{"id":4812,"date":"2012-07-11T10:54:05","date_gmt":"2012-07-11T14:54:05","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?page_id=4812"},"modified":"2018-12-24T23:33:10","modified_gmt":"2018-12-25T04:33:10","slug":"roper-graham-and-j-d-b-re-defining-juveniles-constitutional-rights","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/roper-graham-and-j-d-b-re-defining-juveniles-constitutional-rights\/","title":{"rendered":"Colloquium: Roper, Graham, and J.D.B.: Re-Defining Juveniles&#8217; Constitutional Rights"},"content":{"rendered":"<div class=\"entry\">\n<div class=\"wp-discussion-intro\">\n<h3 class=\"wp-discussion-intro-header\">Introduction<\/h3>\n<p>On Monday, March 26, 2012, the Harvard Civil Rights-Civil Liberties Law Review, in conjunction with the Juvenile Law Center and the Milbank Foundation, presented a colloquium: Roper, Graham, and J.D.B.: Redefining Juveniles\u2019 Constitutional Rights. \u00a0Guests at the event included Martin Guggenheim of NYU Law School, Marsha Levick and Robert Schwartz of the Juvenile Law Center, Michael Dale, of the Nova Southeastern Law Center, and the Hon. Jay Blitzman, chief judge of the Middlesex County Juvenile Court.<\/p>\n<p>The colloquium discussed three upcoming articles that will be published in Volume 47, Issue 2 of the Harvard Civil Rights-Civil Liberties Law Review. \u00a0Those articles are \u201c<a href=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/03\/Guggenheim-Graham-v.-Florida.pdf\">Graham v. Florida and a Juvenile\u2019s Right to Age Appropriate Sentencing<\/a>\u201d by Martin Guggenheim, \u201c<a href=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/03\/Levick-JDB-and-the-Reasonable-Juvenile-Standard.pdf\">The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. v. North Carolina for Purposes of the Miranda Custody Analysis: Can a More Reasoned Justice System for Juveniles Be Far Behind?<\/a>\u201d by Marsha Levick and Elizabeth-Ann Tierney, and \u201c<a href=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/03\/Schwartz-Adolescent-Develpment-and-Right-to-Counsel.pdf\">The Legal Significance of Adolescent Development on the Right to Counsel: Establishing the Constitutional Right to Counsel for Teens in Child Welfare Matters and Assuring a Meaningful Right to Counsel in Delinquency Matters<\/a>\u201d by\u00a0Jennifer Pokempner, Riya Saha Shah, Mark Houldin, Michael Dale and Robert\u00a0Schwartz.<\/p>\n<p>Pre-publication drafts of each of the articles can be accessed by clicking on the articles\u2019 titles above. \u00a0Video from the event is available <a title=\"Colloquium Video\" href=\"https:\/\/journals.law.harvard.edu\/crcl\/2012\/03\/21\/cr-cl-presents-a-colloquium-roper-graham-and-j-d-b-redefining-juveniles-constitutional-rights\/\">here<\/a>. \u00a0Responses to the articles will be posted below as they are received.<\/p>\n<\/div>\n<p><script type=\"mce-mce-mce-text\/javascript\" src=\"http:\/\/w.sharethis.com\/button\/buttons.js\"><\/script><a href=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/03\/JLCColloquiumPoster.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"aligncenter size-large wp-image-4572\" title=\"JLCColloquiumPoster\" src=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/03\/JLCColloquiumPoster-662x1024.jpg\" alt=\"\" width=\"662\" height=\"1024\" \/><\/a><\/p>\n<h3 class=\"wp-discussion-response-header\">Responses<\/h3>\n<div class=\"wp-discussion-response\">\n<h4 class=\"wp-discussion-response-name\">Josh Tepfer<\/h4>\n<div class=\"wp-discussion-commentator collapse\"><img loading=\"lazy\" decoding=\"async\" class=\"wp-discussion-commentator-img alignleft\" src=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/04\/graphic-TepferJoshua_v2011-01-130101041.jpg\" alt=\"Bio photo of Josh Tepfer\" width=\"107\" height=\"162\" \/><\/div>\n<blockquote>\n<div class=\"wp-discussion-commentator collapse\">Josh Tepfer joined the Bluhm Legal Clinic as a Visiting Clinical Professor in 2008. He co-teaches a clinical course with the Center on Wrongful Convictions. He is also the Principal Investigator for a pilot project &#8212; The Center on Wrongful Convictions of Youth. Prior to joining Northwestern, Josh worked as a public defender with the Illinois State Appellate Defender\u2019s office in Chicago for four years.<\/div>\n<\/blockquote>\n<div class=\"wp-discussion-response-text collapse\">\n<p>Marsha L. Levick and Elizabeth-Ann Tierney\u2019s <a href=\"..\/..\/..\/..\/..\/wp-content\/uploads\/sites\/80\/2012\/03\/Levick-JDB-and-the-Reasonable-Juvenile-Standard.pdf\">article<\/a> in the upcoming edition of CRCL persuasively argues that the Supreme Court\u2019s decision in <a href=\"http:\/\/www.supremecourt.gov\/opinions\/10pdf\/09-11121.pdf\">J.D.B. v. North Carolina<\/a> holding that a child\u2019s age must inform the custody analysis is a seminal moment for the juvenile justice reform movement. This is a position shared by New York University Law Professors Martin Guggenheim and Randy Hertz in their <a href=\"https:\/\/1.next.westlaw.com\/Link\/Document\/FullText?findType=Y&amp;cite=38%20Wash.%20U.J.L%20%26%20Pol%27y%20109&amp;clientid=Tepfer%20Joshua&amp;transitionType=Default&amp;contextData=%28sc.Default%29&amp;originationContext=RequestDirector&amp;firstPage=true&amp;bhcp=1\">recent piece<\/a> in the Washington University Journal of Law &amp; Policy, which calls J.D.B. \u201ca watershed moment in the jurisprudence of juvenile rights.