adolescent brain development, maturation and juvenile...

Adolescent Brain Development, Maturation

and Juvenile Justice

7/28/15CCJ/COSCA 2015 Conference, Omaha, NE

7/28/15CCJ/COSCA 2015 Conference, Omaha, NE 2


There can be no keener revelation of a society’s soul than the way in which it treats its children.

-Nelson Mandela

Opportunities and Challenges

Applying Science and Maturational Research.

Guarding Against Unintended Consequences of Current Policy and Practice


Science in the CourtroomScience is probalistic. Questions of

courtroom applications of the neurobiological and maturational research, See e.g. Commonwealth v. Okoro, 471 Mass. 51 (2015).Experts? Jury Instructions? When is the science so

commonly accepted that a jury instruction is appropriate? See e.g. Eye Witness Identification Cases – Com. v. Gomes, 470 Mass. 352 (2015).


Systemic Applications Proportional accountability and individualized decision

making in all contexts

Non-inclusive list:

Strength based models of discipline v. zero-tolerance, positive youth development (A Vision for the Juvenile Justice System, Lerner et al., Juvenile Justice: Advancing Research, Policy, and Practice, Wiley and Sons, Ch. 5); An asset v. deficit driven model

Age of court jurisdiction, ending courtroom shackling, competence, mens rea, Miranda, categorical transfer, sex offender registration, expungement of records, status offense jurisdiction

The ABA-IJA Juvenile Justice Standards in the 2st Century


The Law and Psychology Lawyers have learned from psychologists APA report on zero tolerance policies

US Supreme Court Jurisprudence Roper v. Simmons: Abolishing juvenile death penalty Graham v. Florida: Abolishing mandatory life w/o parole

in non-capital cases Miller v. Alabama: Abolishing mandatory life w/o parole

in capital cases J.D.B v. North Carolina: Age is a factor in custodial

interrogation

MacArthur Adolescence Research Network and brain imaging studies


Miller v. Alabama; Graham v. Florida; and Roper v. Simmons

“Children are Different; Kids are Not Little Adults”

Court considers scientific evidence of adolescents propensity to take risks, and other factors that lead to the conclusion juveniles are less culpable for their offenses and less likely to reoffend as they mature.

Miller applied the principle of “proportionality”.

Ultimately LWOP and death sentence punishments are considered “unusual” by 8th Amendment standards in the juvenile context.


J.D.B. v. North Carolina 131 S.Ct. 2394, 2397 (2011).

“A child’s age is far ‘more than a chronological fact’. It is a fact that ‘generates commonsense conclusions about behavior and perception.’ Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.”

Age as a factor in Miranda analysis. Are we moving towards a reasonable juvenile construct?

‘“[O]ur history is replete with laws and judicial recognition’ that children cannot be viewed simply as miniature adults.”


J.D.B. v. North Carolina 131 S.Ct. 2394, 2397 (2011). (cont.d)

“[Childhood yields objective conclusions like those we have drawn ourselves – …that children are ‘most susceptible to influence,’ and outside pressures’ – considering age in the custody analysis in no way involves a determination of how youth ‘subjectively affect[s] the mindset’ of any particular child.”


APA Amicus Briefs in Supreme Court Jurisprudence


Roper v. Simmons

“[B]y middle of adolescence (age 14-15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems.”

Brief for APA as Amicus Curiae, O.T. 1989, No. 88-805 etc., p. 19-20

Graham v. Florida

“No recent data provide reason to reconsider the court’s observations in Roper about the nature of juveniles […] developments in psychology and brain science continue to show fundamental differences between juveniles and adults minds.”

Brief for APA as Amicus Curiae, p. 22-27

APA Amicus Briefs (cont.d)

“The evidence presented to us in these cases indicates that the science and social science supporting Roper and Graham’s conclusions have become even stronger. See, e.g., Brief for American Psychological Association et. al. as Amici Curiae 3 (“[A]n ever-growing body of research in developmental psychology and neuroscience continues to confirm and strengthen the court’s conclusions”; id. at 4 (It’s increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher order executive functions such as impulse control, planning ahead, and risk avoidance”.))

