Amanda Piel

I. Introduction

Raising the age of criminal responsibility is necessary to align with the developments in our understanding of human brain development, reduce recidivism, and ensure a more just approach to juvenile offenders.

Currently, there is a lack of consistency and reasoning in the way we set milestones for children and adults. As Americans, we are allowed to drive a vehicle that can obtain speeds of a hundred or more miles per hour at the age of sixteen. We are allowed to go to war, obtain adulthood, and vote at the age of eighteen. Yet, we are not allowed to consume alcohol until the age of twenty-one. The law prohibits us from doing something that could permanently alter our brain chemistry and negatively impact our underdeveloped decision-making capabilities. However, science had nothing to do with determining the legal drinking age[1] As time has passed, scientific progress has supported raising the age for substance use, as the human brain does not fully develop until the mid to late twenties. [2]

The brain is the slowest-developing organ in the human body, yet it is responsible for critical thinking, decision-making, and impulse control. Because these cognitive functions are not fully matured in adolescents, their ability to assess risks and consequences is significantly different from that of an adult. Therefore, it is both logical, if not imperative, that we change our laws to allow those without fully developed brains more time to be rehabilitated before, oftentimes, condemning them to a cycle of criminality.

II. The History of the Age of Adulthood

The age of adulthood has changed throughout the centuries. Originally, the age of adulthood in the United States was set at the age of twenty-one.[3] However, due to the need for more bodies to make up the military during World War II, they made the draft age eighteen,[4] and following the Vietnam War, the age of voting was changed from twenty-one to eighteen, changing the age of adulthood to eighteen rather than twenty-one.[5]

When the age of adulthood was initially established, little consideration was given to the scientific understanding of human brain development—likely because such knowledge was not at the forefront of decision-makers’ minds, nor was it readily accessible or understood. However, with modern advancements in neuroscience, we now have a far deeper understanding of brain development than was imaginable at the time. Given these new findings, it is imperative to reevaluate the age of criminal responsibility for non-violent crimes to ensure our legal system reflects current scientific knowledge and developments.

III. The Science Behind Juvenile Brain Development

The prefrontal cortex is the portion of the brain “responsible for decision making, reasoning, personality expression, maintaining social appropriateness, and other complex cognitive behaviors.”  [6] This portion of the brain takes the longest amount of time to develop. It is fully developed by a person’s mid to late twenties,[7] meaning prior to that age a person is lacking in their ability to fully make decisions, reason, and perform complex cognitive behaviors. This delay in brain development, particularly in decision-making abilities, is due to the extensive process called myelination. [8] Myelination strengthens neural connections, allowing for improved executive functioning skills such as planning, reasoning, and decision-making.[9] As this process continues well into a person’s mid-twenties, it would be sound to reason, and is often observed, that adolescents lack the same level of impulse control and risk assessment as fully developed adults.

IV. The Current Legal Landscape

The legal system in some form has acknowledged juveniles are different than adults. Juveniles are not allowed to be subjected to the death penalty. [10] Nor may a juvenile be sentenced to life without parole. [11] Scientific advancements were not where they are today when these decisions were made; however, in both decisions referenced above, there is an understanding of the differences between an adult and a child, and in Graham, there seems to be an explicit acknowledgement of the scientific basis for their decision.[12]

V. The Case for Raising the Age of Criminal Responsibility

If the age of criminal responsibility were to shift from eighteen to twenty-one, it would provide the juvenile justice system with more time to rehabilitate the offender during three additional and critical years of brain development, rather than place an offender without a fully developed prefrontal cortex in a system focused on punitive punishment. Punitive punishment during brain development can have negative effects on said development and the trajectory of a person’s life.[13] The use of a more rehabilitative and less punitive approach for these three extra years could decrease the rates of recidivism and improve the outlook for these young adults.

VI. Counterarguments and Challenges

Currently, the United States is set up to treat people as adults once they hit the age of eighteen. At eighteen, a person can vote, get married, go to war, but they still cannot drink or smoke. Because the United States treats individuals as adults once they reach the age of eighteen, there are several challenges to raising the age of criminal responsibility beyond this threshold. At eighteen, individuals gain significant independence, such as the ability to go to college, get married, and make other adult decisions. This newfound freedom may make it difficult to effectively monitor and influence their behavior during rehabilitation. Eighteen-year-olds might feel they are already fully capable of managing their lives, as the country treats them as adults. This could hinder efforts to emphasize the importance of rehabilitation, as they may believe they know better, despite their ongoing developmental immaturity.

