Kids and Justice: The Legal Battles Ahead

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Photo by Tim Evanson via Flickr

Photo by Tim Evanson via Flickr

The failure to protect young people’s constitutional rights in court—such as access to legal counsel—amounts to a ‘crisis’ in the nation’s juvenile justice system, a New York conference is told.

 Some of the country’s top legal experts say the protection of children’s rights in courtrooms is the next major challenge for the juvenile justice system.

Young people’s lack of access to adequate counsel now amounts to a “crisis,” as juvenile misbehavior has been increasingly criminalized over the past two decades, Kim Dvorchak, executive director of the National Juvenile Defender Center, said yesterday.

“There are places where children are processed on their very first court date without ever having access to an attorney,” Dvorchak told a conference on “Children and the Law” at John Jay College of Criminal Justice in New York.

“They are entering guilty pleas without anyone talking with them about the consequences of their case.  And they’re waving critical rights to an attorney (during) trial and investigation.”

In the Colorado county where Dvorchak lives, some 45 percent of all children processed through the juvenile courts never speak to a lawyer, according to figures obtained by her center. (Dvorchak did not say what time period this represented.)  In other counties, she said, the figure was as high as 80 percent.

The failure of many jurisdictions to collect appropriate data suggested it was a “hidden problem” across the country.

“What’s not reported on, what’s not collected, is not able to be reviewed,” she said.

Marsha Levick, deputy director of the Juvenile Law Center, said other rights constitutionally guaranteed to adults in the justice system were ineffectively enforced for young people.

Noting that this year marks the 50th anniversary of the Supreme Court ruling guaranteeing every person the right to remain silent and the right to have counsel—among the six requirements police are required to fulfill under the so-called “Miranda” warnings—Levick said the ruling made little difference to juveniles facing often-terrifying court procedures.

“Think about how many 11- to 14-year-olds really understand what any of that means,” Levick said, predicting that the Supreme Court will soon be asked to address the issue.

Such legal issues continue to hamper fair treatment of young people—despite “the extraordinary journey of success we have had in the courts,” added Levick, who has successfully litigated some of the most well-known cases involving juveniles, including the notorious  2008 ”kids for cash” scandal involving two Pennsylvania judges who took kickbacks for assigning troubled youth to for-profit  detention centers.

Levick cited major Supreme Court decisions since 2005 that have transformed the way justice-involved youth are treated by the courts, including the elimination of the death penalty for juveniles, banning both life-without-parole for juveniles in non-homicide cases, and mandatory life-without- parole for juveniles in homicide cases.

‘Cultural Change’ Needed

Although these decisions “up-ended how we think about children in terms of justice,” Levick said some of the hardest battles remain in accomplishing the “cultural changes” still needed in the juvenile justice system.

The conference was told that seven states still require juveniles older than 17 to be tried in adult court (Lousiana became the latest state to raise the age of adult jurisdiction to 18 yesterday)—even as proposals in other states are now on the table to increase the age to 21 or older in a category some are calling “emerging adult.”

Carolyn Frazier, clinical assistant professor at Northwestern University School of Law’s Bluhm Legal Clinic, said that over the next several years the courts will have to weigh new scientific evidence suggesting that young people’s ability to weigh the impact of their actions is not fully mature until their early 20s.

Meanwhile, she said, a flourishing Web-driven industry in criminal backgrounding threatened the privacy and future of young people whose brush with the justice system gave them a criminal record.

“It’s scary stuff,” said Frazier, explaining that records revealing even a relatively minor school-disciplinary infraction that was adjudicated in juvenile court—and which was available to anyone who obtained access—could prevent a young person from getting a job, or force his family out of public housing.

“In my state, Illinois, about one-third of one percent of records are expunged,” she said, pointing out that fees as high as $300 for erasing just one arrest record effectively prevented many youngsters from low-income background from fulfilling their potential as adults.

A series of encounters with police—especially common to minority youth in heavily policed neighborhoods—could cost “thousands of dollars” to remove from the record, she said.

The theme of unfinished business dominated discussions during the final sessions of the two-day juvenile justice conference, sponsored by John Jay’s Center on Media, Crime and Justice and the Tow Foundation.

Vincent Schiraldi, Senior Research Fellow and Director of the Program in Criminal Justice Policy and Management at Harvard’s Kennedy School of Government, said the country had come a long way from the 1980s and 1990s when experts called for harsh measures to combat what they said was a growing threat of juvenile “super-predators.”

The sharp decline in youth incarceration has been matched by the shutdown of juvenile detention facilities around the country. Some 52 such facilities were closed between 2007 and 2011.

“I think you’ll be hearing more and more about facilities closing, states completely de-institutionalizing, and raising the [juvenile] age to 21 in all fifty states,” predicted Schiraldi, whose career included stints running juvenile corrections in Washington DC and heading the New York City Department of Probation.

But in a keynote address to the conference, he echoed warnings by earlier speakers that system change had to be accompanied by a different approach to young people—particularly those from minority and indigent communities who were both misunderstood and feared by a largely white justice establishment.

“A focus on reentry and rehabilitation and less on punishment requires a different cultural mindset in this country that will take much longer to achieve, and may not come simply as a result of people adapting themselves to new [justice] systems,” Schiraldi said.

“We should treat these children just as we would treat our own children or our neighbor’s child.”

Isidoro Rodriguez is a John Jay College student who is serving a journalism internship with The Crime Report. He welcomes comments from readers.



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