Corrado, Raymond

Bergen Journal of Criminal Law and Criminal Justice • Volume 2, Issue 2, 2014, pp. 141-163

Developmental PsychoNeurological Research Trends and
Their Importance for Reassessing
Key Decision-Making Assumptions
for Children, Adolescents, and
Young Adults in Juvenile/Youth and
Adult Criminal Justice Systems
Raymond Corrado and Jeffrey Mathesius*1

1

Introduction

A key premise of Western criminal law and justice is that behavior with certain obvious
exceptions such as severe psychosis is the product of rational choice and free will. Individuals, therefore, choose whether or not to commit a criminal offence based, typically,
on an analysis of the risks and benefits. Historically, it is the fundamental differences between juveniles and adults with regards to the legal principle of responsibility (i.e., extent
of free will/rational choice) that justified the existence of distinctive criminal laws. This
article utilizes current empirical research to assess the validity of the central assumptions
underlying the legal decision-making process based on this adult-juvenile distinction.
The minimum and maximum age of the juvenile justice systems in several countries
has been an increasingly contentious issue, both ‘scientifically’ and politically. In the later
*

Ray Corrado is a professor at the School of Criminology at Simon Fraser University and a
visiting professor at the Faculty of Psychology of the University of Bergen. Jeffrey Mathesius is a
doctorate student at the School of Criminology at Simon Fraser University. The authors would
like to thank Dr. Annika Suominen for her assistance on the current paper.
This is an Open-access article distributed under the terms of the Creative Commons Attribution 3.0 Unported License (http://creativecommons.org/licenses/
by/3.0/), permitting all use, distribution, and reproduction in any medium, provided the original work is properly cited.

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Raymond Corrado and Jeffrey Mathesius

realm, proponents for lowering the minimum age assert the need to hold violent youth
accountable and to deter them and other youth from such crimes. Opponents counter
that adolescents and children, for a variety of reasons, lack the necessary legal responsibility to be criminally punished.1 Frequently, it is the rare incidents of extreme violence
that provoke this debate. For example, in August 2013 a 10-year-old boy beat to death
Lee Bonneau, a 6-year-old, on the Kahkewistahaw First Nation reserve in the province of
Saskatchewan, Canada.2 The minimum age of criminal responsibility across all provinces
in Canada is 12 years of age, and, consequently, the 10-year-old cannot be charged under
Canada’s Youth Criminal Justice Act. In contrast, in 1993 in the town of Bootle in northern England, Jon Venables and Robert Thompson, both 10 years old at the time, abducted
2-year-old James Bulger from a public shopping mall and subsequently sexually assaulted
and killed the toddler. The age of criminal responsibility in England remains 10 years of
age. Both Jon Venables and Robert Thompson were convicted of murder and sentenced
originally to a minimum 10 years in custody.
While there are few children who commit such extremely violent acts, these notorious cases exemplify several of the key themes in this article. The above cases obviously
involve the minimum jurisdictional age of juvenile and adult criminal courts, yet other
contentious legal themes are also intrinsically embedded in justifying these minimums.
Clearly, the initial concern is at what age children and adolescents must be considered to
have the necessary cognitive, emotional and moral capacities to understand legal rights
and wrongs. A related concern is at what age children and adolescents fully meet the legal
criteria requiring a minimal understanding of the consequences of their criminal acts.
Incidentally, most criminal courts require the accused to be competent to stand trial in
which involves that they must be capable of understanding points of law and procedure
and giving instructions to their defense council. Criminal sentencing usually involves
varying levels of proportionately punitive and deterrent sentencing. The latter typically
requires a consideration of aggravating and mitigating circumstances involving individual characteristics of the offender and the victim(s), as well as situational characteristics
(e.g., was the act self-defense? Was the defendant intoxicated at the time of the crime).
These considerations too have potentially definitive age parameters. For example, is a
convicted 15-year-old offender that is clinically diagnosed as having suffered extreme
trauma entitled to considerably more lenient mitigating assessment by the court than
a 30-year-old adult that is clinically diagnosed with similar trauma, all other considerations being equal?
1

2

Corrado et al., Serious and Violent Young Offenders and Youth Criminal Justice: A Canadian
Perspective. (Simon Fraser University Press, forthcoming in 2014).
CBC News (2013, September 3). Child under 12 acted alone in beating death of boy, 6, RCMP say.
Retrieved from: http://www.cbc.ca/news/canada/saskatchewan/child-under-12-acted-alone-inbeating-death-of-boy-6-rcmp-say-1.1400513 (last visited February 13, 2014).

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Bergen Journal of Criminal Law and Criminal Justice • 2/2014

This theme is particularly important in most national jurisdictions since the controversy around juvenile justice and its reform frequently has been focused on responding
to serious and violent young offenders. Whether the debates are about lowering or not
the minimum age of criminal responsibility, or revising the minimum age for automatic
referral to adult criminal courts, there is a common underlying controversy that highlights two competing perspectives. The common theme is how to employ the two criminal justice systems in a complementary manner to most effectively protect society from
serious and violent children, adolescents, and young adults. One view, mentioned above,
is that such offenders deserve a punishment proportionate to the seriousness of their current offence plus a consideration of prior convictions as aggregating factors to determine
custodial sentence length. In contrast, there is the view that the use of long custodial
sentences simply amplifies the risk for serious and violent recidivism. Proponents of this
second view purport instead that the sentencing emphasis should be on providing program services primarily in non-custodial settings. When the offence involved extreme
violence, however, these services should only be initially available in non-punitive settings for short periods.
The minimum age of criminal responsibility varies substantially across Western country justice jurisdictions with England and Wales representing one of the lowest ages (i.e.,
10 years) and Norway with one of the highest at 15 years of age.3 The maximum age of
the juvenile justice system also vary substantially. Most juvenile justice jurisdictions have
a 17-year age limit (e.g., Canada, United States, England and Wales), in which defendants
who are 18 years or over are tried in standard adult courts. In contrast, Finland, Norway,
and Sweden have set the maximum age at 21 years. The Nordic countries are an exception, however, with juvenile courts having jurisdiction for defendants between 15 years
and 21 years of age. In contrast, several US states such as Indiana, Kansas, Vermont, and
Wisconsin allow, but do not require, that a child as young as 10 years of age be tried in
adult criminal courts for the charge of murder.4 In addition, while capital punishment
has been held to be unconstitutional by the US Supreme court for youth under 16 years
of age,5 capital punishment has not been prohibited for older adolescents aged 16 and 17
years.6
A central theme of this article is that these varying minimum and maximum age limits for juvenile justice jurisdiction are largely arbitrary and based on assumptions rather
than systematic or scientific research. In addition, this article will also discuss current
3

4

5
6

Storgaard, Juvenile justice in Scandinavia, 5(2) Journal of Scandinavian Studies in Criminology
and Crime Prevention (2004), pp. 188-204.
Feld and Bishop, Transfer of juveniles to criminal court, in The Oxford handbook of juvenile
crime and juvenile justice eds. Feld and Bishop, (Oxford University Press, 2012), pp. 801-842.
Thompson v. Oklahoma, 487 U.S. 815 (1998).
Stanford v. Kentucky, 492 U.S. 361 (1989).
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Raymond Corrado and Jeffrey Mathesius

research concerning competency-related abilities (e.g., in the United States, competency
to waive Miranda rights and competency to stand trial) and sentence proportionality/
type of reprimand. While much of the recent ‘breakthrough’ research involving genetics, epigenetics and brain scan technologies concerning child/adolescent/young adult
decision-making capacities remains necessarily tentative, there is sufficient research to
begin examining several of the key assumptions in juvenile justice laws in countries such
as Norway, Canada, and the United States. In initiating this empirically based discussion, we hope to provide information and analysis for those national jurisdictions where
public and political debates too often appear to be influenced by media simplifications
of inherently complex legal or scientific issues. This article consists of two parts. Part I
summarizes the psychological and neurological empirical research on decision-making
within the typical adolescent. Part II provides a discussion of the characteristics associated with the atypical adolescent (i.e., the serious violent young offender) and how their
characteristics may interfere with an already underdeveloped adolescent decision-making system, therefore heightening risk-taking behavior.

