GUEST POST: Age is a Meaningful Distinction to Inform Our Justice Interventions
Indiana has been a national leader in advancing law and policy distinctions for youth in the justice system. By only a few days, we were the third state to pass into law a juvenile court system. We abolished capital punishment for teens long before the Supreme Court held it to be cruel and unusual punishment due to the amenability of youth to rehabilitation, and salient characteristics of youth: impulsiveness; susceptibility to negative influences and peer pressure; and limited control over their environment, including the lack of ability to extricate themselves from a horrific, crime producing setting.
Another such opportunity on the horizon could be tapping into our problem solving-court model for an emerging adult court—an opportunity which Court of Appeals Judge Leanna Weissmann has described as a “unique opportunity to offer life-changing intervention,” in her article “Redefining Justice for Emerging Adults.” The parameters of what emerging adult court might be in Indiana have yet to be written, but other states have adjusted justice interventions for adolescents beyond the age of juvenile court in various ways.
It is within this backdrop that Washington County Judge Dustin Houchin authored an opinion piece published in the Indiana Lawyer on January 15, 2025, expressing that the widespread understanding that adolescents’ brains are not fully developed until the age of twenty-five is a myth. He contends that the fMRI studies which are offered in support of these claims don’t actually provide that support, are the result of selection bias, and wouldn’t even be admissible in a court of law under our rules of evidence. He discussed emerging adult issues at length, but advanced no suggestion that his opinion only applied to youth above a certain age such as eighteen or otherwise.
The hook of the opinion piece is that lessened accountability for youth has contributed to a surge in violence in both our nation and state. This is a highly contentious issue as many believe the data shows that youth violence has decreased when proportioned to population statistics. What has increased is media coverage and sensationalism on social media, so there is the perception that youth violence has increased. However, the perception that tailoring interventions to age has resulted in an increase in violence is a powerful one, as fear drives decision-making.
The voiced concern seems to be singularly opposed to a recognition of lessened culpability of youth and adjusting (but not removing) justice system interventions in response. But, if what he is proposing is true, it has ramifications far beyond the criminal justice system.
We live in a world where teens and adolescents are readily treated differently under the law in many ways: minimum ages for alcohol and tobacco consumption; firearms restrictions; voting and jury service limitations. Additionally, businesses openly impose restrictions based upon youth that apply all the way up to twenty-five, such as car and home rental restrictions. If youth brains are not less developed than adults, and they are every bit as responsible as their adult counterparts, then the justification for these age-based discriminations is obliterated. Responsibility is a two-way street.
That said, I don’t expect judges to announce that twenty-year-olds are unfairly discriminated against by alcohol prohibition, etc., any time soon. Why? Because we all have known for a long time that the distinctions of youth are real and recognizable, fMRIs or not. Legal precedents issued decades ago recognized that age is far more than a chronological fact. It is a fact that generates commonsense conclusions about behavior and perception; they are self-evident to anyone who was a child, teenager, adolescent once themselves, including any police officer or judge.
The fMRI studies have shown observable distinctions in brain activity correlate directly to the observable behavioral patterns we see as youth age into adulthood. Judge Weissmann demonstrates this well in her article investigating justice alternatives for emerging adults with the “Age-crime curve”. There is a marked decrease in criminal behavior that begins around the age of twenty and consistently slopes downward thereafter. This trend is consistent with observable changes in brain activity visible in the fMRI images.
Moreover, adjusting our justice system to account for youth is nothing new. The Bill of Rights to the Indiana Constitution contains a provision that the penal code shall be founded on principles of reformation, not vindictive justice. It was placed there in 1851 directly in response to a report to the delegates explaining that a high percentage of persons incarcerated were minors (persons less than twenty-one). The General Assembly followed suit, permitting juries to deviate from otherwise mandatory prison sentences for any offender less than twenty-one at the time of the offense.
Arguably, we have regressed on this last point. The sentencing distinction for youth in adult court is now primarily limited to consideration of youth as a mitigating factor, and the protection from mandatory minimum sentences has faded into the annals of history.
Judge Weissmann explains, “When it comes to eighteen- to twenty-five-year-olds, our justice system has uttered the same incantation for decades: more incarceration, more punishment, and more stigmatization. But these strategies do not work. They do not make our communities safer, and they do not address the underlying causes of criminality.” Emerging adult courts at least provide a venue to explore interventions designed to address the underlying causes of criminality, with a population we all know has a high prospect of change. The framework of such efforts is not set in stone; we have the opportunity to define what this opportunity can be. To the extent the Judge Houchin may be correct that twenty-five is not a rigid biological cutoff for brain development, it can be a policy decision, just as the age of twenty-one for drinking, and eighteen for voting.
Moreover, the reality of emerging adult courts is not a cessation of sanctions, but an adjustment to try to make our work more effective. Such admirable efforts will not end all youth violence but will provide an opportunity to better address the underlying causes: generational poverty, family dysfunction, trauma, and a lack of self-worth and hope that develops a reverence for the shared experience of life. In the process, I think we’ll improve some lives.
Joel C. Wieneke is staff attorney with the Indiana Public Defender Council, who focuses his work on youth justice issues, and Member of the Indiana Youth Justice Oversight Committee. The expressed opinions are his own and do not reflect the positions of either the Public Defender Council or the Youth Justice Oversight Committee.