Destructive Justice: A Lost Boy, A Broken System, and the Small Light of Hope

destructive-justice-the-storyBy Patricia Robinson, University of North Carolina School of Law ’16

Destructive Justice: A Lost Boy, A Broken System, and the Small Light of Hope (2014) by Nicholas Frank is a book in which you know the story before you even begin. A quick glance at the back cover tells you the essential plot line-teenager from a good family goes off the rails and into drugs and gangs, participates in a botched robbery at 17, and lands himself in prison with consecutive life sentences. It is a bleak picture, filled with the failures of our justice system on multiple levels. However, Destructive Justice is not a bleak book.  It is ultimately a loving father’s portrayal of his son.

Nicholas Frank begins the book with the birth of his son Nathan and a description of his early childhood. Frank depicts Nathan as a vibrant kid with a great sense of humor, keen intelligence, and a sense of curiosity about the world around him. Yet Frank is also honest about the difficulties of Nathan’s childhood, most of which stemmed from an ugly divorce and an even uglier custody battle that raged on for several years.

The chapters depicting Nathan’s gradual descent in early adolescence are some of the most difficult pages in the book to read. Although the reader already knows the outcome, the continual poor choices that Nathan makes are devastating. Again and again, Nathan chooses the wrong path, and again and again, his father attempts to reroute his course. Frank helps Nathan kick his drug habit, only to have him start using again; gets him back in school, only to have him drop out; enrolls him in a rehabilitation program, only to have him refuse to attend; and finally, bails him out of jail, only to have him land there, once, and perhaps, for all.

Yet these early chapters are also filled with snippets of wisdom from experts in the psychology of adolescents, experts who confirm that adolescents do not assess the risks and consequences of their behavior the way that adults do, and that adolescents’ brains react to the presence of peers and attention like an insect to light.

Unfortunately, as is clear from the chapters describing Nathan’s experience in the court system, many leaders in our country do not understand these key differences between adolescence and adulthood. Though he was only 17 and without a criminal record when he committed the armed robbery, Nathan was transferred from juvenile court to adult court. From there it was a tragedy of errors–poor decisions by the defense attorney, Nathan’s failure to accept plea deals, questionable statutory interpretation, and the judge’s ultimate discretion in sentencing–that landed Nathan, at 18, with two life sentences.

The story could have ended here, but it doesn’t, and I’m glad, because the final chapters were some of my favorite in the book. They show the reality of Nathan’s life in prison, and the violence he suffered as a result of his former gang affiliation and his simple attempts to stand up for himself.  It is also during this time in prison that Frank, and you, the reader, begin to see a transformation in Nathan.  Through letters from Nathan, his unlikely inmate friend, and even prison guards, we learn that “[i]n one of the worst place on earth, [Nathan] has found the best parts of himself.”

The final chapters provide an update on the law concerning prisoners sentenced to life without parole for non-violent crimes committed under the age of 18.  Nathan is still in prison, and may be for many more years. However, Frank’s final message is one of hope, both for his son, and for his readers that may work to change the system. This book could appeal to a wide array of audiences-law students, practicing prosecutors and defense attorneys, child advocates, social workers, parents of teenagers, teenagers, and anyone who would appreciate a story of redemption.

The book is available for purchase via Amazon, Outskirts Press, and Barnes and Noble.  For more information, visit the Destructive Justice website.



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Five Questions for Prof. Tamar Birckhead

Prof. Birckhead with UNC Law clinic students.

Prof. Birckhead with UNC Law clinic students.

Recently I was interviewed for the new Clinical Law Prof Blog .  The text of the interview appears below:




Last month the University of North Carolina School of Law appointed Professor Tamar Birckhead as Director of Clinical Programs.   Today she is the first subject of a new series for the blog, Five Questions, in which we ask professors to reflect on their work and life in the academy.

1. What first drew you to clinical legal education?

I had been practicing as a public defender for ten years (in both state and federal court), and I was ready to take a step back and think about the broader questions and issues raised by my experiences in and observations of the criminal justice system.  Legal academia was very appealing to me, though I wanted to find a way to continue to spend time in the courtroom as well as serve the same client population.  I had loved my clinical experiences during law school and I come from a family of teachers, so clinical legal education seemed to be a natural fit.  Also, I was an English major in college and have always loved writing and research, so I have appreciated the opportunity to write traditional legal scholarship; several years ago, I switched to the tenure track and then became a tenured member of the faculty.

2.  What advice about teaching would you give to yourself if you could chat with you as a rookie prof? 

I would emphasize that the “political” aspects of serving as a law school faculty member – including establishing good working relationships with administrators, deans, and faculty outside of the clinic – are vitally important, and that the way in which I teach my students to advocate on behalf of their clients is not necessarily the best strategy for approaching advocacy for one’s self or one’s program within the legal academy.  Most of my faculty colleagues are not and have not been practicing lawyers, meaning that the culture and the tenor of the institution can be very different than that which exists among litigators.  I’d encourage carefully picking one’s battles and remaining focused on the aspects of the job that I most enjoy – working closely with and serving as a mentor to my students, advancing social justice, and contributing to the welfare of underserved communities.  In other words, I’ve mellowed and matured within the past ten years; I try to maintain a positive attitude no matter what the circumstance and to enter potentially difficult situations with an expectation that understanding and agreement can and will be reached.

 3. What adjustments in your own work do you anticipate as you take responsibility for directing the program?

As the director of clinical programs, I now supervise six students per semester in the Youth Justice Clinic instead of eight.  I also still teach the companion course to the Clinic with my wonderful colleague, Barbara Fedders, and I wouldn’t want to give that up.  I do anticipate, however, that given my administrative responsibilities it will be much more difficult to be a productive scholar, though I also don’t want to stop contributing to the conversation around issues of juvenile justice and the criminalization of poverty.

