For many years in my life, my heroes wore baseball caps, hockey sweaters, football helmets, and odd golf apparel. Over the last couple of years, though, I've experienced a change. Some might say I've matured, and football games no longer feel like life and death. My heroes now are people like Bryan Stevenson, a civil rights advocate and capital defense lawyer out of Alabama. Stevenson works everyday to affect change on issues that are life and death, including reforms of our backward juvenile justice system.
In one of his lectures, Stevenson implores his audience to think about one of this country's greatest injustices. He talks generally about the ways in which the justice system is flawed, and he's candid about how the modern justice system carries on the ideological directives of a time when people really weren't equal under the law. In his lecture, Stevenson discusses something that he deals with on a weekly basis - his juvenile clients being tried as adults. He recalls a time when one of his 14-year old clients was set to stand trial as an adult in a backwoods Alabama court. He began thinking that if the judge could turn his child client into an adult, then the judge must have magical powers. And if the judge has magical powers, then perhaps he could use them in a way that might benefit the client. In a fit of rage uncommon for a calculated mind like Stevenson, the lawyer wrote and filled a crazy motion with the court. Its name? Motion to try my client as a rich, 75-year old, white executive.
Stevenson's story was funny, but it makes an important point. Children are tried as adults every day in America, as our country carries on with a juvenile injustice system that's both illogical and alone among civilized nations.
Quick - name something that America and Somalia have in common. These two nations stand alone as the only two nations to not ratify the UN Convention on the Rights of the Child. One other country, South Sudan, is not a signatory to the agreement. Why does the US make a decision that puts it in such unsavory company? There are many political reasons, but a primary justification is that the resolution requires that nations not sentence children to life without the possibility of parole.
The United States has made tremendous progress on its juvenile justice initiatives, as the Supreme Court has helped to drag the country into the modern age in a couple of ways. The Court only recently held that the death penalty is unconstitutional for offenses committed by a child. In the last decade, the Supreme Court has outlawed life without parole for non-homicide offenses. Last year, it invalidated mandatory life without parole sentencing schemes for minors. States now have to, at the very least, consider the particular qualities of the child before locking him up with no possibility of parole. Progress has been made, but that's only because we had so far to go. It's much easier to lose 20 pounds when you weigh 400. But a person weighing 380 still isn't very healthy.
That brings us to the one area where the United States continues to get it wrong. In courts across the country, children are increasingly tried as adults for their crimes. The juveniles vary in age - from the 11-year old in Pennsylvania to the 17-year olds charged in Washington murder. One of these cases is obviously more egregious than the other, but both present interesting questions for a society that claims to have a monopoly on good ideas. Should these people be charged as adults for their crimes?
Our society recognizes the folly of youth in a number of different places. In most states you have to be 16 or 17 to drive a car. Across the country, you have to be 18 to vote and serve in the military. The drinking age is 21, and you can't buy a cigarette or lottery ticket if you are 17. Try walking into a Las Vegas casino at age 20 and you won't be able to legally place a bet. Local, state, and federal elections have age requirements. If you want to watch certain movies, you have to either come with a parent or show an age-appropriate ID. You can probably think of many more examples, but the point is clear. Almost every place in society, we recognize that young people do not have the developed mental capacity to be trusted with important tasks or decisions. And we're right, at least according to people who study the brain.
The US Department of Health and Human Services publishes some literature on the pre-frontal cortex of the brain. It notes:
The prefrontal cortex is one of the last regions of the brain to reach maturation. This delay may help to explain why some adolescents act the way they do.
But why is the prefrontal cortex important? Because this part of the brain controls a number of the functions that might otherwise keep young people from committing heinous crimes. The government's research adds:
The so-called “executive functions” of the human prefrontal cortex include:
*Focusing attention
*Organizing thoughts and problem solving
*Foreseeing and weighing possible consequences of behavior
*Considering the future and making predictions
*Forming strategies and planning
*Ability to balance short-term rewards with long term goals
*Shifting/adjusting behavior when situations change
*Impulse control and delaying gratification
*Modulation of intense emotions
*Inhibiting inappropriate behavior and initiating appropriate behavior
*Simultaneously considering multiple streams of information when faced with complex and challenging information
It's not just the government that's studied this brain science. A
PBS report notes:
"It's the part of the brain that says: 'Is this a good idea? What is the consequence of this action?' " Jensen says. "It's not that they don't have a frontal lobe. And they can use it. But they're going to access it more slowly."
That's because the nerve cells that connect teenagers' frontal lobes with the rest of their brains are sluggish. Teenagers don't have as much of the fatty coating called myelin, or "white matter," that adults have in this area.
Think of it as insulation on an electrical wire. Nerves need myelin for nerve signals to flow freely. Spotty or thin myelin leads to inefficient communication between one part of the brain and another.
Faced with knowledge that the juvenile brain is structurally different than the adult brain, lawmakers should be asking more questions. They should be asking when the brain fully develops, as this would give them a better ability to determine when adult culpability begins.
Psychology Today notes that the prefrontal cortex does not fully develop until some point in the 20 to 25 year range:
By the age of twenty to twenty-five, the frontal lobes will be fully mature and the impossible teenager will morph into a normal person—a fully functional, socially well-adapted adult. This is not simply psychobabble, but backed by numerous brain and social behavior studies.
Why do we draw the arbitrary line of adulthood at 18? It's probably because you don't have to be a psychologist to see that most people have finished their non-brain growth by that point. Even folks from the stone-age can look at a post-growth spurt boy and say, "Man!" It's taken smart people in the scientific world and years of research to learn about the brain, yet we cling to old conventions about when a person should be deemed an adult. It's a maddening tip of the hat to an era when we made decisions without the proper justification. Given what we know about the brain and its development, we have no business treating 11-year old children as adults, no matter what crimes they commit.
