I’m a Judge - What do I need to know?
What a Judge Needs to know
- If you’re a judge or magistrate who works with youth, chances are good you’ve already interacted with someone with a neurodisability: Neurodisability is pretty common in legal contexts (~ 50% averaged across types of injury or disability). Recent evidence published in the Lancet identified that among youth in the criminal legal system, 50% have a Traumatic Brain Injury (TBI), 30% have Attention Deficit Hyperactive Disorder (ADHD), and up to 36% have Feotal Alcohol Spectrum Disorder (FASD). https://pubmed.ncbi.nlm.nih.gov/31956016/
- Remember: Skill versus Will! Neurodisability frequently causes limitations to memory, executive functioning (decision-making, risk-weighing, etc.), communication and language use that can “look” like an attitude problem or a character shortcoming. In fact, certain types of neurodisability related to language, communication, and learning are routinely mistaken for “conduct disorders.” Don’t conflate ABI/neurodisability with malicious intent!
- ABI/neurodisability isn’t just a clinical or scientific condition: many of the social determinants of neurodisability are also social determinants of asocial behavior (examples: unstable housing, lack of educational resources, unsafe community environment). ABI/neurodisability is just as intersectional an issue as crime is.
- ABI/neurodisability often goes hand-in-hand with psychological disorders: up to 80% have mental health challenges. These disorders can confound behavior and further limit a child’s ability to navigate social-legal contexts. If you know a child has an ABI, but hasn’t been assessed by a psychology professional, do what you can to make the referral happen.
- Similarly, ABI/neurodisability often goes hand-in-hand with adverse childhood experiences (ACES) https://pubmed.ncbi.nlm.nih.gov/31956016/. ACEs cover a broad range of stressful or traumatizing events, including: physical or psychological abuse (either of the youth themselves or of another close person); abandonment; the loss of a family member; housing, food, or education insecurity; exposure to racially motivated violence or discrimination; conflict or war; and environmental disasters. Up to 96% of youth in criminal legal systems have experienced an ACE, so ACEs are very much the norm, not the exception.
- Neurodisability doesn’t necessarily need a formal medical diagnosis; in fact, many of the youth you encounter will not have a formal diagnosis. The WHO’s model––which is increasingly becoming the gold standard––treats neurodisability as a biopsychosocial phenomenon arising from the interaction between the youth’s neurobiological status, their individual factors, and the external context. You don’t need to diagnose or cure a youth with neurodisability; you just need to accommodate them.
- If decades of scholarship and study have made one thing clear, it’s that punitive or deterrence justifications for (criminal) legal systems simply aren’t appropriate for kids with neurodisability (or kids in general!). Appellate courts around the world, including the US Supreme Court, are beginning to formally recognize that the system shouldn’t treat kids the way it treats adults; for kids with ABI/neurodisability, the goal is rehabilitation. To whatever extent you can, work towards a rehabilitative outcome (e.g., therapeutic jurisprudence).
- Finally: the onus is on you, the adult legal actor! You have all the authority, knowledge, and experience. This gives you a huge cognitive-behavioral advantage over a youth, and that advantage is even greater for youths with ABI/neurodisability. Even small accommodations in your actions, your communication (keep it simple if you can, pause, allow the youth the opportunity to let you know if they aren’t following or understanding), and setting can make a big difference.
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