2
Decision-making and the development of responsible judgment
in the typical adolescent
2.1

The role of cognitive abilities in decision-making

Much of the research on human decision-making in the last part of the 20th century
focused primarily on cognitive domain indicators. Cognitive decision-making includes
inductive reasoning (i.e., hypothesizing potential outcomes based on the available evidence), deductive reasoning (i.e., deriving conclusions based on logic), and identifying
the risks and benefits of a given behavior. A long-standing consensus is that, by middle
adolescence, approximately 16 years of age, cognitive capacity for decision-making does
not differ from adults (i.e., 18 years of age and older). Conversely, youth under the age
of 16 have significantly poorer cognitive decision-making capabilities when compared to
adolescents 16 years of age and older.7
Likewise, research examining competency-related legal issues amongst adolescents, which is based on cognitive decision-making skills, reveals similar trends. For example, preteens (i.e., under 13 years of age) typically fail to meet the Dusky v. United

7

Ambuel and Rappaport, Developmental trends in adolescents’ psychological and legal
competence to consent to abortion, 16(2) Law and Human Behavior (1992), pp. 129-154; Belter
and Grisso, Children’s recognition of rights violations in counseling, Professional Psychology:
15(6) Research and Practice (1984), pp. 899-910; Garrison, Children’s competence to participate
in divorce custody decision-making, 20 Journal of Clinical Child Psychology (1991), pp. 78-87.
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Bergen Journal of Criminal Law and Criminal Justice • 2/2014

States (1960)8 standard for competency to stand trial,9 and demonstrate less knowledge
of legal and trial-related concepts compared to late adolescents10 and adults.11 More importantly, earlier research indicates that preteen psycho-legal competency domains are
comparable to those of adults with mental retardation.12 Early adolescents (13-15 years)
show improvements, but still demonstrate poorer abilities on key competency-related
domains than late adolescents (16-17 years)13 and adults (18+ years).14 Developmental
differences in competency-related abilities do, however, remain stable from 17 years of
age.15
In research literature based only on the cognitive domain (i.e., excluding the psychosocial domain), late adolescents appear just as cognizant as adults of the risks they
take and as capable of making decisions outside of the courtroom, as well as within. This
consistent finding from one particular domain of decision-making, however, contradicts
a central legal presumption of several Western legal systems (e.g., Australia, Canada,
and United Kingdom), that youth generally are less capable of rational and logical decision-making strategies than adults. In contrast, research from the psychosocial domain16
of decision-making supports this assumption. Most importantly, a large body of empirical research indicates that risk-taking behavior, including serious criminality, peaks

8

9

10

11
12

13

14
15
16

Dusky v. United Sates 362 U.S. 402 (1960). This United States Supreme Court case set the
minimum criteria for competency to stand trial. Specifically, to be competent, the defendant
must possess an adequate factual understanding (e.g., understand the roles of the members of
the criminal justice system), rational understanding (e.g., appreciation of the potential negative
consequences associated with a guilty decision), and the ability to communicate with counsel.
Importantly, three underlying psycho-legal principles are relevant to decisions of competency:
understanding, reasoning, and appreciation, see Poythress et al., The MacArthur Competence
Assessment Tool – Criminal Adjudication: Professional Manual (Psychological Assessment
Resources 1999.
McKee, Competency to stand trial in preadjudicatory juveniles and adults, 26 J. Am. Acad.
Psychiatry Law (1998), pp. 89-99.
Peterson-Badali et al., Young children’s legal knowledge and reasoning ability, 39 Canadian
Journal of Criminology (1997), pp. 145-170.
Grisso, Juveniles’ waiver of rights: Legal and psychological competence (Plenum Press 1981)
Fulero and Everington, Assessing competency to waive Miranda rights in defendants with
mental retardation, 19(5) Law and Human Behavior (1995), pp. 533-543.
Grisso et al., Juveniles’ competence to stand trial: A comparison of adolescents’ and adults’
capacities as trial defendants, 27(4) Law and Human Behavior (2003), pp. 333-363; Savitsky and
Karras, Competency to stand trial among adolescents, 19(74) Adolescence (1984), pp. 349-358.
Supra, note 15, Grisso et al 2003.
Supra, note 15, Grisso et al 2003 ff.
This domain of research, generally, is concerned with the role of social factors (e.g., peer
influence, situational context) and psychological factors (e.g., self-control) on decision-making.
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Raymond Corrado and Jeffrey Mathesius

during mid-adolescence and rapidly declines in late adolescence and early adulthood.17
Specifically, youth in the early and middle adolescent stages are most likely to abuse substances, engage in delinquent or criminal behavior, drive recklessly, and participate in
unsafe sexual practices.18
Unsurprisingly, beginning in the mid-1990s, criticisms of the single cognitive domain approach emerged.19 The main concern with rational choice based cognitive decision-making models was that they are inappropriately focused on economic principles
involving the use of logical inductive and deductive reasoning. Instead, an alternative
model20 was suggested, which asserts that responsible decision-making resulting in reduced risk-taking is a product of two interrelated factors: the above-mentioned cognitive
capacities as well as psychosocial abilities.21 Critically, while cognitive abilities may be
fully developed, on average, by mid-adolescence, psychosocial abilities continue to develop throughout adolescence and even into the early adult years. In effect, age-based psychosocial deficits are constraints in the utilization of key cognitive skills associated with
avoiding risk-taking and potentially both self-harming and victimizing behavior such as
serious criminality.

17

18

19

20

21

Arnett, Reckless behavior in adolescence: A developmental perspective, 12 Developmental
Review (1992), pp. 339-373; Donovan et al., Syndrome of problem behavior in adolescence: A
replication, 56:5 Journal of Consulting and Clinical Psychology (1988), pp. 762-765; Gottfredson
and Hirschi, A general theory of crime (Stanford University Press 1990); Gullone et al., The
adolescent risk-taking questionnaire: Development and psychometric evaluation, (15:2) Journal
of Adolescent Research (2000), pp. 231-250.
Centers for Disease Control and Prevention, Youth risk behavior surveillance – United States,
2005, 55(SS5) Morbidity & Mortality Weekly Report (2006), pp. 1-108; Moffitt, Adolescencelimited and life-course-persistent antisocial behavior: A developmental taxonomy, 100(4)
Psychological Review (1993), pp. 674-701; Reyna and Farley, Risk and rationality in adolescent
decision-making: Implications for theory, practice, and public policy, 7 Psychological Science
(2006), pp. 1-44.
Cauffman and Steinberg, The cognitive and affective influences on adolescent decision-making,
68(4) Temple Law Review (1995), pp. 1765-1790.
Scott et al., Evaluating adolescent decision making in legal context, 19(3) Law and Human
Behavior (1995), pp. 221-244.
While Cauffman and Steinberg (see Supra, note 20) refer to psychosocial abilities as encompassing
three key components (i.e., responsibility, perspective, and temperance), we refer to psychosocial
abilities more broadly in terms of an individual’s psychological, emotional and social capacity,
outside of cognitive functioning.
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Figure 1. Decision-making tree