\u201d From this perspective, there is nothing but vertical nods of agreement. J.D.B. takes the \u201ckids are different\u201d jurisprudence in the recent Eighth Amendment cases like <a href=\"http:\/\/scholar.google.com\/scholar_case?case=16987406842050815187&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\">Roper v. Simmons<\/a> and <a href=\"http:\/\/www.bloomberglaw.com\/public\/document\/Graham_v_Florida_130_S_Ct_2011_176_L_Ed_2d_825_2010_Court_Opinion\">Graham v. Florida<\/a> and applies it to a wholly different constitutional provision. With this, the Supreme Court has understood that kids are kids no matter the criminal stage or the constitutional moment.<\/p>\n<p>Levick and Tierney\u2019s article explores the possible implications of J.D.B.\u2019s \u201creasonable juvenile standard\u201d in other arenas of criminal law, focusing on criminal responsibility for the act committed. Of course, J.D.B. is a Fifth Amendment self-incrimination case, so, as the authors acknowledge in footnote 118, the implications on this area of the law are more direct. In their piece, Guggenheim and Hertz explore this issue, ultimately concluding that a nonwaivable right to confer with counsel prior to a police interrogation is the only adequate safeguard to protect children\u2019s rights during custodial interrogation.<\/p>\n<p>Once again, there is nothing but vertical nods from this writer. But as Guggenheim and Hertz acknowledge, such a rule \u201cimagines a world quite different from ours.\u201d Until we reach this world, with J.D.B. as our guide, there are some more modest criminal procedure reforms that can happen for juveniles in the interrogation room. Consider one possible example.<\/p>\n<p>Forty-three years ago, in <a href=\"http:\/\/scholar.google.com\/scholar_case?case=8766034093838378014&amp;hl=en&amp;as_sdt=2&amp;as_vis=1&amp;oi=scholarr\">Frazier v. Cupp<\/a>, the Supreme Court held a police interrogator\u2019s misrepresentation to a \u201cmature\u201d suspect \u201cof normal intelligence\u201d that another individual had confessed and implicated the suspect \u201cwas insufficient . . . to make this otherwise voluntary confession inadmissible.\u201d This and other cases have led some courts and the leading interrogation training firm of Reid &amp; Associates to bless the practice of <a href=\"http:\/\/www.reid.com\/educational_info\/lyingaboutevidence.html\">lying about evidence<\/a> to the suspect or <a href=\"http:\/\/www.reid.com\/educational_info\/trickery.html\">using trickery and deceipt<\/a>. But even Reid stops short when it comes to juveniles: in Chapter 15, page 352 of the most recent Fifth Edition of <span style=\"text-decoration: underline;\">Criminal Interrogation and Confessions<\/span>, the authors state explicitly that the technique of \u201cintroducing fictitious evidence during an interrogation . . . should be avoided when interrogating a youthful suspect with low social maturity.\u201d<\/p>\n<p>The Seventh Circuit recently considered the practice of lying about evidence to a suspect during an interrogation. In <a href=\"http:\/\/caselaw.findlaw.com\/us-7th-circuit\/1586667.html\">Aleman v. Village of Hanover Park<\/a>, a civil case, the court considered whether the police\u2019s deception rendered the suspects later false admission involuntary. The suspect therein was being investigated when a baby died in his care; during the investigation, the interrogator told the suspect that the doctors had excluded any other possibility other than the baby dying of shaken baby syndrome while in his care. Judge Posner\u2019s unanimous opinion held that this lie took away Aleman\u2019s \u201crational choice\u201d of whether to confess: \u201cAleman had no rational basis, given his ignorance of medical science, to deny that he had to have been the cause.\u201d<\/p>\n<p>Aleman could be read as only denouncing lies to suspects about medical evidence or evidence requiring specialized training. J.D.B.\u2019s stated specific concern about juveniles in the interrogation room, however, highlights why there are reasons to think that a juvenile suspect\u2019s \u201crational choice\u201d as to whether to confess could be taken away with seemingly lesser lies. As I have <a href=\"http:\/\/www.reclaimingfutures.org\/blog\/juvenile-justice-system-teens-more-likely-to-falsely-confess\">written about previously<\/a>, in J.D.B., all nine current Supreme Court justices accepted the premise that juveniles are uniquely vulnerable to the pressures of custodial interrogation.<\/p>\n<p>So what lies during an interrogation might be impermissibly coercive with juvenile suspects while acceptable with adults? A lie about the results of a polygraph exam might be one example. Several courts, like <a href=\"http:\/\/www.leagle.com\/xmlResult.aspx?page=10&amp;xmldoc=2009330174acalapp4th156_1330.xml&amp;docbase=CSLWAR3-2007-CURR&amp;SizeDisp=7\">People v. Mays<\/a> (citing cases), admitted inculpatory statements made following a police ruse that falsely indicates to a suspect that he failed a polygraph exam. The <em>Mays<\/em> court determined that only false evidence ploys that are likely to elicit a false confession are inadmissible, and a lie about a polygraph does not qualify.