You are on page 1of 15

Criminal Justice Magazine Summer 2000 Vol.

15, Issue 2

Immaturity, Culpability & Competency in Juveniles: A Study of 17 Cases

By Marty Beyer *

Adolescents do not think or act like adults. In fact, scientific evidence now supports the contention that the juvenile brain is often incapable of adult reasoning because of its long maturation process. Immature thought processes, difficulty with comprehension, unstable identities, moral values that are overshadowed by a sense of loyalty, or the effects of childhood trauma can make a young person incompetent to participate in his or her own defense. The effects of immaturity are evident from the time the juvenile becomes involved in a crime, through the police interview, planning for hearings, and considering a plea. As defendants under the age of 18 are increasingly tried as adults-in a system that focuses more on the offense than the cognitive and emotional capacity of the accused-too little attention is paid to immaturity. Determining intent in juveniles requires understanding adolescent development. A developmental perspective challenges many assumptions. For example, when children carry weapons they often do not anticipate harming anyone. Actions by an adolescent often do not show adult planning. And normal I.Q. and absence of mental illness do not equate with competency in a juvenile. Understanding where each adolescent is developmentally is necessary to clarify the effect of immaturity on his/her culpability and competency. What follows is an analysis of the developmental assessments of 17 juveniles conducted by the author to examine their maturity. They ranged in age from 11 to 17 at the time of their offenses. Some of the cases were in juvenile court, some in adult court, and some were evaluated in preparation for a waiver/transfer hearing. Six were female, 11 were male. Ten were African American, four were Caucasian, and three were Hispanic. Their alleged offenses included nine homicides (six felony murders in which a victim was killed in the course of a robbery), five armed robberies, one case of sex abuse, one kidnapping, and one drive-by shooting. The 17 cases came from seven states and the District of Columbia. It was not a random sample-all interviews were
Marty Beyer is a clinical psychologist and independent consultant in Washington, D.C. Her focus is on adolescent development: understanding how a youth's cognitive, moral, and identity development and trauma affect the commission of offenses, and designing developmentally sound dispositions. In addition to developmental assessments in individual cases, training, and improving services in juvenile facilities, she is also a consultant in statewide child welfare reform in Alabama and Oregon.

conducted at the request of lawyers on behalf of their clients over the last two years-but nonetheless provides valuable information about the effects of immaturity in juveniles charged with serious offenses. Cognitive development Recent research indicates that substantial brain development occurs during adolescence, including areas of the brain involved in integrating information and emotional control. Even late in their teens, young people can have immature thought processes. They don't anticipate. Adolescents often fail to plan or follow a plan, and get caught up in unanticipated events. They view as "accidental" consequences that adults would have foreseen. After an offense, they say, "It happened so fast, I couldn't think." Reacting to perceived threat. Fear interferes with the adolescent's ability to make choices. This is especially true for children of color, females, and victims of physical or sexual abuse who have felt threatened before. Self-protection is understandable even if the actual danger was minimal. It is important to view the threat through the young person's eyes. Minimizing danger. Typical juvenile risk-taking reduces the use of mature cognitive strategies. As spontaneous thrill-seekers, adolescents seldom consider the worst possible outcomes. Difficulty in managing impulses is normal in teenagers and does not predict poor judgment or psychopathology when they become adults. Teenagers genuinely believe that what happens to others cannot happen to them, even when they are aware of facts that would argue differently. Having only one choice. In situations where adults see several choices, adolescents may see only one. This is especially true for those with learning disabilities or lower intelligence. Often adolescents feel cornered and can see no other way out. As a result, their actions show poor judgment and may violate their own moral values. This can even be true for intelligent juveniles. When things do not unfold as they imagined, because of their immaturity, they behave as if they have lost their script and are incapable of adapting another, more reasonable choice. No intent to use a weapon. A gun or knife was used in 16 of the 17 offenses. In nine cases, a codefendant carried or used the weapon; in all of these cases, the one who carried the weapon was older, larger, and/or the boyfriend of the young person evaluated. Seven said they had no idea the companion had or was going to use the weapon, and they could not understand why they were considered responsible for the harm caused by the weapon. In none of the seven cases in which the young person was armed (five cases resulted in a death) did the juveniles envision using the gun or imagine an injured victim. Three of them had the gun for less than 24 hours prior to the offense. One shot a victim with a parent's gun that the victim loaded against house rules. As a hunter, he was the only one of the seven who reported previously firing a gun. All seven said they carried the weapon to scare others. Five were smaller than average and said they wanted to look bigger. It is noteworthy that all of them stated the gun went "off," but did not believe at the time that they had pulled the trigger. They expressed surprise at hearing the loud explosion and/or feeling the kick of the gun. Several indicated that using the gun had been reflexive-an unthinking response to fear. It was only later that they comprehended that having a weapon was dangerous.

