Best of SOTSOGM: Ruminations and ramblings on juvenile justice

>> Monday, November 12, 2012

As I said in the introduction to this one, I don't normally talk about work.  There's a lot of reasons for that, ranging from the ethical and political to the mere fact that I don't want to write a law blog.

Of course, this is hampering insofar as I know more law than I'd like to and much less than I'd like to about the kinds of things I'd like to write about, and this ends up causing all sorts of frustration.

But I was happy with this piece, which went live on October 22nd, 2009.  I think the presentation that went along with it the day after I wrote it went pretty well, too, if I do say so, myself.




I don't normally talk about work, and this isn't work, exactly. But it is the kind of thing I get leery of talking about for... well, I don't suppose in this case there's much reason to be leery, actually. Anyway, a couple of weeks ago I got a call from a local Superior Court judge who asked if I'd speak to a class he's teaching at an area community college; it's a criminal justice course, and they'd been talking about juvenile justice which is sort of a focus area for me, and he'd already invited up some other local players, would I mind giving the defense attorney's perspective, etc.? Honestly, I wouldn't have said "no" even if this was the kind of thing you could say "no" to.

I go in front of his students tomorrow. Not much idea what to say, despite the judge's reassurances; but I'm sort of pacing my office at lunch, thinking about things I could say and re-reading In re Gault, and it occurs to me maybe it would be helpful to babble at the internets a bit.

It's not like I had a blog post planned for today, anyway.

This isn't going to pretend to be organized. More of just a wandering rumination, the idea (from my end) being that I might write something here today that would be clever to say out loud tomorrow, and perhaps the idea from your end being that you can always scroll down the page to the music videos if you'd like.

I don't know how much thought you've given about why we have a juvenile court system. What we have is a sort of uneasy compromise. Some folks have suggested it's the worst of all possible worlds, and I would have to say there's some merit to that. Historically, if you don't know (the class I'm speaking to, by the way, should know this already), what happened was that around the turn of the 20th Century there was a sort of American Renaissance, parts of which took and much of which didn't. Aside from some dubious things like banning the sale of spirituous liquors, you got a forty-hour work week and meat safety inspections and licensing doctors, and a lot of other things; on the legal side of it, one of the things you got was that some folks up in Illinois decided to establish a kind of separate court system for kids.

I don't know if you've thought about what this meant, what this says about the legal system up to that point. Up to that point what you had was basically just William Blackstone, who said that people beneath a certain age had to be regarded as "infants" and therefore completely incapable of forming any kind of criminal intent (and were therefore incapable of being accused of or tried for crimes) or, well, not being infants as evinced by indicators of being able to form criminal intent at a precocious age, indicators such as lying about the act or trying to hide from punishment. Which meant, in application, that if you were a ten-year-old (let's say) and you did something naughty, there would be a kind of ad hoc process to determine whether you would be tried to the fullest ends of the law or not at all. "Well, he burned down the neighbor's house, but he seems a bit childish and foolish; I hope his parents ground him, there's nothing the law can do." Which, bleeding-heart liberal that I am, seems a bit off even to me. Conversely, you might have, "You may be ten, Mister Smith, but you'll die like a man for what you did!" Which I would hope would cause even the hardest-hearted guardian of law-and-order to lose sleep.

Incidentally, the youngest person ever tried and sentenced to death in these United States, at least as far as I can tell, was a ten-year-old, James Arcene, though it seems he got away for a bit and didn't get hanged until he was twenty-three. The youngest people ever executed, as far as I've been able to determine, were two twelve-year-olds, Hannah Ocuish in Connecticut in 1786 and James Guild in New Jersey in 1828. The youngest person executed in the United States in modern times is the little boy in the picture at the top of this piece: his name was George Stinney, Jr., and when he was fourteen he was tried and convicted by the state of South Carolina for the murders of two white girls, and put in the electric chair in 1944; according to at least one source, his feet couldn't reach the floor when they sat him down in it and strapped him in.

