Guest Post: Neuroscience in Juvenile Policy Making, a Need of the Hour

(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.

Closing Remarks

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.

The Juvenile Justice Act 2015: More Questions than Answers

This blog was skeptical (to say the least) when the legislature mulled changes to the Juvenile Justice Act 2000 at the end of last year. Some searching questions were posed to the proposed modifications at the time the amendment bill was passed in the Legislature, and resignation hit when the Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act] was ultimately notified on 15.01.2016. It has now been nearly six months since the law was enforced, giving ample time to consider how do the big changes brought in work. The big changes, to recall, were the introduction of a three-tiered system of offences and enabling certain cases involving juveniles between ages of 16-18 to be tried by a regular court. In my opinion, the legislative scheme so created suffers from poor drafting, which leaves any reader with far more questions than healthy for a statutory provision relating to criminal liability.

Interpreting the Three-Tiered System

The definitional clauses of Section 2 of the JJ Act were considerably changed from the erstwhile 2000 Act. Crucially, we saw the introduction of Section 2(33) defining 'Heinous Offences', Section 2(45) defining 'Petty Offences' and Section 2(54) defining 'Serious Offences'. A Petty Offence includes one for which the punishment was imprisonment upto three years. Serious Offences include those having punishments of between three to seven years. Heinous Offences include those where the minimum punishment is seven years or more. There are apparent similarities between this scheme and the one present in the Part II of the First Schedule of the Cr.P.C. [which we have discussed earlier]. Part II of the Schedule classifies how offences outside the Indian Penal Code [IPC] are to be tried and creates three categories on the basis of punishment: (i) offences punishable for less than three years, (ii) those punishable between three to seven years and (iii) those punishable for more than seven years. 

A closer look here should make the interpretive questions coming in the JJ Act apparent as well. Specifically, three issues. First, the use of an 'inclusive' definition [i.e. Serious Offences include ...]. Second, the definition of Heinous Offences as those having a minimum of seven years imprisonment. Third, the apparent overlap between the three categories. Addressing these issues in turn, it is clear that these are instances of the poor drafting plaguing the statute. The inclusive definition is possibly the least problematic of the three issues. An inclusive definition means it is not exclusive to the terms of the definition. It can go beyond the text if context so demands. Considering the three definitions provided in the statute, one would think that it would be extremely rare for the inclusive nature of the definitions to lead to controversy.

The other two issues are more thorny. The word minimum is conspicuously absent in the Cr.P.C. classification. It is obvious why this is a problem. How many offences on the statute book today have a minimum of seven years as punishment? Only 4*. So we have all the offences that are punishable upwards of seven years, but without a minimum punishment of seven years, falling in the huge gap left in the legislative machinery. If we were to include these offences in a definition, which one would it be? Where there is a gap in the definitions of Heinous and Serious Offences, there is an equally problematic overlap between Petty and Serious Offences. Petty ones include those punishable upto three years, Serious Offences include those with imprisonment between three to seven years. So how do we place an offence punishable with three years imprisonment?

The Section 15 Conundrum

This three-tiered setup was designed with a larger, more publicised, aim in mind: creating a new category of cases that can be excluded from the supposedly lenient framework of the JJ Act and be sent to a regular court. And we get Section 15, which activates if Juvenile between the ages of 16-18 years is accused of committing a Heinous Offence. Section 15(1) requires a 'Preliminary Assessment' [term not defined] "with regard to his [Juvenile] mental and physical capacity to commit such offence, ability to understand the consequences of the offence and the circumstances in which he allegedly committed the offence". The Board then may direct under Section 18(3) that the case be sent to a 'Children's Court'. 

Let us first address Section 15 before moving to Section 18. The obvious question is when is this Preliminary Assessment to be made? Is it at the stage of an ongoing police investigation, thus transferring custody of the Juvenile to the Children's Court (which can only send Juveniles to jail after they turn 21)? Or does this provision apply once a Final Report has been filed by the Police, meaning that the Children's Court only comes in at the time of trial of the offence? Looking at Section 18(3), it appears that the question arises at the time of determining how the case must be tried, and thus the Assessment would be made after the Final Report is filed. 

Reading the text, it seems four things are required to be determined in a Preliminary Assessment. But what is the relationship between these factors, and the decision of sending a case to the Children's Court? If a Juvenile is found to have the mental and physical capacity to commit the offence, but doesn't fully appreciate the consequences or circumstances, should that case be sent to the Children's Court? What can the words "understand the consequences and circumstances" actually mean and what philosophy are these tests driven by? If we turn to the IPC, we find that the question of exemption from criminal liability for children was based on the presumption that children cannot entertain a mens rea. Crude, but easier to implement.