Incapacitated by substance use. In 10 of the 17 cases the juveniles were drunk or high at the time of the offense. In six cases daily substance abuse occurred for weeks before the offense, resulting in impaired judgment and activities with other substance abusers that, when sober, they viewed as wrong and immature. Not planning. None of the 17 offenders demonstrated adult planning. Four of the young people are brain-damaged and digest information slowly, which resulted in being present during an offense with consequences they could not anticipate. Eight drifted into the offense by following others. They intended to have fun and viewed the eventual outcome as accidental or a surprise. Lack of planning was coupled with minimizing the possible danger. For example, a 13-year-old got in a stolen car; a 17-year-old agreed to hire prostitutes with a friend. Asked what choices he had, another 17-yearold said: "To have walked home in the rain and not accepted a ride with [his codefendant]." But by the time things turned serious, he saw no way out. Feeling threatened. In seven cases, the young person was afraid of the victim; others were intimidated by their companions. The 11-year-old had been tortured by his victim for months in a tragic family situation. A 17-year-old and two 16-year-olds were shot at by drug dealers who they knew had killed before, and they borrowed guns to protect themselves. In three cases, their robbery victim attacked them and the intoxicated young people (who were victims of childhood abuse) reacted in fear for their own lives. Understanding how a young person could react reflexively as he/she abandons the original activity (such as a robbery) to avoid being harmed by the victim challenges the application of adult intent to children. Not comprehending Miranda. Ten of the young people did not understand the words or the concepts of the Miranda warning. For example, a 14-year-old was asked to explain "You have the right to remain silent." He answered: "Don't make noise." Asked to explain "Anything you say can be used against you," he said, "You better talk to the police or they're gonna beat you up." Asked to explain "You are entitled to consult with an attorney," he said he did not know. When told it meant he could call a lawyer, he said, "I never heard of a lawyer before. Now I know what it means to have a lawyer, but back then I wouldn't know a lawyer to call and you have to have money for a lawyer." Asked what would happen if the judge heard later that he would not talk to the police, he responded, "If I hadn't told what I did, the judge would give me more years." He said, "I had never been taken in by the police before. If I had known what they read me meant, I would not have talked. But I knew I had done something wrong. The police said, 'Your clothes are over there, just tell me what happened and you can get dressed and get out of here.'" A 16- year-old had similar comprehension problems. Asked to explain "You have the right to remain silent," he said, "The police are telling you when not to talk. I never could see why they said 'right' in that." Asked to explain "Anything you say can be used against you," he said, "That's on TV-but I've never understood what it meant." Asked to explain "You are entitled to consult with an attorney," he said he did not remember anyone saying that to him and he did not know what it meant. When told it meant he could call a lawyer, he said, "I didn't know what a lawyer was. In juvenile we didn't have lawyers. I had my caseworker to talk to the judge for me." Asked what would happen if the judge heard later that he would not talk to the police, he responded, "The police would tell the judge I was lying. I would get in more trouble by saying I didn't do it. Then the judge would say I must have did it." A 17-year-old was asked to explain "You are entitled to consult with an attorney." He said it meant he could get a lawyer to help him in court, but he did not understand why the detective told him about getting a lawyer then-like many young people, he had no idea that he could ask to have a lawyer present before he responded to police questions. Despite their youth, most of these young

people talked to the police without any family members. In two cases where parents were present, they told their children that it was best to tell the police the truth (without consulting a lawyer). The impact on police statements. An intelligent 15-year-old who was high when questioned by police recalls being "in shock," "disoriented," and "real nervous." The police were "casual when they said they wanted to ask me some questions. They did not do a real Miranda like in the movies. I thought a Miranda meant you had to sign on a paper that you waived your right to call a lawyer. I never did that. I thought I was simply answering a few questions. I didn't have handcuffs on and they said they would drive me home soon. They asked me how long I had been in the area, easy things like that. That's all I expected, but they kept going. . . . I would not have talked to the police without a lawyer if I had realized what they were going to put me through to make me give a confession they would use against me. . . . The police put me under a lot of pressure. One officer after another questioned me and promised I would go to a juvenile program if I talked." Based on his statement, this 15-year-old was direct filed and faces life without parole. A frightened 13-year-old who had been raped during his only previous stay in detention made a false statement to the police because he was desperate to go home. He assumed that the police would not stop questioning him so long as he maintained he was innocent. And he feared a police beating after his friend returned from interrogation with a split lip and blood on his shirt. In addition, he believed he could take back his false confession later, which is in keeping with a 13-year-old's thinking. Based on his statement, this youngster was direct filed and faces 20 years. A 17-year-old expressed shock that police broke down the door and held guns to his head when they arrested him. "I'm a kid who has never been in trouble and now I'm told I'm going to get the death penalty. I'm scared. I'm dead." He recalled the detective saying, "I'm on your side. I'm going to help you." He told him he could not read and the detective read him his rights. The detective asked him questions and he did not answer. When he asked him why, he said, "I have the right to remain silent." He said the detective called him "a wise guy" and told him that his adult codefendants were saying he killed the victim. This pushed him to talk to police. In an attempt to clear himself, he tried to explain why he was at the scene. Based on this statement, he was waived to adult court and faces the death penalty. A 16-year-old with brain damage, whose videotaped statement shows him high and obviously disoriented, felt pressured into confessing when officers played him the tape of his girlfriend's statement. He started crying, pleaded with the officers to see his family "one last time," and stated that, although he was too high to remember what happened, his girlfriend would not lie. Based on his statement, waiver into adult court would mean the death penalty. Whether they were threatened or cajoled into making a statement to police, these young people demonstrate immature thought processes. They did not think they had a choice, they believed by talking they would be allowed to go home, and they were unaware of the long-term consequences of talking to the police. Inability to assist in defense. As Thomas Grisso has pointed out, "An essential part of meaningful decision making is the ability to foresee the consequences of a decision. Defendants must be able to imagine hypothetical situations, envisioning conditions that do not now exist and that they have never experienced, but which may result based on the choices they make. They must then evaluate

