Emily Buss, "Are We Raising Criminals in Juvenile Court?"

Presented by Emily Buss, Mark and Barbara Fried Professor of Law, at the University of Chicago Law School's reunion on April 30, 2016.

Introduction by Geoffrey Stone, JD'71, Edward H. Levi Distinguished Service Professor.

Transcript

Speaker 1 (00:00:02):
This audio file is a production of the University of Chicago law school. Visit us on the web at www.law.uchicago.edu.

Geoffrey Stone (00:00:20):
So if any of you doesn't know me, I'm Geoff Stone and I'm here with the responsibility and the privilege of introducing our speaker this morning. During reunion weekend, the law school often has these masterclasses in which the goal is to give our alumni an opportunity to be exposed to one of our faculty members and to get a sense of the kind of work that they're doing and what it's like a little bit to be, you know, in their intellectual realm. And this morning we're offering two of these. Professor David Strauss is doing one on constitutional interpretation and I'm here to introduce our speaker Professor Emily Buss. So Emily graduated from Yale where she got her undergraduate degree summa cum laude and she got her law degree from Yale law school.

Geoffrey Stone (00:01:19):
She then served as a law clerk to judge Louis Pollak on the United States District court and then she was a law clerk to Justice Harry Blackmun on the Supreme court of the United States. After that, she worked in the juvenile justice area representing issues involving children's rights. In Philadelphia, she was the deputy director of the juvenile law center and then in 1996, she joined the faculty here at the University of Chicago law school. Emily is a wonderful scholar, teacher, and colleague. I, by coincidence, had dinner with a couple of students the other night and I asked them "who are your favorite professors?" And all four of them named Emily. You were the only one named by all of the students, which is terrific. [Applause].

Geoffrey Stone (00:02:12):
And Emily, you will be talking with us on the question of whether our juvenile courts are raising criminals and you should know that she will talk for a bit and then there'll be time for questions. And if you don't have questions, she will call on you. Emily. [Applause].

Emily Buss (00:02:35):
Thank you, Geoff, and good morning and welcome back. Thank you all for coming. I wondered what a masterclass meant, I thought it meant I should call on you. But I won't, I will resist not even for old time's sake. But you should feel free- we do have a period. I'll make sure there's a period of time for questions and comments at the end, but I also welcome them if something really strikes you while I'm talking. I'm happy to let you let me know and I will try to respond. Inevitably, in this kind of a fairly short period of time, I'm going to be speeding pretty quickly through some ideas that are actually not things to be speeded through. So flag for me, things that aren't making sense that you want to hear more about. So I want to start with giving you a little bit of context.

Emily Buss (00:03:25):
So my core focus of my scholarship is on the intersection between child and adolescent development and loss. In that sense, it's interdisciplinary and sort of interested in thinking about how we can apply increasingly sophisticated understandings of development to law. Recently, I'm sure you're all aware, the Supreme court has endorsed and really embraced the value of an understanding from social science and also neuroscience of young people. Focusing particularly in the criminal context, focusing on understanding what is different about adolescents and justifying determinations in the criminal context that young people are less culpable. The court concluded first in Roper v. Simmons, which was the juvenile death penalty case. And then, and swiftly thereafter, a series of cases addressing life without parole and concluding again, based on developmental science, that the context in which it was appropriate to impose life without parole for offending juveniles, by those under 18, should be very, very, very rare indeed.

Emily Buss (00:04:40):
The court has also expanded the analysis in the criminal procedural context, concluding that police officers need to take age into account as one of the relevant factors in thinking about whether someone is in custody for purposes of a Miranda warnings. So these cases have all been very clearly grounded on, explicitly grounded on, what developmental psychologists have to say, what neuroscientists have to say. They have been applied by advocates and increasingly applied by court legislatures in other areas as well, particularly in criminal law. But in other areas affecting children as well. What do we know about childhood? What is different about childhood that justifies the different approach in law? I see this as largely positive. I mean, a topic for another day are some of the hazards, I think, associated with the approach. But I see a significant gap that is, I think, showing up even among the people who are most focused on thinking about what this intersection means.

Emily Buss (00:05:47):
So the focus of the analysis and the Supreme court's decisions and how they're applied is very much on the child as a special legal subject. Because of the difference in development, children are different. How do we therefore adjust the law in light of those differences, particularly differences in capacities to be true to those distinctions. In the context of criminal law, it's that we conclude based on these differences in their decision making capacity and how they engage socially and the like that they're less culpable for their criminal offending. So the gap I see is the failure to give attention to the law as a developmental agent. So understanding the law and legal processes and legal actors who are interacting with young people as effectors of development. They have an impact on development, positive and negative, right?

Emily Buss (00:06:45):
And that should be as much of a concern. And that's particularly of interest to me. It's particularly relevant for young people who are court involved. So those are young people who grow up in the child welfare system, foster care system, and young people who are accused of crimes as juveniles, both of those sets of young people. And for them, the juvenile court is charged with playing a very important role in planning for them making decisions that will have a very important impact. Where they live, what kind of education they get, I could go on and on. In short, juvenile courts are involved in raising children to some extent, right? So the title of the talk sort of wanted to flag both sort of thinking about that impact, potentially harmful impact that could come from the juvenile court's involvement, from the process and young people's experience in that process, but also to sort of flag the idea that there is a responsibility, a role, a child rearing role that is played by the juvenile courts. So interestingly enough, a totally different body of psychological literature that is not developmentally focused, but rather is in the social psychological literature has engaged the question of how individuals, not focused particularly on young people, actually focused largely on adults, how adults experience in the court process, their experience engaging with legal actors, affects their perception of legitimacy of law. And their commitment to their sense of obligation to obey the law and increasingly, also sort of an interest in exploring individual's interest in being collaborators with law enforcement. So this is under the general heading of procedural justice, there's a huge amount of literature on this topic.

