Why do Victims “Lie”?

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

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

  1. Introduction

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

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

  1. Distrust of the system

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

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

  1. Emotional motivations

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

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


  1. Cognitive impairments

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

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

  1. Conclusion and Solutions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Charged as an Adult because an Adult When Charged

Juvenile-Justice-System-Building_SmallBy Kevin Lapp, Associate Professor of Law, Loyola Law School-Los Angeles

A curious case from the Oklahoma Court of Criminal Appeals decided last month held that a juvenile was properly tried and sentenced as an adult for a crime committed at age 15. While processing juveniles in criminal court is not, by itself, all that curious, the reason that this particular case was in criminal court was not based on the seriousness of the offense or the Defendant’s prior criminal history. It was because the prosecution did not filed the charges against the Defendant until he was 25 years old.

In T.G.L. v. Oklahoma, the court denied the Defendant’s motion to be certified as a juvenile for sentencing. The reasoning behind the decision is a simple statutory two-step. In Oklahoma, juvenile proceedings can only be filed before a person reaches 18, within one year of the 18th birthday if the underlying act would constitute a felony if committed by an adult, or within 6 months of the 18th birthday if the underlying act would constitute a misdemeanor if committed by an adult. Title 10A Okl. Stat. 2-2-102(B)(3). Since the Defendant was 25 when charged, the statute did not permit juvenile proceedings. Indeed, it would not permit any juvenile proceedings filed against anyone over 19, even if their alleged offense was committed when they were 10 or 12 or 14.

Similarly, the Court held that Oklahoma’s Youthful Offender Act determines eligibility for youthful offender treatment (which offers reduced punishment and enhanced protections) based on age at charging, as opposed to age at the time of the alleged offense. As a result, anyone over 19 at the time of charging cannot be treated as a youthful offender. Title 10A Okl. Stat. 2-5-202. Since the Defendant was 25 when he was charged, the court held that the statute did not permit treatment as a Youthful Offender.

The only option, the court held, was to proceed against him as an adult. In the words of the court, “the provisions for juveniles and the Youthful Offender Act were created for the benefit of children and the opportunities for treatment therein are statutorily limited to those under nineteen years of age.”

There are a host of problems to this restrictive approach. Most importantly, it deprives young people of protections specifically designed for youth who offend for an arbitrary reason. It also gives prosecutors who already hold a tremendous amount of discretionary power with respect to charging decisions a reason to delay filing charges. Prosecutors in Oklahoma can avoid juvenile court jurisdiction, or evade the youthful offender statute, by simply waiting until the Defendant’s 19th birthday to file a case. In fact, because of the way Oklahoma’s Youthful Offender Act is written, its protections can become available at even younger ages.

I’m not convinced that the Oklahoma legislature intended this kind of result when it drafted its jurisdictional provisions. And I’m hoping that this is one of those cases where a court confronts poorly drafted statutory language and interprets it literally, creating such non-sensical and perverse binding authority that the legislature is compelled to amend the law.

The solution, of course, is simple. Instead of having a statute that restricts juvenile court jurisdiction based on the age of the Respondent at the time of filing, it should be tied to the age of the Respondent at the time of the alleged offense. Likewise, Oklahoma’s Youthful Offender Act should permit treatment as a Youthful Offender based on their age at the time of the alleged offense. Such an approach would bring Oklahoma in line with the vast majority of states that use age at the time of the alleged offense to determine juvenile court jurisdiction and eligibility for protective regimes like youthful offender status. And it would prevent young people from being judged and punished as adults for their youthful behavior, and being completely denied access to protective and rehabilitative provisions, simply because of when the government filed charges against them.

James Wirth, an Oklahoma attorney, has an excellent write up on the case here.


