Juvenile Justice Outline

Thursday, December 01, 2011 4:02 PM

1. Introduction
A. Prior to the early 19th Century 1. Anglo-American legal system treated young people who violated the criminal law like adults - same sentences, same penal facilities, etc. 2. Infancy doctrine was the only common law protection for youth - child lacks the capacity to distinguish between "right and wrong" a. Children less than 7 conclusively presumed to lack criminal capacity - ability to understand "right from wrong" b. Children between 7 and 14 created a rebuttable presumption of lack of criminal capacity i. Court may consider a variety of evidence: what a similarly situated child might think or know intelligence/experience/education/psychol ogical level, past behavior c. Children over 14 were held fully responsible and treated as adults B. Origins of the Juvenile Justice System - Progressive Era 1. Juvenile justice systems gets rid of this common law binary - adult v. infancy; the question has become no longer what a child has done, but "What is he?"; 2. Now there are 3 categories: infants, juveniles, and adults. 3. Most states today have not put in a minimum age in juvenile statutes; this overrides the infancy defense; however, some states install the age of 7 to hang on to the infancy defense 4. Julian Mack - "The Juvenile Court" - Progressive conception of the juvenile court a. Purpose of juvenile justice i. DIVERSIONARY - Prevents the harms of the adult system - DO NOT HARM Removing stigma through uplift stigma is lifelong; if it sticks at a time when you were not of a capacity to fully understand your actions; selffulfilling prophecy Victimization, interruption of childhood,

ii. INTERVENTIONIST: Correction Moral development disciplining, educating for the purposes of the child internalizing "Void in life" - What's missing in child's life? - "Human love, supplemented by human interest and vigilance"; Delinquent children lack love, role models; skills and confront inadequate parenting (poor and/or immigrant parents may lack American values and may not understand how to train the child into becoming a successful citizen) and medical interests b. Advent of the state as "Parens patriae" i. Rise of the probation officer - different from criminal law's probation officer c. Vision of how to accomplish this reformation/rehabilitation i. If staying at home does not work, the child should be sent off to air, soil, fresh air cottages, etc. Taken away from family Incentive structure d. Cast of Characters to protect the child from the criminal justice system and to provide the uplift i. Judge Single juvenile judge preferred Personality preferences - deeply interested in philanthropy and child life; lover of children Preferably serve for no less than a year Dads - Paradigm shift from looking at whether or not the child committing the crime to looking at "who is this kid" (environment, family, upbringing, etc.) and "what is in his/her best interest" ii. Probation Officer e. Change in courts i. Types of evidence - legal evidence no longer important but there is now a focus on the child's heredity and environment ii. The question is no longer whether or not the crime was committed BUT instead an individualized focus on why and how

iii. However, TENSION between the role of state as genuinely concerned and the child and parent still realizing that he is "face to face with the authority of the state" 5. Implementation a. Illinois Juvenile Act of 1899 i. Disposition indeterminate sentencing; child confined until he reaches the age of majority BUT the sentence may be adjusted based on child's behavior; lasts as long and only as long as it takes the child to attain the individualized goal/rehabilitation; cast of character's facilitate the disposition Discretionary - judge has discretion ii. Joint Jurisdiction Jurisdiction = Children under 16, abused, neglected, destitute or delinquent 2 Types of Joint Jurisdiction - 2 types 2 classes of kids (get same treatment) 1 - Abused, abandoned, and neglected children 2 - Delinquent children iii. Probation Officer Conceptionalized as a person that wears a lot of hats - Interface between child and family and the court An arm of the court Responsible for going out, investigating and furnishing information to court (as opposed to a lawyer getting it) Representing the interest of the child like a guardian ad litem Take charge of the child - Kind of like a social worker A sweeping thing that the probation officer does Nobody pays this person Populated by fairly well to do women that were in the Progressive movement 10 years later - they got civil servant status and they got paid iv. Physical separation from adults v. Open petitioning - "any reputable person" having knowledge of a child who appears to be

neglected, dependent, or delinquent and parent/child MUST come to court vi. Designated Age vii. Process - summons, notice, etc. viii. Lack of money - room/board and probation officers (want people who are volunteering for the "right" reasons) ix. Borrowing act of criminal law b. Changes in 1907 i. Age change to 17 for boys and 18 for girls; and a "ward of the state" until the age of 21 Example - if you become a delinquent before the designated age, then you are a part of the system until 21 ii. Creation of the Status Offense SIGNIFICANT Expansion of what constitutes delinquency - only makes you a delinquent because you are a kid same behavior would not result in punishment for an adult - running away, truancy, using or possessing alcohol, etc. iii. Expungement - concept of record sealing; what happens in juvenile court stays in juvenile court (addresses the idea of no stigma) iv. Judicial waiver provision - for any reason, the judge can decide to send them to criminal court May have been added because communities demanded it/political necessity c. Contemporary Statutes i. Within about a decade, most other states caught on to Illinois Juvenile Court System -- and spread quickly internationally Replaced by statute the common law infancy defense - EXCEPT California So states now have statutory authority to set age maximums and minimums for entrance into the juvenile court Every single statute continues to define the juvenile court's jurisdiction by reference of age and offense Juvenile courts are exclusively statutory entities and states may define their jurisdiction in different ways. All states define their delinquency on the basis on age and criminal

conduct, but may define them in different ways Algorithms - jurisdiction over any age which constitutes a criminal offense UNLESS you're a certain age and commit a certain crime A question arises since juvenile court jurisdiction is based on a youth engaging in conduct that would be a crime if committed by an adult - as to whether the criminal law's jurisprudence also should carry over into the law of juvenile courts. Are the infancy defense, insanity, lack of competency defenses not enough? ii. Open petitioning is gone! iii. Physical separation from adults, judicial waiver, status offenses, and indeterminate dispositions remain d. Goals of the Movement i. DIVERSIONARY: Separation from hardened, adult criminals - let's stop harming children by ii. INTERVENTIONIST: Fix/save children Invention of the status offense - goes beyond the criminal law and uses the state as a backdrop for other forms of authority when other social institutions (i.e., family, parents, etc.) are failing Rationale behind status offenses: Progressive reformers envisioned "childhood" as a period of vulnerability and dependency. Families and schools bore primary responsibility to socialize, supervise, and control young people Where the institutions failed, the juvinile court provided an organizational mechanism to regulate children, to re-enforce the authority of the other social institutions that controlled children, and to oversee the adequacy of their families' supervision. Part of the juve mission included enforcing other people's rules about childhood - the authority of schools,

parents, and to enforce the norms of childhood 6. Core Structural Attributes Joint Jurisdiction between delinquency and a. dependency (neglected, abused, and orphan children - children in trouble) i. Delinquent definition Delinquency can be defined as: 1) acts that would be crimes if committed by adults and 2) status offenses crimes because person is a child NO special criminal law for kids Substantive criminal law is borrowed from the adult criminal law statutes Idea that children are deserving of special attention Sociological Directly - safe place to live, parent, functional parent Idea is that environment has impaired the kid Reflects the idea of POSITIVE CRIMINALITY People are not bad - situations are bad -and causes good people to do bad things. Deep down they are good. From West Story song, "Gee Officer Krupke" "We ain't no delinquents, we're misunderstood. Deep down inside us there is good!" Separate court from adult courts b. Record-Sealing - juvenile court record does c. not follow you into adulthood; mean to be completely confined to juvenile court; "bury the youthful" Probation Officers - assigned as "life d. managers"/"life coach" e. No Money for Anything - huge aspirations which come from charity and volunteers Judges' Discretion - statutes typically provide f. sweeping discretion to determine where child should be placed, should he be waived to adult court, etc. Notice and Process are less complicated than g. adults Physical Separation of Children and Adult h.

Indeterminate sentencing i. j. Waiver C. Theoretical Underpinnings 1. Primary Conceptions a. Difference in the way we viewed childhood adolescence as separate, developing stage of life, AND b. Move toward evaluating people's circumstances i. These two concepts led the movement toward the establishment of the juvenile justice system ii. Occurred alongside the imposition of similar law - mandatory school laws, child labor laws, reforms for orphan and destitute children iii. Ascendance of positivist criminology - a move from penitentiary to training/reformatories 2. Theories a. Positive criminology i. Overarching idea that bad situations not bad people is what is responsible for crime ii. They believed this for adults too iii. Absent something demonstratively wrong - like mental health - bad situations are to blam iv. Reformed the prisons to rehabilitate v. Religiously infused idea b. The Child Saving Theory i. Children needed more support and protection than they were getting ii. Corresponding laws: School, child labor laws, orphan trains D. Status Offenses 1. Behaviors in which adults may engage but which the state prohibits for young people simply because of their age, that is, their "status" as children. 2. Two types Proscriptive rules - thou shall not a. i. Status rules that apply only to young people such as laws prohibiting those under a certain age from using alcohol or being on the streets past a certain hour b. Prescriptive rules i. Require children to do something affirmative to obey their parents orders, to attend school ii. Children who violate these rules may be deemed "incorrigible" or "unruly" or truant, wayward or children growing up in idleness and crime

iii. Children who have not violated a specific proscription but who appear to be in circumstances in which they have or may do something wrong 3. Problem: Juvenile court's jurisdiction over status offenses authorizes states to regulate children's behaviors much more extensively than comparable conduct by adults 4. Children's rights: Because of the dependent status of children, young people's "rights" or claims to autonomy implicate the interests of the child, the parent, and the state, and the balance of interests and authority among the three. 5. Balancing: Competing values of protection or autonomy for children 6. Question: who decides what is best for the child? 7. Subset of delinquency a. Same disposition as other delinquency consequences are the same b. Judge can do all the things above with delinquent kids under status offenses - i.e., family placement, training/industrial, prison/girl prison, etc. c. Why - its all the same, if the kid is going down this bad path, that child needs to be saved so JJ is taking kids off the bad path, and putting them on a good one

2. The Gault Era - Constitutional Domestication

A. Pre-Gault 1. not much happened in juvenile justice between early 1900s and Gault 2. Systems and states have been left to their own devices with no oversight 3. Gault changes a lot! B. In Re Gault - Supreme Court of the United States - 1967 1. Facts: Gerald Gault made a prank call to his neighbor stating "You've got big knockers" - "irritatingly offensive, adolescent, sex variety"; previously had been alleged to have stolen a baseball; had previously been with someone who stole something out of a lady's purse. Court adjudicates him delinquent and gives an indeterminate sentence - confined until he reaches the age of majority, 21, OR until probation officer and/or administration convince judge that he has been successfully rehabilitated

a. Legal Violation: disturbing the peace" - statute which says that it is illegal to make prank call to women and children (find statute) b. Status Offense: habitually involved in a continuing course of immoral matters (*court shoehorns his suspected behavior into a status offense*) 2. Process: Police officers arrested Gault and put him in a detention center where he remained for 4 days. No notice was given. Officer filed a petition, but the petition papers were not served on his parents, and they were not at all notified. The petition was very vague - no reference to what he did, no facts; just a pro forma thing they filed hand written thing to tell them where to go and time a. Hearing #1 - No record of anything. No court reporter. Complainant was not there. No witnesses. No counsel. No formal charges. No specificity as to the crimes (no facts or corresponding law). Questioned by a judge as to a prosecutor. No appellate review by Arizona law in juvenile cases (according to the statute). No record and no one was sworn in, no transcript, no memorandum of the proceedings; the judge can't even cite the correct provision; Judge sends Gault to a industrial school until 21 or unless earlier release is necessary ; indeterminate sentence can be altered by judge if convinced by probation officer, person at industrial school, etc. 3. Critique a. Shocking Points i. Lack of consideration for whether or not staying at home with his family was in the best interest of the child ii. Lack of process - safeguards are available to adults in this same situation iii. Severity of "punishment" - adult in same situation could have paid a very small fine or been imprisoned for very little time iv. America set up this system and opens it up to perverse consequences b. Not so shocking i. The goals was for this system NOT to look like a criminal process so it makes sense that the procedure is different ii. System needs to afford judge this amount of discretion

iii. Parents likely assumed to be "unfit" 4. Narrow holding: Due process protections apply to juvenile proceedings. But NOT all of the them. Only ones that are essential to "fundamental fairness" during the adjudicatory phase if the possible consequence could be confinement in a state institution. a. RULE: Due process protections apply ONLY to juvenile proceedings: i. Occurring during the adjudicatory phase ii. That are essential to "fundamental fairness" iii. Where the possible consequence could be confinement in a state institution. b. Seems to intentionally leaves out pre-trial (arrest, search and seizure, investigation, indictment, etc.) and post-trial (sentencing and disposition). c. This part is odd - that they don't rule on the prehearing part - because that was a main thing that Gault was complaining about - how he was arrested and detained d. Is this a limitation? No! Seems like every delinquency proceeding could result in incarceration 5. Rights that meet the Gault criteria a. These are important for several reasons i. needed for preparation for defense ii. accuracy concern for charges and guilt or innocence - whether what they are saying actually happened - "Procedure is to law what scientific method is to science" iii. 3) Fairness/Coercion - protects the relationship between individual and state; realigning and elevating the child to a position of being more of an agent as opposed to just an object of the law iv. 4) Legitimacy of the justice system Process is itself therapeutic - Intervention itself is important to "therapy" Court sets out the Gault Balancing Test b. balancing the benefit of the procedural safeguard in terms of the 1) accuracy goal and 2) due process goal of fairness AGAINST how much is this going to impair/erode the "special system" of the juvenile court i. Right to Counsel Pros - accuracy of charges and guilt/innocence and preparation of a defense

Cons - looks more like a criminal proceeding; adversarial mindset into the juvenile justice system (nothing more adversarial than saying that you can have a lawyer; limits the flexibility the system was built to have In Gault Mack said this proceeding is about determining what the child is delinquent or not--but the Gault court is saying it is about something else needing a little bit more assurance of what happened there is a possibility of loss of freedom, some kind of commitment to a juvenile institution or incarceration is possible That is akin to a criminal proceeding Gault court also recognizes that probation officer duty to protect the best interest of the child conflicts with his other roles: the one who takes him into detention; serve as a witness against the child; arresting officer Counterargument: If you have in your mind the idea that this is not an adversarial process - but just like a family meeting, then serving as a witness is not a problem at all (Gault court does not agree) ii. Notice Of the charges and when the hearings will take place (sufficiently in advance of scheduled court proceedings and it must set the alleged misconduct with particularity so that a reasonable opportunity to prepare will be afforded ). Need to know the facts (place, time, why they think it was this particular juvenile, etc.) and accusations for a defense Pros - only good things flow from notice; it does not harm the ability of the court to treat the child with care and solicitude and

kindness; you can still keep the child separate iii. Confrontation, cross-examination Mrs. Gault wanted to bring Mrs. Cook in; Helps accuracy (but may sometimes hurt it) iv. Right against self-incrimination Partly also about accuracy This case is 1 year after Miranda rights case Children and more susceptible to being coerced into false confessions Its not therapeutic because the state is not actually your dad Because they would confess, but then they would be put away in jail Not just about accuracy, but this is something fundamental between the individual and the state Even if confession was therapeutic We insist upon equality between the individual and the state 6. DISSENT (Justice Steward): a. Argues that the court has made a BIG made a mistake in making the juvenile system look more like a criminal prosecution b. Majority says dissent is holding on to the underlying ideals of the juvenile justice system BUT in the face of an undeniable reality i. FANTASY of child-saving is so strong that it allows people to blind themselves for what was actually taking place ii. The MAJORITY says lets not engage in folklore or fantasy 7. Implications/Consequences: a. In re Gault changed the day-to-day operations of juvenile court proceedings across the United States b. Attitudinal Shift - stark change - the Majority rejects extreme procedural manifestations of the progressive ideas i. Design of the system was to give children benefits but to leave their rights behind c. Look at social/legal context i. Giddeon, Miranda, etc. - Procedural Due Process Revolution

Constitutional domestication of juvenile d. justice e. Three Ideas from Gault i. Doctrine - Due process that are "essential to fundamental fairness" will apply to the adjudicatory phase of a juvenile proceeding if the possible outcome is confinement What's the irreducible ii. Approach - How do we decide which rights are necessary to fundamental fairness? Balancing Test Disrupt the fundamental things that juvenile system is there to do What benefits could the juvenile get by importing this fundamental rights If we can get all the benefits without harming those underlying purposes of the system iii. Attitudinal - Reality of how things actually are matters in juvenile justice Look at "what is" to inform "what ought to be" C. In the Matter of Samuel Winship - 1970 1. Right addressed: Beyond a reasonable doubt as the standard for proving juveniles guilty of their particular offenses 2. Question: Whether the standard for juvenile adjudicatory stage is reasonable doubt standard or preponderance of the evidence a. New York Family Court Act states that a determination of whether a juvenile committed or did not commit acts should be based on a preponderance of the evidence 3. Holding: Reasonable doubt standard a. Interesting /shocking about this case: The Court is using it to announce something for adult criminal cases - that the reasonable doubt standard applies b. Juvenile proceeding Served as a vehicle for the adult right 4. Arguments for the US a. "civil" proceeding, not criminal - so preponderance of the evidence applies

b. Child's best interest - so we dont need such a high standard c. Why do we have a special system -going to make it too adversarial d. There could be effects on the informality of the speed 5. What harm would the beyond a reasonable doubt standard to the juvenile justice system? a. Majority says NONE - Use of the reasonable doubt standard during the adjudicatory hearing will not disturb the confidentiality, informality, flexibility, or speed of judicial juvenile proceedings i. NO DAMAGE - Not clear that the proceeding would look any different, so the only change is what standard the judge will apply - what the judge needs to look for. ii. No changes except for it could incentivize more cross examination and forensic evidence iii. The cost is that there are more children who may have done something wrong and may need treatment and services who will not get them because they squeak beyond it. b. Concurrence say SOME - It's better to let guilty youth go free in order not imprison innocent youth; Punishment when they didn't do anything wrong can make them worse i. Counterargument - This is "treatment" not punishment ii. Despite the Court's assertion in Gault, there is something about the process that is antitherapeutic c. Dissent says MANY - "burned down the stable to get rid of the mice" - Burger and Stewart argue that changes to the procedural rules to model them so closely to criminal courts is chipping away at everything that is special about the juvenile justice system. They are saying, we don't like what we are seeing either, but we don't think it is a constitutional issue, but rather an under funding issue D. Joseph McKevier and Edward Terry v. State of Pennsylvania 1. Right addressed: Right to a jury trial a. Issue: whether the due process clause of the 14th amendment assures the right to trial by jury in the adjudicative phase of a state juvenile court proceeding

2. Procedural Posture - Two consolidated cases because they raise the same issue: McKeiver - 16 year old charged with robbery a. who asked for a jury and did not receive one In re Barbara Burrus - children involved in Civil b. Rights protests who refused to leave the street were arrested for civil disobedience and impeding traffic 3. Two competing interests a. Praise for the system b. Alarm over its defects 4. Advantages and Disadvantages Advantages - more of a public forum with a a. jury; helps to mitigate against a single-fact finder (i.e., biased judge based on race OR knowledge of the juvenile's record (judge may have seen this kid before which can infect the accuracy of the factfinding) by bringing the ability to be walled of from a variety of information and to bring in a diverse group of backgrounds Disadvantages - delay (in that the jury has to b. leave and deliberate; formality (i.e., jury can only know certain things, they have to be instructed, voir dire is required and takes time, etc.); increased adversarialism, conflict, dissention, and "clamor" seems contrary to the intimate, informal protective process of the juvenile justice system; lack of confidentiality (because more people are aware of the proceedings); more criminalized; impeding upon the state's experimentation; can't have a jury of your peers (there will never be a juvenile on a jury); adds a theatrical feel to the proceedings c. Serious Cost of having a jury? i. Jury of citizens may be biased toward certain of type of children; pre-conceived notions; lack of confidentiality; takes away the paternalistic nature of the system; less efficient; more costly; delay 5. Holding - Court holds that right to a jury trial is NOT a necessity to fundamental fairness Gault Balancing a. i. When the fairness and accuracy are in equipose - why it does and why it doesn't ii. Equal there - And there ARE REAL HARMS to juvenile justice system iii. Then you are really NOT going to pass the Gault balancing test