Emily Buss (00:08:43):
Very little of it focuses on young people, but clearly it has very important implications for people who are still developing. Particularly, one of the major projects of adolescent is a development of identity and among types of identity that matter-- social identity. Who am I? With whom do I belong? What are my affiliations? What are my allegiances? Who is like me? Who am I different from? What communities am I in? What communities am I outside of? That is a core project for all adolescents, needless to say it probably sort of becomes immediately obvious for young people who are engaged in some amount of criminal offending. One of the big questions they're asking is to what extent does my community have anything to do with law enforcement, with legal compliance, right? Or to what extent am I defined in communities that see ourselves as outside the law or antagonistic to the law or defiant of the law.

Emily Buss (00:09:45):
So I became very interested in thinking about sort of what can we learn about that interaction and that experience for young people in juvenile court in particular. Largely because of all the attention appropriately being given to police-youth interactions and some real concerns with those interactions, there's a lot of attention being given to how those interactions could be changed in ways that would be developmentally valuable, or at least less developmentally harmful for young people. But very little parallel focus on the implications of those interactions in the other major legal contexts, in which these young people have experiences with the law, which is the juvenile court. Over the years, I've spent- just a little bit of background. I have spent a lot of time in juvenile court. Geoff mentioned that I was at the juvenile law center and before that legal aid in Baltimore.

New Speaker (00:10:50):
In both of those jobs, I was in juvenile court on a regular basis. I was a player. I'll talk a little bit about the interaction among the players in a bit, in that context. I was a lawyer for children in those contexts. Since, I've become interested in this exploring the developmental impact, thinking about the value and the significance of the experience of young people in court. I have done a lot of observations in juvenile courts. In Cook County, other courts that I could get to Wisconsin, Iowa. And of course, I've had this sort of ongoing experience. I've traveled to some places, including New Orleans to observe some courts. So lots of observation and in the context, in those observations, many with a number of students, have focused on the young people's experience.

Emily Buss (00:11:43):
So what can we learn about watching what's occurring and unfolding in court and how everybody's behaving in court that might tell us something about how this is being experienced by young people?, And I would say that across the board, the impression, and it is highly impressionistic, as you can hear from the description, is that the experience is quite powerfully a negative one for young people. And it's likely, again, this is all in the conjecture leading up to the project I am going to describe for you, likely negative in ways that will have an impact in terms of shaping young people's understanding of who they are, how they fit in this system. The system that is clearly displayed as a system of law. Okay. So as I said, I'm going to describe to you sort of how this general interest in this topic has led to a particular project I'm working with.

Emily Buss (00:12:43):
And I should say that it is a project that has pushed me just sort of the edge of my comfort zone as it has required me to use some methods that are very new to me. Social scientific methods, if anything, is familiar about your experience at University of Chicago, I hope it is that you were pushed to the edge of your comfort zone, right? We really believe in that and this is no exception. So I want to give you a sense of the project that developed out of this interest in thinking about the developmental impact of the legal experiences in juvenile court. As I focus on this description, I want to be clear about where we are in the juvenile court process. So we're focused on what is called disposition and post-dispositional reviews. The disposition, the closest equivalent in the adult system is sentencing.

Emily Buss (00:13:33):
Why that focus? A couple of reasons. One is almost always cases plead out. So the thrust, the core experience in juvenile court is at the time when the court is determining, you know, okay, "you've admitted doing this. There's been an adjudication now, what follows, right?" And in the juvenile court there often is this repeated ongoing review. So it's not a one time, a one time thing, but sort of an ongoing process of review. The other reason is that it is at disposition that the court under law, in all the states, has an obligation among other things to be providing for, ensuring through its order and its oversight, that the young person is getting support in growing up in a way that aims for prosocial successful development. We've identified a serious problem in the form of the criminal offending.

Emily Buss (00:14:29):
We respond and hold you accountable. And we respond and we take into account community safety, but we also are obligated under the law to facilitate a successful transition to adulthood. To do what is within the power of the state to make that happen. So those are the sort of two reasons that it is so important, I think, in thinking about the development experience to focus on the dispositional stage. So I said, generally, it would be an observation. It appears to be very negative. Let me say a little bit about the developmental projects of adolescence and then sort of give you an account of what we see in these court hearings that suggest we should be concerned. I should say. It's very challenging to describe what we see.

Emily Buss (00:15:18):
The ways things go awry, it's very easy to see if anybody ever wants to come with me and observe juvenile court. You know, this has happens again and again with students. Very little time in court sort of led to an appreciation of these issues. But I'll do my best to, in a small number of words, capture a description of the problem. But first the developmental projects. So one of the important developmental projects of adolescence, well, all of were once adolescents, some of you may have or had adolescents, you know that the importance of developing skills to make decisions for yourself that will have important consequences in your own life and the life of others is a big part of adolescence, right? You're starting to pull back as a parent, a young person in a typical, sort of happy, situation, things are going pretty well.