<\/p>\n<p>We can debate the <em>Mays<\/em> holding and the other cases as it applies to all suspects, but the debate is picked up a notch when it comes to juveniles. I occasionally speak to children and teenagers about wrongful convictions and false confessions. One suggestion to prevent wrongful convictions I\u2019ve gotten often from these young men and women is to give the suspect a lie detector test, and then we will know if they really did it. When I got this suggestion most recently, I asked the class of thirty eighth graders how many of them thought that this was a good suggestion; every hand went up. I followed up by asking if any of them knew that police were allowed to lie to them when they were questioned about an offense, and not a single one of them knew that. Of course, none of the students knew that the results of a polygraph exam were generally not allowed to be considered at a trial.<\/p>\n<p>While my little survey is far from scientific, it does suggest that falsely telling a young suspect that he failed a polygraph exam may take away his \u201crational choice\u201d to confess or make it likely to elicit a false confession. Indeed, it must be extremely counterintuitive to a child to even hear that police are legally permitted to lie to them when questioned, as children generally are told to trust police and go to them when they are in trouble. While an adult or seasoned criminal might understand this, children will not. These factors show cause to revisit the seemingly settled interrogation law allowing lies to suspects through a juvenile lens. As Roper, Graham, and now J.D.B. teach us, what might be okay for adults, may not be right for kids.<\/p>\n<p>&nbsp;<\/p>\n<p><strong>Erik Pitchal<br \/>\n<\/strong><\/p>\n<p><a href=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/Pitchal1.jpg\"><img loading=\"lazy\" decoding=\"async\" class=\"alignleft size-thumbnail wp-image-4990\" title=\"Pitchal\" src=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/Pitchal1-134x150.jpg\" alt=\"Image of Erik Pitchal\" width=\"134\" height=\"150\" \/><\/a><\/p>\n<blockquote><p><span><span style=\"font-family: Arial,Helvetica,sans-serif;\">Erik has had a varied career in and around the law, as a trial attorney, scholar, and teacher, with most of his work focused on advocacy for children and their families and helping agencies develop policies to better protect and serve them. He has represented children in juvenile court cases; litigated federal class action civil rights cases; managed a university-based policy institute; and created a law school clinical education program. He writes, lectures, and <a href=\"http:\/\/www.youtube.com\/user\/epitchal\"><span style=\"color: #0000ee;\">appears on television<\/span><\/a> as an expert commentator on current legal issues.He currently serves as an independent consultant to schools, universities, camps, and other child-serving organizations, offering risk management, policy development, program evaluation, training, and related services. <\/span><\/span><span><span style=\"font-family: Arial,Helvetica,sans-serif;\">Erik is a graduate of Yale Law School and Brown University and was named <a href=\"https:\/\/www.americanbar.org\/groups\/young_lawyers\/awards_scholarships\/child_advocacy_award\/past_recipients.html\">Child Advocate of the Year by the American Bar Association<\/a>.<\/span><\/span><\/p><\/blockquote>\n<p>When I was a new attorney at the <a href=\"http:\/\/www.legal-aid.org\/en\/juvenilerights\/juvenilepractice.aspx\">Legal Aid Society\u2019s Juvenile Rights Practice<\/a>, charged with representing children in the dependency system, one of the strongest messages we received in training was to always have a position on the ultimate question in our cases and to advocate on subsidiary questions accordingly.\u00a0 For example, in New York (as in most states), dependency proceedings are bifurcated, with an initial <a href=\"http:\/\/law.onecle.com\/new-york\/family-court\/FCT01044_1044.html\">adjudication on the merits<\/a> of the petition, and a subsequent <a href=\"http:\/\/law.onecle.com\/new-york\/family-court\/FCT01045_1045.html\">dispositional hearing<\/a> (assuming that the court makes a finding of abuse or neglect) to determine what should happen to the kids.\u00a0 Legal Aid lawyers were taught then (and still are now) that their position on disposition should drive their advocacy on fact finding.\u00a0 Thus, for example, if you are trying to get your clients returned home as quickly as possible, you should seek dismissal of the petition at the adjudication phase (assuming there is no way to settle the issue with the agency).\u00a0 The law provides two bites at the apple \u2013 why not take both?<\/p>\n<p>I take this approach for granted.\u00a0 It seems so obvious \u2013 it is what every lawyer does in every type of case.\u00a0 A defendant in a tort case wants to minimize the amount of damages he has to pay; his lawyer thus tries to get the case dismissed on the law, dismissed on summary judgment, dismissed after the plaintiff\u2019s evidence for failure to establish a prima facie case, and so on.\u00a0 Why should it be different in dependency law?\u00a0 So I was really taken aback when, teaching this approach in some advocacy trainings I conducted for dependency attorneys in the Midwest last summer, I encountered a tremendous amount of resistance.\u00a0 \u201cHow could you, as the child\u2019s lawyer, argue against a finding of neglect if the mother really did neglect her?\u201d was the typical objection.