Engagement of Victims in Juvenile and Family Courts

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By Shawn C. Marsh, Ph.D. and Kelly Ranasinghe, J.D., C.W.L.S.

According to the U.S. Department of Health and Human Services, more than three million children were reported to authorities for abuse or neglect in 2012, with approximately two million of those cases receiving a response by Child Protective Services. Further, the U.S. Bureau of Justice Assistance reports that in 2013 U.S. residents age 12 or older experienced an estimated 6.1 million violent victimizations. Although it is not clear how many of these victims came in direct contact with juvenile and family courts, it is likely a substantial portion experience at least some contact with the justice system. Before appropriate services for victims can be coordinated by justice system professionals, it is necessary to identify who is a victim and to what degree has the experience of victimization impacted their functioning across physiological, psychological and social domains. Although identification and engagement is seemingly an easy task, in reality, it is more complex than many imagine. From a public health perspective, however, the payoff is substantial – and there are numerous ways to help victims. For example, in cases where victims develop traumatic stress reactions, there are myriad evidence-based treatments (e.g., trauma-focused cognitive behavioral therapy) that can promote healing and limit future victimization. The National Council of Juvenile and Family Court Judges (NCJFCJ) presents common challenges to appropriate engagement of victims in the justice system.

Challenge #1: Victims neither seen nor heard. Victims of crimes or other traumatic experiences might not come to the attention of the justice system because they do not come forward to authorities. A victim may also not have the capacity or ability to come forward (e.g., in the case of child experiencing abuse or neglect, intimidation in cases of domestic violence, etc.). Further, some victims might not know that the behavior or event they are subjected to is considered a crime, or victims in rural environments may find it difficult to report crime or seek help due to physical isolation. These realities speak to the importance of strong education for judges and allied court professionals on the signs of trauma and the importance of screening protocols.

Challenge #2: Victims seen but not heard. Even when a traumatic or adverse past is revealed or discovered, victims still face challenges. Ultimately, knowing one has a history of victimization is a necessary but not sufficient step in offering and coordinating indicated support. This is moving beyond understanding the symptomatology of victims; it also is considering the nuances of how experiences might impact the presentation of victims and giving voice to the victim about what they want and need. Asking “What happened to you – and how can we help?” is critical to ensuring victims are truly heard and provided maximum opportunity for self-determination.

Challenge #3: Victims resist or inconsistently engage in services. When victims are identified and indicate a desire for help, matching them with appropriate services can be difficult. This is not surprising. The court system was originally structured to function as an institution devoted to maintaining social order by providing dispute resolution mechanisms. In addition, many areas simply do not have the capacity to handle the many people who are referred to services by the court. Further, one remarkably persistent myth is that victims are automatically inclined to pursue treatment at all. It is important to remember that an arrest, the intervention of the court or the presence of a victim advocate does not alleviate all (or any) of the victim’s socio-economic and even psychological pressures to maintain the status quo. Many new professionals to the criminal justice field are struck by the initial reaction of a victim-client who they are there to help. In many instances, a victim’s reaction to intervention may range from dismissal\minimization to outright hostility and aggressiveness.

Challenge #4: Victims as offenders. The reality is that there is often a blurred line regarding victimization when dealing with offenders in court. Studies suggest, for example, that upwards of 90% of youth involved in the deep end of the juvenile justice system have some history of trauma or adverse events, with many demonstrating symptoms of Post Traumatic Stress Disorder. A core difficulty when working with these trauma victims who are also juvenile offenders are the diametrically different ways the court approaches treatment. For the majority of offenders in the juvenile justice system, an integral therapeutic goal of their probation is acknowledging the harm that they have inflicted upon others and taking responsibility for their actions. On the other hand, an integral part of trauma-focused treatment is ensuring the victim acknowledges her own trauma and victimization and understanding that the violence, abuse or trauma was not her fault. Accordingly, many courts struggle with victims that also can be offenders. Sometimes there is a reluctance to view victim-offenders as “injured” versus victim or offender. Indeed, this can be a difficult balance to strike, but is seen as critical to helping modify future offending behavior or being placed at risk for additional victimization.

Few will argue there are a substantial number of victims that likely come in contact with juvenile and family courts. Identification of those victims presents challenges, and even when identified, there are myriad considerations in assessing the degree to which services are needed and desired. Even when victims agree to participate in support, there are further challenges to matching services to need, assisting victims to remain engaged in services, and more holistically viewing injured parties. Trauma-informed courts, however, are a critical component in the healing community, and awareness of the dynamic and challenges outlined here are important to responding appropriately to victims – whether or not they develop traumatic stress reactions. To that end, the position of the NCJFCJ in regards to treatment of victims, as adopted by the Board of Directors via resolution in July 2012 as part of the Project ONE Key Principles, states:

All children, youth, families and communities deserve a justice system that promotes the safety and empowerment of victims. The need for information, efficiency and compliance must be weighed against the need for confidentiality. To empower victims, courts and other stakeholders should respect victim autonomy related to service access and process, as well as provide all relief allowable under law while meeting a broad array of safety, socioeconomic and community restoration needs. In domestic violence cases, victim autonomy related to decisions to leave a relationship or reunify should be emphasized whenever possible. Courts should treat the safety of children and adult victims of domestic violence with equal regard, and practice should demonstrate the understanding that the best interests, safety and resiliency of children are inextricably linked to the health, safety and welfare of their battered parent.