4.  What plans do you have for UNC’s clinical program?

I served as interim director this past year, and I have tried to develop more collaboration and cohesion among the seven clinical faculty who teach in our five clinics and to improve morale.  We began the school year with an all-day faculty retreat, during which we discussed our short and long-term professional goals, our individual and collective needs as clinical faculty, and our ideas for what it takes to be a great clinical program.  We had nine monthly clinic faculty meetings, focusing on such topics as clinical teaching, scholarship (clinical and traditional), supervisory rounds, and administrative issues and concerns.  We also held meetings with other units in the law school, thereby building bridges beyond the Clinic by opening lines of communication and encouraging collaboration with faculty from the Externship Program and the Writing, Learning, and Research Center as well as meeting with the staff from the Development Office to discuss fundraising for Clinical Programs via an electronic mail solicitation in the fall.

Initiatives that directly benefitted the sixty-five students participating in UNC’s Clinical Programs this year included an all-clinic case rounds session, which was introduced in the spring and will be repeated once/semester next year, and an end-of-year awards celebration and luncheon in which each faculty member spoke of the work their clinic students had accomplished and the Second Annual CLEA Outstanding Student Award was presented.    We also restructured our fall orientation meeting for students and our clinic informational and lottery meetings in the spring so that each faculty member addressed the group and a panel of current clinic students spoke about their experiences and took questions.

As for administration and staff, in July we hired a new program assistant who worked with our current program assistant under the supervision of our business manager to ensure that our program runs smoothly and efficiently.  We successfully implemented a new phone system, allowing for individual voicemail accounts for each student, and we abandoned our old intercom system.  Working in collaboration with Communications, our website has been updated (see  and the work of our clinic faculty and students was highlighted in the Fall/Winter 2013 issue of Carolina Law alumni magazine, which focused on the ways in which the law school serves the people and communities of North Carolina.

In addition to the new initiatives described above, we have several other developments planned for the upcoming year. We recently began a Clinical Programs blog, which will serve as the primary source for a twice/annual electronic newsletter to be distributed to the UNC Law community as well as the national law school clinic listserv (see  Also, we have partnered with faculty in the N.C. State University School of Social Work to serve as a field placement for an MSW student for the 2014-15 academic year.  We have hired a second year MSW student, who will be on site for 24 hours/week, primarily assisting law students in the Youth Justice Clinic with advocacy on behalf of children in the delinquency court and school disciplinary proceedings in which we appear.  We are also in the planning stages of refurbishing the clinical suite and are outfitting two of our rooms with video cameras that will record client interviews for both real-time viewing by faculty supervisors as well as subsequent review by students.

In short, we are building on the expansion of our Clinical Programs in recent years with initiatives that enhance the quality of the educational experience for our students and, as a result, the rigor with which we represent our clients.

5. Since 2004, have you cultivated a thorough hatred for Duke basketball?

I can answer that question with only four words: LET’S GO TAR HEELS!

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Posted in Blogosphere, Clinical Legal Education, Law Schools, Law Students | 1 Comment

From Turkey Trot to Twitter: Policing Puberty, Purity, and Sex Positivity

quinnmProfessor Mae Quinn of Washington University in Saint Louis School of Law, who is an expert on criminal and juvenile justice system issues, has a new article that has just been posted to SSRN .  I look forward to reading it.

Here is the abstract:

From outward appearance, to physical presence, to intimate communications and engagements, young people have continually faced familial, community-based, and state-sponsored management of their most basic day-to-day actions and interactions. This obsession with policing puberty has, at times, reached the level of panic. This article seeks to examine this recurring phenomenon and suggests that adults find more productive ways to grapple with the teen identity formation process in this country.

It focuses on one particularly powerful panic-producing intersection of adolescence with American life – young girls and the big city. It describes reform efforts that took place in emerging urban centers at the turn of the last century, comparing them to the policing strategies that are taking place in our newest metropolis – the internet.

In doing so this article analyzes how the state has repeatedly worked to proscribe and prosecute a wide range of popular adolescent activities in the name of protecting youth from the dangers of modern life. It further argues that instead of providing a sense of security for young girls, such punitive actions often have sent mixed messages about intimacy and sexuality, discounted youthful and female agency, and unnecessarily attempted to prevent social change. In the end this article argues we should take some lessons from the failed efforts of the Progressive Era and respond differently to adolescent girls’ identity exploration in the 21st century.

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When Reform Fails on the State Level, Turn to Local Advocates

marcia morey

North Carolina is the only state in the U.S. that treats all 16 and 17-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Although New York also ends juvenile court jurisdiction at 16, it has a law that allows judges, in certain circumstances, to seal the criminal conviction of a 16 or 17 year old and sentence her to probation. Only nine other states end juvenile court jurisdiction at age 17, with the vast majority prosecuting everyone under 18 in juvenile court. Despite the fact that child welfare advocates, scholars and some lawmakers in North Carolina have repeatedly backed legislative proposals to extend jurisdiction to ages 17 or 18, they have consistently been defeated on the state level.

Why does the upper age of juvenile court jurisdiction matter? The main reason is that young people who are convicted of criminal offenses face significant barriers when attempting to secure jobs or gain access to higher education. Employers in most states can deny positions to — or even fire — anyone with a criminal record, regardless of the individual’s history, the circumstances or the relationship between the job or the license sought and the applicant’s criminal record. Employers in most states can also deny jobs to people who were arrested for, but never convicted of, a crime. While all states have the power to lift bars to employment by issuing “certificates of rehabilitation,” only a handful offer this option, and North Carolina is not among them.