<\/p>\n<p>Comments like this one reveal an essential truth about dependency law: in a system designed to <em>protect<\/em> children, well-intentioned people are frequently prepared to sacrifice other important values, including legal rights, on the altar of child protection.\u00a0 To the lawyers I met last summer, the idea that an attorney might facilitate a court\u2019s making the \u201cwrong\u201d decision on a fact question was repulsive, especially if it would put a child at risk.\u00a0 Just because your client wants to go home does not make getting a case dismissed a \u201csuccess,\u201d they would say.\u00a0 Quite the opposite: in their view, a child\u2019s lawyer should only argue for family reunification at the proper time \u2013 that is to say, <em>after<\/em> a finding is made, so that any return home is under the watchful eye of continued CPS monitoring.<\/p>\n<p>Reading the terrific Pokempner et al. article made me think of these objections in part because the authors are (like me) so grounded in the norm of rights.\u00a0 However, I am afraid that the <em>Mathews <\/em>argument the authors make (and that I have made too) cuts the other way and unwittingly supports the views of the lawyers I described above.\u00a0 The article asserts that \u201ccounsel in child welfare matters is integral to arriving at accurate fact-finding.\u201d\u00a0 In the context of the adjudication phase of a dependency case, your everyday children\u2019s lawyer would agree with this statement \u2013 and proceed to help the agency make its case, regardless of the client\u2019s position on custody.\u00a0 On this view, what I am calling the Legal Aid approach is in tension with the Pokempner assertion: a Legal Aid lawyer\u2019s primary duty is to the client, not to helping the court get to the \u201cright\u201d result.\u00a0 For example, poking holes in the agency\u2019s case at trial just because your client wants to go home does not actually help the court reach a more accurate decision about whether neglect occurred \u2013 in fact, such advocacy <em>contributes<\/em> to the risk that the court will make an erroneous decision, the very opposite of the <em>Mathews<\/em> argument for the right to counsel.\u00a0 And so the \u201cright\u201d to a lawyer in the traditional sense \u2013 in the Legal Aid model \u2013 has the potential of undermining child safety.\u00a0 Many child advocates do not like this, as I experienced dodging rotten tomatoes last summer.<\/p>\n<p>This observation reveals an enduring schizophrenia in juvenile law as a field and among children\u2019s lawyers as a profession.\u00a0 When it comes to children in the delinquency and criminal justice systems, most advocates can get on board the rights revolution and endorse an approach along the lines of what the Juvenile Law Center (and others) have been brilliantly and successfully arguing in the last several years:\u00a0 \u201cChildren are different, and thus deserving of more rights to protect them against the state\u2019s punitive purposes.\u201d\u00a0 When the state is seeking to punish, rather than protect, a child, safe harbor is found in a strong rights orientation.\u00a0 But when it comes to children in the dependency system \u2013 where the state is seen as a protective and benign (if somewhat bungling and imperfect) force \u2013 rights are seen by many as an impediment to safety.\u00a0 Or, at the very least, safety is the paramount right, trumping all others.<\/p>\n<p>The value of reaching an \u201caccurate outcome\u201d in a judicial proceeding is a good touchstone for analyzing this phenomenon.\u00a0 In a delinquency case, we are willing to give up accuracy if it conflicts with fundamental rights.\u00a0 (Or, put another way, the concept of \u201caccuracy\u201d is elastic and goes beyond correct discernment of \u201cwhat happened\u201d to also include protection of the defendant\u2019s rights.)\u00a0 Thus, even if a child \u201cdid it,\u201d he is still entitled to a <em>Mapp<\/em> hearing, hearings to suppress statements and identifications (if the requisite facts are proffered or established), and effective assistance of counsel (<a href=\"http:\/\/www.scotusblog.com\/case-files\/cases\/missouri-v-frye\/\">including during plea bargaining<\/a>), just like an adult.<\/p>\n<p>But in a child protection case, if the parent \u201cdid it,\u201d does the child actually have any cognizable legal interest in the adjudication of that ultimate fact?\u00a0 To be sure, the child has fundamental liberty interests at stake.\u00a0 A useful question to consider is whether counsel can protect those rights just as well after the adjudication as before.\u00a0 Unlike the delinquency proceeding, where the child\u2019s <em>established rights are designed to protect<\/em> against the offense of an adjudication \u2013 regardless of whether the allegations in the petition are true or not \u2013 the rights of the child in a dependency case do not rise or fall with the adjudication of the allegations made against the parent.\u00a0 Those of us who spend time thinking and theorizing about children\u2019s rights probably would do well to spend more time examining the adjudicatory phase of dependency cases to see if rights and protection can be better harmonized in that context.<\/p>\n<p>Of course, for a long time rights and aid were seen as mutually exclusive norms in the delinquency system, with pendulum swings between the two in our national policy.