Three Opportunities for the Future of Juvenile Forensic Assessment

Abstract

Legal and social circumstances now offer the field of juvenile forensic assessment several opportunities to expand its identity, influence, and value to society. These opportunities include (a) conceptualizing an assessment domain called evaluations for developmental sentencing, (b) creating developmental forensic evaluations of emerging adults, and (c) adapting juvenile forensic assessments to the nation’s increasing ethnic and cultural diversity. If successfully attempted, these opportunities could transform juvenile forensic assessment’s identity, reimagining itself as developmental forensic assessment applied to offenders in both juvenile and criminal courts.

Keywords

Juvenile forensic assessment development sentencing transfer criminal ethnic cultural offenders

Psychosocial evaluations for juvenile courts began a century ago, but most of the current identity of juvenile forensic assessment developed in the past two decades. The field has flourished in the context of a recent nationwide reform in juvenile justice policy fueled in part by advances in developmental and neuroscience research (Levick & Feierman, 2016; Scott & Steinberg, 2008). Juvenile justice policies increasingly recognize developmental factors related to juvenile offending (National Research Council of the National Academies, 2013).

Juvenile forensic assessment has kept pace with these developments. The field now offers evidence-based concepts, methods, and tools to inform decisions about adolescent offenders such as their legal competencies, recidivism, rehabilitation, and relevant behavioral health and trauma conditions (see generally, Grisso, 2013; Heilbrun, DeMatteo, & Goldstein, 2016; Salekin, 2015). Yet we are at a juncture that offers new opportunities as well and ways for the field of juvenile forensic assessment to grow during the next 20 years.

Three of those opportunities are described in this essay. They are discerned by examining emergent trends in juvenile and criminal justice law and policy, as well as broader societal changes. What are these opportunities, and how can we best begin to pursue them?

Structuring Evaluations for Developmental Sentencing

Four recent U.S. Supreme Court cases have reformed the sentencing of juveniles in criminal court, prohibiting the death penalty and restricting the option of life without parole (Graham v. Florida, 2010; Miller v. Alabama, 2012; Montgomery v. Louisiana, 2016; Roper v. Simmons, 2005). In these cases, the Court explained that children are different when it comes to justice system penalties because their developmental immaturity relative to adults reduces their culpability and increases their potential for rehabilitation. The Court described several ways in which young people’s immaturity is relevant: (a) decisional immaturity (e.g., risk-taking, impulsiveness, and less mature appreciation of consequences), (b) dependency that reduces their ability to avoid negative influences on their lives (e.g., abuse, trauma, peer influences), (c) the potential effects of those characteristics on their charged offense, and (d) their greater potential for rehabilitation (Levick & Feierman, 2016; Scott, Grisso, Levick, & Steinberg, 2016).

In Miller v. Alabama (2012), addressing sentences in juvenile homicide cases, the Court required that sentencing must weigh the above developmental factors in each individual case. This has created a new forensic evaluation task called “Miller evaluations,” for which some sources now provide guidance (Grisso & Kavanaugh, 2016; Heilbrun, DeMatteo, King, & Filone, 2017; Kavanaugh & Grisso, in press).

The Court’s logic, however, offers potential to go beyond Miller evaluations in homicide cases to create a new assessment domain, derived from Miller, but conceptualized more broadly as evaluations for developmental sentencing. This domain could include evaluations for all criminal court sentencing decisions involving juveniles, not just homicide, as well as evaluations for juveniles’ discretionary transfer (waiver) to criminal court and reverse transfer in states providing for mandatory transfer to criminal court for serious offenses.

Several considerations support the application of Miller factors and their evaluation to this broad range of legal cases. Miller’s language did not limit its logic to homicide cases alone. It is potentially applicable to any criminal court sentences for any crimes by juveniles (Levick & Feierman, 2016; Scott, 2013). Miller’s criteria also have potential for application in discretionary transfer (waiver) hearings in juvenile court and reverse transfer in criminal court. Transfer, although not involving a sentence, is a decision that a juvenile should be tried in a court that will apply adult rather than juvenile sentences. Transfer standards have long asked courts to address concepts resembling Miller’s concerns, such as “sophistication and maturity” and “amenability to rehabilitation.” Framed in the 50-year-old language and traditions of Kent v. U.S. (1966), however, those concepts have been notoriously difficult to define (Grisso, 2013; Heilbrun et al., 2017; Salekin, Yff, Neumann, Leistico, & Zalot, 2002).

Could we begin to develop a unified set of psycholegal concepts and assessment methods that would serve both criminal sentencing of juveniles and transfer evaluations? This new domain of evaluations for developmental sentencing would comprise (a) a set of developmentally and legally informed psycholegal concepts centered on the Miller criteria, (b) models for integrating available evidence-based data to address relevant immaturity in sentencing and transfer hearings, and (c) to the extent possible, the development of specialized forensic tools related to those concepts.

