Right to Counsel in Nonpayment Hearings


In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms.  One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty.  Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings.  Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter.  State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration.  Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter.

An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole.  In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued.  For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail.  This was followed by a period when he once again made payments.   This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:

Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food.  He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.

At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration.  On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:

Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding.  As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”

The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road.  Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments.  For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration.

Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost.  This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it.  In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed.  In states that offer hardship waivers of these fees by statute, some fail to provide them in practice.  And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.

Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.

This post previously appeared on the Human Rights at Home blog.

Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.

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Posted in Adult Court, Criminal /Juvenile Defense, Poverty, Race, Class, Ethnicity, Right to Counsel, U.S. Supreme Court, Uncategorized | Comments Off on Right to Counsel in Nonpayment Hearings

The New Peonage


On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.

At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade.  He was failing several courses and repeatedly disciplined for misbehavior.  He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.

On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks.  His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.

Despite these hurdles, Taylor made some strides.  His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”

The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration.  In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1).  Appellant failed to establish that he tried to do those things.”

Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families.  Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.”  Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.

For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment.  When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge.  Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees.  For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current.

For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism.  When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding.  In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past.

One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents.  This burdens the system and actually interferes with the proper administration of justice.  Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.”  It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions.  Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute.  Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants.  Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.

In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider.  They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay.  For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.

This post previously appeared on the Human Rights at Home Blog.

Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.

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Posted in Adult Court, Analysis, Juvenile Court, Legal History, Legal Scholarship, Poverty, Race, Class, Ethnicity, U.S. Supreme Court | 1 Comment

U.S. Dept. of Justice Focuses on Juvenile Justice


By Kevin Lapp, Associate Professor of Law, Loyola Law School-Los Angeles

The U.S. Department of Justice’s Civil Rights Division has recently been focusing some significant attention on the administration of juvenile justice.

In 2012, it released a report on the Shelby County, Tennessee juvenile justice system (link to report: http://www.justice.gov/sites/default/files/crt/legacy/2012/04/26/shelbycountyjuv_findingsrpt_4-26-12.pdf), finding that Shelby County’s juvenile justice system failed to provide constitutionally required due process for those accused of delinquency and failed to provide equal protection under law for accused African-Americans. Later that same year DoJ announced an agreement that included a series of corrective measures (link to agreement: http://www.justice.gov/iso/opa/resources/87720121218105948925157.pdf).

In late 2012, the DoJ filed a lawsuit, United States v. City of Meridian (Mississippi), et. al., (link to complaint: http://www.justice.gov/sites/default/files/crt/legacy/2012/10/24/meridian_complaint_10-24-12.pdf) challenging the Meridian Police Department’s practice of arresting youth for minor school-based offenses without probable cause and Lauderdale County Youth Court judges’s practice of incarcerating youth on probationfor school suspensions and expulsions. The suit led to a June 2015 settlement that promises to end the arrests of youth for “behavior that is appropriately addressed as a school discipline issue” and that limits the state’s ability to incarcerate youth for violations of probation that would not otherwise be detainable offenses. (link to agreement: http://www.justice.gov/opa/file/479421/download)

A couple of weeks ago, the DoJ issued a report regarding the St. Louis County, Missouri juvenile justice system (link to report: http://www.justice.gov/opa/file/641971/download). St. Louis County became national news in August, 2014 when protests followed the shooting there of 18 year-old Michael Brown. The DoJ’s investigation into St. Louis County began almost a year before Mr. Brown was killed. According to the report, the St. Louis County Family Court fails to provide constitutionally required due process of law for those accused of being delinquent, and fails to provide equal protection under the law for accused African-American youth.

Specifically, the report found that youth in delinquency proceedings often go without any (much less adequate) legal representation during crucial stages of their cases, that the court fails to adequately protect the privilege against self-incrimination, that the court fails to ensure that guilty pleas are entered knowingly and voluntarily, and that the organizational structure is rife with conflicts of interests and contrary to separation of powers principles.

With regard to equal protection, the report found that, even after controlling for factors such as age, gender, risk and the severity of the allegations, Black youth are

  • almost 1.5 times more likely than White youth to have their cases handled formally (instead of diverted),
  • two-and-half times more likely to be detained pretrial than White youth,
  • more than two-and-a-half times more likely than White youth to be placed in custody after adjudication, and
  • almost three times as likely to be committed to restrictive settings for a violation of probation than White youth.

There is much more to be said about these recent DoJ efforts (which include an ongoing investigation in Dallas County, Texas), the findings in them, and what they might promise for the future. Future posts will look more closely at things like access to juvenile courtrooms, the role of probation services, the role and burden of juvenile defenders, and more.

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Posted in Guest Blogger, Juvenile Court, Race, Class, Ethnicity, Right to Counsel, School to Prison Pipeline | 1 Comment

No Substitute for Learning from Experience

Prof. Birckhead with UNC law students in the clinic

Prof. Birckhead with UNC law students in the clinic

I currently practice as a juvenile defense attorney in three different counties in North Carolina. As a faculty member in the Youth Justice Clinic at the University of North Carolina School of Law, I assign cases to third-year law students who represent — under my direct supervision — children charged with crimes.

Clinical legal education is often referred to as experiential learning, in contrast to doctrinal or podium learning, in which a professor stands at the center of the lecture hall closely questioning students chosen at random about a legal opinion assigned for that day’s analysis. This type of experiential learning is analogous to the distinction between working directly with youth in the field and merely attending a lecture on how to communicate effectively with youth: Both educational approaches have value, but academics tend to privilege the theoretical over the practical.