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Erasing Adolescence

Clear HistoryBy Kevin Lapp, Associate Professor, Loyola Law School|Los Angeles

One of the urban legends of childhood is that individuals get a clean slate when they turn 18. Of course, like many urban legends, it’s not entirely false. Policies linked to a clean slate include a separate juvenile court that offers enhanced confidentiality, including sealed records. The unsuccessful litigation by a blogger and the St. Louis Post-Dispatch to force the disclosure of Michael Brown’s juvenile records (if there were any) in the wake of his shooting by Ferguson Police Officer Darren Wilson demonstrated that, even in a world where criminal records are increasingly available to anyone, we still strive to protect individuals from the disclosure of their youthful mistakes.

Of course, it was never true in the past that individuals got a clean slate at 18, and is decidedly not true today. I cataloged all the many ways that law enforcement and the criminal justice system database delinquency here (discussing policies like juvenile sex offender registration, gang databases, DNA collection from juveniles, and schools as informants for law enforcement). Moreover, because nearly everyone carries pocket-sized cameras and video-recorders around, adolescence will more publicly haunt the young people of today than any other prior group. But it’s not just recorded behavior that lives on. Thanks to Facebook and other social media, young people say cringe-inducing things that either seemed like a good or funny thing to say at the time, or that don’t reflect their beliefs as they mature and learn more about the world.

To minimize the downside of recorded adolescence, California passed a law (SB 568) in late 2013 that came to be called the online “Eraser Button.” The law requires operators of websites, online services, or apps to permit a minor to remove, or to request and obtain removal of, content or information posted online. In short, it allows those under 18 to scrub the internet of embarrassing videos and pictures of themselves, or unsavory posts.

Some think there’s no need for such a law, or that it is pointless. It is true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet once it is posted there by someone. Photos spread virally, and the wayback machine has already saved, according to its website, 456 billion web pages. But I’m less interested in the technical efficacy of the eraser button (though it can’t be ignored when considering such policies). Instead, I’m interested in whether the ability to erase adolescence in a world devoted to record-keeping is good or even necessary.

I think it most definitely is. As I said above, it’s both an old idea to offer youth a fresh start as they enter adulthood, unburdened by the mistakes of their youth, and a pressing issue today. In fact, the Court of Justice of the European Union issued a ruling in 2014 that, under certain conditions, provides individuals with a right to have search engines like Google remove links with personal information about them. It’s been dubbed the right to be forgotten.

I’m no privacy scholar, but a right to be forgotten strikes me as facing a steeply uphill road in the United States for a number of reasons. But as the Supreme Court has made abundantly clear in recent criminal cases, children are different, and the law must account for their differences. There is nothing about cases like Roper and Graham and Miller that necessarily limit them to criminal law and procedure. The long familiar and important notion that we should regulate the lives of young people more protectively than we regulate the lives of adults supports the notion that youth have a stronger claim to the right to be forgotten than adults. But it’s more than the historical commitment to greater (but not absolute) confidentiality for youthful mistakes. I sense there’s a broad recognition that the super-charged informational accountability imposed by the internet exceeds the appropriate amount of accountability for young people, even for things that people willingly post to the internet themselves (thus, the Eraser Button law in California).

I look forward to seeing whether laws similar to California’s Eraser Button are passed in other jurisdictions, and whether courts will be receptive to granting individuals the right to have search engines like Google remove links to information about their adolescent selves.

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Juvenile Defense: Small Steps can have Ripple Effects, One Case at a Time

imageRecently I was in juvenile delinquency court in North Carolina with one of my clients, whom I’ll call Alexis. The 13-year-old African-American girl had just heard from the judge that she would continue to be detained in a juvenile jail as she awaited placement in a residential facility for treatment of her mental illness. Alexis had originally been charged months earlier with a minor misdemeanor resulting from an incident at school. Since then, she had repeatedly left home for days at a time and stopped taking her medication, necessitating — the judge, prosecutor and probation officer all believed — some form of detention. From a juvenile defense perspective, Alexis admittedly had few options, as her mother did not have the financial means to keep her secure and safe at home while we waited for a bed to open up in the treatment facility.

Alexis had already been held for nearly six weeks, and she was understandably upset to learn that she would continue to be detained. Her eyes were filling with tears, and she knew that she couldn’t contain her feelings of frustration in this very public forum.

