By John Weston Parry, J.D.
In Roper v. Simmons (2005) the United States Supreme Court finally embraced the overwhelming weight of medical and psychological evidence that until they are at least eighteen, and probably well after that, young people, due to developmental immaturity, lack the requisite mental capacity to be fully responsible for their actions. Constitutionally, which is a very high legal threshold, such immaturity was enough to bar the death penalty for anyone under the age of eighteen. Following this historic decision there should have been a national movement to reform the outdated laws and policies governing the actions, behaviors, and risk-taking of minors. Yet, a decade later that still has not happened.
For years it has been widely known that with regard to criminal culpability and mental capacity there are substantial differences between young people and adults based on their developmental immaturity. Nevertheless, the American legal system has largely ignored those differences or exaggerated and distorted their implications in order to conform the law to firmly held religious, moral, and political values and beliefs. As with our often ill-advised and irrational laws and policies governing people with mental disabilities, these preconceived ideas, biases, and prejudices about how young people process information and make decisions bare little resemblance to knowledge.
Making matters worse, there is a second major aspect of developmental immaturity that continues to be a substantially neglected and misunderstood social problem as well: the physical vulnerability of young brains to concussive impacts, which can cause permanent mental impairments. This type of cognitive damage frequently occurs in contact sports, especially football, as well as military training and combat. There have been concerns voiced about the consequences of such cognitive injuries, but very little in the way of constructive laws and policies in terms of prevention and treatment. Thus, even though it is known that due to developmental immaturity, young people tend to engage in risky behaviors and show a lack of judgment, many adults also continue to encourage them to engage in activities that are apt to cause life-long mental impairments and steady cognitive deterioration.
America’s social blinders in addressing developmental immaturity are especially evident in five key areas of American life: the legal ages in which young people are deemed to be adults; juvenile justice; sexual crimes on campus; football; and military recruitment and training. Not coincidentally, most of these activities are ones in which males predominate, often in unhealthy or counterproductive ways.
The Legal Ages of Adulthood
The potential chaos and social destruction of laws and policies governing the actions and behaviors of young people begins with the often arbitrary or nonsensical legal ages in which people are deemed old enough to be treated as adults. Currently, we have a multitude of different legal ages, depending on the particular jurisdiction and activity that is involved, which seem to cater to and accentuate various biases and social prejudices. Thus, a young child who has not even reached his or her teenage years is viewed as responsible enough to own and operate an assault rifle in certain states that believe that no restrictions should be placed on gun use—except of course people who have mental disabilities. Also, children, as young as 14, may be permitted to drive a motor vehicle. Yet, in almost every jurisdiction adolescents, with certain notable exceptions, are automatically viewed as lacking the capacity to vote or to consent to having sexual relations with someone who is over eighteen.
Making matters more complicated, the best medical and psychological evidence indicates that generally people do not fully mature, developmentally, until they are at least in their early twenties. This means that using twenty-one rather than eighteen as the departure point for bestowing full adulthood makes a great deal of sense. This is not to argue that our laws and policies should automatically prohibit older adolescents from engaging in adult activities, such as driving a car, having sex, or working with appropriate restrictions of protections. The point is that there should be far more rationality, consistency, and objectivity in applying what we know about developmental immaturity in deciding when and how a young person should be treated as an adult, and assume the full responsibilities of adulthood.
The Juvenile Justice System
In prosecuting, sentencing, and imprisoning young people for serious crimes, there is too little—or no emphasis at all—in trying to account for inherent developmental differences between minors and adults. The predominant attitude is reflected in the widespread fallacy that adolescents, and even children younger than that, should be as culpable as adults if they commit adult crimes. Somehow their physical capacities to commit such crimes constitute convincing proof of their mental capabilities. Thus, juveniles may be sentenced to decades or life in prison with adults, and the possibility of rehabilitation for these children is cavalierly dismissed as irrelevant or impossible.