Large points about Mckeiver: i. Shows there is a limit to the Gault Principle ii. Its really the opposite of the intimate proceeding iii. The court said - here is a stopping point 6. Notes a. States are left with the option of whether or not to allow jury trial or not b. This decision and Gault apply only to the adjudicatory phase - not to pre- or post-trial proceedings c. Court says we're not done with juvenile justice idealistic opinion saying that we need to invest into the system E. Congress' Efforts 1. Federal Juvenile Justice and Delinquency Prevention Act a. The states agree to voluntarily adhere to set of standards to coordinate state and local efforts in delinquency prevention and improve b. Congress conditions federal funding for juvenile justice systems on whether the requirements are met -- coercive mechanism to get states to comply -failure results in reduction, then loss of funding c. The JJDPA sets forth national priorities for juvenile justice and delinquency prevention, and embodies the federal government's influence on the numerous and distinct juvenile justice systems in operation in the US d. Has 4 core requirements: i. Each state must comply with all 4 in order to be eligible to receive federal funding under the statute ii. The OJJDP is authorized to reduce the state's funding allocation under the JJDPA by 20% per each core requirement which they are noncompliant with. iii. The purpose of each core requirement is to safeguard youth who come into contact with juvenile justice systems, and to ensure appropriate, safe, and rehabilitative treatment. 2. JJDPA core criteria: a. 1 - Deinstitutionalization of Status Offenders (DSO)

b.

i. Youth charged with a status offense may not be held in secure detention or confinement Status offense - is an offense that only applies to a minor whose actions would not be considered an offense at the age of majority, such as skipping school, running away, breaking curfew, and possessing or using alchohol or tobacco ii. Rationale: prevents those who have not committed a criminal act from being held in confinement with those who have; instead, status offenders should be assigned probation, social service help, community service, etc. iii. There are 4 exceptions to this rule: The main one = Valid Court Order (VCO) Exception - allows for the institutionalization/secure detention of status offenders who have disobeyed a court order b. 2 - Adult Jail and Lock-up Removal ("Jail removal") - Keeping children separate from adults i. Youth charged with a status offense may not be securely detained in adult jails or lockups under ANY circumstances ii. Youth charged with a delinquent offense may not be securely detained in adult jails and lock-ups except for limited periods of time under certain circumstances iii. The certain circumstances include: 1) at the time of initial arrest, b) before or after a court hearing, c) in rural areas that have been granted an exception, or d) in unsafe travel conditions iv. *This requirement currently does not apply to youth charged and jailed in the adult criminal justice system* Sight and Sound Separation c. i. When youth are securely detained in a locked facility, sustained "sight and sound" contact with adult inmates is prohibited. ii. Youth should NOT be held in areas or share common areas where they will be exposed to

adult inmates (i.e. dining halls, recreation areas or any other common spaces with adult inmates) or be placed in any circumstance that could result in verbal or non-verbal communication with adult inmates Disproportionate Minority Contact -Requires d. the states to assess, monitor, and evaluate the disproportionate high contact of youth of color at nine key contact points in the juvenile justice system, from arrest to detention to confinement F. Gault Era - Constitutional Domestication - In Sum 1. Progressive Era - Ideals and Structural Attributes designed to implement those ideals - individualized treatment, rehabilitation, focus on the offender, procedural informality 2. Gault Era - Constitutional Domestication Justice Abe Fortas took a hard-look in Kent v. a. United States (1966) b. "There is evidence, in fact, that there may be grounds for concern that the child receives the worst of both worlds: that he gets neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children" The Gault era seeks balance 1) affording c. children the rights afforded to adults while 2) sustaining the aspects/qualities that make a juvenile justice system special d. McKiever focuses on the latter in denying the right to a jury trial - place to draw the line JJDPA - emphasis on the 1) structure being set e. up for the federal government and states to cooperate to service juveniles and 2) the substance of what was being leveraged with the money - lets stop the institutionalization of status offenders and let's stop the co-housing of children and adults. f. The purity of the progressive system has been ditched g. They system becomes hybrid and attains some attributes of both the criminal system and the civil system i. Despite the despair about how crummy the juvenile justice system is, McKeiver court is kind of saying, we aren't ready to give up on it all together -- they didn't take the easy way out; they keep trying to forge the hybrid

3. Contemporary Shifts in Juvenile Justice

A. Super Predator Era - Get Tough Policies - Tough on Crime Era 1. Get Tough policies 1970s to 1990s - (Gained much traction in the late 80s) a. From the 1970s to 1990s, conservative politicians used crime as a code word for race for electoral advantage and advocated harsher "get tough" crime policies that affected juvenile justice administration throughout the nation b. In the mid-1980s crack cocaine markets exploded in the inner city and rates of homicides of black youths escalated c. There were misgivings of the ability of juvenile courts either to rehabilitate violent offenders or to protect public safety which bolstered policies to prosecute large numbers of youth offenders as adults. d. During this period sensational news coverage warned of a coming generation of "super-predators," put a black face on youth crime, and sustained political campaigns to get tough and crack down on youth violence e. The over emphasis of violence and race reinforced racial prejudices that, in turn fueled harsher policies toward criminals f. In the late 1980s and early 90s almost every state enacted laws to SIMPLIFY THE TRANSFER OF YOUTHS TO CRIMINAL COURTS or to require juvenile court judges to impose determinate or mandatory minimum sentences on those who remained within a more punitive juvenile system. g. These strategies deemphasized rehabilitation and the circumstances of the offender, stressed personal and justice system accountability and punishment and based decisions on the seriousness of the present offense and prior record. h. An inversion of the juvenile justice jurisprudence from rehabilitation to retribution i. New Philosophy: Adult crime, adult time i. Old enough to do the crime, old enough to do the time

ii. Crime was up and so public opinion on punishment changed in response from the treatment model to return to the classical principles of criminal law iii. Just deserts j. Societal Changes i. At the same time changes were occurring in the social atmosphere ii. Blacks were migrating from the South to the North which in tern made Whites move from the cities to the suburbs iii. Public policies and private institutional arrangements created racial segregation, and they continue to exacerbate the harmful consequences of concentrated poverty to the detriment of the economic and social welfare of black Americans. iv. Barry Feld notes that the political decision to get tough on youth violence effectively meant targeting young black men. v. Patricia Torbet noted that youth crime rates actually began to drop and have continued to decline since before the State's implemented these new laws vi. Traditional notions of the best interests of the juvenile are being diminished by interests in punishing criminal behavior vii. The dispositions are to the offense rather than offender based 2. Changing trends during the Super-Predator Era 5 areas of change have emerged as States passed laws designed to crack down on juvenile crime. These laws generally involve expanded eligibility for criminal court processing and adult correctional sanctioning and reduced confidentiality protections for a subset of juvenile offenders.

4.
Sentencing Authority Laws gave criminal and juvenile courts expanded sentencing options: o Determinate Sentencing We know at the outset the exact time In conflict with rehabilitative ideal

Individualized treatment gone

away Focus on nature of the offense rather than offender Usually means the kids are in for longer Blended Sentencing

WaiverTransfer Exclusion from Juvenile Courts

Laws made it easier to transfer juvenile offenders from the JJ sysem to the criminal justice system: o Automatic transfer If a child is charged with a violent or serious crime they get automatically transferred o Direct file or prosecutorial transfer Prosecutor has discretion of setting the charge and which court they will bring the child into, with no jurisdictional oversight by judges o Judicial transfer with guidance Started to be less discretionary and judges were told by statute when to transfer Judges are prohibited from keeping them in JJ court depending on their age and offense Moving away from judicial discretion Being tilted in favor of adult court

Confidentiali ty Eroded

Laws modified or removed traditional juvenile court confidentiality provisions by making records and proceedings more open o More people can get a hold of juvenile records More access to records - to schools o Arguably expanded the rehabilitative reach by letting more people know about the kids problem Court rooms became much more open to the public and so also to the

press "youthful indiscretions are to be buried in the graveyard of the past" o Registry/centralization Finger prints on records Mug shots Sex offenders - could be on lists for the rest of their lives o Using juvenile delinquency in adult proceedings Ex. 3 strikes laws

Victim's Rights

Increased the role of victims of juvenile crime in the JJ process o Victim rights movement in the 70s o Reaction to the due process revolution and the Wright court o So this caught up with the JJ movement o Victim's coming and saying what they thought should occur

Correctional Programmin g

Adult and jj correctional administrators developed new programs o Everything in the JJDPA only applies to kids that are adjudicated in juvenile courts o They don't have any impact on kids convicted in adult court o So the more kids convicted in adult court - the more kids end up in adult prisons with adults o End up with chaos in the adult prisons o So kids have to be schooled - public education

C. Common Themes 1. Movement from nature of the offender to the nature of the offense 2. Punitive rather than rehabilitative 3. Movement from attributes of civil system to the criminal system D. Feld's summary of the shift of presumption 1.

P C T D C

re-1990s Focus hild reatment iscretion/Informality ivil

Pos Adul Puni Rule Cri

t-1990 Focus t shment s/Mandates/Formality minal

B. Why? - John Dilulio's Predictions 1. By 2005, we will have a large group of superpredators who are violent, remorseless, as a result of more and more generation of people in moral poverty

5.
Prediction Scientific Kiddie Crime 1945 Philadelphia study 6% of the boys are committing 50% of the serious and violent crimes Diagnosis "Moral poverty" - surrounded by "deviant, delinquent, and criminal adults in abusive, violent, fatherless, Godless, and jobless settings" - lack of loving, capable responsible adults to teach them right from wrong Actually not that different from the progressives ideals They are more likely to be criminally depraved when they are morally deprived

Cure Religion Black church is a stabilizer in the Black community

"More boys begets more bad boys" Population

Effect of Moral Poverty: Behavior is driven by 2 profound developmental defect:

WHY RELIGION? 1. scientific evidence indicates

boom (e.g. more teens) So more kids means 6% will be greater "c rime prone" boys - they are going to be worse

radically 1. present-oriented Perceive no relationship between doing right now and being rewarded for it later radically 2. self-regarding Prefer pleasure and freedom to incarceration and death Other Attributes: Impulsive, Vacant, Remorseless

that churches can help cure or curtial many severe socioeconomic ills 2. religion is the one answer offered by the justice-system veterans: prisoners Through churches you can deliver institutional programming and deterrence Seems to be saying "That worked then , why can't it work now"

Large percentage will be Black The 6% is 3x worse than the 6% before it seriousness of crime and dangerousnes s steadily increases and there will be more recidivists

Dehumanization - Animal imagery

C. Dilluio was wrong! 1. There is actually a decrease in juvenile crime and it's continuing to decline and is now at a historic low 2. Two quantitative explanations don't pan out a. Arrest rates are not a legitimate reflector of offenses - There is not a linear relationship i. May rise and fall because of external factors Public attitudes and law enforcement positive policy/initiative changes - crack down on crime

Targeted law enforcement - Drug law, curfew, and domestic violence violations Arrests for status offenses It started being an offense and they started arresting for it ii. If you are making predictions of crime rates from arrest rate, thats probably going to be wrong because arrest rate has really no straight link to crime rate iii. IMPORTANT TO NOTE: The juvenile crime rate started to drop before any of these changes had been made - the radical legal changes took place AFTER the juvenile crime started to decline precipitously b. Rise in Juvenile Murders i. It is true! - There was a significant increase of juvenile homicides in the late 80s and early 90s ii. BUT, growth in murders by juveniles is linked to firearms The rise directly correlated with the rise of the gun market Explanation: increase availability, demand, more powerful etc. 3. Qualitative explanation - Youth violence is currently WORSE (i.e., Columbine massacre); there is a qualitative deepening of the type of crime D. Zimmering's critique - Dilluio's math is wrong: 1. Error # 1 - Stunning mathematical error - The 6% was incorrect to be for all juveniles a. The age group he used was ages 0-18 rather than 13-17, the group that historically commits juvenile crime; Should only multiply the 6% by the smaller number of juveniles 2. Error #2 - The nature of the crime that the 6% is going to do a. Didn't use the base rate correctly - it's a concentration of people but that percentage does not say anything about what the 6% will be doing (No empirical support) b. The fact that there will always be a group of chronic delinquents (the 6%) says nothing about what type of crime they are going to actually be doing - That won't always trend toward the more serious but it will vary 3. Other methodological errors:

a. Fails to consider the increase in other parts of the population as well b. Failure to consider external factors i. Demographic increase of Hispanic teenagers ii. Consideration of the female teen population (largest growth is among girls) iii. Social reality - African-American population stayed relatively stable but there was a decrease in crime iv. Small sample size, over-generalization v. Hard to make this prediction based only on demographics Should also consider alcohol quality, availability of guns, crime over drugs, etc. E. Shifting ideology 1. Window of opportunity for salvation 2. Assumption about child's state of nature - untapped good made rotten by environment vs. people not being good 3. Dilliuo says that people are made bad by morally poor environments, BUT then says they will "naturally" murder rape, rob, etc. F. Take-away points 1. Evidence shows that the Dillulio's predictions were completely wrong a. Was rooted in something that was at least partially true (spike in juvenile homicide) and resonated with a larger cultural movement and resonated with odd nostalgia (i.e., Black families in the south with two person households were not committing a lot of crime) 2. Failure to put arguments such as Dillilluio's into a larger historical context leads to distortion of data G. In re L.M. 1. Facts: The state prosecuted sixteen-year-old L.M. as a juvenile for the felony offense of aggravated sexual battery. L.M. requested a jury trial, which the district court denied. After a bench trial, the juvenile court judge found him guilty, sentenced him as a Serious Offender to a term of 18 months in a juvenile correctional facility, stayed his sentence, and placed him on probation until he was 20 years old. The court also ordered L.M. to complete sex offender treatment and to register as a sex offender. The Court of Appeals affirmed the district courts denial of a jury trial.

2. Holding: Based on our conclusion that the Kansas juvenile justice system has become more akin to an adult criminal prosecution, we hold that juveniles have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments. 3. Reasoning Amendments to the Kansas Juvenile a. Offender Code reflect purpose, terminology, and structure similar to the adult system "These changes to the juvenile justice system have eroded the benevolent parens patriae character that distinguished it from the adult criminal system" i. Significant Changes - negating of the rehabilitative purpose is evidenced by the replacement of nonpunitive terminology with criminal terminology similar to the adult criminal code, the alignment of the KJJC sentencing provisions with the adult sentencing guidelines, and the removal of the protections that the McKeiver Court relied on to distinguish juvenile systems from the adult criminal systems. ii. Purpose Statement- changed from focusing on rehabilitation and the States parental role in providing guidance, control, and discipline to, under the KJJC, focusing on protecting the public, holding juveniles accountable for their behavior and choices, and making juveniles more productive and responsible members of society--purposes more aligned with the legislative intent for the adult sentencing statutes. iii. Terminology - shedding euphemisms: "prosecution" instead of "adjudication", "Sentencing proceeding" instead of "dispositional proceeding", "juvenile correctional facility" instead of "state youth center" iv. Sentencing of juveniles has become much more congruent with the adult model Utilizes a sentencing matrix for juveniles based on the level of the offense committed and, in some cases,

the juveniles history of juvenile adjudications May consider aggravating factos from the Kansas adult sentencing guideline Sentencing options similar to that of adults (probation, a community-based program, house arrest, short-term behavior modification program, incarceration in a correctional facility, etc.) v. Confidentiality Previous, court files, police records, and hearings involving a juvenile under 16 were confidential the official file must be open to the public unless a judge orders it to be closed for juveniles under the age of 14 based on finding that it is in the best interests of the juvenile Problematic because maintaining confidentiality was key to the holding in McKeiver b. Notes i. In re LM is an outlier - binding only in Kansas - KA is making a holding of what it interprets federal constitutional law to require in Kansas and is consistent w/what Kansas constitutional law requires) Reflects that wide variability in the juvenile offender laws throughout the country on even the most basic things, like entitlement to Other jurisdictions reject the argument that changes to the juvenile justice system have altered its parens patriae character and therefore decline to extend the constitutional right to a jury trial to juveniles (i.e., Illinois) ii. Dissent - Although the juvenile system has become more punitive and has incorporated some of the terminology and mechanisms of the adult criminal system, the majority overstates and overemphasizes the changes while ignoring the many features of the current

system that remain consistent with the benevolent, protective, rehabilitative, child-cognizant characteristics that distinguish the juvenile system from the criminal system. The protective, rehabilitative focus that has distinguished the juvenile system from the punitive, retributive adult criminal system is still very much alive

6. Nature of State Intervention: from Police Practices to Trial

A. Police Practices: Arrest, Search, and Interrogation 1. Basic Framework for Juvenile Arrest a. Background assumption - adult criminal procedure applies to children UNLESS modified by statute or in the case law b. Overall, the adult law of arrests applies to kids ix. Juvenile preference for "useful euphemisms" will generally pply xxxv. States will choose to import constitutional protections c. Both statutes say the taking of a child into the custody is "not an arrest" i. Adult arrest - when a reasonable person in your circumstances would not feel free to leave ii. Not calling it an arrest goes back to progressive ideas of decriminalization AND the desire to reduce stigmatization iii. Consequence could also lead to the prevention of importation of constitutional rights that surround arrests (However, Texas says that the Constitution and laws of the states apply in establishing the validity of taking a juvenile custody or the validity of search iv. Examples: Texas Code Annotated and Minnesota - "including a school district police officer" Section B covers "delinquent conduct or conduct indicating a need for supervision" (i.e., status offenses) Two differences: 1) there is no where in the penal law where an adult can be penalized for such status offenses and

2)juveniles can be arrested by probation officers d. One consequence of it being treated as an arrest the police get to do a search incident to arrest 2. Lanes v. State of Texas - Texas Court of Criminal Appeals (1989) - Example of how courts implement Gault balancing tests a. Facts - The only thing that linked him to the crime was a fingerprint and so if they don't have that evidence he gets off. Pursuant to a consent order from a juvenile court authorizing the taking of appellant's fingerprints, a police officer arrested Lanes from his high school, transported him to a police station, and took his fingerprints. He was tried as an adult and sentenced to 20 years in prison for burglary of a home Broader Issue - Whether or not you b. should have to have probable cause to arrest a juveniles Asking for same protection that an adult would have in the situation c. Courts are never going to decided a case on constitutional ground if they can resolve it on statutory grounds The Texas Statute now says what the Constitution requires Footnote 5 - discusses whether or not to use state or federal law; Court says that because state of Texas extends greater constitutional protection than the Constitution requires, Texas law applies Texas Constitution directly interprets Article I, Section 9 iv. Gault Balancing Comparative analysis - Purposes and goals of the juvenile justice system compared with the particular right being asserted v. Pros - bringing the adult probable cause standard to the juvenile justice system - why not use a reasonable suspicion standard? Accuracy - probably cause - evidence which is sufficient to warrant a reasonable and prudent person in believing that a

particular person has committed or is committing an offense Eliminates unnecessary contact with police You protect from arrest those children who may have ONLY "presumptively" been assumed to commit crimes Safeguards citizens from rash and unreasonable interferences of privacy and from unfounded charges of crime - prevents erroneous and unnecessary arrests Avoiding wrongful stigmatization -- higher standard reduces the risk that innocent youth will be erroneously stigmatized Avoiding erroneous disruption of the child's everyday life and family environment Absence from school or work hinder the child's overall well-being If you're going to detrimentally harm them, you should at least have sufficient evidence to sustain the belief that the offense was actually committed vi. Cons Arguably, parens patriae rationale says that you want to step in to help kids who have been suspected of committing crimes sooner When factoring in realistic success, the juvenile justice system has failed to satisfy this goal vii. Reasoning Analysis to Winship - some legal decision making has to use a standard that establishes a degree of certainty for guilt or arrest - Winship (reasonable doubt v. preponderance of evidence of a standard of proof) 2 reasons this rule should not vary from adult rule: Fundamental fairness - At the inception of the arrest, its hard to tell whether the child will go to adult court or stay in juvenile court; can't use lesser evidence in adult court

Clear rule needed - Police officers could have trouble knowing what standard to use Shifting perspective There is a shift from before - used to be that it was OK just getting all the kids - even if they really aren't guilty because we are helping them But during this era there is a more "realistic" view - touching the kids is doing harm therefore we need to minimize the touching We need to keep them out of the system "No one seriously argues anymore that State custody in any way approximates the family environment" B. Consent Searches, "Voluntariness", and Youthfulness 1. Another entry point besides arrests - Consent Searches - special type of search that does not have any requirement that there be any suspicion i. Police do not need anything to ask for your consent to a search For any reason they can walk up If you give it, it is completely immaterial whether they have reasonable suspicion or probable cause 2. Rule as announced in Bustamonte: The standard to gauge the validity of a person's consent to a search is whether it was voluntary under the totality of the circumstances Voluntary means a decision made in the i. absence of coercion NOT a knowing choice amongst alternatives - Consent to a search only need be "voluntarily given and not the result of duress or coercion, express or implied." ii. "Totality of the circumstances" includes characteristics of the accused, youth of the accused, and his education or lack thereof iii. Knowledge of the right to say "no" may be looked at as one factor meaning (i.e., if the police told the person that he or she has the right to say no then there is a presumption that it was non-coercive)

