How Can 12-Year-Olds Be Adults?

08/04/2016 01:00 pm ET Updated Aug 05, 2017

In 2014, two 12-year-old girls were alleged to have stabbed a classmate to please an Internet based fictional villain called Slenderman. This week, a Wisconsin state appeals court ruled that these young girls will be tried as adults. Yes, you read that right. Tried as adults. If accepted beyond this specific case, the reasoning behind this decision challenges the rationale for having a juvenile court at all, and flies in the face of everything juvenile justice policymakers, and the U.S. Supreme Court, know about child development. Perhaps most sadly, this decision entirely ignores evidence of the capacities of youth for fundamental and genuine change as they mature--especially if they have the kinds of guidance and support they are unlikely to receive if treated as adults.

Both girls have been diagnosed with psychotic disorders, or disorders which implicate a break with reality, and both girls have endorsed the notion that this supernatural Internet meme is real and motivated their behavior. The stated rationale for the judge's decision was the belief that the two defendants, both now 14, would not receive long term mental health treatment if tried and sentenced as juveniles, as they would be released from juvenile supervisory authority at age 18. This line of thinking is misguided.

First, the distinction between who goes to juvenile court and who goes to adult court shouldn't rest on how long a sentence you want to dispense- it should rest on whether that person has the attributes of a child or of an adult. Compared with adults, children as a group are impulsive and reckless - especially in situations where they are isolated from feedback from adults and are vulnerable to peer influence. They generally exercise poorer judgment than adults and are most likely to do so in situations of high risk and high stakes. They have always been treated differently under the law because of their developmental differences and this has been specifically reflected in US Supreme Court cases since the 2005 ban on execution of juveniles in Roper v. Simmons. 543 U.S. 551 (2005). Although the district and appeals court in this case made much of alleged premeditation, the crime itself evidences disorganized and unrealistic thinking and the psychotic motivations of its perpetrators.

It is difficult to conceive why youth who cannot exercise other adult rights and privileges will stand trial as adults for alleged offenses committed at age 12. They have neither the rights nor the responsibilities of grownups. At age 12, these girls cannot sign a binding contract, legally marry, enlist in the military, purchase alcohol, get a driver's license, provide most medical informed consent, control access to their school records, or get a personal credit card. In most legal contexts, the law understandably recognizes that youth cannot be legally accountable as if they were adults.

Juvenile courts and juvenile justice systems were created to treat these differences as opportunities to foster rehabilitation. They were designed to engage the developmental capacities for change in children--even chronically violent adolescents commonly desist from criminal misconduct as they mature into young adulthood. The prospects for youthful change work for their benefit and for society's benefit and can be facilitated by providing research-based interventions that promote positive youth development.

The U.S. Supreme Court, in a series of decisions between 2005 and 2012, took explicit notice of the developmental immaturity and unique rehabilitative potential of young people in articulating a "children are different" constitutional jurisprudence. The "children are different" constitutional perspective led to bans on imposing the death penalty and then mandatory imposition of life without possibility of parole for crimes committed under age 18. The reasoning in the Slenderman case upends both this constitutional jurisprudence and everything that is scientifically known about child and adolescent development.

Enlisting the fiction that someone who committed a crime as a 12 year old should be deemed an adult ignores what happens to teenagers in adult prisons. From a neurodevelopmental point of view, adult prisons place teenagers in a predatory environment, which may permanently alter brain circuits and leave them vulnerable to dysfunction later in life. Current research points to heightened neuroplasticity in adolescence and increased cortical vulnerability, particularly in the context of social stress. In plain language, adolescents are sponges for their environments, and deprivation, stress, violence and decreased opportunities for learning may permanently alter their brain development.

But we don't have to look to emerging neurobiology to understand why teenagers shouldn't be in adult jails. We can just look to the data. Teenagers in adult prison are 36 times more likely to attempt suicide than their adult counterparts. They are 200 times more likely to be physically assaulted by other inmates and correctional staff and five times more likely to be sexually assaulted than adult detainees. Finally, while studies vary, there is little doubt that youth held in adult jails are between 3 and 34 times more likely to recidivate than youth held in juvenile facilities. In Wisconsin, recent studies have shown that young offenders placed in the adult correctional system are estimated to recidivate at a rate of 48 percent, which is three times higher than for adult offenders or for younger juveniles in the juvenile system. Juvenile facilities are simply more attuned to the developmental deficits of youthful offenders and more skilled at remediating those deficits. These two defendants, if tried and sentenced as adults, would face up to 45 years in prison, and would be transferred from the youth prison facility in Wisconsin directly to an adult prison at age 18.

Finally, one can cynically wonder if the "need for mental health treatment" is a legal fig leaf seized upon by a judge who fears backlash if these children are not tried as adults, conveniently ignoring the reality that mental health services in adult correctional facilities are meager at best, and not developmentally informed. Even if the judge genuinely hoped to access long-term mental health treatment for these now 14 year-old defendants, there are ways to accomplish mental health treatment after their term of juvenile justice commitment, which includes imposition of involuntary treatment. Every state has some combination of statutes that provide for involuntary medication and/or hospitalization if someone is dangerous to himself or others due to a mental illness. In all of these jurisdictions, delusional or psychotic thoughts and plans to harm others would justify emergency psychiatric confinement. In many states, psychiatric evaluations are routine for inmates who are mentally ill and there are concerns about violence risk due to their mental illness. Incarcerated youth and adults of concern can be evaluated for ongoing dangerousness caused by mental illness, and if they present a continuing danger to the public, they need not released but can be transferred to forensic or community psychiatric hospitals for monitoring and treatment..

These young girls are accused of a brutal and planned attack on a classmate. This lethal attack may have been motived by a psychosis or psychotic-like preoccupation with the Internet Slenderman entity. All would agree that if these early adolescent girls are found guilty of this heinous crime, they must be held appropriately accountable. However, Constitutional jurisprudence and neurodevelopmental and behavioral science argue against trying and punishing then-12 -year-old girls as if they were adults. The judicial holding in this case is untethered from both sound public policy and science, and says more about the desire to maximize punishment than any goal of providing mental health treatment.

Judith G. Edersheim, JD, MD. Co-Director, The Center for Law, Brain and Behavior, Massachusetts General Hospital, Harvard Medical School

Robert Kinscherff, PhD, JD. Faculty in the Doctoral Program in Clinical Psychology and Associate Vice President for Community Engagement, William James College