As for higher education, increasingly U.S. colleges and universities are using criminal history background checks in the admissions process and then developing exclusionary policies to deny admission to certain categories of applicants — despite the fact there is no evidence that such policies increase safety on college campuses or that an applicant’s prior criminal record is a relevant risk factor when assessing future dangerousness.

Likewise, the harmful impact of having a criminal conviction extends far beyond employment and higher education to immigration status, access to public housing and benefits, and exclusion from military service.

In short, because all 16- and 17-year-olds charged with crimes are automatically tried and sentenced as adults (and eventually imprisoned with them), tens of thousands of young North Carolina residents are burdened with these consequences each year and denied the rehabilitative services and programs offered by the juvenile justice system. Although this particular policy is specific to my state, nearly every state can transfer minors to adult court for relatively minor offenses, forcing adolescents across the country to confront similar hurdles.

What can be done when state representatives fail to act? Recently, the chief district court judge in Durham County, Marcia Morey [see photo above], has taken a bold step — the first of its kind — to help young people avoid arrest and what she calls the “tattooing” effect it can have on their futures. In January, Judge Morey initiated a program, the Misdemeanor Diversion Project, for 16- and 17-yearold first-offenders charged with non-violent misdemeanors. If the law enforcement officer agrees, the teen will be directed to a community-based program instead of jail. The conditions imposed might include conflict resolution or mediation, restitution and community service, or substance abuse or mental-health counseling. The Project will also include meetings at the courthouse that teach teens about the legal system and the unintended consequences of breaking the law. Excluded from eligibility are crimes that involve firearms, sex offenses, motor vehicle violations or gang activity. Successful completion of the Misdemeanor Diversion Project, which has the backing of the local police chief and district attorney, will result in no criminal charges being filed and a clean record.

In 2012, more than 600 16- and 17-year-olds in Durham, N.C., were charged with misdemeanors, including possession of marijuana, shoplifting, larceny, disorderly conduct and trespassing. Judge Morey estimates that the Project will be able to help about 500 of these teens each year. It’s not a large number, but it’s a good start. When it comes to the impact of the criminal justice system on our young people, whether in the Tar Heel State or beyond, we have nowhere to go but up.

This essay originally appeared on the Juvenile Justice Information Exchange.

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If a society values its children, it must cherish their parents.*

dad-and-sonIn one of the North Carolina counties in which I practice law, juvenile delinquency court is held every other week. During these sessions, children who have been charged with criminal offenses come before the court to have their matters heard. In the alternating weeks, dependency court is held, during which the parents of children who are alleged to be abused, neglected or dependent have their matters heard.

The irony is that in the majority of cases, the children in these two forums are the same. In fact, studies have shown that approximately two-thirds of children referred to juvenile delinquency court have some involvement in the social services system stemming from allegations of abuse, neglect or dependency; for children with two or more prior offenses in juvenile court, the percentage increases to 89 percent who have some social services involvement. These children are referred to as “dual jurisdiction kids,” as they are simultaneously under the umbrella of two separate systems with protracted judicial processes, court orders that may conflict, and no inter-agency collaboration.

I know something about social services and foster care. For a year between college and law school, I worked for child protective services in New York City. I was hired as a case investigator in 1988 after Mayor Ed Koch ordered an expansion of the ranks of Administration for Children’s Services (ACS). I was twenty-three, raised in suburban New Jersey, and knew little of Manhattan aside from its museums and Broadway theaters. I wanted to do something meaningful before entering graduate school, and an ad in The New York Times stating that helping children required only a college degree (mine was in English literature) caught my eye.

After a short period of “training” (10 or 12 weeks) at a desolate outpost in Queens, I was unceremoniously given the power to decide if there was “credible evidence” of child maltreatment, such that children should be removed from their homes and placed in the custody of the State of New York. I spent much of the work day taking the subway to and from pockets of the city I had never seen, knocking on doors of small apartments in rundown housing projects, finding little food in the refrigerator or clean clothes in the closet, and trying to decide whether poverty—often coupled with drug addiction, alcoholism, or mental illness but rarely signs of physical abuse or neglect—warranted removal. There was no supervision. The bureaucratic machine required forms to be completed in triplicate. I constantly felt overwhelmed and under-qualified.

I recalled these experiences when I recently watched “A Life Changing Visitor: When Children’s Services Knocks,” a short documentary film produced by New York University Law School’s Family Defense Clinic. Three law students in the clinic—Molly Greer, Jessica Rubin-Wills and Dara Young—interviewed parents who had been subjected to child welfare interventions and whose children were ultimately placed in foster care. During the film, the parents speak powerfully about their love for their children and the needlessly destructive impact the child welfare system has wrecked upon their families. One parent shares the following:

“No one wanted to see that I was in pain. No one wanted to see that I’m a human being. They just think you’re some type of monster. When you are in the child welfare system, you’re guilty until proven innocent, and you’re never really proven innocent. You’re just branded for the rest of your life as a bad parent.”

The film reminded me of the basic facts that I had learned years ago: that every county in the United States has a government agency that investigates allegations of child abuse and neglect, that anyone can make a call reporting suspicion of maltreatment, and that no substantiation is needed—the report can be based on hearsay or an unverified hunch. As Michael Arsham, Executive Director of New York City’s Child Welfare Organizing Project, explains:

“The unfortunate reality is that in certain communities, it’s a near certainty that if you have children who are a range of ages, if you live in public housing, if they go to public schools, if you use publicly-subsidized day care or a public child health clinics, it’s not even a matter of are you going to come to the attention of ACS, it’s closer to a matter of when are you going to come to the attention of ACS.”

