Unfortunately, judges and attorneys can serve in delinquency court with essentially no training in principles of normal -let alone abnormal- childhood development. These principles are essential if one is to understand the requirements of normal neurobiological, psychological, social and moral development. An understanding of the principles of child and adolescent development and a consideration of children's mental health is useful to decision-makers at all levels of the juvenile justice system. Judges, prosecutors, and public defenders are routinely faced with offenders of both sexes who are psychologically very different than their adult counterparts.
Thus, there are several reasons why actors in our juvenile justice system should understand child development principles. Indeed, there may be paradoxical or untoward negative developmental consequences of incompetent or developmentally inappropriate sanctions by a juvenile court. Simply put, there is the very real risk that the system can do more harm than good to a child who is still in the process of neurobiological, psychological, social, and moral development. Because of this, the negative consequences of careless sanctioning may be more enduring for a child (and for society) than they might be for an adult. Childhood is an intense period of rapid development culminating in the tasks of identity formation and social integration. Other than infancy, no stage in human development results in such rapid or dramatic change as adolescence. These developmental tasks are exquisitely sensitive to environmental (peer, educational, familial, and social) influence. To complicate matters further, the teen years are also characterized by a struggle for autonomy from adults upon whom these youth must still depend.
These changes are accompanied by rapid neurobiological concomitants, which are reflected in cognitive, emotional, and abstract reasoning, as well as moral changes in development. According to some authorities, adolescence is an "important formative period in which many developmental trajectories become firmly established and increasingly difficult to alter . . . it is not an overstatement to say that it is much easier to alter an individual's life course in adolescence than in adulthood." The application of the child development considerations described in this paper should lead to decreased rates and durations of detention and decreased use of interventions with no positive evidence base for all detained youth. This will apply especially to children with mental disorders or mental retardation and for low- to moderate-level youthful offenders of all genders, races, and ethnicities. The purpose of this Article is to help lawyers, judges, and other juvenile justice policy-makers and decision-makers in prescribing more effective, developmentally appropriate, and humane remedies when designing alternative interventions and sanctions for juvenile offenders who are not seriously violent or sociopaths. The vast majority of youthful offenders are not dangerous, and this group will be the focus of this Article. Although extremely important, issues of diminished competence, capacity, and culpability will not be directly addressed.
Part I of this Article will reference principles of child and adolescent development and children's mental health. The concept that children of different maturational stages experience the same sanction differently will be explained. In Part II, examples will be offered to demonstrate how some sanctions are more conducive to a child's positive social development than others. The necessary balance between allowing some latitude for mistakes while providing a clear set of limits and consequences will be described. Inappropriate imposition of some sanctions and their possible deleterious effects on a child's relationship to society will be discussed.
Part II will conclude that decision-makers in the juvenile justice system, including the juvenile delinquency court, should be driven primarily by the developmental, emotional, and social needs of the individual offender, rather than the characteristics of the individual offense (the system should be offender driven instead of offense driven). The goal is to help the decision-maker obtain more clarity in the objectives to be obtained and to become more knowledgeable and effective in achieving those objectives.
Finally, in Part III, this paper will suggest specific sanctioning strategies in various "special" cases, including those of girls in the juvenile system, the incarceration of juveniles with mental health and neurodevelopmental problems (including learning disabilities), disproportionate minority confinement from a child's perspective, and trans-generational offenders and their families.
I. General Developmental Considerations
Biology and experience determine the developmental trajectory of a child.
Modern neurobiological understanding of the interdependence and developmental interpenetration of these two dimensions has superseded the historical question of "nature vs. nurture." Indeed, according to modern neurobiologists, that dichotomization is misleading: experience affects brain development and the developing brain affects how the environment is experienced and processed. Therefore, future behaviors in response to a given set of environmental circumstances, cues, or stimuli can be traced to genetic/biological factors (temperament, biological predilection, or vulnerability) and experience (internal, familial, interpersonal, and environmental). Insofar as a principal concern of the juvenile justice system is social behavior, its proper focus is on familial and social factors that impact behavior. In this context, social-learning theory and developmental neurobiology are relevant for framing developmental issues that inform effective sanctioning of children and adolescents who are still developing.
Research using magnetic resonance imaging of the brain demonstrates differences in the way adolescents and adults think and feel and the way they process information before they act. Adolescents tend to process emotionally charged decisions in the limbic system, the part of the brain charged with instinctive (and often impulsive) reactions. Most adults use more of their frontal cortex, the part of the brain responsible for reasoned and thoughtful responses. This is one reason why adolescents tend to be more intensely emotional, impulsive, and willing to take risks than their adult counterparts. These are marked differences in rates of brain development in adolescents. Thus, chronological age is a poor index of neurobiological and emotional maturity.
