Cookie Cutters Are Not Tools in Our Business

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Got up early this morning and began my daily reflection with my cup of coffee in hand and it hit me — there is an interesting paradox about how we use the adolescent brain research.

On one hand, those of us who call for reform in juvenile justice, especially in the area of detention, adult transfers and life sentences (especially without parole) rely heavily on this research showing that kids are wired to do stupid things. They are neurologically immature—still under construction. The adolescent brain research is often touted by advocates like me as evidence in support of detention reform. On the other hand, what does this research mean when applied to those kids who are just plain scary?

Those of us who have direct contact in and out of the courtroom with kids who get in trouble have occasionally come across a kid who shows no emotion, doesn’t give a damn about humanity, and you ask yourself, “Is this kid going to hurt someone?”

Although it is taboo to diagnose adolescents with any psychopathy, the anti-social personality traits that some kids display keep us guessing if this kid is a serious risk to the community. What does this mean when kids like this are already wired to do stupid things? Kids having a psychopathy , who make poor decisions and act impulsively – well, they are really scary!

This research is a double-edge sword as it cuts one way to support detention reform and the other, for some kids, in support of commitment.

I am reflecting on this paradoxical situation because I will leave my home today escorted by police for my protection. The police got word from very reliable sources that a probationer was plotting to kill me. He was once being tracked by GPS, but it had apparently been cut off.

Kids make threats all the time. After all, they are just kids venting their frustration by saying things without thought formed in a neurologically unconstructed mind.  The investigator agreed with me – but was unimpressed. He was emphatic that I accept a bodyguard. I was about to dismiss when he interjected with a stern tone–“Judge, this kid was apprehended with a 9 mm at two in the morning dressed all in black. He finally admitted he was told to kill somebody. It may have been gang initiation.”

I paused for a moment to let what he was saying seep into my thick skull.

After a pregnant pause he says, “And he was in front of a police officer’s house.”

I would find out within the next several minutes that more firearms were found in his bedroom. By midday they connected him to associations in two street gangs – the Gangsta Disciples and SOS. He was quite adamant that a serious threat existed.

At the end of the day, the investigator brings me highlighted statements in the kids social history–child has “flat affect,” “shows no remorse,” and “has no respect for authority.”

The probation officer piped up and said this kid “is scary.” Although diagnosed with Oppositional Defiance Disorder, the probation officer opined the kid may be beyond anti-social personality disorder – perhaps having more psychopathic characteristics.

They say psychopathy is difficult to discern with adolescents. Background checks on psychopaths typically reveal their antisocial behavior began in childhood.

I have recused myself from the case of course, but despite the concerns of risk this kid presents, we must keep in mind that youth with these characteristics are but a very small group. The problem for us in juvenile justice is misdiagnosing the anti-social behaviors for psychopathy and using detention and commitment wrongfully. Studies show that psychopathy and sociopathy are completely distinct anti-social personality disorders.

Psychopaths are born with temperamental differences such as impulsivity, cortical under-arousal and fearlessness that lead them to risk-seeking behavior and an inability to internalize social norms. On the other hand, sociopaths have relatively normal temperaments; their personality disorder being more an effect of negative sociological factors like parental neglect, delinquent peers, poverty, and extremely low or extremely high intelligence. Both personality disorders are the result of an interaction between genetic predispositions and environmental factors, but psychopathy leans towards the hereditary whereas sociopathy tends towards the environmental.

This also means that sociopaths are susceptible to treatment, especially at an early age—much to do with kids still under neurological construction. Psychopaths are not–empirical findings point to poor treatment outcomes.

Although medical practice forbids diagnosing children as psychopaths, a leading psychologist, Robert Hare, has developed checklists that can identify psychopathic tendencies in juveniles. The Psychopathy Checklist – Youth Version – is used for clinical research, while the Antisocial Process Screening Device (APSD) is used to identify problem children for therapeutic intervention.

After getting the security lecture about anybody who wanted to get me can and “lying in wait” and following me home and the increase in attacks on judges – I decided to accept the offer.

My reflection, grounded in seeking the truth about what is and what is not, leads me to this conclusion – paradox or not:  we must be careful to discern the violent from non-violent, the high risk from the low risk, and the committable from the non-committable. We must discard the cookie cutters – kids are not dough. Just as I play it safe for my personal safety, I should also play it safe to discern the scary kids – for there are a few.

Truth tempers emotion in our decisions – and that is good. I must be careful not to let a threat on my life skew the truth–only a few scare us. Otherwise, the kids who make us mad may get treated as if they are scary  – and that is harmful.

2 thoughts on “Cookie Cutters Are Not Tools in Our Business

  1. As always, Judge Testke makes a reasoned and well written argument for the application of scientific research in the Courtroom.

    Of course, it is that very research and the limitations of science that demand judicial discretion remain the hallmark of the Juvenile Court.

    Science tells us that kids are naturally prone to risk taking behavior and lack a good sense of the long term consequences of their actions.

    But as Judge Testke recently experienced, there is an exception to every rule. Within the Juvenile Court, the child that is exceptionally violent, troubled or otherwise dangerous is capable of inflicting tremendous harm.

    It is for this very reason that it is a mistake to look to psychology in support of rules that forbid (or mandate) any particular course of action. It must be left to the professionals involved in the case to balance the likelihood of successful treatment versus the potential for social harm.

    That balancing can only be done by persons that know the child and know the facts of the case. IT is best done by dedicated professionals that understand the science of psychological development, the resources available to assist the child and family and need to protect the community.