During the course of the semester, I try to assign juvenile delinquency cases in all three counties to each of my students, because the experience — the very culture itself — differs so greatly from courthouse to courthouse, depending on the particular philosophy and temperament of the judges, probation officers, prosecutors and defense lawyers involved.

As practicing lawyers inevitably learn, often two cases with very similar facts will be handled completely differently by two different judges — or even by the same judge who presides over the matters on two different days. Our judicial system is inherently subjective and can be vulnerable to the shifting moods and implicit biases of the people operating within it.

I recently had the opportunity to advise early-career academics who prepared papers for presentation at an international comparative criminal law conference. They were third-year law students from the U.S. and graduate students from the U.K. and China whose research focused broadly on the topic of vulnerability within criminal proceedings but more specifically on juvenile court practice in their countries of origin.

Several of the papers utilized empirical research conducted by the students themselves — quantitative data as well as qualitative work in the form of interviews with and observations of system players. For instance, one project relied on interviews with juvenile-court prosecutors in China regarding a requirement that a third party (termed an “appropriate adult”) be present during prosecutorial or police interrogation of minors. Through her interviews, the student learned that although the requirement seemingly offers greater protection to juvenile suspects who are subjected to government questioning, because “appropriate adults” in China are not properly trained and believe their role is to assist the prosecutor, their presence actually helps advance the interrogator’s objectives and secure the juvenile’s confession, rather than ensure the legality of the interview itself.

Another student spoke with defense attorneys practicing in juvenile court in England and Wales and learned about systemic pressures placed upon young people to plead guilty, including the fact that many defense lawyers representing children in the U.K. are inexperienced and poorly trained. Through her interviews, she also discovered that judges and court staff often explicitly pressure juveniles to give up their right to trial.

A third student spoke with juvenile defense attorneys in North Carolina about the state’s low rate of appeals from juvenile court convictions and sentences. She learned that a law that forces juveniles to pay their own attorney’s fees if they lose their appeal serves as a major deterrent, as such costs can be high and most are living in poverty. Through these interviews, the law student also learned that North Carolina’s juvenile defense lawyers often fail to advise their clients of the right to appeal or to explain it in sufficient detail.

Although the conference was conducted inside a classroom, the students’ presentations brought alive the obstacles facing juvenile court systems, whether in the U.S., U.K., or China. Through discussions with each other, they identified common challenges as well as strengths among these very different systems. From my perspective, this highlighted the importance of remembering that behind the theories and book learning are the people: complicated, subjective and sometimes irrational. It was experiential education at its best.

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North Carolina House Bill 879: An Unlikely Smooth Ride to Reform

case books

By Eric J. Zogry, the State Juvenile Defender for North Carolina

In June 2015, North Carolina Governor Pat McCrory signed House Bill 879 into law.  While there was no ceremony and little press, the new “Juvenile Justice Reform Bill” contained the most significant changes that the North Carolina Juvenile Code had seen in over fifteen years.  With this piece of legislation, a small group of advocates had come together to produce statutory changes that  had the potential to promote stronger due process protections and better outcomes for youth in juvenile delinquency courts across the state.


In the spring of 2014, the NC Office of the Juvenile Defender (OJD) was approached by a group of experienced lobbyists hired by national juvenile justice reformers.  The lobbyists, who had worked with OJD on the “raise the age” campaign, proposed that OJD present commonsense, positive-outcome reform to the NC Juvenile Code, which had not been changed in any substantive way in over fifteen years.  OJD, guided by advice from practitioners, appellate court decisions, and juvenile court observations over the last decade, then assembled a package of statutory revisions organized around three main themes: improving due process protections for youth, reducing further entry into the juvenile justice system, and limiting the use of confinement.  The proposals were fairly unique to current processes in the NC juvenile justice system, although undoubtedly they have corollaries in other jurisdictions. Once they were further narrowed internally and approved by early stakeholders after careful consideration of potential opposition, a two pronged strategy emerged to ensure the greatest likelihood of success in the state legislature.


Next, OJD approached the North Carolina Bar Association (NCBA) for endorsement, while the lobbyists considered possible legislative sponsors.  The NCBA, a volunteer lawyer organization, endorses legislative proposals that have been supported by all sections of its membership and approved by its legislative committee as well as its board of governors. The proposals were first presented to the Juvenile Justice and Children’s Rights Section (the Section), a group comprised of attorneys, advocates, and academics who are experts in children’s rights.  The Section quickly approved five of the proposals, which over the next several months travelled through the organization’s approval channels before receiving final endorsement in December 2014.  This endorsement was crucial because it included the support of a number of prosecutors and judges who were NCBA members.  Simultaneously, OJD worked with the Section to field concerns regarding the additional proposals, making improvements in the hope of achieving broader NCBA acceptance.  Meanwhile, the lobbyists carefully selected sponsors among the NC General Assembly, seeking out those with experience in juvenile justice and an interest in improving outcomes for youth, spending time discussing the broad issues, and fielding questions.

Off to Jones Street

As the 2015 Session of the General Assembly began in January, bills containing the proposals were drafted and introduced in both the House of Representatives and Senate.  The team then met with all the sponsors, who, despite the “technical” nature of some of the proposals, caught on quickly to the underlying themes and were energized to make their pitch.  Ultimately, the House version became the vehicle for reform, even including two important additions from one of the sponsors (mandating that juvenile court judges explain the expunction process to eligible youth, and restricting the shackling of very young children who are transported to mental health facilities).  In the House drafting committee, the bill fielded several frantic but friendly amendments from the N.C. Sheriff’s Association, the Division of Adult Corrections and Juvenile Justice, and committee members.  With a favorable report, H879 passed in chamber nearly unanimously in its amended form.  The bill then sailed through the Senate Committee without comment or concern.  Upon its final vote on the Senate floor, the bill was temporarily removed for closer consideration, but it was then returned to the floor with only the section on expunction removed (to be considered in a later bill), and it passed without a single nay.  The House accepted all the changes, and the governor signed the bill into law.

