In recent years, advancements in neuroscience have shaped and reshaped how we understand the adolescent brain and psyche.
For most of our nation’s legal history, however, children have been overlooked, undervalued, and misunderstood. In the 1990s, several criminologists coined the term “super-predator” in a book in which they theorized that America would be the “home to thickening ranks of juvenile ‘super-predators’ – radically impulsive, brutally remorseless youngsters, including ever more pre-teenage boys, who murder, assault, rape, rob, burglarize, deal deadly drugs, join gun-toting gangs and create serious communal disorders. They do not fear the stigma of arrest, the pains of imprisonment or the pangs of conscience.”[1]
The authors have since recanted their predictions, but the “super-predator” rhetoric lived on.[2]
Diminished Capacity and Culpability
The scientific community, and the courts, rejected these assumptions. The Supreme Court handed down several major decisions outlining what we all know now to be true: children have diminished capacity and, therefore, culpability.
The death penalty for juveniles, for instance, was ruled unconstitutional in the landmark case of Roper v. Simmons. Justice Kennedy, writing for the majority and citing many scientific and sociological studies, made three key points explaining why juveniles are less culpable than adults:
- That “a lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults. … These qualities often result in impetuous and ill-considered actions and decisions.”
- That juveniles “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure.” They “lack the freedom that adults have to extricate themselves from a criminogenic setting.”
- And that “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.”[3]
Attorneys need to know their clients, but this is even more true for attorneys representing and dealing with our state’s children, teens, and young adults. To effectively advocate, attorneys should be prepared to explain how, and why, their young clients are not adults and why that matters for sentencing and disposition.
Still Under Construction
Today it is commonplace for attorneys, judges, and jurors alike to acknowledge that our brains are not fully developed until our mid to late 20’s – but what does this mean and why does it matter?
It matters because the parts of the brain that are responsible for impulse control, long-term planning, emotional regulation, and resistance to peer pressure are still well under construction until adulthood. The prefrontal cortex, which is responsible for executive functions – like planning, impulse control, and decision-making – is one of the last brain regions to reach maturity.[4]
While we often expect adults to think through their decisions with care, reason, and logic, young people tend to not possess the same abilities that adults have to set their emotions aside. Studies show that adolescents are more impulsive, less risk-averse, and prefer short-term gains over long-term ones.[5] Simply put, children desire immediate gratification without carefully thinking through the consequences. In that same vein, adolescents are more likely to react impulsively than they are to not react at all when faced with a perceived, or real, threat.[6]
Furthermore, myelination, which is the process of insulating our nerve fibers, and synaptic pruning (the process of removing our redundant neural connections), continues into our early twenties and even beyond. What this means is that communication between our prefrontal cortex and our other brain regions becomes more effective over time.[7] As we age, our abilities to think before we act; to consider and weigh the risks, rewards, and consequences; and to ultimately be more logical in our rationalization of things are enhanced.
Context Matters
A teenager who feels embarrassed or challenged may suddenly yell, storm out of a room, slam a door, or punch a hole in the wall. While this reaction may feel disproportionate to an adult, it signals an underdeveloped prefrontal cortex that has yet to regulate a sudden surge of emotion.
Teenagers who excessively speed, vape, shoplift small items from the mall without paying, or sneak out late at night are not doing so because they have properly weighed the consequences of their actions, but because the short-lived “thrill” of the delinquent act strongly outweighs any of the distant, or sometimes abstract, risks.
What we see so often in cases involving adolescent crime and delinquency is that young people are often acting in groups. Why? In large part, young people may risk making a bad choice to impress their friends or to avoid costly rejection from them. This is called indirect peer influence, because the mere presence of their friends greatly influences their decision-making. Alternatively, young people may make bad choices because of direct peer pressure, which is due to verbal encouragement from a friend.[8]
As we age, we develop resistance to both.[9] However, young people are still much more likely to engage in risky behavior when they are in groups because the very presence of their friends activates the incentive processing and socio-emotional system of the brain that results in risky decision-making.[10]
A teenager might use an illicit substance for the first time at a party because “everyone else was doing it” or to avoid standing out as the only one refusing. A group of children might tag an underpass or damage the toilet in the school bathroom, not because any of them would do it on their own, but because the energy of the group amplifies the “thrill.” Another kid might join in on a fight because one of his friends has issues with another group of boys; the fear of looking weak and the desire to back up his friend outweighs the “risk” of walking away and losing face.