\u00a0 The early American system beget the turn-of-the-20<sup>th<\/sup>-century Juvenile Court movement, which beget <em>Gault<\/em>, which led (some say) to treating children like adults all over again.\u00a0 Some, like retired Judge <a href=\"http:\/\/www.nycjj.org\/michael-a-corriero\">Michael Corriero<\/a> of New York, tried to <a href=\"http:\/\/www.temple.edu\/tempress\/titles\/1730_reg.html\">re-insert benevolence<\/a> into the system for handling serious juvenile offenders \u2013 <a href=\"http:\/\/papers.ssrn.com\/sol3\/papers.cfm?abstract_id=1095411\">perhaps at the risk of rights<\/a>.\u00a0 \u201cChildren are different\u201d can be used <em>by the state<\/em> to protect them in a way that undermines their status as rights holders just as much as \u201cchildren are different\u201d can be used to grant them rights in the first place.\u00a0 What the Juvenile Law Center has been able to do, I think, is successfully argue that children\u2019s differences entitle them to <em>both<\/em> rights and protection.<\/p>\n<p>As the authors correctly point out, <em>Gault<\/em> was never meant to replace the rehabilitative model with the pure adult model.\u00a0 Children can be treated differently \u2013 better, in fact \u2013 than adults, and still be afforded due process, which is not an exclusively adult benefit in our system.\u00a0 (The Court could have grounded <em>Gault <\/em>in the enumerated provisions of the Constitution, but instead relied on the Due Process Clause.)\u00a0 When a child is confronted by the power of the state which seeks to detain him, rights <em>are <\/em>the protection.<\/p>\n<p>Similarly, in the dependency context, rights and protection can co-exist.\u00a0 Children can have the especial benefit of a regime dedicated to protecting their safety, but this need not come at the expense of their putative status as rights-bearers.\u00a0 However, under the current, dominant approach to child protection in the United States, rights and protection are seen as either-or-propositions.\u00a0 Many can agree that when children\u2019s lack of capacity exposes them to overreaching by the state \u2013 as in <a href=\"http:\/\/www.scotusblog.com\/case-files\/cases\/j-d-b-v-north-carolina\/\"><em>J.D.B.<\/em><\/a> \u2013 then children should have the benefit of due process protections.\u00a0 But when the proceeding is designed to <em>protect<\/em> the child \u2013 when the state is seen as a protective force, not a threatening force \u2013 a rift is exposed in the child advocacy community.<\/p>\n<p>The best illustration of this may be <a href=\"http:\/\/www.scotusblog.com\/case-files\/cases\/camreta-v-greene?wpmp_switcher=desktop\"><em>Camreta v. Greene<\/em><\/a>, a Ninth Circuit decision that was later vacated by the Supreme Court.\u00a0 <a href=\"http:\/\/open.salon.com\/blog\/erik_pitchal\/2011\/02\/28\/childrens_rights_at_stake_before_supreme_court\">I\u2019ve written about <em>Camreta<\/em> elsewhere<\/a>, but in brief, it involved a \u00a7 1983 claim for damages by a nine-year-old girl against a CPS investigator and a deputy sheriff.\u00a0 CPS had a tip that the girl was being sexually abused by her father, and rather than asking her mother for permission to interview her (or seeking a court order), the defendants went to her school, pulled her out of class, and questioned her for over two hours.\u00a0 The legal question was whether her Fourth Amendment rights had been violated.\u00a0 Many child advocates asserted that the child did not need or deserve Fourth Amendment rights; they claimed that she was being protected by the state, from her father.\u00a0 They said that giving her constitutional rights in that circumstance would have done the opposite of protecting her.\u00a0 <a href=\"http:\/\/www.americanbar.org\/publications\/preview_home\/publiced_preview_briefs_feb2011.html#camreta\">More than 25 amicus briefs were filed<\/a>, with many child advocates favoring the plaintiff and many others siding with the defendants.\u00a0 The <a href=\"http:\/\/www.naccchildlaw.org\">National Association of Counsel for Children<\/a>\u2019s listserv became a forum for discussing the case, since authors of briefs on both sides were NACC members. Listserv chatter was quite harsh and, at times, personal.\u00a0 Those who favored reversal seemed particularly incredulous that anyone who calls himself a child advocate could favor a legal rule elevating children\u2019s rights above protection, accusing plaintiff\u2019s counsel of essentially exposing children to serious risk of abuse with his arguments.<\/p>\n<p><a href=\"http:\/\/www.bloomberglaw.com\/public\/document\/Camreta_v_Greene_131_S_Ct_2020_179_L_Ed_2d_1118_2011_Court_Opinio\">The Supreme Court vacated the Ninth Circuit opinion on <em>Munsingwear<\/em> grounds<\/a> \u2013 there was a complex intersection between the <em>Pearson <\/em>problem in qualified immunity jurisprudence and mootness as to the plaintiff that is well beyond the scope of this comment.\u00a0 (<a href=\"http:\/\/open.salon.com\/blog\/erik_pitchal\/2011\/03\/04\/moot_moot_for_the_home_team\">I have blogged about it elsewhere<\/a>.)\u00a0 So the uncertainty in the law around the aspect of CPS investigations present in <em>Camreta<\/em> will continue, and with it, the debate about which is more important in dependency law, children\u2019s rights or child protection.