Details of the New Legislation

Due Process Protections

Sections 1.1 through 1.4 of HB 879 address several points during the delinquency court process that had raised due process concerns:

  • Section 1.1 extends the requirement to 14 and 15-year-olds that a parent or attorney be present during custodial interrogation in order for an admission or confession to be admitted into evidence (previously, this protection applied only to those under age 14).
  • Sections 1.2 and 1.3 clarify that after a probable cause hearing (required for felonies for youth 13 years or older) or transfer hearing (required for prosecuting juveniles in adult court), if the case is to continue to adjudication in juvenile court, there must be a separate adjudicatory hearing (under previous appellate court decisions, adjudicatory hearings were not mandatory after probable cause and transfer hearings, even though the state’s burden of proof is higher at adjudication).
  • Section 1.4 creates a procedure and imposes requirements for the filing of and conducting hearings on motions to suppress in delinquency court, largely adopting the more rigorous adult criminal procedure on such motions.

Reduce Further Entry into the Juvenile Court System

Sections 2.1 through 2.6 implement requirements to reduce further entry into the delinquency system:

  • Section 2.1 emphasizes the duty of the juvenile court counselor to make reasonable efforts to meet in person with the juvenile and parent to determine whether a petition should be filed.
  • Section 2.2 creates a procedure for voluntary dismissal of delinquency petitions by the prosecutor.
  • Section 2.3 explicitly defines a “prior adjudication” as an adjudication that occurs before the adjudication currently before the court.
  • Section 2.4 more clearly defines the parameters for hearing an extension of probation and explicitly clarifies that upon a violation of probation, the court may increase the child’s disposition level or give twice the term of confinement authorized by statute, but it may not do both.
  • Section 2.5 imposes a new obligation on the court to inform a juvenile of the right to petition for an expunction after meeting statutory requirements.

Reduce Rates of Juvenile Confinement

Sections 3.1 and 3.2 are designed to reduce juvenile court reliance on confinement:

  • Section 3.1 includes two new provisions: it clarifies that for juveniles placed in secure custody after adjudication and before disposition, or after disposition and pending placement, the court must have hearings every ten days (which can be waived only by and through counsel) and the court must make findings of facts in its order.   It also creates a provision that juveniles under age ten who are found to be in need of medical or psychiatric treatment should not be restrained unless safety concerns require it.
  • Section 3.2 codifies case law providing that the judge—not the juvenile probation officer—has the sole discretion to determine when a juvenile may be placed in custody as a dispositional sanction.

Impact of the New Legislation

Improving Juvenile Defense Practice

Increased procedural safeguards are only as effective as the degree to which are enforced.  Therefore, it is the duty of defense counsel to ensure that his/her client’s rights are protected at every stage of the proceedings.

The new legislation provides several opportunities for more vigorous defense, including imposing the following obligations:

  • Defense counsel should work with prosecutors to secure deferrals in order to reduce adjudications;
  • They should work to ensure that all pending adjudications are resolved prior to any disposition being entered so as to limit the child’s exposure to further punishment;
  • They should speak to qualified juveniles, in detail, about their right to an expunction, including an explanation of the benefits, tools for assisting them, and available resources.
  • To protect against unnecessary confinement, they should request that the judge issue specific findings upon deciding to keep a juvenile in secure custody pending disposition or placement.

Reducing Impact on Minority Populations

The disproportionate representation of minorities in the juvenile justice system is well known.  The causes of overrepresentation are complicated and cannot be linked to just one factor.  However, this new legislation may lessen the negative impact of the system on minority populations in the following ways:

  • According to recent data from the NC Division of Adult Corrections and Juvenile Justice and the Governor’s Crime Commission, African-American youth are about three times more likely to be referred to the juvenile justice system than white youth.  Therefore, it is likely that their overrepresentation at arrest is also high, exposing more African-American youth to interrogation.  The new law that increases the age at which parents or attorneys must be present at interrogations could reduce the possibility of false confessions, or at least provide minority youth with better counseling on their right against self-incrimination.   Also note that confessions or admissions are often the primary evidence in many juvenile prosecutions.   
  • The NC Sentencing and Policy Advisory Commission has found fairly consistently that African-American youth who receive adjudications are more likely to reoffend than youth of other races (62% of all African-American youth who are adjudicated recidivate within three years, while only 43.4% of white youth do so, according to their 2015 report).  With the bill’s inclusion of an explicit statutory practice for prosecutorial dismissal of delinquency petitions, this could lead to fewer adjudications and lowered rates of reoffending
  • Consider also the possible impact of the newly clarified definition of “adjudication.” Juveniles can be sentenced in delinquency court based only on prior offenses or “adjudications.”  The higher the number of separate adjudications that are considered by the court at any one time, the greater the juvenile’s exposure to harsher punishment, such as placement in a short term (detention) or long term (Youth Development Center) facility. Data clearly shows that African-American youth who are placed in secure facilities are overrepresented at a rate of over 3 to 1.  This new provision, therefore, will limit the number of adjudicatory “points” that the court can consider before imposing a sentence, thereby limiting the imposition of secure custody on all youth, including African-Americans.

Final Thoughts

It is clear that once juvenile defenders, judges, and prosecutors absorb these new changes to the NC Juvenile Code, the practical impact upon our clients will be great. A juvenile defender who understands the importance of reducing further entry into the system is more likely to negotiate a term of local community service for her client than to take the case to adjudication.  Similarly, she is more likely to protect a youth from a potential probation violation by insisting that any extension of probation be made as close to the expiration date as possible.  As a result of this bill, a judge may give second thought to her reasons for detaining a child before deciding to enter the disposition order.  With these changes, a youth is more likely to feel that the system “worked,” and endeavor to steer a path away from further court involvement.  Although we cannot guarantee the law’s impact, it was intended to improve the future for the state’s youth and the society that raises them.




