Abstract
This article recommends raising the age of criminal justice as adults to 24 (emerging adulthood).
A common feature of virtually any legal system is the recognition that young children who engage in antisocial behavior are not held to the same standards of culpability, and are assumed to be more amenable to treatment, when compared with mature adults. Regardless of jurisdiction, a 5-year-old who pushes someone down a flight of stairs in a fit of anger is virtually certain to be handled differently from a 35-year-old who does so. Different countries and/or jurisdictions differ widely, however, in their definitions of “adulthood” and in their approaches to handling cases involving those in the gray areas around these boundaries. In their article, Farrington, Loeber, and Howell (2012, this issue) make a compelling argument that the typical boundary of 18 years of age employed in most American legal jurisdictions is inconsistent with scientific evidence. Specifically, this evidence shows that key aspects of psychosocial maturity are not fully developed until the later stages of what we typically call “young adulthood,” and that a more appropriate policy would be to extend the age of presumed diminished responsibility to something in the neighborhood of 21–24 years of age. They note that several countries employ special courts and/or treatment programs to deal with transgressions by adolescents and young adults, and they highlight research indicating that punitive, adult-based sanctions lead to poorer outcomes and increased recidivism. Consequently, they propose many ways in which legal systems in the United States could be reformed to make them more consistent with our state of knowledge regarding development of mature judgment and treatment efficacy. Their recommendations include such possibilities as increasing the minimum age for adjudication in the adult court system, establishing special courts and/or correctional facilities for offenders 18–24 years of age to focus on evidence-based treatment, modifying sentencing guidelines to include a “youth discount” for young adults, using individual risk/needs assessments to guide sentencing, and establishing more effective “reentry” programs for young adults returning to the community after being held in secure confinement.
Farrington et al. (2012) present a clear and accurate overview of current knowledge regarding the development of decision making and mature judgment. Adolescents have been found to be more impulsive (Cauffman and Steinberg, 2000; Galvan, Hare, Voss, Glover, and Casey, 2007; Steinberg et al., 2008), short sighted (Greene, 1986; Nurmi, 1991; Steinberg et al., 2008), and less able to resist the influence of their peers (Gardner and Steinberg, 2007), when compared with adults, and these aspects of maturity tend to show continued improvement until the early twenties. Such findings are drawn from a large (and growing) body of behavioral studies but are further supported by more recent brain imaging studies as well. From a logical standpoint, Farrington et al.’s policy recommendations would thus align legal policy with the established conclusions of scientific research, resulting in a system that is fairer and more effective than the ones currently employed throughout the United States. Practically speaking, however, some of these recommendations overlook key considerations that could limit their efficacy. In the paragraphs that follow, I highlight the strengths and weaknesses of the proposed policy options, and I suggest several additional considerations that could serve to guide policy toward fairer and more effective treatment of adolescents as well as young adults.
As clearly articulated by Farrington et al. (2012), between 18 and 24 years of age is a developmental time period during which significant improvements in several aspects of mature judgment occur. Because most American jurisdictions draw a bright-line legal boundary at age 18, most research on legal policy and development has focused on distinguishing between adolescents (those younger than 18 years of age) and adults (those older than 18 years of age), but studies that track development beyond this age show that, in many respects, age 18 often aligns with the beginning of a particularly problematic developmental phase marking the transition from adolescence to adulthood. An examination of behavioral data indicates that the apex of risk taking occurs during this period. For example, unintended pregnancy peaks at 18–19 years of age (Finer, 2010); binge drinking peaks around 21 years of age (Chassin, Pitts, and Prost, 2002); and crime peaks at 19 years of age (Federal Bureau of Investigation, 2010). When combined with more fine-grained studies showing specifically how susceptibility to peer pressure, impulsivity, risk taking, and short-term thinking do not subside until later in young adulthood, it becomes impossible to reconcile the argument that 18 is a sensible age at which to expect people to “know better” and to be “responsible” with the observation that these indicators of impulsive, reckless, self-destructive, and antisocial tendencies peak at precisely this point. Accordingly, the policy recommendations put forth by Farrington et al. to reevaluate how we treat 18–24-year-old offenders are generally sensible. Whether this is accomplished by establishing sentencing guidelines that include a “youth discount” or by favoring more rehabilitative treatment options in facilities designed specifically for this age group, the end result would be a more effective system of justice with a lower rate of continued offending.