A typical youth who repeatedly appears before the juvenile court comes from a chaotic home and neighborhood environment. Oftentimes, he has learned that the world can be unpredictable, capricious, threatening, and grossly unfair. Additionally, he has not had the necessary developmental opportunity of internalizing consistently benevolent, reliable, and fair adult authority figures. Instead, a hostile environment that was not responsive to a child's need for consistent and reliable care giving may have determined his view of family, neighborhood, and society. While this does not diminish the delinquent's responsibility for learning to control his behaviors, it illustrates why it is important for the delinquency court to avoid re-enacting the role of an indifferent, unreliable, unpredictable, unfair, or incompetent authority figure. Children and adolescents need limits, structure, and boundaries in order to develop normally. From a developmental perspective, the child's interaction with the juvenile justice system is a key opportunity for a society to unequivocally illustrate its true values and to clearly articulate its expectations of its citizens. To the developing youth who is just beginning to learn what he can expect from social authority, the juvenile justice system represents the social order. If a child's experience with a societal authority (e.g., law enforcement and the delinquency court) seems thoughtless, impersonal, or indifferent, he will experience precisely the opposite of what he needs to developmentally internalize personal responsibility for their actions in relation to the society that the court represents. This is why timely, consistent, and thoughtful responses to each juvenile offender are so important. What the vulnerable youth experiences from the juvenile justice system will affect how he views authority in general and his beliefs about social authority in particular. Just as children have a developmental need to test limits, they have an equally important need to encounter predictable structure and boundaries. A balance between punishment and permissiveness-both measured and timely-is essential for effectively intervening with the low- to moderate-level offender for whom responsibility has fallen to the legal system.
From a child development perspective, the predictability and consistency of adult attention and responsiveness is often what is most important. If a child learns that his social environment will respond inconsistently, he is much more likely to continue a behavior in the hopes that he will "get away with it this time." For example, if a child is caught sniffing glue after breaking into a neighbor's house while truant from school and "nothing really happens," he is more likely to persist in those behaviors and perhaps escalate the seriousness of his substance abuse, truancy, and delinquency. The message he has received is: "No one really cares about me that much," which is construed to mean, "So I might as well do whatever I want." One reason for this is that children require attention the way they require food and sleep. Attention is necessary for brain development. The notion of an attention requirement or demand is relatively unrecognized in Western psychology, although it has been known for some time in the psychologies of central Asia. Such behavior has its correlates in brain development inasmuch as the developing child requires interaction of other humans to develop the capacity of recognizing facial cues and the nuances of social situations. As teenagers become more attention-deprived they will become less and less discriminate toward how they go about getting the attention that they need. This is the root in much of attention-seeking behavior in normal adolescents, and accounts for some of their more peculiar vagaries in dress, appearance, and behavior. Children will seek both positive and negative attention to meet their needs. If no attention is forthcoming, they will escalate their demands. For example, if a child is not noticed when he uses mild profanity, he may escalate the "stakes" by using more vulgar language in order to get the needed attention (and to test his social boundaries). Another example is verbal taunting. If no one intervenes, taunting by an attention-seeking child often escalates into full-scale bullying and sometimes physical violence. It is important to note that it does not matter to the child what the valence of the attention is. Failing to get positive attention, a child will attract negative attention.
II. Strategic Sanctioning
There is a lack of clarity and significant differences of opinion about the proper role of the delinquency system. The historical polarization of advocates of punishment and those who advocate "rehabilitation" is, for the most part, irrational. As any parent can testify, successfully raising a
child requires at least some consequences (punishment) in response to dangerous, antisocial, or otherwise inappropriate behaviors. Complications arise when punishment (to discourage misbehavior) is confused with retribution. Further complications develop when punishment is applied thoughtlessly, unfairly, and disproportionately to youth in a manner that does not foster positive development and may, in fact, forestall it. Finally, the frequent presence of biologically-based mental illness or mental retardation in a substantial sub-population of juvenile offenders further confounds effective decision-making. Thus, effective sanctioning of juvenile offenders requires clarity of thought and purpose. The modern decision- and policy-maker in the juvenile justice system must first be clear about what needs to be accomplished. Three common, important, and overlapping goals of the juvenile delinquency system for low- to moderate-level offenders are punishment, the prevention of recidivism (i.e., to provide for community safety), and deterrence (of other youth from committing the same offense). Another goal, which is often conceptually mixed with these three, is "rehabilitation"-a phrase that has effectively lost useful, precise meaning because of its vague definition in popular usage, the political associations it has acquired through heavy usage over time, and its use as a euphemism to denote intermediate sanctions designed to effect one or more of the other goals of the juvenile justice system. For example, a two-year incarceration of a fourteen-year-old in a state "training" school is often called "rehabilitation." Black's Law Dictionary defines rehabilitation in the context of criminal law as "the process of seeking to improve a criminal's character and outlook so that he or she can function in society without committing other crimes."
