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Ned Chester, Esq.                                           
Interviewed April 7, 2003 in Portland, Maine.

Brain Research and Juvenile Law
Q:  What's your legal background?

A:  I went to the University of North Carolina and received a degree in urban planning and law because I thought I would become an urban planner. And it turned out that law was much more interesting. My wife and I moved to Maine in 1977 and opened an office up here on Munjoy Hill and basically ran a general practice for quite a while. I didn't begin focusing on juvenile law until the late 1980's. I began to concentrate on juvenile defense work and guardian ad litem work sometime around 1994 or 1995.

Q: What year did you graduate from law school?

A:  I graduated in 1977.

Q: Why did you decide to concentrate on juvenile law?

A:  Because it's fascinating work. Just fascinating work. For a while I did do some adult criminal work because you have to do that when you are in a general practice. I never found it to be that rewarding. I found it to be a lot of work. It sets up an odd dynamic. I went into law in part because I wanted to do the right thing.

And, criminal law sets up this dynamic where you're dealing with somebody who more than likely is responsible for what he or she is charged with. If you then get them off, they're back in your neighborhood. If you don't do your job and they end up getting convicted and sentenced, then you simply failed. There are some wonderful attorneys out there who are able to do that defense work and do it really well. I just wasn't cut out to do that.

The garden-variety theft, schoolyard assault, I didn't mind. When I was dealing with sex offenders or domestic violence cases I just had a very difficult time. I did the job I had to do, but I didn't really feel at the end of the day like that's what I wanted to spend my time doing.

So, the nice thing about juvenile law is that you get to do all of that criminal work. You get to fight for kids and their Constitutional rights and you have to do criminal trial type work. But there is a piece that is restorative. The juvenile code by its nature talks about treatment and rehabilitation as a major goal. When you represent juveniles there is that flavor to the work that you do.

Even if the child is ultimately held accountable, the sentence is not simply of warehousing the child at one of the state institutions for a fixed period of time. You can be much more creative in terms of talking to the court and convincing the court that there are alternatives to locking the child up. And then more resources are available to provide treatment and rehabilitation.

The other side is, if you have a child who is ultimately adjudicated of an offense, the fact that the child may end up on probation means that, when you make those treatment resources available, the child has some pressure to actually take advantage of those resources.

A lot of my clients have had resources offered to them over the years. Juveniles are like the rest of us. They don't necessarily want to do a lot of the things that might be good for them. If you have a child who is not in school, it's probably a combination of factors, not the least of which is the fact that he probably has never succeeded in school. His motivation to go to school is not as if he goes to school and gets good grades and teachers praise him. It's not necessarily a safe or a comfortable and rewarding place for that child.

Does that mean he shouldn't go to school? No. But once he comes into the system, a number of things can happen. One, you can work with him to change that school program for him. You may be able, through the juvenile process, to go to school and work through the PET process or the 504 process or some other process to make that school program a little more welcoming and a little more appropriate for him. The bottom line is that he has to go now. You make it easy for him to do the right thing and then you tell him, if he doesn't, the consequences are worse.

The same is true for counseling and drug and alcohol use. It's important to make it easy for the child to do the right thing to the extent you can. You make the treatment resources available to the child. But then the system comes in behind that and says, "you got to do it." And it's a nice blend when it works. It's a much more creative and interesting way to practice criminal law.

Q: Can you briefly explain how the juvenile system works?

A:  If a juvenile is believed to have committed an offense, the police department will refer that case to the department of corrections, not to the district attorney. The department of corrections has the ability to divert that case. The probation officer has the option of designing a program over a six-month period . . . essentially, an informal probation. "You've committed the theft. You've admitted that. What you need to do is to pay restitution to the victim. You need to be in school. And, I want you to do twenty hours of community service." If the child complies with that agreement, then it never ends up in court. The second time the child commits an offense, the case has to come to court.

For the low level first offender, they don't have to get caught up in the system. That is obviously restorative. There's no record. They don't have to find a lawyer and attend court.

If it is referred to court, it's not unlike the criminal process where one goes in for a first appearance or an arraignment. There are conditions of release that tend to be more complete than bail conditions. With a conditional release after a first appearance, kids are often required to get an evaluation, go to school. They may be subject to random search and tests for drugs and alcohol. They may be required to report to their probation officer on a weekly basis. It tends to be more monitoring and pressure to get kids to comply or take advantage of the services available. In effect it turns out to be almost another type of informal probation. 

One of the reasons defense attorneys allow that to happen is because, if they think their client is going to do well with that set of conditions, it then becomes the easy argument to the district attorney about why the child should not be locked up. "He's done so well, you should reduce the charge." It's almost like a trial probation.

