Tuesday, March 13, 2018
Joyce Radice of the University of Tennessee School of law has exposed as untrue the myth that juvenile records do not interfere with with life opportunities as juveniles become adults. Prof. Radice argues that juvenile records are much more easily accessible than most realize. The full article, published with Georgetown Law Journal, Vol. 106 No. 2 (2018) may be found here. The abstract reads:
The proliferation of adult criminal records and their harmful impact on people with convictions has received growing attention from scholars, the media, and legislators from both sides of the political aisle. Much less attention has been given to the far-reaching impact of juvenile delinquency records, partly because many people believe that juvenile records are not public, especially after a juvenile turns eighteen. That common notion is a myth.
This Article addresses that myth and adds to both the juvenile justice ad collateral consequences literature in four ways. First, The Juevenile Record Myth illuminates the variety of ways states treat juvenile records - revealing that state confidentiality, sealing, and expungement provisions often provide far less protection that than those terms suggest. Although juvenile delinquency records are not as publicly accessible as adult records, their impact is felt well beyod a juvenile's eighteenth birthday. No state completely seals juvenile delinquency records from public view or expunges them. Some states even publish juvenile records online, and almost all permit some degree of public access.
Second, this Article provides the first comprehensive analysis of the crucial role of nondisclosure provisions in eliminating the stigma of a juvenile record. Now that colleges, employers, state licensing agencies, and even landlords are increasingly asking about juvenile delinqency charges and adjudications, the confidentiality, sealng and expungement protections that do exist, will be significantly undermined unless states allow juveniles with records not to disclose them. Third, using recent literature on juvenile brain development and the recidivism research of criminologists, The Juvenile Record myth presents new arguments for why juvenile delinquency records should not follow a juvenile into adulthood - and why the state's obligation to help rehabilitate juveniles (an obligation typically recognized in a state's juvenile code) should extend to restricting access to juvenile records. Finally, Prof. Radice argues for a comprehensive and uniform approach to removing the stigma of a juvenile record through a combination of robust confidentiality, expungement, sealing, and non-disclosure statutes to facilitate a juvenile's reintegration.
Thursday, February 15, 2018
Adam Foss is an amazing advocate for juveniles. As a Suffolk County (MA) prosecutor, Mr. Foss learned to listen to his young clients and came to understand the reasons why poor, and often brown or black, youths engage in criminal activity. Interrupting the school to prison pipeline is something he recognizes that all of us can do. Addressing the fundamental needs of poor boys and girls, such as education and self-esteem, are key. The difficulty comes in convincing prosecutors to be invested in listening to the juveniles' stories and creating responses that assist them in escaping lives of financial and emotional poverty. Adam Foss' transformative approach to juvenile justice can lead to not only transformation of the juveniles but of the prosecutors, as well.
Mr. Foss' website, prosecutorimpact.com, emphasizes those benefits when prosecutors have a broader vision of how justice is accomplished. Prosecutors need to embrace a paradigm shift from conviction being considered the only "win". According to Mr. Foss, a win includes:
Improved community safety
Repaired harm of the victims
Improved long-term community health
Hold those who commit crimes accountable in ways that increase their chances for success in the community.
The last element gives essential support to the first three.
Here is link to Mr. Foss' Ted Talk.
Thursday, June 29, 2017
Last month, the U.N. Committee on the Rights of the Child met with a U.S. government delegation as part of its formal review of the United States under two of the optional protocols to the Convention on the Rights of the Child. The United States ratified the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol on the Involvement of Children in Armed Conflict in 2002, and this represented a combined third and fourth review of the U.S. government practices. The Committee has now released its Concluding Observations with respect to the U.S. efforts under the Optional Protocol on the Sale of Children.
While acknowledging a number of important legislative developments in the United States since the last review – such as the Justice for Victims of Trafficking Act (JVTA) and the Preventing Sex Trafficking and Strengthening Families Act – the Committee also addressed a number of critical shortcomings. What is notable (and troubling) is that many of the Committee’s recommendations highlighted issues in the U.S. response that the Committee previously addressed in 2008 and 2013. These findings should be a reminder to policy makers and anti-trafficking advocates that although significant efforts are underway, the U.S. response still has a long way to go.
