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Changes in Seasons, Changes for Children

By Robert Kinscherff, Senior Fellow in Law & Applied Neuroscience

It is fitting that I am writing this first blog of my time as Senior Fellow in Law and Applied Neuroscience as we transition through the change of seasons.  It is a privilege to have the time afforded by this joint Fellowship between Harvard Law School (Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics) and Massachusetts General Hospital (Center for Law, Brain, and Behavior) to focus upon the intersections of behavioral science, developmental neuroscience, and juvenile justice.  The autumnal change of seasons is a fitting metaphor for the slow but profound changes occurring in juvenile justice which have been spurred in large measure by emerging neuroscience increasingly describing the neurobiology of adolescence.  This neuroscience provides the biological complement to what developmental psychologists have well described and what parents have long known:  Children are different.

This emerging neuroscience has become a quiet but increasingly pervasive force in helping us understand why most delinquent youth desist with maturation—even adolescents who are chronically delinquent and violent.  It helps us understand why punitive “tough on teen crime” approaches born of fears in the 1990’s of the rise of violent teen “super-predators” actually compromises public safety over time—especially when youth are tried as adults and incarcerated with adults.  And, it helps us understand why mass detention and incarceration of youth—many of them for non-violent offenses—not only harms those youth but tends to increase their risks of continued misconduct and of later deep penetration into the adult criminal justice system.

The emerging neuroscience has also become entwined with constitutional jurisprudence since the landmark United States Supreme Court case Roper v. Simmons (2005) which found execution of persons for capital offenses committed under age 18 juveniles to be unconstitutional.  The Supreme Court in Roper determined that adolescents are less morally culpable due to their developmental immaturity and that we lack the science to reliably predict which youth are irredeemable. The Court subsequently extended that reasoning to constitutionally bar for acts committed under age 18 any sentence of life without possibility of parole for non-capital offenses (Graham v. Florida, 2010) and use of mandatory sentences of life without possibility of parole for capital offenses (Miller v Alabama, 2012).

The shift of perspective from adolescents as potential “super-predators” who must be contained at all costs to a perspective focusing upon their developmental immaturity, potential resilience, and capacities for change as they mature has given rise to other important initiatives.  National initiatives are underway to eliminate routine shackling of adolescents in courtrooms and juvenile justice facilities, to eliminate detention or incarceration of adolescents with adults, and to avoid whenever possible—consistent with public safety—removal of youth from their families and communities for placement in facilities-based care.  Notice has been taken of the overrepresentation in the juvenile justice system of youth of color, youth whose childhoods have been characterized by exposure to multiple adversities, impoverished youth, and youth with significantly impairing but treatable mental disorders, substance use disorders, and cognitive disabilities.  The high short-term costs and the long-term negative consequences of relying on juvenile justice systems—who have never been trained or funded as an alternative forensic mental health system due to inadequate community-based care and special educational options–are increasingly recognized.

The landscape of juvenile justice is undergoing significant change as these conversations shift the narrative from “tough on teen crime” to “smart on teen crime,” just as discourse in adult criminal justice has increasingly recognized the extraordinary costs—fiscal, human, social—of continuing the era of mass incarceration.  Attention in youth policy and practice has shifted to the process known as the “cradle to prison pipeline” which looks upstream to identify who is “inbound” to the criminal justice system from the inadvertent “feeder systems” of child protection and juvenile justice.  There is increasing appreciation of the long-term negative consequences of extreme poverty, growing up in transient and high-crime neighborhoods, inadequate educational and special educational systems, and lack of adequate access to “positive youth development” assets (e.g., basic safety, school engagement, community engagement and opportunities, access to health and behavioral health resources).

In turn, the inquiry comes full circle as research increasingly documents the genetic, neurobiological, and developmental consequences of exposure to adversity and “toxic stress” in childhood, especially when these exposures are chronic and inescapable over the course of development.   We increasingly understand that the social and psychological dimensions of youth are also fundamentally neurodevelopmental as well, and that neurodevelopment constitutes the biological underpinnings of the psychological and social functioning of youth.

This promises to be a busy year for this partnership between the Petrie-Flom Center and the Center for Law, Brain and Behavior.  September saw a symposium arising from this joint partnership entitled “From Troubled Teens to Tsarnaev: Perils and Promises of Adolescent Neuroscience and Law.”  In October, I was asked by HLS visiting professor Nancy King to present to her criminal law class on competence to stand trial and mental status defenses in juvenile cases.  In the past three weeks I have presented in Montreal, Calgary and at William James College and Bridgewater State University on topics related to the impact of adversity and trauma upon the developmental trajectories of youth.  Upcoming in November is Dr. Laurence Steinberg’s presention on “Should the Science of Adolescent Brain Development Inform Legal Policy?”  I have begun to mentor law students and medical students, work the colleagues to advance research initiatives on the neurodevelopment of juvenile offenders, prepare to co-teach the Spring class in Law and Neuroscience with Judge Nancy Gertner (ret.), and to consider topics for policy/law briefs and additional collaborations.

Change is underway at the intersection of neuroscience, developmental psychology, public policy, professional practice, and the law.  But the success of these changes—unlike the passing of the seasons—is not inevitable.  There is a lot of work to do.

Dr. Robert Kinscherff, JD, PhD is the 2015-2016 Senior Fellow in Law and Applied Neuroscience, a collaboration between the MGH Center for Law, Brain & Behavior and the Petrie-Flom Center at Harvard Law School.

This post is part of a recurring blog series on juvenile justice by Dr. Kinscherff. Read all blog posts here.