OP-ED: The Kid Brain and the Adult Criminal Justice System

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John Lash

Dzhokhar Tsarnaev was 19 when he and his brother, aged 26, allegedly carried out the Boston Marathon Bombing and a slew of other crimes. Dzhokhar was seriously wounded in a subsequent gunfight, and his brother was killed. U.S. Attorney General Eric Holder announced last week that the federal government will seek the death penalty in the case.

As JJIE contributor Tamar Birckhead points out in an interview on CBS News’ Crimesider, the decision to pursue the death penalty is problematic given Tsarnaev’s youth. “The younger you are, the less culpable you are for your crimes,” Birckhead said. “We know from neuroscience and what we know about brain development that the human brain continues to grow and develop until someone is in their mid-20s.”

The evolution of this train of thought goes back a long way. The history of juvenile justice in the United States began in the 19th century with special courts and detention facilities. But its roots stretch back to English common law with its separation of “infants” (under seven) and “adults” (over 14). In between these ages, young people were judged by seeming knowledge of good and evil, intent and seriousness of charges. These factors are still at play today. Policy makers and advocates debate the age of criminal responsibility, the cut off age to be accepted into the juvenile system and when and how children can be treated as adults in the justice system.

The trend over the last 10 years or so has been more merciful, following an expansion of punishment in the 90s that arose in response to an imagined looming youth crime wave. The U.S. Supreme Court has removed the death penalty for all crimes as well as life without parole for non-homicide offenses as possible punishments for kids. The Court has also limited the imposition of life without parole for juveniles, forcing states to alter sentencing schemes where this was the only possible outcome of a conviction.

The research Professor Birckhead cites has been increasingly used to change our approach to juvenile crime and how to best deal with it. Is it possible, though, that our understanding of how kids’ brains work could also influence how we treat adults in the criminal justice system? The line is very blurry when an offender is Tsarnaev’s age. At 19 it is unlikely that his brain has fully developed. It is, as Judge Steve Teske pointed out recently on this site, unlikely that his brain will be “adult” until he is 25 or so. Add to that the correlation of other factors science is increasingly linking to criminal behavior, including trauma, environmental pollutants, poverty, abuse and head injury. No one imagines that the teen brain suddenly changes on its 18th birthday, but the law isn’t very good with gray zones.

I can see the possibility of trends in juvenile justice translating up to the criminal justice system. The mercy we are finally seeing fit to deliver to the young could just as easily be given to older criminals. The realization that community-based approaches, education, counseling, reentry support, addiction treatment, and many other effective strategies work with kids could be extrapolated to adults. People are naturally more inclined to extend second chances to young people, but that doesn’t mean such consideration can’t be expanded.

We have begun to find a way forward on juvenile justice policy that balances public safety, accountability and fairness with the realization that people can change and that they will, for the most part, reenter the community. How well they reintegrate is influenced by how we treat them when they run into the system. We have in many ways begun to shed the prevailing punitive model when it comes to kids, with good results.

Let’s hope we can take this learning and use it with adults as well.

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