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June 2017 Special Feature – Children Are Different: When the Law Catches Up With Science

by Martin F. Schwarz

There was a time in the not-so-distant past when conventional wisdom held that juvenile offenders should be treated in much the same way as adult offenders. In fact, on March 7, 2000, by way of Proposition 21, prosecutors around the state were given the ability to directly file criminal charges against minors as young as fourteen in adult court, completely bypassing the juvenile justice system. According to the California Attorney General’s Office, 492 minors were directly charged in adult court by prosecutors in 2015, the latest year for which statistics are available, for offenses ranging from homicide to theft. Proposition 21 left the decision of whether to file charges in adult court completely to the discretion of prosecutors, who typically made those decisions based on the conduct documented in police reports, without consideration of the youth’s circumstances. Between 2003 and 2015 (the only years for which data is available), more than 10,000 juveniles were prosecuted in adult court. See Laura Ridolfi et al., The Prosecution of Youth as Adults, Burns Inst., 1 (June 2016), Of those, over 70% had charges directly filed against them in adult court under Proposition 21. Id.

On November 8, 2016, the electorate voted to repeal the ability of prosecutors to directly file charges against minors in adult court by passing Proposition 57, which reinstituted—with some changes—the pre-Proposition 21 requirement that only a juvenile court judge could order a minor transferred to adult court. While prosecutors can petition the court to consider transferring a minor to adult court, a judicial officer can only order the transfer after a hearing on whether it would be appropriate after consideration of a number of criteria relating to the child’s youth. These criteria include: maturity; intellectual capacity; physical, mental, and emotional health; impetuosity or failure to appreciate risks and consequences of criminal behavior; the effect of familial, adult, or peer pressure on the child’s action; the effect of the child’s environment and childhood trauma; the child’s potential to grow and mature; and the adequacy of services previously provided.

The journey from Proposition 21 in 2000 to Proposition 57 has been one informed by scientific developments in our understanding of adolescent brain development. Shortly after the passage of Proposition 21, researchers began to conclude that youth, by virtue of their developmental immaturity, are less morally culpable than adults when they commit criminal conduct. Youth have less-developed reasoning skills, are more susceptible to peer pressure, have a less-developed sense of future consequences, are more inclined to impulsivity, and have a less developed sense of their personal identity than adults. See Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003).

Commonly, youth form personal identities by experimentation and by engaging in behavior that pushes boundaries. For these reasons, criminal activity by youth is typically the result of experimentation with risky behavior and not a reflection of a criminal, morally deficient character. Id. at 1015. Of course, adolescents and young adults engage in risky behavior in varying degrees, and some researchers now believe that the degree of risk-taking, or the type of risk-taking, may be linked to trauma experienced earlier in life. Because these developmental drivers diminish with maturity, delinquent behavior as a juvenile is normally not a predictor of criminal behavior as an adult when individuals acquire greater ability to control impulsivity and appreciate consequences to behavior. Id.

It took the law a while to catch up with the science. However, in 2005 the Supreme Court addressed the moral culpability of juveniles head on when it confronted the issue of whether the Constitution permitted imposing the death penalty for crimes committed as a juvenile. Roper v. Simmons, 543 U.S. 551 (2005). In holding that no individual may be executed for an offense committed as a juvenile, the Supreme Court observed that:


[A]s any parent knows and as the scientific and sociological studies . . . tend to confirm, a “lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”


Id. at 569 (quoting Johnson v. Texas, 589 U.S. 350 (1993)). Consequently, the Court held that from a “moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id. at 570.

In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court again tackled the diminished moral culpability of youthful offenders, citing to continuing “developments in psychology and brain science that show fundamental differences between juvenile and adult minds.” Id. at 68. The Court, echoing the reasoning of Roper, explained that given the transitory developmental aspects of youth it would be misguided to assign juveniles the same level of blame as adults, and held that no juvenile who commits a non-homicide offense may automatically be sentenced to life without parole. Graham, 560 U.S. at 68, 74. In so holding the Court reasoned, “[j]uveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are the actions of adults.” Id. at 68.

Then, in Miller v. Alabama, 567 U.S. 460 (2012), the Supreme Court said it even more plainly when it declared that children are “constitutionally different than adults” in that they are less blameworthy based on their lack of maturity, underdeveloped sense of responsibility, heedless risk taking, vulnerability to negative influences, and their lack of control over the environment they live in. Id. at 471. These “distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Id. at 472.