these potential outcomes, comparing them with what they know or imagine to be more or less desirable or painful in life." (Thomas Grisso, Juvenile Competency to Stand Trial: Questions in an Era of Punitive Reforms, 12(3) CRIM. JUST. 9 (Fall 1997).) Because adolescents often have a limited future perspective and ability to anticipate, and may not be able to think strategically about the comparative risks of decisions, they may be cognitively too immature to assist in their defense. The author designed nine hypotheticals to examine how a delinquent's incomplete cognitive and moral and identity development might affect his/her ability to assist counsel. The questions were read to the young people. In addition, a well-informed and competent 16-year-old in a juvenile program offered his perspective. In the following scenario, the answers show an inability to consider alternatives: A 16-year-old girl was with her boyfriend when he killed a cab driver. She says she was drunk and had no idea what he was going to do when she got into the cab. Her lawyer talks to her about a plea to eight years if she testifies against her boyfriend. If she went to trial and lost, she would probably get 25 years in adult prison. What should she do? Every delinquent given this question said, without hesitation, "I'd tell her to go to trial. She didn't do it." A 15-year-old girl said, "If her boyfriend loved her he wouldn't have gotten her into this. She should ask him to come to court to clear her." A 14-year-old responded, "Don't say nothing or she'll get more than eight years. She should get a trial. She didn't know her boyfriend was going to do it, so she shouldn't get locked up. If she snitches, she should get off so she can get away because her boyfriend will have someone kill her." A 13-year-old and two 15-year-olds insisted that having innocence recognized is the only concern. A 16-year-old said, "She has to show in trial she didn't know anything about it." A 17-year-old said, "The truth is the best. If she didn't know he was going to do it, tell the truth to the judge. She shouldn't have to spend time for something she didn't do." The competent juvenile's view: "That's the big question. Should she do eight years for something she didn't do? Most kids would say the law about felony murder isn't right. They would just be thinking about fighting against that. They would say they were there, but weren't really part of it and shouldn't have to pay so much for it. So they aren't thinking, what if I lose?" A misunderstanding of plea bargaining and the risk of going to trial as well as a cognitive limitation in not being able to weigh several options simultaneously are also demonstrated in the responses to the next question: A kid complains that his lawyer is always giving him too many choices at once. One time they get together and the kid says "go to trial." The next time the lawyer has new ideas and the kid says "take a plea." He is confused. What should he do? A 16-year-old said, "Lawyers always want to get everything over so fast. My lawyer comes in here for a few minutes. I want him to talk a lot longer to me, to explain things. But he's gone." A 14-yearold responded, "He should tell his lawyer, 'Don't come in here with a new thing every time.'" A 15year-old said, "I'm in special ed. I get confused when they talk about too much at a time." The competent juvenile's view: "There are a lot of kids with learning problems. Sometimes I only get the basics when my lawyer talks to me, so those kids probably don't understand much at all. Only a few