Alexis stood up from her chair at counsel table and said loudly that she wanted to leave the courtroom and go back to the cell block to calm down. The judge seemed to understand and nodded her head.

Alexis was not in handcuffs, but her ankles were shackled together with leg irons. Although North Carolina law requires a judge to find that physical restraints in the courtroom are “reasonably necessary to maintain order, prevent the juvenile’s escape, or provide for the safety of the courtroom,” in many of North Carolina’s counties leg irons are routinely placed on juveniles arriving for court appearances from a detention center without judicial findings.

A review by The Center on Children and Families (CCF) at the University of Florida Levin College of Law indicates that juvenile courts in 28 states regularly shackle detained juveniles during court appearances. CCF’s observation study of Florida juvenile courts has found that most juveniles, regardless of the charge or the hearing result, were compliant in the courtroom and that courtroom behavior was no different regardless of whether they were shackled.

As Alexis walked from the middle of the courtroom to the door leading back to the cells, the court officer began to place his hands on her.

“Don’t touch me,” she said.

The officer did not reply and firmly put his hands on her arm and her shoulder.

“Don’t touch me,” she said again, backing away from him.

Stunned, I watched as the officer then put his arm around Alexis’ neck in a tight grip and pulled her — a small, thin girl — out of sight and toward her cell.

He pulled her like she was a dog.

He pulled her like she was nothing.

After they left the courtroom, the rest of us sat in silence, hearing her cries on the other side of the metal door.

I have since learned that the court officer was not disciplined for his actions. On the contrary, he took out a criminal complaint against 13-year-old Alexis for resisting, delaying or obstructing an officer in the midst of his duties, a criminal offense under North Carolina law. The matter is pending, and I’m hoping that a delinquency complaint does not ultimately issue against Alexis.

This one episode in juvenile court, a single snapshot of the often heartbreaking scenes that occur there, raises more questions than it clarifies. Why was Alexis shackled when there was no evidence that it was “reasonably necessary” to maintain order or prevent her escape? Why had she been confined in a punitive setting for weeks at a time when she desperately needed mental-health treatment in a therapeutic setting? If Alexis had been white and middle class, would her treatment by the court system have been different? For those of us who work with youth, the myriad of challenges that our clients face can become overwhelming, even to us.

I try to learn from such incidents, however, and renew my commitment to rigorous advocacy. The next time Alexis or another client is brought to the courthouse from the detention center, I will insist that all shackles, including leg irons, be removed before she enters the courtroom and that the judge make written findings if my request is denied. This one small shift in my practice has parallels outside the courtroom as well, as a renewed commitment to advocacy by those who work with youth in other settings can also make a difference. Such a shift may not bring about systemic change, but it could have a ripple effect, which is often all that any of us can accomplish.

This essay was originally published on Youth Today.

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Juvenile Sentencing Schemes after Miller v. Alabama


By John Mills and Jennifer Breen

The Supreme Court’s 2012 decision in Miller v. Alabama continues to create ripple effects throughout the nation’s legal system, several years after it was decided. The narrow holding of Miller was that the Eighth Amendment requires sentencers to individually consider the impact of youth and exercise discretion before sentencing juveniles to life without parole.  Last week, the Supreme Court, in Montgomery v. Louisiana, agreed to review whether Miller’s retroactivity in state court presents a federal question and whether Miller should be applied retroactively to individuals who were previously sentenced to mandatory life without parole for crimes they committed as juveniles. A number of states, including Illinois, Iowa, Massachusetts, Mississippi, Nebraska, New Hampshire, South Carolina, Texas, and Wyoming, have applied the federal standard and held that Miller should apply retroactively.  Some states, including Michigan and, arguably, Louisiana, have addressed Miller’s retroactivity purely as a matter of state law.  The Court’s decision in Montgomery will likely settle both retroactivity questions.

But Miller’s reach is already extending beyond mandatory life without parole sentences for juveniles, as both courts and legislatures begin to implement its broad commands. As we have recently argued, Miller requires courts to consider the basic fact that they are dealing with a child.  Because Miller addressed sentencing, its narrowest holding applies only to sentencing.

