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Humanizing Pain: Advocacy, Policy and Law on Abortion, Execution and Juvenile Life Without Parole

By Robert Kinscherff, Senior Fellow in Law & Applied Neuroscience

I recently attended a presentation on Fetal Pain: An Update on the Science and Legal Implications, jointly sponsored by the Center for Law, Brain and Behavior (Massachusetts General Hospital) and the Petrie-Flom Center (Harvard Law School). Presenters were Amanda Pustilnik, JD (University of Maryland School of Law) and Maureen Strafford, MD (Tufts University School of Medicine). Video of the event is available on the website, and I encourage everyone to watch the full discussion for themselves.

Doctor Strafford delivered a masterful overview of the trajectory of scientific perspective and research about children and pain. Over the course of her career, the medical perspective has transformed from “children do not feel pain” to “children do not remember pain” to inquiry into “when and how children feel pain.” Strafford described the medical complexities of understanding the physical and subjective aspects of pain as well as the impossibility of confidently “pinpointing” the exact point in fetal development when a neonate experiences pain.

Professor Pustilnik gave an equally compelling review of law and legal language regarding abortion, particularly law that specifically references fetal pain as a reason for limiting abortion.   This served to frame a conversation about pain and suffering in the law and the ways in which law reflects normative considerations and provides rhetoric (viewed respectively by partisans as “compelling” or “inflammatory”) to political discourse. In this case, discourse about fetal pain both attracts attention and is intended to facilitate empathy for the neonate.

Taken together, Pustilnik and Strafford made a powerful case that the current discourse about fetal pain reflects a strategic communication strategy intended to advance the cause of abortion opponents. Those who opposed abortion on religious or other principles did so before the discourse on fetal pain, but introducing the discourse of fetal pain and suffering into the grinding political controversy over abortion can serve to advance their cause. Other contexts mentioned in which pain and suffering have been introduced into controversies previously driven largely by principles including: the suffering of inmates during botched executions; the intensive regulation of laboratory animals to avoid suffering; and, the permissible reach of “end of life” policies to limit physical and emotional pain of the terminally ill and dying. All of these controversies reflect decisions about pain and suffering: Whose should be recognized? What kinds should be recognized? How should the law protect them from pain and suffering?

Controversial political and social discourse often begins based entirely or almost entirely upon normative positions framed by absolutist values. These values may have their origins in religion, political or social philosophy, cultural traditions, or other sources. They often clash openly in the first stages of discourse but once that clash has resulted in some degree of stalemate, additional layers to the discourse are added to attract attention and support in an effort to win allies and weaken opposition. As Pustilnik and Strafford pointed out, those with a principled fundamental opposition to did so before the discourse on fetal pain and will not be satisfied if a fetus is anesthetized before abortion, and those with a principled fundamental opposition to capital punishment would not be mollified even if a painless method of execution could be arranged. But introducing the discourse of pain and suffering into a stalemate may serve to advance the cause.

I experienced a trajectory regarding children similar to Dr. Strafford’s in my training and experience as a clinical/forensic psychologist. When I entered my doctoral program in the early 1980’s children were essentially viewed as beings who could be buffeted by early experience but only in adulthood would the damage be visible, except in the most extreme cases (such as autism, which was thought to arise from unemotional “refrigerator mothers” in early infancy, or childhood schizophrenia attributed to “double bind” communications from….mothers). I was also explicitly taught that children were incapable of suffering depression until the time they neared or entered puberty—essentially that they could not feel that sort of emotional pain of that sort. I was even taught that children lacked the psychological development to manifest true symptoms of post-traumatic stress.

Alternatively, except for the most extreme cases, I was taught that children would not remember (they would “repress”) noxious early experiences and would require skilled and lengthy psychoanalytic care in adulthood to reveal unconscious processes and mental content. Children would not directly “remember” psychological injury and pain, just as it was thought they would not remember physical pain. In short, according to my training during that era, children did not feel psychological pain. Or, if they did it would not be remembered…or the impact of that paint would not show itself until much later in life. And, of course, we had no concept that adversity and psychological distress experienced by children could have discernible impact upon their brain development.

Now, in parallel with the evolution of medical thought and practice, clinical psychology, child psychiatry, and pediatrics are consumed by the emerging research on the enduring neurodevelopmental, psychological and behavioral impacts of “toxic stress” in childhood—the cumulative physical and psychological risks associated with chronic or multiple childhood adversities—and child and adolescent brain development. Attention to psychological trauma in childhood was limited to a few pioneers in the 1980’s but is now something that drives many mental health professionals—and increasingly, law and public policy.

Attention to childhood psychological pain and suffering now infuses discussions in public policy and legal reform. “Trauma-informed” practices and policies are increasingly encouraged in juvenile justice, medical, behavioral health, educational, and child protection systems. Even courts and attorneys are being encouraged to adopt “trauma-informed” judicial practices, courtroom procedures, and attorney-client interactions. Advocacy for this approach is greatest for youth deemed “high risk” for juvenile and then criminal justice involvement due—at least in part–to exposures to chronic and/or multiple childhood adversity and/or their positioning in a “cradle to prison pipeline” that disproportionately involves youth of color who live in extreme poverty.