In one sense these draconian sentences for juveniles, along with their being placed inappropriately and often humanely in adult jails and prisons, are part of the decades old war on crime that began in the early 1980’s. This gross overreaction resulted in Americans imprisoning more people per capita than any civilized nation in the world by far, especially African Americans and people with mental disabilities. It also resulted in the effective dismantling of the nation’s juvenile justice systems as places where treatment and rehabilitation were supposed to be dispensed along with punishment. More and more children are now imprisoned with adults.
Despite growing protests and incremental governmental reforms, our jails and prisons continue to be overcrowded and generally are operated in ways that are both cruel and inhumane. Progress is defined as not allowing inmates to be raped and assaulted as frequently as in the past. Treatment and rehabilitation, depending on the detention facility, are inadequate or virtually nonexistent. Furthermore, juveniles and other developmentally immature inmates, like inmates with mental disabilities, experience these outrages and injustices more acutely and brutally because they tend to be more vulnerable, fragile, and susceptible to harm and manipulation by others.
At the same time, the juvenile justice system has grown increasingly more punitive and inhumane, and rarely therapeutic. Juvenile correctional facilities also tend to function as dumping grounds for juveniles with mental and other disabilities and impairments, who have committed minor felonies, misdemeanors, or no crimes at all, but have no better place to go. Otherwise most of these youngsters would be homeless or worse.
Yet, like the juvenile offenders they are housed with, these vulnerable, at risk kids are treated like criminals, rather than children in need of essential social, medical, and educational services. These incarcerated juveniles, whether they have committed serious crimes or not, become part of a self-fulfilling prophecy. They are pushed towards crime in an inhumane system that deprives them of their basic needs and detains them in a culture in which the worst offenders are allowed to create the unwritten rules and control the environment.
Perhaps the most controversial and confusing area of the criminal law, when it comes to addressing the impact of developmental immaturity on behavior, are sexual crimes committed in social situations in which the actual abilities of young people to provide or understand consent is manipulated to fit preconceived notions, preferences, and myths about human sexuality. In mainstream America, older girls and young women tend to be portrayed as inevitable victims of sexual conduct they do not want, understand, encourage, or consent to. They must be protected from sex and sexual aggression, especially on college campuses, by creating a presumption of sexual wrongdoing when boys and young men are accused.
Older boys and young men, on the other hand, tend to be portrayed either as having little or no responsibility for their sexual actions—boys will be boys—or being predators fully responsible for their sexual aggression, which are conveniently categorized as rape, often without taking into account the degree of coercion involved and the respective mental awareness of the two parties. This all-or-nothing approach to prosecutions of these types of alleged sexual assaults inevitably distorts justice, one way or the other.
There is no denying that in our culture females have been victimized by males in many different ways, but particularly through sexual aggression and/or violence. Too often men and boys have been given preferential treatment by law enforcement and college administrators when these types of assaults have occurred. Unfortunately, this already serious social problem has been made worse by fundamental misunderstandings or misleading beliefs about human sexuality and the likely abilities of young people to make sexual decisions and give consent.
The legal system is not well-equipped to resolve accusations of sexual wrongdoing where the facts and circumstances are ambiguous. Ambiguity by its very nature produces reasonable doubt. Inevitably in order to adequately protect girls and young women from sexual assaults in social situations, which involve partying, alcohol, recreational drugs, and hooking up, justice must be compromised. The clear-cut situations of sexual wrongdoing should be separated from and handled differently than those that inevitably produce such ambiguity.
Labeling this type of ambiguous sexual wrongdoing as rape is neither enlightening nor just. Where physical force or illegal drugging can be established convincingly beyond a reasonable doubt such ambiguity evaporates. Otherwise, in judging whether consent has been given and understood and good judgment exercised both of the developmentally immature parties should be treated equally. There should not be a double standard in which full responsibility and cognitive awareness is presumed for the suspected aggressor and no responsibility and awareness for the victim. Such duplicity does not comport with reality or justice.
Youth and Interscholastic Football
Football is a dangerous sport, which presents both short-term and long-term health risks for players. The longer athletes practice and play football the greater the risks become for permanent physical injuries, mental deterioration including dementia, and even, on rare occasions, death. Like the hazards of military service, football health risks for young players are often camouflaged in an array of misleading information, sports propaganda, and public relations schemes.
