“Under our Constitution, the condition of being a boy does not justify a kangaroo court.” Justice Abe Fortas, In-re-Gault, 387 U.S. 1 (1967)
PRESENTATIONS
Exploring Juvenile “Law” – Rob Mason, J.D.
Fourth Amendment Issues in Juvenile Law – Kara Fenlon, J.D.
Ethics in Juvenile Cases – Carrie Lee, J.D.
Writs and How to Write Them for Juvenile Cases – Professor Anthony C Musto, J.D.
MIRANDA RIGHTS
“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
When juveniles are arrested, they are entitled, by law, to have their Miranda rights read to them if they are being held in custody and being interrogated by a law enforcement officer. If a juvenile is in custody, then any confession that they give without being informed of their Miranda warnings is inadmissible in court. However, if a juvenile is not in custody, then police are free to question them without informing them of their Miranda warnings and their statements may be admissible in court.
Determining if a juvenile is in custody for the purposes of Miranda has been a legal issue before the U.S. Supreme Court in various cases. In Thompson v. Keohane, the court wrote: “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.” 516 U.S. 99 (1995). “Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry’: ‘[was] there a formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” In 2011, the Court reiterated this in J.D.B. v. North Carolina, stating that whether a juvenile is in custody is an objective test and the child’s age must be taken into account when making this determination. 564 U.S. 261 (2011).
If Miranda warnings are required, then police officers must state the Miranda rights to a juvenile in a language that the juvenile understands. If a juvenile is taken into custody, the arresting officer is required to make a good faith effort to locate a parent or guardian of the juvenile. The arresting officer must explain to the parent or guardian that the juvenile is in custody. They must also state the delinquent act that the juvenile is alleged to have committed and advise the adult of the juvenile’s Miranda rights.
If you or your attorney believes that a law enforcement officer has violated a juvenile’s right under Miranda, the juvenile can move to have the statements suppressed by the court. The court will determine based on the totality of the circumstances, the specific facts in each case, if the juvenile waived the right to remain silent. Fare v. Michael C., 442 U.S. 707 (1979). The court will also weigh factors to determine if the juvenile was in custody when the statements were made, such factors include: (1) the location or physical surroundings of the interrogation; (2) whether a parent or other trusted adult was present; (3) the presence of other adult participants; (4) whether the juvenile was expressly told that he or she was free to leave; (5) whether the juvenile voluntarily submitted to the interview; (6) the duration of the interview; and (7) the nature of the questioning. J.D.B. v. North Carolina.
FURTHER READING
CASE LAW
Miranda v. Arizona, 384 U.S. 436 (1966)
In this landmark decision, the U.S. Supreme Court held that statements made by a defendant during an interrogation while in police custody is only admissible at trial if the prosecution can show that the defendant was properly informed of his or her rights. Miranda requires a suspect to be informed of his or her Sixth Amendment right to legal counsel both before and during interrogation. Police are also required to inform a suspect to be informed of his or her Fifth Amendment right against self-incrimination before police questioning. The suspect must not only understand these rights, but also voluntarily waive them in order for his or her statements to be admitted at trial. Read the full opinion.
Fare v. Michael C., 442 U.S. 707 (1979)
The U.S. Supreme Court held that the totality of the circumstances should be considered when determining whether juvenile suspect’s incriminating statements and sketches are admissible at trial in the basis of waiver. Read the full opinion.
Thompson v. Keohane, 516 U.S. 99 (1995)
In this case, the State of Alaska argued that it was not required to read the Defendant his Miranda rights because he voluntarily came to the police station and was told that he was free to leave at any time. The U.S. Supreme Court wrote: “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve ‘the ultimate inquiry’: ‘[was] there a formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” Read the full opinion.
J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011)
In this case, the U.S. Supreme Court considered whether the age of a child subjected to police questioning is relevant in determining if the child is “in custody”—therefore requiring the law enforcement officer to administer the Miranda warning. In this 5-4 decision, the Court held that if the child’s age was known to the office at the time of police questioning, or if the child’s status as a juvenile is objectively apparent to any reasonable officer, the officer is required to issue the Miranda warning. Read the full opinion.
LEGAL ARTICLES
Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts
Barry C. Feld, Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts, 102 Minn. L. Rev 473 (2017).
Abstract: ime policy. How should the legal system respond when the kid is a criminal and the criminal is a kid? Since juvenile courts’ creation more than a century ago, they have evolved through four periods: the Progressive Era (1899–1960s), the Due Process Era
(1960s–’70s), the Get Tough Era (1980s–’90s), and the contemporary Children Are Different Era (2005–Present). In each period, juvenile justice policies have reflected different views about children and crime control and appropriate ways to address youths’ misconduct. With the U.S. Supreme Court recognizing again that children are not miniature adults, we have an opportunity to enact policies for a more just and effective justice system for youth.
DUE PROCESS
Until 1967, juveniles had only limited protection under the law when it came to their rights in court. However, when the U.S. Supreme Court decided In re Gault, it held that juveniles facing delinquency proceedings are entitled to their Sixth Amendment right to legal counsel, including for indigent defendants, under the Due Process Clause of the United States Constitution. 387 U.S. 1 (1967). The court’s decision in Gault also extended to youth the Fifth Amendment rights to notice of the charges, to remain silent, and against self-incrimination, and the Sixth Amendment right to confront adverse witnesses.