Cognitive Factors

Psychosocial Factors

1. Inductive Reasoning:
• Hypothesizing potential
outcomes based on available
evidence
2. Deductive reasoning:
• Deriving conclusions based on
logic
3. Identification of risks and benefits
of a behavior

1. Individual Domain
• Sensitivity to reward
• Sensitivity to punishment
• Emotion regulation
• Self-control
2. Contextual/situational Domain
• Novelty of situation
• Ambiguity of situation
• Peer group

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Raymond Corrado and Jeffrey Mathesius

2.2

The role of psychosocial abilities in adolescent decision-making

For some adolescents and, to a lesser extent, young adults, several risk factors have been
identified, including hypersensitivity to rewards and hyper-insensitivity to the costs of
risky behaviors generally and criminal acts, specifically.22 By overemphasizing the possible rewards of a risky decision and simultaneously downplaying the potential negative
consequences,23 adolescents, not uncommonly, exhibit a reduced ability to effectively
plan alternative and less risky methods to obtain desired goals.24 Adolescents also are
more likely to have a “tunnel vision” decision-making style based on immediate gratification (e.g., sexual pleasure), while ignoring potential long-term negative implications
(e.g., unexpected pregnancy). Often crime contexts or situations (e.g., drug dealing, sexual assault) provide a means for immediate gratification of a given need (e.g., money,
sexual gratification). Again, this psychosocial pattern peaks between mid-adolescence
and early adulthood (i.e., 14-21 years of age).25
In addition, certain decision-making contexts such as ambiguous, new, or stressful
situations, affect adolescents’ ability to effectively utilize their cognitive decision-making
capacities.26 More specifically, adolescents are more likely to make irresponsible risky
decisions in emotionally heightened contexts than adults.27 These contexts frequently are
exacerbated by extreme emotional moods, which are typical of the adolescent develop-

22

23

24

25

26
27

Blakemore and Robbins, Decision-making in the adolescent brain, 15(9) Nature Neuroscience
(2012), pp. 1184-1191; Galvan et al., Earlier development of the accumbens relative to
orbitofrontal cortex might underlie risk-taking behavior in adolescents, 2625 Journal of
Neuroscience (2006), pp. 6885-6892; Galvan et al., Risk-taking and the adolescent brain: Who
is at risk? 10(2) Developmental Science (2007), pp. F8-F14; Steinberg et al., Age differences in
sensation seeking and impulsivity as indexed by behavior and self-report: Evidence for a dual
systems model, 44(6) Developmental Psychology (2008), pp. 1764-1778.
Benthin et al., A psychometric study of adolescent risk perception, 16(2) Journal of adolescence
(1993), pp. 153-168; Gardner and Herman, Adolescents’ AIDS risk taking: A rational choice
perspective, 50 New Directions for Child and Adolescent Development (1990), pp. 17-34.
Greene, Future-time perspective in adolescence: The present of things future revised, 15 Journal
of Youth and Adolescence (1986), pp. 99-111.
See Cauffman et al., Age differences in affective decision making as indexed by performance on
the Iowa Gambling Task, 46 Developmental Psychology (2010), pp. 193-207.
See Supra notes 20 and 21.
Casey et al., The adolescent brain, 1124 Ann. NY Acad. Sci (2008), pp. 111-126; Somerville et
al., A time of change: Behavioral and neural correlates of adolescent sensitivity to appetitive
and aversive environmental cues, 72 Brain and Cognition (2010), pp. 124-133; Somerville et al.,
Frontostriatal maturation predicts cognitive control failure to appetitive cues in adolescents,
23(9) Journal of Cognitive Neuroscience (2011), pp. 2123-2134.
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Bergen Journal of Criminal Law and Criminal Justice • 2/2014

mental stage.28 Under such situational pressures, adolescents are less likely than adults to
make use of all available information and rely instead on partial information and simple
heuristics to make decisions, particularly within contexts involving antisocial behavior
(e.g., “If I don’t steal like my friends then they will think I’m a loser”). In other words,
adults exhibit greater emotional stability in their decision-making across similar challenging situations and contexts.
Further, antisocial peer influence confounds the negative impact of situational influences on adolescent risky decision-making. Adolescents are most influenced by their
peers than during any other developmental stage, especially in risk behaviors involving
a peer group,29 including criminality.30 Peer influence exhibits a curvilinear relationship
with age: it increases through early adolescence, peaks in middle adolescence (~ 15 years)
and slowly declines into adulthood.31 Importantly, while adults overwhelmingly commit
the majority of crimes in most countries, most crimes committed by adolescents, including serious and violent crimes (e.g., aggravated assault, homicide) involve other adolescents; in contrast, adults typically are lone offenders.32
Finally, adolescents have, on average, lower levels of self-control than adults.33 Not
surprisingly, a dominant theory of crime has been based on the low self-control construct, defined essentially as impulsivity and lack of effortful control in all forms of decision-making.34 More specifically, self-control refers to the ability to modulate or exercise
28

29

30

31

32

33

34

Buchanan et al., Are adolescents the victims of raging hormones? Evidence for activational
effects of hormones on moods and behavior at adolescence, 111 Psychological Bulletin (1992),
pp. 62-107.
Supra, note 23, Blakemore and Robbins 2012 ff.; Gardner and Steinberg, Peer influence on
risk taking, risk preference, and risky decision making in adolescence and adulthood: An
experimental study, 41(4) Developmental Psychology (2005), pp. 625-635; Steinberg and
Monahan, Age differences in resistance to peer influence, 43(6) Developmental Psychology
(2007), pp. 1531-1543; Simons-Morton and Farhat, Recent findings on peer group influences on
adolescent substance use, 31(4) Journal of Primary Prevention (2010), pp. 191-208.
Carrington, Co-offending and the development of the delinquent career, 47(4) Criminology
(2009), pp. 1295-1329.
Berndt, Developmental changes in conformity to peers and parents, 15(6) Developmental
Psychology (1979), pp. 608-616; Costanzo and Shaw, Conformity as a function of age level, 37(4)
Child Development (1966), pp. 967-975; Supra, note 30, Gardner and Steinberg 2005 ff.
Farrington, Early predictors of adolescent aggression and adult violence, 4(2) Violence and
victims (1989), pp. 79-100; Lipsey and Derzon, Predictors of violent or serious delinquency
in adolescence and early adulthood: A synthesis of longitudinal research, in Serious & Violent
juvenile Offenders: Risk factors and successful interventions, eds. Loeber and Farrington (Sage
Publications 1998), pp. 86-105; Supra, note 19, Moffitt 1993 ff.; Saner and Ellickson, Concurrent
risk factors for adolescent violence,19(2) Journal of Adolescent Health (1996), pp. 94-103.
Supra, note 24, Blakemore and Robbins 2012 ff.; Leon-Carrion et al., Development of the
inhibitory component of the executive functions in children and adolescence, 114 International
Journal of. Neuroscience (2004), pp. 1291-1311; Supra, note 24. Steinberg et al 2008 ff.
Supra, note 18, Gottfredson and Hirschi 1990 ff.
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Raymond Corrado and Jeffrey Mathesius

constraint over one’s immediate attentional, emotional, and behavioral impulses. Low
self-control can intensify the typically reward-centered focus of adolescents, thereby further diminishing their cost-assessment of antisocial and self-harming risky behaviors.35
Low self-control is one of the most robust correlations to serious delinquent and criminal
behavior.36 Yet, most importantly, despite the general decline of criminal behavior in late
adolescence and early adulthood, low self-control generally does not diminish more fully
until approximately the mid-20s.37 The explanation for this turning point at adulthood
regarding low self-control primarily has involved more recent research on brain neuronal
maturation. Collectively, psychosocial factors include both individual (e.g., low self-control; hyperfocus on rewards; hypofocus on the risks and long-term implications) and situational/contextual factors, such as peer influence, as well as highly emotional situations
which are particularly new, novel, and/or ambiguous.