Emily Buss (00:16:10):
Upbringing gets a lot of support from adults in school, in home, in whatever activities they are involved with to make decisions, to learn from the mistakes, have a soft landing on the mistakes, to get support to move forward as as adolescents develop those extremely important skills in transitioning to adulthood. That's one. The other I've already eluded to, but this idea that it is a key time for developing an understanding of who one is as an individual. What matters to me? What am I like? But also socially, right? This is this core idea that I already mentioned. It's the core work on this goal happens in adolescence. The hearings in juvenile court are obviously, you know, you'd say, "Oh my gosh, we have to depend on the hearings in juvenile court to raise children!

Emily Buss (00:17:06):
We need to really worry. What are we talking about?" We're certainly not suggesting, I'm certainly not suggesting that this is the only place that development should occur. But for these young people, the other opportunities for structured supported development in these areas are largely non-existent or negative. So you might say whatever else you try to do, you know, the obligation of government when it engages is not to do more harm and ideally to even facilitate that positive development to do what it can. So what do we see when we observe in juvenile court thinking about those projects, developing decision making ability and learning where I fit in? Who am I with? Who am I different from and alienated from?

Emily Buss (00:18:02):
So decision making, and it's powerful decision making, it's important decision making about all sorts of things that will matter a great deal for the young person, entirely outside the hands of the young person. Most of it occurs outside of court. What happens in court is done in a kind of rapid fire combination of sort of jargon and litany of lists. These are repeat players who think they know the drill. It's hard to avoid speeding through the drill. They do it again and again, a huge amount is done by agreement already so it's just reporting to the court. If there are decisions to be made, it's sort of "it's this rather than that." And we all know what we're talking about. It is impossible for young people to follow. And I know this because I've sometimes asked law students to sit in before they knew anything and just try to follow it given the same kind of information that the young people would have.

New Speaker (00:18:50):
They can't follow it, right? It's impossible to follow, let alone to have any kind of appreciation of some of the deeper meanings associated with the topics that are sort of ratcheted off even if you could follow the topics. Very significantly, young people are not in any way decision-making players or participants. Now, often young people are given an opportunity to speak. It's usually framed something like, "do you have anything to say? Or, you know, what would you like to say? Or how do you feel about this?" Almost always, the young person says nothing. Now this isn't surprising. It's a very intimidating context, and they're not really expected to have much to say. And if they say something, it's usually short, sort of mumbled and obligatory, a sense of what they're supposed to say, the sort of another topic that I find very interesting and potentially problematic. If they do actually sort of have the courage, the confidence, to say something that is actually material, they are usually listened to respectfully. They're kind of weighted out.

Emily Buss (00:20:02):
Sometimes they get a response like, "well, you talked to your probation officer about that." Or "that's not what this hearing is about." Or "I'm glad to hear you did well in school," whatever. But it doesn't have any effect on the flow of decision making, which is sort of the whole idea. The whole idea is, is there any kind of engagement with this young person about these important decisions that are being being made? And it's totally apparent that it has no effect. So the young person goes through the experience. If they do talk of essentially, you know, seeing the world of the courtroom say, "eh, we don't care."

Emily Buss (00:20:42):
So it's obvious what implications that has in terms of any kind of supported structure of helping someone become better decision maker. I think obviously. The other issue, and it's entangled in complicated ways, is this idea of sort of what a young person is learning about with whom they are affiliated and what kind of price they pay. So the obvious team in the courtroom is- you know, this is a, this is a legal context. It's a context that is the most obviously legal that the young person is confronting. There are a number of people in the room and the manifestation, the sort of tableau is that they are all on one team.

New Speaker (00:21:18):
I want to say a little bit more about this one. I'm talking about the public defender and the D.A. and the probation officer and the court personnel (and they're often several people) and the sheriff and often the judge are altogether. There's actually kind of more of a sense of a club than a team. Now, that sounds nasty. And I actually think it's a wonderful thing about human nature, that people who are working together day in day out, especially when they have difficult, low paying jobs that they care about but are not very well supported.

New Speaker (00:21:51):
So there's a lot of bonding that happens and they get to know each other and they talk about each other's children and pets, sports teams. They flirt, they joke. It's a great thing about human nature, that that kind of thing happens. The only problem is it really forms this very, very evident kind of almost electric sometimes or energetic connection among all the players in the courtroom, except for the young person. And is in no way does a young person become included when the young person enters the room or the young person's family enters the room. It's just the opposite. If anything there is a sense if there's waiting involved, the young person and the family is sort of watching this. It's almost a trivialization, it feels like a trivialization, right? They're chatting about somebody's dog, which is all good and well, but not so great when someone's just waiting to find out whether they're going to go home on probation or have to go to corrections.

Emily Buss (00:22:49):
And when the case begins, there's a kind of drop in the energy that sort of formal, again, sort of litany speeds, fast talking through the content. And then the moment it's over, there's a remarkable sort of burst back to this energetic engagement of the club of people who work together in the courtroom. That's the law team, the young person is not a law team. And I think in a very important way, the message comes across that this is not in any way an opportunity for you to be included, albeit as the offender, in some kind of a process. That's sort of engages you in thinking "now, what? How do we move forward?" And remember, among other things, move forward in a way that's going to be supportive of you. So I became very interested in finding out if any courts were doing things differently and no fair amount of people from my former life who could sort of tell me.

