The science and psychology of juvenile brains within the juvenile justice system reveals a critical distinction: the underdeveloped prefrontal cortex, which continues to mature into the mid-twenties, affects a young person's capacity to understand cause and effect, exercise impulse control, and fully grasp the consequences of their actions. This neurological disparity poses challenges in the justice system, where the emphasis often falls on the nature of the crime committed rather than the offender's cognitive development. As such, a deeper understanding of these differences is essential for making informed decisions about culpability, rehabilitation, and the overall approach to juvenile offenders within the legal system.
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Read what Dr. Neena Malik, a psychologist and expert witness, has to say about direct filing. Click to each question to read the response.
I have what is actually quite a peripheral role as a psychologist who gets asked to come in on certain cases where, at this point, the defense feels that having an understanding of the youth’s experiences, especially if there is a history of trauma, allows for what is called a mitigation evaluation. These evaluations, which describe the potentially mitigating history of the youth, are helpful to the judge and prosecutor. For direct file cases, where kids are being treated as adults in the system, it is very important because what that means is that since they’re being treated as adults, then they actually have to be considered under sanctions: adult prison, adult sentencing, and if that’s gonna happen, then the defense would like to know, if there is a way, if appropriate, to have what’s called a downward departure from the adult sanctions. Another reason I might come in is just to be able to explain very important mitigating factors in this child’s development and what should be taken into account.
So I’ve worked with a lot of kids who are being direct filed and I’ve worked with a lot of younger adults and older adults who were direct filed and sentenced to life without parole and who, in the state of Florida, are now allowed, through the Miller and Graham Supreme Court rulings, to have a resentencing hearing.
So the most important part of the brain that is not developed in childhood is the prefrontal cortex and that continues to develop and the connections in the prefrontal cortex continue to develop all the way through middle twenties (early 20s in girls and late 20s in boys). The prefrontal cortex is the site of our higher order thinking, of our ability to really understand cause and effect, behavior and consequences, and most importantly, to control our impulses. So, when you do not have a developed brain, you really don’t have the cognitive capacity to fully understand cause and effect, to fully understand the consequences of your behavior, and to fully control your behavioral impulses. And so that plays a very big role when it comes to criminality, because a lot of what happens is that terrible things are done in the context of extreme emotion and impulsivity. So it’s really important to be able to know the difference between somebody who has a fully developed brain and someone who doesn’t, in terms of culpability and in terms of what is appropriate in sentencing.
So, the problem is is that the differences don’t translate that well to the justice system, because the justice system cares more about what you did and how and why you did it, than whether or not you are somebody who’s capable of having not done this, or if there were circumstances surrounding what you did and whether or not those circumstances made it impossible for you to not do it. So, the justice system is really black and white and not particularly knowledgeable about child development, but that’s one of the reasons these Miller and Graham rulings were done, and it’s also one of the reasons why judges tend to be very receptive when I come through the door, because they don’t know a lot about child development, but they want to know and want to understand whether or not this child was in fact capable of not having done what they did, or controlling themselves in that moment because it’s a different question from right or wrong, because you can know right from wrong, and like an insanity defense (which is very rare) is, “do you know that it’s right or wrong.?” And if you don’t know if it’s right or wrong, then you can plead temporary insanity. Well all these kids who are doing some of these big things know that it’s wrong, but they don’t quite understand what it is that they’re doing, and so there is room in the justice system for people to be considered with some leniency towards some kind of treatment or rehabilitation, rather than just punitive means, if the justice system is even able to be aware of those things.
Yeah, so I did meet one kid like that. She was really scary. She was this tiny little girl of 16 and she had absolutely no empathy, absolutely no remorse, and quite honestly, she was adorable, but she was one of the scariest people I’ve ever met because she was just kind of murderous, she really was. But, in the 20 years I’ve been doing this, she was the only child who did not merit, she still deserved so help she was 16 years old, but she was the only person who I thought, “Well, there isn’t going to be a way to help her recover,” because she really had this incredibly sociopathic brain, which was really sad, but it was what it was, but that is super, super, super rare.
Well, first of all, from an economic standpoint, punishment costs a lot of money, and when you are punishing someone, you still have to take care of them and you have to maintain certain standards of taking care of them and they don’t have the opportunity to give back to society, so if you can actually rehabilitate somebody and have them become a functional and contributing member of society, that’s always more beneficial than paying for them to be sequestered. Also, I think it is so important to recognize that children are in the process of becoming. They have not become who they are yet. There is a lot of plasticity, in both neural connections and in capacity to grow, and punishment truncates that growth. Children deserve to have a chance to live a better life.
There is a preponderance of people of color, and particularly young men of color, and children of color, who are populating our justice system. And that the institutionalized socioeconomic prejudice is a big part of what lands these kids in prisons and in jails. A lot of these kids who end up being direct filed end up having a juvenile record and there is an escalation of the seriousness of their crimes, and a lot of the time, it is an absolute product of their environments and how little they’ve had and their deprivations. You can almost guarantee that a juvenile offender is someone who has not had a safe childhood. And so when you’re looking at these youths and saying “god, they’re murderers, they’re kids but they’ve killed people,” well, their humanity has been beaten out of them, it’s not that they’re inhuman.
The way direct filing is done, it’s primarily based on the seriousness of the crime, doesn’t matter how old the kid is, doesn’t matter if he’s 10 or 12, if it is a type of crime that is considered serious, that child will be considered an adult in the system and unless somebody like me comes in to explain this kid is just a kid and what that means, that kid is just getting funneled into the adult system and so that really needs to change. I actually think direct file should go away, because kids are kids, but if direct filing can’t go away, it should at least have a better rubric than the seriousness of the crime of whether someone should be considered for direct file. - on the other hand, I don’t actually know what the rubric is, to tell you the truth! Hopefully the lawyer in Jacksonville told you about that.
All of it. One of the things I have to ask every interviewee is “did you always have enough to eat growing up? Did your mother ever go hungry so that you or your siblings could eat? And when you grew out of your jeans or your shoes, who bought you new ones? And if you had trouble in school, was there anybody who helped you?” The answers to those questions were almost invariably, “yeah, I was hungry a lot; yes, my mother had to go hungry; sometimes my uncle would by me new clothes, but when he went to jail for dealing drugs, I had to start dealing drugs so I could buy my younger siblings clothes and shoes.” And so, so much of this stems from these kids being the forgotten members of society. They don’t have a voice and they’re not being taken care of.
I started doing this right after Roper, but one of the things we’ve been trying to work on is extending Roper so that it’s more like, ok, yes, if you are intellectually disabled, then you’re not fully culpable, similarly, if you are between the ages of 18 and 26, you brain is not fully developed, so we should be extending Roper to also young adults. So that has not happened, but that is something that some people are trying to work on.
Yes, there are. The reason for it, the reason it exists is that there are some crimes that are so serious and have such a potential negative effect on society, that the person should be considered with the entire weight of the justice system. There is a level of seriousness, you could say, that requires a certain level of punishment. That’s the argument; I understand that argument, but, on the other hand, that doesn’t mean that kids should be treated as adults. It means that there should be an understanding that a child who has committed such a serious crime is a child that has suffered and who has developed mentally not okay, so how do we actually move from direct file to something that actually treats the child?