But the import of Miller is much broader.  Miller mandates the exercise of discretion in our criminal justice system, at least at sentencing, to act on the common sense notion that “every parent knows”: children have unique limitations and strengths, including a unique capacity for rehabilitation.  We know that children are not the same as adults. We know that children lack many of the cognitive skills they need to understand the decisions they make—including those involved in court proceedings themselves—simply because their brains haven’t yet gotten to that stage of development. We know that children live in environments not of their own choosing and that those home environments run the spectrum from supportive to abusive, but that children have no control over any of them. We know that cycling kids through the criminal justice system has a dramatic and independently harmful effect on kids, most of whose behavior could be better addressed in a non-criminal context. We know that children can be rehabilitated.

Until recently, however, state policies have ignored this growing body of knowledge  (as well as plain old common sense) and have treated children accused of having committed a crime as though they were adults in smaller clothes. There were many reasons for the increasing willingness of states to pretend that children are adults. The now discredited “Superpredator” myth—forcefully advanced by political scientist John DiIulio—played a major role. While the theory has been discredited, the policies it spurred remain in place. Once in place, policies are sticky things and it can be hard for state legislatures to pursue policies that seem “soft” on crime, even when the “evidence” for the policy is now accepted to be the junk social science it was.

Now, however, the winds seem to be shifting as more and more states pursue those necessary policy changes that would recognize the fundamental difference—both Constitutionally and biologically—between a fourteen-year-old and a forty-four-year-old defendant. Only a small minority of states exercise no discretion in charging and sentencing children.  These outlier states run afoul of Miller’s mandate and, therefore, require reform.

Stakeholders increasingly agree that the principles underlying Miller require broad changes in how we go about treating our children as they move through the criminal justice system. Nevada and Illinois are considering banning life without parole sentences for juveniles, Connecticut is contemplating major revisions to its juvenile justice system like programs providing for a “second look” at the sentences imposed on juveniles, and Iowa recently struck down all mandatory minimums. Additionally, new trial defense guidelines were just released for attorneys representing children facing possible life sentences. The Florida State Supreme Court just issued several rulings that highlight the distinct needs of juveniles in the criminal justice system. The decisions mandate resentencing in hundreds of cases where defendants were given extreme sentences for crimes they committed as juveniles.

More importantly, unlike the initial wave of policy changes that treated kids like adults, there are many sound reasons for treating children as such in our justice system. One of those reasons, however, is certainly the Supreme Court’s decision in Miller. That decision made clear that as far as the Constitution is concerned, children have a right to be treated like children and that we violate those rights when we pretend they are anything else.

But we believe that is a bare minimum interpretation of Miller and that complying with the mandate of Miller—and common sense—requires courts to treat children as children in every aspect of their interaction with the criminal justice system. Miller focuses on sentencing, but what else does its logic require? States are beginning to answer that question for themselves and we believe—and hope—we are just beginning to see the full impact of Miller.

John Mills is a principal attorney at The Phillips Black Project. 

Jennifer Breen studies law at Cornell Law School

The authors’ recently published law review article, upon which this post is based, Mandating Discretion: Juvenile Sentencing Schemes after Miller v. Alabama, is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2579947

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Robbed of Childhood and Chances: Ferguson and Beyond

quinnmBy Mae Quinn, Professor of Law, Washington University in St. Louis

When I was a teen I fought viciously with my sister, hung out in places I should not have been, and walked the streets with my friends. A white girl growing up in a working-class neighborhood where kids were allowed to be kids, I was never stopped, arrested or prosecuted for any of these things. I certainly was not pushed around by police, Tased with stun guns, or bitten by police dogs.

And despite being raised in a household that struggled under economic and other hardships, I became the first in my family to earn a university degree. Further guided by mentors and supportive adults who helped me along the way, I went on to law school. Today, against many odds, I am a law professor in St. Louis, where I run a law clinic that provides free legal services to community youth.