35

36

37

Farrington, Experiments on deviance with special reference to dishonesty, In Advances in
experimental social psychology, vol 12, ed, Berkowitz (Academic Press 1988), pp. 207-252;
Farrington et al., The development of offending from age 8 to age 50: Recent results from
the Cambridge Study in Delinquent Development, 92 Monatsschrift fur Kriminologie und
Strafrechtsreform (2009), pp. 160-173; Farrington et al., Long-term criminal outcomes of
hyperactivity-impulsivity-attention-deficit and conduct problems in childhood, In Straight and
devious pathways from childhood to adulthood (Eds, Robins and Rutter) (Cambridge University
Press 1990), pp. 62-82; Caspi and Silva, Temperamental qualities at age three predict personality
traits in young adulthood: Longitudinal evidence from a birth cohort, 66(2) Child Development
(1995), pp. 486-498; White et al., Measuring impulsivity and examining its relationship to
delinquency, 103(2) Journal of Abnormal Psychology (1994), pp. 192-205; Supra, note 18,
Gottfredson and Hirschi 1990 ff.
Pratt and Cullen, The empirical status of Gottfredson and Hirschi’s general theory of crime: A
meta-analysis, 38(3) Criminology (2000), pp. 931-964.
Steinberg, A social neuroscience perspective on adolescent risk-taking, 28 Developmental Review
(2008), pp. 78-106.
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2.3 Neurological development of decision-making and the
adolescent brain38
The adolescent brain typically undergoes several normative cognitive and psychosocial developmental changes in decision-making abilities.39 These changes are initially
linked to physical maturation associated with puberty-related hormones such as testosterone,40 as well as other hormones such as cortisol41 and neurotransmitters42 such as
epinephrine (adrenaline).43 These neurotransmitter and hormonal changes (discussed in
more detail below) are associated with changes in mood44 and are influenced by an interaction between rapidly evolving gender-based self-identities and stressful social relationships, especially those involving authority figures and peers. Self-identity labeling usually
38
39

40

41

42

43

44

See appendix A for a list of key terms and definitions
Paus, Mapping brain maturation and cognitive development during adolescence, 9(2) Trends in
Cognitive Sciences (2005), pp. 60-68; Steinberg, Adolescent development and juvenile justice, 5
Annual Review of Clinical Psychology (2009), pp. 459-485; Blakemore, Development of the social
brain in adolescence, 61 The Quarterly Journal of Experimental Psychology (2012), pp. 40-49;
Pfeifer and Blakemore, Adolescent social cognitive and affective neuroscience: Past, present,
and future, 7 Social Cognitive & Affective Neuroscience (2012), pp. 1-10; Blakemore, Imaging
brain development: The adolescent brain, 61 NeuroImage (2012), pp. 397-406; Blakemore and
Coudhury, Development of the adolescent brain: Implications for executive function and social
cognition, 47(3) Journal of Child Psychology and Psychiatry (2006), pp. 296-312; Blakemore and
Robbins, Decision-making in the adolescent brain, 15(9) Nature Neuroscience (2012), pp. 11841191.
Dabbs et al., Salivary testosterone and cortisol among late adolescent male offenders, 19(4) Journal
of Abnormal Child Psychology (1991), pp. 469-478; Daitzman and Zuckerman, Disinhibitory
sensation seeking, personality and gonadal hormones, 1(2) Personality & Individual Differences
(1980), pp. 103-110.
Oosterlaan et al., Low basal salivary cortisol is associated with teacher-reported symptoms
of conduct disorder, 134 Psychiatry Research (2005), pp. 1-10; Shoal et al., Salivary cortisol,
personality, and aggressive behavior in adolescent boys: A 5-year longitudinal study, 42(9) Child
and Adolescent Psychiatry and Mental Health, (2003), pp. 1101-1107.
Neurotransmitters are chemicals within the nervous system that are responsible for the
transmission of information from one cell to another. Accordingly, they are critical to healthy
functioning, including, but not limited to, domains such as decision-making, emotional
regulation, and movement.
Curtin et al., Reward dependence is positively related to urinary monoamines in normal
men, 42(4) Biological Psychiatry (1997), pp. 275-281; Peskin et al., Personal characteristics of
delinquents: Neurobiology, genetic predispositions, individual psychosocial attributes, in The
Oxford handbook of juvenile crime and juvenile justice, eds. Feld and Bishop (Oxford University
Press 2012), pp. 73-106; Swaab, We are our brains: A neurobiography of the brain, from the womb
to Alzheimer’s (Spiegel & Grau 2014).
Bao et al., Neurotransmitters and neuropeptides in depression, In Handbook of Clinical
Neurology, eds. Schlaepfer and Nemeroff, 3rd ed., (Elsevier 2012) pp. 107-136; Raadsher et al.,
Increased numbers of corticotropin-releasing hormone expressing neurons in the hypothalamic
paraventricular nucleus of depressed patients, 60 Neuroendocrinology (1994), pp. 436-444.
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involves a combination of the influences of both external parental/authority-invoked labels and peer-invoked labels.45 Differences or gaps between desirable self-identities and
negative, externally imposed labels, can, not uncommonly, act as a major source of adolescent stress, frustration, and anger. These negative emotional reactions can increase the
likelihood of anxiety or depression,46 as well as aggression.47
Certain combinations of unusual neurological and hormonal profiles consistent with
early and persistent risk-taking and anti-social behavior also have been associated with
child and adolescent developmental disorders, most importantly, oppositional defiant
disorder (ODD),48 conduct disorder (CD),49 as well as developmental neurological disorders such as Fetal Alcohol Spectral Disorder (FASD)50 and autism spectrum disorder
(ASD).51 Further, reduced levels of cortisol combined with high levels of testosterone are
associated with juvenile delinquency.52 Different neurological and hormonal profiles are
also evident for adult personality disorders, particularly, antisocial personality disorder
(ASPD)53 and the related and more serious, psychopathic personality disorder (PPD).54