As long as you say yes without the police coercion But if you don't know you have the right to say no - how is that voluntary? Seems that your only choice is to say yes or to say nothing Its a restriction in what the police can do Rule on restraint of police action But police are not obliged to disclose that you can say no to a consent search Logical outcome - If saying "no" results in probable cause - that makes no sense Practical outcome - must be used as evidence iv. What are ways that we could alter the adult rule for juveniles? No rights of protection from searches Treat youthfulness as a categorical disability that precludes a voluntary consent or that requires additional procedural safeguard more rights - kids must be informed the rule nicely and police must be very solicitous Parental consent - no kids can consent ONLY with permission on parents Court should take into account that a minor, as compared to an adult would be more likely to think that he could not refuse the police officer and less likely to understand the implications of consenting 3. In re J.M. i. Facts: J.M., 14-year, was approached by police officers at 2:30 AM on a bus. When asked if the officer could search his person to see if he was carrying drugs or weapons, JM turned toward the officer and raised his arms. The officer patted him down, lifted up his shirt, and found a plastic bag containing crack cocaine. Trial court says JM voluntarily consented and he was adjudicated delinquent for possession of cocaine with intent to distribute. ii. Reasoning

Court applies the exact same rule "voluntary under the totality of the circumstances" but seeks to include the evaluation of several factors - "characteristics of the accuse, youth, lack of education intelligence level" etc. - seems to focus more on the subjective state of the person Although the special immaturity and vulnerability of juveniles to intimidation by figures of authority does not justify a presumptive rule invalidating consents by juveniles, in considering the totality of the circumstances, a trial judge should make explicit findings on the record concerning the effect of age and the relative immaturity on the voluntariness of the defendant's consent. (Should also include the facot that police did not tell him he could refuse.) Example - Fact that J.M. "consented" could reflect 1) sophistication and knowledge by a 14 year old feigning cooperation to deflect suspicion or 2) belief by an inexperienced youth that a search will be conducted regardless of consent. Seems to be using Gault-like analysis even though Gault ONLY applies to the adjudicatory stage and this is pre-adjudication. iii. Holding Court reverses and remands for the court to be sensitive to the heightened danger of coercion in this situation and to factor in youth, experience, maturity, education, etc. iv. Problem - Court does now say HOW one should go about considering AGE in the totality of the circumstances v. Justice Mack's Dissent in reasoning and Concurrence on remand Justice Mack argues that the court should consider youth AND race - any Black kid who knows anything about the historical treatment of Blacks would be scared and likely feel "coerced" into consent Race for many years has engendered Black males' distrust of law enforcement -- No reasonable, innocent Black man would feel free to walk away for the police

Problematic There is no way for a police officer to assess the "totality of circumstances" on the ground C. Interrogation - 5th amendment right against self incrimination 1. 2-Part Inquiry First - When the person made the particular i. statement to the police, was the person in custody (e.g., reasonable person in situation wouldn't feel free to leave)? (Custody analysis is objective! Subjective, actual mindset of the officer or person being questions = irrelevant) What were the circumstances surrounding the interrogation; and given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. No - Questioning okay without police having to give Miranda warnings and waiver Yes - Person has right to Miranda State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation. Any statements obtained during custodial interrogation conducted in violation of these rules may not be admitted against the accused ii. Second - Assuming in custody, did the person waive those rights? How do we measure whether his waiver of his Miranda rights was knowing, intelligent, voluntary waiver? Waiver (e.g., knowing and voluntary relinquishment of self-incrimination rights) - means that they been given Miranda warnings but waived against their right against self-incrimination If there is a waiver, interrogation must cease If there is not a waiver, interrogation is OK, BUT any statements made are assessed for voluntariness (could still be considered involuntary if labeled

"coercive" under the totality of the circumstances) Example - Haley v. Ohio SCOTUS - (1948) - held that a confession under the circumstances was "involuntary: where police interrogated a 15year shortly after midnight, denied him access to counsel, and confronted him with confessions of a co-defendant -- based on age of petitions, hours he was grilled, the duration of the quizzing, and no access to counsel The atmosphere carries with it a badge of intimidation, thus adequate protective devices should be employed to dispel the compulsion inherent in the custodial interrogation setting . Effect of Youth - What impact does age have iii. on being "in custody" and what is or is not an effective waiver? To what degree should youth fit into the totality of the circumstances? Even in re Gault says that "admissions and confessions of juveniles require special caution[as] their immaturity and greater vulnerability place them at a greater disadvantage in dealings with the police" State constitutional and/or statutory issues - States may extend additional constitutional protection: Per se Rule - no interrogation of you without the presence of an interested adult Factor in Totality of Circumstances adult presence is recommended and if there is not adult present, this is a factor in the totality analysis Videotaping D. JDB v. North Carolina - SCOTUS - 2011 1. Facts: J.D.B. was a 13yearold, seventh-graderr emoved from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour with the

assistant principal and administrative intern in the room. Neither the police officers nor the school administrators contacted J.D.B.s grandmother. Prior to the commencement of questioning, J.D.B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room. After learning of the prospect of juvenile detention, J.D.B. confessed that he and a friend were responsible for the break-ins. Investigator only then informed J.D.B. that he could refuse to answer the investigators questions and that he was free to leave. 2. Issue: whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda 3. Important facts: location - it takes place in a school; mention of failing to call his grandmother; presence of assistant principal and police 4. The nature of interrogation i. By its very nature, custodial police interrogation entails inherently compelling pressures. Miranda, 384 U.S., at 467, 86 S.Ct. 1602. Even for an adult, the physical and psychological isolation of custodial interrogation can undermine the individuals will to resist and ... compel him to speak where he would not otherwise do so freely. Ibid. Indeed, the pressure of custodial interrogation is so immense that it can induce a frighteningly high percentage of people to confess to crimes they never committed. By its very nature, custodial police interrogation entails inherently compelling pressures. Miranda, 384 U.S., at 467, 86 S.Ct. 1602. Even for an adult, the physical and psychological isolation of custodial interrogation can undermine the individuals will to resist and ... compel him to speak where he would not otherwise do so freely. Ibid. Indeed, the pressure of custodial interrogation is so immense that it can induce a frighteningly high percentage of people to confess to crimes they never committed. 5. Waiver i. Burden of proof: burden is on the Government to show, as a prerequisit[e] to the statements admissibility as evidence in the Governments case in chief, that the defendant voluntarily, knowingly and intelligently waived his rights 6. The vast majority of juveniles waive Miranda 7. Why are the circumstances different from children?

i. Difference in how they perceive authority figures ii. Physical movement is restricted iii. A childs age would have affects how a reasonable person in the suspects position would perceive his or her freedom to leave. Stansbury, 511 U.S., at 325, 114 S.Ct. 1526. That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis. iv. Common sense observations about kids: generally are less mature and responsible than adults, that they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them, that they are more vulnerable or susceptible to ... outside pressures than adults v. Negligence standard - Reasonable child of the same age, intelligent, and maturity level 8. Holding: So long as the childs age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test. 9. Dissent i. Slippery Slope - Subjectiveness This is supposed to be an objective inquiry into what a reasonable person under the totality of the circumstances Todays decision shifts the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristicagethat is thought to correlate with susceptibility to coercive pressures. Age is not the only factor that might affect the totality of the circumstances - Other carveouts on the basis of race, gender, cultural background, intelligence level etc. Age is knowable enough and stable enough to be a part of the "reasonable person" inquiry

Should be based on external circumstances (where the questioning occurred, how long it lasted, what was said, any physical restraints placed on the suspects movement) NOT personal characteristics Anything that you can prove which might have a significant on whether or not a person thinks that he or she is in custody E. Fare v. Michael C. - SCOTUS - 1979 1. Issue: was the child invoking his 5th amendment rights when he asked for his probation officer? 2. Rule: If the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at trial. 3. Holding: Holding: Nor do we believe that a request by a juvenile to speak with his probation officer constitutes a per se request to remain silent. As indicated, since a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney. And there is nothing inherent in the request for a probation officer that requires us to find that a juveniles request to see one necessarily constitutes an expression of the juveniles right to remain silent. 4. Reasoning i. Though Miranda does not say that you have to request an attorney, If you indicate in any manner that you wish to remain silent That he wants an adult - that shows that the child wants to remain silent 5. Juvenile says asking for my probation officer is like asking for a parent (Under the People v. Burton, California S. Ct. held that asking for parents is the same as asking to invoke the 5th amendment rights) and acting like a parent i. The probation officer is often the person the child has a close relationship with ii. Procedural Posture: Supreme Court of California: request to see his probation officer at the commencement of interrogation negated any possible willingness on his part to discuss his case

with the police [and] thereby invoked his Fifth Amendment privilege." Probation officer was a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement the protective and rehabilitative powers of the juvenile court" so he is akin to a parent. iii. Counterargument - Fare actually had a relationship with his attorney; he's saying things that makes us believe he is clearly waiving the right 6. Differentiating the probation officer from the attorney/parent i. The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country: person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accuser's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease. Right to attorney client privilege -communications protected ii. A probation officer is not in the same posture with regard to either the accused or the system of justice as a whole: Often h e is not trained in the law, and so is not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts. He does not assume the power to act on behalf of his client by virtue of his status as adviser, nor are the communications of the accused to the probation officer shielded by the lawyer-client privilege. He is the employee of the State which seeks to prosecute the alleged offender - a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers; owes an obligation to the State, notwithstanding the obligation he may also owe the juvenile under his supervision.

In most cases, the probation officer is duty bound to report wrongdoing by the juvenile when it comes to his attention, even if by communication from the juvenile himself. Indeed, when this case arose, the probation officer had the responsibility for filing the petition alleging wrongdoing by the juvenile and seeking to have him taken into the custody of the Juvenile Court. It was respondents probation officer who filed the petition against him, and it is the acting chief of probation for the State of California, a probation officer, who is petitioner in this Court today. No attorney client privilege-style protection; would likely encourage cooperation 7. Note -i. However, the court should have applied a totality of the circumstances test to determine whether the juvenile in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. ii. The totality approach permits-indeed, it mandates-inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juveniles age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. F. Federal Constitutional Issues 1. Additional Protections -- States may require: i. Taping - Some states require ALL custodial taping; some just for juveniles; may be audio or video ii. Parental Presence Mandatory Advisory - some say you may just get an opportunity to consult with your parents iii. Attorney presence - kids under 13 charged with murder and rape - attorney presence rule iv. Special Miranda language 2. Empirical results of juveniles and adults understanding of Miranda rights - Prof. Grisso research 1980

ii. 20% juveniles as compared to 42% of adults demonstrated an adequate understanding of the 4 components of a Miranda warning iii. While 55% of juveniles as contrasted with 23% of adults exhibited no comprehension of at least 1 of the 4 warnings iv. Only get to waive it if knowing, intelligent or voluntary - but can't be because they don't know what it means - not as linguistically competent as adults v. But 90% of them waive their rights when they are Mirandized = Fare's requirement of a clear, unambiguous invocation of Miranda runs counter to developmental psychological research and typical reactions of adolecents in a custodial setting environment vi. It seems that the burden should be on the police officer and not the child to prove that the child waived his right 3. Changes that could be made to combat these statistics Dumbed-down Miranda - Could change the i. language of the Miranda warnings to be more kid friendly ii. We could just have a per se rule that the child gets the 5th amendment right - an attorney always needs to be present iii. Parental presence Per se rule - no interrogations without parents present, or guardians Actual presence or allowed to make contact with the parent - call - meaningful opportunity to have the parent there Child can sometime waives that Allowed to attempt to contact Teach Miranda in schools iv. G. Analyzing Juvenile Interrogations 1. 3 separate legal inquiries when looking at juvenile interrogations: i. First - applicability of Miranda - When the person made the particular statement to the police, was the person in custody (e.g., reasonable person in situation wouldn't feel free to leave)? (Custody analysis is objective! Subjective, actual mindset of the officer or person being questions = irrelevant) What were the circumstances surrounding the interrogation; and

given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. JDB -- age is a relevant factor to consider under the TOC objective analysis Second - Waiver of Miranda - Assuming in ii. custody, did the person waive his/her Miranda rights? How do we measure whether his waiver of his Miranda rights was knowing, intelligent, voluntary waiver? Fare/ most states: TOC, age MUST be considered Special rules, extra protection: interested adult; language; taping; attorney (Illinois does that a little bit today - for rape or murder, 13 or younger, but other than that, no states adopt this approach) iii. *If either of the 2 above things are messed up Presumption that any subsequent confessions are involuntary as a matter of law* But almost never happens - because most people (90% of juveniles) waive Miranda and it is not usually overturned iv. Voluntariness of confession 14th amendment -- subsequent events mean none the less that it was involuntary Question of whether it was voluntary even if it was waived I would like you to suppress my waiver because it was coerced and involuntary

B. Internalized False Confession 1. False Confessions i. Likely with extremely LONG interrogations 2. The Reid Technique i. Nine Step Process of Designed to Elicit Confessions Form of Psychological Coercion which assumes that an innocent person would not falsely confess under this technique Typically, only suppoded used when there is demonstrable evidence of guilt and there is an independent basis for holding that the person is guilty Police are walking in more convinced of the person's guilt

Reid technique endorses lying admits that it could result in false confessions from children Used against Michal Crowe and Anthony Harris 3. What are the most coercive aspects of the technique? i. Maximization techniques Intimidate suspects and impress on them the futility of denial Confront suspects with real and false evidence Refuse to accept denials Accuse suspects of lying Identify inconsistencies in suspects stories Emphasize the implausibility of suspects' claims Playing on their fears (Bogus) technology (Voice stress; lie detector) Feeding information False evidence Providing that conviction is the only option - person may choose leniency (Presentation of limited options/false choice constraints) ii. Minimization techniques Provide face-saving excuses and moral justifications to induce a confession by minimizing the seriousness of the offense or blaming the victim or accomplice Use of scenarios or themes to reduce suspects feelings of guilt Expressions of empathy Comments minimizing the seriousness of the crime Offers to help iii. Michael Crowe Interrogation factors Structure - length of time, 2 adult questions, separated from and unbeknownst to parents Interrogation techniques - Police can lie about evidence; Deception, can lead to coercion; lying and saying that he might not remember it; the fact that they didn't have any other evidence besides the confession;

saying he blacked out; lying about stress test

7. Schools
A. Drugs and Schools - School Searches (Two Types: Individualized Suspicion & Suspicionless) 2. Individualized Suspicion A. Courts apply the 4th Amendment but relax it B. In individual suspicion cases - dispense the warrant requirement, dispense probable cause requirement, and apply a "reasonable suspicion" standard C. Once you have the right to search, the scope of the search must be reasonable in light of the age sex, or infraction D. If search is OK under TLO, you can refer to school disciplinary proceedings and the police and the courts (i.e., suspension and juvenile hearing) E. If it's not OK under TLO, whether or not the exclusionary rule applies will come up 1. Supreme Court has not yet decided whether or not; Most states have decided, yes, the exclusionary rules DOES apply in juvenile proceedings but DOES NOT apply in the school disciplinary proceedings 2. Thus, if pills had been found in Redding's underwear F. New Jersey v. T.L.O. 1. Procedural Posture Supreme Court granted cert to examine the appropriateness of the exclusionary rule as remedy for searches carried out by school officials in violations of the Fourth Amendment. Generally, A search that violates the 4th Amendment implicates the exclusionary rule 4th amendment must apply --- was the 4th amendment violated --- is the exclusionary rule the appropriate remedy School district concedes the first two but says do not apply the exclusionary rule Court says that it will instead examine whether the fourth Amendment applies at

2.

all and the proper standard for assessing the legality of such seaches Questions: Does the 4th Amendment's prohibition of unreasonable searches and seizures apply to school officials? YES! 14th Amendment apply to the states - School official are subject to those constitutional laws because they are agents of the state; Other rights seem to be in operation in the school context In loco parentis - does not truly apply; the state is not your daddy What is the applicable standard? Even minimally invasive searches "Terry stops" (i.e., frisks) typically require reasonable suspicion More invasive searches typically need probable cause and warrant OR exigent circumstances (i.e., marijuana about to be flushed down the toilet) Court implicates a balancing test Students' legitimate expectations of privacy and personal security v. School's need to maintain order, keep school safe, and enforce rules Argument - Kids don't have any expectation of privacy in school Counterargument - Kids do not shed their rights at the school gates; You can not liken students to prison; They have rights Court ditches warrant FIRST Warrant would be unduly burdensome considering that a teacher needs the ability to administer immediate, swift, informal disciplinary procedures Court then ditches probable cause and instead employs "reasonable suspicion"

Apply the Standard: Reasonableness (which stops short of probable cause) FIRST - Whether the action was justified at its inception - suspecting that there will be reasonable grounds that the search will turn up evidence of either a law or a rule violation The required knowledge component of reasonable suspicion for a school administrators evidence search is that it raise a moderate chance of finding evidence of wrongdoing. Here, court says there was a "nexus" between the item searched for and the infraction violated; Teachers allegation of smoking gave rise to a reasonable suspicion that TLO possessed cigaretters Counterargument: All search reveals is possession NOT that she was actually smoking Problematic - Hindsight bias - your perception is biased by the fact that your search was successful SECOND - Whether the search was reasonably related in scope to the circumstances which justified the interference in the first place Reasonably related in scope to the first triggering thing and the objectives of the search

Reasonable to turn up evidence that the student violated or is violating either the law or rules of the school Reasonably related to the nature of the infraction Not excessively intrusive in light of age and sex of the student Because of the way in which the facts unfolded, each time, the school principal had authority to continue search Presence of rolling papers gave rise to a reasonable suspicion that TLO was carrying marijuana; this suspicion justified further exploration Triviality concern iii. Safford Unified School District v. April Redding - SCOTUS 2009 the stopping point strip searches Issues: whether a 13-year-old student's Fourth Amendment right was violated when she was subjected to a search of her bra and underpants by school officials acting on reasonable suspicion that she had brought forbidden prescription and over-thecounter drugs to school. Was the search constitutional under the TLO standard? Should the government be granted qualified immunity? If the law was unsettled, government official may have been unaware, and therefore is not penalized Holding: Strip search not ok here violated 4th Amendment Application of TLO to the strip search

