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Youth justice policy implications

A serious problem
Legal systems, particularly criminal legal systems, are a serious hurdle for youths with acquired brain injury (ABI). ABI, defined as disruption of brain function as a result of an external injury or illness, can impair the cognitive and behavioral functions kids need to successfully communicate. For example, these kids might have delayed or slow responses to questions, which could make them unable to keep up with a judge’s questions. They might have difficulty explaining themselves, which could lead to inconsistent narratives when talking to police. Or they might not be able to use inferences to understand implied meaning, which could make them agree to a plea deal they don’t truly understand. Furthermore, courts and legal professionals generally don’t identify or accommodate ABI, so there are major risks that a youth’s brain injury will be mistaken for a bad attitude or disrespectful behavior. As a result, youth with ABI end up being overrepresented in criminal legal systems––estimates suggest that as many as 70% of youth in criminal legal systems have a history of ABI. This criminalization can make the cognitive and behavioral effects of brain injury even worse. It can also compromise the youths’ access to fair and equitable legal procedures and legal outcomes.

Global Consensus

International legal bodies, scientists, and clinicians all agree: traditional juvenile justice systems do more harm than good for youths with ABI. UNICEF recognizes the potential for trauma and harm within child legal systems and emphasizes the need for child-sensitive justice. The WHO’s International Classification of Functioning, Disability, and Health expressly defines health and well-being within the context of social environment and functional activity. Similarly, the UN’s General Comment No. 7 on the Convention of the Rights of Persons with Disabilities, issued through the UN Committee on the Rights of Persons with Disabilities, states the need for individual autonomy and active participation of children with disability within social-legal environments. Finally, the UN’s General Comment No. 24 on children’s rights in the child justice system (one of the few examples of the UN updating its own comments to reflect new knowledge and new practices) specifically states

Children with developmental delays or neurodevelopmental disorders or disabilities (for example, autism spectrum disorders, fetal alcohol spectrum disorders or acquired brain injuries) should not be in the child justice system at all, even if they have reached the minimum age of criminal responsibility.

​​-General Comment No. 24, UN Committee on the Rights of the Child

This broad consensus underscores the need to reexamine legal systems to better accommodate children–and underscores the notion that children with ABI shouldn’t be in criminal legal systems in the first place.

Reimagining the Law

Youth with ABI need therapeutic and rehabilitative support, not criminal punishment. Historically, punishment and deterrence were two major justifications for criminal legal systems, but policy makers increasingly recognize that these justifications aren’t logical for children because they don’t act and think like “normal” grown adults. Empirical data overwhelmingly show that getting kids support, treatment, or rehabilitation leads to better long-term outcomes and less subsequent involvement with the law, and this is especially important for kids with ABI. Recognizing that brain injury 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.

Interdisciplinary Approaches

Youth with ABI don’t live and act in a legal vacuum. Social factors like education, community health, welfare policies, can increase the risk of ABI and adverse childhood events. These same social factors can interact with additional factors such as race and gender identity. They can also lead to poorer-quality physical and mental health outcomes and social outcomes. Those same health and social factors also affect how kids interact with legal systems. Increasingly, courts are recognizing the need to coordinate with other professionals and other services to address those factors. Specifically, this requires systems integration and support for system navigation. Intersectoral and interdisciplinary approaches to youth justice can help kids with ABI integrate the different pieces of their social lives. Intersectional problems require intersectional solutions. We hope this project will be a starting point for any and all professionals whose interdisciplinary work supports youth and helps youths navigate legal systems. If we can better understand how brain injury and the youth legal system interact, we can begin to improve outcomes and build better systems.
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This website has been developed by the TBI and Justice Lab at McMaster University and all information of any kind that is made available on or through this website is provided for general information purposes only and should not be taken as medical advice, diagnosis or treatment recommendations. No information made on or through this website is intended to be a substitute for consultation, diagnosis, treatment, care, or advice provided by licensed health care or other professionals. Although the information made available or through this website is reviewed carefully, it may be out of date and its accuracy or utility is not guaranteed. For more information, please visit our Terms of Use.

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