From the event "From Troubled Teens to Tsarnaev: Promises and Perils of Adolescent Neuroscience and Law," held at Harvard Law School on September 28, 2015. Part of the Project on Law and Applied Neuroscience, cosponsored by the Center for Law, Brain and Behavior at Massachusetts General Hospital and the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School. For more information, visit our website at http://petrieflom.law.harvard.edu/events/details/from-troubled-teens-to-tsarnaev.

1. Adolescent Brain Development in Juvenile Justice:
Young Brains, Youthful Behavior and Law
Robert Kinscherff, PhD, JD
Senior Fellow in Law and Applied
Neuroscience, Center for Law Brain and
Behavior (Massachusetts General
Hospital) and Petrie-Flom Center for
Health Law Policy, Biotechnology, and
Bioethics (Harvard Law School)
William James College
Associate Vice President, and Faculty in
the Doctoral Clinical Psychology Program
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2. Normative Adolescent Development
Dr. Laurence Steinberg (2007, 2008, 2009)
• 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
• Delayed Gratification Increase with Age
• Time Spent Problem-Solving Increases with Age
• Susceptibility to Peer Influence Declines with Age
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3. Real Story with A Real Teen
Me:
Matt, Matt….What could you have been thinking?
My son (then age 15):
Hmmmm. Thinking….thinking…..Father, I believe you are
presuming a fact not in evidence…..
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4. Acknowledgement
• The Following Slides Are Used With Grateful Acknowledgement
to Dr. Laurence Steinberg and his colleagues, the Models for
Change Initiative of the John D. and Catherine T. MacArthur
Foundation, and the National Center for Mental Health and
Juvenile Justice
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5. Impulsivity Declines with Age
(Steinberg, et.al., 2008)
3-23
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6. Preferences for Risk Peaks
in Mid-Adolescence
(Steinberg, et al., 2009)
3-25
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7. Risk Perception Declines and then Increases After
Mid-Adolescence
(Steinberg, et al., 2009)
3-26
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8. Future Orientation Increases with Age
(Steinberg, et al., 2009)
3-29
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9. With Age, Individuals Become More
Resistant to Peer Influence
(Steinberg & Monahan, 2007)
3-34
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10. Dr. Jay Giedd
Neuroscientist, NIMH
“It’s sort of unfair to
expect [teens] to have
adult levels of
organizational skills or
decision-making
before their brains are
finished being built.”
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11. Youth In Juvenile Justice
• Highly disproportionate numbers of youth in “Cradle to Prison
Pipeline:” Youth Of Color plus Extreme Poverty (and its multiple
stresses and often paucity of supports for positive youth
development)
• Highly disproportionate number of youth with psychiatric
disabilities, learning disabilities, substance use disorders,
intellectual disabilities. Juvenile Justice System as Default
Forensic Mental Health System?
• Emerging research: Number of ACEs correlates with substance
use, school failure, arrests, involvement, crimes against persons,
recidivism
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12. Adolescence Plus History of High or Chronic
Adversity Yields Even Greater Risks Of:
• Emotional Dysregulation, esp. Under Stress
• Elevated Stimulation-Seeking
• More Limited Option-Detection
• More Limited Foresight on Outcomes of Risk
• Greater Hypervigilance and Sense of Threat
• Higher Rates of Depression, Anxiety
• Higher Rates of Self-Harm and Self-Risk
• Higher Rates of Substance Abuse
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13. Key “Suspect Contexts” for Youth in Contact with JJ
Normative Adolescent Development—Further Complicated If
Histories of High or Chronic Adversity—Yields “Suspect Contexts” For
Legally-Relevant Decisions/Acts When:
• Fearful, Distressed or in High Arousal (Hot Cognition)
• Peer Relationships/Loyalties are Implicated
• Requires Ability to Detect/Assess Options
• Requires Ability to Project Alternatives/Outcomes in Time
• Occur Without Input From Meaningful, Knowledgeable Adult
• Occur Without Opportunity to Deliberate (Cold Cognition)
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14. Legal Domains Implicated Include:
Poor Match for Adolescent Development
• Non-custodial contacts and Custodial (Miranda) interrogations
– JDB v. North Carolina US Supreme Ct (2011)
"to hold... that a child's age is never relevant to whether a suspect has been taken
into custody— and thus to ignore the very real differences between children and
adults— would be to deny children the full scope of the procedural safeguards
that Miranda guarantees to adults“
• Competence to Stand Trial
– Especially “rational” in addition to “factual” appreciation
– Especially for defendants under age 16
– Note: Prior juvenile court experience not tied to Competence
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15. Legal Domains Implicated Include
• Trial and/or Sentencing as Adults
– Capacities related to decisions relevant to pleading, trial strategy
– Conditions and consequences of confinement with adults
• Felony Murder Doctrine
– Little to no evidence of a deterrent effect on youth
– Disproportionate entanglement in serious/capital cases
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16. Legal Domains Implicated Include
May Significantly Compromise Healthy Neurodevelopment
• Conditions of Confinement (esp. stress, isolation, maltreatment)
• Practices such as shackling, “protective” segregation
• Limited access to developmentally normative experiences
Emerging Law? Developmental Vulnerability (+) Adversity
• Failure to meet special needs in Compton School District case
• A basis for litigation if juvenile justice is De Facto Adolescent Forensic
Mental Health System due to inadequate behavioral health services in
communities and public mental health systems?
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17. It is easier to build strong
children than to repair
broken men….
Frederick Douglass
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