By Judith G. Edersheim, JD, MD
This week marked the start of what promises to be a four-month public reckoning: the trial of alleged Boston Marathon bomber Dzhokhar Tsarnaev. If the press reports about the evidence against him are accurate, most of the trial will not be about guilt or innocence; it will be about sentencing. Not a who-done-it, but a why-done-it.
If Tsarnaev is found guilty, the death penalty will be on the table, and the proceedings will turn to a grave question, part jurisprudence and part moral philosophy: Is this defendant the most evil and culpable of all? A human being who deserves the most severe of all punishments?
One thing, I believe, is certain: If this case proceeds to the sentencing phase, the black box everyone will be talking about will be the cranium, and how the brain drives behavior will be the central story.
In these protracted sentencing hearings, the scales of justice balance lists of aggravators and mitigators, all outlined by law.
Aggravating factors in this case might include the political motive for the bombings, the risk posed to others during the course of the Tsarnaev brothers’ dramatic attempt to flee, the “heinous”, “cruel” or “depraved” manner of the crime’s execution, and the substantial planning and premeditation that might have preceded the bombings.
In the end, behavior trumps brain scans.
Mitigating factors — factors that weigh in favor of life in prison rather than a death sentence — cast the broadest net. Any aspect of a defendant’s background, record, character or circumstance is fair game for the defense team. It could try to demonstrate that Tsarnaev had some kind of impaired capacity to appreciate that his acts were wrong or illegal, or that he was under some kind of demonstrable duress. It could also bring to light hardships during his upbringing that limited his opportunities or narrowed his ability to choose wisely.
The defense team has already given public hints as to the central themes of its mitigators. They will feature life within the Tsarnaev family, including Dzhokhar’s relationship with his parents, his brother Tamerlan, and his sisters. Will anything in these family dynamics rise to the level of psychological duress or impaired capacity? There will likely be plenty of traditional testimony from forensic psychologists and psychiatrists regarding whether or not Tsarnaev was under the sway of his radicalized and perhaps dominant older brother, particularly after the Tsarnaev parents left the country. The prosecution will likely counter with a line of evidence regarding Dzohokar’s relative independence and his network of friends and activities outside of the family structure.
Then comes the brain.
Judy Clarke, lead defense attorney and one of the nation’s premier death penalty litigators, will surely not overlook the new body of neuroscientific evidence regarding the immaturity of adolescent brains. In a recent trilogy of cases (known as Roper, Graham, and Miller ) the U.S. Supreme Court was influenced by neuroscientific evidence about the juvenile brain when making sweeping changes in how adolescents are tried and sentenced. The court concluded that adolescent brains were less mature than those of adults in ways which warranted differential treatment under our criminal laws.
Although Tsarnaev was 19 at the time of the bombings, his lawyers might argue that much of this brain research applies, as it outlines a period of relative immaturity that stretches from mid-adolescence all the way into the early 20s. Generally speaking, this research shows that adolescents are less mature, and they are more likely to make ill-considered decisions. They bow to peer influences and respond excessively to thrill seeking and immediate rewards. Think money, sex, drugs and friends.
Beginning in the teens, there are major changes in brain architecture and function that temper these qualities — among them, synaptic pruning of the prefrontal cortex, improved connectivity and changes in dopamine receptors — all of which support self control, delayed gratification and the development of a moral compass.
Here’s the rub. What the research doesn’t show makes it problematic for defense attorneys. The research does not show that adolescents are incapable of making well-considered choices. Quite the contrary. Continue reading