By Eraka Bath, MD, Shawn Sidhu, MD, and Sofia Stepanyan, BA | July 2013 | Journal of the American Academy of Child & Adolescent Psychiatry
Over the past decade, a series of U.S. Supreme Court cases have enhanced the legal rights for youth involved in the juvenile and criminal justice systems. These cases, considered landmark cases in psychiatry and the law, reflect an evolving understanding of the interplay among culpability, neurocognitive development, and adolescent behavior. Fortunately, these legislative trends represent significant gains in improving due-process protections for juveniles and have shifted the pendulum toward a more neurodevelopmental approach in thinking about culpability and rehabilitation in young offenders, a vulnerable population with high levels of psychiatric morbidity.
Conceptualizing blameworthiness or culpability is particularly important as we frame the recent legal shifts in our justice system regarding punishment and rehabilitation for young offenders. Although the term culpabilityrefers primarily to the ability to know the difference between right and wrong, it also involves understanding the consequences of such actions. Notably, Roman civil and church laws distinguished between adults and juveniles by applying the “age of responsibility” to deciding culpability. Early Muslim and Talmudic law also factored development and age into determining culpability and choosing the degree of punishment for youth, even prohibiting the use of the death penalty for the very young.
“Tough on Crime” Legislation
To best understand these current legislative trends, a brief review of the paradigm shifts that occurred in the 1990s is helpful. As minors began to commit more violent crimes and homicides, public opinion shifted toward implementing more “tough on crime” legislation. Many jurisdictions reacted by enacting legislation that made it easier to punish juveniles and moved away from the philosophy of giving lighter sentences.1 By the mid-1990s, there was a considerable increase in the number of juveniles who were being tried in adult courts and sentenced to life without the possibility of parole. To this day, unfortunate sequelae of waiver to adult court include higher rates of incarceration and pretrial detention and an overall increased severity of sentencing. While incarcerated in adult correctional facilities, young offenders are at high risk for assault and abuse by inmates2 and are frequently deprived of appropriate educational and recreational services.3 They also experience negative longitudinal outcomes upon re-entry into the community. One of the more problematic ramifications of waiver to adult court was Juvenile Life Without Parole (JLWOP) sentencing. The 2012 national study by Nellis titled “The Lives of Juvenile Lifers”4 found that by the end of the 1990s, the United States stood alone as the only developed country to impose JLWOP sentences on juveniles. According to the study, most youth sentenced to JLWOP were disproportionately from racial ethnic minorities and had long histories of psychosocial adversity, learning problems, and high rates of abuse and trauma. In many instances, a sentence of JLWOP was the result of mandatory sentencing statutes, which meant that a juvenile’s age, developmental maturity, crime, and/or life circumstances were not taken into consideration. Most importantly, JLWOP sentences made rehabilitation nearly impossible due to state and prison policies and limitations of sufficient resources available to incarcerated youth.