Highlights of the Committee recommendations are below:
- Insufficient data collection and evidence-based research. The Committee reiterated concerns over the “lack of progress on establishing an effective national data collection system on the sale of children, child prostitution and child pornography” and the “insufficient research and evidence-based policy and programme analysis centred on children and the root causes of the crimes affecting them.” Simply put, without good evidence, it’s highly unlikely that the U.S. can develop a truly effective response.
- Lack of evaluation of training programs. The Committee praised the U.S. government’s report that it provides training on trafficking and other issues covered by the Optional Protocol “to all persons and institutions that come into contact with children” (NGOs working on these issues will be surprised by this claim by the U.S. government). However, the Committee notes the importance of evaluating the effectiveness and impact of that training. Evaluation of laws, policies, and programs continues to be insufficient, leaving it unclear whether the U.S. is doing something or doing something effective.
- Unbalanced efforts in addressing sex trafficking and labor trafficking. The Committee restated its finding that across many areas the U.S. government’s emphasis on sex trafficking persists. There still are higher legal burdens for establishing trafficking of children for forced labor than for sexual exploitation, and research remains “overwhelmingly focused on trafficking for sexual exploitation” with relatively little on labor trafficking. All children deserve protection from exploitation.
- Lack of primary prevention focus and efforts. The Committee again noted that the U.S. response typically takes place after some harm has occurred and urged the U.S. government to focus also on primary and secondary prevention. Prevention must be the ultimate goal, and general awareness campaigns are not sufficient. The U.S. government must address the root causes of vulnerability and of the demand for goods and services provided by exploited children, if we are to make meaningful progress in preventing harm to children.
- Finally, the Committee also acknowledged the recent surge in the number of unaccompanied refugee and migrant children, and it urged the U.S. government to take concerted efforts to ensure the protection of these children.
The entire Concluding Observations are worth a close reading. Addressing the above recommendations and other recommendations in the Concluding Observations will take significant effort and resources to address. However, they offer a roadmap to preventing harm to children and ensuring the rights of all children. Both of those aims seem worth the effort and resources.
Sunday, October 2, 2016
The Age of the Child
(Yale Law School)
Recently I had the opportunity to spend time with a group of wonderful clinical law professors who were visiting New Haven, Connecticut from Israel. I took several of them to the local juvenile delinquency court for the morning session, and they had the opportunity to observe a few hearings, talk with two of the court’s judges, and ask lots of questions (in addition to seeing how quickly the landscape changes just half a mile from Yale’s campus).
Having moved here for the academic year from North Carolina, I consider Connecticut’s juvenile court system to be extremely enlightened in comparison. In North Carolina the upper age cutoff for original juvenile court jurisdiction is 16, while in Connecticut it is 18, with Governor Dannel Malloy advocating for including 19 and 20 year-olds. In North Carolina the decision to transfer a child from juvenile to adult criminal court for prosecution hinges primarily on the protection of the public, while in Connecticut the judge must consider the best interests of the child as well as the public. In North Carolina placement in detention is a regular occurrence, while the presumption in Connecticut is to keep adolescents at home or in the community and to provide comprehensive support and services. Likewise, in North Carolina youths receive no credit for pretrial detention when subsequently placed on probation, but in Connecticut they earn a reduction of the probation period equal to the number of days spent in detention or lockup.
Yet, whether it is North Carolina, Connecticut, or any other jurisdiction in the United States, none can compare to Israel’s enlightened approach to juvenile justice. There, only children who are at least 12 years-old can be found to be criminally responsible and, thus, prosecuted in the juvenile court system, while in North Carolina it is as young as 6, and in Connecticut it is 7. In the United States, youths may be committed to juvenile detention or long-term incarceration facilities as preadolescents (in North Carolina as young as 10, and in Connecticut at 7), while in Israel, children must be at least 15 before they can be imprisoned. Furthermore, Israeli juveniles cannot be transferred to the adult court under any circumstances.
Needless to say, the visiting Israeli clinical law professors were shocked to learn about the comparatively harsh procedures and practices of the U.S. juvenile justice system, yet they also pointed out a striking similarity. Just as there is a disproportionate number of low-income children of color in American juvenile courts, in Israel there is a disproportionate number of children who are Arabs or immigrants from Ethiopia or Russia. Likewise, in both countries a significant proportion of children in juvenile court is low-income, struggles academically, and has experienced trauma. In other words, just as the U.S. system serves as a method of social control over youths living on the socioeconomic and racial/ethnic margins, the same trend exists in a comparatively enlightened system on the other side of the globe. And so it goes….