There are problems when this definition of "rehabilitation" is applied to children and adolescents. First, the "process" is open to widely different interpretations depending on the philosophy of the decision-maker. For example, prolonged detention of a moderate-level offender is thought by some decision-makers to be a rehabilitative process that might improve character. Second, modern psychology and psychiatry specifically dispute that a child or adolescent has a fully formed character. For example, a child cannot be diagnosed with an anti-social personality disorder before eighteen years of age. In other words, the character of the child and adolescent is still in the process of forming. Third, there is evidence that incarceration, boot camps, and the fear of being "scared straight" does nothing to improve juvenile delinquents' character, even though all are commonly cited as "rehabilitative" elements of the juvenile justice system. If the term is going to be used at all, "rehabilitation"-at least in the context of the low-level juvenile offender-should be defined as "the goal of fostering positive social development (healthy personal, social, and moral maturation) of youth." The goal of rehabilitation is broader than punishing, controlling, or deterring behavior, but it does include the more narrow aim of controlling and delivering consequences that will serve as deterrents to delinquent behaviors and that will provide for community safety. Given that confusion currently surrounds the primary purpose of juvenile court law, it is imperative that the reader understands these goals are not in opposition to each other (positive development versus behavior control/punishment). Instead, this paper describes the interdependence of the two and explains how an appreciation of the principles of healthy childhood development has a direct bearing on the design of effective sanctions and deterrence for the vast majority of juvenile offenders.
A. Duration of Sanctioning and Frequency of Reviews
There are many variables in determining effective offender-based sanctioning that make generalizations difficult. It would be illogical to attempt to generalize too much while advocating individualized nuance in decision-making. Nevertheless, two variables will be taken up here to provide an example: duration of sanctioning and frequency of review. The reason that a year seems interminably long for a four-year-old is that a year is subjectively one-fourth of his life. For a sixty-year-old man, a year is only one-sixtieth of his life. This subjective perspective is why the years seem to go by more quickly as we get older. The reason this principle is important to understand in this context is twofold. First, it has a direct bearing on the effects of delaying the onset of sanctions vis à vis the behavior for which it is to serve as a punishment or deterrent. The younger the child, the more quickly the consequence should follow the behavior. Second, it has a direct bearing on setting developmentally appropriate durations of sanctions. It is therefore imperative that decision-makers remember that the younger the child, the longer a given duration of sanction will be subjectively experienced. This is especially important when detention is used. If the duration is too long, the child will invariably feel that the punishment could not possibly match the crime. There is the risk of losing this child, who will externalize his responsibility (e.g., blame his lawyer), and feel (consciously or not) that societal authority is capricious and unfair.
Patricia Chamberlain aptly describes this idea: Another salient characteristic of adolescents with severe conduct problems is that they invariably have a strong sense that they have been treated unfairly. Whether it has been by their parents, the police, or their teachers, each of them feels victimized in some way. Of course, there are good reasons for this. After reading the case histories of these children, one cannot help but feel sympathetic to their plight. Many of them were raised in families in which there have been serious mental health problems for generations and legacies of abuse, crime, and disrupted relationships have been passed down as part of the family tradition. Attempting to change the life course of these adolescents while treating them in a way they see as fair is a formidable challenge. That is, an individual will act out in destructive ways to the extent that he or she feels treated unfairly.
If efficacy is the goal, the foremost considerations in tailoring the variables of duration of sanction and frequency of monitoring should be the developmental stage and psychological circumstances of the child. Because of differences in the experience of time, any given duration of sanction will be experienced subjectively as longer by younger children. In practical terms, this means that three months for a fourteen-year-old is much longer in psychological time) than three months for an adult. This is why effective parents ground their teenage children for weeks not months. Duration beyond a few days or weeks does not usually add anything to deterrence, is much more difficult to enforce, and is much more likely to be perceived as grossly unreasonable and unfair, further mitigating the effectiveness of the sanction.
Physiological tolerance to some medications may provide a useful analogy.
