When the Science Says Children But the Law Says Adults: Trying and Sentencing Youth as Adults

[CARMEL SHACHAR] Hello everyone, welcome to When  the Science Says Children But the Law Says Adults: Trying and Sentencing Youth as Adults. I'm  Carmel Shachar, the executive director of the Petrie-Flom Center for Health Law Policy  Biotechnology and Bioethics at Harvard Law School. I feel very honored frankly to be able to  facilitate such an important conversation. I think the approach that the law takes to categorizing  whether a particular individual should be tried as an adult or be treated

as a child is a really  interesting question in which the Neuroscience can really inform the law and update and modernize  its approach. Before we dive into the substance a few housekeeping remarks. First of all we are  reserving time for a moderated conversation and we very much hope that you submit your questions  you can submit them at any time you don't have to wait until the moderated Portion by using the  Zoom Q&A feature which is found in the meeting controls at the bottom of your screen

. We also  hope that you'll join the conversation or even submit questions on Twitter we're at PetrieFlom if  you have any technical issues today please email us at Petire-Flom at law.harvard.edu and we'll  do our best to help you. We will be sharing the fully captioned event video with all registrants  so yourself other people have registered who maybe couldn't make it within one to two weeks,  please feel free to share that link widely with friends family colleagues who you think might be  int

erested in this topic. Speaking of interests if you are interested in Petrie Flom Center upcoming  events news or education programs please sign up for our newsletter it comes out only twice a month  so it will not clog your inbox or consider reading bill of health which is our blog that brings  really interesting explorations of cutting edge Health policy health law bioethics issues to  a general audience. We're running an amazing Symposium looking at disability and climate change  for example

or check out our upcoming events I know we have a great event on marijuana and  cannabis policy coming up not coincidentally for April 20th as well as our annual conference which  we'll be looking at health law as private law. Now I would be amiss to hog all of the credit  and glory because this event has really been the product of some very hard work with our  wonderful collaborators at the Center for Law brain and behavior at Massachusetts General  Hospital, they are collaborators on our proje

ct on Law and applied neuroscience if you are  interested in what they do I strongly encourage you to check out their website at clbb.org  or find them on Twitter at mghclbb as well as on Facebook again at mghclbb. The work they do  is some of the most cutting edge in this area. With that being said I want to get to  the substance as quickly as possible, and so I would like to introduce our moderator  for today's event Dr. Stephanie Tabashneck who is a psychologist and attorney, as well  as a cr

itical part of the project on Law and applied Neuroscience as she is the senior  fellow in Law and Applied Neuroscience both at the Center for Law Brain and Behavior  and here at the Petrie-Flom Center. [STEPHANIE TABASHNECK] Okay thank you Carmel for  that introduction, welcome everybody. Today we are first going to hear from adolescent brain expert  BJ Casey and then juvenile law expert Marsha Levick. Following the two presentations we will  then have a robust discussion that I will moderate o

n the sentencing of youth in adult court. I will  now turn to introductions for the star-studded event. Marshall Levick is the co-founder and chief  legal officer at the Juvenile Law Center. She's played a role in many juvenile sentencing cases  including a number of cases before the United States Supreme Court. BJ Casey is an expert  on the Adolescent brain she's professor at Columbia University and a member of the Justice  collaboratory at Yale law school. She is widely published and her resea

rch is often cited and  amicus briefs including involving the sentencing of youth offenders, and now I will turn it over to  Neuroscience extraordinaire BJ Casey. Thank you. And then BJ if you can just  share your screen or Marsha. [BJ CASEY] Here I will share  the screen. Sorry I was muted. [STEPHANIE TABASHNECK] This is one of the  things that often happens since we're no longer in person, everyone always  has their presentations handy when you're in person but when you're doing  virtual it's

a little bit more tricky. [BJ CASEY] Okay thank you everyone I really  appreciate being a part of this discussion today, it's such an important topic and just thrilled to  be presenting with my esteemed colleague a legal scholar Marsha Levick. So today I'm going to be  focusing on the developmental science, and I'll primarily be focusing on data from the ages of 10  to 25 years. This is in part because these ages represent an emerging definition of adolescence,  with 10 being around the onset of

puberty but then with continued significant changes occurring  throughout this period into the early to mid 20s. Now I'll be providing evidence today  that suggests that assigning adult status to children is not based on biology or  psychology. And I also just want to note that there are expert and health organizations  like the World Health Organization, NIH, United Nations who all acknowledge that there's  continued maturity and development that extends into the 20s and even our laws in this

country  recognize extended maturation into the early 20s with the extended age for drinking before  parent insurance coverage and Foster Care. These laws recognize that special protections  should be given to young people. Young people who I'm defining as extends into the early 20s.  But I also just want to note that it's not just special protections that youth need. It's  also opportunities for them to build the very skills that are necessary for being a healthy  independent adult and a contri