Our increased understanding of adolescent brain development and its impact on the courts did not go unnoticed by the California State Legislature. Two bills in particular directly addressed the notion that youth are more redeemable than adults because their sense of self is less developed and have a greater capacity to reform themselves. The first of those bills, SB 260, was signed by the Governor in 2013 and allowed offenders who committed crimes before their eighteenth birthday and who were sentenced to determinate terms of fifteen years or more, or indeterminate terms of life in prison, to have a meaningful opportunity for release on parole after serving either fifteen, twenty, or twenty-five years, depending on their sentence.

In 2015, the Governor signed SB 261, which extended the age of eligible individuals to those who committed offenses before they turned twenty-three years old. This is consistent with the scientific consensus that the risky behavior associated with adolescent brain development continues into the mid-twenties. Because of both bills, the California Department of Corrections and Rehabilitations now conducts youthful offender parole hearings to determine whether eligible offenders can be released without compromising public safety. Laws and regulations implementing the bills require the parole board to assess the individual’s maturation and growth, allows for the use of psychological evaluations and risk assessment instruments, and permits the parole board to hear from family members, friends, school officials, and community-based organizations to determine whether parole is appropriate.

The most significant integration of developmental science and juvenile court law occurred in 2015 when the Governor signed SB 382, which drastically amended Welfare and Institutions Code section 707, the statute that controls court-ordered transfers of juveniles to adult court. Prior to the passage of Proposition 21, juveniles could only be transferred to adult court if a court found the youth “unfit” for the juvenile court system. That determination was made using five broad criteria that had remained unchanged since 1975. SB 382 kept the same criteria but required judicial officers to also consider developmental factors such as the individual’s level of maturity, exposure to trauma, mental development and mental health, intellectual capacity, impetuosity, appreciation of risks and consequences, and the effect of familial, adult, and peer pressure in deciding whether the youth is amenable to the juvenile justice system.

At the time SB 382 became law, its impact was small given that prosecutors’ ability to directly file charges against minors in adult court meant they rarely sought orders from juvenile court judges to transfer minors there. However, with the passage of Proposition 57 and its repeal of direct filing, SB 382 now guarantees that the decision on whether to transfer minors to adult court will require judicial review of the developmental factors that brought the minor into the system.

The incorporation of brain development science into juvenile law has significantly heightened the complexity of juvenile delinquency practice. To be effective advocates, attorneys representing minors in juvenile court need to have a firm grasp of the science and how their clients’ developmental factors figured into the conduct bringing them before the court. Just as important, today’s juvenile-court-involved youth will likely come to the system with a panoply of concerns and special needs related to their development. Typical issues an attorney will be called upon to address include undiagnosed learning disabilities and educational issues; struggles with sexual orientation/sexual identity; mental health issues, including both competency and appropriate services; adolescent development and behavior and the impact of any number of childhood conditions or incidents, including prenatal drug or alcohol exposed youth, the impact of exposure to violence and the effects of trauma; and early substance abuse and its effects. To address the need for specialized training in these areas, the Governor signed AB 703 in 2015, which required the Judicial Council to establish standards for training and education necessary for attorneys to be appointed as counsel in juvenile delinquency cases. Statewide, 92% of minors in juvenile court are represented by appointed counsel.

The Judicial Council responded by adding rule 5.664 to the California Rules of Court. The rule, which went into effect July 1, 2016, requires attorneys appointed on juvenile cases to have twelve hours of specialized, juvenile-specific training in the immediately preceding twelve-month period and requires eight hours of training for every year thereafter. There is a “grandfather clause” for those who have been doing at least 50% juvenile work in each of the last three years.

The impact of developmental science on the juvenile justice system has been dramatic. Science now informs the public debate on youth crime policy and the legal standards applied in the courtroom. As a result, juvenile practice has become far more complex than in years past. The focus on developmental maturity and the individual circumstances that bring youth into the system has forced practitioners to expand their knowledge base beyond statutes and case law. Taken together, these developments have increased the standard of practice and will undoubtedly result in better outcomes for system-involved youth.

Martin F. Schwarz is a Senior Assistant Public Defender with the Orange County Public Defender’s Office, sits on the Board of Directors of the California Public Defender’s Association (CPDA), and co-chairs CPDA’s Juvenile Committee. He can be reached at

Orange County Bar Association | P.O. Box 6130 | Newport Beach, CA 92658 | 949.440.6700 |
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