Law and Neuroscience Experts Discuss Criminal Justice for Adolescents at Harvard Law School Talk

Psychology professor B.J. Casey and attorney Marsha Levick discussed scientific and legal perspectives on criminally trying children as adults at a Harvard Law School talk Tuesday.

Casey, a neuroscientist at Columbia University, and Levick, a law professor at the University of Pennsylvania, examined the ethics of U.S. laws that permit or require children to be criminally tried as adults.

The virtual talk was part of the Project on Law and Applied Neuroscience, a partnership between HLS’ Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics and Massachusetts General Hospital’s Center for Law, Brain, and Behavior. Stephanie Tabashneck, the project’s senior fellow in law and applied neuroscience, moderated the talk.

Casey began the talk by outlining the way children’s brains develop over time, presenting neurological data on individuals aged 10 to 25 years and examining trends in behavior that shifts as children become adolescents become adults.

“Assigning adult status to children is not based on biology or psychology,” Casey said. “Even our laws in this country recognize extended maturation into the early 20s with the extended age for drinking, for parent insurance coverage, and foster care.”

“What you see is that teens, unlike children or adults, make more impulsive errors to those positive social cues than they do the neutral ones,” Casey added, referencing adolescent performance on an impulse control task.

Despite this research, Levick said, adolescents continue to face criminal prosecution as though their brains are fully developed.

“What are we doing holding six-, seven-, eight-, even 10- and 11-year-olds even remotely responsible for criminal activity?” Levick asked. “Even though it is in juvenile court, we tend to apply the same legal considerations in terms of mens rea, criminal intent.”

Levick said many state legislatures have not adapted to accommodate findings in brain development. Instead, they reflect the idea that teens have the cognitive abilities of adults.

“The states have been very slow to catch up,” Levick said, though she noted that California raised the minimum age for prosecution in the adult criminal justice system to 16.

Casey said adolescents are more sensitive to emotional information in the context of social interaction, threat, reward, and stress — a reaction that has practical implications for the justice system. In an experiment examining whether teens choose to go through a yellow light while driving, Casey said, participants took more risks when with friends.

“The minute you put a peer in the room, what we see is a significant increase in these risky decisions and also in the number of crashes,” Casey said.

Levick acknowledged the effectiveness of behavioral treatment for children but added that in reality, the juvenile justice system rarely provides treatment because judges often determine there is “not enough time” for treatment while in the juvenile system.

She added that the U.S. court system is “rare” in that it has “51 different jurisdictions” instead of a national standard, with each having authority to design its own juvenile justice system and “relatively minimal limitations” in the U.S. Constitution.

“The availability of treatment and the access to treatment has real consequences for the changing behaviors that we are able to chart among adolescents in terms of the age crime curve,” Levick said.

“It’s about getting the right treatment,” Casey said, concurring.