Emily Buss (00:23:42):
And I talked to lots of judges who I think are really terrific- there are a lot of really terrific judges out there doing terrific things, but no one really addressing the problem of this dynamic. And no one, I found, really engaging young people in a way that was at all meaningful. A lot of models I found out of court. So young people being diverted from court, which is often the right thing to do, who were going to family group conferencing, various restorative justice models, or going to sort of other models outside the juvenile court, like peer jury, peer tribunals, and even some courts. There's some medical problem solving courts or treatment courts where exactly these aims were being achieved. To some extent, young people were meaningful participants at the table. And again, they're all in the same context of thinking, you know, "you did something wrong, you offended, you know, you broke a law, what's the right way to respond? How would we hold you accountable? How do we move forward?"

New Speaker (00:24:40):
So we're effective at actually engaging young people and getting them to be true participants. And also at sending this kind of this dual message that you want, which is on the one hand you're part of us, you're part of the community. On the other hand, you screwed up and we're not saying you didn't screw up, we're responding. But we're responding in a way that includes rather than sends the message that you're not one of us. So lots of models, but none of them in juvenile court. So you could say, "well, okay, great. It's just not for juvenile court, there are lots of other places where this occurs." But what's troubling about that for me is the following: if you think of the legal set, by law, who's in juvenile court, right?

Emily Buss (00:25:22):
So if you're thought to be less at risk of not being able to make that successful, pro-social transition to adulthood, you're going to be diverted out of the system. More and more, there is sort of an appreciation that if we can sort of keep you out of juvenile court altogether, that's a better way to go and we can get these other kinds of tribunals involved and we have reasons to be optimistic that that's really better for the young people, for their successful development, and in turn, society. Cause we do a lot better if young offenders do not grow into adult offenders.

Emily Buss (00:25:56):
But on the other hand, who's in juvenile court? The definition of the young people in juvenile court are people who we determined are at too high a risk to be diverted out but for whom we still make this juvenile-specific higher investment grounded on the idea that we're still committed to trying to help them make the successful transition. For people whom we no longer take that position, we transfer them to adult court. And we do do that in our legal system. There've been times when we've done more and less of it, but the idea there is that we're now putting you in with everybody else who we give, whatever we're giving, which is much less focused on trying to help, you know, with the circles of rehabilitation and the like. More focused on sort of punitive aims and, certainly, no longer making a distinction based on this special developmental opportunity, right? So in juvenile court, we've got the group identified as the highest risk for not making that successful transition for whom we are still, as a matter of law, committed to investing those resources and taking that different approach.

Emily Buss (00:27:03):
So it is troubling that that group gets a process that is possibly developmentally harmful and certainly is not taking advantage of important developmental opportunities. That's sort of where- that's the frame. How I got where I am, which is sort of thinking that the juvenile court really is a place where we should be at least trying things and seeing whether things could be done differently. Didn't find any models out there. Got the advice and support of social scientists at the University of Chicago telling me "if you can't find it out there and you're really interested in it, you should make it." I was like, "okay, how do I do that? I'm not a judge. I don't have a court" and there are some things you can't do in the lab. And the advice I got is, you know, "find a judge who's willing to collaborate, do a very, very small pilot. Take a small number of young people for whom you try to come up with what you think would make a difference in terms of this different kind of engagement and then study it. See what you learn."

Emily Buss (00:28:05):
Right. So I was convinced it wasn't sort of crazy and malpractice to try to do this. And I spent a lot of time at the front end. First of all, it's very challenging finding a judge who doesn't want to sort of do their own thing, but do my project and what I want you to do, and then be willing to have it studied. To be willing to be evaluated, It's a lot of scrutiny, a lot of attention. And I needed a court that was open to giving a judge autonomy. You know, one judge doing something different than everybody else was doing. I needed a court where they were comfortable with the idea that they were going to be evaluated and there was a lot of evaluation going on. I ended up in Milwaukee and with the judge who is the most remarkably un defensive person I have ever met in my life, which is a really key element because as this pilot goes, we're sort of developing and learning and I'm spending a lot of time saying, you know, "oh, I was like, I saw you do this. That's not going work, let's try this."

New Speaker (00:29:00):
And she's remarkably open to that and she's very open to the idea of evaluation. She was the one who pulled together the team, because we needed a whole team-- a defense attorney, district attorney, probation officers, who were all committed to trying this other way. It's not going to work if you know, the D.A. comes into the room and says, "what are you talking about? No, go." So it took a lot of time to sort of get up to speed on the details of the Milwaukee system. Juvenile courts are remarkably similar, and yet there are a lot of important details that are different and I had sort of gotten to know that court very well, spending a lot of time there. And in the summer began bringing cases in through their intake process to be part of the pilot.