Miller v. Alabama, 132 S.Ct. 2455, 2490, n, 5 (2012)


Rehabilitation and Due Process “[T]he essentials of due process may be a

more therapeutic attitude so far as the juvenile is concerned.” In re Gault,

387 U.S. 1, 25 (1967).

The guiding psychological principles behind adolescent development should be applied in schools, the community and in the courtroom.

Individualized assessments.

Research indicates that models which are strength-based, proportionate, and encourage positive youth development, best protect public safety.


Implications beyond juvenile life without parole;

Applying the proportionality analysis in ALL contexts


Children are accountable…BUT not in the same manner as adults (cont.d)

Children are accountable…BUT not in the same manner as adults (cont.d)

Natural desistence, even for violent offenders No correlation between longer stays in institutions or residential

care and reduction of recidivism.

Re-examining Juvenile Incarceration - PEW Charitable Trusts [April 2015]

Natural Desistance – Laurence Steinberg, Give Adolescents the Time and Skills to Mature and Most Offenders Will Stop (2014).

See e.g. Edward P. Mulvey, “Highlights from Pathways to Desistence: A Longitudinal Study Of Serious Adolescent Offenders”, OJJDP, Juvenile Justice Fact Sheet, (March 2011).

Not appropriate to apply adult sanctioning models to adolescents.


Normative Adolescent Development

Laurence Steinberg, Should the Science of Adolescent Brain Development Affect Juvenile Justice Policy and Practice? (May 20, 2014). 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 Gratification delays increase with age Time spend problem-solving increases with age Susceptibility to peer influence declines with age


What does this mean for Juvenile Offending?

Juvenile offenses are driven by transitory developmental influences in adolescence.

Juveniles who commit offenses are less culpable than their adult counterparts.

Juveniles are more likely to reform as they mature in all context.

Implications for individualized sentencing that factor in nature of offense and nature of offender.


Elizabeth Scott, Children are Different: Constitutional Values and Justice Policy, 11 Ohio St. J. Crim. L. 71 (2013).

Purposes and Goalsof Sentencing

Applying developmental research to supervision and best sentencing practices.

Ensuring public safety through rehabilitation and employing principles of positive youth development.


Purposes and Goalsof Sentencing (cont.d)

“Accountability, Preventing reoffending, Fairness” Guiding Principles for Juvenile Justice Reform

Reforming Juvenile Justice, A Developmental Approach, National Academies Press (2013)

“Sentences should be proportionate, no greater than necessary, and crafted to help the offender “get past the past””. Chief Massachusetts Supreme Judicial Court Justice

Ralph Gants. “Mass. Inc. Keynote Address”, University of Massachusetts, Boston.


Reforming Juvenile JusticeA Developmental Approach

“for juveniles, policies and programs that are predominantly punitive neither foster pro-social development nor reduce recidivism… are not consistent with a developmental perspective and are less likely to foster the primary objective of public safety.” Committee on Assessing Juvenile Justice Reform, Reforming Juvenile Justice, A Developmental Approach, ch 6., 181 (May 22, 2013).


Reforming Juvenile JusticeA Developmental Approach (cont.d)

The more youth identify themselves with negative labels and peers the more likely they are to reoffend. The conventional way of harsh punishment to deter a child, has only led to increases in recidivism and overall harm to public safety. Taking this into consideration, if there are underlying detriments to why the youth is behaving against authority, we have the ability to direct these youth to services out there that may address their issues in a more appropriate manner than the juvenile justice system. Committee on Assessing Juvenile Justice Reform, Reforming Juvenile Justice, A Developmental Approach, ch 6., 151 (May 22, 2013).


Unintended Consequences of Current Practice

Recriminalization of status offense conduct, that was decriminalized post In re Gault and the Juvenile Justice and Delinquency Prevention Act of 1974, in an era of dramatically declining arraignment rates.

Recriminalization of status offense conduct via the Valid Court Order amending the JJDPA in 1980.