Professor Martin Guggenheim, one of the NYU Law faculty members who supervise students in the clinic, offers this legal analysis:

“Everyone who has studied child welfare over the past generation has come to the same conclusion in every jurisdiction throughout the country: the majority of children removed from their parents’ homes coercively are not in the kind of danger that justifies their removal under a proper application of law. What most of us working in this field are trying to do is simply enforce the law. We’re not looking for any change; we’re looking for people to become faithful to it.”

The film notes that over 250,000 children are taken from their parents by government officials in the United States annually, that social services workers make unannounced visits to families over two million times each year, and that the majority of children who go into foster care are eventually returned to their parents—though sometimes not until many years later. Professor Christine Gottlieb, who also supervises students in the NYU clinic, encapsulates the film’s message with these words: “The system—in its zeal to protect children—sometimes forgets how damaging the process itself can be to the children.” In other words, child welfare officials must learn that treating a parent with respect ultimately benefits the child.

“A Life Changing Visitor: When Children’s Services Knocks” may be viewed here.

*John Bowlby, child development psychologist

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Let’s Change How Police Question Young Suspects

kid in hoodieWhen I had been practicing in North Carolina’s juvenile courts for about a year, I represented a client charged in the same case as a 13-year-old special-education student named J.D.B. I remember sitting in a large courtroom and watching J.D.B.’s public defender skillfully cross-examine a police investigator.

Weeks earlier, J.D.B. had been pulled out of his social studies class and brought to a school conference room where this same investigator had questioned him for nearly 45 minutes about a string of neighborhood burglaries. Although the assistant principal, an administrative intern and a uniformed officer on detail to the school were also present, no one had contacted J.D.B.’s grandmother, who was his legal guardian, nor was J.D.B. given his Miranda warnings, told he could leave the room or allowed to make a phone call. The boy initially denied any wrongdoing, but after the assistant principal pressured him to “do the right thing” and the police investigator threatened to put him in juvenile detention, he quickly confessed.

At the court hearing, J.D.B.’s lawyer persuasively argued that her young client’s confession should be suppressed (not used against him at trial) because he had been subjected to “custodial” interrogation without being told that he had the right to remain silent and to have an attorney. When she finished her argument, however, the juvenile court judge announced that the boy had no right to Miranda warnings, since a “reasonable person” would have felt he could leave the conference room at any time. Six years later, in 2011, when the U.S. Supreme Court reviewed the case of J.D.B. v. North Carolina, it reversed the trial court’s ruling, holding that J.D.B.’s youth and status as a child should have been considered when determining whether he felt free to walk out under such circumstances.

This critically important decision came to mind this summer when I learned of recent cases in which teenage suspects confessed to crimes after being threatened by police officers during interrogation. Several of these cases occurred in Tennessee, such as when 17-year-old Codey Wayne Miller, diagnosed with borderline mental retardation, confessed to choking his mother to death. He did this after an officer threatened him with the death penalty — a legal impossibility given the Supreme Court’s 2005 holding that capital punishment for juveniles is cruel and unusual punishment and, thus, unconstitutional. The judge who ordered Miller’s confession to be suppressed called the interrogation techniques used against the teen “mind boggling” and “absolutely incredible.”

Similarly, 19-year-old Knoxville resident Carlos Campbell confessed to playing a role in a series of drive-by shootings after police investigators warned he would be gang raped in prison on a daily basis if he did not admit his involvement. A judge recently denied Campbell’s motion to suppress the confession, and it’s unclear whether there will be an appeal.

A third Tennessee case involves a 14-year-old with no arrest record, Jonathan Ray,who confessed to setting a house fire that killed his mother. He did this after police told him his Miranda rights were meaningless because his stepfather — who lacked legal custody — had already given them permission to question him. The juvenile court judge suppressed the confession, but the case has not yet been resolved.

Although the J.D.B. case and those from Tennessee raise somewhat different legal issues, they all speak to the need for reform to ensure the rights of young suspects are protected during police questioning. Social science research has shown that children are particularly vulnerable to the coercive techniques described above and are more likely to provide unreliable information when questioned suggestively.

As a result, we must change the culture in which police regularly subject adolescents to such “mind boggling” tactics. Legislatures across the nation can start by joining the 17 states and the District of Columbia that have successfully mandated either audio or video recording of all interrogations, whether of youth or adults. We must automatically provide all minors with counsel upon any police questioning, a reform no state has adopted. Given that most police officers have received fewer than 10 hours of juvenile interview and interrogation training over their entire careers, law enforcement should be trained with the best practices established by the International Association of Chiefs of Police.

As the assistant principal urged J.D.B., it’s time to do the right thing.

*Thanks to Josh Tepfer, Project Director of the Center on Wrongful Convictions of Youth and Assistant Clinical Professor at Northwestern University School of Law, for providing the documents and research relied upon in this column.

This column was also published by the Juvenile Justice Information Exchange.  

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Not So Well-Regulated Militias in Schools


Written by Jason Langberg

Would you want armed former cops and soldiers patrolling your office? Your supermarket? Your place of worship? I wouldn’t. So why are policymakers putting them in schools? Can’t we all agree that schools should be supportive, loving, peaceful environments, and not violent, hostile, and intimidating places? Apparently not.

