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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Posted in Conditions of Confinement, Criminal /Juvenile Defense, Delinquency, Juvenile Court, Juveniles, North Carolina | 1 Comment

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

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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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Posted in Guest Blogger, Juveniles, Race, Class, Ethnicity, Reports, School to Prison Pipeline | 2 Comments

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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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 Additionally, information on trauma-informed systems of care can be found at

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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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25 Year-Old Adolescents?

imageBy Kevin Lapp, Associate Professor of Law, Loyola Law School|Los Angeles

Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?

Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later. They’re living with parents longer.

As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).

There isn’t space in a blog post to debate the length of adolescence (another prominent psychologist Jeffrey Jensen Arnett alternatively talks about “Emerging Adulthood”, by which he means ages 18-25). In any event, it’s almost universally accepted that full development/maturity doesn’t come until the early to mid-twenties. I’m interested in thinking about the implications of the law recognizing a long adolescence, which is decidedly not widely embraced.

First off, it would not mean that all the rights and responsibilities of adulthood are withheld until a person reached 25 or 21 or 18. Whether adolescents requires distinct rules depends on how they are different. And they are different from children and adults in different ways at different ages. For example, by 16, most youth are close to adults in their ability to reason and process information, but they’re bad at deploying those skills when in groups of other teens or stressful situations, in part because they’re more interested in risk and less concerned with long-term consequences. That means that someone who can capably recognize right from wrong may nevertheless be less culpable for their actions than adults.

Indeed, some of the rules governing adolescents would overlap with those for children, and others would overlap with those for adults, depending on what was being regulated. This is, in many ways, the world we have. Young people can’t drive until 16, vote until 18, or drink until 21. But we also seem to allocate rights and responsibilities poorly. A 16 year-old can dangerously drive a car on our highways, and can be tried in adult court for his actions, but is not considered mature enough to handle R-rated movies unless watching with a parent. Paying more attention to how adolescents are different from children and adults would allow us to do a better job of assigning rights and responsibilities to adolescents.

I’ve thought most about the change that a long adolescence would bring to the law with regard to juveniles and criminal law. A long legal adolescence could mean an expanded juvenile court jurisdiction. In most states, jurisdiction ends at 18, though North Carolina and New York send everyone 16 and over to adult criminal court. In a world where adolescence lasts until 25, and where what distinguishes adolescents from adults involves decision-making capacities and attributes that make them less culpable for their acts, we might need to significantly expand juvenile court jurisdiction (or, as Barry Feld argues, provide for a youth discount at sentencing for those processed in criminal court). Similarly, 4th and 5th amendment jurisprudence, and the ability to consent to waiving those rights, probably needs to better account for the age of the person protected by and purportedly waiving those rights.

There are undoubtedly implications of a long legal adolescence in fields like torts, contracts, autonomy rights (including health, speech), family law and the strength and duration of parental rights, and more, but I don’t know them well enough to lay them out. If anyone is willing to indulge me and teach me, how might a long adolescence change the landscape in your field of expertise?

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