Professor Buss is a passionate individual for the rights of youth involved in criminal justice. Her paper titled “The Law’s Role in Raising Children” is about how the law can influence developing children, and her perspectives are quite compelling.

Professor Buss: A lot of other issues, not even just in the criminal system, when you think about how we think about youth rights and how we think about how the law applies to youth. You know, on one hand, we have all kinds of examples in the law where we treat young people differently. I don't know how old you are, but you know, roughly 18, but sometimes we draw the lines at different places below that or above that. And we, it is often tied to this idea that there is a less developed, you know, at a younger age, it's really about the less developed workforce. Cognitive ability to make decisions. In older ages, you know, I think if you've read things in the criminal justice system, you know, it's about psychosocial development or the like, less, you know, the... The difficulty of making decisions under social pressure, which is something that you get better with age, partly from experience, but because of the brain development. And so on the one hand, it makes sense to take those things into account in developing law for children. On the other hand, I think it can disserve, you know, you mentioned victims and accountability. I think it can disserve the people it applies to, right? Because the idea is, you know. Part of what we do in imposing legal constraints, which are often tied to moral constraints, is that we're teaching people, including young people, about what our standard is, right? 

So the idea is that you wouldn't want a standard that said, basically, because you're not fully developed as a, you know, your capacity to make decisions is not fully developed. You know, kind of doesn't matter in some sense, like if you do bad things and you don't get to make any kind of decisions that might actually be the kinds of things that would, you know, you want to do for yourself because you're not, you know, because you don't, you kind of don't count because of that diminished capacity. And that's clearly wrong, right? You're developing your capacity. And a lot of stuff I've written about is like, you know, kind of capturing the idea that you want to. You want the recognition of diminished capacity to be tied to thinking about how the system helps raise kids, right? That sort of helps develop that capacity. In the criminal context, I guess I think the classic punitive response. In my view, it doesn't do much for victims unless, you know, obviously some victims just want the worst thing possible to happen to the offender. But it's, you know, it's a pretty indirect way of really helping a victim. And it's, I think, a pretty bad way of teaching young people. Kind of the morality of the issue rather than just like, you know, okay, if this bad, if I have this, if I do this thing, I might get caught in bad things might happen to me, but that doesn't really develop a sense that, you know, I am part of a community that has these commitments, right? 

So I think it's really important to respond. It would be very wrong to say, because young people are, you know, they're young, they, you know, like, it doesn't matter. I think, you know, trivialize it. But it just suggests that the whole response should take into account the fact that they are learning and they're learning to make decisions. And they're learning where they fit in society. And they should be getting the message. You're one of us. You've screwed up in a way that matters to us and we care about you and not doing that again and growing up successfully and we care about the person or the people you.

Emma: Extending on that, how do you think the juvenile system could be designed to foster development and progress while holding youth accountable for their actions?

Professor Buss: So there have been some moves in this direction in some systems and what I would say is a serious and immediate response that includes engagement. So you're. The judge and the, you know, it's like engaging specifically with a young person and really, you know, among other things, sort of confronting them in a, about what the significance of what they've done, but not, you know, Locking them up because I think that you know that we know that recidivism rates go up rather than down when you lock up juveniles. Why is that? 

Well, part of it is that you've kind of and reinforce the idea that they're you know they're criminals that's how they should think of themselves and this is my these are my this is my group this is my identity i'm gonna own it right and part of it is you're taking them away from all the things that actually help people get beyond their criminal offending school. Job opportunities. Communities that care about them, and opportunities to do other things that are pro-social. 

So I think all of that stuff is just... It's just counterproductive. It's harmful. But you want something that is, you know, that is serious. And I'm sure you know, because it sounds like you've read a lot, you know, about things like restorative justice, where the idea is you're, you know, you Sometimes you're even bringing the victim into the picture. You're bringing your, you are very much more directly holding people accountable by saying, you know, well, this is not okay. We're going to talk about it. And what, how are we going to move forward in a way, you know, that compensates for the harm you've done and that helps the communities feel comfortable that you're not going to do it again. So. I think there's been real progress made in some jurisdictions moving in that direction. Restorative justice and community-based resources, including multisystemic therapies involving families in the therapies, because what we're trying to do is really figure out kind of a whole way of Kind of rewiring the situation while not taking them away from the things that are going to help. And grow in a pro-social direction.

Emma: I understand that private prisons can shift too much responsibility onto the youth, similar to the juvenile system. I found that perspective to be quite interesting as well.

Professor Buss: Yeah, well, the whole thing with the point is that there are lots of issues with private prisons, but one of them is that this is really one step removed from the accountability structure that we impose on our government actors. So that's, you know, and they're making, you know, for-profit institutions basically. So their incentives are kind of screwed.

Emma: Yes. My third question relates somewhat to monetary sanctions. Should monetary sanctions like fines, fees, or restitution take into account a child's inability to earn income or manage finances independently? Due to diminished capacity, or is it just not ethical at all from the first place to impose financial penalties on children or their families as part of Is that right?