The Supreme Court continued to expand the rights of juveniles in a number of cases during the following decade. In 1970, the Court held that the state is required to prove guilt beyond a reasonable doubt in juvenile delinquency proceedings, rather than by the preponderance of the evidence standard previously used. In re Winship, 397 U.S. 358 (1970). In another case, the Court held that delinquency proceeding constitutes being placed “in jeopardy,” thus prohibiting the future prosecution for the same crime, pursuant to the Fifth Amendment’s Double Jeopardy Clause. Breed v. Jones, 421 U.S. 519 (1975). However, Court’s trend of expanding juvenile’s rights was not absolute; in McKeiver v. Pennsylvania, for example, the Supreme Court determined that juveniles would not be required to be tried by a jury and that cases in the juvenile justice system would be decided by judges. 403 U.S. 528 (1971).
PRESENTATIONS
What Leads To Juvenile False Confessions?
Psychologist Lindsay C. Malloy has devoted her career to improving the treatment of children in the legal system, including the development of better interrogation methods and interviewing techniques. As people across the United States express outrage over the interrogation methods used to question Steven Avery’s intellectually disabled nephew Brendan Dassey in the the Netflix documentary “Making a Murderer,” Malloy reminds readers not to forget the countless numbers of children who face interrogations every day. Dassey, who was 16 years-old at the time, was convicted as an accomplice in the murder.
Lindsay C. Malloy is a developmental psychologist and assistant professor in the Department of Psychology and Center for Children and Families at FIU. She has devoted her career to improving the treatment of youth in the legal system, including the development of better interrogation methods and investigative interviewing techniques. Dr. Malloy’s research has been funded by the National Science Foundation, National Institute of Child Health and Human Development, and the Department of Health and Human Services. She was granted early-career awards from the American Psychological Association for her contributions to science and policy concerning children, families, and the law.
This talk was given at a TEDx event using the TED conference format but independently organized by a local community. Learn more at http://ted.com/tedx.
FURTHER READING
CASE LAW
In re Gault, 387 U.S. 1 (1967)
This landmark 8-1 U.S. Supreme Court decision held that juveniles accused of delinquency must be afford many of the same due process rights afforded to adults via the Fifth, Sixth, and Fourteenth Amendments. These rights include the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to legal counsel. Read the full opinion.
In re Winship, 397 U.S. 358 (1970)
In this U.S. Supreme Court decision, the Court held that juvenile defendants cannot be adjudicated delinquent unless the state proves his or her guilt beyond a reasonable doubt—as required by the Due Process Clause of the Fifth and Fourteenth Amendments—rather than by the preponderance of the evidence standard. Read the full opinion.
McKeiver v. Pennsylvania, 403 U.S. 528 (1971)
In 1971, the U.S. Supreme Court held that defendants in juvenile criminal proceedings are not entitled to the Sixth Amendment right to a trial by jury. While states are not required to allow jury trials in juvenile delinquency cases, states may employ such an option. Read the full opinion.
Breed v. Jones, 421 U.S. 519 (1975)
In this unanimous decision, the U.S. Supreme Court held that when a juvenile is adjudicated in a delinquency proceeding, he or she is put “in jeopardy,” thus barring prosecution for the same criminal offense on the basis that doing such would violate the Double Jeopardy Clause of the Fifth Amendment. Read the full opinion.
Roper v. Simmons, 543 U.S. 551 (2005)
In this 5-4 decision, the U.S. Supreme Court held that it was unconstitutional to impose the death penalty for crimes committed while the convicted was under the age of 18. In Stanford v. Kentucky, 492 U.S. 361 (1989), the Court had previously upheld death sentences for offenders above or at the age of 16; in effect, the decision in Roper v. Simmons overturned state statutes in 25 states. Read the full opinion.
LEGAL ARTICLES
I Wish I Knew Then What I Know Now: Looking to the Objective Science in Evaluating Juveniles’ (In)competency
Tina M. Robinson, I Wish I Knew Then What I Know Now: Looking to the Objective Science in Evaluating Juveniles’ (In)competency, 49 Sw. L. Rev. 144 (2020).
Abstract: Tommy, a nine-year-old boy with no prior juvenile court involvement, is charged with a crime serious enough in his state to be transferred automatically to adult court. At the recommendation of a medical professional team, Tommy was deemed incompetent, and the court ordered him to an outpatient psychiatric facility to “restore” his competency. After eight one-hour sessions, Tommy learned to repeat his charges, appeared to understand their meaning, learned each of the various court personnels’ roles, described evidence that potentially could be presented in his case, and repeated potential consequences of being found guilty. Nonetheless, there was something lacking in Tommy’s responses, which became evident during the last session. First, in answer to what his job in court was, Tommy stated, “[t]o do nothing . . . no, my job is to sit there and . . . whatever the witness says I can tell my lawyer, and whatever the judge asks me I don’t have to answer it.” When asked whether there was anything else that may help his case, he answered “no.” The evaluator then asked Tommy whether he thought he should share with his lawyer specific facts that may help his case. Tommy’s answer was “[n]o, it wouldn’t be good for me to tell my lawyer, because I wouldn’t want people to know I’m scared of things . . . and [my friends] will make fun of me.” It was evident that while Tommy could regurgitate factual understandings, rational reasoning was not present. Yet some states, based on their statutes, would still deem Tommy competent.
Kent Revisted: Aligning Judicial Waiver Criteria with More Than Fifty Years of Social Science Research
Amanda NeMoyer, Kent Revisited: Aligning Judicial Waiver Criteria With More Than Fifty Years of Social Science Research, 42 L. Rev. 441 (2018).
