I spoke last week at a forum on reforming criminal justice policy for young adults. The premise of the discussion was that people under 25 do not have fully developed brains and should be treated with more mercy than older adults.
I am all for more mercy in the criminal justice system. I can’t let go of the fact that we are incarcerating 5 times as many people in Massachusetts as we were 40 years ago. Crime rates aren’t that different. In fact, in many respects, they are down. But, players at every stage of the system seem to be making harsher decisions — from police to prosecutors to judges to probation and parole officers. Our laws are tougher too, but I think that is only a small part of the change — there is huge discretion at every stage in the system and I believe a cultural shift occurred in the 70s and 80s that oriented all the players in the system to harsher punishment and so drove incarceration rates up. There has been a minor shift back over the past decade, reflecting recognition that incarceration rates are just too high, but we have a long way to go to get back to 1975 levels.
We need to do a better job lifting people up at every age, not just juveniles and young adults. The recent advances in brain science indicate that parts of the brain associated with judgment and restraint continue to develop well into the 20s. This is not news to auto rental agencies who generally don’t rent to people under 25. But the brain science so far paints with too broad a brush. There are lots of people in their teens who have better judgment than some people in their 60s and the brain science tells us little about why a handful of teens and adults commit horrendous crimes, but most teens and adults confine their lawbreaking to speeding violations.
Regardless of why people are impaired — whether due to simple immaturity, or to a history of trauma, or to addiction or mental illness — we need to recognize the needs and risk factors that impel people to crime and do a better job of reducing recidivism by addressing those needs and risk factors.
That is what I found most encouraging in last week’s discussion. While it was conceived as a discussion about young adults, there was a general recognition that we need to “meet people where they are” when they come into the criminal justice system. Behavioral science (as opposed to brain science) is validating new ways to respond to criminal offending. Restorative justice circles bring offenders and victims together to resolve minor crimes out of court. Mental health interventions get disoriented people into mental health care instead of jail. Service agencies are connecting with prisoners before their release so they can come out directly to jobs and housing.
Punishment will always be part of the criminal justice system — if the state doesn’t punish people, people will seek vengeance on their own. But punishment has come to be too large a part of the system. As one participant noted last week, if one started over and asked how would we build a system that would help people turn away from lives of crime, it would look very different from the system we have.
Our current system is very pro-defendant from a procedural standpoint. There are lots of safeguards that protect innocent people from conviction. But once a person is convicted, the system operates in many ways to destroy their ability to ever function as a member of society.
The direction we need move in is clear. The challenge is getting there — it’s not just about passing laws. It’s about changing thought patterns in the justice system at all levels.