Apply the Standard: Reasonableness (which stops short of probable cause) FIRST - Whether the action was justified at its inception suspecting that there will be reasonable grounds that the search will turn up evidence of either a law or a rule violation TLO looks at degree of suspicion - Stronger the suspicion, the more you are allowed to do Backpack and outer clothing seem ok under TLO Nothing incredibly intrusive about that Court says no! The content of the suspicion failed to match the degree of intrusion. Had no reason to suspect that large quantities were being handed out or no reason to supsect painkillers were in Redding's underwear. SECOND - Whether the search was reasonably related in scope to the circumstances which justified the interference in the first place Scope - Is the search of the sort that could yield the type of evidence that would prove the particular infraction alleged? Court says no! Needed reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make a quantum leap

from outer clothes and backpacks to exposure of intimate parts Strip searches are FAR more intrusive may be psychologically damaging Would court have changed if the drug was more dangerous? NO - Strip searches are never justified and are TOO intrusive YES - more dangerous drug may have elicited a more intrusive search Justice Steven's Triviality point - Nature of infraction appears to be a much bigger deal? Thomas' Dissent: asks that the juvenile court return to loco parentis Schools How do we take account of the fact that schools are different (have a special relationship and responsibility to keep them safe)? Individualized suspicion Courts apply the 4th Amendment but relax it In individual suspicion cases - dispense the warrant requirement, dispense probable cause requirement, and apply a "reasonable suspicion" standard Once you have the right to search, the scope of the search must be reasonable in light of the age sex, or infraction If search is OK under TLO, you can refer to school disciplinary proceedings and the police and the courts (i.e., suspension and juvenile hearing) If it's not OK under TLO, whether or not the

exclusionary rule applies will come up Supreme Court has not yet decided whether or not; Most states have decided, yes, the exclusionary rules DOES apply in juvenile proceedings but DOES NOT apply in the school disciplinary proceedings Thus, if pills had been found in Redding's underwear G. Suspicion-less searches i. In the school setting, we are going to sometimes allow suspicion-less searches Usually given to students who have give some type of quasi-consent "voluntary" activities Must be truly blanket/anonymous/random Must be some sort of privacy maintained Justified by the primary (i.e., drugs themselves hurting themselves and secondary (i.e., high athletes hurting each other) dangers of drugs; Movement from Vernonia (problem in the particular school) to Earls (problem in the United States) All consequences stay WITHIN the school ii. Highly disfavored by the Fourth Amendment - But have been allowed by highly regulated industries (airlines, railroads, etc. ), health inspections, automobile checkpoints iii. Reasoning - Factors to consider Quasi-consent - voluntary subjection to some level of search Safety Alternative Worse: Additional administrative burden/Biased toward unpopular groups Prevention of drug epidemic

iv. Vernonia School Districti v. Acton & Earls SCOTUS 1995 Facts: Vernonia school district athlete drug policy authorizes random urinalysis drug testing of student's who participate in athletic programs. The tests are random and only for athletes. None of the consequences relate to the police - all are confined to school. Banned from athletics after 3 violations is the worse consequences. Suspicionless searches - TLO and Redding are suspicion searches Demonstration of need in the school district's perception and the parents The 4th amendment hates suspicionless searches though Other examples of where the court has allowed suspicionless searches Random police officers or border patrol agents who have contact with drugs regularly; Airline pilots and railroad Reasoning: Students in general have lesser expectation But student athletes have an even lesser expectation of privacy (Communal dressing and showers) Nature of sports - voluntarily subject yourself to a degree of regulation even higher than students generally Compelling state interest deterring drug use by our nation's schoolchildren; the risk o immediate physical harm to the drug user or those with whom he is playing is particularly high Alternative - drug testing on suspicion of drug use - problematic because it aloes for biases and profiling

Board of Education of Pottawatomie County v. Earls - SCOTUS - 2002 Fact-specific balancing of the intrusion on the children's Fourth Amendment rights against the promotion of legitimate governmental interests Schoolchildren are routinely required to submit to physcal exams and vaccinations against disease All students who participate in competitive extracurricular activities voluntarily subject themselves to many of the same intrusions of their privacy as athletes (i.e. off campus travel, communcal undress, own rules/requirements for participation) and there have a limited expectation of privacy Invasion = insignificant = minimally intrusive nature of the sample collection Justification - from local drug problem in Vernonia to nationwide drug epidemic in Earls Almost is the same as in Vernonia Ginsburg's Dissent Vernonia school district had "special needs" - drug use increased the risk of drug related injuries, Vernonia athletes were leaders of an aggressive drug culture that had reached "epidemic proportions" Implications Concerned about the effects of drugs themselves The concept of harm has shifted from just athletic safety - Just say, all of those

clubs have rules and requirements for participation After TLO less restrictive 4th amendment standard Expansion to mass suspicion-less searches Vernonia and Earls took TLO and bumped it up C. School Violence i. Zero Tolerance OJJDP School Safety report - 2000 Most schools continue to be safe places They are becoming even safer Total crime is down at and away from school Overall crime has decreased since 1992 Gun-Free Schools Act - Effective in 1995 Requires that any school that is receiving federal funding by October 1995 must do the following: Any student who brings a firearm to school MUST be expelled for no less than one year; BUT Head of local school authority (i.e., superintendent) MUST have the power to modify on a case-by-case basis iii. Tennessee Statute "impose swift, certain, and severe disciplinary sanctions on any student" who among other things "brings a dangerous weapon" onto school property or possesses a dangerous weapon on school property State laws tended to be MUCH broader! Seal v. Morgan - a case like Redding - the ii. stopping point - 6th Cir (2000) i. Facts: Friends knife found in his car on the schools property after school hours. School officials said that students had said they saw Seal and Pritchert drinking and searched their persons for alcohol found none. They said they needed to search the car for alcohol. He consented to a search of his car. Found the knife and 2 cigs. Seal was expelled from high school after a friend's knife was found in the glove compartment of his car. Seal denied

having any knowledge of the knife's presence while it was on school property. ii. 14th Amendment - 14 amendment one may not be deprived of life, liberty or property without due process of law . Supreme Court has said that "the right to an education" is NOT a fundamental right, but a state granted right - An education is a property interest granted by the state that can not be taken away without due process Procedural Due Process - the process through which a person is denied their right to a fair procedure or set of procedures before one can be deprived of property by the state (i.e., no proceeding at all, told not to speak during proceeding, no appeals process, no right to bring an attorney, lack of notice, written decision showing the ruling) Seal received procedural due process Substantive Due Process - rational basis analysis Seal doesnt complain that he didnt get all of the procedures, but that the substantive result the ultimate decision to expel him was irrational since he did not have the requisite level of intent There is no fundamental right to education under the federal Constitution and there is no "suspect class", so we evaluate the school officials' actions under Rule: Government actions that do NOT affect fundamental rights or liberty interests and do not involve suspect classifications will by upheld if they are rationally related to a legitimate state interest Subrule: In the context of school disciple, a substantive due process claim will succeed only in the "rare case" when there is "no rational relationship between the

iii.

punishment and the offense"; Board may not expel students from school arbitrarily and irrationally iii. Holding: "Suspending or expelling a student for weapons for possession, even if the student did not knowingly possess any weapon, would not be rationally related to any legitimate state interest" iv. Reasoning Court finds that the decision to suspend someone for possession without a scienter requirement is IRRATIONAL - no student can use weapon to harm others or disrupt school if he is totally unaware of its presence School argues that for consistency and clarity the rule of no scienter is easier; Students will lie and a scienter requirement will be too difficult to enforce v. Problem's with the school board's reasoning that scienter should not be required Suspends or expels some kids for ludicrous things - Example - someone plants knife in high school valedictorian's backpack or students who drank punch at a school dance tha had, unbeknownst to them, been spiked -- does not deter or rationally advance schools weapon or alcohol policy Contrary to criminal law which requires knowing, concious possession Counterargument - Students will lie! vi. Dissent - Majority rules out the existence of zero tolerance - replaces scienter requirement with the board's possession of discretion Arturo's Case - Steven Drizin i. Gun Free school's Act requires mandatory suspension -- Although the board later has some discretion to change the decision on a case-by-case basis
ii. 12-year old Arturo - from a good family who has never violated the disciplinary policies brings a gun to school and lends it to a frien

iii. Policy Debate Harshness/Absurdity - Have schools gone overboard in applying zero tolerance? (i.e., students have been

expelled/suspended for bringing toy guns, butter knives for cookies, nail files to school, for pointing fingers and pretending to shoot, for shooting paper clips/rubberbands and for saying a girl in the class has "big boobs) Discretion - Should you weed out children who have done something "wrong" Consistency - need to send a consistent message that regardless of person or reason, weapons, drugs, etc. WILL NOT be tolerated Police Contact Initial Juvenile Court Contact Hearing Adjudication Disposition

8. Pretrial Practices in Juvenile Court

A. Initial Juvenile Court Contact Intake - Intake is when an Intake worker or i. probation officer is going to make a decision of whether or not to divert OR whether or not case will be formally handled by the juvenile court i. Usually done by probation officers (intake officers in larger jurisdictions and prosecutors may conduct or oversee in smaller jurisdiction) ii. Performs a miniature "child study" iii. A very consequential decision is made whether or not to proceed formally or informally iv. From here, probation officer decides petition (which moves the juvenile into the juvenile justice system) OR diversion v. Diversion is when a police officers/probation officer have the discretion to either divert a youth who is allegedly involved in criminal misconduct to a diversion program or refer the youth to juvenile court intake for formal processing vi. Key Questions What is the point of a diversion when the entire juvenile justice system is a diversion? Almost 50% of all cases that go to intake are diverted How do you counter biases for this large amount of discretion given to probation officers?

African-American kids are more likely to get petition ii. In the Matter of Frank H. - New York Family Court (1972) i. Issue: Is intake a "critical stage" of the proceedings wherein the right to counsel attaches? Reminder: Gault applies ONLY to the adjudicatory portion of a juvenile proceeding that could result in confinement. However, court applies Gault balancing There is no clear adult transferrable stage Pro for having an attorney at intake - you don't want kids being diverted who shouldn't be there at all; lawyers may help kids to understand their rights Con for having an attorney at intake Might introduce a more adversarial nature and take away from the open flavor of what's going on with the kid; Intolerable burden on an already overburdened court/lack of manpower; Main reason: Not needed because of the exclusionary rule - there is an absolute prohibition of any statements or confession made at the intake stage the information is excluded from use in the hearing iii. Debating Diversions i. 50% of juvenile cases are diverted ii. Pre-requisite may be that you admit the allegation - Many diversion programs require that the child accept responsibility and admit to the crime If kid does not comply with diversion plan, consequence may be to be kicked back into the formal system and may not have the right to diversion OR you may be sent directly to disposition iii. Types of Diversion - Typically involves: a diversion contracts that you and your parents have to sign for the youth to engage in: Community service Restitution counseling and substantive training Alternative school Parental involvement and sometimes parents being held criminally responsible Mandatory attendance at school

iv. People can sometimes create their own diversions! Families may suggest their family churches, community centers/service, etc. This may cause a disparity in treatment across socioeconomic status v. Pros Individualized - Somewhat based on characteristics and needs of the offender not the offense - goes to the underlying goals of JJ, right? Not murders and persons with guns though Flexibility in it - Middle ground or opportunity for second chances Way of getting kid on right track without stigma as a "juvenile delinquent" or "ward of the state" Rehabilitative ideal - making them a better functioning member of society Better for the community to be involved community control Priorities/allocation of resources - so the minor cases and status offenses are out of the overburdened system and the major ones that go to court are worthwhile Places more responsibility on the parents But could be criminally or financially responsible But then it seems that sometimes the kid might not feel as responsible Not idealy - parent abuses child, or child tries to screw the parent viii. Voluntary nature - choice Juvenile may have some input in what happens The kid is saying I am somehow responsible for what happens to me now vi. Cons i. Net-widening Whenever you're creating a program like diversion, you may be widening the net of the kids that come into the system at all The system of diversion brings in kids who would otherwise not be brought into the system -- it legitimates the system in a way that many kids who should have never been brought in at all are brought in

Existence of diversion means that more cases will be brought in all together Diversion is still some form of institutional control Who should decide that kids needs certain services? Schools/community OR juvenile justice system ii. Voluntariness - alternative of going to court -not really voluntary -- more so coerced In a lot of ways it is literally coerced because the only way you can get to diversion is if the kid admits to the crime/issue Admitting the factual allegations But you don't get a lawyer at intake - See In Re Frank H. So kids are admitting without counsel problematic iii. Procedure - No counsel iv. Legal limbo If u violate the diversion, then you can be petitioned to go to juvenile proceeding Could be called double jeopardy But are they worse off? v. Could be foregoing fact-finding vi. Hard to study the effectiveness Some of the diversion programs are very different - So its hard to say how effective they are if you look at ALLthe kids that were diverted The best studies are more narrow - like just Washington vii. Discomfort - that something is better than nothing But maybe its not? viii. What if there was no diversion program? Maybe divert back to school, charity, organizations - more voluntary

D. Detention BIG ISSUE: If you're getting petitioned, the i. question is are you going to be detained pending the hearing (very important because juveniles do have a right to bail) i. Only an issue to the kids that are not being diverted

ii.

Schall v. Martin - SCOTUS - 1984 i. Rule: New York Family Court Act authorizes pretrial detention for kids if there is a "serious risks that the child may before the return date commit an act which if committed by an adult would constitute a crime OR if there is a substantial chance that they will not show up at court ii. Holding: Preventative, not punishment can detain pre-trial iii. Question: Is preventive detention of juveniles compatible with the "fundamental fairness" required by due process? iv. Two Question Inquiry -Does preventive detention under the statute serve a legitimate state objective? Balancing Interests Legitimate and compelling state interest in protecting the community and the child from the potential consequences of future pre-trial criminal acts Interest is confirmed by the uniform legislative judgement - widespread use and judicial acceptance of preventive detention for juveniles in EVERY state! Considers high recidivism rate of juveniles Countervailing interest in freedom from institutional restraints However, juveniles are ALWAYS in some sort of custody subject to the control of their parents and the state plays a role as parens patriae in promoting the welfare of the juvenile and protecting the juvenile from his own folly "if parental control falters, the State must play its part as parens patriae."

 Is this punishment or merely an incident of the legitmate government purpose? Why not punishment? Limited in time/entitled to an expedited factfinding hearing Conditions of confinement reflect regulatory purposes Final disposition (fact that many of the detainees are eventually released pre-trial) is irrelevant Are the procedural safeguards contained in the statute adequate to authorize the pretrial detention of at least some juveniles charged with crimes? The initial appearance is informal, juvenile is given full notice of charges, accompanied by an adult, informed of his Miranda rights Juvenile may challenge petition for lack of probable cause Judge makes a decision of detention based probation officer and presentment agency's recommendations and must state on the record the facts and reasons . Pro Analogs to other parts of the juvenile system Kids are immature - may be more dangerous before trials Kids are always in the custody Removal from environment may be a good thing - Ideal of Rehabilitation Only a short amount of time to ensure safety vi. Cons Curtailment of liberty with slim benefits (most cases are dismissed) Placed in facilities with youth that are already convicted

B.

Judges can't make such a strong prediction - use subjective decisions, no guidelines vii. Holding - Statute was upheld; juveniles can be detained pre-trial under circumstances that NO adult ever could Not necessarily incompatible with the purposes of the juvenile justice system Salerno changes this - upheld the Bail Reform Act of 1984 which allows a federal court to detain an arrestee pending trial if the Government demonstrates by clear and convincing evidence after an adversary hearing that no release conditions "will reasonably assure . . . the safety of any other person and the community" Thus, under some circumstances, you can detain adults pre-trial viii. Two Reasons Protect against fleeing To protect themselves and society from some significant risk that they could harm themselves or others ix. Full authority in Schall Inability to prove the negative - no feedback mechanism - no way to disprove this - if u detain the kid they can't commit a crime - so u can't get any feedback about how accurate/effective the pre-trial detention is - nonfalsifiable proposition Expense Competence 1. Thomas Grisso, What We Know about Youths Capacities as Trial Defendants, in Youth on Trial: A Developmental Perspective on Juvenile Justice (2000 1. Summary of Findings a. Conceptualization of a Right - A larger proportion of delinquent youths (than adults) bring to the defendant role an incomplete comprehension of the concept and meaning of a right as it applies to adversarial legal proceedings - think a right is conditional and can be taken away rather than automatic b. Acquiring Information One is Given c. Youth tend to develop legally relevant cognitive abilities around 15-16

d. Delinquent populations see this development later and have a greater population of adolescents with intellectual deficits, learning disabilities, emotional disorders, and reduced educational and cultural opportunities e. Poor decision making; lack of ability to communicate information with a lawyer 2. Competency Determination (ONLY if there are any questions about the child's mental competence) 1. Three Major Organizing Themes a. L:egal Standard Dusky v. US - Competence Standard: Same standard applied to adults and juveniles The legal concept of competence to stand trial is defined as a defendant's "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding"; AND whether the defendant has sufficient ability to communicate with attorney (talking/listening with attorney in rational way) "rational as well as factual understanding of proceedings against him" Does the defendant understand the rights, procedures, roles of players, etc. - who? What? When? Where? Why? How? b. What threatens this? Is youth (developmental immaturity or cognitive underdevelopment)? Mental illness Developmental disability/mental retardation? Is youth included? Statute refers to two things:

Section 6550 - mental condition - youth could be "mental illnessincluded Why are kids different? Cognitive Development - Mylination - frontal lobe not fully developed - lacks ability to think logically and abstractly inability to communicate with the lawyers OR to project into the future Difference in status level Behavioral Control Risk Assessment Different Priorities - may act rationally in service of their priorities which may not be rational (interests may be immature) iii. Reasons to Worry Inability to prepare the defense - attorney is not the one on trial; person is not a meaningful agent Fundamental Fairness - lack of accuracy; proceeding against a person who is a nonagent What kinds of kids? Low IQ, SES, multiple oppressions, behavioral control 3. Timothy J v. Superior Court v- California Court of Appeals - 2007 1. Facts: Experts opined that: i. 11 year old Dante did not have the ability to effectively work with his attorney to prepare this case because as a result of his age, he had not reached the developmental stage where he can process information, make sense of it, and develop a preferred decision-making strategy; Dante had little or no concept of the future, so the idea of prolonged punishment or supervision had *854 no meaning to him and because he had not yet developed a desire to be independent of his parents, the impositions of physical restrictions would not have the same meaning and effect on him as it would have on an adult ii. 13 year old Timothy J. had an individualized education program (IEP),

was in special education classes, and read a couple of grade levels below normal for his age. He also had Obedience Defiant Disorder (ODD), and Attention Deficit Disorder (ADD), and Attention Deficit/Hyperactivity Disorder (ADHD). Timothy had a learning disability related to attention, visual processing, and cognitive abilities. iii. Psychologists reasoning: Dr. Edwards explained that the brain of a young child has mildly developed frontal lobes. As the person reaches puberty around the ages of 11, 12, and 13, the myelination process takes place in the frontal lobes. During the myelination process, myelin sheaths form around nerve fibers in the brain providing insulation for the nerve cells. As this process advances, the person develops more and more skill levels and abilities, and the individual begins to develop the ability to think logically, abstractly, and to have a sense of the future. Dantes developmental level limited his ability to think in those terms. Dr. Edwards concluded that Dante was incompetent to stand trial because he was unable to understand the issues, including the role of the courtroom participants, and the nature of the punishment. Holding: Minor can be found incompetent 2. to stand trial on the basis of developmental immaturity alone. It is NOT required that a minor have a mental disorder or developmental disability before hearing may be held or a finding made on incompetency RULE: The legal concept of competence to 3. stand trial is defined as a defendant's "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" AND "rational as well as factual understanding of proceedings against him" 4. Procedural Posture - Defendants claim incompetency to stand trial based on agerelated developmental immaturity; juvenile (lower) courts ruled that to be found

incompetent under the rule, the minor must have a mental disorder or developmental disability 5. Reasoning i. Dusky standard makes no mention or a mental disability or disorder as a requisite to incompetency ii. The question is cognitive, whether the defendant's mental condition is such that he or she lacks the degree of rationality required by law iii. Developmental immaturity limits one's ability to understand the nature of the proceedings against them and to assist counsel iv. AGE, alone, may not be the basis of finding incompetency because there is no precise age at which a person become competent 4. Maine Law 1. Burden of Proof i. 14 or over - juvenile has the burden of proof of showing that they were incompetent 5. Procedure to Examine Competency 1. Once it is raised that there is an issue regarding a juvenile's competence, it is mandatory that they shall suspend the proceeding 2. Example - Middle TN Mental Health Institute Confidential Psychological Report i. 17-year old Asian male - friend's and siblings died when he was young (starvation/VA tech shootings); feels their spirits in his body; disorganized thoughts consistent with psychotic thought process; congnitive functioning - IQ of 68 - middle level of mental retardation; mental illness seemed to compromise his ability to understand the nature of the proceedings against him and effectively communicate with counsel; CHANGED ONCE STABILIZED ON MEDICATIONS; recommended medical treatments, therapy, etc. 3. What if person is incompetent? Person can be restored to competence medicate voluntarily/involuntarily; allow them to grow up over time; detox; education

 Problematic - youthful immaturity - there is not a lot you can do to restore competence except wait for the person to become competent Timing - Evaluations are taken prior to trial so how can you test for competence at the tie of trial

9. Overview & Judicial Waiver (Transfer into Adult Criminal Court)

A. Introduction 1. Effects a small proportion of people--not that many juveniles actually get transferred -- but throws a dark shadow 2. Justifications for Transfer The strong pressure to transfer when the 1. minimum punishment felt necessary exceeds the maximum punishment within the power of the juvenile court i. Maximum punishment in the juvenile court does not permanently disfigure and leaves "rood for reform" to enter the world of work, form a family, etc. ii. There are times when the most serve punishment/confinement that a juvenile court can administer falls short of what the community will tolerate iii. Some offenses are SO serious that they need a greater punishment that the juvenile justice system can provide iv. Goes to the offense 2. Some juveniles may not be amenable to treatment i. Goes to the offender (i.e., history of dangerousness and recidivism) 3. Age issues - Example - Suppose a juvenile court only has jurisdiction until a juvenile turns 18 and the juvenile commits a crime a few days before his 18th birthday. Transfer seems appropriate. 4. Serious and/or older offenders effect on nonserious or younger juveniles 5. Some cases better suited for adult court Example - Conspiracy of all adult offenders and one 17 year old juvenile 6. Ease the overburdened juvenile docket 7. Deterrence - Threat of more severe consequences

B.