Abstract: Although some form of transfer–allowing certain youths’ cases to be tried in criminal court rather than in juvenile court–has existed since the early years of separated juvenile systems, the Supreme Court did not establish mandatory procedural protections for youth facing a transfer decision until 1966. In Kent v. United States, the Court held that judicial waiver of juvenile court jurisdiction decisions are “critically important,” and, therefore, youth facing such transfer determinations must receive an adversarial hearing, effective assistance of counsel, and a statement of reasons for the judge’s final decision. The Court declined to prescribe substantive considerations for juvenile court judges to consider when making waiver decisions; however, it did include, as an appendix to the decision, a list of eight factors in use by the Juvenile Court of the District of Columbia at the time of Morris Kent’s transfer decision. In the years following the Kent decision, many states adopted some or all of these criteria, often referred to as the “Kent factors,” as part of their judicial waiver statutes. However, given Kent‘s recent 50-year anniversary, these criteria should be re-evaluated in light of more than 50 years’ worth of social science research–often cited and endorsed by the Supreme Court– examining adolescents, their capabilities as defendants in the juvenile and criminal justice systems, and their relevant differences from adults.
Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts
Barry C. Feld, Competence and Culpability: Delinquents in Juvenile Courts, Youths in Criminal Courts, 102 Minn. L. Rev 473 (2017).
Abstract: ime policy. How should the legal system respond when the kid is a criminal and the criminal is a kid? Since juvenile courts’ creation more than a century ago, they have evolved through four periods: the Progressive Era (1899–1960s), the Due Process Era
(1960s–’70s), the Get Tough Era (1980s–’90s), and the contemporary Children Are Different Era (2005–Present). In each period, juvenile justice policies have reflected different views about children and crime control and appropriate ways to address youths’ misconduct. With the U.S. Supreme Court recognizing again that children are not miniature adults, we have an opportunity to enact policies for a more just and effective justice system for youth.
“Developmental Incompetence, Due Process, and Juvenile Justice Policy” by Elizabeth S. Scott and Thomas Grisso, North Carolina Law Review (2005)
In this article, the authors discuss the legal, constitutional, and institutional challenges of developmental incompetence of juvenile offenders, especially in relation to the Due Process Clause. Read the full article.
“‘I Ain’t Takin’ No Plea’: The Challenges in Counseling Young People Facing Serious Time” by Abbe Smith, Rutgers Law Review (2007)
Abstract: Criminal defendants daily entrust their liberty to the skill of their lawyers. The consequences of the lawyer’s decisions fall squarely upon the defendant. There is nothing untoward in this circumstance. To the contrary, the lawyer as the defendant’s representative is at the core of our adversary process. As practicing lawyers know, interviewing and counseling are at the heart of legal representation. This is what lawyers do, even trial lawyers: we talk with and advise clients. As criminal lawyers know, the decision whether to go to trial is “the most important single decision” a client faces, and requires wise counsel. When the decision is a close call—there is no great cost to going to trial, no clear benefit to accepting a plea, and no serious downside either way—it is easy to accede to a client’s wishes. But when there is no question that going to trial will be ruinous, and the client does not understand this, it is incumbent upon the lawyer to get through to the client. This is especially true when the client is developmentally immature and emotionally traumatized. Read the full article.
“A Critical Examination of ‘Being Black’ in the Juvenile Justice System” by Jennifer H. Peck and Wesley G. Jennings, Law and Human Behavior (2016)
Abstract: The current study examined the role of race in juvenile court outcomes across 3 decision-making stages. This analysis was conducted with a random sample of all delinquent referrals in a Northeast state from January 2000 through December 2010 (N = 68,188). In addition to traditional logistic regression analysis, a propensity score matching (PSM) approach was utilized to create comparable samples of Black and White youth and provide a more rigorous methodological test of the relationship between race and juvenile court processing. Results indicated that even after the use of PSM techniques, race was still found to influence the likelihood of intake (OR = 1.54; 95% C.I. = 1.48–1.62, p < .001), adjudication (OR = 0.80; 95% C.I. = 0.76–0.84, p < .001), and disposition (OR = 1.64; 95% C.I. = 1.54–1.76, p < .001) outcomes. The findings show that Black youth received disadvantaged court outcomes at 2 of the 3 stages, even after balancing both groups on a number of confounders. Black youth were treated harsher at intake and judicial disposition, but received leniency at adjudication compared with similarly situated Whites. These relationships were the most evident at the stage of judicial disposition. The findings impact both researchers’ and policymakers’ strategies to more fully understand the complex relationship between race and social control. They also reaffirm the noticeable role that selection bias can play in the research surrounding race differences in juvenile court outcomes, and highlight the importance of utilizing a more stringent statistical model to control for selection bias. Purchase access to the full article.
“Juvenile Justice Sentencing: Do Gender and Child Welfare Involvement Matter?” by Christina C. Tam, Laura S. Abrams, Bridget Freisthler, and Joseph P. Ryan, Children and Youth Services Review (2016)
Abstract: For young people who come into contact with the juvenile justice system, how they are sentenced following an arrest may profoundly influence the course of their development and adjustment as adults. Much of the research to date has focused on racial and ethnic disparities in juvenile justice sentencing policies and practices, and less is known about sentencing disparities based on other youth characteristics. Using Los Angeles County administrative data, this study investigates the effects of gender and child welfare statuses on sentencing for young people who are arrested for the first time (N = 5061). Results indicate that both young men and women are sentenced more harshly dependent upon the disposition, such that girls were more likely to be sentenced to group homes compared to boys, but boys were more likely to be sentenced to correctional facilities compared to girls. Child welfare-involved youth with a recent placement history are prone to more punitive sentences compared to their non-child welfare counterparts. Further, child welfare young women were not more likely to be sentenced to a harsher disposition compared to child welfare young men or non-child welfare young women. Implications for practice and future research are discussed. Read the full article.