Emily Buss (00:29:44):
So what does the pilot look like? Well, we're right in the middle of it, so I can't give you the wonderful "here's what the evaluation looks like." All I can tell you is sort of we're in the middle, stay tuned, in a year or so, I'll know more. The basic design, and it's focused on the time of disposition, where the court is first deciding "what are the consequences that will be imposed for the offense" and then ongoing reviews. The design is for the young person and the judge to have a sort of direct focused ongoing conversation that's focused on problem solving and goal setting. The lawyers are still there, the public defender's still there, to sort of look out for and raise concerns if there are concerns. Any kind of issues that are implicated for the ongoing rights of the young person. Parents are sometimes there, there's a sort of interesting side thing about how parents have played a part in this. the D.A. is there, everybody's around a table. This is for the original disposition and then for ongoing reviews. There is a clear identification for identifying particular goals, particular problems, discussing as a group what we can do to address them, ensuring that in the mix of goals are the priorities that the young person has. It's certainly always here, among other things. Sort of "what's something that you would like to work on or have the support of the adults who are here in developing?" But a key piece is, because the judge controls the dynamic, she ensures that the primary speakers are the young person and the judge.

New Speaker (00:31:19):
And other people are welcome or actually encouraged as have a lot of useful information, they can raise concerns and the like but they are never allowed, as they sometimes are inclined to do, to sort of take over and start wagging their fingers to do whatever they're used to doing in their roles. So, as I said, what do we have now? We are working toward, gradually bringing in, having 10 kids in the pilot. The aim is for them to go through- these are all kids who were on probation. So the aim is to go through their whole probationary period with multiple reviews. The judge is seeing these young people roughly every month and sometimes more often, sometimes less.

Emily Buss (00:31:57):
And then at the end of the process, I will do extensive interviewing of the young people and also a control group of people who've come in over the same period with a similar file of circumstances. And the focus will be on experience, right? So is there any kind of impact on how they perceive of the process? Of their place in the process? Of the purpose of the process? The range of issues that go to that experience that the juvenile justice literature suggests is so important for this shaping of an understanding of young individuals' relationships with the law. But, you know, we've had our challenges along the way. I mean, one of the cases that came in at the very beginning that was, that you could just point to to sort of see the progress of how, in affect and engagement for each time seemed to be sort of really just exactly what you'd hope to see in terms of a sort of increasing level of comfort at being a decision maker. Being taken seriously, but also expected to behave in ways that were being called upon him to behave.

Emily Buss (00:33:06):
It was all very positive. And then he went to Atlanta to visit his mom over Thanksgiving, which was all good. It was with permission. But because of some rule about the buses-- they wouldn't let him go back on the bus as a minor traveling alone-- so he ended up staying in Atlanta. He was like, "well, maybe I'll just stay and live with my mom?" And his mom says, that's fine. Okay. So now he's gone. There are a lot of things like that. That's life, right? It has nothing to do with the pilot, except it has to do with the complications of life. We've had one young person who was rearrested and it was heartbreaking because-- I am, by the way, in the room all the time for these hearings. I'm not participating in the hearings, but I'm always there.

Emily Buss (00:33:44):
And so you see the promise. You see the potential and then you learn that, you know, the dumb decision making hasn't quite stopped yet and with very, very serious consequences. But that's where the pilot is. Every Tuesday I go up to Milwaukee and we're either bringing in new cases and I need to talk to the parents to get their consent. It's been very interesting, the whole process of human subjects review. That is another topic that I'm intrigued by, sort of how that is complicated and encumbered things in some ways that are frustrating to me. And that sometimes I'm coming for reviews where some of these cases have now been alive and in the courtroom for some number of months. So I am inclined to sort of stop. It's almost like stopping mid-sentence because the project is very much mid project. I'd love to hear your thoughts and questions. Yes. Oh my goodness.

Audience Member 1 (00:34:45):
I want to clarify, first of all, that you're essentially talking about the delinquency system and not the dependency system, because kids won't come to court as often in the dependency system and they are not subject to examination in the dependency system. So I have some suggestions for you for your pilot. We have found that mentoring-- and we have good data behind this-- mentoring is a terrific support for these kids. And the focus of both the federal government and at least in California, where I come from, is the transition to adulthood. And what are we arming these kids with? Because the data show that these kids failed in adulthood. And so it's not just the process that we have in the court system. It's what we leave them with, what tools we leave them with when they go to adulthood. And one of the major problems is, and you did mention this is, that we still think that kids are little adults. And our legal systems around the country, particularly in Florida and New York, where you start as an adult at 14. I mean, that's just so outrageous, but that's the politics of the seventies and eighties with the "predator kids."

Audience Member 1 (00:36:02):
And we have those laws lingering with us right now. So we do have to attack the state house also. Now, the Fostering Connections Act takes jurisdiction to 21. And that really helps because you can help those kids who are floundering by saying, "well, we're going to let you live your life but you have a support here back at the court with your mentor and the court system with services." And so those are my suggestions and I'd like your email because I'd like to talk to you.

Emily Buss (00:36:31):
I'd love to talk to you more. So I know you are, you know, you're famous. You are one of the, I think, most respected juvenile court judges and have been willing to really try things and press for reform. So one of the things I take from your comment is, to reiterate something that I noted, is that I couldn't possibly suggest- it would be absurd to suggest that the the primary thing that should be done to sort of make life better for these kids is just to change what the juvenile court process looks like. It's much more sort of wanting whatever else is going on, recognizing that there's a very sort of central place where decision making occurs. It's important that it not be undermining whatever else might be going on, but I totally agree with the idea of the things like mentoring making a big difference. I've totally supported the idea in other projects I've worked on.