The North Carolina General Assembly has been a mainstay in national news the last few months for its regressive and hateful policymaking. The New York Times Editorial Board published a piece titled, “The Decline of North Carolina.” The Washington Post Editorial Board wrote an op-ed titled, “North Carolina’s Abortion Law Sham.” MSNBC’s Melissa Harris Perry, Chris Hayes, and Rachel Maddow (who said North Carolina is like “Conservatives Gone Wild”) have been providing regular coverage of the legislature’s suppression of voting and abortion rights. Last week, an Education Week blogger called the General Assembly “the most backward legislature in America” and an article appeared in Mother Jones titled, “Why North Carolina’s Voter ID Bill Might be the Nation’s Worst.” Diane Ravitch has provided her blog readers with regular coverage of the harm being done to public education in North Carolina. The Nation’s Ari Berman called North Carolina “the new Wisconsin” in his coverage of the state’s Moral Monday protests.

However, absent from the media coverage of North Carolina, and lost amidst the General Assembly’s recent efforts to attack women, restrict voting, dismantle public education, make the rich richer and poor poorer, and initiate other measures from the American Legislative Exchange Council’s vile playbook, is a section buried deep (pages 77-78) in the recently ratified state budget that would allow armed militias to roam schools and arrest students.

The provision allows school districts to enter into agreements with sheriff’s departments and/or police departments that would provide former law enforcement officers and/or former military police officers to roam school hallways. The legislation requires the “volunteer school safety resource officers” to be trained in the social and cognitive development of children, but does not require training in their proper roles, students with disabilities, students’ rights, supporting students in positive ways, or cultural competency. Additionally, the bill mandates that neither a law enforcement agency nor a school district can be held liable for any “good-faith action” taken by an officer. Also, the bill does not prohibit the volunteers from carrying pepper spray, TASERs, and guns; presumably, volunteers will be armed. Perhaps worst of all, the provision gives the officers the power to arrest without any restrictions on such power (e.g., no arrests for minor misbehavior or manifestations of students’ disabilities). Notably, the state budget also provides grants for more paid law enforcement officers to patrol public schools on a full-time basis (misleadingly called “school resource officers”).

The provision is consistent with bipartisan calls by federal, state, and local policymakers for more cops and guns in schools following the tragedy in Newton, Connecticut. They saw dead children and teachers as an opportunity to leverage fears, pander to special interests (e.g., the NRA), and score cheap political points by passing school “safety” measures that have failed since first being implemented on a large scale after Columbine. Instead of addressing the root causes of school violence and working to keep guns out of schools, policymakers added more armed individuals to patrol hallways. Education Week published an analysis of school safety legislation since the massacre at Sandy Hook Elementary School. As of June 17th, state legislators had introduced 56 bills easing gun restrictions in schools, 65 bills to arm school employees, 82 bills dealing with police in schools.

The provision in the North Carolina budget and similar school “safety” legislation are also consistent with:

History and research tell us that unleashing armed cops and soldiers in schools will disproportionately impact students of color and result in more students unnecessarily in the juvenile and criminal injustice systems, more undermining of teachers’ and administrators’ authority, and more damage to learning environments. Even if law enforcement officers in schools were benevolently conceived as a means of keeping intruders out of schools and intervening when violence occurs, they are typically used as yet another developmentally inappropriate way of punishing misbehaving students who need understanding and positive support.

This is not an abstract fringe issue. It’s about how we want our public schools to look and feel – child-friendly and caring or hostile and punitive. It’s about refusing to sort youth into potential perpetrators and potential victims. It’s about terrorism against young people. Sadly, school resource officers, who hardly existed two decades ago, already seem normal to most young people. We must refuse to start down a path that will soon make armed militias in schools feel like commonplace.

Since policymakers have repeatedly ignored the pleas and research from education and juvenile justice advocates, it’s up to school districts to stay true to their missions and reject more (paid or volunteer) cops in schools. And it’s up to all of us to demand investments in proven measures of ensuring school safety, such as: small schools and classes; Positive Behavioral Interventions and Supports; ample support staff (e.g., teacher assistants, counselors, social workers, psychologists, nurses, and mentors); student support teams; restorative justice, social and emotional learning, and bullying prevention programs. Let’s stand up and protect our students and schools, before it’s too late.

Jason Langberg is an education and juvenile justice advocate in North Carolina.

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First Year Law Students, A Civil Action and Procedural Justice

200px-CivilactionbookI am very excited about our incoming 1L class to Carolina Law.  As the chair of the admissions committee this past year, I had the opportunity to speak with many of our admitted students, and they are a bright, dynamic, diverse bunch.  Our Dean and others in the administration thought these soon-to-be law students would enjoy reading Jonathan Harr’s legal thriller, A Civil Action, and talking about it together online in our version of the summer book club.

The following are my two posts on the book, which draw from my experiences teaching in the UNC Juvenile Justice Clinic and my scholarship on procedural justice theory. Dean Jack Boger’s posts are here and here, and in future weeks, other UNC law faculty are going to be sharing their thoughts and insights.  Meanwhile, our incoming class is already engaging with faculty in the comments section.    If you haven’t read the book (the movie doesn’t count!), I recommend it — it’s a fast read that raises compelling issues.

1) It’s my pleasure to join the conversation that Dean Boger recently started exploring Jonathan Harr’s “A Civil Action.” Although I read it long ago, I welcomed the opportunity to read it again, as my perspective on the story has shifted after many years of practice. I graduated from law school 21 years ago, and, aside from a year clerking for a judge on the Massachusetts Appeals Court, I’ve spent the intervening years practicing criminal defense — a decade representing indigent adult defendants as a public defender in the state and federal courts of Massachusetts and the past nine years representing kids in the juvenile delinquency courts of North Carolina as a faculty supervisor for the UNC Juvenile Justice Clinic.

