Children and the courts

Well, we can at least congratulate the Supreme Court (SCOTUS) for its recent decision that sentencing children to life in prison without parole is unconstitutional, as is the use of mandatory “one size fits all” sentences.

Justice Elena Kagan was absolutely correct in stating, in her majority opinion, that the brains (and hence the minds) of children are undeveloped in those areas governing maturity, ethical and moral development, impulsiveness, and judgment regarding the consequences of their actions. These areas of the brain are not fully functional until the mid 20s and children cannot be expected to behave as if they were already operational.

No matter what crimes children have committed it is neither just nor even sensible to lock them up for life and throw away the key. The adult personality of these children (with the possible exception of sociopaths or psychopaths) will be, with proper educational and environmental stimulation, completely different from that of the impulsive, immature juvenile offender presenting him or herself before a judge.

SCOTUS has made us a little more civilized with this decision but more has to be done. Specifically it must be found unconstitutional (on the same 8th Amendment grounds of cruel and unusual punishment) to try children as adults – after all they are not adults, they are children.

It is the not the fault of children that our capitalist society, plagued with institutional racism and inequality, throws many of them into horrible abusive environments devoid of decent educational opportunities, meaningful social programs, and inadequate living conditions (especially homelessness and uncaring foster care programs), and that as a result some of them end up in the criminal “justice” system – and often in for-profit penal institutions.

These observations are not just progressive rhetoric. They are based on current scientific studies. ScienceDaily for example, recently published an article called “Children, Brain Development and the Criminal Law.” This article says, “The legal system needs to take greater account of new discoveries in neuroscience that show how a difficult childhood can affect the development of a young person’s brain which can increase the risk of adolescent crimes, according to researchers.”

Research has been carried out by a group directed by Dr. Eamon McCrory of University College, London, which show “that early adversity – such as a very chaotic and frightening home life – can result in a young child becoming hyper-vigilant to potential threats in their environment. This appears to influence the development of brain connectivity and functions.”

Dr. McCrory’s team also discovered that, with these brain changes, children may may engage in more impulsive risky behavior than others and this “may increase both their vulnerability to mental health problems and also their risk  of problem behaviors.”

Additional research at Oxford University, by Dr. Seena Fazel, shows that besides the risks posed by the social environment, children suffering from traumatic brain injury (TBI), either by accident or abuse (such as assault), are much more likely to engage in violent crimes (thus coming in contact with the criminal “justice” system). On top of this  Professor H. Williams (University of Exeter) has found that about 45% of  “young offenders have TBI histories, and more injuries are associated with greater violence.”

Professor Williams concludes, “There is big gap between research conducted by neuroscientists and the realities of the day to day work of the justice system. Although criminal behavior results from a complex interplay of a host of factors, neuroscientists and clinicians are identifying key risk factors that – if addressed – could reduce crime. Investment in earlier, focused interventions may offset the costs of years of custody and social violence.”

But we should note, that even if early intervention fails, these children still need to be looked after as children who need and deserve our help. Surely it behooves the adults who must deal with these children on all levels to find ways to help them, not lock them away for the rest of their lives in adult prisons.

Photo: Timothy Pearce // CC 2.0


Thomas Riggins
Thomas Riggins

Thomas Riggins has a background in philisophy, anthropology and archeology. He writes from New York, NY. Riggins was associate editor of Political Affairs magazine.