Not Adults
Given all these well-established and documented realities, it is imperative that attorneys acknowledge them when advocating for young people at disposition and sentencing. If our young clients think, process their emotions, respond to threats, and evaluate risks differently than adults, then the conditions and rules that we place on them should reflect those differences.
Sentencing a teenager or young adult without considering their underdeveloped prefrontal cortex, their heightened sensitivity to peer influence and pressure, or their increased likelihood of impulsive, fear-based reactions is inconsistent with modern neuroscience and with basic principles of proportionality.
The judicial system cannot transplant adult expectations onto young people and expect adult outcomes. Dispositions and supervision conditions should be tailored to the youth’s developmental progression, emphasizing structure, support, and opportunities for growth rather than punitive punishment. Conditions that assume adult levels of impulse control, emotion regulation, or independence set children up to fail.
When we think about proper sentencing and disposition of our young people, I find it helpful to use a “roots and fruits” analogy. When a tree bears fruit, those fruits are visible to everyone who looks at it. Those fruits are the direct results of the tree’s condition. Those fruits can be good (i.e., positive) or they can be bad (i.e., negative). However, the true essence and strength of a tree lies within its roots, not its fruit. The roots sustain the tree and nourish it. In the same way, the actions and behaviors of people are their fruits; the underlying circumstances, history, and personal growth of a person are their roots.
The Need to Foster Growth – Not Just Punish
The court’s role in our young people’s lives is to acknowledge the “bad” fruits, to celebrate the “good” fruits, and to nurture the roots, ensuring that they have the opportunity to grow up healthy and strong. A purely punitive approach would be like cutting off the fruit without addressing the underlying issues with the roots.
Therefore, a disposition or sentence that considers rehabilitation and support would provide them with the necessary resources to cultivate change in their lives and to develop healthy roots.
If we want better outcomes for our state’s children, and safer communities to go along with them, we must do so in a way that grows and fosters roots, not just punishes fruit.
This article was originally published on the State Bar of Wisconsin’s Children & the Law Section Blog. Visit the State Bar sections or the Children & the Law Section webpages to learn more about the benefits of section membership.
Endnotes
[1] John Diiulio Jr., et. al., Body Count: Moral Poverty and How to Win America’s War Against Crime and Drugs (1996). ↩
[2] Equal Justice Initiative, The Superpredator Myth, 25 Years Later, April 7, 2014. ↩
[3] Roper v. Simmons, 543 U.S. 551 (2005) (internal citations omitted). ↩
[4] Mariam Arain, et. al., Maturation of the Adolescent Brain, 9 Neuro. Dis. and Treat. 449 (2013). ↩
[5] Laurence Steinberg, A Behavioral Scientist Looks at the Science of Adolescent Brain Development, 72 Brain & Cognition 160, 161-162 (2010). ↩
[6] See Michael Dreyfuss, et. al., Teens Impulsively React Rather than Retreat from Threat, 36 Developmental Neuroscience 220 (2014). ↩
[7] Merlin Donald, A Mind So Rare (2002). ↩
[8] Margo Gardner and Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference, and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 Developmental Psychol. 625, 626 (2005). ↩
[9] Laurence Steinberg & Katherine Monahan, Age Differences in Resistance to Peer Influence, 43 Developmental Psychol. 1531 (2007). ↩
[10] Jason Chein, et. al., Peers Increase Adolescent Risk Taking by Enhancing Activity in the Brain’s Reward Circuitry, 14 Developmental Sci. F 1 (2011).↩