C.

Transfer is problematic because: 1. Floppy Valve Problem - Need to have a safety valve so have the continued existence of the juvenile court; where do you stop? What crimes should/should not be included? 1. Examples - intentional killings committed by older children 2. Juvenile court should place high values on life opportunities of the delinquent and leaving "room for reform"- punish offenders without sacrificing the longterms life chances and developmental opportunities of future life changes; kids are underdeveloped; their personalities are transitory/not-fixed; they are capable of rehabilitation; i. JJ is limited to punishments that "harm but don't disfigure" Methods of Facilitating Transfers i. Abolish the Juvenile Court System - no constituency supports this proposition ii. Jurisdictional Cutbacks of the Juvenile Court (i.e., by lowering the age - NY state has lowered there age to 16) a. Pros - allows for focus/efficiency with the chosen population; removing the more violent/older children; homicides and serious crimes are more likely to be committed by older juveniles b. Cons - Blunt instrument/Overbreadth - nonserious crimes are swept in to criminal court; lost of the ability to consider extraneous factors; kids won't receive rehabilitation programs iii. Expand punishment power of Juvenile Court a. Blended Sentence i. Juvenile Inclusive Blend - juvenile sentence with a spring interest in a future adult sentence ii. Pros - attempt to allow children to remain in juvenile court but to also properly punish as an adult iii. Cons - Gault argument - Juvenile court with the possibility of the adult system but without the procedural rights of the adult system; netwidening - has not helped to minimize transfer iv. Selective Transfer a. States will typically choose to apply a mechanism to let kids out one by one Zimmering thinks this is the BEST method b. 3 ways to do this: i. Judicial transfer/waiver ii. Legislative exclusion/automatic transfer

iii. Prosecutorial transfer/direct file/concurrent jurisdiction Judicial - Judge decides who should be c. waived to criminal court i. Before the 1970s, the only way was judicial waiver ii. Various types of judicial waiver Entirely discretionary Rebuttable presumption in favor of waiver Mandatory waiver (if certain statutory criteria are met) - differs from statutory exclusion (i.e., finding that juvenile is "no longer amendable to treatment" based on history, recidivism, and previous dispositions) iii. iv. Kent v. United States 8*////////////////*//Legislative Exclusion/Automatic Transfer -State statute excludes certain juveniles from juvenile court jurisdiction v. Accounts for the LARGEST number of transfers vi. Legislature may write the law in a way that automatically carves certain age-offense combinations out of the juvenile court jurisdiction - THE CASE THEREFORE ORIGINATES IN CRIMINAL COURT Arguments Status is literally "undetermined" until the prosecutor charges - Jurisdiction based on the offense that the person is charged with Is this the right charge? Biased/differential treatment? Divesting of a right that has been extending by the state!

Hard to make argument that it is a constitutional right in that it was introduced by matter of legislative reform Legislative could

just get rid of the entire system, so why does legislature have to guarantee it Up until the waiver hearing, the person will be treated as a child No bail, held in detention, intake proceeding Not moved to a youth wing of ajail Dissent - "fundamental and immutable" Right to be treated as a juvenile because the statue says so . Reverse Waiver - waived back to juvenile court; Most states will NOT reverse waive you in this situation . "Once an adult, always an adult" - States may or may not follow this rule vii. Does the greater power encompass the lesser? i. Fundamental/immutable right in being treated as a child? ii. How can we build in adequate safeguards viii. United States v. Bland - D.C. Circuit (1972) Law: The statute redefines who is a "child" from individuals under 18 to individuals under 18 EXCEPT those 16 or 17 charged with certain enumerated crimes (Typically serious/violent crimes like murder, forcible rape, burglary in the first degree, etc.) Facts: 16 year old Bland was arrested and indicted on charges of robbing a post office and other related offenses. Holding: Reasoning: Legislative history: Goal = to remove individuals between 16 and 18 whom Congress concluded (1) were beyond the reach of JJ's rehabilitation AND (2) whose presence in the JJ system served as a negative effect on other juveniles

Concerns = Recidivism/Repeat offenders, Rise of serious crimes committed by older, violent youth Uniformity: Several states allow this type of judicial exclusion Constitutional Authority: Legislature has the constitutional authority to define what a "child" Jurisdiction of the Family Court is limited to those who come within the statutory definition of "child" Thus, it can define some of the children out of juvenile court Procedure: Can they do it without some of the procedural rights? Where the legislature instead of the judiciary is taking it away? Kent said that the stakes for transfer was so high that you have to allow procedural rights However, court says that by writing certain juveniles out of the system, the court has effectively not given certain juveniles the right - You don's have a right to JJ unless defined as a "child" Until it is determined whether a person is a "child" within the statutory definition, there is no jurisdiction; therefore, the can be no waiver of jurisdiction No classification until the child's age is the determined and the prosecutor brings charges Prosecutorial discretion: Long and widely accepted concept of prosecutorial discretion -- age-old function od deciding what charges to bring against whom (whether to charge on person, but not another, misdemeanor or felony, etc.) Bland combines a

legislative assumption (legislative is going to define in advance the class of kids that by definition that it believes are beyond the reach of the juvenile justice systems because they are not amenable to treatment and should be segregated from other juveniles) with a prosecutorial charging decision (do we think we can prove that you committed that crime and we're going to charge you with that crime) Dissent: Congress can NOT overrule the constitutional procedural requirements guaranteed by Kent with a statutory enactment

Prosecutor' D.C. After s Power Bland Judicial Transfer/ Waiver Charging and persuasion persuade the judge to transfer

Manduley

You can Yes have a judicial transfer if you're 16 or 17 (+) you commit some OTHER felony that is not enumerated under the legislative exclusion OR You are any age (+) you commit a crime that would be eligible for the death

penalty or life without parole if the child was an adult *Under these, Juvenile receives Kent procedure and Kent-like substance* Legislative Exclusion/ Automatic Transfer Charging waiver based on what the prosecutor charges You are Yes automaticall y transfer if you are 16 or 17 (+) you commit one of the statutorily enumerated felonies *Under this provision, You DO NOT receive Kentprocedure and Kent-like substance* Prosecutor ial Transfer/ Direct File/ Concurrent Jurisdiction Charging and the discretion to choose the court "wobblers" prosecution charges them with a crime that then allows Yes

them to choose the court

.

Prosecutorial transfer/direct file/concurrent jurisdiction i. Manduley v. Superior Court of San Diego California Superior Court - 2002 Law: Prior to Proposition 21 Juvenile's under 18 who committed crimes were subject to the jurisdiction of the juvenile court unless it was determined that the juvenile is UNFIT! Rebuttable Presumption: Minor over 14 who committed certain crimes (murder, roberry, or assault with a firearm) is presumed to be unfit but is giving a hearing to rebut the presumption Proposition 21 - the Gang Violence and Juvenile Crime Prevention Act was approved which broadened the circumstances in which prosecutors were authorized to file charges against minors 14 years of age and older in the criminal division of the superior court rather than the juvenile division After Proposition 21- gives concurrent jurisdiction to both criminal and juvenile court for some juveniles ages 14 and older who commit certain crimes that gives the prosecutor the ability to bring a charge and file the case in juvenile OR criminal court without any determination that the minor is unfit for juvenile court Facts: Prosecutor filed charges against 8 juveniles convicted of various felonies directly in criminal court.

Issues: Whether section 707(d) satisfies the minimum constitutional requirements or whether it violated the juveniles due process under the separation of power doctrine OR equal protection of the laws. Holding: The court said that a prosecutor's decision to file charges against a minor in criminal court pursuant to section 707(d) is well within the established charging authority of the executive branch. Absence of the provision requiring a judicial fitness hearing to take place before the minor can be charged in criminal court does not deprive the juvenile of due process of law Prosecutorial discretion to file charges against some minors and not others in criminal court does not violate the equal protection clause Arguments:

Petitioner Separ ation of Power s/ Due Proce ss Section 707(d) violates the separation of powers doctrine by vesting in the district attorney the discretion whether to file specified charges against minors 14 and over in juvenile or criminal court Pro o secutor is exercising traditionall

Court Majority Prosecutors traditionally have had such broad authority particularly BEFORE jurisdiction is invoked o Pro secutors choose between charges which offer radical sentences TIMING The court says there is a distinction

y judicial power This is a sentencing decision Pro o secutors are picking the universe of punishment that the person will be placed, taking that away from the judge, the judiciary Rad o ically changes the menu options when a juvenile is transferred Sentencing options available in juvenile court are NOT available in adult court Section 707(d) deprives them of due process of law because the statute does not provide for any hearing to determine whether they

between the prosecutor exercising authority AFTER charges have been filed and BEFORE charges have been filed. o The court says that prosecutorial discretion before charges are filed is not invalid because the prosecutor charging discretion necessarily effects the disposition options available to the court. o Co urt has the essential authority to choose an authorized sentence AFTER charging very narrow way of construing the judicial sentencing power

are fit for a disposition under the juvenile court law Mak o ing a Kent Argument There should be a hearing, there should be reasons, etc. Equal Section 707(d) They could in fact be Prote violates their different (but how ctions right to uniform would we know operation of the because prosecutor laws and equal and they are all protection of subject to the the laws, prosecutor's because it discretion) permits two classes of minors charged with the same crime to be treated differently at the discretion of the prosecutor o Sim ilarlysituated juveniles get differential treatment based on the prosecutor' s discretion

Clas s= juveniles of the same age (+) same charges and all of them are "wobblers" (the class of kids for which the prosecution has the discretion to choose the juvenile court)
o

iv.

states still have judicial transfer, 29 states have some sort of automatic states, and 15 have some form of direct file - some states have more than one California Statute i. Section 602 Juveniles - all people under 18 Except A child greater than or equal to 14 who commits an enumerated crime ---> criminal court ii. Section 707 (a)(1) - 16 or older who breaks any crime that is not listed in section (b) gives the judge authority to transfer if after consider a list of factors the child does not fit This has to be made prior to the attachment of jeopardy 2(A) - recidivist provision which says if youre 16 or 17 and you meet these recidivist, the court will consider these same factors, there is a presumtption of being unfit, and it is on the juvenile to rebut the presumption

45

iii.

(3) - Creates a special sentencing scheme that the criminal judge can choose a LEARN CHART! Example - California 707 statute Have to be skilled at cracking the statute - Walk through the statute ALWAYS "FIT" - under 14 (many states set the floor at younger age such as 10 or have no minimum age at all) NEVER FIT - Section 602(b) a. 601(a) - Juveniles are all people under 18 b. 602(b) - Except i. A child greater than or equal to 14 who commits an enumerated crime (most serious forms of rape/murder) ---> criminal court (LEGISLATIVE EXCLUSION - THOSE WHO ARE 14, 15, 16, OR 17 WHO COMMIT ANY OF THESE CRIMES ARE NEVER FIT AND ARE IMMEDIATELY UNDER THE JURISDICTION OF THE CRIMINAL COURT) Under 601(a), if you are less that 18 and have not committed a crime listed under 602(b), you are under the jurisdiction of the juvenile court, unless one of the other provisions waives you into criminal court 602(b) is an example of legislative exclusion Bland like provision not exactly the same >14 + enumerated offenses = you will be prosecuted in adult court

The most serious offenses transfer automatically Discretion prosecutor still gets to decide what to charge Age is really not discretionary

ii. MAY BE PROVEN UNFIT BEFORE A JUDGE - Section 707(a)(1) 16, 17 + any crime not listed in 707(b) or above in 602(b) Relatively minor offenses Could be found unfit = transfer Kent-like factors Court has hearing and looks at probation officer report Will have findings, and judge will release findings and state reasons Occurs before jeopady attaches The burden is on the prosecutor to prove that the juvenile is unfit The prosecutor moves for the fitness hearing The baseline is that the kid wants to be in juvenile court - to change the status quo . PRESUMED UNFIT UNLESS REBUTTED TO JUDGE - 707(a)(2) (A) Recidivist provision

 16 OR 17 + felony (OTHER THAN 602(b)) + recidivism factor (prior adjudications of felonies if 14 or older at the time) -> presumption shifts (going to criminal court unless can rebut) (B)With the flipped presumption, judge now has to find fitness on all 5 factors above; will be unfit if any of the factors suggest unfitness Like a super presumption 4. SENTENCING - 707(a)(3) Sentencing option for criminal court Although it sounds like criminal judge can give juvenile sentence, they can't In its adult system, California has a juvenile division PRESUMED UNFIT UNLESS 5. REBUTTED TO JUDGE - 707(c) (incorporates b) 14, 15, 16, OR 17 + a (b) offense = presumed not to be fit with superpresumption PROSECUTOR DECIDES IF 6. FIT OR UNFIT - 707(d) Prosecutorial waiver or direct file Different groups of age + offense 10.Disposition and Treatment 1. Introduction Zimring advocates for judicial transfer with statutory constraints, older age, reverse waiver, Once adjudication starts, the juvenile cannot be transferred

2.

Research indicates that dispositional decisions cumulate --- decisions made by the initial participants, for example, police or intake workers affect the decisions made by subsequent participants Most cases are diverted at some point i. Police officers may refer case for formal intake or divert it ii. Intake officer may file petition for formal adjudication or dispose of the case through informal supervision or diversion - About half of the cases referred to an intake officer are closed or informally adjusted iii. After the case is adjudicated, the judge has BROAD DISCRETION to impose an appropriate sanction and may choose from an array of dispositional alternatives -- institutional confinement (being the worst), dismissal, continuance without a finding of delinquency, restitution, probation with or without additional conditions or supervision, out of home placement, etc. Characteristics of Juvenile Disposition (which makes it DIFFERENT from the adult criminal system) Discretionary - judge has unfettered discretion to decide what happens to the kid Rehabilitative Individualized - no sentencing guidelines, charts, or mandatory sentences Concepts that have evolved over time to embody the three overall ideals "Best Interest of child" Preference against removal Least restrictive alternative/Least drastic necessary step The reason that most juveniles want to stay in Jct is disposition More limited in time and severity Records sealing More rehabilitative focused State Ex. Rel DDH v. Dostert - West Virginia (1980) Court says Goal of the dispositional stage to reconcile and balance the following interests: Society's interest in being protected from dangerous children - Incapacitation

Interest in Nurturing towards adulthood / "Modeling love" - Rehabilitate children into productive citizens Deterrence - that kid and other kids Teaching Responsibility (by assigning consequences for having been irresponsibility) - Retributivism Modeling justice i. Setting an example of care, love, and forgiveness by the engines of the state in the hope that such qualities will be emulated by the children Rule/Goal of Disposition: Requires examination of all "Less restrictive alternatives" than confining a child and requires that the judge give precedence to the least restrictive alternative consistent with the best interest of the child and the welfare of the public. "Should" - Requirement or aspiration? "Shall give precedence" - Sounds like the court is saying this is the most important thing How do you balance the least restrictive alternative with the other goals of retribution, societal protection, deterrence, modeling justice, etc? Approach: Determine whether the juvenile is wingless fly in the grip of societal foces OR free will actor: i. Wingless fly - delinquency caused by treatable, external forces - broken homes, uncaring parents, learning disabilities, poverty, parental abuse, unhealthy environment etc. -that can be cured really going for least restrictive alternative - so he gets his wing back But if free-will actor - no identifiable, treatable factors (other than something self-serving like making a profit from selling illegal drugs) Then take the other factors more more -- deterrence and juvenile responsibility

Roles Established by the Judge Counsel - Must be an expert at the potential disposition options/institutions and should find the

one he/she thinks is the least restrictive alternative and best for the child i. Responsible for thoroughly investigating the child's environment (background, family, schooling) and non-confinement disposition options and advocating strongly in court based on findings Court i. Responsible for imposing a disposition where no less restrictive alternative would accomplish the requisite rehabilitation of the child OR the welfare of the public requires incarceration Standard for incarceration: delinquency is NOT the result of societal conditions beyond the child's control, but rather of 1) an intentional failure of the child to conform to the law, 2) the child will be dangerous if given any other disposition, or 3) child will not cooperate with the rehabilitative plan without physical restraint Is JJ punishment disguised as treatment? 3. In the Matter of the Welfare of LKW - Minnesota Court of Appeals (1985) Facts: L.K.W., then aged 16, admitted to a misdemeanor violation of the shoplifting statute and the juvenile court adjudicated her delinquent. The juvenile court removed her from her home and placed her in a private residential facility 150 miles away for a stay of 90 to 100 days at a cost of $6,500. L.K.W. remained in the placement for 66 days Holding: The 66 day stay was harsh/unjust, not supported by findings Problems Disproportionality - no evidence at all showing rehabilitation needs of LKW that align with the program offered by the institution she was confined to or that her offense was so severe that she needed confinement or that rehabilitative goals could not have been achieve through a least restrictive alternative means Solutions Standard: The juvenile court is directed to use the choice of disposition judged necessary to the rehabilitation of the child.

4.

i. Order for a disposition MUST state why the best interests of the child are served by the disposition ordered" AND "findings must also note alternative dispositions considered by the court and reasons why such dispositions were not appropriate in the instant case. Approach i. Court should look for the least restrictive means/least drastic step necessary to restore law-abiding conduct Weigh the severity of the child's delinquency with the severity of the proposed remedy ii. Special regard for valuable family relationships. Suitable for the childs needs. Preference against removal 1. First, there must be evidence that aims of the law cannot be realized without removal of the child from her home. 1. If a child has valuable home relationships, they cannot be taken away without evidence of unusually severe needs of the child for rehabilitation. 2. Second, there must be evidence that the placement being considered is suitable for the needs of the child. 1. If a placement is not suited to actual needs of the child, it cannot serve the childs best interests (LKW confined to a place that builds self-esteem where she had no self esteem problems) iii. Findings on rehabilitation needs and family relationships. Findings on suitability of a residential program. Court must have findings to support its decision iv. Control over the choice to remove children. Avoid unnecessary or harmful placements Ultimately, look at the juvenile's family, environment, and upbringing and decide what disposition best addresses his/her needs in the least restrictive way In the Interest of BB

Facts: Iowa has a cap on the number of kids in foster care. Dispositioned juvenile who would like to be in foster care rather than a state training -- State has no more beds Issue: Does BB have an absolute right to the least restrictive placement? Equal Protection Argument Class - kids who are eligible for foster care -- all juveniles in the state whose least best alternative would be foster care are bring treated differently i. Law passes the rational basis test - assigning foster care based on need rather than firs-come first-serve would be unduly burdensome, impractical, and expensive. ii. The law is rationally related to a legitimate government interest Right to LRA? - Establishes a caveat - In deciding a disposition, the juvenile court is confined to consideration of those available facilities in which the juvenile can legally be placed -- Least Restrictive (Available) Alternative -- you should receive the least restrictive of what's available As long if it's good enough, it doesn't matter Juveniles do not have a constitutional right to the least restrictive alternative. Confinement does not all of a sudden become unconstitutional because something less restrictive

11.
1.

Conditions of Confinement
Review Historically, the entire point of juvenile disposition is rehabilitation. But most recently, rehabilitation is no longer the main focus -- deterrence, incapacitation (when necessary), and punishment Who is this kid, to what degree is his environment responsible, how can we maximize the chances of the kids rehabilitation Two themes: Individualized disposition - startling because two kids who do the exact same thing may get wildly different dispositions because of different needs Typically Indeterminate - Some jurisdictions will cap the sentence at the maximum that an adult could receive under the same circumstances Theoretical Themes Preference against removal from the home

2.

3.