lawyers will break it down, explain in basic terms, like Plan A and Plan B. A lot of kids are simple in the way they think." The impact of naivet and thinking only about getting out of the police station are exemplified in the responses to the following question: A 14-year-old tries to get the clerk in a store to give him the money from the cash register. He pretends to have a gun in his pocket. He's arrested and police hold him all day without food. He is hungry and really has to go to the bathroom. They tell him his mother is in the waiting room and they will let him go home if he tells them what he did. They get him to sign a paper he cannot read. They lock him up. What should he do about what happened in the police station? A 14-year-old responded: "I had never been arrested. They read it to me, but I didn't know what it meant. I was scared. The police said, 'Tell us what happened and you can go home.' I just said 'yeah, yeah.' I didn't know what they wrote down went to court. They didn't have fingerprints or anyone who saw anything. Just things they twisted around and said I said which I didn't, but it was their word against mine." A 17-year-old said: "There is nothing he can do. Everyone always believes what the police say. Of course what happened is wrong. But if his lawyer won't help him, no one will believe him." A 16-year-old said: "Something like this happened to me the first time. Now I've been arrested a lot and I know I should never talk or sign anything unless my lawyer is there." The competent juvenile's view: "Police pull this kind of thing all the time. A kid like that is like a lot of kids, he doesn't want anyone to know he can't read. The first time you get arrested, you are terrified. All you want is to get it over with. You say anything if you think you get to go home." Another example also raises the question of whether young people with learning or comprehension difficulties will tell adults when they do not understand: A kid is hyper and never could sit still in school. Now he is having a lot of trouble concentrating when he meets with his lawyer. He gets up out of his chair and loses attention. If you were his lawyer, what would you do? A 16-year-old commented: "This is a problem for a lot of kids. I think it's because they are so worried all the time about what's going to happen to them." A 14-year-old with serious comprehension problems himself responded: "The lawyer should tell him, 'This is not a game. You're in big trouble.'" That he does not think a juvenile deserves accommodation for a disability means he might not ask for special consideration himself. The competent juvenile's view: "This happens a lot. Kids get so frustrated in detention. They can't work with their lawyer. And their lawyer doesn't have the good sense to say, 'You and me, we're on a team. The only way we can beat the prosecutor is if you help me.'" The cognitive immaturity behind these responses raises doubts about whether the young people could assist in their defense. Although most had normal intelligence and many were 16 or 17, they were incapable of weighing alternatives, especially involving the future. They misunderstood plea bargaining and could not see the risk of going to trial. They did not comprehend what was explained to them by their lawyers. Identity development

Adolescents gradually refine a stable definition of themselves, in part by becoming good at something. Many delinquents have not experienced success, particularly in school. Belonging to family is the framework for identity and remains powerful for teenagers. Identifying with peers is another important aspect of self-definition-group membership is necessary for a young person to feel valued. Difficulty in settling on a positive identity when their culture is not valued is a significant obstacle for teenagers. Family and peers may not pull the young person in a consistent direction. Conflicting identifications may cause unpredictable behavior in a teenager, especially under stress. Needing the approval of others. Lacking stable identities, nine of the young people became involved in the offense by going along with others. All but one of the girls were involved by their boyfriends. A bright 16-year-old described himself as a chameleon whose only talent was satisfying others' expectations. Rejected by his father and feeling disliked and picked on in school, he "hung around with losers" and gave up on himself. As a result of sexual abuse and constant criticism, a 15-year-old girl described herself as an intimidated child, ridiculed for her weight. Lured into a sexual relationship with an older teen at age 12, and gang raped two years later, she was unable to get out of sexual encounters with older males. She felt unattractive and liked the attention of a 19-year-old. She was high when he unexpectedly committed the crime. Years of sadistic torture by his stepfather left a 17-year-old with a desperate need for acceptance, which got him involved with a violent, adult drug dealer. As a result of sexual abuse, abandonment by her addicted parents, and a learning disability, a 15year-old described herself as "a bad child who craved the attention of older males," one of whom set her up as a robbery lookout. Having lost both her teen parents-one to AIDS and the other to life in prison-a 16-year-old tried to please others to avoid rejection. She understood that her "bad decisions" came from her dependency on older drug dealers. She says she went along with the offense because her boyfriend mocked her reluctance to participate and threatened to leave her. When he was 15, on the run, and getting high everyday, a young man's girlfriend wanted to tattoo her name on his arm. Their friend, who did the tattoo, had an old gang sign they all thought was "cool," so they both got one. Two years later, gang involvement-evidenced only by the tattoo-was a significant reason for his waiver into adult court, despite the fact that there was no indication he had ever known active gang members. Such experimentation with gang clothing and signs is fashionable among young people, who are experimenting with identities, and not a clear indication of gang involvement. Insufficient support for positive identity. A 14- and a 16-year-old were successful school athletes, but due to a lack of daily discipline and adult supervision during the summer they fell into delinquency in the neighborhood. A 17-year-old was raised to be a good student and athlete and was not a violent person, but felt forced to protect himself when threatened by a dangerous neighbor.