My third-year law students represent children who are 15 years old or younger who are charged with criminal offenses that are typically the result of minor misconduct at school or in their neighborhoods. The students travel to the homes of their young clients to interview them about their lives and to gather information in order to investigate the pending charges. They speak with parents and guardians, visit middle and high schools to talk with teachers and review school records, and do legal research in order to file and argue motions and advise their clients as to how best to resolve the case.

We emphasize holistic representation in the clinic — not merely defending against the criminal charges that our clients must confront but addressing the broader forces at work that are acting as stressors in their lives. We don’t always win, but at the very least our clients experience what it’s like to have someone working hard on their behalf — we don’t make decisions based upon what we believe is in our client’s “best interest,” but pursue what the young person conveys as their own or “expressed” interest.

I’ve thought about the work of my students as I’ve reread “A Civil Action,” how the lessons they are learning are not that different or removed from those with which Jan Schlichtmann and his colleagues struggled. The themes that most resonate with me are interrelated:

  • What is the purpose of the litigation process? Is it, as Professor Nesson asserted, “a morality play watched by a public audience?” Is it to seek the “truth?” If so, is this possible within the confines of jury trials, or does the adversary process only obscure reality? In other words, does the truth inevitably remain — regardless of the verdict or the details of the settlement — “at the bottom of a bottomless pit,” as Attorney Facher claimed? In the “enclosed, ritualistic world of the courtroom,” as Jonathan Harr wrote, is “reality often a mere shadowland?” If so, what if anything can/should be done structurally to change the system?
  • What is the lawyer’s duty to her clients? Schlichtmann told the Woburn plaintiffs, “I’m representing you, not controlling you.” Yet, is this an accurate estimation of his role vis-a-vis the families? Did he involve them enough in the decision-making process or was he patronizing and self-serving, as one of his clients, Anne Anderson, ultimately felt? Is this relevant or is the bottom line — the amount of money the plaintiffs are awarded — the only truly important factor in litigation of this nature? If you had been in Schlichtmann’s shoes, how might you have handled the attorney-client relationship? What do you feel he did well? What could he have done better?
  • When deciding upon the area of law to practice, need it be a choice between riches and fame OR doing good, as Schlichtmann reflected during settlement negotiations? As a member of the legal profession, is it possible to achieve both fame and fortune as well as to benefit society? What does it mean to serve the “public interest?” Is this a duty shared by every member of the bar? Can this be done via pro bono service? If so, what type interests you most?

2. In my last post, I highlighted several themes that resonated with me while reading “A Civil Action.” Now I will continue the conversation with a discussion of the concept of procedural justice, as it touches upon the questions that I posed regarding the purpose of the litigation process and the lawyer’s duty to her clients.

One of the most striking aspects of the book for me was the complete absence of the plaintiffs from the bulk of the narrative. After Jonathan Harr chronicles the illnesses and subsequent deaths of the Woburn children in the first few chapters, the plaintiffs aren’t mentioned again in any meaningful way for hundreds of pages. It is not until p. 316 that we hear of them again, when it is noted almost in passing that the lawyers provide the families with daily copies of the trial transcripts, which few of them read consistently. In contrast to the total immersion in the litigation by Schlichtmann and his associates, we learn that “as the weeks dragged on and the daily transcripts mounted into a towering pile, [the plaintiffs’] lives settled back into the normal daily routine of work and school. The trial — their trial — became a distant echo.”

The next mention of the families is not until p. 441 when they are beckoned to a meeting with Schlichtmann to discuss settlement and their options. Although this is a process with which he has been intensely engaged for weeks, having traveled to and from New York to meet with W.R. Grace execs, it is the first time that he has updated his clients on the negotiations — and it is the first time in over a year that any of them have visited their lawyer’s office. During the meeting, they discuss Grace’s offer, and several family members express that their top priority is not the amount of the payout but to have Grace acknowledge and take responsibility for causing the illness and death of their loved ones. When asked what would happen if Schlichtmann advises them to accept an offer that they refuse, he replies (somewhat disingenuously in my view), “I’m representing you, not controlling you.”

Soon thereafter, Judge Skinner accepts the settlement agreement, which mandates that the judge declare a new trial for Grace, thereby vacating the guilty verdict. Reverend Bruce Young, who had supported Anne Anderson’s early suspicions that the water was causing her son Jimmy’s illness, was particularly upset by the case’s resolution. He recalled that Anne had once said that it wasn’t the money that was important to her, but “that what she wanted was for J. Peter Grace to come to her front door and apologize.” The reverend himself concurred, for he had “invested a lot of himself in this matter, and to him taking Grace’s money without a full disclosure by the company, or any expressions of atonement, cheapened everything.” Anne, in fact, is so troubled by the way the case is resolved that she and the Zona family hire an accountant and a lawyer to challenge Schlichtmann’s claims for expenses.

The notion of procedural justice is that people are more likely to comply with law and policy when they believe that the procedures utilized by decision-makers are fair and unbiased. Its proponents contend that procedural fairness plays a key role in people’s willingness to accept a wide range of types of decisions, from U.S. Supreme Court rulings to corporate drug-testing policies. Empirical research in this area has focused on exploring why people are either satisfied or dissatisfied with a particular dispute outcome and whether there is a relationship between the type of process used and one’s perceptions of systemic fairness.

The finding that people care enormously about the process and greatly value the opportunity to tell their own story, regardless of the outcome, has been replicated across a wide range of methodologies, cultures, and settings. For instance, in recent years it has been found empirically that when doctors admit to medical error and compensate their patients quickly and fairly when their error causes injury, the number of new medical malpractice claims decreases, resulting in significant cost savings to the profession. Similarly, it has been reported that at hospitals that have acknowledged a preventable error and apologized to the patient, the number of malpractice filings have dropped dramatically, saving hospitals significant legal costs.