Wednesday, June 1, 2016
For many, the arrival of summer conjures up memories of childhood adventures (or, for parents, images of their children playing and exploring). Play and leisure are not typically associated with human rights, but they are part of human rights law and important to children’s growth and well-being.
In fact, the “right to play” is intertwined with other important rights, as Article 31 of the Convention on the Rights of the Child states:
‘1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.
- 2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.’
Play, rest, leisure, and participation in family and community cultural life are all connected. This idea is not new to human rights. The Universal Declaration of Human Rights, adopted in 1948, states in Article 24 that: “Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.” In other words, a similar concept was recognized in the foundational document of the human rights movement. Though the drafters of the Universal Declaration and the early international human rights instruments tended to have adults in mind, children are people too. The Universal Declaration applies to children fundamentally because human rights do not depend on governments granting rights; individuals have rights because they are human beings.
While rest and leisure are important in the labor rights context for adults, opportunities for leisure and play are even more critical for children. As Dr. Kenneth Ginsburg explains in an article in Pediatrics:
‘Play allows children to use their creativity while developing their imagination, dexterity, and physical, cognitive, and emotional strength. Play is important to healthy brain development. It is through play that children at a very early age engage and interact in the world around them. … Undirected play allows children to learn how to work in groups, to share, to negotiate, to resolve conflicts, and to learn self-advocacy skills…. Play is integral to the academic environment…. It has been shown to help children adjust to the school setting and even to enhance children’s learning readiness, learning behaviors, and problem-solving skills.’
In short, play contributes in a multitude of ways to the healthy development of the child and can improve a child’s capacity to realize his or her right to education.
Evidence of the importance of play and the rights to rest, leisure and play reinforce two important themes. First, all rights matter: the fulfillment of every right can contribute to the development and well-being of children. Second, there are many ways to support and help realize human rights for all: to create safe environments for children to play and explore their world is to advance human rights.
Wednesday, January 27, 2016
If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.
In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.
In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.
At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.
Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.
Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.
Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.
In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”
Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.
This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.
In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.
The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”
The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.
With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.
In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”
It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.
Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.
With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
Editor's Note: This post first appeared on the Juvenile Justice Information Exchange
Wednesday, December 2, 2015
In mid-November, an 8-year-old boy in Birmingham, Alabama, was charged with the murder of a 1-year-old girl named Kelci Lewis. The authorities announced that late on October 10, the girl’s mother and a friend had left six children, none older than 8, at the home unsupervised. They believe that the boy had “recklessly” and “viciously” beaten the toddler when she would not stop crying. The case will be heard in Jefferson County Family Court and can result in a disposition that includes long-term court supervision of the boy and confinement in a secure facility until age 21. Katerra M. Lewis, Kelsi’s 26-year-old mother, has been charged with manslaughter.
In Alabama, there is no minimum age at which children may be prosecuted in juvenile court. Criminal cases can only be transferred from family court to adult criminal court when the defendant is at least 14 at the time the alleged offense occurred. Therefore, the options available to the district attorney’s office in this instance are to prosecute the boy in family court or not to charge him at all.
The jurisdictional limits in North Carolina, where I teach and practice, are similar: the minimum age for juvenile court prosecution is 6, and juveniles must be at least 13 to be eligible for transfer to criminal court.
What could possibly justify bringing a murder charge against an 8-year-old child, who in many states is presumed not to have capacity to form criminal intent or to understand court proceedings? Lara M. Alvis, a former juvenile court prosecutor from neighboring Shelby County, Alabama, has explained, “They either had to say ‘we’re not going to charge’ or ‘we are going to charge,’ and once they say they’re not, that’s going to be a huge problem, because then the child won’t get any services by the state.”
This notion that certain families must be directed into the juvenile justice system in order to “help” the youth and facilitate services, accountability, and discipline is a common misperception.