buting member of society. So let me just begin by providing  some general background on the developing brain. And I want to preface this by saying the brain  has the capacity for change what we sometimes refer to as plasticity throughout the entire life  course we see significant changes particularly during the first two decades that are Illustrated  here in gray matter and white matter volume. And let me just unpack this for you. You may not know  that in early development we have more cells an

d connections and synapses than we ever will have  going forward, and that includes in the adult brain. So basically this gray matter represents  those brain cell bodies and how they're being sculpted with age and experience. And we also see  with age and experience that fibers or axons that connect the remaining brain cells are strengthened  with what we refer to this fatty white tissue or myelin that increases the speed of neural  connections. And so you see dramatic changes in these first two

decades that continues there's a  stabilization and then we see a decrease with age. Now if we just look at images of the cortex: Here  you can see from the ages from childhood to the early 20s, the areas that are turning blue are  areas that are reaching peak cortical thickness. And if I show you a static image and  this is looking down on top of the brain this is the motor cortex and sensory cortex we see  these regions reaching adult cortical thickness that are involved in seeing, hearing, s

eeing,  and moving, before we see development of areas of the prefrontal cortex that are very important in  regulating our movements our actions our emotions and our desires. But it's not just changes that  are happening in the prefrontal cortex. We also know that there are structural changes in deep  primitive regions of the brain. These are involved in desire, rage, and fight and flight. And so we  see subtle changes that are actually occurring in these regions before those in the prefrontal 

cortex shown here in fuchsia. So these data, together with data from functional Imaging studies  as well as structurals, suggest that there's an imbalance in the development of the Adolescent  brain with primitive limbic circuits shown in red that are involved in desire fear and rage and  those involved in regulation of these emotions and rational thought shown in green, are developing at  different time points, so an emotionally charged situations those limbic circuits tend to win  out. So it's

the case that if we turn and look at behavioral changes during adolescence they  map on and parallel the changes that I've just described to you in the Adolescent brain. So first  it's the case that we see a heightened sensitivity to emotional information related to rewards,  threat, stress, also social information like peer influences and this is combined with this  under appreciation of risks and consequences. Self-regulation and decision making under these  emotionally arousing conditions ac

tually show steady improvements and they extend into the  20s. And these parallel those same changes that I was previously talking about in the  prefrontal cortex and in related circuitry. So I just want to provide sort of an overview  slide in terms of how this has been examined by Steinberg and others with data from around the  world, this includes both self-report measures as well as laboratory task measures to assess  sensation seeking, which shown here to the peak in the late teen years, an

d also self-regulation,  which is stabilizing by the mid-20s. So throughout this presentation what I'd like to do is  unpack what I mean by sensation seeking, evidence that comes from both brain and Behavioral  Studies, and also how that can interact and show changes in our ability to regulate ourselves. So  a first aspect that's associated with sensation seeking that relates to rewards and also the  influence of peers is first the sensitivity to rewards. So money has a big impact on us.  Money

has a really big impact on adolescence. And there have been numerous probably one of the  most replicated findings is that adolescents show a heightened sensitivity to rewards when they win  versus lose money like in a gambling task. And reward related circuitry specifically here in the  ventral striatum a deep structure of the brain. Now this is just simply in receipt to reward,  but a big question is how do these sensitivities relate to our own regulation of self or cognitive  capacity? So ano

ther aspect of sensation seeking is our response to peers. Or a heightened  sensitivity to social cues particularly positive social cues. So we can examine our sensitivity  to this type of information by superimposing pictures like this into a cognitive task. And this  is an impulse control task or some of you may have heard of or familiar with a go no-go task. And  so basically in the task the majority of the time when you see a particular face you're going. So  you're almost building up the ha

bitual tendency to respond and then there's this rare stimulus  that appears and it's the type of stimulus you've been told don't respond to. And so if we look  at performance on this task where you have to override and inhibit actions, we see that children  make more of these areas they go when they've been told not to go so they're more impulsive than  adolescents who are more impulsive than adults. But what's really interesting if you look at the  type of mistakes that the adolescents are mak

ing on this task you see that they're far more  sensitive to these positive social cues than they are the neutral ones. So if you look at the  difference in the number of Errors they make and impulsive responses to these social cues these  two different types of social cues. What you see is that teens unlike children or adults, make  more impulsive areas to those positive social cues than they do the neutral ones. And if we  then look at the brain to see what the neural correlates are of this be

havioral performance what  we see is that same region I just told you about in response to receiving a reward, the same area  shows enhanced activation in adolescence and again this is a pattern that we don't see in children  and adults. Now these are just social cues and if we really want to understand the influence of  peers it's important for them to be present when we're engaging in these experiments. So I want  to tell you another one about a decision-making task where the manipulation is p

erforming the task  alone, or performing it when peers are watching. And this is this is a game that we have all played  in real life it is do you or don't you go through the yellow light, and you all know when you've  done this and when you choose to go through it and take risky chances. And so again the primary  manipulation is to look at performance when the adolescent and the adult is performing this task  alone, or when they're with a peer and then we measure the number of risky decisions w