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Prisoners in Isolation: In Davis v. Ayala, Justice Anthony Kennedy issues a call to action in his discussion of Solitary Confinement

Jail-CellOn March 3, 2015, at the conclusion of oral argument in the U.S. Supreme Court case of Davis v. Ayala, No. 13-1428 (U.S. Jun 18, 2015), Justice Anthony Kennedy asked Hector Ayala’s lawyer, Anthony Dain, a question that the justice acknowledged “doesn’t relate to the issues you’ve been arguing”:

This crime was what, 30 years ago, and the trial, 26 years ago?

Anthony J. Dain: 1996, yeah, very close.

Justice Anthony Kennedy: Has he [Hector Ayala] spent time in solitary confinement, and, if so, how much?

Anthony J. Dain: He has spent his entire time in what’s called administrative segregation.  When I visit him, I visit him through glass and wire bars.

Justice Anthony Kennedy: Is that a single cell?

Anthony J. Dain: It is a single cell.  They’re all single cells.  Well, San Quentin is on the most — it’s on Heaven’s land in Marin County.

It’s a 150-year-old prison and their administrative segregation is single cells, a very old system, very small, and — and —

Justice Anthony Kennedy: Is it the same thing as solitary confinement?

Anthony J. Dain: No, it’s 23 hours out of the day, that probably is the same.  They generally — administrative segregation you’re not allowed in the general yard anymore.  But you are allowed an hour a day —

Justice Anthony Kennedy: One hour.

Anthony J. Dain: — of activity.

The colloquy was striking, as it came at the end of forty-five minutes of argument on the rather dry, technical question of how habeas courts should assess harmless error in a procedural Batson challenge.

Yet, three weeks later it became clear that Kennedy’s mind was still occupied by the decades-long solitary confinement of Hector Ayala, who in 1989 was convicted of triple homicide and sentenced to death.  At the March 23rd U.S. House Appropriations Subcommittee hearing on the Supreme Court’s 2016 budget request, Kennedy offered the following reflections after Rep. Steve Womack (R-Arkansas) referenced the crisis in local jail and prison overcrowding due to U.S. policies of mass incarceration:

I think, Mr. Chairman, that the correction system is one of the most overlooked, misunderstood institutions we have in our entire government.  In law school, I never heard about corrections.  Lawyers are fascinated with the guilt/innocence adjudication process.  Once the adjudication process is over, we have no interest in corrections.  Doctors know more about the correction system and psychiatrists than we do.  Nobody looks at it.

California, my home state, had 187,000 people in jail at a cost of over $30,000 a prisoner.  Compare the amount they gave to school children, it was about $3500 a year.  Now, this is 24-hour care and so this is apples and oranges in a way, [but] this idea of total incarceration just isn’t working, and it’s not humane.

The federal government built–what do they call them?–Supermax prisons with isolation cells…We had a case come before our court a few weeks ago.  The prisoner had been in an isolation cell (according to the attorney–I haven’t checked it out) for twenty-five years.  Solitary confinement literally drives men mad.  Even Dr. Manette [a character in Charles Dickens’ A Tale of Two Cities imprisoned for eighteen years in isolation] had his cobbler’s tools, and he lost his mind!

We have to simply look at the system we have.  The Europeans have systems for difficult, recalcitrant prisoners in which they have them in a group of three or four, and they can stay together and have human contact, and it seems to work.  It seems to work much better.

A Judicial Call to Action

Given this background, it was hardly surprising that when the Court issued its opinion in Davis v. Ayala on June 18th, Kennedy had drafted a four-page concurrence focused solely on the practice of solitary confinement, “one factual circumstance” that he again admitted had “no direct bearing on the precise legal questions presented by this case.”

Describing the practice as one in which the inmate is held “in a windowless cell no larger than a typical parking spot for 23 hours a day,” Kennedy cited the 25,000 U.S. prisoners currently serving their sentences in “whole or substantial part in solitary confinement, many regardless of their conduct in prison.”  He acknowledged the “human toll wrought by extended terms of isolation,” which writers have vividly documented since the eighteenth century, and he again referenced Dickens’ Dr. Manette, who despite his workbench and tools to make shoes, was left in “a mindless state with almost no awareness or appreciation for time or his surroundings” years after his release from isolation.  Dickens, in fact, visited one of the first modern penitentiaries in the U.S., Eastern State in Pennsylvania, which used solitary confinement as a penal measure to “rehabilitate” criminals and served as a model of social isolation for more than three hundred prisons from across the globe.  Dickens himself condemned the practice in 1842:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers…and which no man has a right to inflict on his fellow-creature.

In his concurrence, Kennedy quoted from In re Medley, the 1890 Supreme Court case that first subjected the practice of solitary confinement to constitutional scrutiny.  In Medley, the Court struck down a Colorado statute requiring inmates sentenced to death to be held in solitary for one month prior to their execution, relying on graphic accounts of the harmful impact of isolation in nineteenth century prisons.  Although the Court premised the holding on the Ex Post Facto Clause and not the Eighth Amendment prohibition of cruel and unusual punishment, the decision is noteworthy for holding that one month of solitary confinement is substantial enough to justify the Ex Post Facto Clause’s application.