A brilliant, eccentric, only child of old-fashioned immigrants, who was never accepted by peers, was driven by depression to substance abuse and associating with older suppliers whose threats against his family convinced him at 15 to run away. A 16-year-old described how her success at school and in sports changed at age 13-an example of how puberty and the transition to junior high school undermines the stability of previous success for some girls. Her neighborhood, where drug use and drug dealing were commonplace, offered her popularity. "My attitude changed. I cared about what people thought of me, marijuana, and alcohol. I had an image that was a 'must' to keep. I looked good hanging with my boyfriend [an older drug dealer]." Intimidation by others. Another immature, overweight 16-year-old naively got involved with an attentive older man whom she did not know had a police record. He used her to get into the crime scene and threatened to kill her when she tried to escape. A 17-year-old said: "I'm so sorry for what happened. I think about it all the time. If I had one wish I would wish to walk the other way that night. [My codefendant] forced me to go. But I never thought that he would do what he made me watch him do." Adults may say that the young person should have known better, but immature teenagers feel so intimidated once they are in a situation- even one they regret-they do not see any way out. Viewing the offense as unintentional and inconsistent. Four young people insisted on their innocence. Seven others believed they were in the wrong place at the wrong time and did not deserve severe legal sanctions. All but two were involved with individuals who had committed previous crimes, although the youths often did not know it. Immature identity is reflected in responses to competency questions. If you met a girl in detention who was not telling the truth about being arrested for prostitution because she did not want to hurt her mother, what would you tell her? One girl responded: "I wouldn't want my mother ever to know I had sold my body. I would definitely say they arrested the wrong girl." Another one said: "With my charge I was ashamed to tell my mother. Even though I did not mean to kill someone-it was really self-defense-I had the hardest time looking at my mother and saying. 'Yes, I had a gun in my pocket' and it was hard to admit, 'I had that gun under my mattress and left out your door with it.' She was crying and asked me where I got it and couldn't believe it when I told her from my cousin who bought it from a kid who stole it." The competent juvenile's view: "This is a big problem for girls. They have a lot of trouble telling the truth about what they did because they want everyone to like them." As their identity is developing, self-esteem revolves around being seen as not bad. These young people know their families will be hurt that they have been living double lives, with one identity at home and another with peers. They want to be a person their family is proud of and because of their immaturity they believe that they have not strayed far from that identity. They told themselves that hanging with a bad crowd would not make them bad. In detention, when they are not high and they have some distance from their negative peers, first offenders especially may not appear to be delinquent. As a result, it may be impossible to determine if a young person who insists on his/her

innocence is doing so because it would be intolerable being the kind of person who could have committed the offense. When they say, "I'm not someone who could do that," it is more than denial of the offense: with an identity that is still forming, they may be in shock because they cannot face being like their delinquent peers. For example, a 16-year-old who minimized the negative influence of an older group commented: "It took me six months of being locked up to see you have to be happy with yourself. It doesn't matter what people think. It is not possible to hang around with bad people and not do bad things yourself." Wanting to be liked and the inability to assist in their defense. Seven of the young people were described by their lawyers as being so compliant that they could not express independent opinions. Three of these young people reported that they would do whatever their families advised. A 17year-old said: "I wanted to plea, but my mother wouldn't let me because what I did was a mistake." A 16-year-old said: "My lawyer told me it was best to go to trial. But the judge didn't believe it was self-defense so I got found guilty. I shouldn't have done what my mother and lawyer wanted." Another 17-year-old, who has no family and was living on his own, pleaded with his lawyer to "act like a parent" and tell him what to do. For the young person with an incomplete identity, wanting to be liked or trying to please adults can limit the capacity to form effective relationships with their lawyers, as the responses to the following question demonstrate: Did you ever feel your lawyer did not like you or something about you? If so, what did you do about it? A 15-year-old said: "That's my big problem. I don't ask questions or speak up because I want everyone to like me. That's how I got locked up-going along. There's so much about me my lawyer will never know. I either don't talk or I say what he wants to hear." A 17-year-old said: "My lawyer went over everything with me so many times. I got mad, tired, impatient. I wanted to get it over with. He wanted me to get it right." A 14-year-old said: "My lawyer was mad at me all the time. I kept running away from places. It made him have to do a lot more work. He gave up on me." Another said: "My first lawyer didn't understand me at all. I was 13 and locked up. All I wanted was to be at home, but he didn't seem to understand that." Another lamented: "My lawyer couldn't tell you much about me. She doesn't know that my father leaving and then my moving were big problems for me. I was with other family members who used drugs, so I didn't see anything wrong with it, but she probably thinks that's an excuse." The competent juvenile's view: "I hear kids talking all the time in detention about how they can't get along with their lawyers. They don't like their lawyer and their lawyer doesn't like them. They say all my lawyer wants to do is get me to plea." Immature identity development and immature cognitive development team up in the next example: You meet a juvenile in detention who is going to take a plea to adult probation and you know that if he violated he would face years in adult prison, but he is acting like he is sure that he won't ever get