In 2013, U.S. courts with juvenile jurisdiction handled 1.1 million delinquency cases. Nearly 18% were dismissed at intake and an additional 27% were handled informally, with the juvenile agreeing to some type of voluntary sanction, such as community service or restitution. In 55%, authorities filed a petition and handled the case formally, as they are doing in Birmingham.
In North Carolina, the numbers of cases that were dismissed or handled informally in 2013 were even lower than the national average – only 38.5% of the 158, 973 juvenile court complaints received did not result in formal charges.
In other words, police officers, prosecutors, probation officers, and judges make decisions that cumulatively ensure that more than half of the children enter and remain in the juvenile court system, while the rest are diverted out of it or manage to avoid it altogether. Research shows that the race and ethnicity of the child partially explains this result, as the rate at which black youth in the U.S. were referred to juvenile courts for a delinquency offense in 2013 was more than twice the rate for white youth.
The role of the child’s socioeconomic status has received less attention, although jurisdictions that formally keep track of the income-level of a youth’s family have found that nearly 80% of those in juvenile court were on public assistance or had annual incomes of less than $30,000.
My own research has confirmed that the assumption that court involvement is the best way for poor children and their families to access needed services merely perpetuates a cycle of disadvantage, creating a permanent underclass and contributing to mass incarceration.
This concept, which I call needs-based delinquency, is rooted in the early history of the juvenile court when the focus was on the needs of destitute youth. The founders of the juvenile court were part of a nineteenth century movement that helped elevate the status of children from that of property to a dependent class in need of protection by the state.
In 1825, reformers established the New York House of Refuge, which provided food, shelter, and education to homeless and impoverished youth, many of whom were children of recent immigrants. They made few distinctions between children who were paupers and those who committed crimes and viewed poverty and crime to be virtually synonymous. As legal historian Sanford Fox wrote in 1970, “Unattended pauperism was thought to ripen into criminality, and uncontrolled criminality—particularly vagrancy, beggary and minor thefts—swelled the ranks of paupers who had to be supported in public institutions.” The reformers of this era conceived of both of these conditions in moral terms. Philanthropists as well as public officials believed that immorality caused poverty and that the poor, by virtue of their socioeconomic status, posed a threat to lawful society.
Needs-based delinquency continues to be perpetuated through the structure and culture of the modern juvenile court, beginning with the most common points of entry into delinquency court—the child welfare system, public schools, retail stores, and neighborhood police presence. In all of these forums, typical adolescent behavior of children from poor families is more likely to be criminalized and result in court referrals than misconduct by children from families of means.
The insidious phenomenon is further sustained via juvenile code provisions and court practices as well as the individual perceptions and biases of system actors. For instance, the legislation that governs juvenile court practice in each state commonly contains provisions that explicitly call for consideration of a child’s needs and the family’s socioeconomic status. Also, court policies give decision-makers wide discretion to consider these factors at critical stages of the case.
As a result, there are two explicit tracks that exist in the juvenile justice system: one for middle- and upper-class families who are able to secure private services for their children, such as mental health counseling and drug or alcohol treatment, and the other for low-income (often minority and single-parent) families who can most readily access these resources through a court order following a juvenile delinquency adjudication.
In this way, at each stage of the process, the court gives as much or more weight to the perceived “needs” of the child than to the strength of the evidence against her or to the propriety and rationality of pursuing a criminal prosecution, as in the case of a 8-year-old boy charged with murder.
This phenomenon is particularly troubling given research indicating that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign—even when the disposition is arguably beneficial. Potential negative consequences of juvenile delinquency adjudications implicate such areas as housing, education, immigration, and employment as well as enhanced penalties for future offenses. Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized in the process.
This concern over stigma draws on sociological literature on labeling theory, the concept that attaching a label to a behavior creates further “deviance.” Once the label of juvenile delinquent is formally imposed, it is readily accepted by both the child and the community, and the child is defined and perceived by others through the lens of this label. Community members, police officers, teachers, and potential employers then interact with and judge the child according to that description.
With the increasing awareness of the income gap and how it affects the most vulnerable among us—poor children and their families—we know that children who grow up in poverty are likely to remain poor. We know that language deficits exist in poorer homes and that gaps in school achievement between higher-income and lower-income students have become chasms. We know that poverty impacts the physical health of children—from obesity and diabetes to asthma and heart disease. We know that toxic stress can develop in young children, caused by exposed to stress hormones, such as cortisol and norepinephrine. We know that this level of stress may actually reset neurological and hormonal systems, permanently impacting children’s brains and even their genes.