<\/p>\n<p>The major tensions in juvenile law today concern the relative power, rights, threats, and duties of the state as versus parents.\u00a0 Where the effect of <em>Gault<\/em> is still felt, and where the Juvenile Law Center\u2019s excellent advocacy using new brain science to establish that children are different has been most effective, is in the Court\u2019s rejection of any self-appointed benevolent role by the state in the arrest and prosecution of children.\u00a0 In that context, at least, the Court is quick to see that children deserve special rights as <em>protection against the state<\/em>.\u00a0 Thus, in <em>J.D.B.<\/em>, the threat was the state and the constitutional right was protection against that threat.\u00a0 But in <em>Camreta<\/em>, many argued that the father was the threat, the state was protection, and the asserted constitutional right would have undermined that protection. When does the state turn from threat into protector?\u00a0 When does a parent change from protector into threat?\u00a0 The only salient difference between the facts of <em>Camreta<\/em> and <em>J.D.B<\/em>. that I can discern is that in <em>Camreta<\/em>, the state claimed that it was playing a protective role, and in <em>J.D.B<\/em>. it acknowledged that it was not.<\/p>\n<p>Interestingly, in another children\u2019s rights case from last term, <a href=\"http:\/\/www.scotusblog.com\/case-files\/cases\/eanf?wpmp_switcher=desktop\"><em>Entertainment Merchants<\/em><\/a>, the Court rejected the state\u2019s role as an aide to parents seeking to protect their children from danger (in the form of violent video games).\u00a0 The Court was not willing to apply the \u201cchildren are different\u201d trope to protect children when the First Amendment was at issue.\u00a0 Instead, it seemed prepared to <a href=\"http:\/\/open.salon.com\/blog\/erik_pitchal\/2011\/07\/28\/supreme_court_kids_have_rights_or_do_they\">let parents manage the aftermath<\/a> when their kids imbibe too much in the Mortal Kombat-riddled marketplace of ideas. \u00a0The protection argument failed in the face of rights.<\/p>\n<p>Going forward, the trick will be getting the Court to continue to use \u201cchildren are different\u201d only in circumstances in which it will enhance their rights, as occurred in <em>J.D.B.<\/em>, <em>Roper<\/em>, and <em>Graham<\/em>, and not in situations that undermine their rights (usually in the name of protection), as could have occurred in <em>Camreta<\/em>.\u00a0 In <em>Entertainment Merchants<\/em> parents were not seen as the force from which children need protecting.\u00a0 When it comes to dependency, where the worry is that parents are dangerous and the state is offered as a protective force, advocates should expect that the Court will still prepared to credit the state\u2019s benevolent purposes, possibly to the detriment of children\u2019s rights.<\/p>\n<p>&nbsp;<\/p>\n<p><strong>Barbara Fedders<\/strong><\/p>\n<p><a href=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/fedders2.png\"><img loading=\"lazy\" decoding=\"async\" class=\"alignleft size-thumbnail wp-image-4993\" title=\"fedders2\" src=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/fedders2-150x150.png\" alt=\"\" width=\"150\" height=\"150\" srcset=\"https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/fedders2-150x150.png 150w, https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/fedders2-175x175.png 175w, https:\/\/journals.law.harvard.edu\/crcl\/wp-content\/uploads\/sites\/80\/2012\/07\/fedders2.png 203w\" sizes=\"auto, (max-width: 150px) 100vw, 150px\" \/><\/a><\/p>\n<blockquote><p>Barbara Fedders is a clinical assistant professor at the University of North Carolina School of Law, where she co-directs the Juvenile Justice Clinic.\u00a0 She was formerly a clinical instructor at the Harvard Law School Criminal Justice Institute and a public defender in Roxbury, Massachusetts.\u00a0 She has published several articles on juvenile justice and child welfare issues.<\/p><\/blockquote>\n<p>In \u201cThe United States Supreme Court Adopts a Reasonable Juvenile Standard in <em>J.D.B. <\/em>v.<em> North Carolina<\/em> for Purposes of the <em>Mirand<\/em>a Custody Analysis: Can A More Reasoned Justice System for Juveniles be Far Behind?\u201d Marsha L. Levick and Elizabeth-Ann Tierney present a compelling case that <em>J.D.B<\/em>. <em>v. North Carolina <\/em>might well alter key criminal law doctrines as they apply to young people. After briefly commenting on their compelling analysis, I offer some thoughts on how the case can spur advocacy that is aimed at keeping young people out of the juvenile and criminal systems in the first instance.<\/p>\n<p><em>J.D.B<\/em>. builds from <em>Roper v. Simmons <\/em>and <em>Graham v. Florida, <\/em>in which the Supreme Court banned, respectively, the juvenile death penalty and life without parole sentences for juvenile non-homicide crimes.\u00a0 <em>\u00a0J.D.B. <\/em>extends the logic of those cases \u2013 that kids are different in constitutionally significant ways \u2013 beyond the Eight Amendment framework and into the police interrogation context.\u00a0 The case holds that a young person\u2019s age must be considered in analyzing whether she was in custody. \u00a0Levick and Tierney argue that it could and should prompt courts and legislatures to re-calibrate the doctrines of felony murder, negligent homicide, provocation, justified force, and duress to account for the age of a juvenile.