The idea they had in Illinois in 1899, which eventually caught on in most states (even, eventually, South Carolina), was that it didn't make much sense to either arbitrarily excuse children for some criminal acts while sending others to prison (or worse) for the same things, or even lesser things, just because a prosecutor, judge or jury decided at some point in the proceedings that one child was hapless and the other Rhoda Penmark's even eviler doppelgänger. So they set up a separate, less-formal courtroom where a judge might look at the child's circumstances, needs, and the behavior that landed the child in Dutch with the law, and craft appropriate disciplinary measures if needed or perhaps only give the child a lecture and a pat on the head before sending him or her off to behave. And in an ideal sort of world, that's not a terrible model, actually; if judges were all the way we want them to be, wise and perfect paternal or maternal figures full of abundant-but-matched measures of compassion and sternness, the traditional juvenile court would actually be perfect.

The problem, of course, is that not all judges are like that. Judges are human, our systems for choosing them are imperfect, and while there are judges who live up to something approaching the ideals of the previous paragraph (I've had the privilege of being in front of just a few of them in the course of my career thus far), there are also judges like the pair of embarrassments from Pennsylvania who pleaded guilty this past February to wire-fraud and tax evasion after it turned out they were taking kickbacks from privately-run detention centers. (If you somehow missed that scandal, I recommend reading the New York Times article linked-to in the previous sentence; it was a pretty awful scandal and whipping's too good for the judges in question.) Happily, there aren't that many criminal judges, either. But there are a lot of judges who fall somewhere in between the extremes of the Solomanic ideal and the squalid disgrace to judicial oaths.

In 1964, an fifteen-year-old Arizona kid named Gerald Gault apparently crank-called a neighbor and he or possibly his friend who was with him said some lewd things, which maybe would have seemed less of a big deal if young Gerald hadn't already been on juvenile probation for purse-stealing and had his name come up in a few other neighborhood incidents. As a result, Gerald's mom got a note from a police officer saying, basically, "come to court at such-and-such a time, bring your boy," and when she did they had a little sit-down with an Arizona Superior Court judge in chambers, at the end of which the judge ordered the kid to be locked up at the State Industrial School until he was twenty-one or someone decided to let him out, whichever came first. It's not even clear whether the Mrs. Gault knew why she was bringing her son up there. Hell, it's not completely clear the judge knew why he was locking the boy up, aside from the fact that he was on probation, and a cop said he'd been annoying the neighbors, and there was some kind of thing about a baseball glove a few years previous that the kid had never actually been charged with; at any rate, it seems like the judge, when he was subsequently questioned at a habeas corpus proceeding filed by Gerald Gault's parents, had some small trouble figuring out which statute he'd even sent the boy off for violating.

The Supreme Court Of The United States had some problems with the whole thing. That's where I come in.

That may seem a bit more melodramatic than it needs to be, but it actually is sort of true. Not that I was alive in 1967, when the Supreme Court decided In re Gault, but that the court decided, eight-one, that young Gerald's rights were violated; that if a juvenile proceeding wasn't exactly a criminal proceeding, it was still kind of like a criminal proceeding, and so a child charged with juvenile delinquency needed to be told of his rights, and what he was accused of, and have a fair hearing, and be able to confront witnesses against him (the lady who was allegedly on the receiving end of Gerald's calls never even came to court), and to have a lawyer (bing! that's where I come in, it being a big chunk of me job and all).

I mentioned earlier the prospect that we possibly have the worst of all systems. It's Gault's bright legacy or dark consequence, depending on how you judge decanted liquids. I also mentioned that Gault was an eight-one decision; well, it's one of those weird ones where the majority opinion reflects progressive ideas--children should get Due Process and all that--and the dissent, by centrist jurist Justice Potter Stewart, actually is founded on more progressive concerns. Justice Stewart wrote:

Juvenile proceedings are not criminal trials. They are not civil trials. They are simply not adversary proceedings. Whether treating with a delinquent child, a neglected child, a defective child, or a dependent child, a juvenile proceeding's whole purpose and mission is the very opposite of the mission and purpose of a prosecution in a criminal court. The object of the one is correction of a condition. The object of the other is conviction and punishment for a criminal act.

In the last 70 years many dedicated men and women have devoted their professional lives to the enlightened task of bringing us out of the dark world of Charles Dickens in meeting our responsibilities to the child in our society. The result has been the creation in this century of a system of juvenile and family courts in each of the 50 States. There can be no denying that in many areas the performance of these agencies has fallen disappointingly short of the hopes and dreams of the courageous pioneers who first conceived them. For a variety of reasons, the reality has sometimes not even approached the ideal, and much remains to be accomplished in the administration of public juvenile and family agencies--in personnel, in planning, in financing, perhaps in the formulation of wholly new approaches.

