In a think piece for Mission’s Youth issue, Susan Wolfert unpacks the difference between the teen and adult brain.
In Charles Dickens’s “Oliver Twist,” the Artful Dodger is a serial pickpocket who is convicted, banished from England, and sent to live in a penal colony in Australia. He is 12 years old. Although the juvenile justice system has come a long way since the fictitious—but not implausible—events recounted in Dickens’s 1839 book, the issue of how to manage juvenile offenders remains complicated.
For starters, there’s the lack of consensus on the definition of “adulthood.” A developmental psychologist will offer a different answer from a neuroscientist, and the legal standard varies depending on the issue: marriage, smoking, drinking alcohol, voting, driving, serving in the military, or seeking an abortion.
Another evolving issue is whether to punish or to attempt to rehabilitate people who commit crimes before they are believed to have the ability to understand and control their behavior. While politicians may be reluctant to appear soft on crime by giving kids a pass, biological and psychological research has recently begun to have an impact on the legal system in a meaningful way.
Do we have laws to protect juveniles in the court system?
In 1974, Congress passed the Juvenile Justice and Delinquency Prevention Act, which prevented the incarceration of youths charged with offenses that would not be considered crimes if they were committed by adults—truancy and curfew violations, for example. The act also called for kids to be separated from adults while in prison. The act expired in 2007, however, and was not reauthorized until December 2018.
In 2002, the U.S. Supreme Court declared the death penalty unconstitutional for the intellectually disabled, but it was not until 2005 that it was ruled unconstitutional for defendants under the age of 18. In 2010, life sentences without parole were eliminated for people under 18 except in the case of homicide convictions; two years later that exception was also eliminated.
Recently, various criminal justice reform measures have enjoyed bipartisan support. In late 2018, the First Step Act, which reduced mandatory minimum sentences and increased the use of good-behavior credits toward early release, was signed into law. At the same time, the Juvenile Justice Reform Act was passed, reauthorizing and expanding the 1974 juvenile legislation. Though the act had its detractors, its popularity was so overwhelming that a roll call vote was not taken.
What is the teen brain up to?
Eric Kandel, M.D., a Columbia University–based neuroscientist who won the Nobel Prize in 2000 for his research on the brain and memory, describes the development of the brain as having two large bursts—one during the first three years of life and a second during the two or three years following the onset of puberty. “Contemporary neuroscience consistently views puberty as a time of change in cognitive ability with the development of mature and reasoned thinking,” Dr. Kandel told “Mission.” And while the brain may continue to change after puberty, its “fundamental architecture is there,” he added. Kandel argues that the difference between adolescents and adults is life experience that gives rise to greater reasoning ability.
Abigail Baird, Ph.D., professor of psychological science on the Arnhold Family Chair at Vassar College, explained to “Mission” that major changes in the brain’s wiring system during adolescence cause significant changes between child and adult thinking. “It’s not that the brain gets new parts, but its parts get more coordinated,” she says. “At puberty, kids have a bigger engine that they don’t know how to use yet.” Baird notes that while puberty confers reproductive viability, teens do not understand the social cues, emotional complexity, and cultural norms that characterize adult thinking.
In her work training federal judges, Baird expresses the inappropriateness of holding teenagers accountable as adults like this: “If you were accused of a crime and faced a jury of 16-year-olds, would you expect a fair trial? You might be convicted because they don’t like your shirt.”
One field that clearly pays attention to neurological and psychological research on the adolescent brain is the car insurance industry. Drivers under 25 face substantially higher premiums than older ones do because insurers know the behavioral and cognitive differences between teens and adults, and they have a financial stake in the consequences.
Where do kids go when they’re in trouble with the law?
Depending on their age and the crime they are accused of committing, juveniles may be sent to family court, which takes a rehabilitative approach to managing offenders. That court seeks to place kids in specialized residential facilities or send them home with the requirement that they perform community service and commit to a wide array of therapies.
Incarceration for juvenile delinquents, conversely, is punitive and has significant collateral consequences. According to the Attorney General’s 2012 National Task Force report on the juvenile justice system, “By the time children come into contact with the juvenile justice system, they have almost always been exposed to several types of traumatic violence over many years.” Increasing that exposure can lead kids to impulsive and aggressive behavior, addiction, and a lack of empathy. The report found that most adult jails are not equipped to meet children’s needs or keep them safe. The suicide rate among incarcerated teens is alarmingly high.
Other negative impacts of incarcerating rather than rehabilitating teenagers include separation trauma, difficulty in reintegrating into employment or school, the stain of a criminal record, and a higher rate of repeat offenses. Incarceration is seen to perpetuate a vicious cycle of negative behaviors.
In New York State, the so-called Raise the Age legislation is phasing in moving the age of criminal responsibility to 18. It aims to reduce incarceration and implement more community- and home-based support programs to reduce criminal behavior. Advocates argue that this type of policy enhances public safety, is fairer, decreases the recidivism rate, improves physical and mental health, and is more effective at putting kids on a successful life path than locking them up.
Lisa Freeman, director of special litigation and law reform in the Juvenile Rights Practice of the Legal Aid Society in New York, applauds the rehabilitation focus of the Raise the Age movement. “It applies a social work approach that works, especially for minor offenses,” she said. Changing the system is a battle, though, as the opposition from law enforcement is significant, even as some of the partisan divide is thawing. “Candidates historically have been seen as soft on crime if they propose criminal justice reform,” Freeman said. She views the research data about the adolescent brain as both compelling and critical to the development of juvenile justice policy. And, she notes, “people age out of criminality after the high-risk period of 15 to 25. The drop-off is dramatic.”
Juggling what is best for juvenile offenders, their victims, and the public at large is far from a science. The challenges lie in balancing societal interests and safety, respecting victims’ concerns, determining which kids are likely to benefit from rehabilitative services, and understanding when attributing a crime to the immature adolescent brain is a crutch used by defendants who may pose a significant threat to themselves and others.
It’s a thorny issue, and no one can expect a unanimously satisfying answer. But at least no 12-year-olds are going to wither in penal colonies for pickpocketing.