We also know that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of assault. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence. And we know that the number of cases that are referred to the juvenile court system approximates the same percentage of youth who have been found to grow out of delinquent behavior through typical adolescent development without any court intervention.
Yet, we continue to use the juvenile court system as the primary safety net for poor children and their families. We allow those children with the most needs—emotional, physical, and behavioral—to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.
The 8-year-old boy in Birmingham, Alabama, may sound familiar to you. He may remind you of a friend’s child or a young neighbor. He may even resemble your own son or your younger self. Imagine if he were from a family of means with two college-educated parents who were both gainfully employed. Imagine he had access to therapists and tutors. Picture him living in a well-tended home in a suburban neighborhood. Would this have made a difference to the Jefferson County district attorney’s office? To the Birmingham Police?
Adjudicating children delinquent by reason of poverty is a counterproductive approach. All of our children deserve better.
Friday, October 2, 2015
On October 1st, Somalia officially ratified the Convention on the Rights of the Child (CRC). Now every country in the world has ratified the CRC … except the United States. The United States had as much influence on the text of the CRC as any country – during the drafting of the treaty, the United States submitted proposals and revisions on 38 of the 40 substantive provisions of the treaty. Rights to freedom of speech and freedom of religion are included in the CRC because the U.S. government insisted on it. A review of all treaty provisions reveals that the CRC and U.S. law are largely compatible. Yet the United States remains the only country that resists the idea of accepting obligations to ensure the rights and well-being of every child subject to its jurisdiction.
Since the Convention on the Rights of Persons with Disabilities failed to achieve a two-thirds vote in the Senate in December 2012, the prospects of U.S. ratification of any human rights treaty haven’t seemed great. But progress on the CRC is entirely in the hands of the Obama Administration. The treaty has yet to be forwarded by the President to the Senate.
It’s time. While people might debate the negative consequences of reservations, understandings, and declarations (RUDs), the availability of RUDs negates any argument that issue X or issue Y is a barrier to ratification. The Obama Administration has an opportunity to move the CRC forward, and in doing so not only join the rest of the world but also show U.S. parents and children that the government cares about the rights and well-being of children.
Tuesday, August 25, 2015
In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.
On Friday, Judge Gee entered her order. She ordered the release of immigrant children held at the detention centers. More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania. The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention.
The government has until October 23rd to comply with the order.
One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement. While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.
The administration has not yet announced if it will appeal Judge Gee's decision.
Monday, August 10, 2015
For years, Washington University at St. Louis professor Mae Quinn and her students in the Juvenile Law and Justice Clinic raised constitutional and other legal concerns on treatment of juveniles in the St. Louis County Family Court and other Missouri youth justice venues. Prof. Quinn highlighted many of these problematic practices and experiences in her law review article, "The Other Missouri Model: Systemic Juvenile Injustice in the Show Me State."
Prof. Quinn and her students through in litigation and public education that the St. Louis County Family Court system failed to provide constitutional protections to juveniles.
In November 2013 the United States Department of Justice launched an investigation of the St. Louis County Family Court. Remarkably, clinic students were thereafter banned from appearances in St. Louis Courty's family court. This seemingly retaliatory action was noted in a report released by the Department of Justice affirming the concerns raised by Prof. Quinn and her students.
DOJ analyzed 33,000 juvenile court cases and found that black children are disproportionately represented in decisions to formally charge youth versus informal resolution. The Analysis of 33,000 juvenile court cases showed that Black children are disproportionately represented in decisions to formally charge youth versus handling matters informally. Black children were also more likely to be placed in state custody and in a secure facility., detain youth pretrial, commit youth to Youth Services custody pending trial and place youth in a secure Division of Youth Services facility post- conviction.
Among the constitutional violations cited in the report are:
- Failure to ensure youth facing delinquency proceedings have adequate legal representation;
- Failure to make adequate determinations that there is probable cause that a child committed the alleged offense;
- Failure to provide adequate due process to children facing certification for criminal prosecution in adult criminal court;
- Failure to ensure that children’s guilty pleas are entered knowingly and voluntarily;
- An organizational structure that is rife with conflicts of interest, is contrary to separation of powers principles and deprives children of adequate due process; and
- Disparate treatment of Black children at four key decision points within the juvenile justice system.