Since Medley, state and federal courts have heard many cases involving Eighth Amendment challenges to solitary confinement, but none has held that the practice is a per se Eighth Amendment violation.  Traditionally, evaluations of Eighth Amendment violations in the context of conditions of confinement have focused on whether prisoners have been denied the basic physical necessities of human existence: food, shelter, and medical care.  In recent decades, with the advent of Supermax prisons and the prevalence of solitary confinement, courts have begun to recognize that institutionally imposed psychological pain and suffering can also violate the Eighth Amendment.  As a result, they have found that specific solitary confinement regimes coupled with either particularly harsh conditions, such as sensory deprivation, or a vulnerable class of inmates, such as those who are mentally ill and/or juveniles, can rise to the level of cruel and unusual punishment.  But courts have continued to reject Eighth Amendment claims based on solitary confinement without additional evidence of either “deliberate indifference” by prison administrators or egregious conditions or treatment.

The motivation for Kennedy’s concurrence seems not merely to chronicle the profound harm of prolonged isolation or recount the relevant case law, but to issue a call to action.  He faults the legal academy as well as practitioners and policymakers for their superficial understanding of and indifference to the reality of this extreme sentencing practice.  Because the powers-that-be choose to ignore “the question of what comes next” after a defendant is convicted and sentenced and instead defer to correctional administrators,  “[p]risoners are shut away–out of sight, out of mind.”

Kennedy includes topical references in the concurrence, somewhat rare for Supreme Court jurisprudence.  He cites a tragic case that is ripped from the headlines, that of Kalief Browder, a teenager who spent three years in solitary confinement at Rikers Island Jail without a trial for allegedly stealing a backpack and who committed suicide earlier this month. Kennedy also cites to the recent work of criminologists and psychologists, who have found correlations between solitary confinement and self-harm among inmates as well as solitary confinement and rates of mental illness in U.S. prisons.   And he explicitly warns that if the practice of isolation is not soon addressed by others,

the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

Protecting the Autonomy of Self

Although some court-watchers suggest that Justice Kennedy is a legal pragmatist who has an idiosyncratic approach to judicial decision-making, the philosophical underpinnings of his concurrence in Davis v. Ayala can be found in the testimony he gave during his Supreme Court nomination hearings in 1987.  When asked what standards a judge should follow in determining whether government action has violated an individual’s right to human dignity, Kennedy explained that he considers whether the action results in

the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, [or] the inability of a person to reach his or her own potential.

Echoes of this sentiment are found in his subsequent opinions explicating his substantive due process views (see Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”); Lawrence v. Texas, 539 U.S. 558 (2003)(“Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”)); his notion of the independent role of judges (see Roper v. Simmons, 543 U.S. 551 (2005)(“We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles.”)); and in his belief in the potential for young offenders to be redeemed (see Roper at 563-64 (“When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”)).

Kennedy’s concurrence in Davis v. Ayala is consistent with these previously-expressed views.  He is unwilling to accept a criminal justice system in which sentencing judges are powerless to prevent capital defendants from spending decades in “a solitary confinement regime that will bring [them] to the edge of madness, perhaps to madness itself.”  And he is determined that if the status quo does not change, the bench, bar, legal academy, and broader public must at the very least be aware of and ready to take responsibility for the result:

Even if the law were to condone or permit this added punishment [of prolonged solitary confinement for capital defendants], so stark an outcome ought not to be the result of society’s simple unawareness or indifference.

Kennedy concludes with a more overarching judgment about the widespread use of solitary confinement in today’s prisons and how it reflects upon the state of our society:

Over 150 years ago, Dostoyevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons.’ There is truth to this in our own time.

What Happens from Here

It is clearly too soon to know what impact, if any, a Supreme Court concurrence that is tangential to the case’s legal issues will have.  Kennedy’s timing, however, is certainly in step with reform efforts, as solitary confinement has faced unprecedented challenges in recent years.  In 2014, for instance, ten states adopted measures curtailing the use of solitary, either by abolishing it for juveniles or the mentally ill; improving conditions in segregated units; or gradually easing isolated inmates back into the general population.  Relevant to Davis v. Ayala, at least one state has discontinued its use on death row, catalyzed by the acknowledgement of correctional officers that inmates are harder to manage and present a greater risk when they are stripped of all their privileges.

As for the views of the other Justices on the Court, Clarence Thomas issued his own concurrence in Davis for the sole purpose of rejecting Kennedy’s critique and reminding him that Hector Ayala’s accommodations “are a far sight more spacious than those in which his victims now rest” and that Ayala will soon have had “as much or more time to enjoy those accommodations as his victims had time to enjoy this Earth.”

Even so, as the Justice who most consistently holds the Court’s swing vote, it seems inevitable that it is Kennedy’s vision and philosophy that will remain a critical–if not dominant–factor in determining whether solitary confinement will survive constitutional scrutiny.

This was originally posted at Casetext.

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Notes from the Field: Juvenile Court and the Children who End Up There


By Kellie Mannette, Esq.

Law Office of Kellie Mannette, PLLC, Chapel Hill, North Carolina

It’s been two and a half years since I first met a child I will call Greg. At the time, he was barely 14 and charged with minor drug offenses in the juvenile delinquency court of a rural county in North Carolina. Greg admitted to the charge and was put on probation.

I enjoyed representing Greg that day, as he was a sweet, thoughtful child. I had no idea that I would end up in court dozens of times on his behalf.

None of the criminal charges Greg picked up after his initial ones were serious: minor drug possession, driving without a license, and petty larcenies. But the court treated them all very seriously.

Every time Greg and I were back in court, the hearings sounded the same: judges, prosecutors, and court counselors (probation officers) lecturing Greg about his marijuana use and disregard for rules, threatening to send him to the “youth home” (which is actually a jail for children), and then actually sending him to the “youth home.”  There were out-of-home placements, a GPS monitoring ankle bracelet, and a “secure” (locked) out-of-home placement. In short, every punitive option the court had available was imposed on this child at some point.