hen they  went through the yellow light when they probably shouldn't have and also when they go through  their yellow light and that results in a crash. So I now want to show you those data and before  I even show them to you I want you to focus on the blue bars. The blue bars are performance when  the individual was alone and what we're plotting or the not percentage of risky decisions and the  number of crashes. This is important to note that decisions in adolescents can be comparable to  adul

ts when you don't have these socially and emotionally charged situations. However 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. And again if we look at neural  correlates that are associated with these risky decisions that is going through  the yellow light when appears present again, we see the same area in the ventral striatum  part of reward circuitry that is activated. And I just have to show this bec

ause I  think it's important many times we talk about how Western Civilization has created  this period of adolescence, but we even see this peer influence in other species. So  sure enough, mice when they're with cage mates as opposed to when they're alone drink more then  what we see in adults. So in adults you don't see any difference between when they're without a  cagemate or when they're with another cagemate, but with the juvenile mice we actually see that  they spend more time next to th

at nozzle where they can get the ethanol, which is consistent with  increased drinking in humans in peer situations. So I've been focusing largely on cognitive  abilities that are impacted by sort of a whole group of constructs related to sensation  seeking. But it's often the case that when young people come into contact with the law it's  under stressful and threatening conditions. So I want to examine the impact of stress and  threat on our cognitive capacity and how that changes with develop

ment. Let me just say that  we know stress is this type of change that causes physical emotional and psychological strain and  we know from a large literature that there's an optimal amount of stress that is associated  with Optimal Performance, and if you have too little that can be associated with boredom.  But if you have too much that can actually import impact your performance dramatically  and we know from elegant animal work that when we're in high stress conditions neurochemicals or  neu

rotransmitters in the brain increase to levels that can actually impact different brain regions.  So in particular the prefrontal cortex this work is suggested in these high stress conditions it's  almost like taking the prefrontal cortex offline, and at the same time some of these emotional  centers that I've been talking about in a circuit see elevated activation. So when I  mentioned that imbalance model under stress, you see that even more exaggerated than  what you would typically during ad

olescence. So first let's just look at the effects of  stress and these are self-reported stress where individuals are letting the experimenters know if  a day is a high level of stress or if it's a day where the stress levels are relatively low. And  then what the scientist did is they brought in the use on days when there was high stress or low  stress and they looked at their performance on a go no-go task to look at impulsivity and then they  also looked at their brain during performance of

that task in both those conditions. And what you  can see in this graph in gray are the adolescents, and they show more false alarms so the higher  the bar the more errors that they're making, where they're in a high stress state, and that's  a pattern that we aren't seeing in the adults. And when we look at the neural correlates of  this behavior what we see is that the very area the dorsolateral prefrontal cortex that's  been associated with performance on this task, it's decreased in activity

in these adolescents  during highest stress, which is consistent with a description that a number of my neuroscientist  colleagues who work with animals have suggested with regard to neurochemicals that increase the  brain that almost like takes the prefrontal cortex offline. But what about threat? So there are a  number of ways in which we can assess conditions of threat, and see how well we can perform a  task. But let me just give you two examples in the interest of time. One is we can use c

ues where  I don't think that this picture is scaring you, but over a lifetime we've learned when we see this  expression there's some uncertainty about threat it's location and what it is. There's also  a condition that's more sustained on certain threats, and this is a terrible thing that we've  done to our participants first we bring them in and we ask them to do this impulse control task.  We include these cues that I showed you before and then the other condition to look at sustained  threa

t is to tell them that when the computer screen, the background goes a certain color we  don't know if or when, but they could hear this loud aversive sound. And the participants rate it  as averse so they hear it before they begin the task and they describe it as aversive as that loud  alarm clock early in the morning or The Accidental scraping of a fingernail a chalkboard. So what I  want to do is plot the performance on the same go no go task we're now looking at cognitive control  this is li

ke accuracy it includes accuracy and how well you detect the target and how well you  stop yourself when there's a rare non-target. And what you see in these two conditions of threat  is that 18 to 21 year olds just like younger teens have significantly worse performance in  these conditions than adults over 21. What we also see when we look at the brain to see  neural correlates during these conditions while they're performing the task is that just like in  the previous stress condition that I

talked about, under threat, those individuals under 21 are  not activating an area of the prefrontal cortex, the lateral prefrontal cortex as much as those  individuals over 21 who are actually performing better, in fact the areas that these younger  age groups are activating are areas in medial limbic cortex, suggesting emotional activation  of emotional processing centers. And they're performing worse on this task. And you should  note that those individuals who were over 21 are activating tho

se emotional  regions and circuits less. So the changes in the brain and behavior that  I've shown you during the extended period of adolescence shows a similar developmental  pattern as what we see in the peak of the age crime curve from mid adolescence to  the early 20s. And since we're talking about the age crime curve I think it's very  important for us to not just focus on typical development which these samples the majority of  them have been typically developing individuals, but rather to

