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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Posted in Juvenile Court, Juveniles, North Carolina, Rehabilitation | 2 Comments

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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Posted in Child Welfare, Clinical Legal Education, Delinquency, Juveniles, Media, Poverty, Race, Class, Ethnicity, Uncategorized | 3 Comments

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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Posted in Interrogation, Juveniles, State Laws, U.S. Supreme Court | 1 Comment

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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Posted in Education, Guest Blogger, School to Prison Pipeline, State Laws | 2 Comments

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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Posted in Advocacy, Books, Clinical Legal Education, Environmental Injustice, Law Schools, Law Students | 1 Comment

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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Posted in Adult Court, Juvenile Court, Legal Scholarship, North Carolina, State Laws | 3 Comments

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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The Poor are Still Losing: Gideon’s Empty Promise

pd in action graphicThis past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, “Poor People Lose: Gideon and the Critique of Rights,” in the Yale Law Journal’s most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.

Professor Butler makes a strong case for the idea that the focus on rights discourse — the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial — ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants’ rights is much different than protecting defendants:  “What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less.”  Providing a lawyer — especially one who is underpaid, overworked, and under-resourced — does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality — or lack thereof — of the indigent defense system.

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don’t discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to “crash the justice system.”  Butler has called for “racially based” jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I’m not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it’s clear that nothing should be discounted, for the situation is dire.

With all of this percolating in my mind, I happened to watch the new HBO documentary, “Gideon’s Army,” which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs — two women and one man, all African-American — were dedicated and driven, although one understandably walks away from the job when she can’t pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending — an acquittal after a jury trial, which made me — a total sap — cry as the PD was hugged by her (young black male) client and his (low-income) single mother.

But as the credits rolled, I didn’t feel much like recruiting baby PDs for this “army” or donating to the organization that inspired the documentary — the Southern Public Defender Training Center (SPDTC) (now called “Gideon’s Promise”), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film’s explicit message is that there’s a “battle” going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there’s no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for…what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is “hell,”  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action — such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let’s be real — how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.

Don’t get me wrong — I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer — the RIGHT to a lawyer — helps dismantle the incarceral state.

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the “right” side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, “I don’t see how you can do this job for any period of time and not love it.  Either this is your cause or this ain’t.”  He’s the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it’s more of a marathon than a war.  A marathon with no end in sight.

Your thoughts?  Please share in the comments.

This post also appeared at PrawfsBlawg.

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Posted in Criminal /Juvenile Defense, Media, Poverty, Race, Class, Ethnicity, Right to Counsel | 8 Comments

Join Me at PrawfsBlawg This Month!

4e1b0173829235e06c23062b3b6afa63-1Dan Markel (Florida State University Law School) has been asking me for years to guest blog on the always-interesting law professor blog, PrawfsBlawg.  Knowing that I’ll never have the time until I make the time, I finally agreed to join in the conversation this month.  If you’re not familiar with the blog and have an interest in a variety of legal issues, please check it out.

My first post is inspired by my 2012 article on the concept of “delinquent by reason of poverty.”  Here’s how it begins:

Many thanks to Dan et al. for welcoming me into the fold.  By way of introduction, I’ve had a somewhat unorthodox route to legal academia, having practiced as a public defender for a decade (on both the state and federal levels), then starting on the clinical track here at the University of North Carolina at Chapel Hill in 2004, only to switch to tenure track and (gratefully) receive tenure last year.  I’m currently serving as interim director of clinical programs, adding a variety of administrative duties to my plate.  As a result, my perspectives on legal education, scholarship, and related matters may be different than some.  I hope to touch on these topics during the month, but mostly I’ll be exploring the issues that I’m particularly passionate about — juvenile justice policy and reform, indigent criminal defense, and the criminalization of poverty.  About a year ago I started my own blog focusing on these areas, which you may check out here.

For now, I’ll introduce a question that I’ve been struggling with ever since I first started practicing in juvenile delinquency court nearly ten years ago — why is it that most of the children in the juvenile justice system are poor?  Why are they nearly all from families that are living at or below the poverty level?  As a parent of adolescents, I know that it is surely not because kids from low-income families are the only ones who violate the law, as my own (relatively well-behaved) daughters have committed many of the same types of very minor assaults, larcenies, and disorderly conduct offenses that have led to my young clients being criminally charged, ending up with delinquency records and (sometimes) detained.  I also have come to conclude, based both on my own practice experiences as well as longitudinal studies of children exposed to juvenile court, that when kids are processed through the system, the impact is not benign — even when the disposition is arguably beneficial.  Instead, the research shows that these children have higher rates of recidivism and are stigmatized in the process.  In addition, potential negative consequences of juvenile delinquency adjudications may be seen in such areas as housing, employment, immigration and higher education as well as enhanced penalties for future offenses.

You may read the rest here.

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Posted in Blogosphere, Delinquency, Juveniles, Legal Scholarship, Poverty, Race, Class, Ethnicity | 1 Comment

Indiana Juvenile Justice Blog

cropped-courtroom-art3Earlier this week I received an email from Kaarin Lueck, public defender in Richmond, Indiana, and nationally-known expert in juvenile delinquency and criminal defense.  She very kindly shared the following:

Prof. Birckhead:

I felt compelled to reach out to thank you for inspiring me to start a juvenile delinquency blog for Indiana.  There really is so little nationally available to keep folks up to speed on developments in juvenile delinquency law, and certainly nothing for Indiana.  It has been a fun adventure and it is three months old today.  It is already being followed by judges, public defenders, prosecutors, legislators, advocates, and regular folks.  My blog post for tomorrow will feature your series on delinquency and poverty.

I hope we meet along the way, perhaps at a National Juvenile Defender Center Leadership Summit.

Kaarin Lueck

As the first year anniversary of this Juvenile Justice Blog approaches, I was particularly heartened to receive this message, and I encourage everyone to check out Kaarin’s blog, Indiana Juvenile Justice Blog.  It’s chock full of great information that is relevant not only for those who practice in Indiana but for anyone who cares about children and the courts.  Kaarin already has put up over 70 posts (!) and I’m honored that one of them focuses on my work on the disproportionate representation of low-income children in the delinquency system.  You may follow the blog’s posts as a subscriber, via Twitter and Facebook.

I’m hoping that this is the beginning of a national trend!  Good luck to Kaarin Lueck and thanks in advance for helping to spread the word about these critically-important issues.

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