45

46

47

48

49
50
51

52

53

54

Hay and Ashman, The development of adolescents’ emotional stability and general self-concept:
The interplay of parents, peers, and gender, 50 International Journal of Disability, Development,
and Education (2003), pp. 77-91.
Boldero et al., Self-discrepancies and negative affect: A primer on when to look for specificity,
and how to find it, 57(3) Australian Journal of Psychology (2005), pp. 139-147; De Vries et al.,
Autism spectrum disorders in gender dysphoric children and adolescents, 40(8) Journal of
Autism and Developmental Disorders (2010), pp. 930-936.
Peled and Moretti, Rumination on anger and sadness in adolescence: Fueling of fury and
deepening of despair, 36 Journal of Clinical Child and Adolescent Psychology (2007), pp. 66-75.
Van Goozen et al., Increased adrenal androgen functioning in children with oppositional defiant
disorder: A comparison with psychiatric and normal controls, 39(11) Journal of the American
Academy of Child & Adolescent Psychiatry (2000), pp. 1446-1451.
Supra, note 41, Oosterlaan et al. 2005 ff.
Supra, note 42. Peskin et al. 2012 ff.
Minshew and Keller, The nature of brain dysfunction in Autism: Functional brain imaging
studies, 23(2) Current opinion in neurology (2010), pp. 124-130.
Popma et al., Cortisol moderates the relationship between testosterone and aggression in
delinquent male adolescents, 61(3) Biological Psychiatry (2007), pp. 405-411.
Raine et al., Reduced prefontral gray matter volume and reduced autonomic activity in antisocial
personality disorder, 57(4) Archives of general psychiatry (2000), pp. 119-127.
De Oliveira-Souza et al., Psychopathy as a disorder of the moral brain: Fronto-temporo-limbic
grey matter reductions demonstrated by voxel-based morphometry, 40(3) NeuroImage (2008),
pp. 1202-1213.
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Both ASPD55 and PPD56 are believed to have their roots in earlier development. A contentious clinical issue that often has forensic and legal relevance, though, is whether later adult personality disorders can be assessed in the earlier adolescent stages or even
possibly in late childhood.57 The legal issues often focus on rational decision-making as
opposed to less “controllable” decision-making based on impulse, which was discussed
above regarding competency to stand trial, criminal culpability and the mitigation or
aggravation of sentencing.
A related research theme that is currently emerging involves brain morphology (i.e.,
structure/shape) and its development from childhood to adulthood. This change in brain
morphology across early developmental periods has important implications, to be discussed below, for cognitive and psychosocial decision-making. In particular, children
and adolescence experience pronounced neurological development and it is not until
adulthood that the brain becomes fully developed. Tomáš Paus58 and Laurence Steinberg59 identified several interrelated structural changes of critical importance in the adolescent brain. Importantly, during pre- and early-adolescence, a substantial reduction in
grey matter60 occurs within the prefrontal cortex (i.e., the central brain structure for decision-making located at the front of the brain), which is especially important for prosocial

55

56

57

58
59
60

Lahey et al., Predicting future antisocial personality disorder in males from a clinical assessment
in childhood, 73(3) Journal of Consulting and Clinical Psychology (2005), pp. 389-399.
Pardini et al., Callous/unemotional traits and social-cognitive processes in adjudicated youths,
42(3) Journal of the American Academy of Child and adolescent Psychiatry (2003), pp. 364-371;
Lynman, Early identification of chronic offenders: Who is the fledgling psychopath?, 120(3)
Psychological Bulletin (1996), pp. 209-234.
Corrado, Does psychopathy appear only in adulthood?, in The Future of Criminology, eds.
Loeber and Welsch (Oxford University Press 2012) pp. 141-152; Corrado et al., Predictive
validity of the Psychopathy checklist: Youth Version: Psychopathic symptoms and recidivism,
22 Behavioral Science and the Law (2004), pp. 5-22; Salekin and Lynam, Handbook of Child &
Adolescent Psychopathy (The Guilford Press 2010); Vincent and Hart, Psychopathy in childhood
and adolescence: Implications for the assessment and management of multi-problem youths, in
Multi-problem violent youth: A foundation for comparative research on needs, interventions, and
outcomes, eds. Corrado et al. (Amsterdam IOS Press 2002), pp. 150-163.
Supra, note 39, Paus 2005 ff.
Supra, note 38.
Grey matter is an unmyelinated of neuron (i.e., brain cell) within the nervous system. Grey
matter can be contrasted with a second prominent neuron within the nervous system referred to
as white matter (i.e., glia). White matter contains a myelinated axon (i.e., an axon is a projection
from the cell body and is responsible for the transmission of cell signals), in which the myelination
acts as an insulator around the cell axon; therefore accelerating the transmission of the message
from one neuron to the next. Accordingly, white matter more efficiently communicates messages
between neurons than does grey matter given that grey matter lacks the insulated (i.e. myelin)
covering.
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behaviors.61 Grey matter reduction involves synaptic pruning,62 which peaks at approximately 16 years of age,63 then slowly reduces into early adulthood, and is largely complete by 25 or 26 years of age.64 Synaptic pruning is hypothesized to be essential for the
efficiency or ‘fine-tuning’ of pathways within the brain and the emergence of “mature”
patterns of neural processing that have a positive effect on decision-making (i.e., reduction of harmful high-risk behaviors). Both the cognitive and psychological domains of
decision-making appear to be enhanced by two specific factors.65 These are, on the one
hand, the efficiency of cortical66 neuronal networks in the various regions of the prefrontal cortex, and on the other hand the complex interconnections between the prefrontal
cortex and the emotional regions of the brain, particularly the limbic areas.67 The initial
acceleration in the rate of grey matter reduction during early adolescence corresponds
with improvements in basic cognitive decision-making mentioned above. This pattern
suggests that this genetically-determined brain development (i.e., pruning) is likely critical to adolescent receptivity to environmental factors (e.g., social discipline, peer pressure) that strengthen the use of the psychosocial domain to reduce impulsive high-risk
life-styles. Conversely, any disruptions in this pruning process, or, more broadly, the
neurodevelopmental processes preceding pruning, is likely to diminish this influence.
These disruptions may be caused by rare genetic mutations, such as the case with autism spectrum disorder,68 epigenetic effects (e.g., severe stress69, excessive/binge alcohol

61

62

63

64

65

66

67

68

69

The prefrontal cortex is responsible for executive functions such as problem solving, selfregulation, planning, working memory, reasoning, and attention, among others. As such, the
prefrontal cortex plays a key role in decision-making and risk taking.
Synaptic pruning refers to the removal of synapses (synapses are located at the end of axons
and are responsible for the release of chemical messengers (i.e., neurotransmitters) to stimulate
adjacent neurons).
Casey et al., Imaging the developing brain: What have we learned about cognitive development?
9(3) Trends in Cognitive Science (2005), pp. 104-110.
Raznahan et al., Patterns of coordinated anatomical change in human cortical development: A
longitudinal neuroimaging study of maturational coupling, 72(5) Neuron (2011), pp. 873-884.
Giedd et al., Brain development during childhood and adolescence: A longitudinal MRI study,
2(10) Nature neuroscience (1999), pp. 861-863; Zehr et al., Dendritic pruning of the medial
amygdala during pubertal development of the male Syrian hamster, 66(6) Journal of Neurobiology
(2006), pp. 578-590.
Refers to the cerebral cortex of the brain, which is the thin outer neuronal layer of the brain
responsible for higher order processes such as thought, attention, memory, consciousness, and
language, among others.
The limbic system is located in the middle of the brain (under the cerebral cortex) and consists of
multiple brain structures (e.g., amygdala, hippocampus, limbic cortex, limbic midbrain), which
are heavily involved in emotion among other processes (e.g., memory).
Abrahams and Geschwind, Advances in autism genetics: On the threshold of a new neurobiology,
9(5) Nature Reviews Genetics (2008), pp. 341-355.
Charil et al., Prenatal stress and brain development, 65 Brain Research Reviews (2010), pp. 56-79.
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consumption by pregnant mother70), adolescent substance use (e.g., marijuana)71 during
this adolescent period), as well as early childhood emotional trauma,72 early childhood
stress,73 as well as physical brain injury,74 among others.
Paus75 and Steinberg76 also elaborated a second major neurological development: the
increase in white matter (i.e., glia) within the prefrontal cortex. Given the essential role
of the prefrontal cortex in executive functions such as decision-making, attention, planning, and self-control, this increase in white matter has been hypothesized to be associated with the significant improvements in decision-making capabilities observed in the
late adolescent stage. Especially affected is the integration of cognitive and psychosocial
domains that enhance the ability to reason more effectively, to consider and plan for the
future, as well as increased self-regulation.77 This white matter increase appears to culminate at approximately 21 years.78
The third neurological change in adolescence, initially discussed above with regard
to self-identity, involves dopamine79 activity within the limbic system. The limbic system
is responsible for emotional and social processing associated with social judgment and
reasoning. Importantly, the limbic system affects reward and sensation-seeking behavior.
Again, during the immediate pre-pubescence and puberty stages, a dramatic increase
in dopamine activity occurs within the limbic system that stimulates reward and sensation-seeking behaviors beginning in early adolescence.80 Importantly, this surge in do70

