In a June, 2017 conference at Harvard Law School, Professor Bekh Bradley from Emory University, presented on the subject of "Trauma-Focused Neuroscience” to an audience of federal court officials, including judges. It was my task to respond to Dr. Bradley’s presentation by offering a perspective on the possible implications of the ideas set forth in the presentation when defendants are sentenced to probation, and in the conduct of the subsequent probation supervision. As it turned out, the forum – including both the presentations, as well as the subsequent discussions and break-out groups – touched significantly on topics that have been the concern of the Robina Institute’s Probation Revocation Project.
Dr. Bradley’s presentation focused on what neuroscientists have learned about the prevalence of adverse and traumatic childhood experiences and how those experiences can relate to subsequent criminal behavior. Children who live and develop in impoverished neighborhoods can be especially prone to a range of experiences, referred to as “Adverse Childhood Experiences,” (ACES) that can inhibit and disrupt neurodevelopment, leading to cognitive impairment in key areas of day-to-day functioning. These ACES include such things as witnessing violence, being subjected to abuse, living in a discordant home, and living with alcohol and drug abusers, or someone suffering from a mental illness.
The stress levels associated with exposure to these ACES disrupt development in key areas of executive functioning and self-regulation such as planning, organizing, prioritizing and memorizing, capacities that are essential to navigate the requirements and challenges of everyday life. Where these capacities are diminished, the likelihood of conforming behavior is compromised and the possibility of problem behavior rises. In other words, a difficult early life of the kind characterized by ACES sets the stage for later difficulty through the mediating effect of cognitive impairment.
Related findings were reported in a 2015 study published by Frontiers in Psychology. A group of scholars in the Netherlands explored the topic of executive dysfunctions in prisoners, finding that deficits in such functioning were commonplace among prisoners and could be seen as significantly compromising the ability to undertake tasks required for successful reintegration upon release from incarceration. Furthermore, the authors refer to an extensive meta-analysis conducted by Ogilvie, et al in 2011, published in Criminology that examined the relationship between antisocial behavior and executive functioning skills and found a “robust relationship“ between having a criminal record and the presence of executive functioning deficits.
In research published in 2014, a pair of social scientists reached related findings that suggested grave implications for offender populations. Sendhil Mullainathan and Eldar Shafir, in their book Scarcity: The New Science of Having Less and How It Defines Our Lives explore the impact of living with insufficient financial support – having less money than is needed to meet basic living requirements – on cognitive functioning. Those who have little, they found, develop a kind of ”tunnel vision” that narrows considerably the number of demands and requirements that can be successfully attended to. The need to meet the demands of surviving on a daily basis consume most of the available cognitive bandwidth, crowding out attention to other demands (such as the ones typically imposed by probation orders, as will be discussed further below.) In fact, the condition of poverty is more destructive of functioning than sleep deprivation. Those struggling to subsist can focus only on immediate, pressing needs, neglecting perforce other important tasks and concerns that inevitably need addressing in all of our lives. This shortage of “bandwidth” has implications for focusing on and meeting a range of daily requirements and responsibilities, for making and keeping plans, resisting temptations, making responsible decisions and avoiding impulsivity and carelessness.
Whether it is exposure to traumatic childhood experiences or living in poverty, the conditions these researchers connect with cognitive impairments are commonplace in the lives of those who find themselves before criminal courts. The question raised by Professor Bradley’s findings, and those of the other researchers referenced here, is “How should these insights affect the practice of judges and probation officials, if at all?”
The current debate about the proper cut off age for juvenile court jurisdiction draws its strength from the findings of neuroscience, and implicates issues such as culpability, criminal responsibility and diminished capacity. What is much less discussed are the implications of these findings for the practices and policies relating to probationary dispositions and it is that topic that I focused on in my response to Dr. Bradley’s presentation.
We can safely assume, I believe, that the deficits described above are pervasive throughout probation populations. I would argue that there are two key dimensions of probation practice which should be adjusted in accordance with these research findings: the probationary “load” – the extent and intensity of probation conditions imposed – and enforcement policies in the instance of non-compliance with court orders.
