Prosecutors in Maricopa County, Arizona, are relying on a controversial report to try to discredit longstanding research on the differences between teenage and adult brains.
The report, filed under seal in at least one case and recently obtained by The Appeal, argues that some young people are capable of understanding their offenses, especially murder, and should be judged individually, in the same way as adults.
It cites various studies to argue that teenagers are not “meaningfully different from adults” when it comes to judgment, reasoning, planning, impulse management, self-control, and other cognitive functions.
“The available literature demonstrates that those adolescents who murder may be disadvantaged by a number of psychosocial or socioeconomic considerations, drug abuse, mental illness, or character disorders,” the report says. “This is no different from those who murder at older ages.”
The report is an attack on pivotal decisions by the U.S. Supreme Court that prohibited extreme sentences for children and teenagers. In Miller v. Alabama in 2012 and in Montgomery v. Louisiana, which made the Miller decision retroactive, the Court argued that because of “fundamental differences” between childrens’ and adults’ brains, young people who commit crimes are more impulsive and susceptible to peer pressure, and have a greater capacity for change, so should not be sentenced to mandatory life without parole.
“Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender’s age and the wealth of characteristics and circumstances attendant to it,” the Court wrote in its opinion.
Since those rulings, 28 states and Washington, D.C. have changed their laws for juvenile offenders convicted of homicide. More than 1,900 children sentenced to life without parole have had their sentences changed. The research has also been cited in efforts across the country to “raise the age” of criminal responsibility.
The 142-page report for Maricopa County, dated May 1, was written by Michael Welner, a forensic psychiatrist and chairperson of The Forensic Panel, and is signed by seven other academics, researchers, and specialists.
Though it acknowledges that adult brains are different from those of adolescents, it argues that doesn’t necessarily mean that young people are less culpable or less likely to reoffend. “What neuroimaging research to date means to an assessment of murder, and of likelihood of murder, is still limited to speculation rife with ambiguity,” it states.
After being contacted by The Appeal, the Maricopa county attorney’s office issued a press release about the report, criticizing past research for painting all teens as less culpable than adults. “An individualized assessment is vital to criminal punishment because justice is not one size fits all, even with juveniles,” it states. “Experience teaches the scientific community that age alone is not a determining factor to a juvenile’s maturity and corresponding culpability for crime.”
The county attorney’s office said there were “multiple cases” pending in Maricopa County Superior Court involving people who received life without parole sentences for first-degree murder committed when they were minors, between 1993 and 2010. The topics covered in the report “may be presented to the court depending on the specific issues that arise in each case,” the statement explains.
News of the report has worried advocates, who fear it could be used to discredit established neuroscience in resentencing hearings.
“There are still a lot of people out there who want to make children responsible and scapegoat them for all sorts of public safety issues,” said Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School and counsel for the Forensic Justice Project, which advocates for accurate science in the courtroom to prevent wrongful convictions. “A report like this, [in the hands of] someone with that mentality, could destroy the last decade of work on understanding both juveniles’ brains and the science.”
When contacted by The Appeal, Welner said Maricopa County asked his group to study the science behind criminal maturity.
“Our findings covered many areas and extensively referenced a broad array of research,” he wrote in an email. “We are further informed by our diverse experience with juveniles who mature beyond violent criminality to law abiding paths, as well as those who destroy the lives of others as adults as they did when younger. And, that some violent crimes reflect upon the immaturity of the offender, while other offenses embody sophisticated predatory deviance.”
Welner’s report takes particular issue with the American Psychological Association’s (APA) amicus curiae brief in the Miller v. Alabama Supreme Court case, which argued that adolescents are less mature and therefore less culpable than adults.
“The representation of the Miller amicus brief that adolescents are less able than older individuals to control their impulses and consider the future consequences of their actions is grossly misleading,” the report says, citing research that most people of average intelligence have the decision-making abilities of an adult by age 15.
At least one psychologist who reviewed the report disagrees. “That’s entirely inaccurate and it’s not consistent with the science,” said Louis J. Kraus, chief of child and adolescent psychiatry and director of forensic psychiatry at Rush University Medical Center in Chicago. “Most kids at the age of 15 barely have the capacity to testify in court.”
The report also says the APA’s brief ignores risk factors that predispose a teen to violent crime, and instead focuses on age alone as a contributing factor. It offers several examples of ways in which teenagers are expected to be as mature as adults, including the fact that 17-year-olds (with parental consent) can enlist in the U.S. military, and in many other countries, military enlistment at even younger ages is mandatory. “This reflects that there is a cultural expectation of maturity before 18,” the report claims.
Marsha Levick, chief legal officer of the Juvenile Law Center, told The Appeal that her group is preparing to convene experts and lawyers to refute the report. She said the report “misses the mark” for a number of reasons, including its claim that U.S. laws don’t distinguish between adults ages 18-25 and older adults. In fact, she said, the drinking age and other laws, such as those allowing young adults to remain in foster care or on their parents’ health insurance, prove the opposite.
“The law is going in the other direction,” Levick said. “Our laws are becoming more protective of this population.”
Welner’s report was commissioned when Republican Bill Montgomery served as Maricopa county attorney. He was recently appointed to the Arizona Supreme Court and was replaced as the top prosecutor by Allister Adel, also a Republican, who will complete his term and plans to run for the office in 2020. Montgomery, who had been county attorney since 2010, earned a reputation for tough-on-crime prosecutions, including against children.
Earlier this year, for example, prosecutors chose to charge Arianna Ramirez, 15, with first-degree murder. Ramirez was sitting in the back of a car when her boyfriend and his friend shot someone during a robbery. Ramirez was 14 at the time of the murder, meaning that prosecutors could have charged her as a juvenile.
Advocates say that the office did little to change its practices after the Miller decision reshaped juvenile sentencing law.
Lindsay Herf, executive director of the Arizona Justice Project, said her organization identified people who were eligible for resentencing, and met resistance from Montgomery’s office in every case. “I don’t know of any changes that this office made to acknowledge what was said by the high court in those cases,” she said.
The office did not immediately respond to a question regarding its handling of resentencing under Miller and Montgomery.
Welner is a prominent and sometimes controversial forensic psychiatrist who is best known for creating a depravity standard used to define terms such as “heinous,” “depraved,” and “evil” crimes in sentencing. According to a report in Pacific Standard magazine, Welner has used tens of thousands of dollars of his own money to fund the work.
He has interviewed many high-profile defendants on behalf of the prosecution and has testified in court about the psychological state of people who commit violent offenses. Often, he argues that the individuals understood their actions. He’s also often on television discussing forensic science and offering his analysis of high-profile crimes, such as the mass shootings at Sandy Hook Elementary School in Newtown, Connecticut, and a concert in Las Vegas. During a Fox News interview after the shooting in San Bernardino, California, he blamed the incident on “the state of feminism in Muslim countries.”
Welner has also offered psychological analysis of people like Donald Trump, who he said had qualities that are the “embodiment of healthy narcissism” when Trump was a presidential candidate. According to the Wall Street Journal, President Trump considered Welner for a mental health post in his administration.
Though it’s unclear how the report will be used in Maricopa, juvenile law experts fear it will be a tool for prosecutors who want to turn back the clock on juvenile justice reforms.
“We live in a time where science is often discredited for no reason and I hope that this alone … isn’t just going to be weaponized,” Kaplan said. “We have really important and necessary law that treats children as children.”