Physicians know that the dose and the duration of administration are all critical variables in effectiveness. Too much medication for too long will result in a marked diminution in a medication's effectiveness or highly undesirable side effects. The same can be said for many juvenile justice interventions.
The issue of developmentally appropriate frequency, however, is the other side of this coin. Because younger children experience time as moving more slowly, frequent reviews of behavior are highly desirable and more necessary than with older adolescents. Effective parents monitor homework, chores, curfews, and bedtimes daily or weekly until they are assured that the child can monitor these responsibilities on his own. Effective therapeutic residential centers also monitor daily and weekly behaviors and reward or punish accordingly. Consequences for misbehaviors are sure, consistent, quick, and directly tied to the undesired behavior. On the other hand, the child gets a fresh start with every new day or week.
To be effective in promoting positive development and extinguishing negative behaviors, the juvenile justice system must adopt the same consciousness of developmental appropriateness. As a general rule, the younger the child, the shorter the duration; but the greater the frequency of monitoring. For example, in residential treatment, a youth is not asked to stay in control forever." Experience has taught that "one day at a time" works much better. Similarly, however, frequent reviews give the child support and an excuse to say "no" to peer pressure. Another example is reviews of compliance with court orders. It is unreasonable to come down on a child six months after she has stopped complying with an order. The original offense, the rationale for the court orders, and the warning and admonitions delivered by the judge, have long since faded from the child's memory (the judge has a record to review-the child does not). If goals have been set (e.g., school attendance and performance), progress towards those goals should be monitored frequently to make sure the child is on track. To be fair and effective with young people, the juvenile justice system must strive to mark time in accordance with the needs of individual youth at different stages of maturation and not based on a fixed and preset timetable determined by convenience or usual and customary practice. In general, this means that the juvenile justice system is susceptible to more frequent reviews. Ideally, each child would have one judge; in practice, this would mandate a less frequent rotation of judges.
B. Why Community Based Sanctions are Better than Institutional Alternatives
Although often difficult to obtain, the youth must accept personal responsibility for his delinquent behaviors. This corresponds to the developmental goal of encouraging children to control their impulses, to consider the impact of their behaviors on others, and to accept responsibility for their own mistakes while not blaming them on others or on circumstance. For a youth who has not yet become desensitized to the threat or imposition of detention, the initial impact of incarceration will be profound. At the same time, the impact of this sanction diminishes dramatically over time as the child becomes desensitized. At a certain point, the child "gives up" as his identity changes to that of a chronic delinquent. Sooner or later, most children give in to what others expect of them. The child may begin to "identify" with some of the more delinquent peers in detention. For most teenagers, losing a Friday and a Saturday night is sufficient to get their attention and to serve as an effective sanction. Paradoxically, months of detention are often counterproductive and can have seriously undesirable side effects, such as gang recruitment. Judges report a frequent refrain from parents that "my child never even thought of doing that until he was locked up with those other children."
From a developmental point of view, prolonged detention is also problematic because the child is undergoing developmentally important phases of life in institutional settings with idiosyncratic demands particular to that setting. Consequently, the child is adapting to incarceration and an institution, not to the community from which she came and to which she will return. It is imperative that the juvenile justice decision-maker understands that virtually every effective evidence-based intervention for delinquency occurs in the home and community. One expert states it simply: It seems unlikely that institutional treatment, retraining or punishment is effective in decreasing delinquency. It is even possible that there is a harmful effect because of the alienation, stigmatization and "contamination" suffered by those who are incarcerated together with other offenders. Even where treatment gains are observed, it appears that they are lost on return to the community. This finding makes perfect sense. Normal child and adolescent development requires an environment that is more, not less, normalized. This is one reason that boot camps do not work for the great majority of offenders and make a sizable proportion of children worse.
C. The Proportionality of Sanctions
The issue of developmentally appropriate intensity of sanctions is also very difficult to address with generalizations for many reasons. First, there are cultural differences in what is considered a reasonable way to treat a child. It was not long ago that many Americans believed corporal punishment was a sanction of choice. Hence the popular saying: "spare the rod and spoil the child." Second, there are differences in how individuals will experience any given sanction. For some children, just the thought of detention is terrifying, while, for others, a stint in "juvie" is a badge of honor. For some, home detention or being alone on the weekends is a fate far worse than juvenile hall (where their friends are). Third, depending on the degree to which a child has become "criminalized," a given sanction may appear more (or less) fair (or reasonable) to that child and his family. For example, the family of a girl who is in detention for running away, drinking, and intimately associating with older males in stolen cars might be relieved or, alternatively, feel discriminated against because of her gender. Inasmuch as the child's and family's experience with the court is itself a determinant of future attitudes towards social authority, it is imperative that the court be predictably knowledgeable and reasonable in designing sanctions that are offender-based. This requires an understanding of the individual child, his family, culture, and social circumstances.