CRUEL AND UNUSUAL PUNISHMENT
Prior to 2005, offenders who were over the age of 16 at the time that their crimes were committed could be sentenced receive the death penalty (Stanford v. Kentucky (1989)). But in Roper v. Simmons, the U.S. Supreme Court ruled that it was unconstitutional for a youth under 18 years old at the time of his or her crime to receive a death sentence. This landmark case eliminated capital punishment for juveniles, but still be allowed for sentences of life in prison without the possibility of parole.
However, in 2010, the Supreme Court ruled in Graham v. Florida that sentencing a juvenile to life without the possibility of parole for a non-homicidal crime is in violation of the Eighth Amendment. 560 U.S. 48 (2010). This decision requires that states give juveniles a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Then in 2012, deciding Miller v. Alabama, the Court held that juveniles mandatory life without parole sentences violate the Eighth Amendment. 132 S.Ct 2455 (2012). This ruling requires a judge to take into consideration the age of the offender before sentencing him or her to life without parole.
The ruling in Miller ruling affected mandatory sentencing laws in 28 states and the federal government. States applied the law inconsistently until 2016, when the Supreme Court settled the matter in Montgomery v. Louisiana. 136 S.Ct. 718 (2016). In the case, the Court determine that Miller had established a substantive rule because it prohibited the imposition of a sentence of life without parole for juvenile offenders and that rule should be applied retroactively to all juveniles serving mandatory life without parole sentences.
PRESENTATIONS
The Intricacies of Juvenile Like Without Parole Resentencing – Roseanne Eckert, J.D.
In response to Miller v. Alabama, Florida lawmakers passed legislation requiring individualized sentencing hearings for juveniles who are facing life in prison. In 2015, Florida Supreme Court decided in Falcon v. State that Miller must be retroactively applied. Over the past three years, the legal landscape has been rapidly evolving as the Florida courts grapple with the application of Miller and Graham v. Florida. This course assumes basic knowledge of Roper v. Simmons, Graham, and Miller as well as the provisions under Chapter 2014-220, Law of Florida. We will review changes to the Florida case law and litigation/appellate issues that are pending throughout the State.<
FURTHER READING
CASE LAW
Roper v. Simmons, 543 U.S. 551 (2005)
In this 5-4 decision, the U.S. Supreme Court held that it was unconstitutional to impose the death penalty for crimes committed while the convicted was under the age of 18. In Stanford v. Kentucky, 492 U.S. 361 (1989), the Court had previously upheld death sentences for offenders above or at the age of 16; in effect, the decision in Roper v. Simmons overturned state statutes in 25 states. Read the full opinion.
Graham v. Florida, 560 U.S. 48 (2010)
The U.S. Supreme Court extended its decision in Roper v. Simmons to include juvenile offenders sentenced to life imprisonment without the possibility of parole for non-homicide offenses. The Court held that such sentences violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. Read the full opinion.
Miller v. Alabama, 132 S. Ct. 2455 (2012)
In this 5-4 decision, the U.S. Supreme Court extended its decision in Graham to include juveniles sentenced to life without the possibility of parole for juvenile offenders convicted of murder. Read the full opinion.
Montgomery v. Louisiana, 136 S.Ct. 718 (2016)
In this case, the U.S. Supreme Court held that its ruling in Miller should be applied retroactively. This ruling has the potential to affect up to 2,3000 cases across the country. Read the full opinion.
ARTICLES AND PAPERS
Juvenile Life Without Parole: How the Supreme Court of Ohio Should Interpret Montgomery v. Louisiana
Grace O. Hurley, Juvenile Life without Parole: How the Supreme Court of Ohio Should Interpret Montgomery v. Louisiana, 68 Clev. St. L. Rev. 102 (2019).
Abstract: Regardless of the numerous differences between juveniles and adults, some states, including the State of Ohio, continue to impose upon juvenile homicide offenders one of the harshest forms of punishment: life without parole. In 2016, the United States Supreme Court decided Montgomery v. Louisiana, and in doing so, the Court reiterated its previous contention that a sentence of juvenile life without parole should only be imposed upon juvenile homicide offenders whose crimes reflect “irreparable corruption.” The Supreme Court of Ohio has yet to apply the Court’s Montgomery decision, but this Note suggests that if it does, the court should utilize the case as a way to end the imposition of this type of sentence on juveniles in Ohio.
Raising the Age of Juvenile Delinquency: What Science Says About the Age of Maturity and Legal Culpability
Brittany Cicirello, Raising the Age of Juvenile Delinquency: What Science Says About the Age of Maturity and Legal Culpability, 53 Prosecutor 4 (2019).
Abstract:
Cruel and Unusual: The Case Against Registering Kids as Sex Offenders
Nicole I. Pittman & Riya Saha Shah, Cruel and Unusual: The Case Against Registering Kids as Sex Offenders, 32-SUM Crim Just. 32 (2017).
Abstract: America’s kids have racked up some big wins in the nation’s most august court. The victory lap began in 2005 when the Supreme Court banned the death penalty for juveniles. (Roper v. Simons, 543 U.S. 551 (2005).) In 2010, the Court barred mandatory life without parole for juveniles, except those convicted of murder. (Graham v. Florida, 560 U.S. 48 (2010).) Two years later, the Court eliminated this exclusion, reasoning that a mandatory sentence of life in prison without the possibility of release violates juveniles’ constitutional protections against “cruel and unusual punishment.” (Miller v. Alabama, 132 S. Ct. 2455 (2012).)
