Policy Framework and guidance
for TBI, Youth, and Criminal Legal Systems
Children with developmental delays or neurodevelopmental disorders or disabilities (for example… brain injuries) should not be in the child justice system at all, even if they have reached the minimum age of criminal responsibility. If not automatically excluded, such children should be individually assessed.
International legal bodies, scientists, and clinicians all agree that juvenile justice systems do more harm than good for young people with TBI.
- TBI can impair the cognitive or behavior functions young people need to successfully participate in legal proceedings.
- Courts and legal professionals generally can’t identify or accommodate TBI.
As a result, traditional juvenile courts are unable to offer the therapeutic and rehabilitative support that young people with disabilities need. Young people with TBI end up being over-represented in criminal legal systems.
Recognizing this, the Youth TBI Justice Project emphasizes the need to treat youth with TBI in a manner that is as structural, inclusive, and rehabilitative as possible.
We advocate for two primary policy components:
Historically, punishment and deterrence were two major justifications for criminal legal systems. However, policy makers increasingly recognize that these justifications aren’t logical for young people because young people don’t act and think like “normal” grown adults. Empirical data overwhelmingly shows that getting kids support, treatment, or rehabilitation leads to better long-term outcomes and less subsequent involvement with the law. This is especially important for kids with cognitive-behavioral limitations associated with TBI. Recognizing that TBI affects social cognition and social behavior also means recognizing that conventional legal approaches don’t serve the youth, the system, or society as a whole.
To that end, we advocate for greater options for diversion, treatment, and education instead of conventional (punitive) criminal justice approaches. Like the UN, we believe that youth with TBI shouldn’t be in the criminal legal system in the first place: such children should be diverted out of the system as soon as possible and placed in the care of community-based providers who can ensure that the child’s needs (medical, social, or cultural) are met. We further believe that, although reform-based accommodations may produce better outcomes, the priority should be upstream targets of social behavior. Financial resources should be reallocated to social programs and services that can directly address the root causes of social determinants of disability such as housing, education, and social welfare programs.
Social factors like education, community health, and welfare policies can increase the risk of TBI. They can also lead to poorer-quality health and social outcomes for kids with TBI. Those same social favors also affect how kids interact with legal systems, and courts can help manage those factors. Recognizing the intersections among the law, the youth, and the community means recognizing that young people with TBI don’t live and act in a legal vacuum. Multiprofessional approaches to youth justice can help kids with TBI integrate the different pieces of their social lives.
To that end, we advocate for collaboration between actors of the legal system and other TBI– and youth-oriented professionals. Only when community, healthcare, scientific, and cultural viewpoints are integrated into the legal system’s decision-making algorithms can diversions or accommodations allow young people with TBI to escape from the system (or avoid it altogether). Such an approach also helps guarantee that the social determinants of legally proscribed behavior are addressed in the first place.
Ideally, such multi-professional collaboration will obviate the need for juvenile legal systems in the first place. Again, we believe that the ultimate goal should be not to reform systems that are fundamentally antithetical to the needs of young people with TBI, but rather to repurpose the resources in order to build systems that are intentionally designed to support a young person with TBI’s biopsychosocial needs.
We hope this project will be a starting point for young people, legal professionals, clinicians, and scientists who navigate youth legal systems. If we can better understand how neurodisabilty and the youth legal system interact, we can begin to improve outcomes and build better systems.
Our policy aims are generally consistent with initiatives and guidelines put forth by international bodies who seek to improve human welfare, especially children’s. The following (non-exhaustive) list of policy guidelines provide additional framework and information:
United Nations: Convention on the Rights of the Child
United Nations: Convention on the Rights of Persons with Disabilities
United Nations: Convention on the Elimination of All Forms of Discrimination against Women
UNICEF: Reimagine justice and end child detentions