The first time the judge sent Greg to the “youth home,” he ran out of the courtroom. He sobbed in a corner about how he wanted to go home, how he wanted his mother.  He looked years younger than his age as he cried.

Over the years, the kid I saw was very different than the one whom the court saw. The judges spoke of Greg as a defiant teenager who was always determined to do what he wanted rather than what was expected of him. Instead, I saw a sweet, smart child who found school too difficult due to a learning disability that had gone undiagnosed. I also saw a child emotionally damaged from the conflict between his parents, whose physical abuse of each other he had regularly witnessed. And I saw a child who would always make sure he thanked me for what I had done for him, even when we “lost” in the courtroom (which was often).

These two pictures are of the same child, but through the lens and the measure of the court system, Greg failed repeatedly:  he continued to smoke marijuana; he continued to steal; and he continued to defy his parents. I repeatedly tried to convey who this child really was, but the judges, district attorneys, and court counselors only saw his failures.

The empirical research is clear: out-of-home placements and confinement are harmful to children and result in more negative outcomes than keeping kids in their homes with family support and community-based treatment. Yet detention and removal are still the most frequently-imposed options in the juvenile court system for children who violate probation.

Recently, I had my very last hearing representing Greg.  He was back in juvenile court on another probation violation. Greg is now 16, and because of North Carolina law, if there are any future charges he will automatically be prosecuted in adult criminal court. Given his age and the exhaustion of options, we agreed to one final disposition. Greg would spend 28 days in the”youth home” and then his probation would be terminated.

Greg and I had to wait for a while before appearing in front of the judge to officially enter the judgment. Greg was hungry, so I grabbed a couple of granola bars from my purse and we stepped outside. We ate our snack and talked about the differences between juvenile and adult court. Greg asked very good questions and told me that he would try to stay out of adult court. With every fiber of my being, I hope he does.

We then returned to the courtroom for the judge to order Greg into custody. As the uniformed deputies were leading him away, he stopped them. He turned to me and politely thanked me for the granola bar I had given him, smiled, and then left the courtroom.

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We Must Stop Criminalizing Adolescence


Recently I represented a 14-year-old boy, who I’ll call Wayne, in a local juvenile court in North Carolina. Upon entering the courthouse, Wayne, who was alleged to be “undisciplined,” had to walk past court officers and go through the metal detector, ride the packed elevator, and stand before a judge who regularly presided over court sessions for adult criminal defendants.

After Wayne’s case was called by the prosecutor, his father reported that his son was not going to school, had a “smart mouth” and wouldn’t come home on time.

“With your help,” Wayne’s dad told the judge, “I want to get him on the right path.”

Wayne quietly acknowledged that he had made “wrong choices” and hung around with the “wrong people,” but as the boy glanced over his shoulder at the crowded courtroom that was open to the public, he looked defeated. Although the judge took time to speak with the teen, trying to get a sense of Wayne’s career goals and emphasizing the importance of following the rules, it was clear to me by the end of the hearing that formal court involvement in the case was inappropriate and, quite likely, counter-productive.

Ultimately, Wayne was placed on three months of protective supervision, requiring him to report regularly to the juvenile probation officer, draft a five-year life plan to present to the court, and abide by his father’s rules. Wayne’s mother, who was in a residential drug-treatment facility, was not present, but the judge apparently knew her from her own criminal case, a fact he announced matter-of-factly as Wayne looked down at his feet.

When the first juvenile court was established in Chicago in 1899, there were no distinctions made between children who were alleged to have committed criminal offenses and those who were alleged to have violated the classic norms of childhood, such as abiding by a parent’s rules, attending school and respecting authority. Instead, these two categories of children’s behavior were evaluated under the same guidelines in juvenile court, and the sentences (or dispositions) imposed upon them were not driven by the severity of the offense but by the apparent needs of the child as determined by the court.

As a result, for nearly a century, the juvenile court treated children adjudicated delinquent of committing crimes the same as those adjudicated for so-called status offenses, which covers such behaviors as running away from home, possessing alcohol or tobacco, and being “outside the disciplinary control” of their parents or guardians. Practically, this meant a child charged with a serious criminal charge but with few identifiable needs could receive a period of probation or no supervision at all, while children who displayed adolescent misbehavior that was noncriminal in nature could be committed to a juvenile institution until their 18th or 21st birthday if the court’s estimation of their underlying needs called for it.

Today, tens of thousands of children like Wayne are funneled into the juvenile court system each year, with data showing that more than 116,000 cases nationwide were sent to juvenile court for noncriminal behaviors in 2011, with 8,800 of these cases resulting in some form of secure detention.

Research has shown that incarcerating status offenders can exacerbate their underlying problems, as they come in contact with more serious offenders, negatively affecting their own outlook and behavior. Although many states prohibit the incarceration of young people for committing a status offense in violation of a court order, the majority of states still allow it, and a bill introduced in April 2014 by Rep. Tony Cardenas, D-Calif., to forbid states from locking up kids under such circumstances is, at presstime, languishing in a House subcommittee.

States justify the continued prosecution of status offenders in juvenile court on the basis of preserving families, ensuring the safety of the public and preventing youth from entering the delinquency or criminal justice system. Research shows, however, that courts are not equipped to address the causes of problematic behaviors and are unable to provide immediate intervention. At a time of scarce resources, we know that court-based responses are more expensive than community-based prevention and diversion services, which produce better outcomes.

Wayne’s father cannot be faulted for wanting assistance in ensuring that his son’s issues and problems are effectively addressed. Yet, on Wayne’s behalf — as well as all the tens of thousands of other young people who are referred to juvenile court for status offense behaviors each year — we must provide the care, treatment and services that they need without criminalizing adolescence.