Prof. Quinn responded to the report saying:
I am heartened by the report by the United States Department of Justice, which sheds further light on many of the legal concerns and constitutional issues my clinic students and I have encountered and been challenging in local juvenile court systems over the last six years.
“While we have worked with many caring and committed judges, prosecutors, and probation staff during this time — we have also repeatedly been shocked by practices that work to undermine basic rights of due process, representation and zealous advocacy. More than this, the very structure of the system runs counter to basic constitutional separation of powers norms — where everyone but the child and her lawyer (when one is present) — is part of the same team. In such an environment and culture, it is very hard to meaningfully represent children — largely poor youth of color — who are already at risk in this community.
“I am hopeful that this document — like other recent findings and reports that have been issued by DOJ, the Ferguson Commission’s working groups, and others — will serve as a further platform for change in the region. And, as before, the Juvenile Law and Justice Clinic at Washington University School of Law stands at the ready — willing and able to represent kids in our courts and work collaboratively to rethink our juvenile justice system in the days ahead. At this point I believe there is plenty of good will and ability to bring about meaningful reform. I look forward to St. Louis County — particularly as it gets ready to open the doors on its new multi-million dollar youth justice center — serving as a model of best practices for youth justice across the country.”
Tuesday, August 4, 2015
For most U.S. children, summer is a time of fun, a break from school. While play is important for physical, cognitive, and emotional development, summer does have its downside: summer learning loss. Research consistently finds that during the course of the summer, students of all ages forget some of what they learned and regress. Evidence suggests that summer learning loss equates to at least one month of instruction assessed by grade level equivalents. Student knowledge declines more in mathematics than reading, perhaps attributable in part to the greater emphasis on summer reading lists in some areas. Equally important, the summer learning loss exacerbates the achievement gap: “The meta-analysis revealed that all students, regardless of the resources in their home, lost roughly equal amounts of math skills over summer. However, substantial economic differences were found for reading. On some measures, middle-class children showed gains in reading achievement over summer, but disadvantaged children showed losses. Reading comprehension scores of both income groups declined, but the scores of disadvantaged students declined more.” (see Harris Cooper).
This is not a call for year-round schooling. Rather the summer learning loss and achievement gap are important reminders of the many challenges we face in the human rights arena. Making human rights meaningful requires attention to subtle factors that have significant effects. Children have the right to education, which includes a mandate on the state to make primary education “compulsory and available free to all” and secondary education “available and accessible to every child” (CRC, article 28). In developing countries, waiving school fees makes education accessible for a huge number of children, yet more hidden costs – books, uniforms, transportation, etc. – can leave the most marginalized children still without consistent access to education. Similarly, here in the U.S., free public education might provide access during the academic year, but that education is made less meaningful if disadvantaged children are falling further behind their peers each summer. From a human rights perspective, this means that technical compliance with human rights treaty language might not capture all that is essential to children seeking to realize their education rights or other rights.
The nondiscrimination clause of human rights treaties is particularly relevant in this context. It imposes an obligation on states to ensure that all children have equal access to education and other opportunities. As human rights researchers and advocates, our job is to uncover the multitude of barriers—big and small—to the full realization of rights, especially for vulnerable populations, and to ensure that government responses to human rights treaty obligations go beyond technical compliance to secure the full rights of every individual.
Sunday, August 2, 2015
On Friday, U.S. District Court Judge Dolly Gee announced her ruling that hundreds of women and children held in what she described a "deplorable" immigrant detention centers be released. Judge Gee has given the Obama Administration until tomorrow to respond to her plan, which would be implemented within 90 days absent further order.
Ruling under the Flores settlement which Plaintiffs sought to enforce, the judge found that the government violated the settlement agreement by failing to release women and children from detention. Female headed households are to be released under the terms of the 1995 settlement. In addition, the children are being held in secure facilities, again in violation of the settlement agreement.
The government does not dispute that children are being held in secure facilities. Judge Dee referenced evidence presented by the Plaintiffs showing the extended detrimental psychological, developmental and physical harm that children suffer from confinement in a secure facility.