71

72

73

74

75
76
77

78

79

80

Guerri and Pascual, Mechanisms involved in the neurotoxic, cognitive, and neurobehavioral
effects of alcohol consumption during adolescence, 44 Alcohol (2010), pp. 15-26.
Bonnin et al., Effects of perinatal exposure to ∆9-tetrahydrocannabinol on the fetal and early
postnatal development of tyrosine hydroxylase-containing neurons in rat brain, 7 Journal of
Molecular Neuroscience (1996), pp. 291-308; Malone et al., Adolescent cannabis use and psychosis:
Epidemiology and neurodevelopmental models, 160(3) British Journal of Pharmacology (2010),
pp. 511-522.
Perry et al., Childhood trauma, the neurobiology of adaptation, and ‘use-dependent’ development
of the Brain: How ‘states’ become “traits’, 16(4) Infant Mental Health Journal (1995), pp. 271-291.
Teicher et al., The neurobiological consequences of early stress and childhood maltreatment, 27
Neuroscience and Biobehavioral Reviews (2003), pp. 33-44.
Taylor and Alden, Age-related differences in outcomes following childhood brain insults: An
introduction and overview, 3(6) Journal of the International Neuropsychological Society (2000),
pp. 555-567.
Supra, note 39.
Supra, note 38.
Luna et al., Maturation of widely distributed brain function subserves cognitive development,
13(5) Neuroimage (2001), pp. 786-793.
Lenroot et al., Sexual dimorphism of brain developmental trajectories during childhood and
adolescence, 36(4) Neuroimage (2007), pp. 1065-1073.
Dopamine is a neurotransmitter (i.e., chemical messenger in the brain) that has multiple
pathways through different brain regions and has many important roles in the nervous system.
Supra, note 38.
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pamine activity within the limbic network occurs long before the full maturation of the
cognitive control system, which typically has an inhibitory effect.
A basic change in the secretion of the hormone oxytocin, associated with social bonding, is the fourth key neurological change in adolescence.81 This also facilitates an increased awareness of the opinion of others, which is essential for the development and
maintenance of empathy and prosocial behaviors.82 Conversely, reduced empathy is associated with greater susceptibility to bullying, particularly violent forms of bullying,83 as
well as serious violent crime more generally in adolescence.84
Obviously, it is not possible in this article to fully explore the enormously complex
neuroscience of rational decision-making among children, adolescents and young adults.
We instead have tried to highlight several of the more recent “breakthrough” findings
that have, we believe, direct implications for juvenile justice. One of the most important
limitations of this review was the very brief mention of the personality disorders that
have increasingly become a major theoretical and politically contentious issue. For the
few extremely violent young offenders, a popular public and political response in several
countries such as Canada and certain US states has been to assume that punishment
and deterrence is the necessary basis for sentencing. It is, however, not yet evident from
current research whether a personality disorder-based perspective on serious and violent
crime can be incorporated within such discussions on public policy in the field of youth
justice. The following section seeks to elaborate on key characteristics associated with
serious and violent young offenders, including the role of personality disorder, and their
implication for decision-making.

3
Serious violent young offenders: individual characteristics and
decision-making
Serious and violent young offenders (SVOs) represent a subgroup of juvenile delinquents
who are responsible for the majority of serious crimes such as robbery, aggravated as-

81

82
83

84

Winslow and Insel, Neuroendocrine basis of social recognition, 14(2) Current Opinion in
Neurobiology (2004), pp. 248-253.
Supra, note 38
Jolliffe and Farrington, Examining the relationship between low empathy and bullying, 32(6)
Aggressive Behavior (2006), pp. 540-550.
Frick et al., Callous-unemotional traits and conduct problems in the prediction of conduct
problem severity, aggression, and self-report of delinquency, 31(4) Journal of Abnormal Child
Psychology (2003), pp. 457-470.
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sault, drug trafficking, and sexual assault throughout the course of their life.85 SVOs typically suffer from cognitive deficits such as poor problem-solving skills, limited abstract
reasoning abilities,86 as well as low verbal IQ.87 These cognitive deficits have direct negative consequences on the adolescent’s ability to accurately and comprehensively assess
the risks and benefits of a given situation, and, accordingly, to make mature responsible
decisions.
A major long-term and on-going Canadian study of incarcerated young offenders
indicates that young offenders from certain ethnic and racial groups, primarily Aboriginal, are substantially over represented among SVOs.88 Another major theme is the role
of substance abuse among SVOs. For example, approximately 36% of youth incarcerated
in this detention center consumed alcohol and/or marijuana prior to 12 years of age.
Approximately 50% of the sample have used cocaine, 30% have used heroin, and 20%
have consumed speed.89 The impact of serious substance abuse on brain development
and functioning is well known,90 as is its subsequent negative impact on decision-making
such as increased impulsivity and reward-seeking behavior.91 In a Dutch study of incarcerated young offenders, Coby Vreugdenhil and colleagues92 in 2004 reported the mental
85

86

87

88

89

90

91

92

Kelley et al., Epidemiology of serious violence. Office of Juvenile Justice Bulletin. Washington,
D.C.: Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice (1997);
LeBlanc and Fréchette, Male criminal activity from childhood through youth: Multilevel and
developmental perspectives (Springer-Verlag 1989); Supra, note 19, Moffitt 1993 ff.; Wolfgang et
al., Evaluating criminology (Elsevier 1972).
Séguin et al., Cognitive and neuropsychological characteristics of physically aggressive boys,
104(4) Journal of Abnormal Psychology (1995), pp. 614-624.
Brennan et al., Integrating biological and social processes in relation to early-onset persistent
aggression in boys and girls, 39(2) Developmental Psychology (2003), pp. 309-323. Lynman et
al., Neuropsychological tests predict persistent male delinquency, 32(2) Criminology (1994), pp.
101-124; Raine, The psychopathology of crime: Criminal behavior as a clinical disorder (Academic
Press 1993).
Corrado and Cohen, A needs profile of Aboriginal youth in prison, 14(3) FORUM on Corrections
Research (2002), pp. 20-24; Corrado et al., The over-representation of Aboriginal youth in
custody: Policy challenges, 10 Horizons (2008), pp. 79-82; Peters and Corrado, An examination
of the early ‘Strains’ of imprisonment among young offenders incarcerated for serious crimes,
2(2) Journal of Juvenile Justice (2013), pp. 76-94.
McCuish and Corrado, A lifestyles theoretical perspective on patterns of substance use and
offending profiles of juvenile offenders. Paper presented at the American Society of Criminology
on November 15, 2012.
Guerri and Pascual, Mechanisms involved in the neurotoxic, cognitive, and neurobehavioral
effects of alcohol consumptions during adolescence, 44 Alcohol (2010), pp.15-26.
Jentsch and Taylor, Impulsivity resulting from frontostriatal dysfnction in drug abuse:
Implications for the control of behavior by reward-related stimuli,146(4) Psychopharmacology
(1999), pp. 373-390.
Vreugdenhil et al., Psychiatric disorders in a representative sample of incarcerated boys in The
Netherlands, 43 Journal of the American Academy of Child & Adolescent Psychiatry (2004), pp.
97-104.
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Raymond Corrado and Jeffrey Mathesius