Unintended Consequences of Current Practice (cont.d)

Conditions of release at arraignment and technical probation violations for status offense conduct, e.g. attending school without incident when a truancy petition could be filed. Jake J v. Commonwealth, 433 Mass. 70 (2000).

Commonwealth v. Weston W, 455 Mass. 24 (2009). (“[S]tatus offenses such as being abroad at night may not be “bootstrapped” into criminal delinquency.”)


Unintended Consequences of Current Practice (cont.d)

Black and ethnic minority youth make up a disproportionate number of adolescents disciplined by school, managed by the child welfare system, diagnosed with mental health problems and emotional disturbances and disciplined by schools; these three institutions are increasingly putting these children in the juvenile system.


Jay D. Blitzman, “Are We Criminalizing Adolescence?” ABA Criminal Justice, (May 2015), see, see: IJA- Juvenile Justice Standards in The Twenty-First Century- Skobie, Elliot.

Juvenile Arrest Rate Trends• The Juvenile arrest rate for all offenses reached its highest level in the last two decades in 1996

• It then declined 43% by 2010

•Juvenile Crime Index lowest in three decades. Overwhelming majority of youth in court for non-violent offenses;

•OJJDP Statistical Briefing Book, Juvenile Court Cases, 2011

Source: www.ojjdp.gov


Juvenile Justice and Racial and Ethnic Disparities

“The trend in the US has been to criminalize the very nature of adolescence in the name of social welfare, with youth of color bearing the brunt of what is actually social control.” James Bell & Racquel Mariscal, Race, Ethnicity, and Ancestry in Juvenile Justice, in Juvenile Justice: Advancing Research, Policy, and Practice 111, 115 (Francine T. Sherman & Francine H. Jacobs eds., 2011).

“While comprising 38% of the population eligible for detention, the over-representation of youth of color in secure confinement has increased to almost 70% over the past decade. These startling increases in disparities for youth of color occurred while arrest rates for serious and violent crimes declined by 45%.” Id.


“Zero Tolerance Task Force” Report (August 2006)

Report done by the American Psychological Association, which analyzed zero tolerance policies within schools. Zero tolerance policies are not as successful as thought in

creating safer environments to learn. These policies: Can actually increase bad behavior and lead to higher drop out

rates Have not been successful at decreasing racial biases in

disciplining students; and Have created unintended consequences for students, families,

and communities. Evidence points to a clear need for change to how zero

tolerance policies are applied and toward the need for a set of alternative practices


Disrupting the School-to-Prison Pipeline

Educational disparities across race and class, and the rapid channeling of students of color into our criminal justice system, is a complex and multifaceted problem It calls for a broad-based systemic and inter-disciplinary

approach

Education policy must be evaluated in concert with housing policy and community infrastructure prioritizing racial and socioeconomic integration.


“Arrested Futures”

Students who are arrested at school are 3x more likely to drop out than those who are not

Kids with cognitive or emotional issues are 8x more likely to be arrested in schools


“Arrested Futures” (cont.d)

Students who don’t graduate high school are 8x more likely to be arrested than peers who do

The cost of housing, feeding and caring for prison inmates is nearly 3x that of educating public school students


“Arrested Futures” (cont.d)

Students of color and students with disabilities are disproportionately subjected to school-based arrests

1/3 of all juveniles behind bars are students with disabilities

Data from Robin L. Dalhberg, Arrested Futurers: The Criminalization of School Discipline in Massachusetts’ Three Largest School Districts (2012).


Public Education and Access to Justice

Discussions of access to juvenile justice should include consideration of whether youth have meaningful access to public education

Although juvenile arrest rates have been dropping, school referrals have increased

During the 2009-2010 school year: 96,000 students were arrested 242,000 students were referred to law enforcement by

school staff


Data from Robin L. Dalhberg, Arrested Futures: The Criminalization of School Discipline in Massachusetts’ Three Largest School Districts (2012).