None of these questions find any answers in the statute, because none of these questions were considered or answered by the Legislature at the time the JJ Act 2015 was being rushed through Parliament and brought in force. The Board is allowed to call for a psychological report to assist its decision. This means that a Board is statutorily permitted to make this decision without any formal psychological report. The psychological report itself remains of little help, as practice reveals. Today, therefore, it is clear that the amount of discretion vested in the Board (as well as the Children's Court) for deciding how a person's life proceeds is excessive and seemingly ungoverned by any meaningful test. Thankfully, these decisions are expressly made appealable.

Overlaps between the 'Lenient' and 'Harsh'

I hark back to the apparent dichotomy that is entertained by legislators and several commentators in the news media, of the lenient procedure under the JJ Act and the harsh procedure of a normal trial. Some cases, based on this dichotomy, are undeserving of the leniency and deserve the harshness. This is the idea that the Children's Court alternative sought to reflect. But in reality, it presents a halfway-house minded to appease both sides of the divide. Under Section 19, a Children's Court is required to do all that the Board must - make individual care plans and provide reformative services. Further, a Juvenile can only be sent to prison after turning 21. Furthermore, the Court can also try the case as a Board if it thinks the child should not be subjected to the regular procedure. The statute doesn't expressly tell us if the Court's decision is final, or the Board might again disagree and pass orders under Section 15.  

Not only this, there are other general questions that remain unanswered. If a Juvenile is punished by the Children's Court, what is the applicability of Section 21 of the JJ Act? Section 21 says that "no child in conflict with law shall be sentenced to death or for life imprisonment without the possibility of release". To use the example that seemingly drove this statute to fruition, can a Nirbhaya case be sentenced to life imprisonment or not? Further, what about the application of the Probation of Offenders Act, 1958 to such cases? A deeper scrutiny of the JJ Act 2015 together with the various laws on the statute book is bound to throw up further controversies of such a nature. 

Conclusion

A statute hastily rushed through the Legislature while a public outcry rang throughout the country, that is one way to describe the JJ Act 2015. The most important changes it has brought do not appear to have received the critical scrutiny of the legislature that they perhaps might have received if there wasn't such a hurry. The interpretive questions arise mostly out of seemingly poor and inconsistent drafting, a trend that plagues most modern penal statutes in India, but rankles ever so greatly in such situations where lives of young persons are at stake. Currently, there is no decision of any High Court or the Supreme Court of India that has considered these questions. It is hoped, that litigation reaches High Courts to provide greater clarity on how the statute operates. A dispassionate assessment of the statute is critically necessary, and the legislature has already shown once that it could not be trusted with the same.

*Section 304-B (Dowry Death), Section 376 (Rape), Section 397 (Robbery/Dacoity with attempt to cause death/grievous hurt), Section 398 (attempt to commit an offence u/s 397). Of course, Section 302 punishes murder with a minimum sentence of life imprisonment and thus includes a minimum of seven years.

[This post was updated on 31.05.2016, and on 04.06.2016. Many thanks to Ms. Mansi Binjrajka for pointing out certain errors with the earlier version]

A Dangerously Populist Practice?

A friend messaged that the DCW moved the Supreme Court in a last ditch attempt to stall the release of the juvenile involved in the Nirbhaya case [note: I refrain from calling him a convict or accused, because he is neither, and labels matter]. This was at 1 AM. I slept fearing the worst, but waking up to news reports indicating no stay had been granted while the matter was posted for hearing on Monday before the Vacation Bench. Hearings last night were concluded swiftly, but still did happen to some extent. Hark back to the execution of Yakub Memon and we had full-fledged hearings. This is dangerous trend, only further revealing how dangerously populist our criminal justice system is becoming. Lets start at the roots of the malaise. 

Understanding Penal Populism

In 1993, a 3 year old toddler was brutally murdered in Walton, Liverpool. His killers were two 10 year olds. Since Britain allowed trials for people aged 10 and above, these boys stood trial and were convicted. Immediately after the trial the Judge allowed the media to report on the case, and the boys' names were splashed across the world. They were to serve ten years in prison. Immediately, though, The Sun [a U.K. Tabloid] petitioned against it and it worked. The sentence was increased to 15 years, in a move roundly condemned as playing to gallery. It was overturned by the House of Lords, the highest court in England at the time. Contrast this with a similar incident in Norway, where two 6 year old boys beat up and killed a 5 year old girl. There was no release of details in the newspapers. No trial. There were formal proceedings determined to rehabilitate the children which decided that a change of setting would be best.  