A New Era in Juvenile Sentencing: Why Montgomery, Adolescent Neuroscience, and a Shift in the National Conversation Point Toward a Need for a Measure 11 Reform
Joshua Olmsted, A New Era in Juvenile Sentencing: Why Montgomery, Adolescent Neuroscience, and a Shift in the National Conversation Point Toward a Need for Measure 11 Reform, 23 Lewis & Clark L. Rev. 465 (2019).
Abstract: In 1994, Oregon voters passed Ballot Measure 11, a mandatory minimum sentencing scheme that imposes long inflexible sentences for a plethora of serious crimes. In addition to establishing mandatory minimum sentences, Measure 11 dramatically re-shaped the landscape of the juvenile justice system by mandating transfer to adult court for youth between 15 and 17 years old, charged with any Measure 11 offense, even if they are eventually convicted of a lesser offense. In recent years, there has been a push to rethink the way that we evaluate and treat juvenile offenders. Evolving Supreme Court jurisprudence, along with new research into adolescent neuroscience have called into question the appropriateness of treating juvenile and adult offenders equally when dealing with lengthy criminal sentences. This Note examines the history and justifications behind Measure 11’s treatment of juvenile offenders and proposes two functional and realistic reforms that would make Measure 11 a fairer sentencing scheme for juvenile offenders. Part I outlines the history of Measure 11, the reforms it laid out for Oregon’s sentencing of juvenile offenders, and the system’s shortcomings. Part II examines the evaluation of the Supreme Court’s jurisprudence regarding juvenile sentencing and how Measure 11’s structure clashes with the Court’s command that “children are different.” Part III outlines recent advances in adolescent neuroscience and how they relate to juvenile criminal culpability and Oregon’s juvenile sentencing practices. Part IV offers proposed reforms and how they fit within the existing provisions of Measure 11.
Punishing Kids in Juvenile and Criminal Courts
Barry C. Feld, Punishing Kids in Juvenile and Criminal Courts, Crime & Just. (Forthcoming 2018).
Abstract: During the 1980s and 1990s, state lawmakers shifted juvenile justice policies from a nominally offender-oriented rehabilitative approach toward a more punitive and criminalized one. Pretrial detention and delinquency dispositions had disproportionate adverse effects on minority youths. Despite juvenile courts’ convergence with criminal courts, states provided fewer and less adequate procedural safeguards to delinquents than to adults. Developmental psychologists and policy analysts contend that adolescents’ compromised ability to exercise rights requires greater procedural safeguards. States’ transfer laws sent more and younger youths to criminal courts for prosecution as adults, emphasized offense seriousness over offender characteristics, and shifted discretion from judges conducting waiver hearings to prosecutors making charging decisions. Judges in criminal courts sentence youths similarly to adult offenders. The Supreme Court, relying on developmental psychology and neuroscience research, in Roper v. Simmons, Graham v. Florida, and Miller v. Alabama, emphasized adolescents’ diminished responsibility and limited the harshest sentences. However, the court provided states limited guidance on how to implement its decisions. Judicial and legislative responses inadequately acknowledge that “children are different.”
Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment
Maria Slater, Note, Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual, 104 L. Rev. 547 (2018).
Abstract: In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and, given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.
“Prospects for Developmental Evidence in Juvenile Sentencing Based on Miller v. Alabama“ by Thomas Grisso and Antoinette Kavanaugh, Psychology, Public Policy, and Law (2016)
Abstract: Recent U.S. Supreme Court decisions barred mandatory life without parole for juvenile homicide (Miller v. Alabama, 2012) and applied Miller retroactively (Montgomery v. Louisiana, 2016). Miller identified several developmental factors to consider in mitigation, but left many questions unanswered about their application. The authors offer several sentencing contexts to frame the types of developmental and clinical evidence that may be relevant for Miller hearings under various circumstances. Within these contexts, they explore types and sources of relevant developmental evidence and raise questions about quality and limitations. Their analysis identifies areas in which appellate court clarification is needed to determine how developmental evidence will be used in Miller cases, and they alert developmental experts to prospects and cautions for providing relevant evidence, as well as areas in need of research. Read the full article.
“Protecting America’s Children: Why an Executive Order Banning Juvenile Solitary Confinement Is Not Enough” by Carina Muir, Pepperdine Law Review (2016)
Abstract: Despite its devastating psychological, physical, and developmental effects on juveniles, solitary confinement is used in juvenile correctional facilities across the United States. This Comment posits that such treatment violates the Eighth Amendment’s Cruel and Unusual Punishment Clause, the United Nations’ Convention on the Rights of the Child, and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. It likewise argues that that President Obama’s recent Executive Order banning juvenile solitary confinement is simply not a powerful enough remedy and discusses why it must be paired with Congressional legislation or Supreme Court jurisprudence if it is to have any lasting effect. Read the full article.
“The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty’s Unraveling” by Scott E. Sundby, University of Miami Legal Studies Research Paper No. 15-5 (2014)
In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court’s Eighth Amendment jurisprudence that has found the death penalty “disproportional” for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated “evolving standards of decency.” This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making. The Court thus articulated expressly for the first time what this Article calls the “unreliability principle:” if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed. In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants. And, unlike with the “evolving standards” analysis, the unreliability principle does not depend on whether a national consensus exists against the practice. This Article identifies the six Atkins–Roper factors that bring the unreliability principle into play and shows why they make application of the death penalty to mentally ill defendants unconstitutional. The principle, which finds its constitutional home in the cases of Woodson v. North Carolina and Lockett v. Ohio, has profound implications for the death penalty, and if taken to its logical endpoint calls into question the Court’s core premise since Furman v. Georgia, that by providing individualized consideration of a defendant and his crime, the death penalty decision will be free of arbitrariness. Read the full paper.
