Doctors advise some adults to take a daily aspirin to prevent heart attack, yet every such bottle comes with a warning: aspirin is linked to Reye’s syndrome in children and teenagers. This caution is based on years of data about how medications affect people at different ages. We need to apply the same kind of reasoning to how we dispense justice.
Our expectations of the legal system should be no different: it must be guided by data and facts. But too often, our justice policy decisions are driven by our gut instinct to punish.
The data tell us that interventions such as incarceration are profoundly harmful to people of all ages — a poison rather than a medicine. A 2014 study published by the National Academies Press found that incarceration is associated with poor mental and physical health, joblessness or reduced earnings, food scarcity, housing insecurity, as well as civic and political disengagement. Sadly, these harms are spread to partners and children, who experience similar adverse outcomes. Moreover, the data reveal that specific interventions are more rehabilitative or more harmful to people at different developmental stages. Young people are particularly sensitive and responsive to environmental influences and their developmental trajectory — positive or negative — is shaped by the services, supports and opportunities afforded them.
The field of emerging adult justice, which focuses on the critical transition to healthy adulthood between the ages of 18 to 25, is burgeoning, yet our understanding of this age group is already persuasive. We know more than enough today to justify a long warning label regarding the dangers that the adult criminal legal system poses to emerging adults.
Yet legislatures across the country are only just beginning to focus on how developmentally inappropriate it is to automatically prosecute and sentence emerging adults in the same system as older ones. And even when policy makers do look at the issue, all too often, personal feelings about accountability and emotions end up overshadowing the data.
The triumph of emotion over fact is nothing new. Youth justice advocates will never forget the tumultuous 1990s when the predicted influx of “super predators” led to calamitous policies and mass incarceration. This was the equivalent of basing public policy upon fears of a zombie apocalypse. There was no evidence that a cohort of intensely violent youth, incapable of reform, was growing up in the U.S., but many insisted on the reality of super predators and the false belief that the only effective way to hold them accountable was to send young people to adult prisons. Not unexpectedly, racism fed this fable.
The new century began with a reexamination of this disastrous policy. In state after state, people who had not yet reached the age of majority — that is, youth who were too young to take aspirin daily — were being harmed and even killed in adult prisons. That data was too compelling to ignore, so states began raising the upper age of adult jurisdiction to 18.
Only one state, Vermont, has raised the age beyond 18. Regrettably, the Green Mountain State was alone despite a slew of evidence from many disciplines that maturation continues well into the twenties – and, just as importantly, that the outcomes of young people prosecuted and sentenced as adults are the worst of any age group.
In other words, sending emerging adults to the adult criminal legal system does not work; it actually threatens public safety. All too often, discussions about emerging adults devolve into questions of “accountability” — a term that has unfortunately become synonymous with adult incarceration.
Earlier this year, a spate of news stories ran about very young children being subject to arrest. The general reaction was, as it should be, horror. That horror led to discussions about minimum age, a floor that is non-existent in the majority of states and far too low in others. A six-year-old being led away in handcuffs after throwing a tantrum at school shocks the conscience — specifically because people cannot imagine a little girl, her hair in barrettes, locked in a cell.
There is ample evidence from child development and other fields that the juvenile system involvement is a harmful intervention for very young children. But that doesn’t come into play, because our visceral reaction more quickly brings us to the same conclusion: This is a very young person who needs support to develop self-control. Subjecting her to the justice system (handcuffs, booking, prosecution and potential incarceration with older people) is traumatic, harmful, ineffective, unfair and inhumane.
I could make very much the same argument against putting emerging adults into the adult criminal legal system. That argument would also reference the lifelong barriers to education, employment and housing that follow from an adult record. Sending an 18-year-old to the adult system makes about as much sense as sending a 6-year-old to the juvenile system. The individuals and families affected by our arbitrary markers of adulthood know this all too well. But for those who have been lucky enough to avoid the system, the stories of younger children are much more likely to send shivers down our spines.
Around the country, people are coming to the realization that emerging adulthood is a distinct developmental stage which the adult criminal legal system is ill-suited to serve. An alternative to indictment program for emerging adults in Dallas led by the Lone Star Justice Alliance and a special track designed for young people at the Alternatives to Incarceration Court in Manhattan are just two examples of programs that seek to provide fair, developmentally appropriate responses to young people in the community.
As heartening as all this good work is, I regret that there is not more of it. In a country where decarceration has become a rallying cry, why not look closely at the age group that disproportionately fills our prisons? As we ask hard questions about systemic racism, why do we not look at the group within the system where racial disparity is the most pronounced? Black and Latinx emerging adults face the highest racial disparities of any age group in the adult criminal justice system
And in a field that prides itself on being evidence-based, why is there such hesitancy to look at the evidence telling us that emerging adults share developmental characteristics with high school students (and in some cases are high school students)?
Now is the time to provide the same protections, supports and opportunities to emerging adults as younger adolescents. For most states, this can be appropriately accomplished by expanding the youth justice system. For other states, especially those struggling with overwhelmed youth justice systems, creating a hybrid system that borrows some of the key characteristics of the youth system (e.g., confidentiality and individualized as well as rehabilitative treatment) makes the most sense. Either way vastly improves on the current untenable situation.
In ancient Greece, the early physician Hippocrates said: “There are in fact two things: science and opinion; the former begets knowledge, the latter ignorance.” When it comes to emerging adult justice, we must embrace science to, as Hippocrates also said, “First do no harm.”