This post was published in conjunction with the National Council of Juvenile and Family Court Judges.

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The Value of Law Students to Juvenile Court Practice

imageAs I approach the end of my 11th year of teaching in a clinical program at the University of North Carolina School of Law, I have been thinking a lot about the value that students add to the dynamics of the courtroom on any given day, as well as what they contribute to the juvenile justice system as a whole. The same, of course, can be said about the contributions that students in other graduate disciplines, such as social work and public policy, offer to their field placements and other types of student internships.

Recently I watched as one of my third-year students negotiated the terms of an admission with a prosecutor in a local juvenile delinquency court. The student, who I’ll call Carly, insisted the state did not have enough evidence to prove that her 14-year-old client had committed the crimes of breaking and entering or larceny. During the previous week, she had visited the scene of the offense, interviewed witnesses and researched the law. As a result, she knew that the police report was inaccurate — that one of the witnesses could not positively identify her client as the person seen leaving the empty house and that another witness had no intention of appearing in court. The most the state could prove, by Carly’s analysis, was that her client had conspired with another young person to break in, but that he had neither entered the premises nor possessed the stolen items — evidence consistent with a minor misdemeanor rather than a serious felony.

I stood several yards away while Carly made her pitch to the prosecutor, and I recognized the veteran lawyer’s facial expression: a mixture of bemusement and annoyance. Then Carly opened her case file and took out the police report, which was marked up and highlighted, and she methodically explained why the evidence was insufficient and why she had advised her client to fight the charges at an adjudicatory hearing. The investigating police officer in the case sat between them, listening closely as Carly argued that the elements of the offenses could not be proven beyond a reasonable doubt. When she had finished, the prosecutor slowly shook his head as he told her, “You are exhausting me.”

Moments later the case was called, and we hesitantly approached the front of the courtroom with the young client and his mother. “Do we have a deal?” I asked Carly. “I’m not sure,” she answered. “The prosecutor hasn’t told me his decision.” We soon learned that Carly’s offer had been accepted and that her client would admit to a single misdemeanor, a charge that was consistent with the evidence and acceptable to the teenager. In the context of juvenile defense practice, it was a win.

In 1899, when the first juvenile court in the United States was established in Chicago, the proceedings were closed to those who were not parties to the case, ostensibly for the purpose of protecting children’s privacy rights. In the decades that followed, as delinquency court sentences became more punitive and due process protections were ignored, there was a movement to open the courtroom to allow the public to observe and serve as witness to the proceedings. Yet the reality today is that even in states like North Carolina — where juvenile courtrooms remain open — outside observers are rarely present; instead, there are overworked defense attorneys, worn down by the systemic pressure to move cases, bargain away their clients’ rights and not ruffle the feathers of prosecutors or judges, who often determine case assignments.

This has created a system in which students practicing under the supervision of law school clinical professors provide the only scrutiny of these forums. They have been taught the meaning of burden of proof and inadmissible hearsay. They appreciate the necessity of rigorous advocacy by defense counsel, and they hold these principles to be essential to establishing an even playing field for their clients. Their faith that the other actors in the system — prosecutors, judges and police officers — will ultimately do the right thing, rather than being naïve and misplaced, is actually infectious. Their lack of cynicism helps ensure the integrity of the proceedings and re-inspires jaded lawyers like me, just as students in other disciplines infuse vigor into deliberations in their work settings and bring tenacity to the mission. This is why, after a decade of juvenile court practice, I am more than willing to continue — as long as I have a law student by my side.

This post was originally published by the Juvenile Justice Information Exchange.

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

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

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

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

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

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

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

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

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

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

 

 

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Five Questions for Prof. Tamar Birckhead

Prof. Birckhead with UNC Law clinic students.

Prof. Birckhead with UNC Law clinic students.

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

 

 

 

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

1. What first drew you to clinical legal education?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here is the abstract:

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

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

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

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

marcia morey

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

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

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

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

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

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

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

This essay originally appeared on the Juvenile Justice Information Exchange.

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

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

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

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

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

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

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

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

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

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

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

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

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

*John Bowlby, child development psychologist

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Let’s Change How Police Question Young Suspects

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

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

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

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

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

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

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

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

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

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

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

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Not So Well-Regulated Militias in Schools

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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