health risk profiles were extreme in their sample (i.e., 90% reported at least one psychiatric disorder, with 75% reporting disruptive behavior disorder, 55% reporting substance
use disorder, and 34% reporting psychotic symptoms). These findings from the Dutch
sample are consistent with samples from the United States in which approximately twothirds of incarcerated juvenile offenders have at least one psychiatric disorder,93 while
a substantial minority exhibit moderate to high symptoms for more severe psychiatric
disorders such as schizophrenia (30%), mania (18%), and posttraumatic stress disorder
(26%).94 Relatedly, psychopathic traits are more common in juvenile offenders following
a chronic offending trajectory as compared to a more moderate rate of offending trajectory.95 Finally, SVOs are also characterized by early childhood trauma such as prenatal
and perinatal exposure to toxins (e.g., alcohol, cocaine),96 physical and sexual childhood
abuse,97 and are more likely to suffer from neurological deficits.98 These deficits critically
compromise the normal development of mature decision-making abilities and will likely
hyper-accentuate normative decision-making deficits in the adolescent age, placing these
already vulnerable youth at a greater risk of becoming involved in delinquent activity.

4

Discussion

This review of the psychological and neurological development of decision-making
reveals 5 key legal policy implications. First, there appears to be sufficient research to
support the traditional theme to justify a legally distinct juvenile justice system because
adolescents are inherently less capable of making rational and mature decisions compared to adults. In other words, developmental differences in decision-making increase
the likelihood of participation in criminal behavior and reinforce the long-standing legal
principle of diminished responsibility for a general category of offenders.
93

94

95

96

97

98

Teplin et al., Psychiatric disorders in youth in juvenile detention, 59 Archives of General Psychiatry
(2002), pp. 1133-1143.
Robertson et al., Prevalence of mental illness and substance abuse disorders among incarcerated
juvenile offenders in Mississippi, 35 Child Psychiatry and Human Development (2004), pp. 55-74.
McCuish et al., Psychopathic traits and offending trajectories from early adolescence to
adulthood, 42 Journal of Criminal Justice (2014), pp. 66-76; Supra, note 56, Salekin and Lynman
(2010) ff.
Reiss and Roth, Understanding and preventing violence: Panel on the understanding and control of
violent behavior, Vol. 1 (National Academy Press 1993)
Farrington, The family backgrounds of aggressive youths, in Aggression and anti-social behavior
in childhood and adolescence, eds. Hersov, Berger, and Shaffer (Pergamon Press 1978), pp. 73-93;
Manly et al., The impact of subtype, frequency, chronicity, and severity of child maltreatment on
social competence and behavior problems, 6 Developmental Psychology (1994), pp. 121-143; Seto
and Lalumière, What is so special about male adolescent sexual offending? A review and test of
explanations through meta-analysis, 136(4) Psychological Bulletin (2010), pp. 526-575.
Moffitt et al., Neuropsychological tests predict persistent male delinquency, 32(2) Criminology
(1994), pp. 101-124.
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Second, with regards to the age of criminal responsibility, the research on basic cognitive decision-making capacities suggests that the ability to accurately assess the
risks and benefits of a decision are not fully developed until middle adolescence, approximately 16 years of age. In addition to these cognitive deficits, children and adolescents under the age of 16 also typically have underdeveloped psychosocial capacities.
Accordingly, those under the age of 16 years exhibit the poorest decision-making skills,
and, consequently are at the greatest risk for risk-taking and criminal activity. More specifically, these individuals exhibit, on average, less ability to accurately identify the risks
and benefits of a given situation and are unable to fully appreciate the immediate severity
of their “criminal choices”, as well as the long-term negative impacts to their victims and
themselves. Further, these individuals are typically highly impulsive, are greatly influenced by antisocial peers, are hyper-focused on the potential rewards of a given decision,
and are more likely to minimize the potential negative repercussions of their actions. Not
surprisingly, the average age of a juvenile offender is 14-15 years of age. This age group
begins to spend more time with their peers, are away from parental and other authority
monitoring, and are most likely to encounter new, risky, and dangerous situations while
having underdeveloped cognitive and psychosocial decision-making abilities. This pattern of findings lends support for a minimum age of criminal responsibility at 16 years
within the juvenile justice system, such as is practiced in Sweden.
Third, for the age of majority theme, while cognitive decision-making typically is fully
developed by 16 years of age, psychosocial capacities continue to develop well into early
adulthood – approximately 24 years of age. Though the typical 18-year old can efficiently
identify the risks and benefits associated with a decision, they still are susceptible to risky
social/situational contexts (e.g., antisocial peers, social relationship stress, and threat ambiguity), and key psychological risk factors (e.g., impulsivity, hypersensitivity to reward,
and reduced response to punishment). The developmental gap between cognitive decision-making and psychosocial factors, lasting until approximately the mid-twenties, is
critical to understanding late adolescent risky decision-making, particularly, while adolescent decision-making is often dependent on the social context. This raises the possibility that the more appropriate maximum age for youth justice systems might be 24 years.
Similar sentiments have been put forth by Professor D. F. Swaab,99 the renowned Dutch
neuroscientist and former long-time director of the Netherlands Institute for Neuroscience (formerly Institute for Brain Research), who concluded on the basis of this institute’s
research and other neuroscientists that:
The development of the prefrontal cortex is a slow process, continuing until the age of
25. It’s only at that age that an individual is fully equipped to control their impulses and
make moral judgments… the age at which offenders are tried under adult criminal law
shouldn’t be reduced to, say, sixteen, as some politicians are urging in an effort to woo
99

Supra, note 42 Swaab 2014 ff.
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voters, but should rather be raised to an age at which brain structures are mature, at
around twenty three to twenty five (p. 1168).