“Accepting Miller ’s Invitation: Conducting a Capital-Style Mitigation Investigation in Juvenile- Life-Without-Parole Cases” by Betsy Wilson and Amanda Myers, The Champion (2014)
In this article, the authors discuss how to conduct a capital-style mitigation investigation in juvenile life-without-parole cases, especially in light of the U.S. Supreme Court’s decision in Miller v. Alabama. Read the full article.
“Retaining a Forensic Mental Health Expert in Miller Cases” by Antoinette Kavanaugh, The Champion (2014)
In this article, the authors discuss how to retain a mental health expert for the purposes of a Miller re-sentencing hearing. Topics include the types of forensic mental health experts; preparation for clinicians, defendants, and the defendant’s family for clinical evaluation; and the factors that defense attorneys and clinicians must consider for Miller evaluations. Read the full article.
A More Just System of Juvenile Justice: Creating a New Standard of Accountability for Juveniles in Illinois
Brooke Troutman, A More Just System of Juvenile Justice: Creating a New Standard of Accountability for Juveniles in Illinois, 108 J. Crim. L. & Criminology 197 (2018).
Abstract: For over a century, America’s legal system has made substantial reforms to change its treatment of adolescents. Every day, we see that our legal system treats adolescents differently from their adult counterparts. With regards to driving privileges, voting rights, and the ability to drink, our laws recognize that adults and adolescents are different and therefore require a different set of standards. America extended this treatment to the realm of juvenile justice in 1899, when Cook County, Illinois, created the country’s first juvenile court. Originating in this court was the overarching purpose of America’s juvenile justice system–rehabilitation of juvenile offenders.
Though over a century has passed since the creation of America’s first juvenile court, only recently has the law begun to treat juveniles differently from their adult counterparts. In the past decade, landmark Supreme Court decisions Roper v. Simmons, Graham v. Florida, J.D.B. v. North Carolina, and Miller v. Alabama have implemented constitutional shields for juveniles against the death penalty, life without parole, and improper Miranda waivers. In implementing these safeguards, the Supreme Court has employed new scientific understandings of juveniles, as well as common sense, to conclude that juveniles are different from adults and should be treated differently by the law.
Though the Supreme Court created safeguards for juveniles in death penalty and life without parole circumstances, situations still exist that threaten the lives of juvenile offenders. Illinois accountability theory is one such situation. In Illinois, accountability theory is the mechanism by which the State can convict an offender of a crime which they did not actually commit. In Illinois, an individual who exhibited more than “mere presence” at the scene of the crime can be convicted of the same crime and sentenced in the same manner as the individual who committed the crime. Given the recent landmark Supreme Court cases, new scientific findings relating to the psychological understanding of juveniles, as well as simple common sense, accountability theory should not be used to prosecute juvenile offenders in Illinois.
DECISION-MAKING, JUDGMENT, AND ADOLESCENT DEVELOPMENT
Kids are different. The way that adolescents behave, solve problems, and make decisions differs markedly from that of adults. Research has shown that there is a biological explanation for this. The amygdala is a specific region of the brain that is responsible for immediate reactions, such as fear and aggressive behavior. This region develops early in life. However, the frontal cortex, which is responsible for reasoning, progresses in the later stages of human development. The frontal cortex is still changing and maturing well into adulthood.
Brain imaging shows that the brains of adolescents work differently, particularly when they make decisions or solve problems. Adolescents’ actions are guided more by the emotional and reactive amygdala and less by the reasonable frontal cortex. Drug and alcohol during adolescence can also inhibit these developments.
A number of developmental difference exist between adolescents and adults, depending on the stage of brain development. Adolescents are more likely to act impulsively and/or aggressively. They are also more likely to misinterpret social cues or emotions expressed by other individuals. Additionally, adolescent have more difficulty in thinking before they act and in adequately weight the consequences of their actions. As a result, they are more likely to engage in risky or dangerous behavior.
These brain differences do not mean that adolescents are incapable of making good decisions; it just means that it is harder for them. Adolescents should not be held to the same standards as adults because they cannot always think about their actions in the way a typical adult would. That is why the juvenile justice system has and needs to continue to adapt in the area of brain science, juvenile decision-making, and adolescent development so that juveniles are punished appropriately when they do make a bad decision that leads to arrest.
FURTHER READING
ARTICLES AND BOOKS
The Age of Culpability: Children and the Nature of Criminal Responsibility
Gideon Yaffe, The Age of Culpability: Children and the Nature of Criminal Responsibility (2018).
Abstract: Why be lenient towards children who commit crimes? Reflection on the grounds for such leniency is the entry point into the development, in this book, of a theory of the nature of criminal responsibility and desert of punishment for crime. Gideon Yaffe argues that child criminals are owed lesser punishments than adults thanks not to their psychological, behavioural, or neural immaturity but, instead, because they are denied the vote. This conclusion is reached through accounts of the nature of criminal culpability, desert for wrongdoing, strength of legal reasons, and what it is to have a say over the law.
The centrepiece of this discussion is the theory of criminal culpability. To be criminally culpable is for one’s criminal act to manifest a failure to grant sufficient weight to the legal reasons to refrain. The stronger the legal reasons, then, the greater the criminal culpability. Those who lack a say over the law, it is argued, have weaker legal reasons to refrain from crime than those who have a say. They are therefore reduced in criminal culpability and deserve lesser punishment for their crimes. Children are owed leniency, then, because of the political meaning of age rather than because of its psychological meaning. This position has implications for criminal justice policy, with respect to, among other things, the interrogation of children suspected of crimes and the enfranchisement of adult felons.