This post originally appeared on Youth Today

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KIDS in Jail: Narrative Nonfiction about Youth Incarceration

Riha-BookCOVERBy Jane Guttman, Correctional Educator and Author

This story emerged from my work inside a juvenile hall school for the past 14 years.  I have seen a range of incidents, cruelty, and traumas that kids have endured in the juvenile system, and have responded with this publication.  We can hope, in the telling of this story that reform will continue to be forthcoming. KIDS in Jail sketches events that occur inside, and although they are told by me, I can’t speak to whether or not these events are universal, though I believe they are not exceptional.

Our youth at risk suffer enormous hardship as they struggle to adulthood.  Many will spend long stretches in prison.  Some have one or even two strikes, which puts them at risk for a life in prison.  Strong intervention can reverse the wretched prison pipeline.  Alternatives to incarceration must be implemented in greater measure.  These kids are born into darkness and our intervention can light their way.

KIDS in Jail, narrative nonfiction, tells the story of youth incarceration…teens raging and weeping through life. In a broken and flawed system, KIDS gives voice and homage to street soldiers, young men and women whose lives as our nation’s throwaway kids often begins as youth in foster care or in brutal home lives.  This chapter of life often advances to the juvenile jail system, where a career in crime begins.   KIDS bares the dark and desperate tale of custody for kids.  The passages portray lost childhoods and budding convicts, many of whom will return to live among us, while others will spend their entire lives behind bars. Their trials are enormous and yet each teen conveys a hope that lies beneath the rubble of despair, rage, illiteracy, and prayers of suicide.

Thank you for your part in sharing this story.  Please consider contributing to our Kickstarter Campaign and network this announcement on behalf of the 70,000 kids currently incarcerated in our nation.

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Why do Victims “Lie”?

child-abuse_1659813cWritten by Amanda Kay, JD, and Ryan L. Gonda, JD[1]

Published in conjunction with the National Council of Juvenile and Family Court Judges

  1. Introduction

Children and adult victims of violence and abuse are routinely called upon by the judicial system to be witnesses and relay their story to police, attorneys, advocates, and judges. This article examines the prevalence and potential motivations for why victims “lie” or recant their testimonies and provides recommended improvements to court practices.

Often the victims’ story changes over time; they might recant their original testimony; and when a victim who initially described abuse later withdraws the allegations, minimizes them, or expresses confusion about what happened; a common conclusion is that the victim lied. Truth, however, is very rarely the issue. In child abuse cases, it been reported that nearly 75% of sexual abuse victims initially deny abuse and that nearly 25% eventually recant their allegations.[2] Many reasons have been identified for the relatively high percentage of adult victims who fail to press charges, refuse to cooperate with prosecution, or do not pursue protection orders.

  1. Distrust of the system

Adult victims may choose to forgo the courts because of the perceived lack of effectiveness of the justice system itself: confusion at the procedures; lack of information provided to the victims about their cases; lack of support in meeting the demands of the system (e.g., transportation, time off work, and child care); frustration at the slow progress of the proceedings; concern about losing custody of any children; and fear that the abuser still has access to the victim while proceedings are pending.[3] Victims who report abuse to the court or police do so because they believe they will be safer. If that safety does not materialize, or if, in fact, the report and ensuing proceedings worsen the danger, the victim no longer has any motivation to pursue court‐based remedies, and a victim who encounters disbelief and skepticism (i.e., victim-blaming) when attempting to make a report will have no reason to report future abuse. A victim’s lack of belief in the justice system’s ability to provide safety should be of grave concern to all involved.

A child victim who has been placed in foster care or congregate care for several years may have learned how to “work” the system in order to survive in their current placement or seek better permanent placement options. The child’s original story of their abuse may change, future abuse may not be reported, and the severity of the abuse could be diminished depending on perceived benefits from the court. Older foster children, especially those with a history of multiple placements, have been known to develop a heightened distrust of the court system based on perceived indifferences or inaction by the court concerning their previous reports of abuse. The victims’ distrust of the system can diminish the accuracy of their testimony and even their willingness to provide testimony.

  1. Emotional motivations

Victims’ recantation of their testimony, especially adult victims, can be based on fears that are intuitive to outsiders: fear of retaliation, especially when abusers are frequently not incarcerated and still have access to the victim; economic hardship caused by the absence of the primary (and often sole) income‐earner; threats to get custody of the children by painting the victim as crazy or unstable; or even threats to the children themselves.[4] Others seem less intuitive: love, attachment based on a shared history, and hope that things could be better in the future. It may be difficult to understand this latter group of reasons – how can a person love someone who hurts and abuses them? – but studies show that they are cited by victims more frequently than fear and lost income.[5] Appeals by abusers still in contact with their victims (whether allowed or not) are usually not to the victims’ fear but to their sympathy – I miss you, I miss the kids, I miss our life together, we can’t let “them” come between us – and they invoke memories of happier times, promising to change.

Child victims are commonly asked to testify in presence of their abuser. Research suggests that loyalty to family members, or fear of their reaction to abuse allegations, may contribute to denials, recantations, and reluctance to disclose.[6] Court hearings can be a very traumatic experience for children and can elicit many adverse reactions that limit their testimony. Victims of sexual abuse often experience symptoms of Post-Traumatic Stress Disorder (PTSD) and children with PTSD often enter an “avoidance” phase, in which they deny abuse or recant because they cannot cope with the anxiety.[7] Furthermore, the child victim may be reluctant to cooperate with authority figures because they have experienced complex trauma resulting from abuse at the hands of a trusted adult.