Least Restrictive Alternative - Mandated or Preferential i. But even state's that mandate it, say that it must be the least restrictive "available" alternative if the reason why the least restrictive is unavailable is a reasonable one Unconstitutional Conditions Juvenile justice systems across the nation are in a state of disarray -- routine violence and realistically, a lack of focus on rehabilitation Juveniles have a substantive due process right to reasonably safe conditions of confinement When the range of possible dispositional alternatives fail/so constrained that it becomes unconstitutional/So restricted and so inadequate that it pushes the entire system beyond "good enough" Individual institution is actively harming the kid physical harm, sexual abuse Problems Abuse of inmates by staff and other juveniles is routine -- tear gas, beatings, solitary confinement (for long periods of time without toiletries, clothes, blankets); sexual violence; staff not breaking up fights amongst inmates Staff - lack of training, screening, a lot of power, low pay, high turnover rate, racial/cultural disparities, oversight Mental health - failure to identify and treat youth in need of mental health care of special education, not providing treating, mentally ill children, desperation treatment (people in ), inadequate, overmedication with psychotropic drugs; Medical - injection of excited youth with tranquilizing drugs in the absence of medical staff; failure to provide needed medical attention (i.e. boy who dies from ruptured appendix after crying for 3 days and being ignored) Facilities - infested with rats, cockroaches, and other rodents/insects, overcrowding, Education/training Recidivism rates frequently exceed 50% Why The "get tough" legislation that drove juvenile justice policy in the 1990s shifted the focus to harsh punishment at the expense of rehabilitation Lack of transparency

4.

Political will - rhetorical, delayed benefits Entrenched interests Majority may not be as willing to spend on minority kids Law Remedies Two primary ways to seek to challenge conditions of confinement: 1) Private Law Suits or 2) CRIPA (Civil Rights of Institutionalized Persons Act) Private Action - Attorney General has the right to intervene to strengthen the case CRIPA Enacted in 1980 after Congress found nationwide conditions of juvenile confinement "barbaric" Authorizes the DOJ to sue state and local governments to remedy "egregious and flagrant" conditions that deny constitutional or federal statutory rights to person residing or confined in public institutions, including juvenile correctional facilities. Federal courts may order remedies that "insure the minimum corrective measures necessary to ensure full enjoyment" of these rights CRIPA is designed to ensure the bare minimum not to make facilities like Missouri i. Only prevents egregious and flagrant" deprivations of constitutional rights 8th Amendment - guarantees protection from "cruel and unusual punishment" i. Substantive due process argument government is depriving me of my right to health, safety, etc. Standard - - Must show all of these for the DOJ to sue: i. In Sum, whenever the Attorney General has reasonable cause to believe that any juvenile correction facility, detention center, treatment center, etc. is subjecting persons residing in or confined to an institution to egregious or flagrant conditions which deprive such persons of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States causing such persons to suffer grievous harm, and that such deprivation is pursuant to a pattern or practice of

resistance to the full enjoyment of such rights, privileges, or immunities, the Attorney General, for or in the name of the United States, may institute a civil action in any appropriate United States district court against such party for such equitable relief as may be appropriate to insure the minimum corrective measures necessary to insure the full enjoyment of such rights, privileges, or immunities ii. .Must show all of these for the DOJ to sue: iii. 1 - pattern & practice of resistance to the full enjoyment of such rights, privileges, or immunities Can't be isolated incident i. 2 - Egregious and flagrant deprivation of rights ii. 3 - grievous harm To identifiable individual iii. This is a high burden iv. They are really only going to work with the worse kind of facilities v. DOJ only has jurisdiction over the worst of the worst Political cover i. States can use the CRIPA to save face while implementing good policies ii. That is partly what CRIPA is for - on purpose iii. Because not many people are advocating for juveniles rights iv. So this gives politicians a way to say, we have to do this or we'll get sued Right not to be subjected to cruel and unusual punishments. Doesn't always shave to be physican harm, can be emotional harm Violent Crime Control and Law Enforcement Act Justice Department may also sue under this act which prohibits "pattern or practice" of civil rights abuses by law enforcement officers Pros Concentration on small number of facilities Does not serve as a back-door for litigation Procedure

5.

Notice - DOJ receives information and allegations through informal means, such as news reports, letters from inmates or families, and information from former and current employees of institutions. At times, DOJ also may encounter an allegedly offending facility in the course of another investigation. Only occasionally does DOJ receive complaints from juvenile advocacy groups. Investigation- basis is any allegation from any person to DOJ; attorney general, governor, and investigator of the state must be notified - Justice Department personnel inspect a juvenile facility with expert consultants in administration, mental health care, education, psychology, etc. Report - Department issues a report detailing constitutional and statutory violations and opens negotiations with the state for corrective action, with the prospect of federal enforcement lawsuit for violations left unremedies. Suit Before filing suit, following things must be done - Attorney General must certify that he was notified that state that there would be an investigation, state was provided with the report, AG has exposed the exact factual allegations, that the DOJ have offered any available assistance, the problems have persisted and the institution has not made changes, and attorney general has told the state the "minimum measures" necessary to ensure the enjoyment of the rights Only requires juvenile justice do the bare minimum Why would they require this LONG process? State has less to complain about Builds in chance for states to do stuff voluntarily The Missouri Model Uses small regional, community-based facilities that enable highly trained staff to treat delinquents children with constant therapy in small-group settings Staff - Most at college-educated "youth specialists" not guards or corrections officers No overcrowding Decentralization allows most kids to be treated really close to home Family involvement is an essential focus for successful rehabilitation

6.

Comprehensive needs and risk assessment Assignment of an individual case manager -- Diverse programming -- Education, counseling, and vocational guidance Separation of violent youth and other youth Missouri Hills is clean and homey, with plush couches, stuffed animals on the bunks, and a dog rescued from the pound. The violence that plagues many juvenile prisons is also absent. 9. Focus on diversion 10. "Young people are really turning their lives around and becoming productive citizens," said Tim Decker, director of Missouri Division of Youth Services. "We've redefined what's possible in the juvenile justice system." 11. Implications Low recidivism rates - 1/3 to 2/3 lower than other states Financial Efficiency - spends about 1/3 less on juvenile corrections Reform Government branches need to help find a delicate balance between rehabilitation and incarceration Fears of a generation of super predators proved unfounded! More money directed toward prevention/diversion programs Regional facilities, therapeutic attitudes, focus on educational and vocational training, better classification (particularly or community-based alternatives), mental health treatment and aftercare States may choose to follow the Missouri model: How did Missouri manage escape the market forces? Its hard to get past you need money now to benefit later Counter: "Rewarding kids for bad behavior" More states are looking like Missouri: The reforms have begun to have a national impact, with a 12 percent decrease in juvenile offenders from 1997 to 2006, from 105,000 youths to 93,000.

12. Disposition of Juveniles Convicted as Adults

1.

Introduction In juvenile court, secure placement is the worst If waived into adult court, initially, there were no limits Chronology of Relevant Case Law 1988 - Thompson case i. No Death Penalty if you are under 16 (15 and younger) ii. Would offended civilized standards of decency iii. Very rare anyway -- someone under 16 had not been executed since 1948 iv. Inappropriate retribution - Kids are less culpable/not as morally reprehensible v. Ineffective deterrent -- Kids don't engage in cost-benefit analysis when committing crimes vi. Plurality opinion - controlling part of the opinion is just 4 justices 1989 - Stanford i. Death Penalty is ok for 16 & 17 year olds ii. 22 of 37 statess allow DP for 16 & 17 year olds no NO national consensus that it violates standards of decency or is cruel and unusual iii. Plurality says no independent judgment - Court should not bring its own independent judgment to bear on the acceptability of juvenile death penalty 1989 - Penry i. Death penalty ok for mentally retarded -- Eighth Amendment does not mandate a categorical exemption from the death penalty for the mentally retarded ii. Only two states have such categorical exclsuion -- NOT a national consensus 2002 - Atkins i. Death penalty NOT OK for mentally retarded ii. Standards of decency have evolved since Penry making execution of the mentally retarded cruel and unusual punishment iii. Analysis - To analyze society's evolving standards of decency, court looks at Objective Indicia: legislative enactments and state practice 1. Only a few states continued to permit it and it was extremely rare = indication of a national consensus against it

2.

Court's independent judgment: mental retardation dimishes personal culpability -- Retribution and deterrence likely not achieved iv. Idea: maybe kids are less culpable types of people v. Also the independent judgment is back which after Stanford appeared to be dead vi. A whole lot of change in a very short period of time vii. So post-Atkins many thought it was the right time for Stanford to be overturned 2005 - Roper i. No death penalty for 17 and under ii. Really only the 16 & 17 year olds were in question because of Thompson Death Penalty - Roper v. Simmons - SCOTUS - 2005 Issue: whether it is permissible under the 8th and 14th amendments of the constitution of the US to execute a juvenile offender who was older than 15 but younger than 18 when he committed a capital crime Holding: the Eight and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. In other words: Whether the DP is a disproportionate punishment for juveniles? Facts Chris Simmons was a 17 yr old when he was committed for the murder which he was convicted and sentenced to death for after he turned 18. Simmons instigated the crime and told friends that he wanted to murder someone in a certain heinous way They did it - broke into a woman's house, robbed her, and threw a woman off a bridge in cold blood while she was tied up Procedure Simmons was outside of the age jurisdiction of the Missouri juvenile courts so he was tried as a adult and convicted of first degree murder i. Aggravating factors

Murder to obtain money, murder in a cruel and depraved manner, committed to avoid subsequent arrest ii. Mitigating No priors and his age Actually both the prosecutor and the defense used his age i. Aggravating in the sense that it is scary that he has so much longer to live to do more heinous things ii. Mitigating in the sense that he is SO young Jury recommended the death penalty Moved to set aside the conviction and sentence bc of ineffective assistance at trial i. No violations, motion denied Then SCOTUS decision of Atkins v. Virgina, reappealed Agreement among justices in opinion (majority, concurrence, dissent) They all agree on a particular account - that juveniles as a group usually are different than adults in some way Death penalty is for the worst of the worst issue - how do we figure out who they are? States usually get to decide what type of offenders constitute the worst of the worst - thats important because has to be pretty exceptional to take that away from them Everyone seems to agree there is some age under which the children can't be executed - have to draw a line somewhere: i. Under 7 years old ii. Going back to Gault iii. Young children were executed in the US so long as they were 7 iv. Majority - 18 v. Justice O'connor would leave at 15 vi. Dissenters - 7 They agree on the goals - as retribution and deterrence Standard: To determine whether under the 8th Amendment, evolving standards of decency demonstrate that the execution of 16 and 17 year olds is cruel and unusual punishment. Note: Some justices may not agree with this being the standard- Scalia, Thomas may

not - they believe in ORIGINALISM - 8th amendment means what it meant when it was created - but at least if we have to do this evolving standards of decency - lets at least only use objective indicia, not independent judgment!) Court's reasoning i. 1 - "Objective indicia" of societys evolving standards Evidence of a national consensus Everyone seems to agree that this matters First, court examines 1) STATE LAWS (Do the laws, or change thereto, reflect a national consensus?) AND 2) STATE PRACTICE (Does the law use it? How often are these laws for juveniles actually imposed?) ABSOLUTE NUMBERS about whether states allow or prohibit Atkins Roper Similarit 30 states 30 states y prohibit prohibit death death penalty penalty for for mentally juveniles; 12 retarded; 12 have have abandoned DP abandoned altogether and DP altogether 18 that and 18 that maintain it but maintain it categorically but exclude categorically juveniles (by exclude the express mentally provision of retarded judicial interpretation) Similarity Even in the 20 states without prohibition, the practice of executing mentally Even in the 20 states without prohibition, the practice of executing juveniles is RARE - ONLY 6

retarded was since Stanford; infrequent - only 3 in the ONLY 5 since past 10 years Penry with IQ under 70 Differen Rate of ce abolition of the death penalty for the mentally retarded - 16 states abolished it after Penry before Atkins

Only 5 states have actively abolished juvenile death penalty since Stanford

12 states without death penalty at all Argument - nothing deliberate as to juveniles Counter - greater includes the lesser They have rejected the juvenile death penalty, just not explicitly It was good enough in Atkins 18 states that expressly exclude juveniles from DP = 30/50 - 3/5 Probably a consensus is at least 2/3 DISSENT: So 3/5 is really a "majority" not a consensus, thats what the dissent says If its changing, what's the rate of change and direction of the change? Court in Atkins and Roper says that "it is not so much the number of these states that is significant, but the consistency of the direction of change"

Data carries strong force in light of all the anti-crime, crackdown on crime super predator age After Stanford didn't see as much of a change in states as in Atkins i. BUT not a single state added the juvenile death penalty Rate of change not as good, BUT same direction of change Any difference between Atkins and Roper is counterbalanced by the consistent direction of change 2. 2 - Court's own Independent judgment (p. 4) Underlying Rationale: The death penalty is the most severe punishment reserved for the most serious crimes and the worst offenders whose extreme culpability makes them deserving of execution. Accordingly, no matter how heinous the crime, the death penalty may not be imposed on certain classes of offenders-juveniles under 16, the insane, the mentally retarded--because they possess mitigating qualities that make them make them less culpable and less deserving of death as a punishment Here is where juvenile advocates think they can use this in other juvenile justices scenarios Court's analysis - Here's where the court talks about juveniles - " Parents/scientific, psychological, and sociological studies suggest that there are three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified as the worst offenders:

1- Lack of maturity and underdeveloped sense of responsibility Implications - impetuous and ill-considered actions/decision; engaging in reckless behavior Consistency in the law the law recognizes they are immature Can't vote, can't drink, can't marry, can't serve on a jury under 18 How does the law deal with children 2 - Juveniles are more vulnerable or susceptible to environment, negative influences, and outside pressure, including peer pressure i. Unfortunately, juveniles typically lack control over their environments ii. These first two are backward looking Going to retribution how much should we punish them for lessculpable characters 1. Based on the first two, juveniles irresponsible conduct is not as morally reprehensible as adults Going to Deterrence No one is talking about absolutes, Relative to adults She says Scalia in the dissent is using sloppy thinking - Using absolutes 3 - The character of a juvenile is not as well-formed as that of an adult. The personality traits of

juveniles are more-transitory and less fixed. Forward looking Rehabilitation point there's no space for that in the death penalty - only retribution or deterrence Juveniles are developing and struggling to find their identity -- so even a heinous crime is NOT evidence of an IRRETRIVABLY DEPRAVED CHARACTERS Thus, a greater possibility exists that a juvenile's character deficiencies will be reformed As individuals mature, recklessness and impetuousness subside Implications Two aims of death penalty fail when applied to juveniles: Retribution - Retribution is NOT proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of youth or immaturity Deterrence - Juveniles are likely less susceptible to deterrence Here are these things that can render - you can't be the worst of the worst Theory No matter what you do -if an adult did what you did, they would be worse than you So you can't be the worst of the worse because

there is always someone who is worse - the adult International practices Article 37 - United Nations Conventions of Rights of a Child ratified by every nation but U.S. and Somalia -- express prohibition of captial punishment for crimes committed by juveniles under 18 This is the most controversial part of the independent judgment part Lists out the group of countries that have done it since 1990: like Nigeria, China, Congomakes US look bad And now they have all abolished it except Somalia So there is a rate and direction of change - all have abolished it UN Convention on the rights of the child and sets 18 as the age cut off This argument is a buttress to the opinion; persuasive Signal to the world - we know we aren't the only people in the world - We value you alls opinion Backup reason 3. Dispute over whether the 3 general principles should constitute a categorical rule Majority Yes categorical rule Dissent OConnor Why can't jury's determine which one's are the worst of the worse She is saying, she would sign on to all of that if the court would have said to just take it into account

She is saying Death Penalty is a highly individualized process - no categorical rule needed Some 16-year and 17-year olds are sufficiently psychologically mature and culpable and there are some over 18 they lack sufficient maturity, culpability and depravity Juries are capable of assessing this and giving it appropriate weight i. BUT majority says psychologists can't even diagnose psychopaths before 18 Kennedy's counter in majority Risk The prosecutor argued his young age was an aggravating factor Risk that jury can't determine culpability accurately Because they look older, act more mature The moving target nature of youth cuts against them Can't trust juries with About youth Your just saying you kinda can't trust juries period dissents are saying that Counter - the types of concerns bc what is special about youth Life Imprisonment Without Parole - Graham v. Florida 3. - SCOTUS - 2010 Issue: Whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a NON-HOMICIDE CRIME. Facts 1st crime attempted robbery of a bbq restaurant where one of the friends left the back door open - hit manager over the head no money was taken i. Not that serious of a crime

ii. Sentence - sentenced to 3 years of probation a year in jail and got a second chance iii. Prosecutor elected to charge him as an adult - "direct file/prosecutorial transfer" iv. Florida allows prosecutor to have absolute discretion Any 16 or 17 year old with any felony at all 2nd crime - home invasion robbery i. Violation of his probation ii. Then he gets charged for the original charges of armed robbery iii. The judge before had withheld adjudication pending successful probation iv. He gets that from when he was 16 v. He's not being convicted of those things in the 2nd crime - there was just evidence of them at a probation violation hearing vi. Argument that he was almost 18, but he was just 16 when he committed the first crime vii. The only thing he admitted to was fleeing on foot viii. Result: Imposition of JLWOP for the attempted robbery when he was 16 Recommendations for sentencing Defense attorney - said 5 years never ask for more than the state is asking for - just 4 years Prosecutor asking for 30 years for the armed burglary count Florida Court gives life imprisonment for the armed burglary and 15 years for ateempted robbery Because Florida's parole system is abolished, this is equivalent to JLWOP -- no possibility of release unless he is granted executive clemency ANALYSIS: *NOTE: Court looks to the categorical approach as applied in Atkins, Roper, and Kennedy rather than the individualized gross-proportionality analysis typically used in challenges to term-of-years sentences 1. Why?

This case involves an issue the Court has NOT yet considered: a categorical challenge to a term-of-years sentence Gross proportionality is suitable for particular individual denfendant's sentence, NOT sentence practices *Gross-Proportionality Analysis 1. Compare the gravity of the offense with the severity o the sentence 2. If there is an inference of gross proportionality, compare the sentence with sentences received by other offenders in the same jurisdiction and the same crime in other jurisdiction 3. If the sentence remains disproportionate, it is cruel and unusual/unconstitutionally excessive

a.

FIRST - Court's analysis begins with objective indicia of national consensus! i. The clearest and most reliable objective evidence of contemporary values is enacted legislation. i. 37 states permit sentences of life without parole for a juvenile nonhomicide offender ii. But court says an examination of actual sentencing practices where the sentence is permitted discloses a consensus against its use. iii. Says nationwide there are only 109 juvenile offenders serving sentences of life without parole for non-homicide offenses. iv. Court says it is "rare"! v. Court says statutory eligibility of a juvenile offender (through transfer to adult court laws) for life without parole does not indicate that the penalty have been endorsed through deliberate, express, and full legislation. vi. Practice seems to outweigh the law! vii. Also, just because states allow for transfer to adult court DOES NOT mean they explicitly endorse subjection of

non-homicide offenders to life without parole SECOND - consider judicial exercise of b. independent judgment which requires consideration of the culpability of the offenders in light of their crimes and characteristics, along with the severity of the punishment - also whether the challenged sentencing practice service legitimate penological goals i. Said Roper established that since juveniles have lessened culpability, they are less deserving of the most severe punishments. ii. Next, nature of the offenses i. Court said life without parole is the 2nd most severe punishment available, and while not taking the offenders life by execution, does alter the offender's life by a forfeiture that is irrevocable. ii. Says non-homicidal crimes differ from homicidal crimes iii. Penological justifications i. Says none of the goals of penal sanctions provides adequate justifications for juvenile non-homicidal offenders a. Retribution b. Deterrence - Irresponsible juveniles likely do not consider punishment or future consequences when they engage in crime so they are less susceptible to deterrence c. Incapacitation - To justify the need for lifelong in d. Rehabilitation - More capable of change than adults/character deficiencies can be reformed; this is a denial of hope; good behavior and character are immaterial e. 2 issues with Sullivan i. 1 - Sullivan was only 13 at the time the crime was committed - his attorney was saying we'll take any line that protects anyone 13 or younger, but we'll take anyone under 18 and under

f.

i. So giving relief to the 18 and under includes 13 and under, includes Sullivan ii. 2 - Procedural problem with Sullivan and the court got to bypass it iii. Sullivan is a way worse case too Graham i. 2 tests 8th Amendment cruel and unusual punishment evolving standards of decency i. 1 - Categorical Rule a. The one applied in Roper b. Before this case this approach had only ever been used in death penalty cases c. 1 - objective indicia d. 2 - independent judgment of court a. Only a few cases where this has been imposed in a categorical bands Roper, Atkins, Kennedy Nature of the offenders - certain classes of offenders: 1. persons under 18 2. Mentally retarded Nature of the offense - only category we know Kennedy 1. case offense, homicide - no person who did not commit homicide can be convicted with DP ii. 2- Gross Proportionality analysis a. This has been THE test for sentencing review for term-ofyears including life

b. 1 - Threshold - gravity of the offense vs. severity of the sentence a. In the rare case in which this threshold comparison leads to an inference of gross disproportionality the court should then compare the defendants sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions. c. 2 - inter-and-intra jurisdictional comparison a. if you get an inference of gross disproportionality, then b. Intra look to comparable sentences in the same jurisdiction c. Inter - Look in other jurisdictions to see whether people convicted of the same thing get similar sentences d. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate the sentence is cruel and unusual. e. This is a really, really hard case to win f. Drug offense - possession of large quantity of cocaine court upheld LWOP g. Only one case where they have ever found gross disporitionality - Solem where the person cashed bad checks ii. Court says this is the first time the court has considered a categorical challenge to a term of years sentence.