Q: Who decides whether the child will be tried in juvenile court or adult court?

A:  Maine is one of the few states left where you cannot try a child in an adult court unless there is a full court hearing before a judge in juvenile court. In many other states, if the district attorney charges the child with a robbery, the child is in adult court. That's all that it takes is simply the charging document. Some states have grids. If a person commits a class A offense and is thirteen or fourteen years old or commits a class B offense and is fourteen or fifteen years old, sometimes they are automatically sent to the adult court; but then they can have a hearing there to argue that the child should be sent back to the juvenile court.

There are a number of processes to get the child in the adult court. Maine is one of two or three states where there is no minimum level and no minimum age. If, after a full hearing before a juvenile court judge, the court believes a ten year old should be tried in adult court, there's nothing to prevent that from happening.

Q: So, it's the court's decision rather than the district attorney's?

A:  That's right. Or the legislature for that matter. The legislature gives the court criteria to look at before the bind over can be ordered. But practically what that means in this state is that there are very very few children sent into the adult court.

Q: Do you know what the youngest age has been?

A:  I don't. But my guess is that it certainly was never below fifteen and rarely is it below seventeen.

Q: That's quite different from other states then, isn't it?

A:  Sure.

Q: I hear stories where young teens are tried as adults in other states?

A:  It's outrageous. Florida has been for ten, fifteen years now, binding over four thousand kids a year automatically in the adult court. And what they've discovered . . .surprise . . . those children, when they come out of jail, tend to be much more violent.  They commit much more serious offenses more quickly and they commit more violent offenses.

And, if you think about taking a fifteen-year-old child and putting the child in a prison for eight years, the retributive urge has been satisfied. You've said, "We've got him." Then you've got a twenty-three-year-old who is completely identifying now with the mindset of a prisoner, a criminal.

His associates have been criminal. He probably has been used and brutalized not only by the inmates but by the staff at the facility. And so at twenty-three that young man has another ten or fifteen years before the hormones kind of kick down, and you've created a little monster.

Those statutes were passed thinking that we'd take these kids off the streets and what we've created is little monsters when we really didn't need to do that. So, Florida and some other states are looking at their systems and are actually moving away from bind overs. In Maine, because we're up at the end here and the trends come to us late, it may never reach us.

And if you think about how you want your society to operate . . . I think there are two issues with the bind over, sending the child into the adult court. One is this moral issue. If a child has committed an act that is violent and reprehensible and unforgivable, then you can look at sending a child into the black hole of prison. But the real practical issue is that the child's coming back unless you put that child away for life. That child is coming back. And so no matter how outraged you are at the nature of the offense, you need to think what's going to happen when that child has completed his sentence. I think it's very shortsighted. It makes no sense to me to bind over.

Now, if you have a child who will not benefit from being in the juvenile system, there's nothing left. And that's essentially I think that's the way the judges and district attorneys and defense attorneys look at the bind over.

The critical issue really is whether there is anything in the juvenile system that is going to address this young man's or young woman's needs. If there isn't, then it may be appropriate to bind him or her over to the adult court. If there is anything in the juvenile court that will address those needs, it's just sensible to keep the child in the juvenile court.

Q: Rarely, but sometimes there is an eleven or twelve-year-old that will commit a murder somewhere. What do you do with that child? The fear is that the child will be let loose when he becomes an adult and will be a risk to society?

A:  Well, you have nine years to work on that issue. And the reality is, when he turns eighteen, if there is any violation, then he will be in the adult system. It is inconceivable to me that we could decide that a twelve-year-old cannot be rehabilitated. It is just inconceivable to me. You could say that about a fifteen or sixteen-year-old. In my history, have I seen fifteen, sixteen, seventeen-year-olds that were beyond redemption? Maybe one or two. And I'm not sure I'm right about that.

I know that if you put them into the adult system, I know where that leads. I know that the chances of that child becoming a true antisocial personality and a danger to the community rise dramatically.

Q: What, then, is the benefit to binding over?

A:  I don't know what it is. The only argument that can be made is this Old Testament "eye for an eye" retributive response. I think that's what you get out of a bind over.

Q: They have the same Constitutional rights in either court?

A:  That's right. Except they don't get a jury trial in juvenile court.

Now if you have a very violent offense by a seventeen-year-old, the argument is that we need to have him on probation for eight years and you can't do that because the juvenile court jurisdiction terminates at twenty-one. There is some pressure then to bind him over because the sense is that it is going to take him more than two or three years. But that should be somebody who has a long history of failed intensive rehabilitation. A child who refuses to go to counseling and has had a number of offenses and has been to the youth center and it has not improved the situation and it may have gotten worse.  Otherwise, it makes no sense to me.

Q: What does the recent brain research tell us about the juvenile mind?