But I can tell you that the experiences of the kids we serve are a far cry from my own.

In fact, the U.S. Department of Justice did just that — although most would not know it from recent news accounts.

This month, the press has widely covered DOJ’s investigation of Ferguson government: how systemic practices of both law enforcement and judicial officials ignore constitutional standards, punish poverty and inhumanely discriminate against black residents — all with a view toward financial gain.

Headlines have been silent, however, about one particularly powerful message in the DOJ’s report — and as a result have overlooked one particularly impacted and vulnerable population: the children of the St. Louis region.

Page one of DOJ’s report cites 42 U.S.C. 14141 as one source of its legal authority — under which it has threatened lawsuit if things don’t change. This statute protects the constitutional rights of juveniles.

From there the report recounts in horrific detail the life-altering injustices suffered by children in Ferguson — many guilty of doing nothing more than I did when I was a teenager.

It describes how Ferguson police officers in school halls respond to youthful indiscretions like fights and back-talking with force frequently followed by arrest and formal prosecution. In one especially hair-raising account, where a 14-year-old middle schooler got into an argument with a classmate, Ferguson police intervened to Tase the youth with a stun gun — sending shocking electrical current into the child’s body. Then the child faced removal from school for 180 days.

DOJ also documented 14 instances of police dogs deployed to attack citizens. In each, the suspect was black. In at least two they were just children. One of these involved police unleashing a dog on a 14-year-old child hanging out in an abandoned building, because, according to the officer, he would not show his hands.

Officers also use the municipality’s expansive — and largely unconstitutional — ordinance code to rack up cases, fines and fees for the locality. For instance, DOJ documented countless instances of charges like “gathering in a group for purposes of committing illegal activity” or “manner of walking in the street” being used against young people for the most ordinary adolescent behaviors.

Similarly, it uncovered local “ped check” practices used against youth of color. Frequently these warrantless stops led to prosecution for the charge of “failure to comply” for not providing identification or answering police questions, even though the Constitution largely protects such silence.

If as a child I had to endure daily traumas at the hands of the government officials, including threats of stops, arrests, stun guns and dog attacks — I can’t imagine retaining my focus on the future. And I surely would not have developed the same faith in our systems of justice that led me to fight so hard to become a lawyer.

Instead of helpful mentors to guide me I was met with school suspension, court fines and arrest warrants for childish activity — warrants that would have prevented me from getting my first job or first apartment — I may have given up on getting ahead.

Factor into the odds the many other layers of structural inequality suffered by youth of color in this country, I am fairly certain I would not be where I am today.

The DOJ’s report is titled “Investigation of the Ferguson Police Department.” But it calls for us to change far more than Ferguson. We should use this as an opportunity to interrogate our own lives — to acknowledge the ways in which so many of us have enjoyed invisible privilege, including something as basic as the right to childhood.

From there we must demand just, fair and compassionate treatment for all youth. Because as the DOJ’s report so powerfully demonstrates, too many kids of color — unnoticed by this week’s news about Ferguson and beyond — are robbed of their innocence by inhumane police practices and handed reduced life chances simply because of the color of their skin.

Mae C. Quinn is a professor of law at Washington University in St. Louis, where she runs the Juvenile Law and Justice Clinic. She grew up in Staten Island, N.Y. 

This essay was originally published in the St. Louis Post-Dispatch.

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Youth and Interrogation

kid questioned by policeBy Kevin Lapp, Associate Professor of Law, Loyola Law School, Los Angeles

Advocates, courts, and policymakers across the nation are considering how far the Supreme Court’s “children are different in a way that matters” criminal justice jurisprudence should extend. One of those Supreme Court cases was J.D.B., which held that a suspect’s age is relevant to determining whether an individual is in custody for purposes of Miranda. That is so even though the custody analysis is an objective inquiry. So long as the youth’s age was known or would have been objectively apparent to a reasonable officer, his age (and the developmental vulnerabilities that accompany it) must be considered.  