In reflecting on the Woburn case, I have tried to imagine how an understanding and appreciation of procedural justice theory may have altered the way in which the case was handled and the ultimate degree of satisfaction felt by the victims.

  • Would the plaintiff families have preferred an apology and acceptance of responsibility by Grace over a monetary settlement with no admission by Grace?
  • Would Anne Anderson and the others have wanted an opportunity to tell their stories — to speak at a public forum about the suffering of their loved ones had experienced instead of hundreds of thousands of dollars?
  • Would Grace have been willing to consider such a resolution, knowing that there were others with potential claims against them?
  • Although such an agreement would have certainly saved the parties time and money as well as (for the families) heartache and uncertainty, what of the view that only large monetary settlements succeed in “teaching corporate America a lesson?”

Thoughts about the questions posed above?  The book in general?  The Woburn case itself?  Civil litigation and procedural justice?  Please share in the comments.  

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Worse than Making Sausages

sausages and lawsWhen I first moved to North Carolina nine years ago, I remember being shocked when I learned that juvenile court jurisdiction ended at age 16 for all purposes and with no exceptions.  This means that if your 16-year-old son or daughter were to intentionally push another kid in the hallway of a public school with a zero tolerance policy, the school resource officer (SRO) could bring assault charges against them in adult criminal court.  I know because I have represented young people facing this very scenario.

It also means that the collateral consequences of a criminal charge and conviction are potentially borne by every 16 and 17 year old alleged to have violated a criminal offense — misdemeanor or felony — regardless of their criminal history, the nature of the injury or harm (if any), personal circumstances, etc.  As you know, a criminal record makes it harder to get a job, to get accepted into college, to receive financial aid, to be licenced in such professions as nursing, and to become a naturalized citizen of the United States.  16 and 17 year olds held in adult prisons are more likely to be raped, assaulted, and to commit suicide than are adult offenders.

North Carolina is the only state in the country to have such harsh jurisdictional age caps.  One other state ends juvenile court jurisdiction at age 16 — New York — which, unlike North Carolina, has mechanisms for “reverse waiver” or removal of a case from criminal court to juvenile court under specified circumstances.  About ten states cap jurisdiction at 17, and the remainder — the vast majority — end it at 18.  The numbers of teenagers impacted are significant — over 65K 16 and 17 year olds are processed in the criminal courts of North Carolina each year, about 26K of whom are only 16.  Stats show that only four percent of this cohort are convicted annually of felonies against people, with the remainder being property crimes or misdemeanors.

I thought about all of this the other day when reading that Illinois raised the cap on its juvenile court jurisdiction from 17 to 18, thereby joining the majority.  The governor and the bipartisan contingent that supported the bill recognized its value — that by giving original jurisdiction over all minors to the juvenile court, those who are amenable to its rehabilitative offerings will not be saddled with the burdens of criminal convictions and imprisonment with adults.  Lawmakers also acknowledged that the change would bring significant cost savings in the long run, no small factor given the broken state of the economy and the overflowing numbers of those incarcerated.

The bill’s passage is the second step in a reform process in Illinois that began in 2010 when 17-year-olds charged with misdemeanors were moved from adult to juvenile courts. Earlier this year, the Illinois Juvenile Justice Commission released a 2-year study of the impact of the misdemeanor change that found a decrease in the recidivism rate, and it recommended that Illinois join the other states that place 17-year-olds charged with felonies in juvenile court.  Of course, this does not mean that those minors charged with serious offenses cannot be transferred to adult criminal court — only that all criminal cases against minors must originate in the juvenile forum.  Connecticut has successfully raised the juvenile court age cap from 16 to 18 in recent years as well, also reducing recidivism rates.

Five years ago, I wrote an article on the history of the movement to raise the age of juvenile court jurisdiction in North Carolina.  I researched the legislative history, looked at reams of old newspaper accounts, studies on adolescent development, commission reports and committee minutes from the various periods during the past century when attempts to raise the age had failed.  The pattern was clear — with the powerful opposition of the sheriffs’ lobby and the backing of state prosecutors, few bills had ever made it out of committee.  The arguments that the cost was too much, that the juvenile court system was already overloaded, and that the result would be a mere “slap on the wrist” to young offenders consistently prevailed in the General Assembly.

Yet, I was naively optimistic that progress would soon be made in my state.  I joined other advocates in writing op-eds, appearing before state legislative commissions, serving on task-forces, and protesting at rallies.  With each step forward, however, we’ve had at least two steps back.  During the past year, I was heartened that even when our General Assembly is in the grips of conservatives bent on tearing down the little that’s left of the social safety net, there are still Republicans willing to sponsor yet another bill to raise the age — incrementally, of course, but even just moving 16 year old first-offenders charged with misdemeanors into the juvenile system would be a victory.  Now the bill has “run out of steam,” and those in the know have shared that it doesn’t look like anything will happen with it during this legislative session.  In other words, the pattern continues, and this time I’m a (small) part of the narrative of failure.

So, what have I learned?  Making sausages is, apparently, nothing like making laws.  In sausage making, there is generally only one person — the wurstmeister — who’s in charge of the business and makes all the decisions.  Sausages are made according to a recipe that specifies the exact amount of pork, while the inedible parts are discarded. Everyone at the factory is committed to producing a good product, and they strive for uniformity.  The bottom line?  If I were a sausage maker, I’d be insulted by the comparison.  As an advocate trying to bring about change, it only saddens me.

Your thoughts?  Experiences with legislative reform (or with making sausages)?  Please share in the comments.