A:  There are a number of studies that have been done. The one I am familiar with was done by Dr. Deborah Yurgelun-Todd through the McLean Hospital in Belmont, Massachusetts.

We have been using MRI's  for a couple of decades now. But only recently have they been applied to mental health and looking at people's brains. Dr. Yurgelun-Todd did a study with children between the ages of twelve and eighteen and ran them through an MRI. Before she ran them through the MRI, she showed them a photograph of what you and I would say is somebody who is scared. The purpose of that was to stimulate their emotions. The interesting thing with twelve-year-olds was . . . they didn't see it as somebody who was scared but rather somebody who was mad at them. They misinterpreted the cues because they were young and not experienced. They saw the face as angry.

When they saw that angry face, the amygdala, which is this little nob that sits at the top of the spinal column and controls the seat of emotions, the fight or flight response, was getting a lot of blood. When they saw that face, the amygdala would glow on the MRI.  The frontal cortex, which is the executive functioning, which plans and thinks and is the rational part of your brain, is pretty dark in a twelve-year-old. It just isn't really working all that well.

By the time one is eighteen, they interpret that same face as somebody who is scared as opposed to being angry. The amygdala still glows. It still has that emotional response. But then you see the frontal cortex lighting up as well. The emotional response is there but then the frontal cortex says, "Whoaa. You don't have to worry here. It's just a photograph."

The theory is that adolescence is a time the brain is pre-wired for the two of them, the amygdala and the frontal cortex, to hook up; for the neurons to create pathways between the two. And that is what adolescence is about . . . the brain hooking up those two pieces.

It doesn't happen if kids are being abused. It doesn't happen if they are using drugs or alcohol. There are obviously some other kinds of defects. The point is that in some adolescents that connection doesn't happen. And those are kids who continue to have impulse problems because they're just not wired.

In a healthy adolescent that wiring is not complete until age twenty-one or twenty-two, although in girls it happens earlier than boys, all of which confirms that which you and I know. If you walk into a sixth or seventh grade class, it's just chaos and it's not just because they're bad kids, it's just because that's what happens when you are in sixth and seventh grade. As opposed to walking into a junior or senior classroom where there are still a lot of hormones raging, but it's much more mellow because the executive functioning is much more integrated and much better able to manage the emotional response.

Q: I'm sure you have talked to many juveniles who have said, "You know, at the time it just happened. I couldn't control myself. And, after the fact, I say, oh my God, what have I done." They have no control over it in the midst of what's going on.

A:  It confirms what we already knew. What happens apparently is that the brain in the first decade of life creates all this gray matter . . millions and millions of gray matter brain cells. Between the age of eleven, twelve and twenty-one, twenty-two, the brain creates myelin, which is like an insulator. If you have to get electricity from point A to point B, you can run it through this large mass or through this wire that is insulated. The myelin is insulation that forms around these pathways so the connection is much quicker and much more efficient.

Adolescence is a time that typically the brain is wired to develop the myelin and so in an older adolescent you see a lot more of the white matter, which is the myelin, because those connections, not just between those two parts of the brain but within other parts, is much more developed.

Q: How do you apply that research to the legal system?

A:  We're not sure. What's interesting is that the U.S. Supreme Court last year ruled that we can't put people to death if they are mentally retarded or unable to understand what is going on. And so, child defense advocates appealed a death penalty case from Kentucky and said the kid was sixteen when it happened. He didn't have the capacity and they cited the brain research.

And certain affidavits by the chief of psychology at the University of Pennsylvania Medical Center summarized the brain research to that point and pointed out the brain is not fully developed until age twenty-one or twenty-two. That raises the question about whether children are able to make moral decisions prior to the completion of that wiring and whether or not they are able to make the kinds of decisions we often hold them accountable for.

The Supreme Court did not take cert. It was a five-four decision. And the four dissenters cited the brain research. Not exactly precedence. But I think it's pretty interesting that we now have four members of the U.S. Supreme Court that find this evidence to be compelling enough that they would appear to at least find it to be relevant in a juvenile death penalty case.

We're painting with a broad brush here. I think what the psychologists would say is, "I can't tell you where this child is in this process. We know that as a group seventeen-year-olds and sixteen-year-olds are more capable than fifteen-year-olds. Girls mature earlier and all I can tell you is that a sixteen-year-old is retarded compared to where he is when he is twenty." So it's relevant within that person's life span. But we don't have a test to say these sixteen-year-olds are at this level of development and this fifteen-year-old is at a separate level of development. So it's not quite clear what the implications are.

Q: Does it go to culpability and/or competence to stand trial?

