Transformation Through Accommodation: Reforming Juvenile Justice by Recognizing and Responding to Trauma

Author: Eduardo R. Ferrer, Legal & Policy Director, DC Lawyers for Youth
Published in: American Criminal Law Review, Vol. 53, pp. 549-93 (2016).  

     Over the last ten years, the United States Supreme Court has affirmed two key principles relating to the intersection of youth and the law.  First, the Court has recognized that kids are physiologically, psychologically, and neurologically different from adults.  Second, the Court has held that the law must take these material differences into account.  In doing so, the Supreme Court has confirmed what many psychologists, neuroscientists, parents, and youth defenders have argued for years – the law must make accommodations for the normative differences between adolescence and adulthood.

     While such recognition by the Court is critical to making the juvenile justice system more responsive to the differences between adolescence and adulthood, accounting for normative adolescent development is only half the story.  The juvenile justice system must also account for the trauma suffered by youth.  Recent studies reveal that more than ninety percent of youth in the juvenile justice system report having experienced at least one adverse childhood experience.  Such trauma has a substantial physiological, psychological, and neurological impact on adolescent development, further differentiating system-involved youth from the normative adulthood on which criminal law is based.  Thus, the juvenile justice system at all stages of the process must accommodate not only the youthfulness of the respondent, but also any disability or trauma experienced by the youth.

     Truly accommodating trauma should have seismic implications for the juvenile justice system.  Primarily, such accommodations should drive a significant reduction in the size and scope of the juvenile justice system.  Specifically, accommodations should results in the system pushing youth back into the educational, behavioral health, and community-based social support systems better positioned to help youth and families instead of the system accepting its role as an imperfect safety net for youth cast aside by other social systems.  Secondarily, for those youth for whom system intervention is nevertheless deemed appropriate, making accommodations should drive the juvenile justice system to radically transform its internal processes at every stage to recognize, accommodate, and respond to youthfulness, disability, and trauma.  The resulting transformed system should be more effective and more tailored to the individualized needs of system-involved youth.

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