The fourth policy theme is competency. Until recently, adjudicative competence was
infrequently raised within the juvenile justice system and, when raised, usually involved
either one of two conditions: severe mental illness (e.g., psychosis) or mental retardation/
handicap. Accordingly, there has been little discussion amongst politicians and lawmakers as to whether developmental immaturity constitutes a legitimate legal argument for
a judgment of incompetency and related legal themes. This review reveals a substantial
gap with contemporary empirical literature on decision-making as related to competency
and the law. Specifically, it is clear that the typical child and early adolescent (less than
13 years of age) do not possess the necessary decision-making capacities to be rendered
competent under the standards clearly set out in Dusky v. United States (1960). Upon
reaching 14 years of age, however, there is a progression toward greater competency-related abilities over the next two years until 16 years of age in which most adolescents
exhibit the same levels of competency to stand trial as do adults. These findings suggest
that for those jurisdictions with a minimum age of criminal responsibility below 13 years
of age, competency to stand trial will likely be a critical factor throughout the trial procedure. Critically, however, while research indicates that upon researching 16 years of age,
the typical adolescent is as competent as an adult defendant, the contemporary psychometric tools used to assess competency (e.g., Competency Screening Test (CST)100 and
the MacArthur Competency Tool – Criminal Adjudication (MacCAT-CA)),101 are based
on primarily cognitive decision-making models. In contrast, the psychosocial capacities
in competency-related decisions have yet to be sufficiently addressed despite their importance for mature decision-making. This relationship is particularly important because
late adolescents appear competent based on cognitive decision-making criteria, however
as mentioned above, literature on psychosocial traits indicate that this age group exhibits
a hyper-focus on the present moment, are impulsive, are highly influenced by antisocial
peers, are highly influenced by new social contexts, and have a limited understanding of
the costs of punishment. This research suggests that more fully developed or multi-domain competency instruments need to be formulated and utilized for jurisdictions where
the age of criminal responsibility is below 16. In contrast, there appears to be insufficient
research regarding late adolescent competency issues and the validity of related instruments.
Fifth, the most contentious issue yet is the criminal legal culpability of child and adolescent serious and violent offenders. Specifically, at what age is there confidence that sufficient cognitive and psychosocial capabilities exist to fully comprehend the consequences
100

101

Lipsitt et al., Competency for Trial: A screening instrument, 128 American Journal of Psychiatry
(1971), pp. 105-109.
Supra, note 10, Poythress 2010 ff.
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of a major violent act? As previously mentioned, adolescents along with young adults (up
to age 25), exhibit reduced decision-making capabilities, which is associated with poorer
decision-making and greater risk-taking. Importantly, the majority of the above-mentioned research focuses on the psychological and neurological development in the typical
adolescent. Of course, there is considerable individual variation in both the psychological and neurological bases of decision-making. Indeed, severe cognitive deficits, low IQ,
and neurological abnormalities, as well as profound mental health and substance abuse
problems typically characterize SVOs. In addition, a number of personality disorders
common to juvenile detention facilities (e.g., APSD, Psychopathy), are also marked by
neurological deficits. These risk factors have direct influences on decision-making capacities and greatly exacerbate an already vulnerable system, placing these individuals at a
particular risk of serious criminal behavior. Critically, and, as mentioned previously, risk
factors for many serious and violent offenders begin early in development (i.e., within
the pre/perinatal developmental period). Therefore, it is possible that early interventions
(e.g., home nurse visitations) may greatly benefit these individuals. Further, as previously
mentioned, ethnic minority members are consistently overrepresented within juvenile
detention facilities throughout the world. In effect, criminal courts, with their punitive
focus when judging adolescents and young adults, have been criminalizing individuals
predominantly suffering from neurological deficits, who would be more appropriately
handled through health care treatments.

5

Conclusion

The main theme of this article has focused on considering the implications of the most
recent research on the psychological and neurobiological bases of several key assumptions of juvenile justice systems in advanced Western industrial liberal democratic countries. Given the rapidly evolving and groundbreaking research discussed above and the
enormous complexities of all developmental theoretical models of serious and violent
offending, the recommendations in this article are necessarily tentative. Nonetheless, this
research will hopefully stimulate a serious discussion of key legal assumptions evident in
most contemporary juvenile justice systems. There is little doubt that, apart from several
state jurisdictions in the US, few other countries have recent histories of incarcerating
young offenders and young adults in large numbers and/or for lengthy periods. Even
among the traditionally more punitive and deterrence oriented US states such as Texas
and New York, there has been a recent downward trend in custody use. Part of this encouraging change appears related to a recognition by politicians and senior juvenile justice policy officials of the complex empirical research and development in theory, some
of which has been discussed here, which illustrates why the enormously costly juvenile
justice systems based on adult criminal justice principles has neither reduced serious vi-

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olent recidivism nor deterred others from such crimes.102 Yet, despite declining use of incarceration within the US, there is little evidence that the current psychological and neurological research has even been considered or debated among politicians with regards
to raising the minimum age of responsibility to mid-adolescence and the age of majority
to age 23-24, or the implications of this research for juvenile competency to stand trial.

102

Carrington, Trends in serious and violent youth crime in Canada, 1986-2011, in Serious and
Violent Young Offenders and Youth Criminal Justice: A Canadian Perspective, eds. Corrado,
Leschied, and Lussier (Simon Fraser University Press, forthcoming in 2014); Supra, note 3 Cook
and Roesch 2012 ff.
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Appendix A. Definitions of key neuroscience terms.
Labels
Neuron

White matter

Grey matter
Synaptic Pruning

Neurotransmitters

Dopamine
Neural network

Hormones
Testosterone
Cortisol
Oxytocin
Brain Regions
Prefrontal Cortex
Limbic System

Definition
A cell within the nervous system that processes and transmits information via electrical and
chemical signals to adjacent cells. Four key structures of the neuron are: 1) cell body, 2) dendrites
(i.e., branches of the cell where information comes in), 3) axon (i.e., carries information from the
cell body to the terminal buttons), and 4) terminal buttons (i.e., located at the end of the axon,
responsible for the release of chemicals, i.e., neurotransmitters, to adjacent cells)
A type of neuron in which the axon is covered by a myelin sheath. The myelin sheath acts as
a protective layer around the axon and allows for more efficient transmission of the electrical
signal across the axon from the cell body to the terminal button. In other words, it allows for a
more efficient communication of information between neurons. The term ‘white” in white matter
comes from the fact that the myelin sheath gives the neuron a white appearance.
A neuron that does not have a myelin sheath around its axon. Accordingly, these neurons have
slower, less efficient, rates of communication.
The elimination of axons/synapses. The purpose is to create more efficient networks of neurons. The
pruning process is governed by both normative biological processes, as well as by environmental
influence (i.e., “use it or lose it”). In this sense, synaptic pruning is shaped by experience and
learning.
Chemical signals released from the terminal button of an axon, which stimulate, and, therefore
transmit, information to adjacent neurons. There are many different types of neurotransmitters
(e.g., dopamine, serotonin) that are located in different pathways throughout the brain.
Neurotransmitters have various functions such as mood, hunger, sleep cycles, and movement,
among others
A type of neurotransmitter that has an important role in arousal and motor control, and, of
particular importance here, in reward-motivated behavior.
A series of interconnected neurons, which acts as its own functional entity and can regulate its
own activity via feedback, loops. Neural networks are responsible for more complex task-specific
processing than any individual cell.
Molecules that are transported through the circulatory (i.e., blood) system and regulate physiology
and behavior.
A type of hormone that is secreted primarily from the testicles in males and the ovaries in females.
Within men it is has been linked to aggression and dominance.
A type of hormone that is secreted in time of stress and is linked to the body’s fight-or-flight
system. Low levels of cortisol is an indication of low stress/low fear.
A type of hormone that is responsible for social behaviors, particularly those involving sexual
reproduction, such as social recognition, pair bonding, orgasm, trust, and empathy.
Located in the front part of the brain (i.e., frontal lobe) and is responsible for planning, decisionmaking, and the moderation of social behavior, among other functions.
Located in the middle of the brain and is composed of a number of interconnected brain structures
such as the olfactory bulbs, hippocampus, amygdala, and the limbic cortex, among other regions.
Some of the key functions within the limbic system are long-term memory, emotion, and
motivation.

163