Just last month, a California Court of Appeal held that the same applies when deciding whether a juvenile has made an unequivocal request for an attorney after waiving Miranda. The case involved a 13-year-old eighth grader who was suspected in a shooting. Thirty pages into the transcript of the videotaped custodial interrogation, and after being shown a surveillance video of the shooting, the 13 year-old said “Could I have an attorney? Because that’s not me.” The police said no and continued the interrogation. Relying on J.D.B., the court held that the police should have considered the suspect’s age in deciding whether that statement was an unequivocal request for an attorney. Moreover, it found that the youth’s lack of maturity and sophistication were objectively apparent to a reasonable officer, and that the statement by the 13 year-old was an unequivocal request for an attorney, as opposed to a mere inquiry.

This seems right to me. While it’s true that it may be hard for police to decide whether the youth they are interrogating feel free to leave, or whether they are unambiguously and unequivocally requesting an attorney such that the interrogating must immediately end, the point of this recent juvenile jurisprudence is that law enforcement must pause when confronting youth. If they’re unsure whether their presence and training are overbearing the young person, the best result would be to warn them of their Miranda rights and respect their attempts to invoke their constitutional rights.  

The case was argued and briefed by staff and students at Loyola Law School, Los Angeles’s amazing Center for Juvenile Law and Policy



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Posted in Guest Blogger, Interrogation, Juveniles, Law Schools, U.S. Supreme Court, Uncategorized | Comments Off on Youth and Interrogation

Florida Supreme Court Throws Out Life Sentences for Juveniles

03lifers_1841The Florida State Supreme Court unanimously ruled on March 19, 2015, that all of Florida’s juveniles convicted of homicide who received automatic sentences of life in prison must be resentenced under a state law passed in 2014.

The long-awaited ruling answers the question of whether the United States Supreme Court’s 2012 decision in Miller v. Alabama, which effectively banned automatic life sentences for juveniles convicted of homicide, applies retroactively in the state of Florida. An estimated 250 Florida prisoners, 17 of them from Lee and Collier Counties, are serving life sentences for murders committed before they turned 18.

Under Florida’s 2014 law, passed to conform with Miller, only juveniles who committed homicides after July 2014 were subject to a revised sentencing structure, which required a judge to consider several factors before determining a prison term. For about 20 years before the law’s passage, Florida mandated a life sentence for juveniles convicted of first-degree murder. After the law passed, Florida trial and appeal courts have grappled with whether juveniles who killed before July 2014 and received automatic life sentences should receive the same consideration. The state’s five appeals courts gave conflicting opinions.

Yesterday, Justice Barbara J. Pariente of the Florida Supreme Court wrote in Rebecca Falcon [pictured above] v. Florida: “The patent unfairness of depriving indistinguishable juvenile offenders of their liberty for the rest of their lives, based solely on when their cases were decided, weighs heavily in favor of applying the Supreme Court’s decision in Miller retroactively.”

In regard to the significance of these rulings beyond the state of Florida, I’ve only just begun to closely examine the decisions, but given a cursory read, I’d say that they clearly reflect opposition to the extreme sentencing of youth, but whether that opposition is “growing” is a matter of interpretation and careful counting of the very clear split among state and federal courts across the U.S., both on the question of retroactivity and on the question of whether lengthy term of year sentences for non-homicides committed by minors are the equivalent of “life” sentences.

I am heartened by the Florida Supreme Court’s analysis of Miller retroactivity in Falcon (see pp. 3-4 of the decision and footnote 1) as well as its decision in Horsley, holding that Florida laws calling for individualized resentencing hearings do apply to juvenile offenders whose offenses were committed prior to the date of the legislation.

I also find the Gridine and Henry decisions to be significant, but again, it’s too early to say whether they represent or reflect a national trend.  I am particularly heartened by the Florida court’s interpretation of Graham v. Florida in Gridine, specifically its holding that the decision applies to attempted murder convictions, despite the language in Graham that seems to limit its decision to defendants “who do not kill, intent to kill, or foresee that life will be taken.”  Henry is a positive sign that long term of years sentences in classic non-homicide cases will also be considered as virtual “life” sentences.