<\/p>\n<p>Their analysis seems particularly prescient in light of <em>Miller v. Alabama<\/em>, this term\u2019s Supreme Court decision banning mandatory sentences of life without parole in juvenile homicide cases. Writing for the majority, Justice Kagan explains that these sentences unconstitutionally pretermit consideration of a juvenile\u2019s \u201cimmaturity, impetuosity, and failure to appreciate risks and consequences.\u201d\u00a0 Adopting some of the themes contained within Levick and Tierneys\u2019 piece, Justice Breyer, joined by Justice Sotomayor in concurrence, opines that a sentence of life without parole ought never to be imposed upon a juvenile convicted of murder via the felony-murder doctrine.\u00a0 \u201c[T]the theory of transferring a defendant&#8217;s intent is premised on the idea that one engaged in a dangerous felony should understand the risk that the victim of the felony could be killed, even by a confederate\u2026 Yet the ability to consider the full consequences of a course of action and to adjust one&#8217;s conduct accordingly is precisely what we know juveniles lack capacity to do effectively,\u201d he writes. Might <em>Miller <\/em>\u00a0<a href=\"http:\/\/juvenilejusticeblog.web.unc.edu\/2012\/06\/25\/u-s-supreme-court-holds-that-life-without-parole-sentences-for-juveniles-convicted-of-homicide-violates-the-eighth-amendment\/\">open the door<\/a> to further legal challenges to harsh punishments of juveniles, including statutes requiring mandatory transfer of juveniles to adult criminal court?\u00a0 Justice Roberts, in dissent, seems to think so: \u201cThere is no clear reason that principle would not bar all mandatory sentences for juveniles, or any juvenile sentence as harsh as what a similarly situated adult would receive.\u201d<\/p>\n<p>Welcome though they are for youth and their advocates, <em>Roper, Graham<\/em>, <em>J.D.B. <\/em>and <em>Miller <\/em>address owhat happens to youth already ensnared within the juvenile and criminal systems.\u00a0\u00a0 <em>J.D.B. <\/em>might also prompt us to work at a grass-roots level to prevent so many youth from being arrested and prosecuted in the first place. \u00a0\u00a0Consider the case\u2019s facts<em>. <\/em>\u00a0Local police officers came to J.D.B.\u2019s middle school to investigate an off-campus, non-violent crime.\u00a0 School officials made no attempt to contact J.D.B.\u2019s grandmother, his legal guardian, before permitting him to be questioned by police.\u00a0 Instead, a school resource officer hauled him \u2013 a thirteen-year-old, seventh grader receiving special education services \u2013 out of class and into a conference room for questioning.\u00a0 After at least thirty minutes of interrogation, in which officers made a series of threats and promises \u2013 without first giving the warnings required by <em>Miranda <\/em>or the North Carolina statute mandating that youth under age fourteen must be informed that they may have a parent or guardian present during questioning \u2013 J.D.B. confessed.<\/p>\n<p>Additional legislative and policy changes needed, beyond those worked by <em>J.D.B.<\/em>, are needed in at least three areas. \u00a0First, much of the research underlying the holdings in <em>Roper<\/em>, <em>Graham<\/em>, <em>J.D.B<\/em>. and <em>Miller<\/em> regarding the fundamental differences between youth and adults supports a modification in the warnings that are administered to young people.\u00a0 <a href=\"https:\/\/web2.westlaw.com\/find\/default.wl?mt=LawSchoolPractitioner&amp;rs=WLW12.04&amp;serialnum=2024316756&amp;rp=%2ffind%2fdefault.wl&amp;findtype=Y&amp;ordoc=2025498890&amp;tc=-1&amp;vr=2.0&amp;fn=_top&amp;sv=Split&amp;tf=-1&amp;pbc=9EE49912&amp;utid=1&amp;RLT=CLID_FQRLT9356040100287&amp;TF=756&amp;TC=1&amp;n=1\">As psychologists have noted<\/a>, youth are particularly inclined to make choices indicating a propensity to comply with authority figures during police interrogations. Younger adolescents are especially unlikely to grasp the meaning of the <em>Miranda<\/em> warnings.\u00a0 Doubly so when the youth has learning disabilities, as in <em>J.D.B<\/em>.\u00a0 Thus, I agree with those who <a href=\"https:\/\/web2.westlaw.com\/result\/default.wl?rs=WLW12.04&amp;srch=TRUE&amp;cfid=1&amp;method=TNC&amp;service=Search&amp;sri=328&amp;fn=_top&amp;sskey=CLID_SSSA6598817400287&amp;db=JLR&amp;fmqv=s&amp;action=Search&amp;origin=Search&amp;rltdb=CLID_DB197317400287&amp;rlt=CLID_QRYRLT9233218400287&amp;query=%22BARBARA+KABAN%22+%26+%22MIRANDA%22&amp;mt=LawSchoolPractitioner&amp;rlti=1&amp;rp=%2fWelcome%2fLawSchoolPractitioner%2fdefault.wl&amp;vr=2.0&amp;eq=Welcome%2fLawSchoolPractitioner&amp;utid=1&amp;sv=Split\">have urged<\/a> legislatures or police departments to require officers to use language that is understandable to a child, and to mandate that officers ensure juveniles\u2019 understanding of each of the rights contained in the <em>Miranda<\/em> warnings.<\/p>\n<p>Second, even if youth are given warnings in language they can intellectually process, they may be developmentally ill equipped to be able to assert their rights.\u00a0 Rarely if ever having experienced themselves as rights-bearing subjects, most young people cannot be expected to assert the right to remain silent.\u00a0 The power imbalance between an armed police officer and a child is simply too great.