We have resources to provide a starting point (e.g., Heilbrun et al., 2017; Kavanaugh & Grisso, in press; Salekin, 2004; Salekin, MacDougall, & Harrison, 2016). Most important, we have much basic research on developmental immaturity and decision-making to provide the empirical foundation for such an enterprise (for reviews, see Luna & Wright, 2016; Shulman & Steinberg, 2016). We have many validated tools with which to compare a youth with other adolescents and adults on clinical factors of relevance in developmental sentencing and transfer analyses, as well as tools to assess rehabilitation potential (e.g., risk–needs–responsivity tools).

More challenging will be creating assessment tools addressing specific features of Miller’s decisional and dependency immaturity. For example, developmental research has used tools that assess impulse modulation and planning when engaged in decision-making (e.g., Tower of London, Go/No Go tasks). Research also has used a variety of self-report tools for assessing risk-taking, impulsiveness, and sensation-seeking. However, most of those methods have not been validated or normed for use in clinical or forensic situations and populations.

A note of caution is warranted while we consider whether to develop a domain of evaluations for developmental sentencing. Will the justice system continue to employ juveniles’ diminished culpability in adult sentencing during the coming decades? As Slobogin (2016) has pointed out, the new developmental perspective could lead to different futures. For example, developmental logic concerning the ineffectiveness of transfer and adult sentencing for reducing juveniles’ recidivism could lead to the elimination of those legal practices altogether.

Creating Evaluations for Emerging Adults in Justice Systems

Adolescence was recognized as a developmental stage early in the 20th century. One hundred years later, emerging adulthood has the developmental spotlight. Developmental neuroscience and psychological research on risk-taking and decision-making now provide evidence that 18- to 24-year-olds as a group are more mature than adolescents, yet, in important ways, less mature than other adults (e.g., Cohen et al., 2016; for a review, see Scott, Bonnie, & Steinberg, 2016). Added to the picture are modern shifts in specific social demands associated with young adulthood—employment identity, making long-term interpersonal commitments, and futures more dependent on advanced education (Arnett, 2000).

Rates of offending rise through adolescence to their highest rate at about 20 to 22, then fall off markedly (for concise reviews, see Bersani & Eggleston, 2018; Russell & Odgers, 2016). This reinforces the hypothesis that emerging adults’ offending is in part related to completion of a process of maturation (Bersani, Nieuwbeerta, & Laub, 2009). Moreover, some appellate courts have applied Miller’s criteria when reviewing sentencing of emerging adults convicted of serious crimes committed beyond juvenile ages (e.g., Sharp v. State, 2014; State v. O’Dell, 2015).

In this context, a science-based argument has evolved for developing a justice system response to emerging adult offenders that employs the developmental perspective of juvenile justice (Scott et al., 2016). Justice systems in the U.S. currently are experimenting in several ways with modifications of laws, policies, and practices for emerging adults (Schiraldi, Western, & Bradner, 2015). Within criminal justice, some states are initiating special developmentally informed diversion, sentencing, rehabilitation, and community reentry efforts for emerging adults that do not apply to older adults. Within juvenile justice, some reforms are extending the juvenile system’s jurisdiction to 21, thus applying its developmental perspective to emerging adult offenders.

If these changes in policy proceed, what will be the opportunities for juvenile forensic assessment? One option is an expansion of the field’s domain to include forensic evaluations of justice-involved youth through age 21. Juvenile forensic assessment’s traditional application of developmental concepts to assessment practices makes it better prepared than adult forensic assessment to evaluate emerging adults as a group conceptualized as still maturing.

Accepting this opportunity, however, would require significant research to build an evidence base for assessments of this population of still-developing offenders. First, juvenile forensic assessment’s current evidence-based structured tools have been developed for young people less than 18 years of age. Some of those methods might be valid for emerging adults, but we will be unsure until we do research to determine that (e.g., Vincent, Drawbridge, & Davis, 2019). What we find might lead us to modify existing juvenile assessment tools to be appropriate for the psychosocial and rehabilitation concerns of emerging adults, which are different in some ways from those of adolescents.

Second, we might consider the degree to which adult assessment tools are or are not as valid for emerging adults as for the rest of the adult offender population. For example, adult risk assessment has always included emerging adults within its evidence-based assessment efforts, but it has rarely considered that emerging adults’ relatively less mature developmental status might result in less valid or less helpful assessments than for older adults (e.g., Monahan, Skeem, & Lowenkamp, 2017). Research of this kind might lead us to modify adult assessment tools using developmental logic to improve their validity for emerging adults.

Adapting Juvenile Forensic Assessments to Cultural Diversity

Although we have been alerted (Weiss & Rosenfeld, 2012), we have done little to prepare for practice within a nation of increasing racial, ethnic, and cultural diversity. Today, more than one half of children in the United States who are younger than age 15 are Black, Asian, Hispanic, or of ethnic identification other than European White. This will be true for the general U.S. population in a little more than 20 years.

Racial disparity in certain risk assessment tools is currently under scrutiny (Picard, Watkins, Rempel, & Kerodal, 2019), but race is only the first layer in describing our nation’s diversity. All groups identified by race are heterogeneous in ethnicities and cultures. Ethnic identifiers like Hispanic or Latinx include widely differing cultures. In addition, within ethnic and cultural groups, some youth and their families have recently immigrated, while others have a multigenerational U.S. history. Some have retained their distinctive cultural roots, while for others acculturation obscures their ancestral cultural heritage.

