162 - Adam Benforado: How prioritizing kids benefits us all

0:00Welcome back to the Stanford Psychology Podcast. I'm Adani, and for this week's episode, I had the pleasure of chatting with Adam Benforado. Adam is a professor of law at Drexel University's Klein School of Law. He previously graduated from Harvard Law School, served as a clerk on the U.S. Court of Appeals, and worked as an attorney at a major law firm. He has also written two books, one named Unfair, which was a New York Times bestseller, and a recent release called A Minor Revolution, which we'll talk about in this episode. His other popular writing has appeared in the Washington Post, the Atlantic, the New York Times, and many other major outlets.

0:41Adam's academic work broadly focuses on children's rights and criminal justice, and he brings insights from the mind sciences, most notably cognitive psychology, to law and legal theory. I'm extremely excited to talk to Adam about his wide-ranging expertise at the intersection of law and psychology, and without further ado, here's our conversation.

1:26Thanks so much for joining us today, Adam. I'm so excited we get to talk. It's my pleasure. So our listeners have heard a little bit of a formal intro about you already, that you're a professor of law and accomplished in various ways. And I'm curious, and I'm sure many listeners are curious too, how come a law professor is doing psychology-related work? Like how would you yourself describe what you do and what does psychology have to do with it? Yeah, so I think a lot of it stems from sort of my background actually coming out of being a kid. I went to a school, high school, it was a public school, but it specialized in math and science.

2:06And so I was really interested in science. And when I got to college, I think I had been doing actually higher level stuff. It was my senior year going off to the invertebrate research laboratory at the Smithsonian doing research on copepods. And then suddenly I was back in the college classroom copying down overhead projector slides about organic chemistry. And I decided at that point, I want to broaden my scope a little bit. And so I really embraced the broad liberal arts education. I started taking history courses and sociology and psychology. And I think I then went off to law school and I had this kind of crisis almost where I felt like all of that research, particularly from the social sciences, was being ignored by the legal system.

2:59And everyone seemed totally comfortable with that, right? It was like, assume a rational consumer in contract law who has perfect information and equal power and all these kind of things. And I was like, wait a second, but no human beings read the Apple, you know, contract before they on iTunes before they click. Like, shouldn't we confront that fact? In criminal law, I think everyone seemed comfortable with assuming the rational criminal who, you know, knows, has perfect information about the penalties for breaking into a house. And I was like, wait, but why do people commit burglaries? And let's actually read up on the psychology of criminality and think about situational factors and run experiments and do all this stuff.

3:49and I felt wow we're living in this cloud cuckoo land this weird world and these are the great like I went to Harvard Law School it's like these are the great legal minds and all my professors seemed okay with that except for one this guy John Hanson who had really his early career been you know neoclassical economist this was the height of the law and economics movement and he too had grown disillusioned. And so I think starting to work with him and talking to him and starting to write with him, I suddenly saw a path forward, which is, hey, maybe our legal system is built on untested myths, but maybe it doesn't have to be.

4:33And if we draw attention to that and start bringing in insights from psychology and neuroscience, as well as sociology, as well as marketing all these other fields, not necessarily within academia, that are studying human beings and trying to build a more realistic model of human behavior, maybe that's not just a pathway to making a more just legal system, but maybe that's a possibility for a career for me. And I think that was a moment when I started to think, okay, this is my future. And, you know, when I went off on my own after law school, I decided that one of the things that I wanted to do was actually start working with psychologists on designing experiments.

5:19You know, obviously I don't have a PhD in psychology. I think you can read up a tremendous amount. I think if you have a good scientific background, but the thing that I always realized I didn't know is designing research studies and doing the statistical analyses, that was not my strong suit. And so I started collaborating with people. One of my big collaborators is Jeff Goodwin, who's at Penn. And, you know, I think that that period really allowed me to start thinking about ways, really active ways that, you know, psychological insights could be, you know, employed to better our system of justice.

