The renewed focus on adolescent development in juvenile justice is welcome and overdue. Adolescence is potentially the best opportunity to intervene effectively with youth to help them develop empathy, impulse control and good decision-making skills.
Although the juvenile court system has, since its inception, been mindful of adolescent development and the relative immaturity of youth compared to their adult counterparts, the system has gone through periods of harsh and retributive responses to crime. When that happens, change is in order, but the challenge for the system is not to overcorrect from punitive policies to an unsustainable position on the other end of the spectrum.
Misplaced reliance on nascent neuroscience and neuroimaging evidence to remove from youth and young adults the consequences of their criminal behavior invites pushback from those who favor a retributive system, and it may create some unintended and unwanted consequences for youth and young adults.
In recent years, neuroimaging studies have shown that adolescents’ brains continue to develop through age 18, and into their mid-20s. Some advocates and practitioners argue that science proves that adolescents are not as mature as adults, and some of them promote raising the age of juvenile court jurisdiction to 24.
Unfortunately, much of the brain science that is influencing the justice system hasn’t been offered into evidence in a courtroom. It hasn’t been subjected to rigorous challenge, or its limits defined or tested. Instead, through an avalanche of media and advocacy campaigns, it has simply been accepted as fact. The problem with this is that researchers working with neuroscience and neuroimaging report that the science is still being developed, and it is not ready for policymakers or the courtroom.
Further, in the article linked above, researchers indicate the science does not support the conclusions some advocates offer it to prove. These researchers point out that maturity is a complicated process that cannot be determined with a brain scan alone, nor can the scan of one adolescent, or even a cohort of adolescents, be extrapolated and applied to the whole population of adolescents. Finally, the article makes the point that maturity depends not only on physical brain development, but also on factors such as experience, parenting, socioeconomic status, environment and self-efficacy, among other things. Other legal and medical scholars have offered similar cautions about reliance on this emerging science. (See “The Teenage Brain: Adolescent Brain Research and the Law,” Richard J. Bonnie and Elizabeth S. Scott, Current Directions in Psychological Science 22(2) 158 –161 2013 and “Law & Psychiatry: Through a Glass Darkly: Functional Neuroimaging Evidence Enters the Courtroom;” Paul S. Appelbaum, M.D., psychiatryonline.org January 2009 Vol. 60 No.1.)
While it can generally be said that youth are not as mature as adults, maturity is unique to each person. In a discussion about jurisdictional age, Jeffrey Butts, the director of the Research and Evaluation Center at John Jay College, noted with approval policymakers’ realization that there is no “magic birthday” separating adolescence from an adulthood. While he thought that raising the jurisdictional age would be good, he pointed out the limits of a system that only considers those two options. “It’s all individualized, and we’re just not good at having that system,” he said.
From an evidentiary standpoint, premature use of neuroscience presents a couple of problems. First, history is rife with examples of misapplied science in court. From hair analysis to bite mark evidence, fingerprint analysis to arson science, misunderstood or unopposed scientific evidence has led to disastrous results for many defendants. The law provides for a thorough challenge to scientific evidence in the courtroom, and it’s for the protection of all parties to the litigation. Neuroimaging protocols, and the conclusions drawn from the images, need to be offered in court to allow experts to both explain and be cross-examined about the acceptance of the protocols in the scientific community, and whether opinions offered are actually supported by the data.
This is the long-accepted gate through which scientific evidence must pass before it can be considered by the court. No matter how well-meaning advocates and practitioners may be in their efforts to alter the course of juvenile court and guarantee nonpunitive treatment for youth and young adults, premature reliance on this science is not the answer.
Second, once beliefs about brain science become entrenched in practice, they may be used against youth in other arenas. Juveniles and young adults arguably enjoy being considered mature when it comes to choices about emancipation, voting, health care, use of tobacco products, military service and various consensual interactions. However, those who wish to lessen the availability of these choices may find support in the policy and precedent established through misguided use of neuroscience.
The good news is that reliance on neuroimaging science is not necessary to refocus the attention of the juvenile justice system on the importance of adolescent development. At this pivotal point in criminal justice reform, decision-makers need to understand a couple of important things.
First, youth are generally different from adults, and they should be treated differently. The risky, impulsive behavior and bad decision-making many adolescents engage in is largely temporary, and with developmentally appropriate guidance and correction, most youth will age out of delinquent conduct. Second, decision-makers need to recognize their obligation to both short-term and long-term public safety.
Incarcerating youth may solve a crime problem in the short term, but it does not, with rare exception, deter future offending or enhance public safety in the long run. To the contrary, it typically makes everyone less safe.
Some of the most successful interventions with youth to reduce reoffending involve community-based diversion programs. Accepting responsibility for one’s conduct is a life skill, one that youth need to develop sooner rather than later if they are to function productively in society. Creating safe, age-appropriate environments for youth to accept responsibility for the harm they’ve done to victims and communities, without the onerous consequences of conviction or adjudication, is the first, best option for most youthful offenders.
With or without neuroimaging science, finding interventions that enhance public safety, hold youth accountable for their conduct in developmentally suitable ways and equip them with increased empathy and better decision-making skills is the perpetual challenge of the juvenile justice system. It’s the key to helping court-involved youth leave the justice system and live crime-free, successful lives.
Caren Harp worked as both a prosecutor and a public defender while a practicing attorney. She is now an associate professor of law at Liberty University School of Law.