David A. Green has a brilliantly informative book called 'When Children Kill Children', where I take this from. He attributes these starkly different responses primarily to (i) different political cultures, and (ii) different media cultures of the two countries. The U.K. has highly competitive politics, where every issue is treated by the Tory and Labour as a zero-sum game, Norway has more political outfits but no zero-sum game. Dialogue is more prominent in their approach. As for the Media, the U.K. again has a notoriously capitalist media with everyone fighting for readers and stories. Attention-grabbing headlines, innovative gimmicks, all of this is but an attempt to ensure support. The capitalist regime also ensures there are links between the politicians and the media: papers are known to have leanings, and politicians greatly benefit from the support bestowed on them. Norway does not have a capitalist setup, and there is one clear leader in the newspaper race. The support, if any, by the media for politicians is also of no great consequence. All of this impacts how elected representatives respond to crime. Crime is one of the most reported segments for newspapers everywhere. The large personal element of crime makes public opinion increasingly voluble, and easy and profitable to report. The large noise so created has to be responded to by the politicians, for this zero-sum game has important first-mover advantages. The decisions made in such an atmosphere for penal policies are primarily populist, and usually end up being the wrong ones as well.

Penal Populism in India

I will assert, and not seek to prove, that India is a populist democracy where decisions are swayed by populist tendencies more often than not. It is much closer to the English experience highlighted here than the one in Norway. The zero-sum game is played between the Ruling Party and the Opposition on every issue. Instances of a united front being put up are very, very rare indeed. The views on penal policy are treated no differently. Consider the Yakub Memon hanging: the Congress condemned the decision while the BJP stood by its views of no mercy for terrorists. The Finance Minister called Congress leaders irresponsible in their statements. Both sides were covered by different news outfits. When the Law Commission was making its recommendations on abolishing the death penalty, its conclusions were tempered due to populist stands taken by representatives of the Ruling Party [it recommended abolishing the death penalty for everything but terrorism related activity].

Nirbhaya was no different. The issue presented itself in the form of a horrific killing. Everyone likes a good crime in the news and it was heavily reported. Sexual offences were not always so heavily reported. But the public outcry following the media releases here in fact contributed to an increase in overall reporting of sexual offences by every outfit. This massive public outrage became easy fuel for politicians, who now adopted a universal position of condemnation but took different and seemingly irreconcilable positions on what to do. The debates raged on aggressively dealing with sexual offences, and juveniles committing offences. Their positions were supported by different news outfits, ensuring everyone had something to talk and shout loudly about, and make money from. Capitalism won, and continues to win, with every 9 PM news debate.

The Current (Actually Old) Debate

Between 2012 and 2015, little or no movement occurred outside of these verbal sparring battles. One slew of amendments was passed with clear hues of populist dementia (introduce the death sentence for an offence to make everyone think its serious now, while they've forgotten the problem really was enforcement). Juvenile policy was worse. In 2012, there was a movement to change the law making 16 year olds responsible. It was reviewed by the Law Commission and the Supreme Court. Both concluded that the shift was possible if there was some scientific data to support the theory that 16 year olds understood ideas of responsibility. Populism alone was rejected as a basis for legislation. What happened between the three years? You guessed it. There was one Bill introduced, no scientific study conducted, and in fact no verbal sparring also. Callous statements only began to emerge closer to the Day of Reckoning. Reports with dubious credibility surfaced with the media showing no remorse. The Ruling Party blamed the Opposition for stalling its reforms (cue, applause). For good effect, they brought in ISIS! Because terrorism and sex offenders are perhaps the only things that get our public opinion really moving. 

And then there is the Supreme Court. Perhaps the only real development between 2012 and 2015 was that the Supreme Court began to play to the gallery. Its always good to be looked upon as a White Knight in a bleak world (no, I will not use the line from Batman here), and the Supreme Court played its part publicly to great effect. The midnight hearings for Yakub Memon were yet another exercise in boosting that image, while showing the 24 Hour newscycle that the 12-5 AM segment could have new material. So as the clock struck midnight and brought upon us the end of the world, the politicians ran to the Supreme Court again. Hoping, I believe, that the great work they've done - of verbal sparring in the media, using victims, shouting, and not doing any real work - will be duly rewarded. It hasn't, yet, and I hope good sense prevails. The Supreme Court will do good to recall its earlier position of wanting clear data to effect legislative change. A reading of When Children Kill Children would be handy as a starting point. It would also do good to remind the media that the juvenile was never tried, and must not be called a rapist among other things. And finally, maybe it will stop entertaining petitions at midnight before it becomes the next in-thing.