This post also appears at PrawfsBlawg.  

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Clinical Legal Education and the Future of the Academy

getting practical imageI may be naive, but it’s mystifying to me that there’s still serious debate over the value and import of clinical legal education.  I admit that I’m not an objective observer — participating in a clinic as a law student was the most valuable thing I did during those three years, and I’ve spent the past decade happily teaching in a clinical setting.  Yet, given the dramatic drop in law school applications combined with the collapsing job market and escalating student debt, I’m surprised that more law school deans aren’t promoting clinical and experiential education, as it may be one of the best strategies for keeping American law schools afloat.

Although this reality is slowly dawning on some law school administrators (and development officers) at places like Washington & Lee, UC-Irvine, and CUNY, it’s those who regulate admission to the bar along with leaders of the practicing bar who are taking the lead.  In recent months, rule changes in New York, Arizona, and California and important reports issued in New York and Illinois reflect the shifting landscape.  In New York, a report by the state bar called for an expansion on the cap on clinical credits, leading the NY Court of Appeals to acknowledge that supervision by law school clinics was the “gold standard” and to amend its bar admission rules so that as many as 30 of 83 law school credits may come from clinical courses.  The NY court also allowed work done in clinics to apply to the new 50 hour pro bono bar admission requirement.

Meanwhile, in California the state bar is considering a bar admission requirement that applicants complete at least 15 academic credits of practice-based, competency skills courses during law school or participate in an internship or clerkship; 50 hours of legal services devoted to pro bono or modest means clients, either before or after admission; and 10 extra hours of Minimum Continuing Legal Education (MCLE) after admission, specifically focused on competency skills training.  The State Bar’s Task Force on Admissions Regulation Reform unanimously approved the draft proposal in June; the proposal needs only approval from the full Board of Trustees and California Supreme Court.  Given that California is the largest bar in the country, any change in their admission requirements will be closely followed by others.

Arizona has taken a different approach, amending its bar admission rules to allow law students to take the bar exam in February of their third year, provided they have no fewer than 8 credits left to complete.  At the University of Arizona, third year law students will spend the first two months of that year studying for the bar exam and participating in an 8-10 week “theory to practice” residency that is “designed to explore real-world, practical topics relevant to legal professionals, such as applied ethics and professionalism, economics of modern law practice, cutting-edge issues in policy and law and how to better serve client needs.”

Perhaps most dramatic, the Illinois State Bar Association has issued a report urging law schools to transform the second and third years “to help students transition to practice through apprenticeships in practice settings, practical courses, and teaching assistantships, rather than more traditional doctrinal courses.”  The report also called for the full inclusion of clinical and legal writing faculty in law school governance.

On the national level, members of the Clinical Legal Education Association (CLEA) have petitioned the ABA Task Force on the Future of Legal Education and the ABA Section for Legal Education and Admissions to the Bar to require at least 15 credits of professional skills instruction.

Having served for several years on the admissions committee at UNC, including this past year as chair, I can attest to the fact that prospective students are consistently heartened to hear about clinical and experiential opportunities in our law school curriculum.  I can also share from my own teaching evaluations as well as those of my clinic colleagues (which I now review as interim clinic director) that our third year students repeatedly say the clinic was their best course/experience in law school.  Likewise, my experience practicing among the bar and alongside Carolina alumni has confirmed that prospective employers and donors are also strongly supportive of “transition to practice” type courses, externships as well as clinical course offerings.  They recognize that otherwise, the responsibility and cost of training and preparation for practice falls to employers, clients, and the graduates themselves — something that the down economy can no longer subsidize.  In addition and of particular importance to me, when law schools fail to endorse skills and professional training in their curricula, this disproportionately disadvantages students who are unable to afford/independently finance alternative opportunities for training.

Yet, the legal academy has continued to drag its proverbial feet, a fact acknowledged by the California task force, which disapprovingly noted “the persistent, unresolved debate in the legal academy about whether clinical legal education ought to be a mandatory part of the standard legal education curriculum.”  More than twenty years after the dissemination of foundational studies recognizing the import of experiential legal education, including the MacCrate Report and the more recent Carnegie Report by my colleague Judith Wegner et al. and Best Practices for Legal Education by Roy Stuckey et al., students can graduate from an ABA-accredited law school and sit for the bar having met only the minimum ABA accreditation requirement of a single credit (out of an average of 89 academic credits) of professional skills, meaning that they can be deemed ready to practice law without ever handling a client’s legal problem.  In contrast, other professions — including medicine, veterinary medicine, architecture, social work, dentistry and pharmacy — require at least one quarter, and up to more than one half, of a student’s pre-licencing education be fulfilled by in-role supervised professional practice.

So, why the academy’s reluctance to mandate that professional skills training and experiential learning be a foundational part of the curriculum — and that faculty who teach in these areas receive comparable pay and voting rights?   As for the first part of the equation, the usual retorts that such courses are too expensive and too difficult to implement are losing their teeth, as more than a dozen law schools — both public and private, rural and urban — have worked hard to provide cost-effective ways to mandate clinical education, and many more now guarantee a clinical experience for every student (see Karen Tokarz et al., “Clinic Requirements, Clinic Guarantees, and the Case for Experiential Pluralism: The New, Improved American Law School Curriculum,” 43 WASH. U. J.L. & POL’Y (forthcoming fall 2013)).  As for the issue of faculty status, my personal feeling is that until the schools at the top dismantle the hierarchy in which clinicians are second or third class citizens, the majority will not follow.

Your thoughts?  Please share in the comments.

This post also appears at PrawfsBlawg where there is a very active discussion in the comment section.  Please check it out.

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