My View: Marsh and Juvenile Brain Development

This week a Yolo County jury took a couple of hours to convict Daniel Marsh of the April 2013 double homicide of Oliver Northup and Claudia Maupin. This was not a close call, as the very brief deliberation indicated (indeed, Marco Topete’s guilt phase deliberations were far longer), and under existing law it is hard to fault a jury.

The next step will begin on Monday and that is the question as to whether Mr. Marsh was legally sane at the time that he committed the crime – for all intents and purposes that focuses on the notion of whether Mr. Marsh knew right from wrong at the time the crime was committed.

Nevertheless, I want to focus on two specific and related aspects of the case that trouble me. The confession by Mr. Marsh continues to trouble me, as does the notion that a juvenile can be tried as an adult due to the heinous nature of the crime and the maturity and sophistication that Mr. Marsh showed – at times, well beyond his years.

Research has shown that juveniles are far more likely – perhaps as high as four times more likely – to falsely confess to a crime. The National Registry of Exonerations provides data to back up this research, noting, as an article in the Milwaukee-Wisconsin Journal Sentinel wrote last year, “Youth are more naive, trusting, fearful and more easily misled. Investigators can more easily suggest to juveniles that they face harsher consequences if they don’t confess, and much lesser consequences if they do. After hours of interrogation, studies have shown, many youthful suspects will conform their stories to cues from detectives, believing they can then finally go home.”

We see this at play during the confession when Mr. Marsh at times wanted to leave, and at times wanted his attorney or his parents present, but was denied all of those. In a hearing this past spring, Judge Reed allowed the confession, but we can see the problems.

Veteran FBI Special Agent Chris Campion repeatedly told Daniel that he was his healer: “Now, Daniel, this is your time to heal, I am here to heal you, this is your refuge.” That we have no reason to believe Mr. Marsh falsely confessed hardly excuses the handling of the interrogation. As we have noted in the past, confessions are so powerful that there are many examples where juries actually ignored exculpatory evidence provided by the defense and instead focused on the confession.

The susceptibility of juveniles highlights the other troubling aspect of this case – that just because a juvenile commits a heinous crime, the juvenile has the same culpability as an adult in the same situation. The law currently only prevents the death penalty and life without parole for juvenile offenders, but research on brain development is rapidly emerging.

In 2002, the US Supreme Court ruled in Atkins v. Virginia, “[They] frequently know the difference between right and wrong and are competent to stand trial. Because of their impairments, however, by definition they have diminished capacities to understand and process mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others…. Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.”

That was the 2002 US Supreme Court ruling banning the execution of the mentally retarded, period. But the same factors apply to juveniles.

In a 2004 publication on Juvenile Justice and the Death Penalty, the American Bar Association put out a report entitled, “Adolescence, Brain Development and Legal Culpability.”

The research in that publication is now ten years old, but they noted, “Adolescence is a transitional period during which a child is becoming, but is not yet, an adult. An adolescent is at a crossroads of changes where emotions, hormones, judgment, identity and the physical body are so in flux that parents and even experts struggle to fully understand.

“As a society, we recognize the limitations of adolescents and, therefore, restrict their privileges to vote, serve on a jury, consume alcohol, marry, enter into contracts, and even watch movies with mature content. Each year, the United States spends billions of dollars to promote drug use prevention and sex education to protect youth at this vulnerable stage of life. When it comes to the death penalty, however, we treat them as fully functioning adults.”

That last part has since changed, as we learn more and more about the juvenile brain.

The report cites research such as that by Dr. Elizabeth Sowell of UCLA, where it was found “that the frontal lobe undergoes far more change during adolescence than at any other stage of life. It is also the last part of the brain to develop, which means that even as they become fully capable in other areas, adolescents cannot reason as well as adults: ‘[m]aturation, particularly in the frontal lobes, has been shown to correlate with measures of cognitive functioning.’ ”

Failure to recognize this point appears to be a mistake that was made in the evidence suppression hearing, by less than expert witnesses, on juvenile brain development.

