Contributed by Souhila Baba
On the theme of psychology, this two parts blog-series will showcase recent developments in alternative sentencing, first in the United States and second in Canada, portraying how findings in science contribute to innovation in the legal field.
“Don’t Treat Young Adults as Teenagers.” “Why Reimagining Prison for Young Adults Matters.” “How Germany Treats Young Criminals.” “Criminals under 25 should not go to adult prison, MPs say.” These are but a few examples of the headlines urging change with regard to young adults in criminal justice around the world. While the law sets a threshold in differentiating adolescents from adults (18 years of age), science shows that the young adult (18-24 years of age) brain is still developing.
Young Adults in the Criminal Justice System
In Canada, once a person reaches the age of 18, they are no longer treated by the justice system as a juvenile offender, but as an adult. This results in an overrepresentation of young adults in the prison system. Following a section 7 constitutional challenge in 2008, the Supreme Court of Canada found that juvenile defendants (under 18 years of age) not only have a presumption of reduced moral culpability, they also cannot be sentenced as adults unless the Crown proves it is adequate beyond a reasonable doubt to do so. Since young adults are tried and sentenced as adults, they do not benefit from a similar presumption, and cannot be tried as juveniles. The Supreme Court of Canada is silent on this issue, and there are currently no alternative programs or sentences specifically catered to this age group.
Similarly, in the United States, young adults roughly ranging in age from 18-29, are also consistently overrepresented in prisons: making up 21% of inmates while representing only 10% of the population. Neuroscientific evidence has long held that the brain is continuously in development, from conception to death. While there are critical periods of significant brain development during infancy, childhood, and adolescence, the brain continues to undergo changes even into adulthood and beyond. In law, when a person reaches the threshold of 18 years of age they are characterized as an adult, without considering the developmental gradients that scientists are aware of.
The Science of Brain Development
Neuroscientists distinguish between an 18-year-old and a 26-year-old, as the development of certain brain regions is still in progress. Already in 1999, an experiment performed using Magnetic Resonance Imaging (MRI) technology to map differences in brain anatomy between adolescents (ages 12-16) and young adults (ages 23-30) found that the maturation at this stage was localized in the frontal lobe. The frontal lobe is responsible for decision making, assessment of risks and consequences, and impulse control. The study found that the maturation seen in the older age group was due to an increase in information transmission speed between brain cells, leading to increased cognitive function.
The frontal cortex continues to develop in the young adult brain || (Source: Flickr // Laura Dahl)
But what does this mean? Simply put, with regards to impulsivity or assessment of risks, the young adult brain is not at the same cognitive level as the adult brain: an adolescent, or even a young adult, does not have the same appreciation of risks as older adults do. In this transition phase, young adults are prone to irresponsible and at times reckless behaviour. In failing to account for neurological and behavioural differences between young adults and adults, the criminal justice system sets standards that may be inadequate to account for the mens rea (i.e. moral blameworthiness) needed for a criminal conviction.
While these findings provide for a general understanding of this age group on average, they do not suggest that any given individual with specific anatomical characteristics has failed to appreciate the consequences of their actions. Sentencing is an individual-driven process, and as such, scientific findings about a particular age group only inform the possibility of reduced moral blameworthiness, but do not impose it. In any case, a lack of understanding of developmental nuances seems to correlate with an overrepresentation of young adults in penitentiaries.
Young Adult Courts
In several US states, specifically Idaho, Illinois and most recently California, there is an increase in sentencing diversion programs catered to young adults. In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind. No defendants for violent crimes are admissible to the program as the court mainly deals with felonies such as robbery and assault. All young adults (ages 18-24) admitted to the program go through mandatory classes on controlling emotions and impulses, anger management, and receive therapy. Moreover, they meet with the same judge on a weekly basis where their standing in the program is assessed: if their performance is adequate, they may continue in the program and eventually “graduate”, if it is not, they are sent to jail. Graduating from the program leads to reduced charges or full exoneration.
Young adult courts in the Unites States provide creative alternatives to traditional sentencing for young adults || (Source: Flickr // Priya Deonarain)
As these courts are still in their early stages, it is difficult to assess their effectiveness in reducing the overrepresentation of young adults in prison and in preventing recidivism. One thing is certain, however, in establishing alternatives to prison terms: this court is using an approach that is proactive rather than relying on the currently reactive system.
A Balancing Act
It is difficult to balance the autonomy of young adults and the need to protect a particularly vulnerable age group (see MJLH’s Medical Records Episode 1 with Prof. Shauna Van Praagh). In assessing the mental element of an offence (the mens rea), how much sway should the age of the defendant hold? The legal doctrine in the matter is divided, while the scientific evidence will inevitably be nuanced by social and environmental factors. For example, under certain conditions, young adults may exhibit higher-level reasoning than adolescents, performing at a comparable level to adults. A recent study investigating the cognitive control of individuals, found that young adults’ cognitive performance depended on their emotional level. The study specifically found that when shown images of people experiencing negative emotions, young adults reacted as impulsively as adolescents. However, when the participants were shown images of positive or neutral emotions, young adults reacted similarly to adults over 21 years of age. They found that in the transitional phase of young adulthood, behaviour may be dictated by emotional state, where a negative emotional state resulted in similar behaviour as adolescents. This may be related to the criminal justice system context as criminal acts may correlate with negative emotional states.
In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind.
Moreover, neuroscience has shown us that there are no clear lines to be drawn between adolescents, young adults, and adults – effectively reflecting the legal approach of basing certain policies differently according to maturity level in different circumstances. As highlighted in this article, maturity level of an adolescent is based on the circumstances that are being assessed. This survey showed that although adolescents have the cognitive ability to make an informed decision pertaining to abortion, it does not necessarily follow that they should be treated as adults with regard to criminal consequences. This is due to the different cognitive abilities assessed in each situation. In deciding on abortion, young people are to be assessed based on their ability to reflect on moral and social implications. In this case, young adults are just as competent as adults. On the other hand, when determining moral culpability in a criminal matter, the cognitive function to be assessed is related to the young person’s psychosocial abilities such as impulse control and resistance to peer pressure: the cognitive skills that are still developing in young adults. This context-specific understanding of young adult decision making should be in line with the law’s reluctance to impose a higher standard in determining criminal culpability when dealing with young defendants, while still respecting the autonomy of young people to make and be responsible for their actions.
These findings show that there is still a need for research in this area, particularly as the young adult age group has been historically studied as part of the adult group. In this case, advocating for young adults to be treated as juvenile defendants may be an overstatement of the available scientific evidence. Instead, the establishment of young adult courts provide for a creative alternative in the wake of evidence pointing to the lowered moral culpability of young adults. The ongoing legal experiment in the US may provide future insights for the Canadian context.
Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections.
McGill Journal of Law and Health 
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