6:01Yeah, there's so much interesting stuff in there. And I would love to return to many of them later, too. But I really like how you spoke about untested myths and this idea of, well, actually testing them and using that to build a more realistic model of human behavior and how that can help us do better in various areas, including the legal system. And I think this actually, a lot of what you just said, I feel comes through really well in the book that I would love to talk about. So you wrote this book called The Minor Revolution, came out in 2023. And as I read it, I really felt like you covered a lot of historical, cultural, legal context around how we view and interact with children.

6:35So there is this wide breadth of perspectives. And as I took it, you especially talked about how parents and the U.S. legal system tend to view and treat children. And I wrote down this quote here. So one thing you described is a culture that vests incredible authority in parents and demands great deference to their decisions. and that can range from parents feeling it is their right to literally give their children away, which, you know, there are some striking cases as you talk about in the book, to maybe more everyday things like parents smashing their children's toys or their Xboxes for punishment.

7:07And then I felt like you raised this seeming contradiction or paradox, which is we also treat children like adults a lot of the time, for example, in prosecution. And so I just wanted to ask you, how do we make sense of all that? What is that tension about and how do we make sense of it? So I think it's really complicated. I think history can help us understand how we got to this odd point. So a lot of people, I think, even academics don't understand how bad things are historically for children. And I think we tend to look and think, okay, well, how many children were dying of preventable diseases 100 years ago?

7:47And I think what we don't understand is just how the incredible resources and wealth we now have to marshal and how little we do in comparison to what, you know, around the 20th century, those progressives had and the resources that they had to treat the problem. And so if you go back to the early 20th century in America, we had really this, in my opinion, flourishing of children's rights activism. This is a moment where we're expanding mandatory public education, where we are creating a new criminal justice system focused on rehabilitation for juveniles, separate from the adult criminal justice system.

8:27when we're suddenly starting to crack down on snake oil salesmen targeting, you know, giving babies morphine and things like that, where we're pushing for clean cow's milk, where we're actually starting to worry about poverty. And what's really upsetting, in 1912, you know, President Taft creates this new bureau, the first agency in the world focused on the well-being of the whole child. This feels like this moment where certainly in 100 years, children are going to be far better off. And what we see over the course of the 20th century is a real retreat on this idea that the community as a whole, the nation as a whole, has a stake in protecting, empowering, and investing in the next generation of citizens over the course of the 20th century.

9:27we move to this idea that job is really solely the job of parents. Now, that's partially a result of, I think, shifts in popular culture. But I think a lot of it comes from elite institutions, which, including the Supreme Court, which start to affirm in areas like education and decisions about family contact and decisions about medical care, that parents are going to be the deciders, the primary focus here. And, you know, certainly by the time that we get up into the 2000s, 2010s and contemporary culture in America, we have gone all in on parents' rights at the exclusion of children's rights. So, you know, there's this groundbreaking treaty in 1989, the Convention on the Rights of the Child, which offers this incredible vision for the future for children, which includes all of these different types of rights to be protected from harmful things, rights to societal investment and things like education, and even empowerment rights, right?

10:37A right to a voice in decisions affecting those children. The United States is the only UN member state after 30 plus years who still has not signed that groundbreaking, ratified that groundbreaking treaty. And I think a lot of that has to do with, you know, saying, no, parents are going to be the sole ones who are tasked with preparing the next generation. And the strange thing about that is that it sounds at first great for parents. One of the mysteries is American parents are way less happy, way less satisfied, way more burned out than parents around the world, particularly in comparison to countries in Africa, which are much poorer, where parents have much less.

11:26What gives? How do we explain that? Well, I think the answer is that when everything is on your shoulders... Good or bad, every decision is on your shoulders. You've got to be deciding, you know, when to teach your kids sex education. You're having to decide and look up what the proper vaccine schedule is. You're having to, you know, make sure that you have stable income because if things go wrong, your kids aren't going to get free school lunch. When it's all on parents, it's incredibly stressful. And we all experience that who are parents during the pandemic. when it felt, especially, it suddenly was very cute.