arrested again. He could take a juvenile placement, but he wants to get out now. What would you tell him? A 15-year-old said: "I would say, take probation just to get it over with. Hope the judge will give him slack because he didn't go to trial." Another 15-year-old said: "I would tell him to ask his mother what to do. She probably doesn't want him to go to residential. But if my mother thought that was better then I'd go to residential." The competent juvenile's view: "Most kids don't see that they are going to slip up and that adult probation means years. They just don't think about it. They want the fast way out. Even if you talk to them about it they don't want to see how they will lose. Most kids have the mentality that they don't want to give anything up. If you tell the truth you're going to get time. If you don't, you're going to win at trial. That's just how juveniles are. Lawyers can explain and explain, but juveniles lie to themselves. They don't have any patience, and they're in a hurry to get home. They just don't know any better." The immaturity behind these responses demonstrates: (a) in terms of identity, the adolescents do not have the capacity for independent judgment. Because of where they are developmentally, they do what their families tell them to do or they say what they think will make their lawyers like them; (b) they cannot tolerate being the kind of person who would have committed this offense; (c) in terms of cognitive development, they cannot think ahead, they cannot weigh a year or two in a juvenile program against the risk of years in adult prison; and (d) they feel invincible and really believe rearrest cannot happen to them. Moral development Adolescents are idealistic and moralistic, insisting on what should be and intolerant of anything that seems unfair. Sometimes they cannot stop themselves from trying to correct unfairness, which can lead to offenses that appear to be calculated revenge, but may, in fact, be impulsive and moralistic in origin. Adults may have difficulty understanding what seems to be irrational decision making-to defend a friend or right a wrong. In retrospect, the young people realize that their families and religious institutions view what they did as wrong, but they were too immature to apply those moral values at the time of the crime. Though it depends on how far along a young person is in understanding personal responsibility and rights, judgment under stress may be inconsistent with his or her moral values. Thus, a young person may know right from wrong, but be unable to use mature moral reasoning when high or feeling trapped. Moral reasoning and substance abuse. Ten young people, after their arrest (and when they were not using illegal substances), articulated religious-based moral values and ethical reasoning typical of adolescents, but reported that they could not follow those values when they were high. In all 17


cases, the young people showed genuine sorrow about their victims and shame about their offenses. They also demonstrated concern for family, classmates, and other juveniles with whom they were incarcerated. Their crimes were not the result of a lack of empathy-although those who were high and reacted on reflex to a threat did not appear to have feelings for their victims at the time. The growth of empathy is part of moral development in children and is a crucial component of evaluating a delinquent's remorse about an offense. When a young person says an offense was accidental, he/she usually wishes it had not happened. Not taking responsibility for causing the unintended consequence does not demonstrate lack of remorse or weak moral values. In addition, the more emotionally immature a young person, the more difficult it is for him/her to face shame about an offense. When they cannot or do not express their guilt feelings, an erroneous conclusion can be drawn that they do not feel sorry for the offense. Adolescent bravado should not be misinterpreted as a lack of remorse. Acting tough can be the young person's only way to avoid overwhelming feelings of sadness and shame. Him or me. In seven cases, the young people felt so threatened they did something they considered wrong in order to protect themselves. A 16-year-old described being surprised by encountering the victim, who had shot at her and her boyfriend the day before. She reacted without thought to protect herself and her friend. Asked what other choices she had, she said, "Not to have gone there with my boyfriend. Once [the victim] went for his gun, if I didn't shoot he would have killed my boyfriend and me." The experience of living in fear because they think everyone carries a weapon can lead young people to rationalize that an unavoidable wrong is necessary to protect self and others. Although adults may see this as a distortion, since teens often put themselves into such risky situations, the "him or me" view is a crucial element in understanding adolescent culpability. It results from immature thought processes (not anticipating unintended consequences and reacting to threat) and incomplete moral development (doing something wrong may be unavoidable). Loyalty. One young person genuinely believed that what he did, although wrong, was a response to a higher moral principle of loyalty and fairness. He felt that he had to protect his girlfriend from an adult who preyed on teenage girls, despite the fact that she intended to rob him. Immature moral reasoning and statements to the police. One 17-year-old, who was moralistic and intolerant of unfairness, was so irrationally loyal that he thought it was the right thing to do to help out an adult friend by falsely confessing. He was assured by his friend that as a first offender he would get juvenile sanctions. Because a 13-year-old was so upset by his unfair arrest and the police officers' unwillingness to accept his innocence, he made a false statement he imagined he could withdraw after he got home where his family would believe him. Immature moral reasoning and the inability to assist in their defense. Juveniles often insist that their lack of intention means they should not be sanctioned. An 11-year-old was devastated by and felt responsible for his victim's death, but because it was unintentional he did not feel it should be punished by the court. As a result he was not competent to consider a plea or plan a disposition. A 15-year-old (and her family) believed she was an innocent bystander to a crime and should not