The report also cites Jay Giedd, a researcher at the National Institute of Mental Health, who explains that during adolescence, the “part of the brain that is helping organization, planning and strategizing is not done being built yet…. It’s sort of unfair to expect [adolescents] to have adult levels of organizational skills or decision making before their brain is finished being built.”

Deborah Yurgelun-Todd, PhD at Harvard University’s brain imaging lab, wrote, “Just because they’re physically mature, they may not appreciate the consequences or weigh information the same way as adults do. So, [although] somebody looks physically mature, their brain may in fact not be mature.”

There is a growing body of research that shows that human brains are in fact not fully developed until age 25.

Dr. David Fassler, a psychiatry professor at the University of Vermont College of Medicine, has testified before legislative committees on brain development and views the research as an explanation rather than an excuse of teen behavior.

He said, “It doesn’t mean adolescents can’t make rational decisions or appreciate the difference between right and wrong. But it does mean that, particularly when confronted with stressful or emotional circumstances, they are more likely to act impulsively, on instinct, without fully understanding or considering the consequences of their actions.”

Mark Osler, a law professor and a former federal prosecutor in Detroit, argues that the science that is emerging suggests that we need to continue to look at juveniles differentially from adults.  Science has shown that the brain of teenagers is still unformed.

“[The teenage brain] essentially is different from what adult brains are,” he continued.  “Essentially that means if we’re making a judgment about a 14-year-old… we’re not looking at the same brain that’s going to emerge later.”

On the other hand, as some readers have rightly pointed out, everyone has been a teenager, most teenagers do not commit crimes and even troubled teens like Daniel Marsh rarely commit a heinous double murder.

However, as we as a society learn more about the human brain development, it means we have to re-think the lines of culpability. We are not talking about excusing bad behavior. Rather, we are talking about understanding it and figuring out an appropriate response.

Now-troubled Senator Leland Yee authored Senate Bill 9 which Governor Brown signed in 2012, to end life without parole for juvenile offenders.

“SB 9 holds youth responsible for their actions, but also creates a strong system of checks and balances that provides a chance for young offenders to prove they have changed – both to a judge and to a parole board,” said George Gascón, San Francisco District Attorney and former San Francisco Police Chief.

“As a law enforcement professional for over 30 years, I know first-hand the importance of protecting our communities and ensuring that individuals who commit serious offenses are sentenced appropriately,” said Mr. Gascón. “However, I also recognize the high costs of incarcerating youth who are sentenced to LWOP [life without parole] – as much as $90 million per year nationwide – and the ability of young people to reform their behavior and be rehabilitated as they mature.  That is why I am urging the Governor to sign SB 9 into law.”

“Children do not have adult levels of judgment, impulse control, or ability to assess risks, and researchers estimate that many will not reach full adult cognitive development until the age of 25,” said Carl Wicklund, Executive Director of the American Probation and Parole Association. “Therefore, it is irresponsible to impose an irrevocable sentence on youth who still have the ability to grow and develop positively.”

Governor Brown signed the legislation to end “LWOP,” but the question that future legislators must grapple with is how much further away from LWOP that line should be drawn.

Under Senate Bill 9, courts could review cases of juveniles sentenced to life without parole after 15 years, potentially allowing some individuals to receive a new minimum sentence of 25 years to life. The bill would require the offender to show remorse and be working toward rehabilitation in order to submit a petition for consideration of the new sentence.

However, for Daniel Marsh, that means a minimum of 50 years in prison, and he could be in his 60’s when he is first eligible for parole for a crime committed at age 15.

“No one can predict who a teen will be at age 40,” said Elizabeth Calvin, senior children’s rights advocate at Human Rights Watch and author of the report, “When I Die, They’ll Send Me Home.” “When California sentences a 16-year-old to die in prison, the state ignores what science, parents and teachers have long known: young people have tremendous potential to change, grow, and mature.”

Some people have already decided that Daniel Marsh can never be released safely into the population, whether he is found to have been sane or insane, but we don’t really know that and we don’t know what future innovations will develop in the next 20 to 40 years.

It might be better if we had the ability to treat these situations on a case-by-case basis.

—David M. Greenwald reporting