Friday, March 18, 2011
Carbone: "Neuroscience and Ideology: Why Science Can Never Supply a Complete Answer for Adolescent Immaturity"
June Carbone (UMKC School of Law) has posted "Neuroscience and Ideology: Why Science Can Never Supply a Complete Answer for Adolescent Immaturity" (LAW & NEUROSCIENCE, CURRENT LEGAL ISSUES, Chapter 13, Michael Freeman ed., Oxford University Press, 2010). Here is the abstract:
This paper argues that to resolve the issues about the role of neuroscience, we need to question the framework in which it arises. The increasing complexity of scientific determinations raises issues of institutional capacity. Recognizing innovations in the science of adolescent development may change not so much our view of adolescence as the calculus underlying institutional functions.
Consider the issue of the juvenile death penalty or a life sentence for a crime committed by a fifteen-year-old. The fact that adolescent reasoning has not yet matured may or may not make the sentence cruel. But the ability to determine whether a particular fifteen-year old is capable of reasoned deliberation may be a more difficult task than judging whether fifteen-year-olds as a group have such capacity. Abolishing the juvenile death penalty may be the right answer not so much because adolescent decision-making is necessarily flawed, but because deciding whether it is in individual cases is impossible. At the same time, such a decision should not be resolved, in any absolute sense, on the basis of neuroscience findings. Instead, they can be at best a strand in a complex decision that situates the idea of justice, rather than cognitive capacity, in an appropriate societal framework.
To consider the appropriate construction of such frameworks, this paper describes the promise and limitations of neuroscientific advances, comparing legal decision-making capacity in individual cases versus broader matters of constitutional doctrine or public policy, analyzing recent US Supreme Court decisions on the juvenile death penalty, and assessing the role of neuroscience in the different possible outcomes of that case. The paper concludes that Justice Kennedy’s majority opinion gave the appropriate weight to the sense; it is an element supporting, but not dictating, a conclusion the court reached on broader grounds.