have court sanctions; so even facing a likely conviction with a long adult sentence they would not consider a plea. A 13-year-old was preoccupied with the unfairness of the world; he had changed his life and stopped his delinquency a year earlier. He saw but was not involved in the crime and was bitter that his past was being held against him. His insistence that he was wrongly charged and pressured to confess preoccupied him so he was unable to talk with his lawyer about anything else. Lack of trust in lawyers and the court process. Returning to the first question posed about the girl's plea decision, all the young people focused on the unfairness of doing an eight-year sentence for being in the wrong place at the wrong time. Because of how they think, teenagers may get so morally outraged they cannot get off the idea that "it just isn't fair" in their cases and, as a result, are not able to trust lawyers, who attempt to talk to them about pleas or trials. A 15-year-old who was riding in a car in a drive-by shooting is in court and the judge calls his lawyer and the prosecutor up where they talk so quietly he cannot hear them. What does the 15-year-old think his lawyer is talking about? Juvenile responses included: "They're talking about giving him some time." "They're debating about whether to plea or not." "Nine-tenths of juveniles think their lawyer is working against them." A 15year-old said: "The judge is going to lock him up. There's nothing his lawyer can do up there." A 16year-old said: "I didn't understand my lawyer really represented me. She was a white lady. A lot of black kids think a white lawyer isn't going to help them. A lot of kids think a woman lawyer isn't going to be able to win against men." The competent juvenile's view: "Most kids think their lawyers work with the prosecutor, that they only let you know parts of the puzzle. Their public defenders get paid by the government, so they work with the government. I used to think this way. And kids really get mad when the first thing out of their lawyer's mouth is to take a plea. Then they just can't trust them. Most kids feel their lawyers aren't doing anything to help them. They don't talk up for them in court, just schedule court dates. At first I denied I knew anything about my charge. I had to. I figured I could get off if I said I didn't do it. After awhile I trusted him to tell the truth, but it was hard." The immaturity behind these responses shows ignorance of the roles of the parties, lack of trust in defense counsel, and not believing in the rights of defendants in court. In their experience, many adults have not treated them fairly, so why should they believe a court-appointed lawyer would? Understanding concepts and reluctance to trust adults. Have you ever not understood something your lawyer was talking about? If so, what did you do about it? A 16-year-old responded: "There are a lot of times I don't understand my lawyer. Especially that if I took a plea it would be to a different charge than the charges I might get found guilty of if I went to trial. I just couldn't understand that." Another 16-year-old said: "I don't understand anything. The judge extended my commitment. My lawyer came to tell me about it. I couldn't understand the words she used. And I can't figure out why the judge did that."


A 17-year-old said: "I don't understand much my lawyer says or what they do in court." Loyalty-driven belief that informing on others is morally wrong. Another aspect of moral development is reflected in the youths' responses that it would be wrong for the girl in the cab to testify against her boyfriend just to get less time herself because she should be loyal to her boyfriend. Even though he had gotten her into trouble, six young people expressed moral codes that required not benefiting by blaming someone else. An adult may not understand how a young person could abide by this rule given the harm done to him/her by the codefendant. Young people who insist it is morally wrong to "snitch" are not competent to choose between going to trial and taking a plea that involves testifying against someone to whom they feel loyal. Trauma Delinquency is often related to physical and sexual abuse, loss, and exposure to violence that interfere with cognitive, moral, and identity development. Such trauma has been shown to make adolescents irritable, helpless, and unable to soothe themselves or modulate their anger. They feel challenged by having to organize material and concentrate in school and emotionally constricted. These young people often numb their feelings with alcohol, drugs, or other substances. They cannot avoid reliving the trauma and may have difficulty trusting others. Physiological arousal and brain changes resulting from trauma have also been identified. Depression is a common reaction to trauma, but often is not diagnosed in delinquents. Their behavior problems usually have been the focus of intervention rather than treatment of the underlying sadness. Aggression can be a defense against the helplessness common among traumatized children, but aggression in victimized young people is often misinterpreted as offensive rather than defensive. Although sadistic offenses can sometimes be traced to the cruelty of an adult earlier in the child's life, more often traumatized delinquents present a passive account of having no choice but to defend themselves when they felt threatened. If they are having flashbacks from earlier trauma, their description of their state of mind during the crime may show a confusion of their victim with their victimizer. Typically the delinquent is unaware of his/her long-standing pattern of reflexive self-protection in response to perceived threat. All 17 youths had experienced significant childhood trauma. Seven had been physically abused and three had been sexually abused. Three experienced death of a parent, 10 were abandoned by their parents, and two struggled with adoption issues. Nine experienced serious early learning problems (three had brain damage and three were bright but had undiagnosed learning disabilities), and seven felt sustained rejection by peers. This history of trauma contributed to chronic depression prior to arrest in 10 of the 17 young people. One 17-year-old, who had been a good student in elementary school described losing hope when his cousin was murdered: "I realized that 80 percent of the children I knew would soon be locked up, on drugs, or dead." Increased fear. The young people who had been abused reacted to threat during their offense. Several described being hurt so much in the past that they automatically acted to ward off further harm. Their explanation, "I'm not going to let anyone hurt me again" could be a sign of the beginning of recovery from abuse, but was misinterpreted as a belief that their victim deserved to be


