Neurological Immaturity

Age	Sentence in years
12	7
15	Life + 5 + 3 + 2.5
16	Life + 6 + 4
16	12 + 7 + 4
15	9 + 6
15	8.5 + 6

These were the ages at time of offence, and the sentences, of a group of working class Māori kids who killed a man in the course of a robbery. 

The defence that the kids did not fully understand the seriousness of their actions, given the prevalence of violent video games and films that show people being hit on the head without consequences, was rejected. They were tried and sentenced as adults, even the 12 year old.

In the USA, there are people serving life without possibility of parole for capital crimes committed before they were neurologically mature, and there is a movement to have them released. Some have been released and some, usually because of the input of the victim’s family, remain incarcerated. 

If we accept current scientific evidence that the decision making centre of the brain is the last to mature and may not be fully mature until early 20s, and that kids aged 12 -16 are definitely neurologically immature - then the trial and sentencing as adults of these young people in NZ was in line with the sort of harshly retributive sentencing often seen the USA. 

To argue these kids genuinely may not have understood the gravity of their actions is not to diminish the awfulness of the outcome. They planned a robbery and caused the tragic death of a man who was simply doing his job - but were they capable of understanding the consequences – for him and for them - of those actions?

If the argument is valid that they could not because the prefrontal cortex is not yet fully developed, then the sentencing of these kids was all about retribution, not justice or rehabilitation. 

Neurologically immature brains do not have fully developed impulse control and they have a reduced ability to assess risk. When this is combined with the known greater sensitivity to peer pressure and a tendency to rush into uncertain situations to test out possible rewards – it seems obvious that adolescents, and especially young adolescents, should not be tried or sentenced as adults.

There were of course other factors at play here, the most important being the social class and ethnicity of those kids.  

When a 17 year-old middle class, white kid drove his powerful car at speeds in excess of 180kph in a 50kph zone in Christchurch and killed a young Chinese student who was crossing the street, his lawyers argued that the defendant was too young to control his reckless impulse to drive at what the judge described as ‘insane speeds’. 

So unconfident were the police of getting a conviction for murder, they prosecuted for manslaughter for which a guilty plea was entered and the driver got a 5 year sentence, of which he served 2 years.

Further evidence of the disparity in treatment of young offenders can be found when searching the names of these young people on the SST website. The latter’s name does not appear even though he compounded the severity of his offence by fleeing the scene, conspiring to pervert the course of justice and expressing racist attitudes towards his 19 year-old victim.

These two scenarios – and there are many, many other examples of gross disparities in the CJS in NZ – came back to mind because of the current debate around other life-altering decisions that kids may rush or be pushed into before they are neurologically mature, and at a point in life when they are peculiarly sensitive to peer pressure.

If we hope to ensure appropriate forms of justice for young offenders – something all right-minded people must surely want to do  - shouldn’t we also be alert to the life-altering consequences of all decisions that are made before people are neurologically mature?