Farrington et al. (2012)’s proposal to provide evidence-based reentry programs to assist young adult offenders with the transition back into the community after release is particularly noteworthy. Felony offenders of all ages face numerous obstacles to successful reentry. Many will find it difficult to obtain employment and/or housing, and many will find it difficult to avoid slipping back into old habits when returning to their old neighborhoods. These challenges are likely to be especially problematic for younger offenders, who may not have had previous work experience, may not have lived on their own before incarceration, and may have spent critical years normally devoted to education and increased autonomy as inmates instead. Farrington et al.’s suggestion to provide a more therapeutic and skills-based reentry program is thus especially important for adolescent and young adult offenders. Individuals in middle-to-late adolescence normally make substantial progress in acquiring and coordinating skills that are essential to filling the conventional roles of adulthood. Under normal circumstances, they begin to develop basic educational and vocational skills to enable them to function in the workplace as productive members of society. They also acquire the social skills necessary to establish stable intimate relationships and to cooperate in groups. Finally, they learn to behave responsibly without external supervision and to set meaningful personal goals for themselves. For most individuals, the process of completing these developmental tasks extends into early adulthood. These developmental tasks become even more challenging when faced during incarceration or when delayed until release. To put an adolescent or a young adult in a secure institutional setting during the years when their personality coalesces, and then to release them as adults, with no system of support, is a recipe for recidivism. Strengthening reentry programs for 18- to 24-year-olds will not only have a beneficial outcome for the youth himself but will also benefit the greater community through reductions in repeated criminal behavior and reductions in the costs associated with repeated incarceration.
In addition to suggesting more developmentally appropriate sentencing and treatment options for 18- to 24-year-olds, Farrington et al. (2012) suggest the establishment of a separate court system to handle such cases, either as an alternative or in addition to their other recommendations. Certainly, evidence shows that special drug courts and mental health courts are effective in reducing violence and recidivism (DeMatteo, Filone, and LaDuke, 2011; Steadman, Redlich, Callahan, Robbins, and Vesselinov, 2011). Their success, however, is likely a result of their role in channeling defendants into appropriate diversion or treatment programs. Similarly the advantages of a separate court system for 18- to 24- year-olds rely entirely on the presumed availability of appropriate treatment or sentencing options for young adults. I argue that availability of developmentally appropriate sentencing or treatment options is vastly more important than the nature of the venue in which those options are assigned. Furthermore, although young adults may yet lack the lower impulsivity, higher resistance to peer pressure, and greater capacity for long-term thinking that older adults exhibit, and although they may still have the capacity for change and thus may benefit from efforts at rehabilitation, studies have found that they generally do have the necessary capacities to stand trial. The MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice conducted a large-scale study with offenders—half of whom were in the custody of the justice system and half of whom had never been detained—and found that youths 11 to 13 years of age demonstrated significantly poorer understanding of trial matters, as well as poorer reasoning and recognition of the relevance of information for a legal defense, than did 14- and 15-year-olds, who in turn performed significantly more poorly than individuals 16 years of age and older. No differences were found between the 16- and 17-year-olds and the young adults (Grisso et al., 2003), suggesting that “competence to stand trial” plateaus during mid-adolescence. This finding indicates that, in the absence of mental health problems, young adults generally should not need a specialized, paternalistic, nonadversarial court system such as the juvenile justice system, which, in its original conception, was tasked with acting “in the best interests of the child.” In short, as long as appropriate sentencing options for young adults are available to the adult criminal court system, and as long as a more paternalistic juvenile system is available for youths who lack the capacity to participate fully in their own defense, there does not seem to be a significant advantage to establishing a third, separate court system specifically for young adults.
A second policy recommendation that may be of limited effectiveness involves the suggested reliance on individual risk/needs assessments for 18- to 24-year-olds. Although tailoring sentencing and treatment to the specific characteristics of each offender is a worthwhile goal, it is also a highly elusive one. Research has shown that clinical judgment or forensic evaluation is fallible (Ægisdottir et al., 2006). Attempts have been made to im- ´ prove clinical judgment by introducing actuarial tools and assessments, but these tools have several limitations. First, they tend to predict short-term outcomes, but not long-term ones. Second, whereas these assessments may be useful in establishing statistical patterns and probabilities, the degree of uncertainty when applied to a specific individual remains large. Consequently, the use of a standardized instrument provides a dilemma for handling people with scores just above or below a cut point because such individuals are not very different, and yet they are treated differently because of their classification (Dwyer, 1996). The court system does need guidance when tasked with assigning custom treatments. However, excessive reliance on numerical scores on standardized assessments, without adequate acknowledgment of the very wide error bars that apply to such assessments, can have the effect of implying an unrealistic level of certainty in a particular individual’s treatment needs.
