“Some Mother's Child Has Gone Astray”: Neuroscientific Approaches to a Therapeutic Jurisprudence Model of Juvenile Sentencing1

• Published date: 01 July 2021
• Author: Michael L. Perlin,Alison J. Lynch
• Date: 01 July 2021
• DOI: http://doi.org/10.1111/fcre.12589

SPECIAL ISSUE ARTICLE

“SOME MOTHER’S CHILD HAS GONE ASTRAY”: NEUROSCIENTIFIC

APPROACHES TO A THERAPEUTICJURISPRUDENCE MODEL

OF JUVENILE SENTENCING

1

Michael L. Perlin and Alison J. Lynch

There is a robust bodyof evidence that tells us that thejuvenile brain is not fully developed by age 18, and thisevidence should

and does raise important questions about the sentencing of juveniles in criminal cases. This evidence, though, mustbe consid-

ered in the context of publicopinion (about certain juvenile crimes thathave been subject to saturation publicity) in the context

of judges’decisionmaking (where such judges do not want to be perceived as “soft on crime”). The conflict between what we

now know and what(false) “ordinary common sense”demands (in the way of enhanced punishments) flies squarely in the face

of therapeutic jurisprudence precepts. If the legalprocess is to seek to maximize psychological well-beingand ifit is to coincide

with an “ethic of care,”then,it is necessary for those involved in thecriminal justice system to speak publicly about this topic,

and to “call out”those –be they elected politicians, editorialwriters and commentators in the conservative media, or judges –

who urge retributive and punitivesentences for adolescents and children. In this paper, we will first give a brief overview about

the current neuroscientificfindings about juvenile brain development in the context of criminal behavior, and then discuss the

current sentencingstandards and regulations that are in place.Then, we will discuss the impact of therapeutic jurisprudence as a

framework for advocating for juvenile clients, in order to maximize and preserve their psychological well-being and to mitigate

trauma. Finally, we will offer recommendations for howexperts can work with attorneys who are presenting sentencing

arguments, in orderto make the most comprehensive, scientifically persuasive case for leniencyin juvenile sentencing.

Key Points for the Family Court Community

It is well-settled that the juvenile brain is not fully developed byage 18.

Transfer to adult court appears to be counterproductive: transferred youths are more likely to reoffend, and to

reoffend more quickly and more often, than those retained in the juvenile justice system.

Even when an individual turns the age of 18 and is considered to be a legal adult, his brain still has years of develop-

ment and maturity ahead of it.

We must think about issues such as race and class in considering the sentencing of juveniles.

We must consider therapeutic jurisprudence principles in the context of the fact that certain juvenile crimes have

been subject to saturation publicity, creating intense pressure of judges who do not want to be perceived as being

“soft on crime.”

Our current juvenile sentencing system in no way values psychological health,”nor advances an “ethic of care,”both

essential in a therapeutic jurisprudence analysis.

Keywords: Death Penalty; Juvenile Law; Mental Disability Law; Neuroimaging; Neuroscience; Punishment; Sentencing;

Therapeutic Jurisprudence.

I. INTRODUCTION

It is well-settled that the juvenile brain is not fully developed byage 18.

2

This raises critical

concerns about the current state of juvenile sentencing standards, especially in instances in which

juveniles are tried as adults and sentenced to adult prisons.

3

The implications of such transfer

Corresponding: michael.perlin@nyls.edu, mlperlin@mdlpa.net

FAMILY COURT REVIEW, Vol. 59 No. 3, July 2021 478–490, doi: 10.1111/fcre.12589

© 2021 Association of Family and Conciliation Courts