D. Developmentally Constructive Sanctions
As many parents and teachers know, designing constructive sanctions is challenging but very worthwhile because the developmental, educational, or social yield is multiplied. Children become more mature, responsible, knowledgeable, or pro-social as a result of their "punishment." This is why researching and writing a report on the effects of substance abuse is better than writing "I will not smoke marijuana" a thousand times. "Volunteer" service at a senior care home is better for a child than picking up highway litter (unless the offense is littering). A youth convicted of driving while intoxicated might be ordered to "volunteer" in an emergency room. A particularly good example of a constructive sanction for graffiti vandals ("taggers") is ordering them to "adopt" a piece of property, and holding them strictly liable for its maintenance and graffiti-free state. This type of individualized and "nuanced" sanction is developmentally constructive because the youth has a chance to experience the sensation of "watching out" for his assigned "property." He learns what it feels like to be at the mercy of vandals and experiences the victimization of having his "property" vandalized. Furthermore, he learns the inconvenience, cost, time, and labor involved in cleaning up after somebody else who has little regard for (or experience regarding) the rights of others. Another developmentally constructive sanctioning example is arranging for a youth to meet his victim. Adolescents, often thoughtless and impulsive, will perpetrate a crime or prank without considering its impact on others. When a human face is put on the damage and suffering they have caused, they often feel both regret and remorse. These offenders lack experience rather than capacity for empathy. Whether they admit it or not, there often arises a genuine desire to make things better. The juvenile justice system should take every possible opportunity to present to youth the human face of victimization. From a developmental point of view, this is one of the most potent tools in the hands of decision-makers. It teaches empathy, accountability, and compassion while allowing the full impact of the pain of guilt and shame to mold future behavior. It personalizes the system and humanizes society for the children whom the system is trying to socialize.
D. Developmentally Competent Practice Principles
The most effective sanctions are those that address the personal, familial, and societal variables that are essential to healthy child development. These sanctions are community-based whenever possible. Again, virtually all effective evidence-based practices occur in the community and the home. These ideal sanctions almost invariably help the low- to moderate-level offender in developing increased personal competence and connectedness to pro-social elements of a larger community. The immediate community perceives these sanctions as measured and fair. Effective sanctions provide supervision, encouragement, and support, along with clear, firm, and timely consequences for delinquent behavior. Effective sanctions are also characterized by some of the following features:
1. Sanctions are based on the offender and not the offense:
- There is sensitivity to the developmental stage of the offender
- Juveniles are dealt with in the context of their connectedness with others (parents, siblings, extended family, and peers) rather than as disconnected individuals
- Contact with the offender is frequent and reliable
- Opportunities for the child to externalize responsibility for his acts are minimized
2. Sanctions fortify extant strengths, competence, and self-control:
- The individual youth's strengths are identified and mobilized
- There is recognition of the child's efforts (the child receives encouragement)
- Multiple aspects of a juvenile's life are acknowledged (e.g., sanctions may have effects on education, peer relations, vocational preparedness, and pro-social community relatedness)
- Commitment to appropriate education or vocational preparedness is vigorously promoted
- Youth are provided meaningful opportunities to enhance competence development
3. Whenever possible, sanctions are community based rather than institutional:
- They build on relationships with the child's family and community
- Family, schools, peer group, and neighborhood risk and need factors are taken into account
- Youth are provided meaningful opportunities to enhance pro-social connectedness
- Immediate and extended family and community members are used as allies whenever possible
- After-school hours are accounted for
- Time with anti-social peers is minimized
- Exposure to positive peer environments is provided whenever possible
- Genuine opportunities to contribute to family, school, or a pro-social community are provided whenever possible
4. Sanctions are realistic:
- Incentives to succeed are within reach of the offender
- Clear expectations are set and monitoring is set at a developmentally appropriate frequency
- There is recognition of the child's efforts (the child receives encouragement)
- There is a developmentally appropriate provision of latitude for mistakes
5. Sanctions engender respect for the court and its processes:
- There is an implicit and explicit expectation of respect for the court
- There is explicit respect for each youth and her family, culture, and community
- Humiliation or shaming is not used as a means of motivation (e.g., respect for the child is shown)
6. Whenever possible, a sanction puts a human face on the court process:
- The judge relates to each child personally
- The message that "the system cares" is explicit from all parties
- The child should be encouraged to meet the victim(s) of his criminal acts whenever practical and appropriate
- Empathy for the victim(s), an apology, and individualized restitution should be explicit expectations
III. Strategies for Special Populations
Within the juvenile population there are enormous differences between, for example, a twelve-year-old and a seventeen-year-old. Furthermore, there are vast differences in the emotional development of children of the same chronological age (e.g., among thirteen-year old boys). There is also evidence that earlier-maturing girls and later-maturing boys tend to have more problems than adolescents with average ages of onset of puberty. For example, the Institute of Medicine reports that early-maturing females appear to be at increased risk for victimization, especially sexual assault, which may contribute to their greater likelihood of problem behaviors compared to girls who mature (physically) later. Principles of child development and children's mental health can help guide decision-making in the design and implementation of more effective interventions for youth who have committed minor to moderately severe offenses. Again, this Article does not address the seriously violent, older juvenile delinquent and important issues of diminished competence, capacity, and culpability will not be addressed here.
