A Conversation With: Young Killer: Bad Seed or Work in Progress?
November 25, 2003
NEW YORK TIMES By ERICA GOODE

If the 12 jurors presiding over Lee Malvo's fate in a Chesapeake, Va., courtroom find him guilty, they will then have to decide if death is an appropriate punishment for crimes committed by a 17-year-old. Mr. Malvo, now 18, is accused of participating in the sniper attacks that terrorized the Washington area last fall. 

The arguments over whether to execute young offenders have traditionally rested on legal and societal grounds. Those opposed to imposing the death penalty have, for example, argued that teenagers have a long future ahead of them and have the capacity to change their behavior. 

But in recent years, scientists have also joined in the debate over how young a defendant must be for the death penalty to be excluded as an option. An increasing number of studies, these researchers say, show that the brain continues to develop through late adolescence, as do crucial mental functions like planning, judgment and emotional control. 

In a paper appearing in the December issue of the journal American Psychologist, Dr. Laurence Steinberg, a psychologist at Temple University and the director of the MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice, argues that on the basis
of such studies, young offenders should be viewed under the
law as less guilty than adults. 

The scientific evidence argues for a legal approach "under which most youths are dealt with in a separate justice system and none are eligible for capital punishment," wrote
Dr. Steinberg and Dr. Elizabeth S. Scott, of the University of Virginia School of Law, in the paper. 

Twenty-one states allow the death penalty for offenders who committed their crimes as juveniles. In 16 states, including Virginia, 16 is the minimum age at which offenders become eligible for execution; 5 states set the minimum age at 17. 

In August, the Supreme Court of Missouri found the death penalty unconstitutional for offenders under 18 when their crimes were committed. Missouri's attorney general has petitioned the United States Supreme Court to take up the issue. 

Not everyone agrees that the young offenders should be spared the harshest punishment. 

Robert Blecker, a professor of criminal law at New York Law School, said he would "almost never" favor execution as a penalty for crimes committed by offenders younger than 18, "but almost never is not never." 

"The bottom line for me," said Mr. Blecker, who describes himself as a retributionist advocate of the death penalty, "is that in very rare instances it seems to me that juveniles can demonstrate a viciousness and callousness, a cruelty by which they can deserve to die." 

Dr. Steinberg, however, believes that the evidence for adolescents' social and biological immaturity should inform society's response to their crimes. 

In a recent interview, he discussed the studies and his conclusions. 

Q. You argue that juvenile offenders should be seen as less guilty. What is it that in your view diminishes their culpability? 

A. One argument we have made is that if, under the law, someone who did something and couldn't foresee the consequences is not viewed as completely responsible, then adolescents as a class might be less responsible than adults because they do not think through the future consequences of their actions as reliably as adults do. 

One can make the same argument for the control of impulses. Crimes that are committed out of passion are punished less severely than crimes committed under other circumstances. So if, in fact, adolescents are more likely to act out of passion in general, then this might indicate that they have diminished capacity in that respect. 

The second argument has more to do with the conditions of a criminal act. The legal argument here is that you can ask whether a reasonable person would have behaved in the same way under similar circumstances. And we argue that the reasonable adult standard is not the same as the reasonable adolescent standard. 

We know, for example, that adolescents are less able to resist peer pressure than adults are. Let me give you a concrete example: If I told you that a crime was committed by a group of people, in which an individual was pressured by the group saying, "You're chicken!" "We dare you to do it!" and so forth - and if I told you that it was a
12-year-old, you would probably view it differently than if I told you it was a 22-year-old, even though the amount of pressure might be the same in each condition. 

Q. Many people believe that a brutal murder committed by a 16-year-old offers a glimpse of the kind of adult that teenager will become. Is it possible to judge which adolescents are simply "bad seeds"? 

A. It would be very difficult to look at someone who is 15 or 16 and say with any degree of certainty that we know what that person is going to be like when he is 25, that he is a bad person. There is a fairly extensive body of research that indicates that there are many people who engage in antisocial behavior during adolescence who stop at the end of adolescence or in early adulthood. In fact, that's the normative pattern. 

But we are not very good at looking at a group of adolescents who have committed bad acts, whether of delinquency or crime, and identifying those kids who are going to be career criminals. We're doing a study now where we're seeing if we can improve risk prediction, following the lives of close to 1,400 juvenile offenders and looking at their sociological characteristics, their attitudes, their intelligence, you name it, to see if we can develop  better models of which kids are going to re-offend and which are not. 

But I can tell you from the literature that we're not good at doing this with adults, and we're even worse with kids who are still developing. You may think you will be able to pick out the bad seed, but you will be wrong more often than you are right. 

Q. Can studies of brain development help decide what the minimum age for the death penalty should be? 

A. I don't think science will ever tell us, This is the perfect chronological age where we should draw the line. The new brain science indicates that brain maturation is going on much later in development than people had thought, so there is some reason, perhaps, to say that 17-year-olds are not the same as adults. 

There is evidence of structural change in the prefrontal cortex, which is the area that governs what we call executive function, higher order cognitive skills like planning. Changes of the sort that lead to improved information processing are still taking place late in adolescence. 

The two types of changes there is the best evidence for are synaptic pruning and myelinization. Synaptic pruning is the process by which unnecessary nerve synapses are eliminated. It's like eliminating all the unpaved roads in the brain and replacing them with superhighways. Myelinization is the further development of white matter, which serves as insulation for the cells through which nerve impulses are being transmitted. Just as with the wiring in your home, electricity flows better through well-insulated wiring than poorly insulated wiring. 

A second type of evidence has to do with improved
connection between the limbic system, which is deep inside the brain and which is where a lot of emotional stimuli are processed, and the prefrontal cortex, which is the center of decision-making activity. We believe, we don't know for sure, but we believe that this might lead to an improvement in decision-making, so that, in the younger adolescent's brain, it's more likely that a very strong emotion will overwhelm rational decision-making. 

What we don't know, and where I think we need to be cautious, is how these structural changes actually play out in behavior. Right now, the links between the brain changes that have been identified and the behavioral changes that have been identified are speculative. I think that the speculation is probably correct, but I think we need to be very cautious. 

Q. Will the Malvo case have ramifications for how juvenile criminals are punished? 

A. It will be really interesting to see what happens.
People who are opposed to the juvenile death penalty were gaining a lot of momentum in this argument until the sniper case. 

The case is interesting for a number of reasons. First, the crime is so heinous that it's in the category of crimes where the seriousness of the crime often trumps consideration of mitigation. Second, it's interesting because Malvo is very old for a juvenile: he's 18 now, and he was close to 18 when he allegedly committed the crime.

At the same time, he's very young looking, and that may affect the jury's deliberation about whether his immaturity mitigates his blameworthiness. 

I think that it's also interesting to watch because of the particular argument that's being made about mitigation, which is an argument about influence. I think that, if it is in fact proven that he was influenced by this older man to commit the crime, then it ought to mitigate his responsibility, but I'm not sure a jury will agree with that. 

I think the question in this trial is, in the real world, when these things are happening day to day, should we expect an ordinary 17-year-old to be able to resist the pressure of an older person who has some control over him?

The jury is going to ask whether an ordinary 17-year-old in this situation would have the wherewithal to walk away from it.