When I've written on this subject in the past, I've been met with one common thread of criticism - "HOW CAN YOU EXCUSE THESE PEOPLE OF THEIR CRIMES?" I don't argue that this information excuses crimes. Rather, I argue that it helps to explain them. It's possible to note the psychological and biological differences in children and adults without absolving them of responsibility. Even children make choices, and bad choices need to be admonished. Reasonable minds, though, can recognizes the inherent grey in such delicate situations, shedding aside the "good person, bad person" routine that reduces crime to something far too simple.
There is a tremendous amount of legal precedent for considering mental capacity in fair adjudication of crimes. The Supreme Court decisions on children mentioned above provide immediate support for the idea that children are less culpable for their crimes than adults would be. We also do not execute people who are considered by states to be mentally retarded, noting the gap in culpability for these offenders. In death penalty cases, including Porter v. McCollumn, the Supreme Court has found reduced culpability for people suffering from PTSD, since that condition is alters the brain.
In addition to having lessened culpability on the basis of brain composition, juvenile offenders are not as able to participate in their trial preparation as the average adult offender. They lack the ability to help attorneys develop trial strategy, and they often misunderstand the complicated legal language being thrown at them in court. Studies have shown that when children do not understand an instruction from the judge, they will simply nod rather than asking for an explanation. And in some Texas courts, even when juveniles do ask for clarification, many judges respond not by using a simpler word but by repeating the complicated word slower.
Proponents of adult sentencing for juveniles typically focus on a few different arguments. First, their arguments focus on the crimes committed. They argue that the crime, and not the offender, should determine the sentence. This is not supported under current law, though, as wide sentencing discretion gives judges the ability to apply different sentences and conditions for the different offenders of the same crime. A host of factors enter the prospectus, including the character of the defendant and the previous record of that person.
Likewise, these people argue that the very nature of the crimes shows that these people possessed enough adult reasoning for enhanced culpability. Some of these arguments have been very weak, including one from a prosecutor who noted that a child had lied about a crime, and lying is something that adults do. Others argue that complex, pre-meditated crimes show enhanced brain function. This is just not supported by science or logic. The science suggests that one of the primary functions of the prefrontal cortex is risk assessment and consequence consideration. Young people begin to understand the gravity of their actions as they grow older, but evidence suggests that an incomplete prefrontal cortex disadvantages juveniles in making these important decisions.
The adult sentencing advocates argue that planning is something that adults do, but I'd argue against this. Good planning is something that adult brains do. Skilled strategy is something that adults are capable. Just the fact that children have been caught for their crimes should suggest that they weren't able to properly strategize at a high level. Children are certainly able to plan out acts. The difference is in their ability to recognize the long-term impact of those acts. And by conflating the culpability of children with that of adults, we diminish the mental culpability of those adults. If knowing consequences and acting anyway is an important part of a crime, then we delegitimize adult offenses by assigning to children consequence assessment qualities that science says they do not have.
Any discussion on children in the juvenile justice system would not be complete without identifying the ugly racial biases that are imminently present. When a system is so open to interpretation, it is highly malleable depending upon the biases of the people executing the system. At least one study suggests that black juvenile offenders are more likely to be tried as adults than white juveniles for the same crimes. Once in the adult system, they are more likely to be sent to jail, according to that same study. A recent study from the psychology department at the University of Stanford supplies support for this inequitable treatment of black and white kids in the juvenile justice system. That study found:
According to a new study by Stanford psychologists, if people imagine a juvenile offender to be black, they are more willing to hand down harsher sentences to all juveniles.
Given this knowledge, it is important to note that the stakes are raised substantially when juvenile offenders are placed in the adult system. While it appears that white jurors are willing to acknowledge the complexity of development of white children, they are not nearly as apt to view black defendants as complex beings. Black children take on the nefarious qualities of black adult offenders, while white offending children are less often given this treatment. Sadly, this is not the least bit surprising.
When we put children into the adult system, we open the doors of adult prison to kids as young as 13-years old. I'm not sure what could ever go wrong when you place a 13-year old kid in an adult prison population. Studies show that while juveniles make up roughly 1% of the adult prison population, they make up roughly 13% of sexual assault victims in adult prison. We hold on to the idea of children possessing adult qualities right up until the time their child-like vulnerability manifests in a violent and vicious prison rape. To protect kids from this treatment, we often end up placing them in protected or solitary confinement, a prison holding institution known to cause prolonged mental anguish.
It is true that we have to draw lines somewhere. Human brains, like human bodies, develop at different paces. Some 19-year olds are more developed than 24-year olds. Short of a scientific advancement that provides automatic notification of when a person's prefrontal cortex is fully formed, we will have no way of knowing if a person is acting with an adult brain or a child's brain. But with knowledge that the brain is not fully formed until somewhere between 20 and 25 in the vast majority of people, it makes little sense to set our arbitrary line almost a decade short of those marks in some cases. The arbitrary line of 18 is unlikely to ever move, but it's important that we stop treating 14 and 15-year olds like adults just because we are outraged by their crimes. The juvenile justice system is better suited for dealing with these offenders, and juvenile sentencing provides the disincentives to crime that we need.
Juvenile offenders deserve the opportunity to be treated as what they are. As a society that purports to value knowledge and science, and one that wants to set a global example of proper governance, we must reform our juvenile justice apparatus. We could start by not turning a blind eye to the clear evidence that juveniles are just different, and this will allow us to not funnel children into an adult prison system that fails to both protect and reform them.