WI assistant state public defender explains to 'Act like an adult'

The following article was originally published in the Wisconsin Law Journal, a sister publication.

Children and adolescents are more likely to take risks and act without considering the consequences of their actions than adults. Parents and social scientists have recognized that for years based on anecdotal experience.

Medical research during the past 10 years has confirmed that there are physiological differences in the way juvenile and adult brains process information and make decisions.

That recognition is finding its way into decisions coming from and federal supreme courts. It raises questions about the accountability of juveniles for criminal and civil negligence.

Eileen A. Hirsch, an assistant state public defender, said decisions from the U.S. Supreme Court in Roper vs. Simmons and the Wisconsin Supreme Court in In the Interest of Jerrell C.J. show federal and state high courts acknowledging differences between juveniles and adults.

Key juvenile decisions

During a presentation to the Dane County Bar Association, Hirsch noted that the trend during the past decade had shown legislators and courts more likely to hold adolescent offenders to adult standards. Roper and Jerrell, both of which came down last year, represent a departure from that reasoning.

Hirsch, who spoke Jan. 10, actually handled the Jerrell case, in which the Wisconsin Supreme Court determined that juvenile interrogations should be electronically recorded. Even more important, she said, was the court's recognition of a juvenile's susceptibility to pressure and its determination that Jerrell's confession was not voluntary.

Writing on behalf of the majority, Justice Ann Walsh Bradley observed, Simply put, children are different than adults, and the condition of being a child renders one uncommonly susceptible to police pressures.

No other U.S. Supreme Court, Wisconsin Supreme Court or Wisconsin Court of Appeals published decision between 1962 and 2005 had found that a juvenile's confession was coerced, Hirsch noted.

For the first time, in 2005, we have the language of children as a vulnerable, protected, susceptible class being adopted by the Wisconsin Supreme Court and being put to work in a case to find that it was not a voluntary confession, Hirsch told the group.

She also stressed the importance of the U.S. Supreme Court's decision in Roper, which found that the use of the death penalty for anyone under 18 was unconstitutionally harsh. The Roper decision overturned a 1989 decision in Stanford vs. Kentucky, where the U.S. Supreme Court had affirmed the use of the death penalty for a 17- year-old.

Court outlines differences

Justice Anthony M. Kennedy, writing for the majority in Roper, cited three general differences between juveniles under the age of 18 and adults. First, the court noted a lack of maturity and underdeveloped sense of responsibility in juveniles. Second, the court observed that juveniles are more susceptible to outside pressure. Finally, the court noted that juveniles' personality traits are more transitory and not as firmly established as adults.

Kennedy wrote, These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means 'their irresponsible conduct is not as morally reprehensible as that of an adult.' Thompson [vs. Oklahoma], supra, at 835 (plurality opinion). Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.

Hirsch stressed the importance of the Supreme Court making these observations about juvenile behavior in the Roper decision. It opens the door for attorneys representing juveniles to bring those points up in other cases.

This is in a U.S. Supreme Court decision. We can bring this to court and use this and talk about what it means in a court setting, Hirsch said.

She noted that the high court was not only looking at social science research related to juveniles but hard scientific studies, which showed physiological differences in the way juvenile brains work compared with adult brains.

Scientific research

The American Medical Association submitted an amicus brief in Roper, which highlighted those differences. The brief pointed to research using Magnetic Resonance Imaging technology to show differences in the way brains process information. The brief also identified differences in the actual structure of neurons within the brain, affecting the speed at which decisions are made.

To a degree never before understood, scientists can now demonstrate that adolescents are immature not only to the observer's naked eye, but in the very fibers of their brains, the brief stated.

The MRI studies have shown that the limbic system, which is the emotion center of the brain, is much more active in adolescents than in adults. At the center of the limbic system is the amygdala, which is responsible for rapid responses involving the fight-or-flight mechanism.

The amygdala sends its rapid-response recommendation to the prefrontal cortex of the brain, which assesses and modulates the response. Studies have shown that the prefrontal cortex is much less active in adolescents than it is in adults. Therefore, adults are much better equipped to think through the consequences of their actions than adolescents.

Studies have also shown that neurons, which carry electrical signals through the brain, are still developing in adolescents, even though teens may look like adults.

Because of that, adolescent neurons carry messages between the amygdala and the prefrontal cortex slower than adult neurons do. That leaves adolescents more susceptible to peer pressure or other outside influences.

Physical impairment

Referring to the studies, Hirsch explained that the brain does not fully mature until people reach their early 20s. Therefore, it is physiologically impossible for them to think through the consequences of their actions like an adult. She noted that adults are issuing an impossible order when they tell teens to act like adults.

To say that is really like telling a person with a badly sprained ankle that they have to throw down their crutches and walk. They are physically incapable of thinking through their actions to the extent that an adult does, Hirsch said.

The important question now that the federal and state supreme courts have issued these decisions, Hirsch suggested, is what does this mean for our juvenile laws?

Criminal laws require that a person who engages in recklessness have some awareness of the risks of their actions, she noted.

When a 14- or 15-year-old responds to a perceived danger in a way that runs afoul of the law, how should the justice system treat them?

The question is, 'Was it reasonable for them to react the way that they did?' Hirsch continued. Do we decide to do that under a 14- or 15-year-old's sense of danger when that amygdala is going wild and they are not getting that reasonableness decision up front? Or do we hold them to an adult standard?

Anger affects treatment

Hirsch also offered the theory that the law is harsher on juveniles when it is angry with them. For example, when a juvenile commits a misdemeanor, it eventually can be expunged from the youth's record. The same is not true when a juvenile commits a felony. She asserts that is because we are angrier with juveniles when they commit felonies than when they commit misdemeanors, even though the thought process leading up to the actions might be the same.

As another example, Hirsch pointed to a 15-year-old girl who engages in sexual activity. Depending on whom she has sex with, the law treats her differently. When she has sex with someone who is older, she is viewed as the victim who was unable to consent to sex. However, if that same girl has sex with someone younger, she is viewed as an offender and she is punished, despite the fact that she is no better able to make decisions about having sex. If she has sex with another 15-year-old, she could be either the victim or the perpetrator.

Hirsch characterized it as a response based on whether you are angry with the girl for her actions.

The legal status of this one girl changes from victim to perpetrator to both inside one person - a very confusing way of looking at the law, Hirsch said.

As lawyers move forward with juvenile cases, she noted that the courts have opened the door to looking at the differences in the ways juveniles and adults make their decisions. Scientific research has begun to support some of the things we have assumed about juveniles and the way they react to situations.

This is really the very beginning, Hirsch observed.

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