12:07And so I think that's how we get to this weird moment of a full embrace of parents' rights. You know, just this term, Republican members of Congress have been introducing a parents' rights amendment to the Constitution. What is that about? Well, in my opinion, it's about this sells politically, doing the hard things that parents actually need. What do parents actually need? What are they worried about? Well, they're worried about their grocery bills. They're worried about the affordability of college. They're worried about shootings at schools. They want clean environment so that their kids aren't being poisoned by lead paint.

12:52Those are the things that parents want. And Congress is not willing to do any of that stuff. It's costly. It's hard. Instead, they say, let's pass a constitutional amendment, giving parents what they already have. The Supreme Court has already said this is essentially fundamental right. So, you know, I think that's how we get to this weird position. The question is what's next. And unfortunately, I think on the left, the kind of conventional wisdom is if the right is pushing a rightist version of children's rights, we need to match that with a left version of parental rights. And that seems to me mistaken.

13:37I think ultimately, we need to focus on kids and what kids need. Let's not get in a battle over parents' rights. Let's focus on what kids want and what kids need to thrive. Right, I see. So you spoke about how there's this full embrace of parents' rights at the exclusion of children's rights and that there are different versions of it circulating. And I think this is actually a really interesting parallel to, or maybe not a parallel, but I think one thing that stuck out to me in your book is that you have this really nice, intuitive structure around different parts of growing up, right? You have the first years, early childhood, late childhood, early adolescence, late adolescence, cusp of adulthood.

14:19And for each of those parts, you talk about specific rights. For example, the right to be a kid in early adolescence. And so it seems to me, again, there are these different versions of children's rights circulating. And Tim, just curious, how did you come up with your version and how did that tie into this book structure and what made you go with that? Do you want to tell us about that? So, you know, as I was thinking about ways to structure the book, I did consider alternative frames. Like you could focus, and certainly other scholars have focused on things like children's needs rather than rights.

14:53You could focus on capabilities. I went with rights because I think rights are uniquely powerful in the United States. I think when you have a right to something, that makes everyone stand up and take notice. And I think that's one of the things that's been missing about children. One of the weird things about kids is in many ways in the United States, we don't see them as rights holders. We don't see them as full human beings. We only see them as potential human beings or human beings in training. And I think it is fundamental to change that frame, not only because I think it dehumanizes kids in ways that's deeply harmful to them, but because I think it sets us up for failure as a nation in the years ahead.

15:47I think when you mistreat children, you are going to set yourself back in countless ways in two, three, four, five, six, seven decades. Yeah. So I wonder if we've touched on this a little bit already, in the beginning. So there are existing structures and ways of thinking about children's rights and the agency we award them in various ways, in various contexts. And I did wonder and wanted to talk a bit about areas and ways in which children really can benefit from, I guess, support and oversight, which is maybe a tricky word, but also the things that we have been doing, right? You mentioned this agency or federal bureau that existed at some point in the past.

16:29So essentially, are there any clear examples of children really benefiting from the structures and institutions and laws that are already in place? And if you can say anything about that. Sure. And so this kind of goes back to part of the question, one of the early questions that I didn't quite answer. And this is another strange kind of apparent, you know, sort of contradiction, which is how we try to protect kids from a lot of things. It's not that we don't protect kids from, it's just that we seem to protect them from things that they don't necessarily need protection from. And so here I'm thinking of country mud or swear words or learning about sex in a sex education course at a school.

17:13And then we end up actually exposing them to extremely harmful things, which are really bad, as I just mentioned, lead paint dust in apartments. I live in downtown Philadelphia, right? We have very old housing stock. We do very little to protect infants and small children in rental apartments from that. We do a very bad job, as anyone who listens to the news over the last month, of protecting children from gun violence. We do a terrible job of protecting kids from the harshness of the criminal justice system. I just mentioned a couple of minutes ago, more than 100 years ago, people got together and said the harshness of the adult criminal justice system ought not be inflicted.

