Adolescent Brain Development in Juvenile Justice: Young Brains, Youthful Behavior and Law

Robert Kinscherff, PhD, JDSenior Fellow in Law and Applied Neuroscience, Center for Law Brain and Behavior (Massachusetts General Hospital) and Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics (Harvard Law School)

William James CollegeAssociate Vice President, and Faculty in the Doctoral Clinical Psychology Program

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Normative Adolescent DevelopmentDr. Laurence Steinberg (2007, 2008, 2009)

• Impulsivity Declines with Age• Sensation-Seeking Declines with Age• Risk-Taking Peaks in Mid-Adolescence• Risk Perception Decreases Then Increases• Future Orientation Increases with Age• Delayed Gratification Increase with Age• Time Spent Problem-Solving Increases with Age• Susceptibility to Peer Influence Declines with Age

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Real Story with A Real Teen

Me:

Matt, Matt….What could you have been thinking?

My son (then age 15):

Hmmmm. Thinking….thinking…..Father, I believe you are presuming a fact not in evidence…..

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Acknowledgement

• The Following Slides Are Used With Grateful Acknowledgement to Dr. Laurence Steinberg and his colleagues, the Models for Change Initiative of the John D. and Catherine T. MacArthur Foundation, and the National Center for Mental Health and

Juvenile Justice

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Impulsivity Declines with Age

(Steinberg, et.al., 2008)

3-23 5

Preferences for Risk Peaksin Mid-Adolescence

(Steinberg, et al., 2009)3-25 6

Risk Perception Declines and then Increases After Mid-Adolescence

(Steinberg, et al., 2009)

3-26 7

Future Orientation Increases with Age

(Steinberg, et al., 2009)

3-29 8

With Age, Individuals Become More Resistant to Peer Influence

(Steinberg & Monahan, 2007)

3-34 9

Dr. Jay GieddNeuroscientist, NIMH

“It’s sort of unfair to expect [teens] to have adult levels of organizational skills or decision-making before their brains are finished being built.”

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Youth In Juvenile Justice• Highly disproportionate numbers of youth in “Cradle to Prison

Pipeline:” Youth Of Color plus Extreme Poverty (and its multiple stresses and often paucity of supports for positive youth development)

• Highly disproportionate number of youth with psychiatric disabilities, learning disabilities, substance use disorders, intellectual disabilities. Juvenile Justice System as Default Forensic Mental Health System?

• Emerging research: Number of ACEs correlates with substance use, school failure, arrests, involvement, crimes against persons, recidivism

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Adolescence Plus History of High or Chronic Adversity Yields Even Greater Risks Of:

• Emotional Dysregulation, esp. Under Stress• Elevated Stimulation-Seeking• More Limited Option-Detection• More Limited Foresight on Outcomes of Risk• Greater Hypervigilance and Sense of Threat• Higher Rates of Depression, Anxiety• Higher Rates of Self-Harm and Self-Risk• Higher Rates of Substance Abuse

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Key “Suspect Contexts” for Youth in Contact with JJ

Normative Adolescent Development—Further Complicated If Histories of High or Chronic Adversity—Yields “Suspect Contexts” For Legally-Relevant Decisions/Acts When:

• Fearful, Distressed or in High Arousal (Hot Cognition)• Peer Relationships/Loyalties are Implicated• Requires Ability to Detect/Assess Options• Requires Ability to Project Alternatives/Outcomes in Time• Occur Without Input From Meaningful, Knowledgeable Adult• Occur Without Opportunity to Deliberate (Cold Cognition)

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Legal Domains Implicated Include:Poor Match for Adolescent Development• Non-custodial contacts and Custodial (Miranda) interrogations– JDB v. North Carolina US Supreme Ct (2011)"to hold... that a child's age is never relevant to whether a suspect has been taken into custody— and thus to ignore the very real differences between children and adults— would be to deny children the full scope of the procedural safeguards that Miranda guarantees to adults“

• Competence to Stand Trial – Especially “rational” in addition to “factual” appreciation– Especially for defendants under age 16– Note: Prior juvenile court experience not tied to Competence

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Legal Domains Implicated Include

• Trial and/or Sentencing as Adults– Capacities related to decisions relevant to pleading, trial strategy– Conditions and consequences of confinement with adults

• Felony Murder Doctrine– Little to no evidence of a deterrent effect on youth– Disproportionate entanglement in serious/capital cases

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Legal Domains Implicated Include

May Significantly Compromise Healthy Neurodevelopment• Conditions of Confinement (esp. stress, isolation, maltreatment)• Practices such as shackling, “protective” segregation• Limited access to developmentally normative experiences

Emerging Law? Developmental Vulnerability (+) Adversity• Failure to meet special needs in Compton School District case• A basis for litigation if juvenile justice is De Facto Adolescent Forensic Mental

Health System due to inadequate behavioral health services in communities and public mental health systems?

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It is easier to build strong children than to repair broken men….

Frederick Douglass

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