Juvenile Justice Reform in New York: Prosecuting the Adolescent Brain
Cecilia M. Santostefano, Juvenile Justice Reform in New York: Prosecuting the Adolescent Brain, 34 SYRACUSE J. SCI. & TECH. L. 122 (2018).
Abstract: This Note follows New York’s movement for juvenile justice reform, as more research on the adolescent brain emerges. The concept that the adolescent brain differs from the adult brain is relatively new in the legal framework. Juveniles used to be viewed as “miniature adults” and thereby prosecuted as such. Now, due to advances in brain science, research shows juveniles are not as capable of performing many tasks that adults can because of their developmental stage. These tasks include future planning, making complex decisions, and refusing to take part in risky activities if they will gain immediate thrill.
For a state with a reputation for being progressive, New York still implements an arguably archaic practice of prosecuting sixteen- to seventeen-year-olds as adults, despite what the science shows. With a current governor who zealously supports raising the age of adulthood, a debate that has been happening for decades, this Note examines whether the science supports this initiative. This Note concludes with the application of the developments in brain science to changes in the state’s approach to punishment, from a punitive to a rehabilitative system.
Kids Will Be Kids: Time for a “Reasonable Child” Standard for the Proof of Objective Mens Rea Elements
Christopher Northtrop & Kristina Rothley Rozan, Kids Will Be Kids: Time for a “Reasonable Child” Standard for the Proof of Objective Mens Rea Elements, 69 L. Rev. 109 (2017).
Abstract: Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability. In Part II, we provide an overview of mens rea, including why it is an element in crimes, how it is used and defined, what the courts have said about who the reasonable person is or can be, who the fact-finders think the reasonable person is, and how reasonableness is proven or disproven. We also briefly summarize recent scientific research about the juvenile brain and how can we use this information to construct a “reasonable child” standard. In Part III, we discuss the Supreme Court’s holdings on juvenile culpability and argue why they should also apply to proof of the elements for the case in chief. In Part IV, we explain why a reasonable child standard supports of the goals of the juvenile justice system. In Part V, we consider options as to how to change the reasonable person standard to a reasonable child standard. In Part VI, we conclude that, from this point forward, a reasonable child standard should always be used as the reference for proof of objective mens rea elements for juveniles, and that legislative amendments to current criminal and juvenile statutes are the best way to achieve this.
Brain Science and the Theory of Juvenile Mens Rea
Jenny E. Carroll, Brain Science and the Theory of Juvenile Mens Rea, 94 N.C. L. Rev. 539 (2016). Available at: http://scholarship.law.unc.edu/nclr/vol94/iss2/3.
Abstract: The law has long recognized the distinction between adults and children. A legally designated age determines who can vote, exercise reproductive rights, voluntarily discontinue their education, buy alcohol or tobacco, marry, drive a car, or obtain a tattoo. The Supreme Court has repeatedly upheld such age-based restrictions, most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders and a Fourth Amendment jurisprudence that contemplates an adolescent-based standard of reasonableness for the Miranda v. Arizona custody analysis. In the cases of Roper v. Simmons, Graham v. Florida, Miller v. Alabama, and J.D.B. v. North Carolina, the Court’s jurisprudence of youth relies on emerging neuroscience to confirm what the parents of any teenager have long suspected: adolescents’ cognitive abilities and thought processes differ from their adult counterparts. Children are different than adults.
In the cases of Roper, Graham, and Miller, the Court recognized that brain development affects the legal construct of culpability and should accordingly affect punishment. In the Roper case line, the Court reasoned that without mature thought processes and cognitive abilities, adolescents as a class fail to achieve the requisite level of culpability demonstrated in adult offenders. As such, juveniles were categorically spared the death penalty and, in some instances, a sentence of life in prison without the possibility of parole. Likewise, in J.D.B., the Court concluded that the reasonableness of a juvenile defendant’s perception of custody under Miranda v. Arizona must be age appropriate. The Court concluded that as a class adolescents had a different understanding of custodial status than adults. Courts contemplating the validity of a perception of custody under Miranda had to account for this difference in their analysis.
To date, the Court has limited the application of this principle to punishment and consent analysis under Miranda. The logic of the Court’s decisions, however, applies just as strongly to the application of substantive criminal law. Likewise, scholars writing in the field have limited the application of neuroscience to either the territory staked out by the Court or to objective mens rea standards alone. The science, however, does not support such limitations. Just as modern neuroscience counsels against the imposition of certain penalties on juvenile offenders and an adjustment of Miranda’s reasonableness analysis, so it counsels toward a reconsideration of culpability as applied to juvenile offenders through the element of mens rea. The failure to extend this jurisprudence of youth to every mental state element undermines the very role of mens rea as a mechanism to determine guilt.
“Accepting Miller ’s Invitation: Conducting a Capital-Style Mitigation Investigation in Juvenile- Life-Without-Parole Cases” by Betsy Wilson and Amanda Myers, The Champion (2014)
In this article, the authors discuss how to conduct a capital-style mitigation investigation in juvenile life-without-parole cases, especially in light of the U.S. Supreme Court’s decision in Miller v. Alabama. Read the full article.
“Less Guilty by Reason of Adolescence Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty” by Laurence Steinberg and Elizabeth S. Scott, American Psychologist (2003)
Abstract: The authors use a developmental perspective to examine questions about the criminal culpability of juveniles and the juvenile death penalty. Under principles of criminal law, culpability is mitigated when the actor’s decisionmaking capacity is diminished, when the criminal act was coerced, or when the act was out of character. The authors argue that juveniles should not be held to the same standards of criminal responsibility as adults, because adolescents’ decision-making capacity is diminished, they are less able to resist coercive influence, and their character is still undergoing change. The uniqueness of immaturity as a mitigating condition argues for a commitment to a legal environment under which most youths are dealt with in a separate justice system and none are eligible for capital punishment. Read the full article.