Professor Buss: Yeah, so I mean, my view is they shouldn't, like these, for the most part, there are poor families, so it's not just that the kid can't earn money, it's that the family is really strong and has limited resources. And you know, part of holding it together and not engaging criminal conduct is not... Is monetary. I'm not going to say that's all it takes. Poor people need to commit crimes to survive, but people clearly make different decisions. But it puts extra stressors on your life. If you're adding everything on top of everything else, there's this debt. You can't really meet the basic needs of your family. 

So again, I think it's counterproductive. I think it's I am, you know, the whole movement away from the fines and fees, I think is a very good, like I favor that. I don't think it's the right way. It doesn't have any meaning for the young people. 

I mean, like the way you pointed out, if you could have, if we lived in a world where jobs were plentiful and, you know, and a 16 year old that got arrested for something, well, part of what they need to do is that this great job that's preparing them for their, you know, adulthood and everything else. That they have to turn over, you might say, well, that's kind of part of the whole learning process. And it's part, that's not what happens. It's like, you know, it's, they basically, it's. The ability to get any kind of job is really small; the ability to get any kind of job that would give very much, you know, pay very much at all, is very small. And so you're putting them in this unrealistic situation, which just puts them further behind. And that's not, you know, that's not the way to, and it's, as I say, it doesn't have any meaning as a result in terms of kind of internalizing the harm that they've done. Yeah, I'm against it. Period. 

I mean, I suppose if they're, you know, really wealthy people who are arrested and, you know, one of the ways to make them really feel it is to, you know, take away their fancy motorcycle, I guess I probably wouldn't care, but it's just not what we're really talking about with the vast majority of young people in the.

Emma: I was researching for my paper on how monetary sanctions have a significant intergenerational impact, particularly when parents are burdened with a lot of fines that can potentially affect their children and subsequent generations. My last question is, what do you think about the debate over prosecuting juveniles as adults for violent crimes?

Professor Buss: I won't be surprised to hear that I'm really against it. I think. You know, I think the development literature supports the idea that Even really, you know, so they used to be this idea or there still is the idea in a lot of people's mind that sort of if you commit these really heinous acts it you really you're already a hardened criminal and I think that's a real misunderstanding of the Developmental science and it's like there's you know, the same psychosocial developmental limitations are what lead you to use you stupidly have a gun in your hand and you know someone above you in a hierarchy says, you know, I whatever. It's just like, it's the same kind of development problems that are going to lead even to really serious crimes. 

Now, really serious crimes have to be responded to in a serious way. But I think that trying young people as adults, first of all, they're it's really unlikely that they're really competent to engage their lawyers in a way that would be appropriate for that. And it, you know, it tends to lead to a kind of response, you know, sanctioning that is not a, that is just about this sort of severe punitive response. 

So I would favor not eliminating transfer, frankly, for really everything, because I think there are other ways of dealing with the severity of the event.

Emma: Do you happen to know of any case where a prosecutor charged children with an adult crime?

Professor Buss: There are tons of cases. It's very common. There's an increase in crime, including juvenile crime in the 80s, and it led to very punitive responses in a lot of cases. A big piece of the punitive legislative response or changing the criminal structure was to make it easier to transfer adult children to adult court and easier in a lot of respects for more crimes at a younger age. And sometimes just the prosecutor gets to choose because they're all different. There's a form of transfer that is where a judge makes a discretionary decision. -- - And that's, you know, so that's, there's at least some break on that, right? The judge has to say, all things considered, this is justified, whereas a prosecutor can just say, okay, for these crimes, I'm charging you as an adult. 

So in the move since, there's a greater developmental awareness in the 21st century that really began with those Supreme Court cases, well, I won't say it began with the Supreme Court cases, that really moved things along.

So for all those things, fewer things that prosecutors can just charge, not as young an age, not from as many offenses. But it still exists, I think. All systems have some mechanism for transfer for the most serious crimes, which would be murder, rape, probably armed robbery, actually. I'm not sure what the list is, but it's a violent offense, as you say. 

So it's, yes, it's not uncommon at all. I mean, I could, if you're interested in getting more information, I mean, there are tons of cases. I could send you a couple of references. And they probably would include some cases. I worked on something that's called a restatement, which is a kind of weird name that nobody knows what they are until you go to law school. But it's a kind of it's sort of like a treatise. And so I was one of the authors of the restatement of the law of children in the law. Funny name, but it. Has sections that were not authored by me, but I know they're in there, that address, among other things, transfers. 

There are plenty of cases. And I've been working with some young people in Illinois who were rights as adults, and the way it works in Illinois is you serve out. Your sentence lasts until you become an adult, which can be defined anywhere between 18 and 21. In the juvenile system, even if you're tried and convicted as an adult in adult court so they were like tried at 13 in adult court Stayed in the juvenile system to 18 to 21 and then the remaining sentence they have to do in Department of Corrections results so Because you know one of the things that tends to happen if you go to adult court is there very long sentences and part of the Worry is you know, whatever someone did at 13? Especially since felony murder, you know felony murder is you're not the murderer but you're part of a crime that someone died that Counts as murder and so you have a 13 year old who's part of a group and someone else is Does the killing and they are on the hook potentially for really long sentences.