Says cases where court is i. considering a particular defendants sentence is appropriate for the gross proportionality test But here looking at the sentencing ii. practice itself which implicates an entire class of offenders who have committed a range of crime iii. Therefore, the court said here, a threshold comparison of the severity of the penalty and the gravity of the crime in this case is not relevant to this analysis. iv. Semi-holding: The court says the categorical approach from Atkins, Roper, and Kennedy is applicable. iii. So why is it weird to use the categorical approach? i. Death is different ii. Makes sense to have something wildly different for death penalty iii. Single most radical view about Graham is that it takes down that firewall that death is not different iv. Categorical challenge for a term of year sentence a. Juvenile offenders + nonhomicide offenses iv. This is how the court does this:... v. How is Death penalty like LWOP i. Absolute judgment ii. Has the finality of death iii. Only way out is same for both executive clemency iv. Some potentially logical flaws vi. Implications Juveniles and homicide JLWOP i. Other groups coming forward saying we shouldnt get LWOP either ii. Mentally retarded going to being cases like this iii. Weird argument in which the 8th amendment is collapsing down back to how it originally was - Thomas argues that vii. Categorical approach applied: i. Objective indicia - Looks like a nonstarter because of the #s

 37 states allow it - JLWOP Just because they allow it, doesn't mean they meant to allow it Flip on what Scalia said in last opinion - he said that just because states didn't allow it doesn't mean they meant to In the last few years most states expanded their transfer capacity and then they didn't do anything to their adult sentencing laws - so juveniles could get what adults could get so either states should be aware of that because thats what they intended in creating the transfer laws - to give kids the same as the adults Or could say legislatures don't know all of the ways their laws interact 1.So unintentional to allow this... a. State laws b. Hard to untangle c. The right result vs. whether this is logical Sentencing practice 1. Very rare, especially for 13 or 14 year olds - there was 2 in the entire country 2. 14 was like 6 3. 123 - most are 16 and 17 year olds 4. The difference in counting death sentences and life without parole 5. Life without parole, numbers accumulate whereas the death penalty - its not going to accumulate - doesn't count the ones that were executed.

g.

Independent Judgment Roper gets imported wholesale 1. International opinion 2. Non-homicide (Kennedy) Twice diminished 1. Roper - can juveniles receive death penalty which is the worse sentence - no - so once diminished 2. Here - noncapital crime, nonhomicide a. Once diminished bc of age b. Once diminished bc non-homicide c. So together twice diminished - so they have to get something short of that d. Something short of life without parole e. For a non-homicide the end of the line is LWOP f. So if an adult could at most get LWOP, then the juvenile has to get at least one step from that 3. BUT, this leaves untouched juvenile homicide 4. In Graham that is dictum Justice Roberts - Concur i. Gross proportionality analysis instead of categorical rule i. Gravity of offense v. severity of sentence Says that this offense - which was not rape or murder, was not deserving of LWOP But its weird that he said that because the court never holds that it is disproportionate Roberts says age matters but the Court had not once said that before - so this is different than the past cases Presumption of diminished culpability that Roper indicates should apply to juvenile offenders - HUGE Courts should take age into account as going to the culpability of the offender when looking a the gravity of the offense

ii.

i. (put Sullivan here, then we would have gotten a different result probably because it was rape with a burglary with a long history of recidivism) h. Maroney thinks that the majority's opinion and Robert's concurrence show that age matters i. This doesn't have to be confined to someone under 18 ii. A 21 year old could argue this as well i. Thomas Dissent i. Picks up a lot of fault lines of majority ii. He would get rid of gross proportionality - There is no evidence that the Eighth Amendment's prohibition of Cruel and Unusual Punishment would require proportionality in sentencing iii. Says 8th Amendment only outlaws barbaric punishments i. Burning alive, torture etc iv. He would only draw the common law rule of under 7 v. Fault lines he draws out i. Why would you go for categorical rule vs. case-by-case? ii. What's so special about homicide? If this rule just doesn't apply to homicides, does that make any sense? How does the harm that is caused effect? vi. Court said there is something wrong with jury and judge they can't figure it out i. But really what they are saying is that it is humanly impossible to determine now because of the psychology and development of juveniles vii. Actually a case-by-case determination that happens later j. Implications of Roper and Graham i. Juvenile law is going to be in SCOTUS a lot more ii. The big issues that Graham has opened up i. Homicide/non-homicide - why is homicide different? ii. Maybe other types of crimes Juvenile accomplice for felony murder Post-Graham there is this certain developmental logic

 Bc juveniles are less matures whatever the max of what an adult should get, juvenile get something less Whatever >>>>> you get rehabilitation??? Get something more That could go beyond LWOP Some kind of homicide Felony murder Twice diminished because you were an accomplice Start adding things that bump down your culpability SLIPPERY SLOPE - One reason why courts wouldn't want this to apply is because it would apply not only to juveniles The court ERODED the death is different principle Anyone with a categorical challenge can bring a suit Reinvigoration of the gross disproportionality test Age matters Role as an accomplice What if the test actually became more real? It would ease that Even for homicides Standing Issues 1st issue - homicide/non-homicide issue Happenstance of death or not death doesn't always match up Just because a certain victim did not happen to die, should the juvenile receive a lesser punishment 2nd issue - Long terms of years options - parole options for those In Sullivan oral arguments What is a meaningful opportunity for parole? 1. When do the states have to give it to you?

California cases have addressed this a. Just overturned a virtual life sentence - 75 years b. Reasoning of Graham compels Why cant they get transferred and account for their youth - why doesn't that match up? 1. Because she is a juvenile maybe adult would be 50 to life but she gets 30? Huge implications for juveniles Less retribution more rehabilitation Consequential decisions about juveniles right now juveniles aren't yet the people they are going to be - so the best thing is to check in on them later This has implications for transfer Thats what you do with transfer, detention decisions, placement - all predictions All making judgments of juveniles right now What do we think about Graham implicating no transfer Maybe just remove mandatory transfer and prosecutorial transfer BEFORE GRAHAM Now the states have to recognize youth as something beyond just in death Juveniles 50 to life but you get automatic parole at these trigger ages Can prompt Blended sentencing keep more in juvenile system and impose more blended sentencing Lets eliminate transfer
2.

 Springing adult sentence What constitutes virtual life d. What does a meaningful opportunity for parole actually mean - matters for adults too e. Are we going to see a lot of serious disproportionate cases now too JLWOP JDP

Non-Death penalty sentences - Pre-Graham - Death panalty Grossly disproportionate analysis followed a categorical analysis - individualistic analysis; analysis inter/intra jurisdictional analysis (what type of sentence ppl get for same crime)

13.
a.

Special Populations
Gender and Sexual Orientation i. Female Offenders i. In her article, "Understanding the Female Offender," Elizabeth Cauffman makes the following observations: Since the inception of the juvenile justice system, policies and practices (as well as research) regarding juvenile offending have focused on the behavior, treatment, and outcomes of a population heavily dominated by males. 1.Historically, girls have largely been an after thought in juvenile justice TRENDS IN ARREST RATES 1. Although boys engage in more delinquent and criminal acts than do girls, female delinquency is on the rise. In 1980, boys were four times as likely as girls to be arrested; today they are only twice as likely to be arrested. Thus, the share of female juvenile arrests grew from 20 percent to 29 percent between 1980 and 2003. 2. Cauffman's main argument: Because of these recent trends and the fact the the juvenile justice system is

now dealing with a sizeable portion of female offenders, the system should be more responsive to their genderspecific needs. 3. Proportionally more girls were arrest ted for certain offenses, such as running away from home (59 percent) and prostitution and commercialized vice (69 percent). 4. Regardless of whether increased arrest rates represent a true increase in violent behavior among female adolescents compared with males or a policy shift toward arrest rather than alternative treatment of violent females, it is indisputable that the juvenile justice system is handling a rapidly growing share of girls. Regardless of whether increased arrest rates represent a true increase in violent behavior among female adolescents compared with males or a policy shift toward arrest rather than alternative treatment of violent females, it is indisputable that the juvenile justice system is handling a rapidly growing share of girls. v. TRENDS IN PROCESSING OF JUVENILE OFFENDERS Male juvenile offenders are not only more likely than females to be arrested but, once arrested, they are more likely to be petitioned (the juvenile court equivalent of being charged)63 percent compared with 54 percent. If petitioned, boys are more likely to be adjudicated (the equivalent of being found guilty)63 percent compared with 60 percentand eventually to receive residential placement as a sanction27 percent compared with 19 percent1899/1907 Statute -

included girls -- jurisdictional age cut off later. Of the 1 percent of youth transferred to adult court, only 7 percent of those are female. Some studies suggesting that girls receive lighter sentences (more "chivalrous" or more lenient), other studies, harsher ones, than boys (more punitive because they are deemed too "masculine" or in need of protection). Females are less likely to receive a sentence involving incarceration Race matters less amongst female offenders vi. TRENDS IN EXPERIENCE (AFTER ADJUDICATION) IN JUVENILE JUSTICE SYSTEM Detained female offenders may be more aggressive than their male counterparts within the system Female offenders have higher rates of mental health problems. Girls seem to be more emotionally disturbed Female delinquents have a high frequency of mental health problems, suggesting that effective prevention efforts should target the mental health needs of at-risk females before they lead to chronic behavior problems. Cauffman suggests the that they should therefore be diverted to community-based treatment programs that would both improve their individual outcomes and allow the JJ system to focus on cases that present a great risk to public safety

Gender-specific treatment methods are needed, particularly targeting multiple aspects of female offenders' lives, including family and peer environment Counter: Female offernders are NOT a homogeneous group; thus, treatment should ultimately be individualized more specifically than defined by treatment alone Cauffman concludes that female offenders are likely to require continued support long after their direct involvement with the juvenile justice system. vii. CONSEQUENCES OF FEMALE OFFENDING Far-reaching long-term impact of female offending - Studies on the adult lives of antisocial adolescent girls found higher mortality rates, a variety of psychiatric problems, dysfunctional and violent relationships, poor educational achievement, and less stable work histories than among nondelinquent Chronic childhood behavior is linked topoorer physical health and more symptoms of mental illness, reliance on social assistance, and victimization by, as well as violence toward, partners. For some female offenders, marriage is linked to increased drug use and crime.33 The marital relationships of female offenders may be typified by conflict and instability.34 Antisocial girls facing the transition to young adulthood have more general relationship

problems than their male counterparts.35 In such relationships, women are often victims of abusive partners, but also often perpetrate abuse. Relationships/Children - For some female offenders, marriage is linked to increased drug use and crime.33 The marital relationships of female offenders may be typified by conflict and instability.34 Antisocial girls facing the transition to young adulthood have more general relationship problems than their male counterparts.35 In such relationships, women are often victims of abusive partners, but also often perpetrate abuse. and their children with inadequate social, emotional, and financial support. While early parenthood can pose many challenges for anyone, it is particularly problematic for early and chronic female offenders, who face increased risks of pregnancy complications, socioeconomic disadvantage, relationship violence, and compromised parenting skills. Effect on Future Generation: Taken as a whole, these research findings indicate that for female offenders, the long-term prognosis is even poorer than it is for male offenders. Moreover, the observed impact on the subsequent generation under-scores the importance of attempting to mitigate the effects of female offending. viii. Takeaways - nobody really knows about it

Everyone says girls are different, but no one really knows how they are different Accounted for 29% of all juvenile arrests in 2003 - primarily status offenses More running away from home And prostitution or commercialized vice Gender-specific treatment methods could be effective Especially when target multiple aspects of offenders lives family and peer environments But females are not a homogenous group and treatment really needs to be tailored to suit individual needs defined more specifically than by gender alone Also need continued support long after their direct involvement with the juvenile justice system Easy to have gender specific programming turning into gender stereotyping Baking Cooking Social skills training Sewing Females do have a higher frequency of mental health problems Effective prevention efforts should target mental health needs of at-risk females before they lead to chronic behavior problems Community based treatment programs would improve their individual outcomes

Interpersonal family and romantic relationships are a key contributor to delinquency If they commit violence they commit it against people they know rather than strangers Histories of girls Much higher history of some kind of abuse - sexual abuse 92% report some kind of abuse - physical or emotional Very different trajectories of onset and drop-off patterns Girls don't show a desistence [ceasing from action] like boys Lesser impact of race on disposition Its more normal for boys to commit Girls show more severe behavior problems than boys They tend to be more damaged, more mentally prone Normative developmental track statistically Boys 1 - Life course persistent delinquency 2 - bigger track of boys who just commit. But something is very, very different is going on with girls Something really different is going on developmentally Being involved in delinquency has a greater impact on you later on in life Women have more opportunities to help or harm children

b.

Sexual Orientation i. RG v. Koller - D. Hawaii - (2006)

i. Facts: 3 juveniles who either identified or were perceived to be LGBT and who had been confined to state juvenile correctional facility brought claims against facility alleging due process, equal protection, establishment clause, and access to counsel violations. Plaintiffs asked the court for an injunction: to require the facility to refrain from harassing, abusing, discriminating against, or isolating plaintiffs based on their actual or perceived sexual orientation, gender, or sex; to refrain from failing to protect plaintiffs from anti-lesbian, gay, bisexual, and transgender (LGBT) peer harassment and abuse; to refrain from endorsing religion and engaging in religious indoctrination; and to refrain from obstructing plaintiffs access to counsel c. Presents another avenue for getting the juvenile correctional facilities to resolve issues besides the JJDP private action by advocate group. b. Holding #1: 2 of the 3 plaintiff's have standing i. Standing is determined based on the facts at the time of filing of the complaint. ii. Plaintiffs are no longer in custody/no longer in the facility and weren't there when they filed their complaint, so if they don't go back, the lack standing and the controversies are moot iii. The relief they are asking for preliminary injunction, not money iv. Equitable relief - change the policies, training - we would like you to run a better facilities v. One on parole, one turned 18 - CP, one different placement vi. This is a common problem that comes up with detention centers for pre-trial detention vii. Standing law: (pg. 1135)

 Standing is determined based on the facts at the time of filing the complaint. Plaintiff must demonstrate: 1 - An injury in fact invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent 2 - A casual relationship between the injury and the challenged conduct 3 - A likelihood that the injury would be redressed by a favorable decision Court said the plaintiffs easily meets the second 2 standing reqs, causation and redressability. Causation exists because the plaintiffs injuries pervasive youth on youth and staff-on-youth harassment, discrimination, and abuse allegedly resulted directly from HYCFs lack of adequate policies and procedures. Redressability seek injunction preventing the defendants from engaging in unconstitutional conduct and requiring them to implement policies and procedures to ensure the plaintiffs safety at HYCF. Injury-in-fact more difficult question None were incarcerated at the time the complaint was filed! Private right of action requires live identifiable people with a claim Thus, a plaintiff seeking injunctive relief must show that he or she can reasonably expect to encounter the same injury in the future.

 Have to show 2 things for likelihood of repetition requirements since they are not in the facility: - showing that she can reasonably expect to encounter the same injury in the future (1) They reasonably expected, at the time of filing the Complaint, to be returned to HYCF; One aged out CP, but she is allowed to testify still Shows the overall systemic problems at the facility But the other 2, had been in detention several times before - their history/recidivism Had been incarcerated 2-3 times over a short period of time Say we might come back Could have to go back for legal conduct: breaking curfew, not attending school, running away or quitting job And then general juvenile recidivism rates 82% rearrested, 57% were reconvicted, 32% were reconfined at HYCF or a secure adult facility In the world of standing - more likely than not that you won't go back - 70% chance Court didn't really address that

Or perhaps the court is saying that the recidivism rates + the kids actual history makes it more likely for them No other facility like this in Hawaii so they would have to come back to this one Defendant's counter: The plaintiffs do not have standing because they will only return to HYCF if they violate the law. Court says NO! HYCF parolees can be returned not only for a violation of a condition of parole, but also at the request of a program where the ward is placed, even though the ward committed no misconduct. (2) they reasonably expected, at the time of filing the Complaint, that if returned, they would be subjected to similar conditions. . Conditions at HYCF were systemic not isolated incidents, but repeated and persistent as a result of the policy or larger culture c. Holding #2: 2 of the 3 Juveniles claims for preliminary injunctive relief from sexual orientation harassment were not rendered moot . Those that didnt age out could be sent back and so their claims arent moot. The girls claims that aged out are moot, but she can still testify

 Also, facility changes in policy does not moot the claims Adopted policy that youths should not be discriminated against on the basis of sexual orientation But court said no evidence, besides the policies themselves, that HYCF has actually altered its treatment of LGBT wards. Standard: Court said Defendants had a formidable burden: 1) it must be absolutely clear that the alleged wrongdoing behavior could not reasonable be expected to occur AND 2) the defendant must demonstrate that interim relief or events have completely and irrevocably eradicated. the effects of the alleged violation. d. Allegations . Verbal harassment and abuse by staff and other wards based on actual or perceived sexual orientation of gender identity (such as being called "butchie, fag, etc.") . Defendants Responded to AntiLGBT Harassment by Isolating Plaintiffs in resonse to grievances, staff place plaintiffs in isolation . Anti-LGBT sexual assaults, physical assaults and threats of sexual assault, including rape by other ward . The Supervisory Defendants Were Aware of the Pervasive Abuse and Harassment of LGBT Wards at HYCF, Yet They Took No Meaningful Steps to Remedy the Conditions Whether it occurred in front of staff or was reported to them, they often took no action, lacked documentation, and failed to discipline or stop the wards from engaging in harassment Known to the staff and nothing was done

Staff promoted religious ideas proselytizing . Staff improperly trained . Inadequate supervision - lack of policies and professionalism . Inadequate grievance process - difficulty in filing claims and the common presence of intimidation and retaliation against those youth who are able and dare to do so. i. Some HYCF Staff Members Promoted Certain Religious Ideas to Wards e. Holding #3: Facilitys use of isolation to protect lesbian, gay, bisexual, or transgender (LGBT) wards was not within the range of acceptable professional practices and constituted punishment in violation of Plaintiff's Due Process rights f. Holding #4: Officials of facility acted with deliberate indifference in violation of due process in allowing pervasive verbal, physical, and sexual abuse to persist against the juveniles; . Which Standard applies to determining whether conditions are constitutional at HYCF? Legal Standard for handling these Allegations/Assessing Claims: Eighth Amendment (applies to those who have been convicted of crimes); OR Does this amount to cruel and unusual punishment? Does not apply because this is technically a "non-criminal" situation Fourteenth Amendment (applies to detainess whi have not been convicted of crimes) In the instant case, wards of HYCF are adjudicated delinquent and have not been convicted of a crime so the "more protective" 14th amendment applies!
.

