By Shannon Thomas, CFCC Student Fellow (2019-2020)
It has become a commonly known concept that our brains do not completely develop until we are in our early to mid-twenties. Every state has a law recognizing that children below a certain age cannot consent to sex. Most states prevent minors from marrying, at least without parental permission. Education is compulsory until at least age 16. In order to join the military prior to turning 18, parents have to sign paperwork. Clearly, our social and legal norms are connected to the idea that children cannot or should not have complete agency in their lives. We have also finally begun to realize the impact of trauma on the brains of children, especially complex or chronic trauma that remains untreated. In general, protecting children from harm and from the dangerous aspects of their own immaturity has value.
When a child enters the juvenile justice system, the child goes from having little to no agency in the eyes of the law to being an actor who can face adult-level consequences. Suddenly, people start talking about that child’s “bad choices” and how they need to be “held accountable.” This idea makes sense when someone has agency and control over their circumstances. These buzzwords sound good and are an improvement over treating children in trouble like they are simply disposable. But are they appropriate for children? Is this choice-based language really the best we can do? What would happen if we removed the jargon that we use for adults from the juvenile justice system altogether?
This question inevitably is asked: What do we do with children who have committed a violent crime? Don’t they have to be punished? First and foremost, a significant number of children in detention centers around the country are awaiting trial and haven’t been adjudicated delinquent of anything. Secondly, there has to be an area of nuance and exploration between the idea that a child committed a violent crime by choice and deserves punishment and the idea that a child is exhibiting a trauma response to a circumstance they cannot control and that requires treatment. Unless this area is thoroughly explored in our jurisprudence, we cannot possibly claim that we are doing what needs to be done for children who encounter the police, a courtroom, or confinement of any sort. We certainly will not develop the appropriate means to reintegrate traumatized children who have broken the law into our communities and expect them to become whole, law abiding, productive adults.
Various experts have stated that one percent of the overall population are sociopaths – people who behave in a dangerous or violent way toward other people and don’t feel guilty about such behavior. It’s fair to say that is not most children. Children who do unlawful things are doing them as beings without complete agency or the capacity to consent. They show their remorse and shame in childish ways. They are often under-supervised, lacking emotional support, and acting out a trauma response. Almost all children who violate the law have the capacity to do better when their safety and emotional needs are met. A challenge that therapeutic jurisprudence can meet in the juvenile justice system is how to address unlawful behavior by children without placing them in an adult paradigm that further traumatizes them. We are currently a society that imprisons the very same children we say are not old enough to drive or smoke cigarettes. Making detention centers appear more child-friendly is not enough. San Quentin may have enjoyable activities and opportunities for education, but it’s still a prison.