Use of Evidence Based Practices and Data

Policy in practice

Jeffrey A. Butts and John K. Roman, Policy and Practice in Juvenile Justice: Advancing Research, Policy, and Practice (Eds. Sherman and Jacobs) Wiley and Son 2011; Ch. 24

Principles of Positive Youth Development: A Vision for the American Justice System Lerner et al. Juvenile Justice, Ch. 5


Being Smart on Crime

Cost effective interventions that best protect public safety.

Diversion as alternative to court processing.

Community based supervision Re-examining Juvenile Incarceration, Reforming Juvenile Justice: A Developmental Approach, International Models and Recommendations, Diversion and Restorative Justice, Cross-National Comparison of Youth Justice


Restorative Justice Diversionary RJ as change to scale Alternative Dispute

Resolution

Recommended alternative model – E.g. “Keeping Kids in School and Out of Court” New York City Summit, March 2012

RJ features strength based model of accountability, balanced with support that heals harm to community. Youth as part of solution. Engage and empower youth – “Collaborative &

Proactive Solutions” Problem Solving Model - Ross W. Greene, Ph.D. “Positive Youth Development” (Richard Lerner, Jeff

Butts, Juvenile Justice: Advancing Policy Research and Practice, Wiley & Sons 2011)


“Re-Examining Juvenile Justice Incarceration”

Placement in correctional facilities don’t lower the likelihood of juvenile reoffending and may increase in some cases.

High school drop out rates increased substantially after experiencing incarceration than their peers who have not.

Need to re-examine juvenile incarceration that exacerbates systemic racial and ethnic disparities.


The PEW Charitable Trusts, Re-Examining Juvenile Incarceration, April 2015

“Less is Best” JDAI National Data- Over 50% of youth are

detained for probation violations, with high percentage of that subset for so called technical violations. Related to pre-trial conditions of release as well as post-adjudicatory surrenders. Office of Juvenile Justice & Delinquency Prevention,

Statistical Briefing Book, Juvenile Court Cases, 2011, http://ojjdp.gov/ojstatbb/court/qa06201.asp?qaDate=2011 (last visited Sept. 19, 2014).


“Less is Best” (cont.d)

The Burdens of Leniency- Ron Corbett, Minnesota L. Rev. 99 Minn. L. Rev. 1697 (2015)

Almost 4 million people supervised on probation. Approximately 2.3 million people in jail or prison.


“Less is Best” (cont.d)

In the quarter century leading up to 2009 incarcerated population grew by 274% - 2.3 million people behind bars. The PEW Ctr. on the States, One in 31: The Long Reach

of American Corrections 4 (2009).

Advocating For Shorter Periods of Supervision

Zero Based Condition Setting

Focus of Administrative Sanctions For Most Violations

Revoke Revocation

Incentivize Probation Compliance

Move Away from Financial Supervisory Requirement


Corbett’s Recommendations

Zero-based conditions setting, focus on administrative sanctions for most probation violations, revoke revocation, grant certificates of good conduct to successful probationers, offer vouchers, use of positivist incentives, offer vouchers, remove financial requirements of probation supervision.

Half of the US jail population is “the consequence of failure under community supervision (combining probation and parole)”


Corbett’s Recommendations (cont.d)

40% of new prison admission were attributable to probation revocation. Michigan study in 1996 found that new criminal offenses accounted for a mere 10% of all revocations . 90% returned to prison for technical violations – failed drug tests, failure to report, failure to meet financial obligations, etc. See, The PEW Ctr. On the States


Interdisciplinary Initiatives in Action: Juvenile Detention

Alternatives Initiative “JDAI” Empirically best-evidence based public safety

initiative of the Annie E. Casey Foundation Exploring alternatives to detention Police Diversion: Avoids Stigmatization See The New Jim Crow, Michelle Alexander

Mental Health Diversion & Changes in Conditions of Release

No Expungement


Interdisciplinary Initiatives in Action: Juvenile Detention Alternatives Initiative (cont.d)

Goals: Allocate limited public safety dollars

appropriately by looking at detained youth

Address issues related to, and ultimately reduce, Disproportionate Minorities in Confinement (“DMC”)