Another challenge is determining how rehabilitation programs would be tailored for individuals of different ages. A fourteen-year-old and a twenty-year-old have had significantly different life experiences, which can make it difficult to decide how to approach rehabilitation for each. The differences in maturity, cognitive development, and life experiences would affect how effective certain therapies and rehabilitation strategies might be.

Also, housing a fourteen-year-old alongside a twenty-year-old in the same facility could present challenges in terms of programming and the physical environment. The differences in maturity, life experiences, and even biological development between these age groups could create uncomfortable or even unsafe living conditions. For instance, parents may not feel comfortable with their fourteen-year-old living with someone much older, especially considering the disparity in maturity. One potential solution to this issue could be to separate younger and older adolescents, placing individuals over eighteen in different facilities from those under eighteen.

VII. Conclusion

The age of eighteen for adulthood is an arbitrary number developed so the size of the army could be increased during times of war. However, today we are beginning to understand and recognize the complexity of the human brain and how its development is not complete at age eighteen, and because of such, the decision-making and impulse control of a person is inhibited.

Had there been sound reasoning back in the 1940s for changing the age of adulthood to eighteen, perhaps it would make sense to align the age of criminal responsibility with such. However, as science has continued to progress it has become evident the age of criminal responsibility in general should be twenty-one, unless such a crime is so heinous it requires additional consideration.

Therefore, it is both logical and necessary to reform our laws to reflect the scientific reality that those with underdeveloped brains should be given, and require, more time to mature before being subjected to punitive measures that can permanently entrench them in a cycle of criminality. By raising the age of criminal responsibility, we acknowledge juvenile offenders have the capacity for rehabilitation, ensuring a justice system that is not only fair but also effective in promoting long-term public safety and reducing recidivism.

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[1] South Dakota v. Dole, 483 U.S. 203 (1987).

[2]  Mariam Arain, et al., Maturation of the adolescent brain, 9 Neuropsychiatric Disease & Treatment 449, 459 (2013).

[3] Winthrop D. Jordan, Searching for Adulthood in America, 105 Daedalus (American Civilization: New Perspectives) 1, 2 (1976).

[4] 50a U.S.C. § 302 (1941).

[5] U.S. Const. amend. XXVI. Because if eighteen-year-olds are being required to go to war for their country, they should also be allowed to have a say in the running of their country.

[6] Rami M. El-Baba & Mark P. Schury, Neuroanatomy, Frontal Cortex, Nat’l Ctr. for Biotechnology Info. (May 29, 2023),  https://www.ncbi.nlm.nih.gov/books/NBK554483/#:~:text=The%20prefrontal%20cortex%20is%20known,and%20other%20complex%20cognitive%20behaviors.

[7] Arain, supra note 2.

[8] Mara Nickel & Chen Gu, Regulation of Central Nervous System Myelination in Higher Brain Functions, 2018 Neural Plasticity 1, 2 (2018).

[9] Id.

[10] Roper v. Simmons, 543 U.S. 551 (2005). The U.S. Supreme Court ruled that the death penalty for juveniles is unconstitutional, finding juveniles are categorically less culpable than adults. This is due to their diminished capacity for rational decision-making and their susceptibility to being influenced by others. Id. at 569. This diminished capacity for rational decision-making is still lacking between the ages of eighteen and twenty-one due to the lengthy developmental process of the prefrontal cortex.

[11]  Graham v. Florida, 560 U.S. 48 (2010). The Court ruled juveniles cannot be sentenced to life imprisonment without the possibility of parole for non-homicidal crimes, emphasizing that juveniles have a greater potential for change and rehabilitation.

[12] Id. at 68-69.

[13] Malcom Coffman, The Neurological Impact of Incarceration and its Effect on Recidivism, 37 Notre Dame J.L. Ethics & Pub. Pol’y 251, 262-65 (2023).