Despite these criticisms, the key observation by Farrington et al. (2012), that there is little scientific basis for drawing a bright-line boundary at 18 years of age for trial as an adult, is correct. Similarly, their proposal to shift this boundary to 21, if not 24, or at least adapt sentencing decisions to allow for more lenient and/or rehabilitative treatment of young adults, is entirely consistent with what we know about development. Farrington et al. acknowledge that lawmakers are often reticent to seem “soft on crime” but argue that the general population is not as retributive as lawmakers would believe and that clear evidence of the cost-effectiveness and treatment efficacy of developmentally appropriate sentencing should sway any thoughtful voter. Although I am somewhat less optimistic about the triumph of reason over emotion in the debate over the relative importance of retribution, rehabilitation, and community safety as goals of the American criminal justice system, I am further concerned that, in considering the idea of moving the legal/criminal boundary of adulthood from 18 to 24, we are ignoring the great extent to which legislation over the past several decades has effectively moved this boundary in the opposite direction for a large number of offenses. The legal age of majority may be 18 for most states, but statutes in many jurisdictions require mandatory transfer to adult court for certain offenses committed by children as young as 10 years of age. For example, youths in Kansas can be waived to adult court for any criminal offense at 10 years of age, in Mississippi the age is 13, and in Florida the age is 14 (Griffin, Addie, Adams, and Firestine, 2011). Such policies confuse the offense with the offender and take the commission of a heinous crime as evidence of maturity, when no such correlation has been proven. As Farrington et al. have noted, clear and consistent evidence suggests that adult prosecution and punishment of juvenile offenders, and the use of punitive sanctions more generally, increases recidivism and jeopardizes the development and mental health of juveniles (McGowan et al., 2007). In a context where 14-year-olds are routinely tried as adults, and juveniles tried as adults are routinely sentenced to lengthy periods of incarceration in adult correctional facilities, despite compelling research demonstrating the iatrogenic effects of transferring juveniles (those 17 and younger) to the adult court system, it seems somewhat brazen to suggest that the first order of business in reforming our justice system should be to find ways to treat young adults more leniently. Although I agree that young adults in their early twenties typically are less mature than older adults, and therefore they may be less culpable and more amenable to treatment, I would contend that these arguments apply even more strongly to children and adolescents, and that our first order of business should be to eliminate mandatory transfers of minors to adult court and to reestablish the role of the juvenile justice system as a venue in which to identify developmentally appropriate treatments for young preadult offenders.
Recent signs have shown that the juvenile justice pendulum is beginning to swing back from punitive/retributive toward restorative/rehabilitative. In 2005, the U.S. Supreme Court abolished the death penalty for juvenile offenders (Roper v. Simmons, 2005), and more recently, the Court struck down mandatory sentences of life without the possibility of parole (Graham v. Florida, 2010; Miller v. Alabama, 2012). As noted in the briefs by the Supreme Court, the impetus for these policy shifts has been new science highlighting the developmental differences between adolescents and adults. A vast chasm remains, however, between what we know about the development of mature judgment and how our court system handles cases involving offenders between 12 and 24 years of age. Farrington et al. (2012) are entirely correct that a sound scientific basis exists for shifting the legal boundary for the presumption of maturity from 18 to something like 21 or 24. But given the ongoing battle over the extent to which the justice system can even be allowed to treat minors as minors, I fear that Farrington et al. may be overly optimistic about the prospects of convincing lawmakers to treat young adults more like minors as well.
The overarching goal of this essay was to propose new policies for the adjudication and treatment of 18- to 24-year-old young adult offenders. As noted by Farrington et al. (2012), many countries have developed, or are actively pursuing, evidence-based treatment programs designed specifically to address the less mature nature of young adults in this intermediate “gray area” between adolescence and adulthood. Incontrovertible evidence shows that psychological development continues throughout adolescence and into young adulthood. Furthermore, the biological underpinnings of the behavioral studies on which these conclusions are based are beginning to emerge. Recent brain imaging research does not change the portrait of adolescent immaturity painted by behavioral research, but it makes the story more compelling. It is one thing to say that adolescents do not control their impulses, stand up to peer pressure, or think through the consequences of their actions as well as adults, and to cite performance on behavioral tests as evidence; it is quite another to say that they do not do these things because their brains are not yet wired to support such mature decision making. Yet, that is what recent studies linking anatomical and functional markers of brain development indicate (Casey, Getz, and Galvan, 2008; Giedd, 2008). It is important that justice system responses take such developmental considerations into account, for several reasons. First, although offenders should unquestionably face consequences for their offenses, the sanctions applied should be appropriate to the offender’s developmental status, amenability to future change, and degree of culpability (which may be lowered because of the diminished reasoning capacity implied by a lack of fully developed impulse control, resistance to peer pressure, or ability to recognize long-term negative consequences of risky behavior). Second, punitive sentencing of juveniles in adult facilities leads to increased rates of reoffending, compared with treatment within the juvenile justice system. Farrington et al. argue that these findings support changes to the way we treat young adults and that we need to improve the support systems that help young adults reenter the community after incarceration. Farrington et al. are correct in these assertions. But we must not lose sight of the fact that these same arguments apply even more strongly to adolescents and that increasing the age of majority beyond 18 years of age in the eyes of the criminal court system will mean little if minors continue to be routinely transferred, tried, and sentenced as adults.