Detainees supported allegations of substandard conditions. Many submitted affidavits describing the freezing cold conditions of confinement where they were given nothing but an aluminum foil blanket that was inadequate to protect from the cold. Others reported mothers and their children being held from one to three days in a small holding areas with up to 100 unrelated individuals in the room. The crowded conditions forced many, including children, to "sleep standing up or not at all".
The description of other conditions, such as hygiene, are equally disturbing. And so are the reported human interactions. When individuals being detained asked for food and drink they were told that "it wasn't their country, it wasn't their house."
Under what circumstances would the U.S. government ever believe that any of this treatment is acceptable? We might find out tomorrow.
Monday, July 27, 2015
On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.
At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade. He was failing several courses and repeatedly disciplined for misbehavior. He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.
On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks. His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.
Despite these hurdles, Taylor made some strides. His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”
The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration. In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1). Appellant failed to establish that he tried to do those things.”
Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families. Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.” Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge. Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current.
For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism. When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding. In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past.
One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents. This burdens the system and actually interferes with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions. Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute. Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider. They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay. For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.
Thursday, June 11, 2015
“Trauma is not random. Its occurrence varies as a function of characteristics of the individual (e.g., racial/ethnic minority or LGBT status), peer relationships (e.g., intimate partner violence), community characteristics (e.g., poor neighborhoods), and socio-political factors (e.g., terrorism, war, and civil unrest). Additionally, these characteristics influence trauma type (e.g., women are more likely than men to be victims of intimate partner violence and unwanted sex). Outcomes of trauma are also not random, and are highly related to characteristics of the individual, peer group support, community, and socio-political factors." These are the findings of a 2014 study on the public health impact of trauma.
Despite living in an era of evidence based planning and decision making, many of our laws continue to employ standards that presume those involved in the legal system are capable of linear, non-traumatized planning and reasoning. Juvenile law is one example. Often system actors approach prosecution and sentencing as if juveniles possessed adult thought capacities. Evidence on juvenile brain development, as well as brain malfunctions following trauma, supports altered reasoning and impulsive actions by juveniles. These conditions are enhanced when the juvenile has been abused. Trying a juvenile in adult court is a scientific absurdity, particularly when the process is applied to traumatized juveniles. The status of the defendant's brain development should drive any decision on prosecution charging and sentencing. But our court systems often make the determination based on the outcome of the crime, not the capacity of the alleged offender.
Similarly judgments are made regarding traumatized adults. Those who have suffered intimate partner abuse frequently are unable to give linear testimony as a consequence of trauma. Yet court actors continue to express frustration with adult witnesses who testify in what is to them an illogical order. Both popular and academic literature describing PTSD is abundant thanks to the post-war difficulties experienced by returning war veterans. The information is readily available to those within the legal system. Yet state actors still expect those who appear before them to behave in a manner that the actor determines conveys credibility, rather than accepting the witness as s/he appears on the trauma scale.
Human rights theories are difficult to argue successfully in these settings. Triers of fact and others often disregard and disrespect traumatized individuals who appear before them. Whether this behavior results from a lack of information or a disregard of literature is irrelevant. The outcome is the assignment of blame to those who have been victimized; and to declare a party not credible based upon the very indicators that prove traumatization. Motivation is not important. State actors cannot understand human rights based legal theories if fundamentally they are unwilling to accept empirical evidence on the impact of trauma. State perpetration of re- traumatization is a violation of fundamental human rights. And it is not random.
Thursday, May 22, 2014
Carrie Bettinger-Lopez sends this post written by student Kelsey Hayden. In this two part post, Ms. Hayden addresses Florida's shocking disregard of the human rights of juveniles in the criminal justice system.