  1. Cognitive impairments

A child’s lack of physical, cognitive and emotional development may make it difficult for the child to relate to or understand the [court] proceedings.[8] Legal professionals often phrase their questions in a complex manner or with legal terms such as “severance” of parental rights and “adjudication” of the matter. The nature of the proceedings can confuse the child victim and lead to ineffective testimony and minimize participation in court hearings.

The limitations of child witnesses in court may also be based on the degree of reliability unfairly placed upon them by the judicial system. During the mid-1980s, the McMartin, Fells Acres and Wee Care cases caused a public uproar over shocking claims of child abuse in daycare centers, claims which were later rebutted when many of the defendants were acquitted.[9] Despite the basic evidentiary presumption that all witnesses are presumed competent regardless of age, this wave of unsubstantiated child testimony had a damaging effect on the reliability of child witnesses.

  1. Conclusion and Solutions

Victims struggle to retell their stories of abuse and violence for a multitude of reasons. Some of the reasons discussed above, particularly those based on emotional attachment, may not be effectively addressed by the justice system. However, the justice system should consider improving court practice by first understanding the motivations behind the testimonies of children and adult victims and then by providing sufficient support and community services.

The judicial system benefits when children answer questions and can be evaluated by fact-finders, regardless of whether the child is a witness in criminal, delinquency or dependency court, or on occasion in divorce or other civil proceedings.[10] Courts should recognize the necessity of accurate testimony from child victims and their limitations as witnesses and, thereby, institute appropriate training and policy for all system stakeholders.

Courts can improve the system by allowing alternative means for child victims to testify. Courts can allow children to testify in judges’ chambers with counsel present; use video technology, such as CCTV, to record the child’s testimony; or temporarily exclude parents/guardians from the courtroom. A few courts have allowed a support person to accompany the child witness on the witness stand or in the courtroom to provide comfort and consistency.

As for adult victims, a coordinated community response can be a great support to victims making their way through the system. All justice system professionals should be trained in the dynamics of family violence; such as the implications of violence on parenting, whether in custody proceedings between parents or in the child dependency sphere, and the necessity of support for a battered parent.

Most importantly, the justice system needs to understand that a change to a victim’s statement, either child or adult, should not automatically be taken as an admission of falsehood, but as an invitation to explore what concerns need to be addressed to help ensure that the victim feels safe and supported.

The National Council of Juvenile and Family Court Judges (NCJFCJ) is invested in ensuring justice for those who come before the nation’s courts – and is committed to an open and honest dialogue about the dynamics of victimization within our justice system. For more information on the NCJFCJ’s Victim Series, visit http://www.ncjfcj.org/victim-series.

[1] Amanda Kay is a Program Attorney for Family Violence and Domestic Relations at the National Council of Juvenile and Family Court Judges and Ryan L. Gonda is a Site Manager for Juvenile Law at the National Council of Juvenile and Family Court Judges. Points of view expressed are those of the authors and do not necessarily represent the official position or policies of the National Council of Juvenile and Family Court Judges.

[2] Sorenson, T. & Snow, B. (1991). How children tell: The process of disclosure in child sex abuse. Child Welfare, 70(1), 3 -15.

[3] Jordan, C.E. 2004. Intimate partner violence and the justice system: an examination of the interface. Journal of Interpersonal Violence, 19(12), 1412‐34; Bennett, L., Goodman, L., & Dutton, M.A. (1999). Systemic obstacles to the criminal prosecution of a battering partner, a victim perspective. Journal of Interpersonal Violence, 14(7), 761‐72; Goodman, L., Bennett, L., & Dutton, M.A. (1999). Obstacles to victims’ cooperation with the criminal prosecution of their abusers: the role of social support. Violence and Victims, 14(4), 427‐44.

[4] Hare, S.C. 2006. What do battered women want? Victims’ opinions on prosecution. Violence and Victims, 21(5), 611‐28; Zoellner, L.A., Feeny, N.C., Alvarez, J., Watlington, C., O’Neill, M.L., Zager, R., & Foa, E.B. (2000). Factors associated with completion of the restraining order process in female victims of partner violence. Journal of Interpersonal Violence, 15(10), 1081‐99.

[5] Bonomi, A.E., Gangamma, R., Locke, C.R., Katafiasz, H., & Martin, D. (2011). “Meet me at the hill where we used to park”: interpersonal processes associated with victim recantation. Social Science & Medicine, 73, 1054‐61; Roberts, J.C., Wolfer, L., & Mele, M. 2008. Why victims of intimate partner violence withdraw protection orders. Journal of Family Violence, 23, 369‐75; Zoellner, 2000.

[6] Farrell, L. T. (1988). Factors that affect a victim’s self-disclosure in father-daughter incest, Child Welfare, 5, 463-468.

[7] Koverola, C,. & Foy, D. (1993) Post traumatic stress disorder symptomatology in sexually abused children: Implications for legal proceedings. Journal of Child Sexual Abuse, 2(4), 119 – 128.

[8] “Child-Friendly Courtrooms: Items for judicial consideration.” Supreme Court of Texas, Permanent Judicial Commission for Children, Youth, and Families.

[9] See Reinhold, Robert, “The Longest Trial – A Post-Mortem; Collapse of child-abuse case: So much agony for so little.” The New York Times, January 24, 1990; Goldberg, Carey, “Youths’ “Tainted” Testimony is Barred in Day Care Retrial” The New York Times, June 13, 1998. See State v. Buckey, Superior Court, Los Angeles County, California, #A750900 (1990).

[10] Myrna S. Raeder, Distrusting young children who allege sexual abuse: Why stereotypes don’t die and ways to facilitate child testimony 16 Widener L. Review 239, 242 (2010).

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