look at the development with regard  to extreme behaviors. And so by extreme behaviors we'll focus on psychopathic traits, we know in  the United States that psychopathy is relatively rare. The estimates are at one percent in this  country. But what if we look at individuals who have psychopathic traits does that change across  development? So this is a study I want to report the findings from over a thousand justice-involved  youth who showed actually from 16 to 24 years of age a decrease in t

heir psychopathic traits, and  this is consistent with other studies and findings suggesting that the majority of youth who commit  crimes desist as they mature into adulthood. What's important to note is that these extreme  behaviors decline even more when youth receive targeted interventions. So let me just show you an  example. So here we have individuals who have high levels of antisocial behavior and low levels, and  when they receive a youth targeted intervention we're seeing equal effecti

veness in that  treatment on the mean number of violent offenses. So often when we transfer youth to adult courts,  those individuals we think of as encourageable or we really can't change their behavior, but  basically what these data are suggesting that youth are not treatment resistant or even less  responsive to treatment it's about getting the right treatment. I just want to present one  more bit of data that I think is relevant for this conversation in terms of thinking about  individuals

as incorrigible or less likely to change. And that's in looking at personality  and who we are there's a common belief that our personality develops very early and that then  that remains stable throughout the life course. But it's actually the case if you look  at different aspects of personality that not only does it develop throughout childhood  and adolescence but you're seeing it changing later. And I'm just highlighting too because  they're really relevant to the notion of self-regulation

that I've been describing  throughout this presentation and you're seeing that they show drastic changes after 18 years of  age that continue throughout the lifespan. So just to briefly summarize I hope what I've demonstrated  is that we have evidence that shows continued changes in brain and behavior over the life course  but especially during this period of adolescence, science shows that the majority of youth who  engage in anti-social behavior show declines in that criminal behavior with age

and with targeted  interventions we could get an even bigger decline. And also the evidence shows that their changes in  personality over the lifespan. So who we are as a child or adolescent is continuing to change as we  continue to develop. And so assigning adult status to children is not based on biology or psychology,  and it's not supported by any of the evidence that I presented today. Are youth deserved protections  and they also deserve opportunities so that they can build the very skil

ls they need for  becoming contributing members of society. [STEPHANIE TABASHNECK] Thank you so much BJ  for giving us an overview of adolescent brain development risk taking and the influence of  stress and threat appraisal on decision making and also speaking to criminal trajectories and  the stability of personality and psychopathic traits over time and resilience. You covered a  lot in 20 minutes. Now I will turn things over to Marsha Levick, who will get us all up to  speed on the status of

youth sentencing laws, and then we will have what I think will  be a robust discussion of whether the science and the law are aligned  or whether there is a disconnect. [MARSHA LEVICK] Thank you Stephanie and I want to also just thank  Petrie Flom and MGH CLBB for bringing BJ and me together today. It's always great to present  with BJ and appreciate the opportunity to have this important conversation. And I think the sort  of preliminary point that I want to make and I'm going to be relying on

BJ to move my slides for me  thank you is even before talking about this slide is that I hope what you took from BJ's  remarks is that the science is incredibly kind of uncontroverted and compelling and  convincing that there are certain things we know about both the development of adolescents  and young adults emerging adults that consistently demonstrates that they are indeed different from  adults. But what you will hear from my remarks is that the law absolutely is not catching up  with wha

t the science says. So if we can look at the first slide of the map I'm going to talk  a bit more in detail about what you're seeing on this map. What I really wanted to just illustrate  for you here is literally the patchwork. And when we talk about transfer laws and I'm going to  define what transfer means but essentially the conversation today is about treating children  as adults, trying them, prosecuting them, sentencing them, in the adult Criminal Justice  System. We do not have a uniform

approach to this across the country we have different approaches  that are reflected in the fact that the United States is rare in the sense that rather than  having a national system of Juvenile Justice we have 51 different jurisdictions. We have 50  states and the District of Columbia all of whom have the the legal authority under our Federalist  system to design their own Juvenile Justice systems constrained only by relatively minimal  limitations that the U.S Constitution imposes upon them,

a little bit of federal law coming out  of the Juvenile Justice and delinquency prevention act, and of course some State constitutional  provisions that may likewise restrain what states can do when treating children. But  so this is what it looks like when we think about how we treat children across the U.S and  under what circumstances they may be eligible for prosecution and sentencing in the adult system  it's a patchwork. So let's move to the next slide. The most important thing for me to d

o I think  is just to share with you the definitions of transfer: There are multiple definitions that  states use across the country. And the other caveat that I want to share with you is that these  are largely dynamic issues, just as the science is evolving and educating us about the qualities  and traits of adolescents and young adults, legislatures are trying to keep up but it is  impossible for us frankly to I can't give you an April 4th 2023 absolutely certain  the breakdown of which state