Kelsey Hayden writes:
Juveniles accused of crimes in the United States are sometimes stripped of the protections that they should be afforded at a time when they are most vulnerable. Florida is perhaps one of the worst offenders when it comes to the deprivation of children’s rights in the criminal justice system. While most U.S. states permit the transfer of juveniles alleged to have committed certain crimes to adult criminal court for prosecution, Florida transfers more children under 18 to adult court than any other state. In Florida alone, more than 12,000 children were transferred to adult courts between 2008 and 2012. Florida is one of only 15 states to allow for prosecutorial discretion—and 1 of only 3 states to remove the possibility of any judicial review upon transfer—for all kids aged 14 and up who have been charged with certain enumerated crimes. Prosecutorial direct file removes all judicial discretion and is not in compliance with the corpus juris on children’s rights which provides that when alleged to have violated the penal law, a child has the right to have any potential measures reviewed by an impartial authority or judicial body. Following the March 2014 review of the United States’ compliance with the International Covenant on Civil and Political Rights (“ICCPR”), the United Nations Human Rights Committee (“UNHRC”) recommended that the U.S. ensure that juveniles are not transferred to adult courts.
In Florida, one particularly troubling consequence of such transfers to the adult system is that juveniles who have been charged as adults are automatically detained pre-trial in adult county jails. As a result of a federal and state mandate that juveniles be held out of the sight and sound of adults, juveniles in adult facilities are sometimes held in administrative solitary confinement where they can languish for months, or longer. In the recent review of the United States’ compliance with the ICCPR, the UNHRC also expressed concern about the continued practice of holding juveniles in prolonged solitary confinement, including during pre-trial detention, and recommended that the United States impose “strict limits on the use of solitary confinement, both pretrial and following conviction . . . and abolish the practice in respect of anyone under the age of 18.”The use of solitary confinement on juveniles is a particularly critical concern in light of the mental harm that isolation causes to children. Some of the mental health consequences in juveniles include self-harm, suicidal thoughts/attempts, and hallucinations.
Ms. Hayden continues her discussion of this disregard of the right so juveniles in tomorrow's post.
Monday, March 17, 2014
For those of us promoting a human rights perspective in United States cases involving domestic violence, we often revisit Jessica (Gonzales) Lenehan's cases against Castle Rock, Colorado and later against the United States. For those unfamiliar with the facts of the case, Jessica, a resident of Castle Rock, obtained a protection order restraining her husband from any contact with her. Jessica was awarded custody and the father had certain rights of visitation with the three young daughters. In violation of the visitation schedule and other terms of the protection order, Simon Gonzales removed the three girls from their yard and during the following early morning he drove into the police station parking lot and began shooting at the police. The police officers responded in kind. Simon was killed. Immediately after the exchange of gunfire, the Castle Rock police found the bodies of the three girls in the truck. Each was killed by gunshot.
During the ten or so hours that the children were missing, Jessica called the police numerous times. The police did not take any meaningful measures to find Simon and the girls. Jessica’s concerns were minimized. At one point she was told that the children were with their father and would be safe.
In re-reading the US Supreme Court decision, I was struck again with the odd language used in our US opinions when we discuss enforcement or entitlement to enforcement. The court found that Jessica did not have a “property” interest in the civil protection order issued by the state of Colorado. Because she lacked a property interest, Jessica had no right to expect enforcement despite the mandatory enforcement language of Colorado’s civil protection order statute.
Property in this context is anathema to a human rights perspective. Much of US legal culture revolves around the notion of “property." The protection of land and money is embedded in our legal system. In this instance, to reduce the concept of police protection where a valid court order has entered to a “property “ interest must seem odd to foreign observers. More accurate language is that the state made an agreement with Jessica. The agreement was made clear through the language of the enforcement statute. That agreement demands mandatory arrest when a violation of a protection order is known to the police. Even the language of a state "promise" on which the mother relied is more descriptive of the legal dilemma.
Keeping children and their mothers safe involves basic human rights. Protection by the state and enforcement of orders intended to keep the protected parties safe, are fundamental human rights. Women and children being viewed as “property” is a concept that US based domestic violence and child advocates have been confronting for well over a century and half. The very language of child “custody” connotes parental ownership rights.
It is difficult to eliminate the concept of ownership over women and children while our language continues to reflect jurisprudence based the “property“ interests of its citizens. The language of the Inter-American Human Rights Commission report in addressing the traumatic events suffered by Jessica is focused on her needs as a human being, particularly as a parent. By contrast the language of the Inter-American Commission shifts the legal language from one of abstract and artificial constructs of “property interests” to human rights' language of restoring dignity and addressing the anguish of a mother who daily endures unspeakable pain.