“The Legal Construction of Adolescence” by Elizabeth S. Scott, Hofstra Law Review (2000)
Abstract: Two features of the legal regulation of childhood seem troublesome, but ultimately contribute to sensible policies in most contexts. First, the boundary between childhood and adulthood varies in different policy domains, through a regime of age grading under which elementary school students are deemed adults for some legal purposes, while, for other purposes, college students are children. Second, the transitional stage of adolescence is virtually invisible, because, for most purposes, law makers employ binary categories, classifying adolescents as either children or as adults. This framework—a series of legislative bright line rules, arrayed around a presumptive age of majority—generally promotes social welfare as well as the interests of youth. Although this approach sometimes distorts developmental reality, it accomplishes the transition from legal childhood to adulthood over time without incurring the costs associated with the creation of intermediate legal category. Indeed, the unsuccessful experience with abortion regulation (in which adolescents occupy a special category) confirms the benefits of binary classification.
In the context of juvenile justice policy, however, categorical assumptions that ignore the developmental stage of adolescence have harmful outcomes. In responding to youth crime, law makers have shifted the boundary of childhood dramatically during the 20th century. The Progressive architects of the traditional juvenile court described delinquent youths as innocent children, and constructed policies that presumed that the state’s sole purpose was to promote their welfare. Contemporary conservatives, in contrast, assume that young offenders are indistinguishable from adult criminals, and argue that public protection demands that they be subject to the same punishment. I argue that both of these accounts represent distortions and have been the basis of unsatisfactory policies – even in terms of the professed objectives oftheir adherents. A justice policy that treats adolescence as a distinct legal category not only will promote youth welfare, but will also advance the utilitarian objectives of reducing the costs of youth crime. Read the full article.
“Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making” by Laurence Steinberg and Elizabeth Cauffman, Law and Human Behavior (1996)
Abstract: To date, analyses of differences between adolescents’ and adults’ judgment have emphasized age differences in cognitive factors presumed to affect decision making. In contrast, this article examines research and theory on three psychosocial aspects of maturity of judgment: responsibility, temperance, and perspective. For several psychosocial dimensions of maturity that are likely to affect judgment, the existing evidence, while indirect and imperfect, indicates that the greatest differences are found in comparisons between early adolescents versus middle and late adolescents. Developmental research on maturity that focuses specifically on mid- and late adolescence, that simultaneously examines both cognitive and noncognitive factors, and that investigates the relation. Purchase access to the full article.
“Evaluating Adolescent Decision Making in Legal Contexts” by Elizabeth S. Scott, N. Dickon Reppucci, and Jennifer L. Woolard, Law and Human Behavior (1995)
Abstract: Challenges the use by policy researchers of a model for comparing adolescent and adult decision making that is based on informed consent standards. An expanded decision-making framework designed to evaluate “judgment” in adults and adolescents can better test the empirical basis of paternalistic legal policies. The theoretical and empirical literature on the informed consent framework is critiqued and an alternative framework incorporating judgment factors is proposed. Three judgment factors—temporal perspective, attitude toward risk, and peer and parental influence—and their effects on decision making are explored. Finally, implications for future research are analyzed in several decision-making contexts. Read the full article.
VIOLATION OF PROBATION
Juveniles can be placed on probation as punishment. The terms of probation can vary case by case, but whatever the terms and conditions are, they must be followed. If a juvenile on probation violates the conditions/sanctions of probation, a Violation of Probation (VOP) petition will be filed. The Department of Juvenile Justice (DJJ) or the State Attorney’s Office (SAO) is required to bring the child before a court on probation violation charges prior to the expiration of the probationary period.
If a VOP is filed and the juvenile admits the violation or the court finds that the juvenile violated probation, the court may revoke, modify, or continue the juvenile’s probation, as well as impose sanctions that were available at the original disposition hearing. The court could then commit the juvenile to the DJJ. A juvenile who violates his or her probation is subject to separate punishments for each violation.
FURTHER READING
GUIDELINES
How to be Successful at Juvenile Probation from Your Assistant Public Defender
SCIENTIFIC ARTICLES
“Predictors of Juveniles’ Noncompliance with Probation Requirements” by Amanda NeMoyer, Naomi E. S. Goldstein, Rhonda L. McKitten, Ana Prelic, Jenna Ebbecke, Erika Foster, and Casey Burkard, Law and Human Behavior (2014)
Abstract: Probation is the most common disposition for adjudicated youth, but little is known about which specific requirements are commonly imposed on juveniles, the requirements with which juveniles most often fail to comply, and how certain youth characteristics and/or imposed requirements might relate to probation noncompliance. An investigation of 120 archived files of youth represented by an urban public defender’s office identified 29 probation requirements imposed on youth and 18 requirements with which youth commonly failed to comply. Results revealed that 52% of youth failed to comply with at least one probation requirement; prior probation noncompliance and race were both significantly associated with noncompliance in the examined probation disposition. In addition, the probability of probation noncompliance was significantly higher when youth received either of two substance-related probation requirements: drug tests or drug and alcohol counseling. Such results may prompt further investigation of juvenile probation-related predictors, identify areas of need for clinical service provision to foster successful completion of probation requirements, and help identify areas of potential biases among juvenile court personnel. Purchase access to the full article.