Girls make up an increasing proportion of the number of juveniles arrested. The 1997 violent crime arrest rate for females remained 85% above the 1987 rate. No single theory for their increasing arrest rates is entirely satisfactory. Like juvenile crime in general, the causes are multi-factorial and include developmental, psychological, post-traumatic, sociological, and processing factors. Three elements are especially salient:
(1) Girls are more often arrested and tried for status offenses such as running away and curfew violations,
(2) Girls are much more likely to be the victims of trauma, and
(3) Girls are affected by apparent increases in the rates of family violence observed in specialized juvenile domestic violence court calendars.
A tragic fact is that many girls run away as a response to family trauma-especially sexual victimization. Clinical experience makes it clear that we are unlikely to hear about this victimization in usual court processing. Most often, the trauma will be displayed by out-of-control behaviors, substance abuse, running away, extreme promiscuity and sometimes prostitution. According to the Institute of Medicine, "There is some evidence that, on average, girls experience more distress during adolescence than boys. Some researchers have speculated that, for girls, the transition during puberty brings about greater vulnerability to other environmental stressors." In particular, a growing literature suggests that the early onset of puberty can have an adverse effect on girls' development. It can affect their physical development (they tend to be shorter and heavier), their behavior (they have higher rates of conduct disorders), and their emotional development (they tend to have lower self-esteem and higher rates of depression, eating disorders, and suicide). As has been observed, "the youngest, most mature children are those at greatest risk for delinquency."
Among the juvenile population, girls are also disproportionately affected by affective (mood) disorders such as major depression. Because irritability and problems with impulse control are cardinal features of mood disorders, these symptoms often show up in female offenders. These circumstances create many difficulties for the decision-maker who may not have many gender appropriate resources available as alternatives. What is very clear is that punishment alone is not a good remedy for girls who are already self-destructive. From a child psychiatrist's point of view, self-punishment is one of the most difficult and intractable syndromes in victims and often occurs as an attempt at psychologically mastering an inflicted psychological wound that occurred when the victim was helpless or passive (e.g., sexual abuse). In simple terms, a girl who has been seriously harmed is more likely to put herself in harm's way. Another variable, which sometimes compounds the aforementioned problems, is a girl's trans-generational involvement with the dependency or criminal system (e.g., her mother may have a history of involvement with the dependency court). A girl whose mother has been frequently absent from her upbringing because of involvement with the system is at risk of early pregnancy and suboptimal mothering of her own children. Thus, the stakes for the effective decision-maker are high, and developmental, gender-specific, and mental health considerations must be taken into account to mitigate risk to the girl and potentially to her children. Although few gender-specific alternatives exist, juvenile justice professionals should look for programs that do the following things:
- Teach girls how to build healthy relationships
- Teach girls how to deal with trauma (emotional, physical, and sexual)
- Address future risk of victimhood
- Provide for affect regulation to address the intense, rapid changes in mood that often characterize abused girls
- Prepare girls for motherhood or teach pregnancy prevention
- Base their programs in the community whenever possible
C. The Mentally Ill and Mentally Retarded Juvenile Offender
Decision-makers commonly face children with mental illness, substance dependence, and mental retardation issues. According to many, the juvenile justice system has become a "dumping ground" for emotionally disturbed juveniles with nowhere else to go. A recent survey of juvenile and family court judges indicated that 86% of them believed that "mentally-ill juveniles were being shunted into the delinquency system." Seventy percent of judges believed that 15% or more of defendants were "mildly or moderately mentally retarded." Conservative estimates put prevalence rates for serious biologically-based and genetically-transmitted mental illness at 20% of the population of juvenile detainees. The rates of less serious but sometimes equally debilitating illness (including post traumatic stress reactions) is considerably higher, especially in girls. The prevalence of mild and moderate mental retardation is unknown, but in the experience of specialized courts, is very high. The presence of a serious mental disability has a direct bearing on appropriate sanctions (e.g., boot camps are contraindicated during serious clinical depression), the appropriate use of juvenile beds, and the development of treatment alternatives. Indeed, in a recent study, 77% of juvenile and family court judges surveyed believed they could reduce detention rates for offenders with better treatment options.
