A scientific flip-flop?
IN ROPER V. SIMMONS, the recent Supreme Court case in which a 5-4 majority ruled that it was ''cruel and unusual'' to execute anyone under the age of 18, Justice Antonin Scalia uncorked one of his trademark scathing dissents. But while his colleagues took the brunt of the attack, Scalia also devoted a few pointed paragraphs to skewering a major scholarly group: the American Psychological Association.
The APA had filed an amicus brief asking that the court ban the execution of 16- and 17-year-olds (a Court decision from 1989 had already established 16 as the minimum age for the death penalty), arguing that impulsiveness, susceptibility to peer pressure, and even physically underdeveloped brains made adolescents less culpable for their actions than legal adults. ''At ages 16 and 17,'' the brief emphatically stated, ''adolescents, as a group, are not yet mature in ways that affect their decision-making.''
Yet as Scalia archly observed, ''The APA has previously taken precisely the opposite position before this very Court.''
Indeed, in a 1990 case, Hodgson v. Minnesota, which concerned whether teenagers had to get parental permission for an abortion, an APA brief spoke of a ''revolution in rationality'' that occurs early in the teenage years. ''[B]y middle adolescence (age 14-15),'' that brief stated, ''young people develop abilities similar to adults in reasoning about moral dilemmas, [and] understanding social rules and laws.''
For the APA and its allies, Scalia's charge of hypocrisy put a damper on the celebration of the court decision. Reached by telephone, a testy-sounding Drew S. Days III, a Yale law professor and former US Solicitor General who helped draft the APA brief, said he ''was aware of'' the claims in the earlier one. ''My assignment was to work on the Roper case,'' he added-and quickly referred questions to the APA.
But one of the academic psychologists most closely involved in drafting the recent amicus briefs, Temple University's Laurence Steinberg, argues that there was no real contradiction in the two briefs. In a telephone interview this week, Steinberg suggested that both claims about adolescent competence were true: In laboratory situations, he said, teenagers presented with hypothetical ethical and legal dilemmas perform equally well (or badly) as adults. But, he added, ''under conditions of high arousal and social influence, what most people familiar with the literature would say is that the maturity of decision-making breaks down.''
For example, Steinberg cited a forthcoming study of his own in which 13- to 16-year-olds, college undergraduates, and adults (average age 37) played a videogame that simulated ordinary driving. The subjects were told to travel as many miles as possible while obeying traffic rules. When alone, members of all three groups made roughly the same decisions. But when some subjects were joined by two friends, the adolescents and undergraduates (but not the adults) started running reds, gunning it through yellows, and crashing more often. Abortion decisions, Steinberg asserts, are made in reflective circumstances, with a doctor's guidance, whereas the decision to commit a crime is usually a quick, emotionally driven one that often takes place under peer pressure.
Some psychologists, however, find such arguments tortuous. As the brief was being drafted, Clemson University's Gary B. Melton, a leading scholar in adolescent psychology, argued that the APA was cutting scientific corners to make a political point. ''Most of the differences that one can observe across adolescents are between early and late adolescence, not between the 17- and 18-year-olds-which was the issue in this case,'' Melton said via telephone. The main limiting factor in older teenagers' judgment is shorter life experience (still, no small thing), not biology, he thinks.
In fact, the academic studies cited in the APA's recent amicus brief suggested a more nuanced view of teenagers than the one sketched by the brief itself. In a 2003 study, for example, Thomas Grisso, a professor of psychiatry at the UMass Medical School, and colleagues presented 1,393 adolescents and young adults-two-thirds of them already in jail-with a series of hypothetical scenarios involving how to deal with police and defense lawyers. Fully 30 percent of 11- to 13-year-olds displayed what the psychologists considered objectively ''impaired'' reasoning and judgment, compared with 19 percent of the 14- to 15-year-olds. However, only 12 percent of the 16- and 17-year-olds displayed impaired judgment-the same proportion found among 18- to 24-year-olds.
Clemson's Melton still thinks adolescents should be spared the death penalty. ''It is laudable that we finally ended up joining the rest of the world community, even if not necessarily with the best of arguments,'' he says. But Scalia's charges show why many social-science organizations decline to take positions on controversial social issues: The scientific method coexists uneasily with the one-sided, cherry-picking argumentative approach of lawyers-even lawyers as smart as Drew Days.
Christopher Shea's column appears biweekly. E-mail critical_faculties@verizon.net.