New Speaker (00:37:25):
So this idea that you need to continue supports beyond 18, you know, I have a son who is about to graduate from college. I am definitely still involved. Availability of couches and the like so. So absolutely sort of that having those ongoing supports is absolutely definitely crucial. Yes.

Audience Member 2 (00:37:47):
You talked about finding the right judge and the right court, but how's it been working with the public defenders and the prosecutors, integrating them into this new program? What type of training and guidance? Have you gotten any pushback?

Emily Buss (00:37:58):
So really interesting. First of all, one of the things that has been- you know, the advice I got from the social scientists that I have really loved and embraced is that this is an evaluation study where pushback is good, because all I'm saying is this is something I want to try. So hearing the concerns that the public defenders have, hearing the concerns that the D.A. has, sort of happened. They do have concerns. It's very helpful. I should actually be able to sort of think through that and learn from them. From the beginning, it's funny, when we first had our meeting, the public defenders were so on board that I was worried. Because I thought they're going to resist this. I'm saying, you know, you talk a lot less, you know, then have the young person talking directly to the court. That's, you know, a proper reason to be concerned and very much out of role, right? They were extremely supportive and saw this as a real opportunity. Now over the course of the pilot so far, there've been times when they, you know, said in this particular case, I'm really worried about such and such.

Emily Buss (00:38:54):
We had one case where the public defender just thought it was not pilot appropriate in light of everything going on in the young person's family's life. And I was frustrated by that. I thought maybe that's exactly why it would be a good one but, you know, I recognize that ultimately they are safeguarding the interests of their client and there was an interest for some of them and not being overburdened with anything else they have to do. So the D.A. is interesting, she has a background in restorative justice. You know, I was told "there are many D.A.'s in the courthouse who would not have been appropriate for this project, but she's really excited." And several times at the beginning, she said "does this mean it's appropriate for me in my role to actually things that would sometimes be sort of weighing in supportively with the young person?"

Emily Buss (00:39:37):
And I said, absolutely. And that was sort of an exciting opportunity for her. We had one case where she was convinced that the young person was high when he came in and it drove her crazy that we were sort of proceeding and engaging. And saying, you know, "how's it going in school?" And at one point she said, you know, "you've got to get your life together." And you know, she thought she called it. It was totally unclear whether she was right or not not. So you know, I thought it was really valuable. And we reinforced this with her afterwards. We had occasional team meetings, and the idea is not- I mean, who thinks it's a good idea to raise young people, sort of like, "it's all real good!" Like with the ideas, it's also an opportunity to raise concerns, but can you do that in a way that is still consistent with this manifestation of support? And that is what I think having everybody at the table helps us do. The D.A. has these things that she can say, but she's not the last word. And the young person and the judge have an opportunity to really sort of incorporate and reflect. Yes, judge.

Audience Member 3 (00:40:44):
I want to ask you to talk a little bit more about your original color of neuroscience. What we've learned about the juvenile, the developing brain. I went to a fascinating seminar last year with the American Association for Advancement of Science about this and two or three of the speakers spoke about the developing science of- about how much more we've learned about the developing brain. And my question is, in your Milwaukee project, two questions. Is this growing knowledge about the fact that at the age of the young people you're dealing with the brain is not yet fully developed. We know that in terms of its ability to make wise decisions and assume responsibility. So number one is how does that, how does the new neuroscience and what we've learned play at all into what you're doing in Milwaukee? And what's always mystified me. Yes. This is my second question is although we do know a whole lot about the brain, the developing brain, how is that information helpful to a particular judge who has a particular juvenile in front of her?

Emily Buss (00:42:11):
Okay. So I love those questions. I've actually sort of put myself in the skeptics about the neuroscience. I don't mean about the nature of the work's community down there, but sort of how far it should take us and what we should make of it. So maybe I'll say a little bit more about that generally, and then attach it to your good questions and make sure you remind me if I don't get to both parts. Okay. So the neuroscience and particularly, functional MRIs, have allowed-- basically documentations-- a revelation that the brain is still developing important ways that are understood to be connected with things like impulse control, reflective decision making ability to resist the short term, you know, managing the sort of decision making in the interest of the longterm. Also sort of reduced desire for that immediate reward in the form of sort of an appetite for risk, right? So that's part of the problem. So all of that is sort of documenting this hard science. It shows the brain is still changing now. Okay. One of the things you say right away, it might be a little problematic with what you do with it. It doesn't stop at 18. You know, so it's not, it's nothing like a kind of, "here's the brain look at that brain. See! That's why he, you know, he's less culpable for that offense." And when people start doing things like that kind of a move, it drives me a little crazy. What it tells us is that looking at the development of the brain is sort of consistent with what we're seeing behaviorally, which is that there is this emerging ability to exercise a kind of control and decision making judgment that matters for things like how we think about what blame-worthy action is. I don't think it has any bearing on how a particular case should be dealt with like. You know, sort of at one extreme, you could say, someone's been picked up and charged with a crime, let's strap on the the electrodes or whatever they use now and see how developed his brain is.

