We need to talk about the sentencing of young people
HAT is happening to our young people? They disrespect their elders, they disobey their parents. They ignore the law. They riot in the streets inflamed with wild notions. Their morals are decaying. What is to become of them?”
Familiar complaints about young people, not from modern times, but often attributed to Plato in the 4th Century BC.
Similar concerns have been expressed over the centuries and still resonate. The results of research on brain maturity, conducted by Edinburgh University for the Scottish Sentencing Council, offer some insight into recurring concerns and could have significant implications for courts when sentencing young people.
This systematic review considered and evaluated the evidence available on the cognitive maturity of younger people. It found compelling evidence that brain development does not complete until at least age 25.
But why is that conclusion important to sentencing? It is important because maturation is the process by which we become better able to regulate our behaviour. It therefore has a direct bearing on someone’s level of culpability, or blame, for an offence.
The research was commissioned to help inform the council’s decision about who should be considered a “young person” for the purposes of sentencing. Scottish legislation currently offers a range of starting points up to 21. However, we are aware from research, and anecdotal evidence, that most young offenders begin to desist from offending by their mid-twenties. As a defence lawyer for more than 30 years, I recall many young men who seemed to disappear, only to find out on bumping into them years later that their “disappearance” was explained by them having found employment, and settling down with a partner. The council therefore wished to better understand why this is often the case.
THE research describes dramatic changes the brain undergoes during the transition to adulthood. The regions governing emotion and mood develop before those enabling us to exert self-control, and plan and achieve goals. Studies suggest that the parts of the brain governing these control functions do not finish developing until around age 25. Because of this, younger people have less-developed cognitive abilities for much of this transitional period, particularly in relation to self-control.
Cognitive maturity develops at different rates for different people and, importantly, may be delayed or hindered by other factors such as traumatic brain injury, alcohol and substance use, mental disorders and adverse childhood experiences.
Typical brain development lasts into the late teens and, research made possible by advances in brain imaging technology tells us, into the mid-twenties. The imbalance in brain development, combined with increased hormonal activity and heightened emotions, leads to the risk-taking behaviour commonly associated with adolescence and leaves even those with “normal” brain development potentially vulnerable to risky or illegal behaviour for reasons outwith their control.
The council is not alone in exploring how our justice system addresses offending by young people. The Care Review and Expert Group on harmful sexual behaviour by young people both recently reported, and arrive at similar conclusions. The time is surely ripe for a detailed discussion on the sentencing of young people. The council will kick-start that conversation shortly when it publicly consults on its draft sentencing young people guideline. I hope as many of you as possible will take the opportunity to be a part of that conversation.
(Incidentally, in a further example of the relevance of historical experience, in ancient Rome, full maturity, responsibility and adulthood was not considered as having been achieved until age 25.)
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