”
D criminal conduct was induced /
facilitated by another
“Character” of Defendant/ Factors in
Mitigation
• There were substantial grounds tending to
excuse or justify, though failing to establish a
defense
• D criminal conduct was the result of
circumstances unlikely to occur
• D is particularly likely to comply with terms
of probation
Nature and Circumstances of the
Offense
Committed in a group
Older offenders
CW threatening
Impulsive Decision
“Just wanted to get him to stop messing with
me” (foreseeability)
• Did not fully appreciate consequences
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Aggravation
• Delinquency or criminal history
• Sentence necessary to deter others from
committing same crime
• Offense occurred within 1000 feet of school
• D / offense gang related
Public Interest / Safety
Getting the Evidence in
• First you must understand the
science!
• Actually read the studies
• Identify accessible ones
• Create summaries for judges
• Make the studies real for the judge
Getting the Evidence in
• Expert Report / Testimony
• Mitigation Report/ Bio-Psycho-Social History
• Scientific Papers / articles (with summaries)
– Ask the judge to take judicial notice
• Supported by records
Mental Health; Child welfare; School; Jail / prison (if
behavior has improved)
• Supported by other witnesses (lay, other
experts)
Making the arguments without the
expert assessment
• Do not oversell!!!
• Do not say:
• “we know, based on the scientific
research, that David was influenced by
his peers”
Making the arguments without the
expert assessment
• Instead say:
• Uncontroverted scientific evidence that
demonstrates that adolescents such as David are
significantly influenced by their peers
or
• David’s actions of firing the gun at the urging of
his “friends” were consistent with what
developmental research tells us: teenagers such
as 15 year old David are incredibly susceptible to
peer pressure.
Consistent with Common Sense
• What we know about teenagers (and why we
impose restrictions
-
Driving
Drinking
Voting
Gun permits
Sex
ROPER v. SIMMONS, 543 U.S. 551
“As any parent knows and as the scientific
and sociological studies…tend to confirm, ‘[a]
lack of maturity and an underdeveloped
sense of responsibility are found in youth
more often than adults and are more
understandable among the young.
These qualities often result in impetuous and
ill-considered actions and decisions.’”
ARGUMENT
Indoctrinate the Judge early
• Bail reduction
• Motion for Appointment of Expert
• Motion to Declare Statute Unconstitutional
(facial and as applied)
• Motions to Suppress
• Jury Instructions
– Mens rea
– Reasonable Child
CAUTIONS
• Be sure not to oversell the science
• But be sure to test the legal boundaries
For Assistance
National Juvenile Defender Center
www.njdc.info