Emily Buss (00:44:18):
I think that would be a real mistake. I mean, there are plenty of people with less developed brains who are not engaging in offending and offending is a complicated sort of account. It's much more of a categorical account about development over time and in my view, 18, we tie it to 18 because the whole host of commitments we make to children and our willingness to sort of assist them in developing and protecting them from certain harms, including some of the harms that come from their decision-making in order to help them grow up. And then sort of at the age, which we now say is 18, now we're not giving you those special supports and protections, and we're going to hold you more accountable.

Emily Buss (00:45:01):
So the brain supports the idea that there's still development happening. It pushes against the idea that at 14, because some developmental capacities are premature like the ability to engage in reason. The basic cognitive capacity to reason is sort of shown to emerge earlier. It captures the idea that something important is still happening, which pushed back in a valuable way against this idea that if you commit a crime at 15, you know, you're fully baked because you're fully formed as an individual. So to answer the second part, I don't think it should make any difference in an individual case. First part, it doesn't really have any direct bearing on- I mean, here's the connection. And, I mean, I've never mentioned a brain discussing anything with anybody there, but the idea is that as the brain develops, environmental context makes a difference. Experience makes a difference.

Emily Buss (00:46:05):
So what we're talking about is you know, neurons forming. So in the context of this occurring, what kind of experience do you have? What kind of facility you're getting, what kind of support you're getting involved in skills, matters for how the brain development occurs. So I'd say, you know, my interest in thinking about how we're facilitating and supporting young people and becoming competent decision makers likely has a shadow. We know that in a still developing brain that experience matters, but the brain doesn't enter in any more direct way in what I'm doing.

Audience Member 3 (00:46:39):
I've always been interested as I read more about the emerging science that we've learned here about the brain and its development, it's always sort of struck me that for decades, Hertz had not been willing to rent cars to people under 25, right? So they've known about this for a long time. [Audience laughs].

Emily Buss (00:47:15):
You can find all kinds of correlations that you can look at, that we have for centuries, even before there were cars, sort of drawn these rough age lines. And the more we learn, the more we see, "oh, there's something behind that." We sort of observe behavior which has led to conclusions that we can imagine. So right, at 25, if you look at crime charts. If you look at it, peaking at late adolescence and by the mid twenties is way down, you know, do we draw the line at the wrong place? Interesting question. If we're only drawing it because we're trying to be as precisely accurate as possible about what changes when, you probably aren't. I mean, we should draw it at different places for different things. I don't think that's what the line is doing. I think the line is reflecting a sort of a difference in commitment and attitude toward and obligations toward that we come from.

Audience Member 4 (00:48:03):
This is just an observation on your pilot, which seems to be extremely intriguing. There was a book written a few years ago called "Ordinary Injustice" by a lady by the name of Amy Bach, who is a Stanford law grad. And the premise of the book was that there are certain structural deficiencies in the justice system targeting certain groups. She's formed an organization called Measures for Justice, a nonprofit, which is trying to determine the data behind some of these. I mean, basically she wants to prove these structural deficiencies by doing a very sophisticated data analysis. She's got some very large grants, she's put together a first class data science team. She's based in Rochester, New York at the moment. And I think she had connections back into the justice system in Milwaukee. I would search her and for anybody wanting a connection, I can certainly hook you up. But the work that she is doing, post pilot, when you need people that are very good at collecting this data and analyzing it. And I think it would be very interesting.

Emily Buss (00:49:05):
Absolutely. Thank you so much.

Audience Member 5 (00:49:09):
While we're full of suggestions, I see that our class is full of suggestions. There's a recent 19 page report from the Center for Disease Control and Prevention. I don't know if you're familiar with it, involving Wilmington, Delaware. And they were called in because of within a short period of time, there were 127 gun violence incidents. And they were called in to do a public health at analysis of what the heck was going on. And they studied over a period of- they went back to a couple of years and they studied 569 people to see if they could identify what correlated with the use of gun violence. And they tracked back using regression analysis and all sorts of things to about five factors that tended to lead you. Because it's very nice to sit here and discuss individual decision making and we all have free will and all that sort of stuff.

Audience Member 5 (00:50:14):
But you know, people live in the real world and it's an extremely messy place and you live in a household where people shoot each other and all sorts of things. Any way, they were able to identify about five things that were predictors, not predictor so that you do something, but connect it to-- and a lot of them were-- school experiences, abuse in the home, et cetera. I forget what the other- emergency room visits were number three. They were able to give them points and they were able to figure it out. It's a 19 page study. It's recent. It's come out this year from Wilmington, Delaware. And it sort of tells you the context because I do gun violence reduction work. That's what I do.

Emily Buss (00:51:10):
I need everybody's name. I cannot leave this room without it.

Audience Member 5 (00:51:16):
One of the people who is helping me is- I'm a United States attorney. She's an assistant United States attorney who graduated from here a few years ago and is very invested and involved in what do we do with young people. Because by the way, the big CDC conclusion was you need to work with the 15 to 29. And so, although we never prosecuted a young person, every time I talked to a police chief, they say "you've got to help us with the young people." So we're trying to figure out how to help them with the young people in the context of prevention and we're spending more and more time sort of doing that. But it all ties back to a concept that I've heard many times today, including from Tracy Peters who used to teach here, which is "injured people, injure people." That somehow we have to deal with that fact about our society. These people tend to be injured.

Emily Buss (00:52:28):
And one thing I have been trying to do is to minimize injury and possibly turn an injury into something positive.