As a practical matter, these better treatment options would be community-based sanctions that strengthen the family, bolster educational performance or vocational preparedness, and address accountability and victim restitution. Most importantly, serious mental disability raises very serious issues about diminished competence, fairness, and humaneness. Often, cognitively limited youth are taken advantage of by more intelligent but more antisocial youth. Incarcerating juveniles who are already terrified because they are delusional or hallucinating is especially cruel. The sheer terror engendered by losing one's mind to psychosis is impossible to overstate. The sequelae of criminalization of the child with mental illness are clinically and legally unacceptable. From a medical point of view, it is a violation of a fundamental ethical precept: primum non nocere-first does no harm. With regard to mental illness, an effective juvenile justice system would be characterized by the following:
- Mental health issues that are aggressively identified (e.g., screening for all youth is in place)
- Appropriate seeking of mental health and mental retardation expertise (for diagnosis or assessment)
- Treatment that is provided in lieu of institutionalization, boot camps, or incarceration for children with serious mental illness
- Children with mental retardation who are separated from their peers with normal intelligence
D. The Effects of Disproportionate Minority Confinement
The proportion of minority youth involved in the juvenile justice system greatly exceeds the proportion of these youth in the general juvenile population. Disproportionality extends to virtually all phases of the delinquency process and intensifies as minority youth become more deeply involved in the juvenile justice system. This situation continues to grow worse despite increased public awareness.
There are myriad causes and conditions from which these circumstances arise. From the point of view of developmental psychologists, concerned citizens, and parents of all ethnicities, the situation is not acceptable because our society is correctly perceived as unjust by the children to whom we are trying to impart the societal value of justice. Although children of color are obviously the most deleteriously impacted, their plight is not lost on their non-minority peers. The unfairness of "the system" towards people of color has become a widely accepted fact among young people. Popular music and entertainment abound with "jokes" about racial profiling and the system's unequal treatment of minorities. From a child developmental point of view, this severely undermines our children's moral development and their respect for society and social authority. As these children age, their lack of respect turns into cynicism and with it the belief that injustice, not justice, is the lot of people of color in America. The societal impact of this cynicism on our social fabric is difficult to overestimate. Another dimension to the problem of disproportionate minority confinement is the trans-generational involvement of children.
E. Trans-Generational Involvement
Trans-generational involvement is a pattern in which multiple generations of a single family are involved in the justice system. This occurs when, for example, a thirteen-year-old boy is brought before the court while his father is still in prison or when a twelve-year-old girl, who was taken from her mother by child protective services when she was six-years-old, is charged with a battery on one of her foster parents. Trans-generational involvement creates psychosocial dynamics, which might lead to an escalation in antisocial reactions rather than to their abatement. The decision-maker must be extremely careful because of the complex and interrelated dynamics between the child, parental authority, and social authority.
For the child offender, developmental considerations are critical. A young child is likely to idealize their parents and unambivalently harbor hatred of anyone who has been perceived to hurt their idealized family member. With the older child, there is also likely to be some identification with parental figures, siblings, cousins, and others who have been sanctioned by society. Idealization, identification, empathy, and protectiveness are natural human filial attitudes, which are desirable and common to us all.