With regard to the long-term and often devastating effects of head trauma, the most talked about category of injuries today, developmentally immature players are at greater risks than young men in their mid twenties. The younger the player, the greater the risk becomes because their brains and skulls are still developing. Thus, there is more room for brains to move around when trauma occurs and less protection provided by the skull. A baby has the greatest risk, but that developmental risk does not disappear until the brain and skull become fully mature, which occurs in the mid or late twenties for most people.
Preliminary research indicates that the risk of developing chronic traumatic encephalopathy (CTE), which is an insidious form of brain degeneration due to concussive impacts, appears to be extremely high for those who have played football for many years. According to a recent report in the Washington Post, “96 percent” of the brains of deceased National Football League (NFL) players tested in “collaborative” research by the Department of Veterans Affairs and Boston University revealed the presence of CTE.
Perhaps more startling “79 percent” of the brains of all deceased football players, which included many who were not in the NFL, but who played “semipro, college or high school football,” tested positive for CTE. That research also supports the observational conclusion, particularly from following boxers, that brain damage from repeated concussive impacts is cumulative. This cumulative impact when combined with the fact that the younger the person is the greater the impact is likely to be makes football an especially dangerous sport for younger players.
For years the NFL responded to this long-term threat to that sports existence by denying that a brain trauma problem existed. More recently the NFL has been trying to deflect growing concerns by funding brain injury research and encouraging youth and high school football programs to teach proper tackling techniques. Such tackling techniques undoubtedly make football somewhat safer with regard to head and neck injuries, but this incremental improvement provides limited protection. With or without better tackling football is an inherently dangerous sport that depends on violent contact by extremely large, strong, and fast athletes to be played well. Those risks increase for younger players and the longer a person plays the sport.
Many people, especially boys and men, will continue to watch football on television. It is compelling viewing for many and generates more revenues than any other sport in America, including from various forms of sports gambling. Football continues to be the national pastime for American men. Nevertheless, more and more parents are turning to other less dangerous sports for their children. As a result, significantly fewer kids participate in youth and high school football than in years past. Soccer appears to be the greatest beneficiary of that change.
Like military service, though, there appears to be a socio-economic component involved in football’s declining participation levels. Kids from lower socio-economic backgrounds and their parents still often view football as a golden opportunity for celebrity, a college scholarship, and a lucrative professional career. Children from wealthier environments have more academic opportunities and smoother career paths making football with its inherent risks less attractive.
This all begs the underlying health-related question, however, about the age at which children should be allowed to practice and play tackle football, even if their parents or guardians give consent, and, if so with what types of restrictions or limitations? The only other activity that adolescents legally engage in that appears to be as dangerous as football is driving a car. Generally 16 is the minimum age for a child to get a drivers license and usually there are many strings attached. In many jurisdictions 15-year-olds can begin learning to drive a car accompanied by an adult. Yet, due to developmental immaturity, which encourages risky behaviors and bad decisions, drivers under the age of 21 still get into a much higher percentage of accidents and sustain a greater percentage of injuries than older drivers.
For different developmental reasons,16 also would appear to be a sensible age for boys—and the very occasional girl—to be allowed to begin playing and practicing full-contact football. Children younger than that could learn many of the skills of football, but without tackling and other bodily contact. At the same time, high schools that sponsor football teams should be obligated to educate children who are interested in playing football and their parents about the health risks.
Clearly many developmentally immature male athletes, if they are allowed to make the decision themselves, will opt to play football, especially after hearing slick messages from their prospective coaches, youth football promoters, and the NFL. Health risks, especially those that may not become apparent for many years are likely to be discounted even if they are known. It seems reckless to leave it to the coaches to provide the message about the benefits of football without fully informing prospective players and their parents about the health risks and what can be done to reduce those risks to acceptable levels.