Audience Member 5 (00:52:33):
If you look at your nine or 10 people, what are they going through? And you start to say, "I wonder whether they have these factors back in their lives," right? You may want to do something along those lines too. How badly have they been injured when they showed up in the system.

Audience Member 6 (00:52:59):
So the subjects that are going through the pilot, are these first time contacts?

Emily Buss (00:53:10):
They are, but they are serious. They're all felonies. We needed to do that in order to not have their previous experiences affect the pilot.

Audience Member 7 (00:53:28):
There may be a possible overlap, but have you seen anything in the adult system where there the a criminal court system is working around defendants? How much of your study might be transferable to the adults?

Emily Buss (00:53:58):
So my general view is that almost everything that we get insight from in working with young people has a lot of power and relevance, right? So I would say again, kind of come back to this, it's not like all of a sudden there's this magic change. The procedural justice work, which includes the work of Tracy Peters, is very focused on adults first. For some reason it's not cast in developmental terms because we're talking about adults and how they change based on their experience, which we forget that they're still developing. But I think, absolutely, if we had reason to think that if we engage in this kind of a way, we used to get different experience, which could have benefits to the individual as well as the society. There's no reason to think it wouldn't be worth thinking about. To some extent, which I have acknowledged, there's some version of this actually happening even more with adults already. But yes, I think absolutely. No reason to think it wouldn't be relevant. Oh, thank you so much.

Audience Member 8 (00:55:01):
I'm curious. So, you know, you're talking about the gap between what science says is best versus what the justice system has deduced. How much of that is driven by professional ethics or obligation? All the defenders where, you know, in a perfect world, a defender is not limited by certain requirements.

Emily Buss (00:55:24):
It's important. And it's the other reason that I'm focusing this pilot primarily on dispositions. So, you know, the common law is that at the adjudicatory phase, many of the constitutional rights, the criminal procedural rights, of adults are also rights of children in cases that followed. And clearly my own sort of understanding of this work is also very much the risk. Nobody's on the line and it's not yet determined whether you're even going to be adjudicated guilty. It's important that a juvenile's public defender can do whatever a public defender can do to try to make the government put on his case, interestingly. So all of the rights are implicated much more tenuously in a disposition phase. And I think the trade offs of the gains and losses on the ground for a young person shift, but it does matter.

Emily Buss (00:56:21):
It matters a lot. And this is one of the reasons I wasn't sure that the public defenders would be comfortable having this habit. So it's like, you know, "my general role is to push every time I can to try to shield from the harm that can be done by state engagement." And the way we dealt this with this the pilot is- I guess I'd say two things. The way we've dealt with it is everybody's still at the table and everybody still has identified roles. And we don't abandon those roles because ultimately, they need to step in and say, "that's it you're out of pilot, dude." And don't say another word. They get to do that, right? But the other thing is to recognize how roles can really get in the way and prevent people from actually engaging in a human way.

Emily Buss (00:57:06):
There's all those things that are happening with all the other people that haven't been instructed to be doing anything, they're sort of just on the side. Those are real human interactions that sort of manifest in content and and emotion, people mattering to one another and that sort of thing. And then everybody sort of drops into these roles. And what is manifest for the young person is, among other things, not mattering. It has a real dehumanizing effect. So the challenge of preserving everything, that's very important in those roles and yet shaking some of the trappings that you'd never get away from those roles is really- I see it as one of the challenges of the pilot. One more question.

Audience Member 9 (00:57:47):
I'm just really curious as to the age and racial demographics of the young offenders included in the pilot.

Emily Buss (00:57:54):
Across the board, certainly in cities, almost everybody's African-American, occasionally someone's Latino. They're almost all, but not exclusively male. So that's, you know, that changes. It somewhat depends on which County you're in and the state. And for ages? Well so they can only enter the system if they're under 17 in Wisconsin. So they're coming in at 14, 15, 16.

Audience Member 10 (00:58:24):
Okay. My questions are basically a restorative justice question. In our communities program, which is a police diversion program. In reference to obviously the victim, police, and your role at the circle, would you ever fought in your program for any of those two? The process with the judge if the judge is a central figure.

Emily Buss (00:58:44):
So I think there's a real value to figuring out ways for those collaborations to occur as well. I'm not sure it'd be a value in the court process. The judge is ultimately the decision maker and, if anything, the worry is that there are too many people at the table. And then it's very hard to get the young person at the same level of engagement. That being said, in any particular case, there may be some other actor who's so important for anything that's going on.

Audience Member 7 (00:59:12):
It may also be very important for the victim.

Emily Buss (00:59:13):
So the victim, I'm sorry, I didn't hear you separately say the victim. Absolutely, the restorative justice really captures this idea and some victims find value in it while some victims want nothing to do with it. So my own sympathies are very strongly in the direction of engaging victims as well. The way that particular cases of, you know, we're getting a very small set. We're looking for a case where there would be such. You know, sometimes we have crimes where it's, you know, not focused on a victim or where a victim is very, you know, is not engaged. And at this level with a pilot, we're not in a good position to bring in a victim who is not otherwise in, but we're ready for the victim who says, "oh, absolutely, I'm here, I'm at the table and I want to be part of this too." Thank you everyone [applause]

Speaker 1 (01:00:10):
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