From the point of view of the child to be sanctioned, however, they can create complex ambivalence. For example, a child who enters the system from a family with extensive trans-generational involvement may view the process as a rite of passage and a point of (unspoken) family pride. Consequently, careless system interventions might have paradoxical and undesired effects on that child, such as providing him with what he silently wishes. To the transgenerationally involved parental figure, sanctioning can be perceived many different ways. Some parents might be indifferent. Others may view the intervention as unwelcome and unfair (perhaps racist or sexist) harassment or be very fearful of involvement with social authority based on their previous personal experiences with that authority (including Child Protective and Immigration Services). Some parents might be relieved or grateful that someone is stepping in to help (e.g., recovering alcoholics or drug addicts) and hopeful that societal intervention might help their child turn their life around so as to prevent the unnecessary suffering that they themselves have endured because of their addiction. It is essential that the decision-maker understand the spectrum of parental attitudes, which may include mixtures of indifference, antipathy, fear, and hope. These attitudes are part of the context in which the sanction will be perceived by the child and therefore are a major determinant of its effectiveness or lack thereof. The decision-maker must also examine his own attitudes. Does the decision-maker believe (consciously or unconsciously) that criminality is genetically determined and that he is providing early detection and incapacitation of children who are destined to become life-long criminals? Does he believe his job is to protect one part of society from another? Does he believe children should be taken away from criminal parents and neighborhoods so as to lessen the possibility that the child will be raised to become criminal? Does he assume parents will interpret his interventions as benevolent? Does he believe that setting an example with one child will serve as an effective deterrent to younger siblings who are also at risk? Although a discussion of these attitudes is beyond the scope of this paper, the point is that the effective decision-maker must be cognizant of his own attitudes as well as those of the trans-generationally involved child and family.
Primum non nocere-first do no harm-is not an idealistic maxim. It serves as he lowest threshold to which adequate performance is compared. Once public safety and victim rights have been accounted for, it is reasonable to apply this minimal standard to the juvenile justice system which intervenes on behalf of the highest risk, and oftentimes most highly victimized, youth. To meet this minimum threshold, decision-makers need familiarity with the general principles of child development and a reasonable knowledge of the risks and needs presented by each individual offender. The juvenile justice system cannot do this alone. For the majority of court jurisdictions, the amount of time, thought, and expertise required to implement the principles outlined in this paper far exceeds current capacity if change were to be implemented to a meaningful degree. Many jurisdictions exhibit severe fragmentation of triage, assessment, and service delivery systems with poor communication, little mutual understanding, and often distrust between community agencies competing for the same public dollar. Nevertheless, the developmental principles outlined in this Article can serve as a rationale for intense cross-disciplinary training, cooperation, and integrated treatment planning far beyond what currently exists. New models are needed in which departments of probation, mental health, social service, and education work synergistically instead of at odds with one another. All participants in the juvenile justice system must appreciate the value of working towards fostering positive child development and realize that some current practices can be harmful. Defense attorneys need to understand that effective treatment for a child is not synonymous with punishment. Prosecutors and probation officers need to understand that effective intervention enhances public safety. Judges need to appreciate the enormous impact they can have if they encourage cooperative, working relationships among all members of the juvenile court system.
In spite of very significant advances in understanding juvenile delinquency, developmental traumatology, neurobiology, and social learning psychology, there is a palpable dearth of information being transmitted to key players in the juvenile justice system. This is not an insoluble problem. At the very least, decision-makers can be educated about practices and interventions which have a developmental rationale or are based on evidence, and therefore have a reasonable chance of being successful (as described above). This would naturally lead to the elimination of ineffectual practices, which also frequently represent unacceptable risks to normative child development and socialization.
ABOUT THE AUTHOR: David E. Arredondo
David Arredondo, MD is a forensic psychiatrist, Director of the OCDMH, a forensic and technical assistance organization (affiliated with the National Council of Juvenile and Family Court Judges) and director of Applied Neuroscience. He was recently the principal expert witness for the ACLU in a major federal impact litigation requiring demonstration of subtle causal mechanisms. The case was recently written up in the New Yorker Magazine. He has published and lectured extensively on the causes of disordered behavior and including impaired impulse control, post traumatic reactions, personality disorders, malingering, learning impairments and impaired decision-making. Dr. Arredondo is an expert on brain system and psychological dysfunction that might causally account for abnormal behaviors. Dr. Arredondo is a former member of the clinical faculty of the Stanford University School of Medicine. He is a graduate of Harvard College (1975) and Medical School (1980).
Copyright David E. Arredondo M.D.
More information about David E. Arredondo M.D.
Child Development, Children's Mental Health and the Juvenile Justice System – Standford Law and Policy Review
By David E. Arredondo M.D. Forensic Psychiatrist: Child, Adult and Family, Consultant, Public Speaker, Expert
Call David E. Arredondo at (415) 699 2030
The article by Dr. David E. Arredondo was published in the Standford Law and Policy review and explains principles of child development and discusses the various ways children of different developmental stages experience the same sanction. It goes on to describe different sanctions and their effects on children, and then to urge decision-makers to tailor sanctions to each offender’s individual developmental, emotional, and social circumstances.
While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.