Criminalization of Normative Adolescent

Behavior and Racial Bias The Abolition of Adolescence (James Bell)

Use of arrest to address behavior that would likely be handled by school staff if not for the presence of on-site officers Increased arrests for non-violent offenses

E.g. disorderly conduct, disturbing lawful assembly, violating codes of conduct

Leads to increased dropout and arrest rates 30.2% of young people will be arrested by age 23- while African

Americans represent only 24% of school enrollment, they account for 35% of arrests

Severe social and economic consequences


Criminalization and Racial Bias (cont.d)

Different punishments for the same conduct Disciplinary data shows that African American and

Latino Students receive harsher punishment for similar misbehavior than their white peers (Russ Skiba, Race is Not Neutral)

“The Myth of Race Neutrality in Policy and Practice” James Bell and Raquel Mariscal. Ch. 6: Race, Ethnicity,

and Ancestry in Juvenile Justice, Juvenile-Advancing Research, Policy and Practice, p. 119 (2011)


Intersection of Juvenile Justice, Child Welfare, and Public Safety

Cross-Over or Dual Status Youth

Children in State Intervention Cases

Every time a child’s placement is changed or disrupted the research shows that she/he looses at least 6 months of educational progress which increases the risk of school failure and dropout


Employing a Public Heath and a Developmental Perspective

Adverse Childhood Experiences (ACEs) Childhood Maltreatment

Emotional abuse

Physical abuse

Sexual abuse

Family Dysfunction Mother DV victim

Substance abuse

Mental Illness/Suicide


Parent Separation/Divorce Incarceration

Emotional neglect Physical neglect

Interdisciplinary Initiatives in Action

Juvenile Detention Alternatives Initiative Empirically best-evidence based public safety

initiative of the Annie E. Casey Foundation. Exploring alternatives to detention Police diversion: avoids stigmatization

Mental Health: Diversion & Changes in Conditions of Release


Interdisciplinary Initiatives in Action (cont.d)

Goals: Allocate limited public safety dollars

appropriately by looking at detained youth

Address issues related to, and ultimately reduce Disproportionate Minorities in Confinement (“DMC”)


Interdisciplinary Initiatives in Action (cont.d)

Example: Clayton County Georgia School Offender Memorandum MacArthur Foundation Models for Change

OJJDP Programming

National Council of Juvenile and Family Court Judges

School Pathways to Juvenile Justice Project


International Models

Jurisdictional minimum and maximum ages of juvenile court jurisdiction. The most common age for beginning of juvenile

court jurisdiction is 14. Standard of age of criminal majority around the

world is 18 (consistent with UN Convention on the Rights of the Child, 1989).

In Scandinavian countries, e.g. Sweden, there is scope to treat young people via extended jurisdiction until age 21.

Germany provides the option to try offenders as juveniles beyond the age of criminal majority at 18.


International Models (cont.d)

Globalization of research and diminished adolescent culpability

Models to follow Welfare v. Justice

The concept of proportionality becomes CRITICAL

See, e.g. Hazel Neal, Cross-National Comparison of Youth Justice, The University of Salford, Youth Justice Board, 25, 2008, www.yjb.gov.uk.


Recommendations Utilization of positive youth development at all

stages

Expansion of community based models of supervision

Expanded use of diversion and restorative justice See Re-examining Juvenile Incarceration, Executive

summary of Cross-national comparison of youth justice


Recommendations (cont.d)

Develop best sentencing practices. See e.g. Massachusetts Supreme Judicial Court Chief Justice Gants, Mass. Inc. Keynote Address, Announcing creation of MA Trial Court Best Sentencing Practice Committees. March 15, 2015.

Community-based, positive youth development, and restorative justice initiatives keep juveniles away from negative peer influence and begin to obstruct the school-to prison pipeline

Most juveniles will grow out of committing offenses, and the more they are enmeshed in the system, the harder it will be for them to grow out of it.


adolescent brain development, maturation and juvenile...

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