I possess neither the specialized experience nor the expert knowledge to predict with any certainty where may lie the brightest hope for progress in dealing with the serious problems of juvenile delinquency. But I am certain that the answer does not lie in the Court's opinion in this case, which serves to convert a juvenile proceeding into a criminal prosecution.

The inflexible restrictions that the Constitution so wisely made applicable to adversary criminal trials have no inevitable place in the proceedings of those public social agencies known as juvenile or family courts. And to impose the Court's long catalog of requirements upon juvenile proceedings in every area of the country is to invite a long step backwards into the nineteenth century. In that era there were no juvenile proceedings, and a child was tried in a conventional criminal court with all the trappings of a conventional criminal trial. So it was that a 12-year-old boy named James Guild was tried in New Jersey for killing Catharine Beakes. A jury found him guilty of murder, and he was sentenced to death by hanging. The sentence was executed. It was all very constitutional.

(cit. omit.)


The bitch of it is, Justice Stewart was right, at least up to a point. It's not good at all to put kids in the position Gerald Gault was in, having his freedom curtailed for an indefinite period, possibly several years, without anything like Due Process. On the other hand, giving children protections reserved for alleged criminals has inevitably lead to some degree of treating them like criminals. Justice Stewart's most grim prognostication--that we'd end up right back in the 19th Century with children being hanged with all their Constitutional rights scrupulously intact--hasn't come to pass, but here's where children end up with the worst of all worlds: children in juvenile court still have fewer rights than adults--a juvenile can easily be committed to a Youth Development Center for incarceration for an offense for which an an adult would be guaranteed probation, or for years where an adult would max out his time in months, because juvenile court isn't seen as primarily punitive and States are given a great deal of leeway as to how long it takes to "help" a child in juvenile detention. At the same time, the kind of profound help that might be offered at the expense of all rights is obstructed by... well, by people like me.

Let me see if I can explain that last bit: let's say that what a child needs, really, really needs, is to be pulled forcibly out of the home and placed in a therapeutic foster group home. If the child has no rights whatsoever, it's done as easily as it's said, regardless of what the kid wants. But if the kid has rights, well then, no: a therapeutic foster home deprives him of a liberty interest, even if his sphere of interests is circumscribed to what's reasonable; i.e. it might be facially unreasonable to argue that a thirteen-year-old ought to be allowed to rent an apartment for himself instead of living in a group home, but living with his mom might be at least superficially reasonable (okay, so she might be a crackhead or living in a cardboard box with her boyfriend who's a pedophile, but c'mon, she's his mom, kids oughta be with their moms). So if the kid is saying, no, he doesn't want to live in a group home, he wants to live with his mom, even if living with his mom isn't actually in his best interests, he has some sort of right to go to court and have his lawyer argue that it's in his legal best interests or that regardless of interests its his right to stay with his mom. And legally he might win, even if, as we've parenthetically suggested, living with his mom is an unmitigated disaster. But then the child isn't being given all the rights he might have as an adult; his rights are being doled out in a somewhat arbitrary measure. Where an adult charged with a crime might have a right to do his time and be done with it, a juvenile might well be subjected to years of supervision and guidance and placement and all the rest of it.

D'ya see what I'm getting at?

I started this during lunch, then--perhaps aptly enough--I went to court, including juvenile court, where I did my bit to try to stand up for truth and justice and that whole bit, then I came back and found myself trying to write a few more words. And I find that I sort of have some of my thoughts organized a little for tomorrow, and this has probably gotten unwieldy, and I'm not sure it makes that much sense, but there you are. Ruminations and rambles, and maybe something valuable glimpsed in the thicket that could be grabbed before it's lost to the eye and disappears into the brush. I don't know how much of this will be said tomorrow--perhaps none of it. I think what the judge probably wants is more personal and anecdotal, general impressions and perhaps a deeply-veiled war story if I have one that can be told. Hopefully it will go well; I've already informed the judge that the last two times I was invited to speak in a similar fashion or to similar crowds, I was not invited back in either case.

He thought that was funny. Hey, I tried to warn him....

We'll see how it goes.



1 comments:

John Healy Monday, November 12, 2012 at 1:46:00 PM EST  

Try to have fun with it. You are more likely to make converts that way.

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