\u00a0 Thus, I join those advocates and scholars (including Randy Hertz and Marty Guggenheim as well as Joshua Tepfer on this blog) who believe in the necessity of a bright-line rule mandating that no child under the age of eighteen may be questioned without first having conferred with counsel.<\/p>\n<p>Third, school boards and legislatures must create policies and laws that both limit the authority and discretion of police officers in schools \u2013 if they won\u2019t do away with school police officers entirely \u2013 and ensure students\u2019 constitutional rights are protected. As in <em>J.D.B.,<\/em> schools around the country funnel vulnerable young people \u2013 particularly youth from low-wealth communities, youth of color, and youth with disabilities\u00a0 \u2013 into the juvenile and criminal systems, abdicating their educational responsibility. <a href=\"http:\/\/www.advancementproject.org\/our-work\/schoolhouse-to-jailhouse\">Multiple civil rights organizations<\/a> have decried the school-to-prison pipeline that dominates so many low-wealth communities around the country.<\/p>\n<p>The facts of <em>J.D.B.<\/em> were somewhat unusual in that J.D.B. was interrogated by off-campus police regarding an off-campus crime; more typical are the frequent searches, seizures and interrogations that occur on campus by on-campus school resource officers. SROs receive minimal training and oversight, and in nearly all jurisdictions can conduct searches and seizures based only on reasonable suspicion rather than probable cause.\u00a0 \u00a0Even when courts find school searches unconstitutional, the fruits of the search will likely be used as evidence against a student in a suspension hearing, as schools do not typically apply the exclusionary rule to suspension proceedings.\u00a0 What\u2019s more, <a href=\"http:\/\/www.legalaidnc.org\/public\/ACS\/IssueBrief_Feb-11_SROs_Rev.pdf\">as Jason Langberg, Drew Kukorowski, and I noted in an earlier report<\/a><strong>, <\/strong>studies suggest that a heavy SRO presence in schools intimidates students, creates an adversarial environment, and results in excessive and unwarranted referrals to the juvenile and criminal systems.<\/p>\n<p>What, specifically, should change regarding criminalization of students?\u00a0 Just as a start:\u00a0 state courts should follow the lead of a recent case decided by the <a href=\"http:\/\/www.courts.wa.gov\/opinions\/pdf\/862036.opn.pdf\">Washington Supreme Court hold<\/a>ing that a school police officer needed probable cause to conduct a warrantless search of a high school student\u2019s backpack.\u00a0 Breaking from the trend of state courts that have lumped school police officers in with teachers and administrators in evaluating the propriety of school searches, the Washington court properly recognized that school police officers have constitutionally significant, different functions from school officials.\u00a0 Principals maintain order and discipline in school; police discover and prevent crime.\u00a0 As a result, the Court correctly reasoned, police officers in schools are subject to the probable-cause requirement when conducting searches.<\/p>\n<p>Legislatures and school administrators should amend punitive policies for truancy and school misbehavior.\u00a0 \u00a0For example, earlier this year, <a href=\"http:\/\/www.thestrategycenter.org\/blog\/2012\/02\/28\/making-history-crcs-14-0-victory-city-hall-roll-back-truancy-ticketing-law-lamc-4504\">the Los Angeles City Council voted unanimously<\/a> to amend a portion of the municipal code that provided for punitive ticketing of youth for tardiness and truancy from school.\u00a0 The amendment to the code provides for students to be directed to counseling and remediation resources, and\/or to complete community service rather than being ticketed, fined or handcuffed<a href=\"http:\/\/www.stopschoolstojails.org\/content\/jefferson-county-alabama\">.\u00a0 \u00a0\u00a0In Clayton County, Georgia, and Jefferson County, Alabama,<\/a> juvenile court judges Steven Teske and Brian Huff have developed proposals for graduated consequences for school-based offenses designed to decrease the numbers of juvenile court referrals from school systems.\u00a0 Once adopted, these proposals have resulted in dramatic reductions in minor school offenses in juvenile courts.\u00a0 Rather than referrals to juvenile court, school-based misbehavior (at least for the first and sometimes second offenses) warrants alternative sanctions such as formal warnings and workshops.\u00a0 In Wake County, North Carolina, a school system beset by one of the nation\u2019s largest long-term suspension rates, <a href=\"http:\/\/www.legalaidnc.org\/public\/ACS\/DisciplineDish_Jan-Feb-2011_Rev.pdf\">advocates successfully lobbied for changes<\/a> to the student code of conduct that provide for suspensions of shorter duration.<\/p>\n<p>There is much left to be done to achieve Levick and Tierney\u2019s hoped-for, more reasonable system for young people. \u00a0Yet J.D.B. \u2013 and the grass-roots advocacy it might inspire \u2013 should give us hope that we might accomplish it.<\/p>\n<\/div>\n<\/div>\n<\/div>\n<p><!-- end .entry --><\/p>\n","protected":false},"excerpt":{"rendered":"<p>Introduction On Monday, March 26, 2012, the Harvard Civil Rights-Civil Liberties Law Review, in conjunction with the Juvenile Law Center 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