Our young offender population of the future increasingly will reflect this diversity. Rates of offending among youth who immigrate with their parents are relatively low, but the rate increases among second-generation immigrant teenagers born to immigrant parents after they arrive here (Bersani, 2014). This offers no reason to expect an increase in delinquency rates due to immigration, but rather an increase in the cultural diversity of youth we evaluate.

What are the implications? Developmental concepts on which our assessments are based are likely to serve us well across cultures, but there are cultural differences in their expression. For example, a study of adolescent development in 11 nations around the world (Steinberg et al., 2017) found a similar age-related pattern across nations in the development of sensation-seeking and self-regulation. But there were also national differences in the degree to which these universal characteristics of adolescent development were expressed, so that sensation-seeking as well as risk-taking (Duell et al., 2018) were normatively greater among adolescents in some countries than in others.

Similarly, cultural differences arise on the tools often used for juvenile forensic assessments. For example, Achenbach and Rescorla (2007) found substantial differences in Child Behavior–Checklist scores across nations around the world. Studies in juvenile detention centers in the Netherlands report remarkable differences between Dutch native, Moroccan, and Surinamese youth on standardized self-report mental health screening tools often used in the United States (Colins et al., 2013; Veen, Stevens, Doreleijers, van der Ende, & Vollebergh, 2010). These differences may represent actual cultural differences in the behavior, trait, or disorder being measured. But they might also be due to cultural differences in (a) the way in which psychopathology is expressed, (b) latent meaning of test items, or (c) culture-based differences in self-expression (response style) during testing. Effects of these factors can translate into differential validity and culture-based bias in our forensic decisions. Australia and Canada recently have seen an up-tick in successful court challenges to the use of forensic assessment tools with persons belonging to cultural groups for which the tests were not validated (e.g., Director of Public Prosecutions for Western Australia v. Samson, 2014; Ewert v. Canada, 2018).

How can we best promote a multicultural perspective in our use of diagnostic and forensic tools when assessing juveniles’ legal competencies, risk of recidivism, and rehabilitation prospects? Hart (2016) addressed this problem in the context of adult actuarial risk assessment tools. An actuarial approach to validation locks in any bias that may exist when these tools are validated with biased criteria or are used with cultural groups other than the population on which they were validated. Testing their validity with all relevant ethnicities and cultures in our future juvenile justice population, or creating specialized actuarial tools for each group, would likely be difficult.

An alternative is to explore the potential for tools developed with the structured professional judgment (SPJ) model (Hart, Douglas, & Guy, 2016). The SPJ model uses evidence-based items to guide clinicians’ collection of data relevant to the tool’s purpose, then allows for clinical discretion regarding how to apply the information to arrive at a judgment about the diagnostic or forensic question the tool addresses. Although not immune to bias, SPJ tools are not subject to the internal, actuarial sources of bias associated with empirically derived tools (Hart, 2016). Could we use this approach to develop tools that guide clinicians to assess relevant cultural characteristics of youths in juvenile forensic assessments?

It may be feasible to embed clusters of items in some of our current juvenile SPJ tools to inquire about cultural identity, acculturation, and beliefs about cultural customs with relevance for the tool’s forensic question. Another approach would develop supplemental tools: semistructured, but rate-able interview tools to acquire culturally relevant information alongside our existing forensic tools. The field of multicultural assessment has produced an impressive array of nomothetic and ideographic tools, some of them applicable across ethnicities and cultures, for assessing important cultural variables relevant for clinical and diagnostic decisions (Ponterotto, Gretchen, & Chauhan, 2001; Suzuki & Ponterotto, 2008). Some of these might be useful in juvenile forensic assessment. But juvenile forensic objectives often require questions not addressed by these general cultural assessment tools: for example, cultural differences in family relations, perceptions of illegal behaviors, the role of peer associations, and beliefs related to justice and law enforcement systems. The objective could be a suite of specialized culture-based tools for each of the field’s major clusters of forensic assessment—juveniles’ legal competencies, risk and risk management, and rehabilitation potential—relying on an SPJ approach to their application by clinicians.

Concluding Comments

Accepting the three opportunities described here could have fundamental implications for the identity of the field of juvenile forensic assessment. First, although the opportunities have been described independently, the reflective reader will easily identify their intersections. If all three are pursued, this would promise a rich tapestry of possibilities for the evolution of the field.

Second, accepting the first and second opportunities—developmental sentencing and extension of the field to emerging adults—takes the field well beyond its traditional purposes. For the past 100 years, juvenile forensic assessment has been construed, driven, and labeled as a service focused entirely on juvenile courts, a mind-set that these two opportunities contradict. During the next 20 years, might juvenile forensic assessment shed its exclusive identification with juvenile court jurisdiction, thereby reimagining and relabeling itself as developmental forensic assessment?

Footnotes

Thomas Grisso, Ph.D., is Emeritus Professor at the University of Massachusetts Medical School. His research and consultation, spanning four decades, have made contriutions to forensic assessments of adults and juveiles, conceptualization of legal competencies, and developmental systems reform in juvenile justice.

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