These new decisions will certainly be taken into account by SCOTUS when it finally rules on Miller retroactivity, but we won’t know until the Court issues its opinion (likely next term) whether a majority of the Justices agree with the Florida majority.

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Posted in Graham v. Florida, Miller v. Alabama, Sentencing, U.S. Supreme Court, Uncategorized | 1 Comment

No Perfect Victim

imageBy Sarah Smith, JD, and Carlene Gonzalez, Ph.D., in conjunction with the National Council of Juvenile and Family Court Judges

Most people would agree that the victim of a crime is the last person who deserves to be judged. Yet judgment – from the public, from law enforcement, even from their families – is exactly what many crime victims encounter when they seek justice. Rape victims are met with skepticism about the veracity of their claims if they delay reporting the crime to police, take a shower afterwards, show too much or too little emotion, etc. Survivors of domestic violence who seek help find that their decisions, not those of the person who brutalized them, become the focus of inquiry. If it was so bad… Why didn’t you just leave? Call the police? Seek medical attention for your injuries?

It is uncomfortable to be confronted with the reality of one person brutalizing another. Perhaps it is this discomfort that makes us want victims to act, to look, to feel a certain way in response to their trauma. The reality is – like the Twitter hashtag says – there’s no perfect victim.

Shock. Denial. Confusion. These are all normal reactions to trauma. It is, therefore, perfectly understandable why a rape victim might not report the crime immediately, especially if they have some kind of relationship with the perpetrator. It is also understandable that a person who has been subjected to coercion and control by another person might not seek help or flee at the first opportunity. This dynamic is frequently seen among victims of sex trafficking, especially young girls who have been psychologically groomed to be emotionally dependent on their pimps. It is easy to see these young women as prostitutes. They, just like a woman who uses violence against her batterer, may have broken the law, but they are victims.

Trauma impacts individuals in different ways. But how they react is no measure of the gravity of what they have experienced. A mother who has been beaten by her husband throughout their marriage does not stay in the relationship because she thinks that the violence does not impact her children. She does not stay because she is indifferent to the terror and confusion her children feel when they see her crying and bruised after an argument with their father. She stays because leaving is dangerous. It often triggers an abuser’s violence. One study has found that women who leave abusive partners are at increased risk of being a victim of homicide. But too often, the police officer responding to that mother’s 911 call or the judge presiding over her custody doubts this victim because her response to the violence does not make sense to them.

Sadly, at a societal level, we do not display as much sympathy toward victims of crimes as we should. Instead, we often attach partial or much of the responsibility for the crime to the victim. We do so by questioning their respectability, provocativeness, past risky behaviors, degree of intoxication, etc. at the time of the crime. For fear of being blamed or disbelieved about the crime, many victims fail to report their assaults to authorities. From a socio-psychological perspective, various theories lend a hand at understanding our judgments and biases as observers of crimes. The Attribution Theory, for instance, suggests that individuals explain an event by external (i.e., situational factors outside of one’s control) or internal (i.e., dispositional characteristics, like personality) causes. Based on the tenets of the Attribution Theory and in line with victim blaming, the Defensive Attribution Theory suggests that an individual’s perceived similarity with a victim and the likelihood that this individual will experience such an event themselves decreases whether they will ascribe blame to the crime victim. The latter theory highlights how multiple factors impact how we assign blame to others, including the role of in-group preference. For this reason, it is crucial that we recognize the impact of our judgments and biases, and therefore, how our judgments impact our decisions about crime victims. Rather than critiquing a victim’s behaviors, we must make an active effort to understand victim behavior and how they are likely to present, as well as subtle warning signs of abusers. For more information about the victim-abuser relationship, please visit the National Network to End Domestic Violence website. For more information on the National Council of Juvenile and Family Court Judges (NCJFCJ)’s please visit http://www.ncjfcj.org. Additionally, information on trauma-informed systems of care can be found at http://www.ncjfcj.org/our-work/trauma-informed-system-care

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Perceiving Adolescence

By Kevin Lapp, Associate Professor, Loyola Law School|Los Angeles

The challenge of demarcating adolescence from childhood and adulthood comes mainly from figuring out when it ends. 18 has been the traditional end point, but many experts increasingly view adolescence as a period that lasts into the mid-twenties. But extending adolescence beyond 18 is probably less pressing than ensuring that those under 18 receive the protections long reserved for childhood (or adolescence, or “not yet adulthood”).