s do what because we are always a couple of years behind  in data. So when I share this with you I would say give or take a state in every one of these  categories, as the law continues to evolve and try to be responsive to changing events, sometimes  political events, and sometimes scientific events. Judicial waiver 47 states and the District  of Columbia all utilize judicial waiver. And that simply means as it sounds that this is  where petition is presented to a juvenile court judge asking th

e juvenile court judge to exercise  their discretion in determining whether or not a particular child before that judge is eligible for  transfer, should be transferred, and prosecuted in the adult criminal justice system, or whether  they should be retained in juvenile court. And I want to make another Point here: BJ's slides I  thought were really powerful in recognizing that 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. But unfortunately the test to juvenile court  generally across the board for whether or not children should be tried as adults is this  concept of ammenability to treatment in the Juvenile Justice System. And what often happens  is that judges will make determinations that they don't think there's enough time in juvenile  court to allow for available treatment options to actually have an impact. It's also often the  case that the

re may simply not be a facility available in a particular jurisdiction, and  the absence of available facilities will also lead a particular juvenile court judge to say  I don't see where I can expose you. where I can provide treatment. so I don't think that I can  demonstrate that you're amenable to treatment. The tragedy about that aspect of how we think  about transferring children to the adult criminal justice system is that despite the evidence that  BJ shared about the relevance and the im

pact of treatment once these youth are put into the  adult Criminal Justice System those systems are driven by punishment and retribution. They  are not at all centered on Rehabilitation the kinds of programs Rehabilitation programs  and positive interventions that will be available in the adult system for kids will  be significantly fewer if they exist at all then what you will see in the juvenile system. So  we've created this kind of false query where we are looking for the ability to treat c

hildren  in the juvenile system without recognizing that if you transfer them into the adult system  you will actually completely lose the opportunity to really have an impact on their behaviors and  on their anti-social behaviors as BJ mentioned. Statutory exclusion is also utilized by the  majority of states and the District of Columbia. Statutory exclusion doesn't involve the court at  all it is really a situation where the legislature is going to carve out specific categories of  crimes, oft

en tying the crime itself to the age of the young offender and to simply pull those crimes  and individuals, those children, out of juvenile court jurisdiction. They can do that because  under U.S constitutional law there is no right to be tried in juvenile court. While we've had a  series of U.S Supreme Court cases over the last 15 years that have certainly circumscribed the  ways in which we can punish children in the adult Criminal Justice System, we have never yet had a  decision of the U.S

Supreme Court that has said it is simply unconstitutional to treat children  identically to adults, to allow them to be prosecuted at all in the criminal justice system.  So that means that state legislatures are free to carve up Juvenile Court jurisdiction, to put  certain things into juvenile court jurisdiction, and pull things out. There are a number of states  across the country for example that exclude homicide from juvenile court jurisdiction  many states do that by a kind of homicide wide

and age duality, so that children who are  charged with homicide who are older than 14 may automatically be tried in the adult system, or at  the age of 12, or as you'll see in a subsequent slide it may be that there are no lower age  jurisdictions. So the continuous effort to define the boundaries of juvenile court who's in  and who's out which is entirely permissible under our constitutional scheme also allows for states  to simply exclude certain children from juvenile court jurisdiction and

pushes them into the adult  criminal justice system. Direct file, mandatory waiver, Mind Over decline, there are a lot of  different terms as States use across the country, you get to see that number is at around 11 states  so a majority of states do this. What direct file means is that the the legislature has determined  that particular kinds of crimes again often tied as well to the age of the particular child at the  time the crime is committed, will automatically start in criminal court, bu

t it may be that there  will be the opportunity to bring that case back to juvenile court depending upon whether or  not the state provides for reverse waiver, which I'm going to talk about in a minute but this  is a kind of presumptive waiver, an assumption that children who are charged with specific  crimes belong in criminal court and that's where those cases will begin. There are also right  now approximately 14 States, a minority of states again, that also allow for something that I always 

tend to think of as prosecutorial discretion, we can also call it concurrent jurisdiction.  And what that means is that prosecutors get to make the decision themselves on their own, that  prosecutor can decide whether or not to charge a particular child who is charged with a particular  crime, whether to charge that in adult court or to charge it in juvenile court. One of the really  concerning aspects of prosecutorial discretion is that this is often unreviewable. So that  prosecutors in state

s that allow for this kind of charging discretion, this ability to try kids  as adults it is driven by prosecutor choice, pretty much gives these prosecutors unfettered  discretion to make that determination. We also have something called  once an adult, always an adult, again a significant number of states it's been a  minority of States and what that means is that if for example a child has been transferred into  the adult Criminal Justice System, they have been sentenced and are serving time