In addition, those who sponsor youth and high school football should be held to higher and stricter standards to ensure that everything is being done to protect the health and safety of these young players, including the implementation of protocols for identifying and assessing on-the-field concussive impacts during practices and games. This should begin with comprehensive medical exams to determine whether youngsters are healthy strong, and big enough to play the sport safely and they have had concussions or concussion-like symptoms in the past. Such comprehensive exams should be conducted on a regular basis throughout their football playing days with an emphasis on establishing baselines to detect any symptoms of cognitive impairments or other brain damage.
Military Recruitment and Combat
Military recruitment and training are activities that implicate both facets of developmental immaturity: diminished cognitive abilities to make a reasoned judgment about enlisting; and activities that place immature brains in situations which substantially increase the risk of cognitive damage from repeated concussive impacts. Fundamentally military recruitment is intended to exploit developmental immaturity in order to persuade young people, especially males, to enlist. Such propaganda is deemed desirable because our national security depends on conscripting soldiers for our all “volunteer” military. Boys and girls may sign up for combat as young as 17 if they have their parents permission, and 18 otherwise.
At that age many of these recruits are too young to adequately appreciate what they are signing up for and too impressionable to properly interpret the propaganda messages. No matter how ill-advised and one-sided the current war or conflict may be, it is always described as defending the United States and our way of life, while the soldiers who participate are heroes to be celebrated at various sporting events by those who prefer not to have to fight. When they return from combat too many of these soldiers have been permanently harmed and lack the services they need to be reintegrated into society. For them substance abuse and/or homelessness are their likely futures. Yet, all of this is glossed over in the recruitment advertisements and pitches to convince these impressionable young men and women that they are making rational life decisions when they join up.
See the world. Learn a trade. Save for your post-military education. Make a difference. Be a hero. These are the pitches. What is missing is an honest discussion of the realities and consequences of being in combat, much less an objective explanation about the politics behind the types of wars and conflicts these recruits will be expected to fight.
There is a reason why before the end of the Viet Nam war politicians became convinced that a military draft was counterproductive. Opposition to the draft by mainstream America had become overwhelming and it was strongly felt that the U.S. could meet its need for soldiers through manipulative advertising and various economic incentives instead. Thus, in January 1973 the historic change was made. Young men and later young women, most who either were not college material or lacked the resources to attend college, became the prime sources for enlistment, ROTC or the National Guard. The majority, including a vast majority of the kids in or heading for college, were protected. Thus, military recruitment became targeted at kids from more disadvantaged backgrounds who because of their developmental immaturity, lack of information, and economic needs would be more likely to enlist.
If young recruits were given an accurate picture of what military service would be like, especially the nature of modern combat, it is very likely there would not be enough volunteers to meet the United States’ military objectives. This probably would lead to the reinstitution of a military draft or institution of a national service requirement, which would include serving in the military. Instead, we have decided to allow our armed forces to manipulate young minds before they become old enough to fully appreciate the risks that they are assuming. This discriminatory deception is done in the name of national security. The realities of war are camouflaged by the glory of combat, analogies to sports and athletics, and career opportunities that often do not exist.
The strategy to persuade young people with still immature minds to enlist is compounded by the fact that because their bodies are still developing they are more susceptible to permanent brain damage and mental disabilities from various head traumas that result not only from combat, but also from military training. That training is designed to allow young soldiers to experience concussive impacts before they do so in combat, even though the damage accumulates each time the soldier is concussed or his or herbrain is rattled. There remains a belief that soldiers, like football players, need to receive training that toughens them up so that they can more easily carry on after they have been concussed and physically and mentally traumatized in combat.
As a recent New York Times article pointed out, despite the high risk of head trauma from boxing, all of the military academies still make boxing a required class for cadets and midshipmen, male and female alike. According to the “director of physical education at West Point…, `[w]e want to expose them to fear and stress and teach them confidence to respond.’” Thus, it should not be surprising that given the age of the recruits, the training methods that are employed, and the hazards of modern combat, permanent brain damage and an assortment of severe mental disabilities have become a common outcome for veterans and members of the military.