By Minsoo Kwon
All 50 states have transfer laws that either allow or require children to be prosecuted in adult criminal court, rather than juvenile court. There is no constitutional right to be tried in juvenile court. What has modern neuroscience shown about the differences between the developing and the adult brain, and how justifiable is trying, prosecuting, and sentencing children in the adult criminal justice system?
Panelists discussed these topics during a recent webinar hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics. This article highlights key points made during the conversation.
First, BJ Casey, Christina L. Williams Professor of Neuroscience at Barnard College explained key neuroscientific research that highlights the significant differences between the brains of children and adults.
- The brains of children and young adults are significantly different from adult brains.
- Casey presented data that focused on ages 10 to 25 years to demonstrate observable changes in the brain’s capacity for change, also known as plasticity, throughout the emerging adolescence period. She discussed additional relevant neuroscience concepts, such as structural changes in gray matter and cortical thickness, and changes in personality and self-regulation.
- Along with critical changes in the prefrontal cortex, there are changes in the deep primitive regions of the brain. Such regions, Casey noted, “are involved in desire, rage, and fight and flight.” Adolescents, she explained, have a “heightened sensitivity to emotional information related to rewards, threat, stress, also social information like peer influences. And this is combined with this under-appreciation of risks and consequences.”
- The brain continues to develop into a person’s early-to-mid-twenties.
- “There are expert and health organizations like the World Health Organization, NIH, United Nations who all acknowledge that there’s continued maturity and development that extends into the 20s and even our laws in this country recognize extended maturation in the early 20s with the extended age for drinking and foster care,” Casey said. “It’s not just special protections that youth need. [They also need] opportunities for them to build the very skills that are necessary for being a healthy independent adult and a contributing member of society.”
- Most youth who commit crimes stop as they mature.
- Casey explained: “We know in the United States that psychopathy is relatively rare. The estimates are at one percent in this country. But what if we look at individuals who have psychopathic traits, does that change across development? I want to report the findings from over a thousand justice-involved youth who showed from 16 to 24 years of age a decrease in their psychopathic traits… the majority of youth who engage in antisocial behavior show declines in that criminal behavior with age, and with targeted interventions we could get an even bigger decline.”
- When we transfer youth to adult courts, we are perhaps reinforcing the underlying sentiment that their behavior is unmodifiable. But data suggests that these youth are not treatment resistant.
- “It’s about getting the right treatment,” said Casey.
- The science does not support transferring children and youth to adult courts, she explained, not only because of the significant differences in brain structure and behavior, but also because there is hope to treat these youth with targeted interventions that would effectively curb criminal activity as they age into full adulthood.
Then, Marsha Levick, Chief Legal Officer and Co-Founder of the Juvenile Law Center, discussed specifics of the juvenile and adult criminal justice systems in the U.S.
- When kids are transferred into the adult criminal justice system, opportunities for rehabilitation are significantly limited.
- “Once these youth are put into the adult criminal justice system, those systems are driven by punishment and retribution. They are not at all centered-on rehabilitation. The kinds of rehabilitation programs and positive interventions… will be significantly fewer, if they exist at all, than what you will see in the juvenile system,” Levick said.
- Kids are sometimes transferred to the adult criminal justice system due to time/space limitations in the juvenile system.
- “What often happens is that judges will make determinations that they don’t think there’s enough time in juvenile court to allow for available treatment options to actually have an impact. It’s also often the case that there may simply not be a facility available in a particular jurisdiction,” Levick said.
- There is no national system of juvenile justice in the U.S.
- Instead, the juvenile justice system operates within 51 separate jurisdictions, each “constrained only by relatively minimal limitations that the U.S. constitution imposes upon them,” Levick said.
- Prosecutors hold a great deal of power over whether a particular child should be tried in adult or juvenile court.
- “States that allow for this kind of charging discretion give these prosecutors unfettered discretion,” Levick said. This is particularly dangerous in states that have a “once an adult, always an adult,” policy. This means that once a child is transferred into the adult criminal justice system, they will automatically be treated as an adult for any relevant crimes going forward.
In their concluding remarks, Casey and Levick emphasized that a discussion of juvenile justice in the holistic sense must be one that acknowledges the power of targeted treatment in the prevention of crime, as well as the current structural problems that force children into the adult criminal justice system. Panelists ended with poignant statements of how the United States must begin to reconcile our treatment of justice-involved youth that is currently inconsistent with scientific evidence.
“We tolerate an inconsistency in how we approach young people who are involved with the justice system in this country that is irrational. It is completely counter to scientific knowledge that we possess and have reasonable access to,” Levick said. “The unwillingness to follow the science combined with a cultural commitment to punishment has really prevented us from making smart choices.”
Casey concluded: “We have a long way to go, but we really need to move in the direction of remediation, as opposed to being punitive… and that is going to be a real paradigm shift.”
This transcript has been edited and condensed. Watch the full event video here. This event was sponsored by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School and is part of the Project on Law and Applied Neuroscience, a collaboration between the Center for Law, Brain and Behavior at Massachusetts General Hospital and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, with support from the Oswald DeN. Cammann Fund at Harvard University.