in an adult  Correctional Facility, they're under the age of 18 once while in that adult facility perhaps  they assault someone, perhaps they run away, commit something that is considered to be a  crime, in that jurisdiction even though they're under 18 they will automatically be treated as an  adult, because they have already been transferred into the adult criminal justice system. And then  finally we have something called reverse waiver, as you can see a majority of states do provide for  tha

t. Reverse waiver often follows direct file and mandatory waiver or presumptive waiver and what  reverse waiver does is it it actually gives the criminal court judge the opportunity and the  authority to transfer case back to juvenile court. So in other words, if for example, I'll  use an example for my home state of Pennsylvania. If a child is charged with homicide in  Pennsylvania, they will automatically be charged as an adult and that case will  start out in Criminal Court. However that chil

d's lawyer can petition the criminal court  judge to send that case back to juvenile court, the burden will be on the criminal defense lawyer  to prove that the transfer meets the requirements under the state law to make that child eligible  for being treated in juvenile court. It will include this question of amenability to treatment,  it will look at issues of the particular crime, the child's involvement, the public interest and  public safety considerations. And I think one of the interestin

g things about reverse waiver is  that in states that have reverse waiver we often see that when it is invoked, and when in fact  the child's lawyer petitions the criminal court judge to send that case back to juvenile court,  in the majority of cases these cases actually do come back to juvenile court. Which of course  raises an interesting question about why these cases are being sent into criminal court at  all in the first instance. Okay next slide.So I wanted to share this with you because

I think  when we talk about transfer although we're specifically talking about who's in and who's out  of juvenile court, I think it's also important to appreciate that this is really an issue of  boundaries, and what are the boundaries that juvenile court in any particular jurisdiction.  This is very much related to transfer not always the same thing particularly at the upper levels,  but I think it's important to to just sort of see these numbers in the context of a conversation  about transfe

r kids into the adult system. So 27 States specify no lower age for juvenile  court jurisdiction. I want to add a caveat here because I can give you for example I want to  talk about Pennsylvania which is listed here as being a state that doesn't provide for that. And Pennsylvania it's well it's not listed there  but what I meant by that is it it it essentially some states will provide for no lower age of  juvenile court jurisdiction for a particular set of crimes, in others and in other instanc

es  they will have a different age of jurisdiction, so that non-specified number can be a little  bit confusing. You see that the age of six we have one state of North Carolina, Connecticut,  and New York, the age of seven Washington State the age of eight, a number of states the age  of 10, and again Pennsylvania shows up there and yet we have no lower age of juvenile court  jurisdiction for homicide, one state at 11, and then three states at 12, California Massachusetts  and Utah. This is incr

edibly important if you just sort of take a moment and think about the science  that you just heard the the presentation from BJ. What in the world are we doing holding six, seven,  eight, even 10 and 11 year olds even remotely responsible for criminal activity even though it  is in juvenile court. We tend to apply the same considerations the same legal considerations  in terms of mens rea, Criminal Intent, and yet we have all of this information that  clearly demonstrates not just what we know

about the adolescent brain but even before then  the very you know delayed and ongoing development of critical critical areas of the brain, and yet  you see a number of states across the country that really bring very young children into the  jurisdiction in the juvenile court. Next slide. And so here this is the minimum transfer age that  is specified by Statute, again you see that some very significant number of states have none  specified in many of these that non-specified may only be relate

d to a very specific crime and  maybe homicide. We see that in a number of states across the country but you will also see within a  state again Pennsylvania is an example where you may have no minimum transfer age specified. For  homicide, we will have a minimum transfer age of 14 or 15 for other specific felonies in the state  of Pennsylvania that is not uncommon across other jurisdictions. What I really want to highlight  here is to actually look at the very bottom state which is California.

California passed legislation  a few years ago really the most progressive transfer legislation in the country in which  they set the age at which any child in California can be transferred for prosecution into the  adult criminal justice system as 16. And that's the obviously the highest age across the country  hasn't quite started a trend we're not seeing that happen in other jurisdictions right now,  but I did want to flag that for you. The other point that I would make here is that we still 

have three states: Texas Georgia and Wisconsin that still treats 17 year olds as adults. So  again despite all of the research that has been available to legislators and policy makers  for the last couple of decades at this point, about the continuing developmental capacities of  adolescents and teenagers, we are we have three states across the country that treat all  17 year olds no matter what crime they are charged with or misdemeanor to felony in the adult  system. There's been a number of

efforts in the legislatures in those states to amend those laws  but so far they have been resistant. Next slide. So here I wanted to just kind of touch on trends  that we are seeing in terms of how states are absorbing and responding to the science. And  I think this is really all about the states very specifically responding to the scientific  information that has been made available by BJ and her many colleagues. So Vermont is kind of  leading the charge here, raising the upper age of juvenil

e court jurisdiction to 19, that means  that anyone who is 18 or younger will be it now in the juvenile court in Vermont. And they will  be raising that age over the next couple of years not just to 19 but also to 20. That is directly  responsive to the research that BJ shared but again we're not seeing any other states quite  ready to follow suit. There was some legislation introduced in Connecticut a few years ago that so  far has not been passed. In terms of raising the minimum minimum age fo

