“We may not be able to agree on what to do but we can agree that what we’ve got now is the worst possible option.”
Dr. Robert Kinscherff’s words hung heavy in the air of an overstuffed room at Harvard Law School on Monday, September 28, 2015 for a panel on the “The Promises and Perils of Adolescent Neuroscience and the Law.” Kinscherff, who holds a PhD and JD, is the current Senior Fellow in Law and Neuroscience, a collaboration between the Massachusetts General Hospital and Harvard Law School.
Juvenile justice, particularly as it relates to the developing brain, is a topic that has been on the table for a while, but Kinscherff said the goal of bringing together doctors, judges, neuroscientists and law professors is to rely on more evidence-based decisions.
The fact that every chair of the room was filled and the walls were lined with bystanders (including myself) attests to the interest and urgency of the topic.
“The adolescent brain is different than the adult brain,” Dr. Leah Somerville, Assistant Professor of Psychology at Harvard University explained, adding that, “The overall amount of tissue is not changing. But there are dramatic differences even in the very structure of the brain.”
The details lie between the white matter and grey matter of the brain. White matter is the signal transmission pathway of the brain, kind of like telephone wires that allow a message from one part of the brain to talk to another part. Somerville explained that during adolescence the overall amount of white matter increases.
To contrast, there is a substantial amount of decline in the gray matter of the brain throughout adolescence. Gray matter is where the action happens. It forms the computational centers of the brain. And it appears that the decline in gray matter during adolescence is really about a pruning of inefficient connections, resulting in a more efficient adult brain.
But the adult brain is a product of both genes and circumstances faced during youth.“The brain does not develop in isolation. Neurodevelopmental trajectories are molded by the environment,” Somerville says. A provocative study conducted by researchers at Rockefeller University determined that institutionalized youth (orphan or abandoned children raised in an institution) in Bucharest, Romania have smaller brains compared to their non-institutionalized peers in terms of both total cortical grey and white matter. Somerville explained that these highly deprived and highly negative environments can “hijack and stunt the growth of the brain.”
This study is not the only evidence that childhood and adolescent experiences alter brain function. A Harvard Medical School study looked at the integrity of brain regions in adults that experienced childhood sexual abuse at the age of 14 to 16. Researchers found that the prefrontal cortex, which is considered the seat of higher cognitive thinking and decision-making, was negatively impacted and exhibited reduced gray matter volume into adulthood. Somerville said this “suggests that the developmental trajectory of the prefrontal cortex is very tenuous during adolescence,” and furthermore that “these effects are not temporary.”
The circumstances of these studies are somber, but in addition to clearly emphasizing the importance of fostering healthy periods of childhood and adolescence, they also raise concerns for the criminal justice system. The problem at hand is often oversimplified to phrases like “my brain made me do it.” But as scientists continue to research the developing adolescent brain as well as how severe childhood and adolescent adversity can result in permanent alterations to the adult brain, large questions linger about whether and how neuroscientific knowledge can be used in the courtroom.
In other words, how do you go about sentencing an adolescent that has committed a crime but has also suffered from real and serious developmental impairments that leave a lasting signature on the brain?
Retired Judge Nancy Gertner said, “All of these averages seem to suggest that we know a great deal about the children that we are sentencing,” implying that this is obviously not the case.
Somerville said, “All the data I presented were averages. I didn’t show you any specific data points for a good reason. As scientists we work in probabilities. There is typically a lot of variability in the way that people’s brains look and the way they behave. If someone presented me a brain scan and said tell me how old this person is or how they behave, there is very little I can tell you unless there is an obvious, clear disease present.”
So how can we apply neuroscience to the courtroom, especially in regards to adolescents?
Well, that’s the tricky part, especially since “adolescence” is a continuum. Even though 18-year olds are considered legal adults, adolescent brain development continues past this age. “There is no magical point at 18 which distinguishes it,” Kinscherff said.
“Treating youth as adults doesn’t always work very well,” Kinscherff explained. “Most kids incarcerated on adult conviction are home by 26 years of age. And they are gonna be back. Youth treated as adults tend to come back more rapidly with a more serious crime against a person.”
Judge Gertner said,”It is easier to generalize and imprison than anything else.” Practically applying neuroscience to the law is no easy task, but the panelists think doing so may someday allow for a more just legal system.
On a truthful but somber note, Judge Gertner concluded, “On one side we have a judge saying give this child a break he was abused, and on the other side you have a judge saying the very fact that he was abused is why we cannot trust him to be free.”