A:  It is the same kind of issue in that we have traditionally held kids to a standard that they probably aren't capable of meeting. If you look in the criminal law, the mens rea (a guilty mind) standards . . . intent, knowledge, recklessness and negligence . . . and you read the cases, it is a very high standard of accountability, a low standard to find culpability. Intent does not have to mean "I intended to kill you by stabbing you with a knife." It's much simpler than that - "I intended to ..."

Q: "I intended to pick up the knife."

A:  It's almost that low a standard. We use the adult criminal standards in juvenile court. In other words, the juvenile code doesn't create a whole new criminal code. It refers back to the adult criminal code Title 17A, which makes sense when you are talking about the act.  A burglary is a burglary whether it's committed by a twenty-year-old or a fifteen-year- old. But the mental standards . . . I think what needs to be argued is that the mental standards need to be different.

It needs to be different in terms of competence to stand trial. It needs to be different in terms of the Miranda warnings and understanding and comprehending and being able to make a rational decision about one's rights. And in terms of the actual mens rea of the act itself.

Q: What do you do? Do you get a panel of experts together?

A:  The state bar association is going to allow us to put together a juvenile panel for a bar association meeting in the winter. I think we need to have the discussion. I don't think it makes any sense for the bar to go out and say, "We can't hold kids accountable because they don't have the capacity."

We all know that there are different levels of accountability and some kids are more accountable than others. This is just one more factor that people, and judges particularly, need to be aware of as they make their decisions. And some kids have highly developed moral consciences at twelve, thirteen, fourteen, fifteen years old. Other kids don't.

Some kids have impulse control disorders. Some don't. Some have PTSD or depression. Some are raised in very chaotic backgrounds. They have trouble planning and using their executive functions. They're constantly doing the fright or flight thing. They're constantly reacting instead of being able to stand back and plan out how they are going to do things.

All those things are important when you talk about accountability. And I think this brain research is one more piece that we need to take into account. In the general population I think you'd say if a kid is suffering from a major depressive episode, he's probably not competent. And there are gradations of depression.  You need to take into account his mental health state. I think now we have to think about taking into account these developmental stages.

Q: We are more focused on age now?

A:  I think that's all we have for right now. In the next twenty years things may change. We know that thirteen-year-olds are not wired to think the way seventeen and eighteen-year-olds or twenty-one and twenty-two-year olds. And we should not say, "Well, he acted like an adult. He'll pay the consequences like an adult." That's simply not appropriate. It's also not appropriate if we think he's depressed. It's not appropriate if we know he has PTSD. We can't ask him to make those kinds of rational judgments. He's not wired to do it.

Consider the boy who shot his teacher down in Florida. They asked him, "Why did you do it?" And he said, "I don't know. I liked him." There is a group of people that would say, "It doesn't matter. He acted like a man. He takes his punishment like a man." I'm inclined to believe that he really doesn't know why it happened. And is it appropriate to hold him accountable the way you would a twenty-five year old man? I believe him when he says, "I don't know why I did it."

Q: Do you have any statistics on the kids going through the juvenile system as to how many get rehabilitated and how many end up as adult offenders?

A:  The Maine Department of Corrections began using 1998 as a baseline and has begun to do a recidivism study every year. So they are gathering that data now. My anecdotal response is that most juveniles that I represent come into the system, have one offense, and I never see them again. And that's the end of it.

It's like any other system. It's like the medical system. The kids that you see all the time, the ones that we spend most of our time on, are the ones that raise up the greatest challenge. And so there's a sense that we're not making any progress. But that's because we tend to focus on the difficult ones.

The reality is that most kids come into the system and go out of the system and they're never heard from again. This is an aberration. It's a little blip in the screen related to the fact that their hormones are raging. Their brains aren't fully developed. Their families are going through a difficult time. The girlfriend dumps them. It's a constellation of symptoms that comes to a head all at once. They end up in the system. We address what needs to be done and that's the end of it.

I think this is a very restorative system in Maine. The code is designed to be restorative. I think the judges, as a group, see this as a restorative system. The district attorneys, as a rule, are doing juvenile work because they care about juvenile law. We don't resolve all of the cases. We lose some every once in a while. We lose them to the adult system.

The youth center has changed its philosophy. They bought these palaces over there. But they've also done a lot of work addressing the programming and, God knows, they've got a long way to go, but the philosophy is different. The philosophy of the whole department of corrections is much more focused on targeting problems and preventing recidivism.

I think the system has much more of a restorative focus than it did five years ago. There is no formal isolation unit at the youth center any more. That's a big step. The use of restraints and isolation is way down. The probation officers are diverting a lot more kids than they used to. They're not locking up as many kids as they used to. They're looking for ways to maintain kids in the community, looking to alternative sanctions as opposed to locking them up. As a whole, things are much better than they were.

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