r criminal prosecution  again I mentioned California which raised the age a few years ago to 16. In terms of specific  transfer law provisions, Missouri for example has made has kind of changed the way that  the the procedures that are available for transferring children in Missouri between the  ages of 12 and 18. It may be relevant and pursuant only to a Judicial hearing that's discretionary  but if he's under 12 are charged they have to have a Judicial hearing to determine whether or  not tran

sfer is possible. We're also seeing some developments in terms of where children  who have been transferred where they're being detained while they are awaiting trials, so Utah  for example, any youth who has been transferred into the criminal justice system not only must  be held in a pre-trial facility while they're awaiting trial a juvenile facility up until age  21, but even if they are convicted as an adult in Criminal Court, they also have to be held in a  juvenile facility until age until

the age of 21. Also some developments in terms of the age  at which kids can be committed to juvenile correctional facilities in Mississippi, for  example, not necessarily a state that we think of as especially progressive children under the  age of 12 can't be committed to a state training school, and youth must be adjudicated for a felony  for State training school commitment at any age. Also requiring that states have any specific  findings about the least restrictive alternative reasonable

proximity to family sorry, that's  a typo, and whether or not the facilities can provide rehabilitative services. So you know my  conclusion is that the science is out there. The science is compelling but the states have been  very slow to catch up in every way in which we think about the boundaries of juvenile court  specifically for the purposes of this discussion with respect to trying children in Criminal Court  states do their own thing, and I think we could we will continue to see this kin

d of patchwork of  responses I think for the foreseeable future. So I will stop there so that we can hopefully  get some engagement with the audience. [STEPHANIE TABASHNECK] Thank you Marsha,  that was great and thank you for giving us the legal landscape. And I see  a few questions from the audience, please feel free to put more questions  in the Q&A. I have a first question so Marcia I'm curious as to whether courts and state  legislatures have been receptive to the science and the development

s in the science like the  research that BJ highlighted. And I'm also curious what are the legal foundations for arguments  against these state transfer laws? Are we looking at the Eighth Amendment, just proportionality  State constitutional arguments something else? [MARSHA LEVICK] Both great questions  so in in answer to your first one, legislatures are not terribly responsive to the  the research that BJ shared regarding emerging adults you know they they get the research  regarding children

under the age of 18. My own view is that the juvenile court was created 123  years ago in Cook County in Illinois it was based upon an intuitive understanding that kids are  different that children are different from adults, and I believe that what the science handed those  state legislatures was a scientific vocabulary for what they intuitively understood. When you  talk about over 18 that's not working for them. They are much more inclined to think of kids over  18, the age of majority in many

states for many things not everything as BJ mentioned if you  think about the ability to simply buy tobacco, buy cigarettes, buy alcohol, certain driving  restrictions the ability to serve on juries, there are all kinds of ways, and the fact that  kids are remain now on their parents Insurance until age 26, extended foster care through age 23.  There are so many ways in which we do recognize the limitations the developmental and the maturity  limitations of individuals over the age of 18, but w

hen it comes to criminality  when it comes to our justice system policy makers are very resistant. And so to sort  of lead that into your second question, why? I think that the reason they're resistant is that  the U.S justice system is a retributive system. It is really steeped in punishment, and found it  on a principle of punishment the juvenile court is an exception to that. The juvenile court  is over here sort of throwing in this idea of rehabilitation and treatment but it is not the  natu

ral way that we think about how we respond to criminal behavior. And so to to take the science  that BJ shared and use that as a way of extending the benefits of a rehabilitative system, really  is a cultural Quagmire I would say for America. It is a concept that is very difficult for  us to appreciate because we just assume that the natural response to criminal offending is  a punitive one. And in terms of the legal argument so it's definitely not the Eighth Amendment. The  reason why it's not

that not the Eighth Amendment which is a very kind of legalistic response  that I'm going to give but I'll try to make it very clear, is that the eighth amendment is really  about challenging forms of punishment. And the issue about where children are tried whether they  are prosecuted in the adult system or the juvenile system is really one of jurisdiction. It's one of  the boundaries of our in or out of juvenile court, in or out of criminal court, and the only tool  that we have to challenge t

hose decisions and the many statutory provisions that are out  there across the country is actually to utilize something called due process, substantive  due process, to really argue that the the particular pathway that a legislature has chosen  to try children as adults offends our notions of what is fair, what is acceptable behavior, what is  an acceptable way to treat individuals under the age of 18 in this country and so we utilize a due  process set of arguments which are not often not as p

owerful as Eighth Amendment arguments where  there again is a kind of intuitive sense now fed by science about what is right or wrong. It's a  little bit murkier in the field of due process and so it's actually very difficult to challenge any  given State's pathway to trying kids as adults. [STEPHANIE TABASHNECK] That is very  interesting. BJ I want to turn to you, you presented a sort of a nice landscape of the  neuroscience and the behavioral research, and I would imagine that the research tha