18:08on the youngest americans this is unjust this is going to cause problems in the present and the future and they change the system and yet if you look we've regressed we quite often now routinely transfer kids from the juvenile system to the adult criminal justice system we give kids who are under 18 incredible decades-long sentences and you know we still despite all of the evidence on the problems with school discipline that then feed kids into the criminal justice system, we continue to routinely suspend and expel students who, you know, are either going through normal adolescent acting out or have, you know, oftentimes mental health issues untreated that would be much better served through medical care than a criminal approach.

19:04And I think, you know, So as we think about how to navigate, this is another opportunity to embrace the social science here, right? We actually have social science that tells us the things that we ought to be most worried about with kids and the things that we can actually relax a little about. I remember one time I was riding, and this is fairly recently, I was on an airplane. I sat next to a gentleman and he started to ask what kinds of work I do. and I talked about children's rights. And he started talking about his daughter. I was very worried about sex offenders. He'd gotten even more scared.

19:42He'd gone on the internet and looked at all the sex offenders who lived in his neighborhood. And he wasn't sure whether his daughter should ride her bike anymore. And I said to him, I share that concern and that fear. That's every parent's worst nightmare. Right. But how do you feel about like bike safety? Does your daughter always wear a helmet? Have you put a helmet on her? Do you know if she crosses major streets? And the amazing thing is this loving father had never given that a second thought. And yet if you look at the numbers, right, the great dangers are not to children, are not, you know, pedophiles hiding in strangers hiding in the woods.

20:31It's routine things, swimming pool deaths, bike accidents that we do very little. These are preventable injuries. And I think if we look and embrace the evidence, listen to the experts, we can create such a better, safer world for kids. Yeah. So one thing I really wondered, and I imagine this is also on the mind of some listeners is personally, I think you give a really compelling case, right? Both at a human level and at a pragmatic level. If you're thinking about why we should put children first or think about these issues more to create a better society for everyone. So I wonder what are some of the arguments you often hear raised in response to the positions you take?

21:12Do people raise like potential unintended consequences? Are they worried about, you mentioned things like partisan interests can play into the positions people take. It can be things like business interests. You also mentioned lack of awareness of the social science around this and all of that. But yeah, what is the common pushback you see? And what is, yeah, what is its nature? So I think I hear a lot of them. So if you're thinking about business interests, one of the ones that I hear when I talk about eroding child labor protections is economic necessity. You know, we have to roll back child labor protections, allow more kids to work longer hours or in more dangerous conditions because our state of Ohio doesn't have enough workers to work in the worst jobs that no one else wants.

22:01And so we need to relax this. And in fact, we need it for parents need that money. Families need that money. And if you look back 100 years ago, when we passed those labor protections, government leaders were making exactly the same arguments about economic necessity. And you would think child labor is an area where, you know, we at least could say, well, we're not going to backslide on that. But again, I think what happens is we start talking about children's rights, and then very quickly we start talking about other people's rights, because we don't see kids as rights holders. So I start talking about, you know, maybe it was a mistake to close schools for so long.

22:47After all, we very quickly opened bars in Philadelphia, where I live. My kids were out of school for, you know, over a year. The argument quickly is, well, you're ignoring teachers' rights. Again, I'm not interested in, you know, ignoring anyone's rights. It's that there's someone, whenever we talk about rights, who we ignore, and it's kids. And I think, you know, when we center the conversation on kids, we start to suddenly see that we actually all have a stake in making good decisions for kids. In Philadelphia, if your argument is we need to keep the bars open to keep the economy of Philadelphia running, what do you think is going to happen in two decades when kids miss out on a year of in-person schooling?

23:39well we're already seeing the learning loss effects when a third grader does not learn to read what does that child's future look like and when there are many of those children living in an urban area like philadelphia what does the future of the city look like well i will tell you for certain the economic outlook is poor indeed and so i think again it's when you have the right frame, when you start to actually look at kids as full human beings and as our future, I think you can make the optimal decisions. Now, I think it's the same thing, you know, when I hear, talk to someone about, you know, I mentioned before, free school lunch.