With respect to “load,” it makes sense to reverse the trend of recent decades that involved an increase in the number of obligations built into probation orders. Too often, these orders constituted what had to be seen by most probationers as a bewildering if not terrifying set of commands--a veritable “mission impossible”-- given the limitations experienced by most probationers with respect to the kinds of organizational skills, record keeping, attention and focus that is called for when a regimen of multiple appointments and assignments are imposed. This ratcheting up of a probationer’s obligations constituted the correctional version of a football penalty for “piling on.” When, for reasons set forth above, it should be no surprise that probationers may struggle with “getting it and keeping it together,” when a new laundry list of obligations has been added to their probation terms. This is a prescription for failure.
Attention must be made to the deficits afflicting many probationers. In this regard, it strikes me that there is a useful analogy to be made to special education practices in our schools. As the husband of a special education teacher, I have learned about the practices of progressive schools, where the staff carefully assess the deficits some students have in the form of learning disabilities and construct educational programs that are appropriate and feasible for each student. The potential for each student to succeed is emphasized, since no student has the bar set beyond his/her reach. We could do the same for probationers.
At the risk of oversimplification, I would argue for the “rule of 3’s.” Beyond the requirement that all probationers should be law abiding and report to their probation officer when requested, I would advocate for imposing no more than 3 additional conditions. One condition could represent a fair penalty or sanction, one would impose a control condition (curfew, no contact order, etc.) and one could require participation in a treatment program. The latter two types of conditions would only be proposed if appropriate, given criminal history and the profile of the probationer. In cases of first or minor offending, one condition might well suffice.
Also, in light of the research findings above, even with just a few conditions imposed, care should be taken to see that the schedule of obligations does not contain any obvious conflicts or impose transportation requirements that pose to be an unreasonable challenge or barrier for the probationer. Probationers may not own an automobile or have much in the way of free cash to pay for mass transit or alternate transportation. A probationary order should not be an obstacle course, but a manageable path to redemption and rehabilitation.
Along the second dimension, response to non-compliance, room for initial failure or falling short should be made. Just as special education students will not always remember or fully complete their homework, for understandable reasons, so also will probationers – who really don’t keep datebooks – frequently miss or show up tardy for appointments. We shouldn’t be too quick to interpret this as willful defiance of the rules but rather as difficulty in keeping everything straight, particularly at first. Looking for increasing movement toward full compliance should be the goal, implying some patience – at least early on – and a willingness to help probationers work on their personal organizational skills. Perhaps probation offices should issue datebooks to probationers! It must be said that some conditions – such as no contact orders in domestic violence cases – warrant strict enforcement and needn’t be included in a model of flexible enforcement.
The probation professions in recent years has become a much more consistent and sophisticated consumer of the social science research that bears on practice issues. By attending to the emerging insights of cognitive scientists, both the profession and those being supervised will experience greater success.
Various links on the Robina Institute's blog, News and Views from Robina, may open to third party websites. We do not assume any responsibility for material located outside of this blog. Listing of material on this website does not serve as a contract between the University of Minnesota Robina Institute of Criminal Law and Criminal Justice and any other party and does not constitute an endorsement of any organization or its activities. As such, the Robina Institute of Criminal Law and Criminal Justice is not liable for any content, advertising, products, or other materials on or available from such sites or resources.
In the case of all blog posts, podcasts, or video blogs, the opinions expressed are those of the author and do not necessarily reflect the views of the University of Minnesota, the University of Minnesota Law School, or the Robina Institute of Criminal Law and Criminal Justice.
None of the content on this blog or website represents legal advice. If you are seeking legal advice or representation, please contact an attorney.
Comments and Guest Posts
We welcome your feedback and participation. Comments are moderated. We review and approve comments during business hours, M-F. If you would like to submit proposals for blog topics or a proposal to write a guest post, please email firstname.lastname@example.org, subject line: Robina Blog Proposal.