All of these changes have occurred in a context. The Juvenile Court and its rehabilitative ideal was already under attack at the time of a sharp uptick in violent crime by youth in the mid-1980’s and early 1990’s. Pundits and media predicted an onslaught of violent adolescent “super-predators” and states scrambled to pass punitive laws making it easier to try youth as adults and incarcerate them for longer periods in adult prisons. This punitive approach required policy leaders to at least ignore the developmental vulnerabilities of youth and further to disregard the possibility that infliction of this degree and duration of “toxic stress” might make matters worse for them than for adults. Most juveniles sentenced as adults, however, did and do return to their communities just as adult inmates do and states that embraced this approach have had higher rates of criminal recidivism.

By the beginning of this century, there was a stalemate between those who believed that “if you are old enough to do the crime, you are old enough to do the time” and those who argued that “children are different.” The fact that rates of violent juvenile crime had begun a sustained decline just as the warnings about “super-predators” peaked was not enough for some years to break the legal and policy stalemate.

In the early 2000’s, discourse on juvenile justice began to reflect concerns that were eventually articulated as a “school-to-prison pipeline” or even a “cradle to school-to-prison pipeline” disproportionately driven by race and poverty—and disproportionate exposures to “toxic stress” and “adverse childhood experiences” with long-term neurodevelopmental consequences. Research regarding the overrepresentation of youth with mental disorders, learning disabilities, and substance use disorders led some to think of juvenile justice systems as increasingly functioning as tacit adolescent forensic mental health systems but without the requisite training or resources.

The narrative of the psychopathic youthful “super-predator” inured to inflicting violence, devoid of empathy and emotional reciprocity, and incapable of rehabilitation began to erode. Academic literature described the great wave of self-desistance of even violent or chronic misconduct by youth as they mature. This was linked to research on adolescent neurodevelopment. Research on evidence-based processes and interventions emerged. Major philanthropies such as the MacArthur Foundation invested heavily in reform in policy and practice in juvenile justice.

Slowly, the paradigm about adolescent misconduct shifted. The “super-predator” discourse of “What’s wrong with you?” shifted towards a trauma-informed discourse of “What happened to you?” Less attention was given to the harm adolescent offenders inflicted upon others as more attention was given to the often multiple and persisting harms that had first been inflicted upon them.

In Roper v. Simmons (2005), the US Supreme Court barred execution for crimes committed as juveniles. This landmark case braided “children are different” with “death is different” jurisprudence, found that juveniles as a class are less morally culpable than adults due to immaturity, and emphasized the greater capacities of youth for rehabilitation. The Court would later rely upon the same rationales to bar Life Without Parole for juveniles committing non-homicide crimes (Graham v. Florida, 2010) and sentencing schemes imposing mandatory Life Without Possibility of Parole for homicide committed as a juvenile (Miller v. Alabama, 2012). The recent Montgomery v. Louisiana (2016) decision applied Miller retroactively.

This line of constitutional jurisprudence has shaped research and public policy. The discourse has gradually added elements asserting that failing to recognize that “children are different”—politically unpersuasive solely as a principle—also results in discernible and at times enduring harms to children in the juvenile justice system. The Supreme Court has now weighed in on execution and mandatory Life Without Possibility of Parole. Other current reform work has moved to diversion from juvenile justice entirely, abolishing mandatory shackling and discipline through solitary confinement, supporting positive youth development, trauma-informed responses, family engagement, and thoughtful re-entry if youth are detained or incarcerated.

Those opposing incarceration of youth with adults and calling for other juvenile justice reforms cite the impact of “toxic stress” experienced as substantive and often enduring psychological pain and harm. Some have gone so far as to question whether or not youth have a constitutional right to healthy neurodevelopment when in the physical custody of the state.

Strategies to humanize “the other” and build psychological scaffolding for identification and empathy are not unfamiliar. It is not unexpected that opponents of abortion would seize upon “fetal pain,” or that reformers of juvenile justice would seize upon the psychological pain of youth who are incarcerated with adults (where they are often victimized), in prolonged “protective” solitary confinement (to prevent their victimization), or in poorly resourced juvenile facilities.

Strategies that succeed in breaking political stalemates predictably prompt responses. It is still unknown whether the political focus on “fetal pain” will shift the landscape in the abortion controversy. It also remains unknown whether or not the changes in Constitutional jurisprudence sparked by Roper and advanced by Graham, Miller, and Montgomery will weather the responses of advocates for the victims of juvenile homicides. Some state legislatures have responded to the Supreme Court’s declaration in Miller that a juvenile sentenced as an adult must have at least one “meaningful opportunity” to demonstrate rehabilitation with initiatives to impose draconian “minimum mandatory” sentences of 30, 40, or even more years before a juvenile would first become eligible for parole.

As Dr. Stafford and Professor Pustilnik asked: Who suffers? Whose suffering matters? What kinds of suffering matter? How should the blunt instrument of the law proceed in recognizing pain and suffering and recognizing the multiple and complex human circumstances involving the physical and psychological pains and sufferings reflected in decisions about abortions, executions, palliative care of the dying, or prolonged or lifetime incarceration for an act committed as a youth?

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.