Substantive Due Process - Rights sought: personal security/well-being, freedom from unwanted restraint, protection fro psychological/physical abuse b. 2 alternate legal paths to figuring out if there is a due process violation: Applicable standards: Does condition of confinement "amount to punishment"? - General policy and practices - For this rule, the court cites Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) where the Supreme Court considered the Due Process rights of pretrial detainees (who, like the wards at HYCF, have not been convicted of crimes) challenging their conditions of confinement and held that conditions violate detainees Due Process rights if they amount to punishment. Court analyzes the isolation factor under this this prong RULE: Subjecting detainees to unsafe conditions or isolation amounts to punishment when 1) done either with the express intent to punish or 2) without a legitimate purpose. RULE: Even when a legitimate non-punitive purpose is asserted, if the conditions imposed are excessive in relation to that non-punitive purpose, including when substantial evidence demonstrates

that officials response to operational considerations is exaggerated, a Due Process violation is established. Protecting kids from harassment is a "legitimate non-punitive purpose"--but this is excessive and not an acceptable means to a legitimate end Long-term segregation and isolation of youth is inherently punitive Looking for an actual policy or procedure - admitting they do it - a routine that amounts to punishment They say they are doing it for one reason, but they are actually causing punishment; attempting to remedy a harm with an unconstitutional solution Did the officials behavior amount to "deliberate indifference"? The question thus presented is whether the harmalleged is the result of a pervasive, known practice such that the requisite level of culpability can be inferred and the Bell test applied without further inquiry into intentor whether the harm alleged is more episodic in nature, requiring the plaintiffs to prove deliberate indifference. Courts have typically applied the deliberate indifference standard to failure to protect claims where the direct source of the alleged

harm is neither the conduct of the state defendant nor the operation of an official policy or practice. In failure to protect cases, the Supreme court has said that officials cannot be held liable for conditions of detention that are the result of mere negligence (high standard to meet, must be extremely reckless and indifferent instead) Plaintiffs said amounts to punishment standard should be applied and not deliberate indifference The court is reluctant to analyze the plaintiffs claims on the assumption that HYCF operates under a de facto policy of tolerating harassment and abuse of wards from both staff and other wards. The court concludes that the plaintiffs claim regarding harassment and abuse from guards and other wards is best reviewed under the deliberate indifference standard applied to failure to protect claims. Therefore deliberate indifference applies to the harassment and abuse claims Wards at HYCF have a liberty interest in personal

security and well-being that is protected by the substantive guarantees of the Due Process Clause of the Fourteenth Amendment. Officials had knowledge of conditions and took no remedial measures (lack of adequate staffing, poor grievance system, lack of classification system, etc.) The following amounts to deliberate indifference: i. in light of ongoing abuse and harassment directed at LGBT youth at HYCF, the supervisory defendants failure to adopt policies and procedures and to provide training regarding how to ensure the safety of LGBT wards supports a finding of deliberate indifference to plaintiffs safety. . in light of ongoing abuse and harassment directed at LGBT youth at HYCF, the supervisory defendants failure to adopt policies and procedures and to provide training regarding how to ensure the safety of LGBT wards supports a finding of deliberate indifference to plaintiffs safety. 3. HYCFs inadequate grievance systems supports a finding of deliberate indifference. The DOJ Report found that [t]he most significant legal deficiencies with the grievance system at HYCF

are the difficulty in filing claims and the common presence of intimidation and retaliation against those youth who are able and dare to do so. B. Juvenile Sex Offenders 1. In Maggie Jones ' New York Times article, "How You Distinguish a Budding Pedophile from a Kid with Real Boundary Problems?", she posits: 1. herapy for juveniles was a new field in the 1980s, and Longo, like other therapists, was basing his practices on what he knew: the adult sex-offender-treatment models (Alcohol Anonymous Model; group therapy; psychodrama; polygraphs; penile plethysmography - PPG) 1. Tickle-down phenomenon of using adult sex-offender treatments on juveniles is likely ineffective because such treatments dont account for adolescent development and how family and environment affect childrens behavior. 2. Main argument: Different treatment methods are needed because juveniles who commit sex offenses are in several ways very different from adult sex offenders (Kids are not short adults.): i. Like adults, it's a serious problem: Juveniles account for about one-quarter of the sex offenses in the U.S. ii. BUT, experts have increasingly advocated for a less punitive approach. i. Contrarily, public policy has been harsh - Megan's Law (community notification) - meaning on many state sex-offender Web sites, you can find juveniles photos, names and addresses, and in some cases their birth dates and maps to their homes, alongside those of pedophiles and adult rapists C. Differences Between Juvenile and Adult Sex Offenders 1. Recidivism - 10% RR for children and 2550% RR for adults

d.

e.

90% do not become adult rapists 2. Opportunistic, situational as opposed to planned 1. Juveniles may be engaged in sexual experimentation/discovering their identities 2. Children have access to other children 3. Psychologists are wary of diagnosing pedophilia because with such a short sexual hisorty, a teenager's sexual interest are subject to change 4. If an adolescent hasnt committed another sex crime within five years of his first offense, research suggests that he is unlikely to do so. E. BRAIN SCIENCE - The last part of the brain to develop is the frontal lobe, which is responsible for impulse control, moral reasoning and regulating emotions the things that adolescents lack when they decide, if they make a conscious decision, to molest a younger kid. So, instead of being compulsive like pedophiles, adolescents tend to be impulsive, which means tactics like grooming, in which an offender woos Differences Among Juvenile Sex Offenders a. "Romeo and Juliet" b. "Nave Experimenter" - overly impulsive or immature adolescents who are unable to approach girls or boys their own age; instead, they engage in inappropriate sexual acts with younger children; playing doctor or normative sexual experimentation. These are broadly considered to include sexual acts that are spontaneous, intermittent and consensual (legally, children under 16 usually cannot consent to sex) between youths within a couple of years age. c. Forcible Rape - this group is likely to be funneled out and treated as adults d. Peer-Consensual Contact (neither person is above the age of consent) i. Both kids may be charged with statutory rape ii. Kids in foster care/state institutional home/juvenile detention. Registration is problematic

1.

b.

a. Undercuts a central tenet of the juvenile justice system - CONFIDENTIALITY Since juvenile courts were created more than 100 years ago, youths records have, with exceptions in some states, been sealed and kept out of the publics hands. The theory is that children are less responsible for their actions, and thus less blameworthy, than adults and more amenable to rehabilitation. But by publishing their photographs and addresses on the Internet, community notification suggests that juveniles with sex offenses are in a separate, distinct category from other adolescents in the juvenile justice system more fixed in their traits and more dangerous to the public. It suggests, in other words, that they are more like adult sex offenders than they are like kids. Parents will not want to report for fear of exposure. . Undercuts a central tenet of the juvenile justice system - DE-STIGMATIZATION Experts worry that these experiences stigmatize adolescents and undermine the goals of rehabilitation. In dozens of interviews, therapists, lawyers, teenagers and their parents told me similar stories of juveniles who, after being discovered on a sex-offender registry, have been ostracized by their peers and neighbors, kicked out of extracurricular activities or physically threatened by classmates i. Inability to find jobs c. Alternatives i. Zimring's time-conditional record sealing. ii. Restricted registration system SORNA a. Adam-Walsh Act - SORNA - 2006 - Federal Law says to states if you want to receive federal block grants for criminal justice funds, you must comply i. Requires sex offender registry for all people ii. Includes people who are adjudicated as delinquents at 14 or older for any offense that when compared to the federal law

would be an "aggravated sexual abuse" offense Any sexual contact with a person who is 12 or under Look at the state offense that the kid was convicted of and compare the elements to the federal law to see if it is as serious or MORE serious that aggravated sexual offense as defined by federal law If so, person is classified as a tier II SORNA offender - they have to register for life typically every 3 months May be name, address They have the right to petition to be removed after 25 years after they have successfully completed a sexual offender program, the commited no sexual offenses, and they have been in full compliance with the registry c. Majority of jurisdictions have NOT complied Have lost there 10% d. Problems No proof that it actually enhances safety In practice, the poor predictive quality of SORNA may be more harmful to the public than it is protective, creating a false sense of security and exhausting valuable resources and limited manpower on tracking the wrong offenders; that is, individuals not likely to ever reoffend sexually. the various sex offender registration laws have been knee-jerk reactions to horrific crimes. c. United States v. Juvenile Male - Ninth Circuit Court of Appeals - 2009 a. Facts: a. At the age of thirteen, defendant-appellant S.E. engaged in non-consensual sexual acts with a ten-year-old child of the same sex. The sexual activity continued until S.E. was fifteen years old and the younger child was twelve. S.E. pled true to the commission of acts that, had they

been committed by an adult, would constitute aggravated sexual abuse under 18 U.S.C. 1153 and 2241(c), because the younger child was, during the period of the charges, under twelve. As a result, S.E. was adjudicated delinquent under 18 U.S.C. 5031, et seq.3 In 2005, a year before SORNA was adopted, the district court sentenced S.E. to two years of detention at a juvenile facility followed by supervised release until his twenty-first birthday. When he failed toreside at the center as required by his conditions of supervision, and ordered an additional six months of confinement and continued supervision until S.E.s twenty-first birthday. The judge also imposed a special condition mandating that S.E. register as a sex offender. b. In a surge of national concern, however, over the commission of sex offenses, particularly those against children, Congress in 2006 enacted the Adam Walsh Child Protection and Safety Act, 42 U.S.C. 16901 et seq., which includes the Sex Offender Registration and Notification Act (SORNA) and applied its registration and reporting requirements not only to adults but also to juveniles who commit certain serious sex offenses at the age of fourteen years or older. The Attorney General, exercising authority delegated by Congress, determined that SORNA would apply retroactively to all sex offenders convicted of qualifying offenses before its enactment, including juvenile delinquents. Holding: In case of first impression, b. retroactive application of SORNAs juvenile registration provision is punitive in violation of the Ex Post Facto Clause of the United States Constitution, and therefore unconstitutional. c. Reasoning: a. Court highlights that historically, an essential aspect of the juvenile justice system has been to maintain the privacy of the young offender and, contrary to our criminal law system, to shield him from the dissemination of truthful information and transparency that

characterizes the punitive system in which we try adults" The confidentiality provisions of the Act are therefore quite essential to the Acts statutory scheme and overarching rehabilitative purpose." b. RULE: A statute or regulation that imposes retroactive punishment violates the constitutional prohibition on the passage of ex post facto laws. Was application of SORNAs juvenile registration provision is punitive? Test: If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and non-punitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate [Congresss] intention to deem it civil. Since congress intended a civil regulatory scheme and its purpose was not to punish (but to protect the community), the court looks at whether (b) its effect is clearly shown to be punitive. Court applies factors from Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963): Affirmative disability or restraint: Most compelling factor given that application of SORNA to juvenile sex offenders imposes a disability that is neither minor nor indirect, but rather severely damaging to former juvenile offenders economic, social, psychological, and physical wellbeing. This factor strongly supports a determination that the statutes effect is punitive. makes public information about sex offenders that would otherwise

permanently remain confidential and exposes persons who were adjudicated delinquent years before to public humiliation and ignominy for the first time. It also seriously jeopardizes the ability of such individuals to obtain employment, housing, and education Historical treatment: Juveniles record typically only made public when they are transferred to adult court for punitive purposes Traditional aims of punishment: Retribution legislative history strongly suggesting that the motivation behind SORNAs passage was not only to protect public safety in the future but also to revisit past crimes. Non-punitive purpose and is requirement excessive in relation to that goal Doe Non-punitive purpose = public safety Supreme Court held that the sex offender registration requirement was not excessive in light of its regulatory purpose, in part because sex offenders have a high rate of recidivism, are dangerous Juvenile Male Non-punitive purpose = public safety Studies cited in the legislative history of this bill indicate that the recidivism rates for juvenile offenders are significantly lower than for adult offenders. Juveniles are as a general matter less mature, more impulsive, and

as a class, pose a danger to the public that is frightening and high, and are much more likely than any other type of offender to be rearrested for a new rape or sexual assault

more confused about sexually appropriate behavior than adults. They do not understand their sexual drives as well or know how to deal with them.

c. Problem with retroactive application - most of those affected by the retroactive application of SORNAs juvenile registration provision are not juveniles but adults brunt of SORNAs retroactive application to juvenile offenders is felt mainly by adults who committed offenses long ago as teenagers-many of whom have built families, homes, and careers notwithstanding their history of juvenile delinquency, which before SORNAs enactment was not a matter of public record. For these adults, sex offender registration and reporting threatens to disrupt the stability of their lives and to ostracize them from their communities by drawing attention to decades-old sex offenses committed as juveniles that have, until now, remained sealed. i. imposes immense burdens, not only through onerous in-person registration and reporting requirements, but, more important, through the publication and dissemination of highly prejudicial juvenile adjudication records of individuals who have committed no offenses since their adolescence-records that would otherwise remain sealed. iv. Tennessee Mental Health Institute's Psychological Evaluation of Johnny Juvenile a. Facts: 15 year old -- made the victim, his half brother, perform oral sex on him and ejaculated on his genital

iii.

Disproportionate Minority Contact a. Feld a. Although seriousness of the present offense and prior history account for most of the variation in the sentencing of juveniles, after controlling for these offense variables, racial disparites in the sentencing of minority offenders is prevalent -disproportionately sentence minority youth more severely than white youth a. Only 15% of the 10-17 year old population, BUT 28% of the youths arrested b. Increases dramatically as one moves through the later stages of processing with minorities accounting for 62% of youths in detention facilities and 60% in long-term institutional programs. Racial disproportionality is evident across all decision points, from arrest to disposition. c. More likely to be petitioned rather than diverted d. Selection bias i. Policies (i.e. ineligibility for diversion for lack of parental involvement) ii. Low income - differentials in access to retained counsel or private reatment resources b. Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotype c. s About Adolescent Offenders Abstract: In a presumably unrelated task, a. officers read 2 vignettes about a hypothetical adolescent who allegedly committed either a property crime (shoplifting from a convenience store) or an interpersonal crime (assaulting a peer). The race of the offender was left unstated and the scenarios were ambiguous about the causes of the crime. Respondents rated the hypothetical offender on a number of traits (e.g., hostility and immaturity) and made judgments about culpability, expected recidivism, and deserved punishment. They also completed a self-report measure of conscious attitudes about race. As hypothesized, officers in the racial prime condition reported more negative trait ratings, greater culpability, and expected recidivism, and they endorsed harsher punishment than did officers in the neutral condition. The effects of the

racial primes were not moderated by consciously held attitudes about African Americans. The implications of the findings for racial disparity in the juvenile justice b. The authors hypothesize that the shared cultural belief about adolescents (that they are immature and less culpable than adults) is superceded by another more pernicious belief (that they are violent, aggressive, dangerous, and possess adult-like criminal intent). Media portrayals of ethnic minority youth especially reinforce the public consensus that juvenile crime is violent and that the main perpetrators are African American iii. Decision makers may have negative stereotypes about African American adolescent offenders that can be activated outside of conscious awareness; that stereotypes evoke attributions about the causes of the offenders behavior, and that particular kinds of attributions result in harsher treatment. iv. STUDIED ACTUAL DECISION MAKERS! Not college students e. How do we account for the disproportionality when you control for offense and prior record? a. Biased individuals i. Conscious - overt attitudes/prejudices ii. Unconscious b. Hypothesis - Stereotypes trigger unconscious racial stereotypes, once activated, then influence conscious processesin this case, attributions and attribution-related inferences about the causes of crime. i. Procedure - Subliminal priming of Black related words ii. Results - Confirmd; if you're primed Black, there will be stereotypes and unconcious attitudes iii. Stereotypes that Black males are aggressive, hostile, violent iv. Attributions

locus -whether a cause is internal or external to a person Stability - which designates a cause as constant or varying over time; and Controllability - whether a cause is subject to volitional influence. Officers who were induced to think about African Americans were especially likely to judge hypothetical juvenile offenders as not vulnerable, impressionable, gullible, and naive. unconscious biases trigger the belief that they are adult-like and therefore as blameworthy as adults who commit similar crimes. African American youth are about three times more likely than White youth to be waived to the adult court Locus - Maturity (is the cause internal) Stability - trait/episodic Control Ability - Maturity (choice) c. Experiement a.#1 - Police Officers b. #2 - Juvenile Probation Officers c.Called it a mind clearing test where they show them cards with words associated with Black - Oprah, Cosby, ghetto, slum d. Then, people read fact pattern e. Then they ask people the exact decisions that they had to make d. Unconscious Attitudes a.Unintentional, Involuntary, and Effortless e. Extrnal v. Internal a.Assumption that when it's a white person b. Counterfactual f. 1988 - JDPPA - Required the states to studt DMC

a. What they DONT have to do is improve it! b. They simply have to show evidence and that they are trying d. Gangs a. Myth v. realities of gangs What is a gang? Continuum - teenagers who hang out and potentially get in trouble - friends, club On down the line Internal to the gang - concept of in and out of gang And within gang, leadership or positions of power, hierarchy Organized Territorial aspect For the purpose of committing some crimes Using symbols and communications Gang signs Tattoo's Colors symbols OOJDP definition - a self-formed group, united by mutual interests, that controls a particular territory, facility, or enterprise; uses symbols in communications; and is collectively involved in crime. The more of these factors you have, the more it looks like a gang Also what do we call gang violence or gang crime? Does it just have to be committed by a gang member or does it have to be asserted to further the gang's mission or interest Why do kids join youth gangs? Adult gangs - drugs One reason - to make money Why youth gangs? Independence camaraderie - dont want adults over them

Family type environment Coolness to it - street credibility ide note Percentages of racial breakdowns difference between official numbers and youth reports Youth reports - a lot more youths report that they were in gangs It could also mean that youth claim things that aren't true - because it makes them sound cool d. Risk factors List of things that can go wrong in a child's life Kids who experience a lot of those tend to be more likely to join a gang So that explains a lot of the kids in gangs, but not all of them Kurdish gangs examples Immigrant gangs historically Maybe if others are ganged up

Imi tati on

pro tec tio n

But it is really a small group 20 kids . Anti-social peers In an environment where it is normal is one of the greatest risk factors . Poor engagement with school and doing poorly in school Palmer did a research No training in schools on gangs

b. Solutions Legal/Law enforcement responses Suppression strategies Maryland statute about being in a gang is a crime Stand alone crime not sentence enhancement "Involvement in a gang" 20 year penalty Sentence enhancement Goes back to what counts as gang violence Have to prove some offense first, then if done for purposes of the gang Statutory Transfer For involvement in a gang crimes done in context of gang Tracking systems databases Knowing who is in the gangs Intelligence purposes To figure out who to include in an injunction Photo arrays Police gang units Specific units in the police department for

Gets the trust of the community so they know what the problems are Problems with them: Have to be close to the ground with the gangs Have to have friendly relationships with the gangs Ripe for corruption Some gang units become gangs themselves Public nuisance civil injunctions Enormously popular back in the day but not now is it fair to say that this is getting around the criminal justice system? Using civil laws that were intended for something else - a work around for a civil justice tool Really disturbed by the fact that they would not be able to get lawyers Incarceration real criminal consequences for contempt Then some people on the list who shouldn't be Then it seems extra wrong to pull them over What if the only people on the list are gang members for sure? Probable cause as to what - that you are on the street, that you have a beeper

i.

Really though they are stopping anybody because anybody could be "gang members" In favor of them Safety for the community Community wants it to eliminate the gangs from there Gang displacement Gangs just moved because wasn't as territorial Non-law enforcement OJJDP Comprehensive gang model Maybe police should be required to purge the lists Homeboy Industries Provided Job opportunities and removal of tattoos closed d. Risks of corruptions are huge

14.
a.

Adolescent Brain Science

3 true things Pre-frontal lobes not fully developed until age 25 specifically responsible for higher-order reasoning and executive control are the last fully to achieve structural maturity i. Not fully developed until Changes in gray matter density - neural exuberance Increased mylenation over time Values rewards over risks (present-oriented) Weak connectivity judgment centers and the motive centers - "low-brain" and "high-brain" 3 questions Differences on pubertal onse Structure -- behavior Gender difference Impact on reasoning Maturity gap Group/individual

b.

Nature v. Nurture 18? What about young adults? c. Most problematic ways of applying adolescent brain science to law Inconsistency Applying general trends t individuals State of scientific knowledge Explaining science to lay decision-makers (judges, juries, etc.) Determinism/free will Age cutoff problem Harsh doctrine d. Most promising ways of applying adolescent brain science to law Shorter sentences Requiring judges/juries to consider hard science Bump up commitment to rehabilitation Might make age cutoffs less arbitrary Greater focus on substance Ceilings and floors - general trends and general rules Policy Helps solve the "other people's children problem"

15. Wrap-Up a. Overall Themes The euphemisms are unrealisticreformatories, training schools, and correctional facilities are actually jails and penitentiaries, disposition is a sentence Juveniles are denied certain procedural rights afforded to adult criminal defendants, including a public trial by jury, but they are, in turn, beneficiaries of an adjudicatory system designed, though not always successfully, to rehabilitate rather than punish-a system ill-suited to public exposure. Gault - our juvenile justice system from its origins was established in order to make the child feel that he is the object of [the states] care and solicitude, and that he would be treated and rehabilitated through clinical procedures rather than punitive ones.