t you shared  is based on group data, and we often call this the group to individual the g2i problem. And  I'm just wondering on an individual basis, if we have say a 15 year old or 16 year old who's  charged with a violent crime, can we predict if they're going to go on to offend when they're  in adulthood? Is that something that science can help us do or is that something that that's  really difficult to do given the the science? [BJ CASEY] I think I have two responses to that.  First you know

the science isn't at a point that we can infer from group to individual. And I  think that's a very important point to make but I also just want to highlight and often I'll show  this slide and that is, given that the evidence I presented was based on group data, when you  look at say a group of 16 or 17 year olds you look at all that individual variability there's  more variability in that group, than there is or equivalent to the variability that you see between  two age groups. And so I want

to highlight that I think that's important but I also hope that the  data that I presented in terms of the natural decline in criminal behavior we know it from  the age curve rate in terms of the peak and the subsequent decline. But also the power of getting  the right intervention or treatment, and how that impacts young people even if they're showing high  anti-social Behavior it impacts their criminal behavior. I think it's powerful and suggests  that even a scientist we would be hard-presse

d to predict an individual engaging and subsequent  crime and I think when we do make those decisions there is a lot of room for subjectivity and  also bias. And I didn't have time today to talk about bias but when it comes to how we treat  youth of color in our legal system, we know from studies by Phil Goff that police officers  perceive black youth who are suspects for felonies as almost four years older than they are, as more  guilty, and they also use more force. And so the subjectivity is

a real problem when we're trying  to predict you know who is going to engage again, in the treatment of that individual based on  our own subjective impressions and biases. [STEPHANIE TABASHNECK] Yeah I think that's a  really important point and we have more questions in the chat, there's a question of did the SJC  decide a recent case about youth under 21 so I think you're talking about commonwealth v Mattis  that'll be decided next month as my understanding. And there are questions about ways

to present the  science in court that are more compelling. Marsha I would imagine that you've become sort of a very  good translator of the science, and BJ as well in terms of making the science more accessible to  lay people sometimes in our field we can talk using a lot of jargon and people don't understand  what we're saying. Marsha have you sort of run into strategies that have been more successful in  terms of articulating the science of adolescents? [MARSHA LEVICK] So I would say  yeah we

rely on experts like BJ, that's what we do! I mean it's the truth so let  me answer the question slightly differently, I don't think there's magic to  it the science is the science. What I think that the challenge that I think we  face as we continue to try to push the envelope to push the age boundaries and how courts respond  to young people who violate the criminal law, is really I think the reluctance of courts  sometimes to think that it's within their jurisdiction to make those kind of ver

y dramatic  changes. And I think the concern is that when courts are presented even with the scientific  research that makes a very compelling case for why we should treat this individual who may  be 19 the same as we treat someone who is 17. There is a hesitation is this my job,  or is it for the legislature to do that, to the extent that we're redefining  jurisdictional boundaries of juvenile court, I worry there's a hesitancy to defer to  the legislature. That hasn't happened as much on the s

entencing front which I want to  acknowledge that obviously we had enormous success over the last 20 years, and really challenging  sentencing practices. But sentencing is something that judges inherently do. That is what they  do they do it within the boundary set by the legislature, but they have an enormous amount of  discretion to do that. Legislatures like to think that they did they define who goes where and so  I think that's the tension that we're seeing in some jurisdictions in some of

these cases right  now which is who's going to make the choice. [STEPHANIE TABASHNECK] Okay and we have about  a minute left, so if you could each take 20 to 30 seconds and just say what you think is  the most important takeaway here, that maybe people don't understand or attend to in terms  of you sentencing in an adult criminal court. BJ why don't we start with you. [BJ CASEY] Well I mean I hope it's obvious  the most important part is you know healthy development is a human right and the way

that  we are treating young people in this country is not providing them with that basic right.  In some cases though you know we try to protect them by the drinking age and in other  cases we'll transfer someone as young as six. So we have a long way to go but we really  need to move in the direction of remediation, as opposed to being punitive, and that  is going to be as Marsha said a real paradigm shift in this country a lot  of countries it's working really well. [STEPHANIE TABASHNECK] Than

k you BJ, and Marsha  final thoughts and answers to that question? [MARSHA LEVICK] Yeah I mean to follow up  on what BJ said I think that we tolerate an inconsistency in how we approach young people  who are involved with the justice system in this country that is irrational. It is completely  counter to scientific knowledge that we possess and have reasonable access to. And I think the  unwillingness to follow the science combined with a cultural commitment to punishment has  really prevented u

s from making smart choices. [STEPHANIE TABASHNECK] Thank you Marcia  I think that's a great place to end and thank you both for presenting today I know I  learned a lot, and thank you all for attending.