harmed. Several abused youths seemed unable to control their reaction to the victim who threatened them. Crisis point in their lives. Seven of the young people were in a self-destructive crisis at the time of their offenses, in response to trauma and increasing conflict with their families. A 14-year-old, 15year-old and 17-year-old were living on the street. Another 15-year-old had been forced by family crisis over a boyfriend to move out-of-state with a relative. A family member's deteriorating mental illness and a parent's abandonment led another young person to attempt suicide shortly before the offense. Two 16-year-olds had run away to be with their boyfriends. Another 16-year-old was a struggling single parent. In addition, nine of the young people described medicating their depression with increasing substance use. For these young people, trauma produced instability that made them vulnerable to delinquency. Delayed development. Most of the young people were thinking or behaving less maturely than youngsters of the same age-apparently because trauma delayed the process of normal adolescent development. Twelve of them were described as having uneven development-comparatively mature thinking or moral reasoning combined with emotional childishness. Because adolescent development is not a linear progression tied to chronological age, how these young people would have developed had they not experienced so much trauma is unknown. The impact of trauma on statements to police. Four of the abused youth reported that their fear of the police made them feel that they had to confess. Two of them were terrified, even though in retrospect they could not remember the police doing or saying anything threatening. Having been powerless when adults abused them in the past, these young people probably could not do anything but comply with police. Being untrusting interfered with assisting in their defense. Young people who have been abused or abandoned have difficulty believing that adults, including their lawyers, will protect them. Their apparent compliance is a learned survival strategy, but they tell their lawyers little of what they are thinking and may not believe their lawyers are really on their side. In conclusion, immaturity was a significant factor in the offenses of all 17 young people whose developmental assessments were analyzed. The majority did not have adult intent. Because of immature thinking and unformed identities, they followed others or were coerced into situations that got quickly out of control in ways they did not anticipate-often exacerbated by substance abuse. In addition, 10 out of 17 could not comprehend Miranda rights. Immaturity made it impossible for more than half to assist in their own defense. Some did not understand plea bargaining; others could not weigh several options simultaneously; and most could not accurately envision the future. Some could not exercise independent judgment or would say anything for their lawyer's approval; some thought it was morally wrong to inform on others; and many had difficulty trusting adults including their lawyers. Since half these young people faced the death penalty or adult life sentences without parole, it is imperative that everyone involved in the justice system reconsider the important role immaturity plays in a juvenile's commission of a crime and competency to aid in his or her own defense. Applying a developmental perspective to the court handling of offenders under 18 will require


evaluators who are skilled at culturally sensitive assessment of adolescent development and who understand incompetency due to immaturity. In addition, the court must have a realistic response to incompetency due to immaturity other than traditional adult court methods of restoration. After all, children cannot have something restored that does not yet exist. Court-ordered civics classes to inform delinquents about court procedures do not address incompetency due to immaturity. It would take many delinquents years to mature sufficiently to develop a trusting relationship with counsel, be able to imagine the future, and weigh the comparative risks of decisions. If a court, in a waiver hearing or adult proceeding, finds the young person incompetent due to immaturity, a return to juvenile court makes sense. As Thomas Grisso argues: "[W]hen youths do not meet the standard for competency in criminal court due to developmental immaturity, their criminal charges could be dismissed and filed later as delinquency charges in juvenile court. The lower threshold for competency in juvenile court proceedings may allow them to proceed to adjudication, although the justification for the lower threshold would require that the consequences would be confined to dispositions that would not involve incarceration beyond the age of jurisdiction of the state's juvenile correctional authority" (Id. at 10.) Most delinquency continues to be the result of immaturity, although today the availability of guns sadly makes normal impulsivity and risk-taking lethal. Without minimizing the tragic outcomes of immature thinking, it is crucial to keep the court's attention on the individual young person, not the offense. When young people are helped to take responsibility for their actions in programs designed to foster positive development in the way they think, how they define themselves in their families and with peers, their view of right and wrong, and their recovery from abuse, they are unlikely to be dangerous once they become adults. Developmentally sound justice must include rehabilitative services that provide the public with a sense of safety without harmful punishment for teenage acts compromised by immaturity in thinking, identity and moral reasoning, and childhood trauma. n

Copyright American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.