24:23No five-year-old should be hungry. Well, the first thing I often hear is, well, that's parents, bad parents. There are too many bad, lazy parents out there, deadbeat parents? And my response there is, okay, let's put that to the side. Me, personally, I have a lot of empathy for parents. I think no one wants to not have enough money to make food for their kids. I think we can talk about structural poverty and things like that. But let's leave that to the side. And let's just have a conversation about a real five-year-old who is in kindergarten and no one has made his lunch. Am I right that you and I both agree that little boy needs something to eat?

25:06Because if he's hungry, he's not going to be able to learn arithmetic. He's not going to be able to learn his letters. And I will tell you across the board, every conservative person I've talked to says, okay, I buy that. I buy that one. And they particularly buy it when I'm talking to someone who counts themselves as a fiscal conservative. Because I say, right, this is pennies right now. But if that kid is hungry, anyone who has ever been with a hungry kid, the kid cannot learn. You cannot learn when you're hungry. And so you have to, as a society, the choice, there is no free option. It's either pay for lunch or pay for the cost of not paying for lunch in the decades ahead.

25:49And I think that frame, there's often an idea that somehow, you know, We can just leave it to parents and then it's costless. They screw up. No, because all of those kids grew up to be adult citizens in this country. So it's either pennies on prevention, early intervention, or many dollars on paying for the social costs of those problems that you did not address in childhood. I think basically the conversation and exchange you just mentioned is a really interesting and helpful example of what may and may not work as you converse with different people. So you've been mentioning that it seems like a lot of what's in play here is trying to shift people's perspective or their frame on things.

26:34And so since you speak to a lot of different audiences, you are at the intersection of different fields, at the risk of repeating ourselves a little bit here, what have you found does not work at all? Because you mentioned maybe slight shaming tactics, like making people feel like bad parents, that doesn't seem to work. And on the other hand, you mentioned maybe if you relate things to real outcomes, economic outcomes, and also personal stories and like the costs involved, no matter which decision you make, there's a cost that does maybe seem to work better. So just more generally, what have you found to not work to work?

27:05Well, I think when you characterize people on, you know, again, I'm on a more left person. But when I look and I say that the people who don't want to vaccinate their kids are evil and selfish when I dispositionalize their choices, I think that's really unhelpful. I think it can get sometimes people on the left fired up with righteous anger. But ultimately, I think it really misses the point. I think there are a lot of people who deeply love their children and are trying to do the best. And I think the key is fighting through the noise and like actually looking at the things that I think we share, right?

27:53If it's health, like there are answers to what is the right approach if you care about, if that's your value, if your value is like efficiency of government, these are actually, I think, shared values. And so it's getting past like those people on the other side and are so foolish and stupid and saying, okay, yes, we disagree on things, as I just mentioned. Like, I disagree on what causes poverty, but there's actually something we fundamentally agree on, which is like five-year-old kids shouldn't be hungry. I think that's widely shared. I think we shouldn't punish kids for mistakes their parents have made.

28:34I actually think that is a widely shared value. And I think it's widely shared that we shouldn't choose the really expensive, ineffective method of dealing with social problems. Let's choose the cheap, effective model. And so I think the things that tend to be bad are shaming people. I think there are certain issues that are a harder initial sell for folks. I think people are more open to protecting children than they are with empowering them. Now, again, I'm a law professor, and so I particularly love debating empowerment rights. And I actually think this is an area where we're going to see a lot of movement in the next two or three decades.

29:22In the UK, you may have noticed, it was just announced that they're going to be lowering the voting age to 16 in future elections. This is, you know, a peer country that, like us, hasn't changed, you know, voting rules in over 50 years. And here they are looking at this issue and seeing certainly something that I have come to feel very strongly about, that if children are citizens of this nation, full citizens of this nation. They need to be represented in government. One person, one vote is our conception. And how we get there, this is an area where I think scholars and activists can contribute quite a lot with different ideas from lowering the voting age, allowing all high schoolers to vote for president, to allowing proxy votes for parents so that we assure that, you know, really from birth, if we're going to be allocating representatives based on population and counting children for that, we should also ensure that their interests are represented at the polls.