(This is a guest post by Vatsala Singh Parashar)
The way our brain reacts to minor offenders is a paradox. When we regard them as helpless kids gone wayward, we characterise the offences (allegedly) committed by them as instances of immaturity. However, upon the consumption of society’s sympathy for them, we arrive at the opposite end of the spectrum, where society tends to regard them as "super predators". The lack of compassion towards these children, from the society as a whole, is reflected by the hardened stance taken when it comes to dealing with their crimes.
Indian society is plagued by the same vacillating views. The lawmakers of our country are products of a society which associates the criminalisation of the juvenile system as the only way forward to deal with a new species of super predators. The statute which deals with juvenile offenders in our country is the Juvenile Justice (Care and Protection of Children) Act, 2015 (“ The Act” ). It was passed, in largue measure, due to the fact that one of the accused in the tragic Nirbhaya Gang Rape case, was a minor at the cusp of adulthood .
This Act calls for the formation of a Juvenile Justice Board, (“JJB”) formed under section 4 of The Act, for the preliminary assessment of the capacity of the children in the age group of 16-18 to commit crimes. I argue that criminal actions undertaken by juveniles are the result of their interactions with their society, on the one hand, and the gradual development of their brain on the other. The development of a young person's brain during their adolescent years and their psychological and neurological deficiencies mitigate their criminal culpability. I do not argue that children should not be held criminally liable because of their mental insufficiencies; but simply that this suggest reasons for why they are less culpable because of the same reasons and should not be tried as adults.
Working of the JJB - A Pandora's Box
The JJB, consisting of a Judicial Magistrate or Metropolitan Magistrate along with two social workers, takes the assistance of psychologists for performing the preliminary evaluation of children in conflict with law (“CCL”). Considering opinions on the anvil of scholarly articles referred to while writing the blog, I feel that this preliminary assessment fails to stand the basic test of criminal law. The edifice of criminal law is built on the pillars of actus reus and mens rea. Findlay Stark, in "It’s Only Words: On Meaning and Mens Rea", emphasises on the difficulty of establishing mens rea in an adult. Attempts to establish the same in a child are riddled with uncertainties, given the vulnerability and impressionability of a child’s brain. The JJB, in its assessment, disavows the guiding principle of criminal law, innocent until proven guilty by treating the child as someone being capable of committing a crime, even before the trial.
An exacerbating factor to be taken into account is the time lag between the commission of the offence and the interviewing of the CCL. The time lapsed is enough for the child to get influenced by external factors or behave in a way that fails to express the child’s feelings, as is highlighted by Professor Martha Duncan, in her article titled "So Young and So Untender: Remorseless Children and the Expectations of Law". The JJB, during its assessment, is statutorily mandated to undertake a background check on the CCL, which besides being disproportionately invasive of the person's privacy also can perhaps skew the entire process towards assuming culpability. In such a paradigm, the impression casted by the CCL upon the other members of the society are given more importance than the rights of the CCL. This method has the potential to lead the entire investigation towards a manufactured conclusion, one which takes into account the child’s past susceptibility to committing crime and allows the board to take into consideration a wider range of evidence against the child, which would have been inconsequential in the adult criminal court.
Neuroscience and the Adolescent Brain
I would argue that, based on extant scholarship, to come to well informed and correct decisions the people who make the juvenile system need to be aware of the changes that a child’s brain goes through during his adolescence, an age during which a child suffers from risk seeking stimulations projected by the brain itself. This would be in consonance with the principle of not holding someone criminally liable if they are unable to regulate their behaviour, as is the case with a CCL.
Laurence Steinberg, in "Should the Science of Adolescent Brain Development Inform Public Policy", conclusively stated that transferring a child into adult criminal system is punishing them for their brain’s incapability of regulating their actions before a specific age. In line with the set premise is the principle of penal proportionality, which states that people who are less capable of committing crimes should be given lesser punishments for the same. In their research paper on the "Teenage Brain", Richard J. Bonnie and Elizabeth S. Scott emphasised on the difficulties embroiled in the calculation of the mental maturity and capability of a CCL, thereby making them less culpable because of their mental dearthness.
Scientific reports on adolescent brain development convey that criminal acts of children peak between ages sixteen and eighteen but these tendencies go through a rapid degeneration soon after. This can be attributed to the changes in their brain structure and functions during that time. There are two major centres in the brain of a child which go through significant changes during adolescence; these are (a) the cognitive centre of the brain - amygdala, and (b) the self-regulatory centre of the brain- prefrontal cortex.
The amygdala is responsible for all the impulsive decisions under taken by adolescents. Due to the lack of foresight, an impairment exacerbated by an active amygdala, they are more susceptible to indulging in high risk activities. This is worsened by the high production of dopamine, a neurotransmitter which sends signals to neurons. It results in the cultivation of the reward deficiency syndrome, which compels them to undertake tasks which are risky, in order to attain the same amount of thrill as experienced by them during the pre-adolescent stage of their lives.
While the amygdala dominates the functioning of the brain at full swing, the part which is responsible for mature decision making and keeping a check on reckless behaviour , the prefrontal cortex, is still a work in progress. The prefrontal cortex does not mature fully until late adolescence. It is the sad reality attested by neuroscience that adolescents mature intellectually before they mature socially or emotionally. This means that while they have the ability to comprehend that killing someone is wrong, they are incapable of acting on that ability.
An adolescent brain is fuelled by unchecked and immature emotions. Stories supporting this never elude headlines. Any incident of a crime committed by a teenager who is intellectually superior to his peer is accompanied by the inability of the society to reconcile with the fact that an intelligent child is capable of committing an offence. Society forgets that intelligence has nothing to do with the commission for a crime.
The institution of criminal law is built on the foundation of autonomy of actions. A scenario in which the brakes of a person’s car fail and he ends up running over a pedestrian sleeping on the sidewalk will not be attract criminal liability because it was beyond his control. An adolescent’s brain has a similar working principle. Research conducted by the MacArthur Foundation on adolescent development and juvenile justice supported the theory that juveniles lack complete autonomy over their actions because of their brain’s accelerator, that is, amygdala being pushed to its maximum while the engine, that is, the brain is controlled by a faulty brake system or the prefrontal cortex.
Much research conducted in the field of juvenile neuroscience has revealed that adolescents are intrinsically different from adults because of their brain being in its maturation phase. The US Supreme Court through a series of landmark judgments has emphasised on the fact that children are different from adults because of their inability to assess the consequences of their actions. Most of the actions undertaken by children are the result of their “transient immaturity”. Thus, it can arguably be said that adolescents who prima facie appear to have assessed the consequences of their actions can still not be given the same criminal culpability as that imposed on their adult counterparts.
It is difficult to wrap one's brain around the fact that children are capable of committing crimes, for the simple reason that we do not expect them to be so. The amicable solution to this dilemma would be to not formulate laws that would push adolescents into adult criminal system, but ensuring that they receive the rehabilitative care that they need if they do end up committing a crime by virtue of their immaturity. There is a stark difference between a mischievous child and one with the intent to commit crime. However, when dealing with a CCL, these differences elide thorough deliberations. The fact of the CCL engaging in conduct which is a serious offence is conflated with him having shown problematic tendencies in the past. The society as a whole treats a CCL as a convict instead of an accused awaiting trial. It is highly unfair for them to be assessed by the elements of the same society, which denies them the right to have an impartial assessment and trial.