Advocates have been fighting that fight for decades, w-haywood-burns-instituteand the flourishing of knowledge about adolescent brain developmental and psychosocial research on youth has armed reformers with empirical findings that seemed to have aided their efforts. For example, after upholding the death penalty for 16 and 17 year olds in 1989, the Supreme Court reversed course in 2005 in Roper, striking down the death penalty for those who committed crimes under 18. In Roper, as well as the juvenile justice decisions to follow (Graham, J.D.B., and Miller), the empirics of adolescence played a prominent role. Spurred by these findings, the Supreme Court has repeatedly averred that the law cannot proceed against youth “as though they were not children.”

This has appeal, and works, as a general proposition. But as I’ve noted before, perceptions matter. And there is evidence that some youth are not seen, despite their age, as youth, and thus lose the protections of childhood. This happens in 2 primary ways: (1) racial perceptions, by which minority youth are seen as older than their actual age, and more culpable for their acts, and (2) the forfeiture theory, by which youth who break the law are seen as having forfeited the protections that childhood typically offers.

This post focuses on the link between race, perceptions, and childhood, turning again to psychological studies. UCLA Psychology Professor Phillip Atiba Goff and colleagues tested 176 police officers in large urban areas, mostly white males, average age 37, and 264 mostly white, female undergraduate students from large public U.S. universities, to determine their levels of certain types of bias. They found that, beginning around age 10, Black youth are seen as older than their actual age, and more culpable for the same behavior as same-aged White youth. The age gap was not small: the study found that Black youth were more likely to be mistaken as older than their actual age by an average of 4.5 years. That means that the study participants saw a 14 year-old Black youth as 18-19 years old.

Thus, wherever the line is drawn between childhood and adolescence and adulthood, there’s a good chance that black male youth exit childhood and adolescence sooner, and thus lose the dispensations granted to children much sooner than others. This, I argue in a forthcoming paper called Databasing Delinquency, about the unprecedented adult-like data collection and retention and distribution practices that youth are subjected to these days by the criminal justice system (sex offender registration, gang databases, DNA databases, and more), generates support or tolerance for increased adult-like surveillance and more punitive, adult-like responses to rule-breaking behavior by minority youth.

We can see how this research might undermine the Supreme Court’s strong declarations that childhood cannot be ignored when thinking about the J.D.B. decision. J.D.B. says that police must account for age in determining whether an individual is in custody (and thus must be given Miranda warnings) because youth are much more likely to feel like they’re not free to leave encounters with police than adults. However, J.D.B. says that police must account for age only when “the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer.” This is easy in the school setting in which J.D.B. arose – unless police are interrogating staff, they are dealing with someone who is not an adult.

But outside the school setting, the skewed perceptions of the age of minority youth could easily lead many police officers to conclude (as those in the Goff study did) that a 15 year-old Black kid is a 19 year old adult. They will then treat the youth as they would an adult, claiming as they did in many cases I litigated in practice that the youth was free to leave the encounter but choose to stay and keep talking. As a consequence, the aim of the J.D.B. court (to get law enforcement to issue Miranda warnings to more youth) will not come to pass.

This research suggests that the Court got the standard wrong in J.D.B. – rather than making the apparent age a critical factor, the Court could have, and should have, said that police must ask the person’s age, and if they determine or are told it’s 17 or under, they must consider youth in determining custody, and issue Miranda warnings before proceeding with custodial questioning. This should be so even if the officer believes the person looks like an adult. Even if the person is actually lying, and is really 19 or 21, there can be little harm in communicating to an adolescent that he has the Constitutional right to remain silent.

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