It Starts With The Children

Whenever someone wants to pass a bad law, the sales pitch is nearly always based on the idea that we need to “do it for the children.” I originally titled this post “Do It To The Children,” but as I thought about what I really want to say, “It Starts With The Children” seemed more apropos.

The uninformed would almost get the impression that Americans are all about the children, raising a happy, healthy, wonderful generation of progeny. They would believe that we care about nothing — nothing at all — more than securing a safe, and supportive, childhood.

The truth is a little less sublime.

About forty percent of my criminal defense cases at any given time are juvenile cases. If it were up to me, that percentage would be much higher. Unfortunately, the majority of potential clients cannot afford me. I get them because of an agreement I made years ago, maybe a year after starting my practice.

In Fresno County, where I maintain my office, juvenile delinquency cases will ordinarily result in appointment of a Public Defender. If, for some reason, the Public Defender has to “conflict out” on a case, the courts next look to a particular privately-owned law firm to appoint to the case. If that firm has a conflict, the case gets passed to the Alternate Defense Office in Fresno.

And if that firm has a conflict, then the agreement I made results in the case coming to me.

The remainder of my practice — and the remainder is actually the bulk of the real work — is comprised of adult cases. Fortunately, I am able to charge a decent rate for the adult cases because, frankly, handling the juvenile cases does not really pay enough to keep my office open. ^[1]And I do not take adult cases on appointment.

I don’t do juvenile cases for the money. I do them for a number of other reasons, which include that I like working with kids; I’m concerned about the way kids are handled, and feel that I’m one of the right people to be fighting for them; and it is my contribution to tikkun olam.

Making the world a better place.

Prior to getting into the practice of law, despite other non-law-related real world experiences, I would have thought that this is something we all wanted, to make the world a better place.

It did not take long for me to become disabused of that belief. In 2010, just three years after I opened my own office, I wrote this:

In our juvenile courts, judges look the other way while deputies provoke the more unstable amongst the kids. “Show me what you got, Modoc Boy!,” one says to an African-American kid, forgetting the connotation of “boy” under the circumstances. Then all the video evidence is miraculously unavailable.

It’s not just the specific injustice that rankles. It’s that the problem is actually systemic.

And, of course, for those of you familiar with my writing, you know about my fights over the shackling of children. Despite this now largely successful fight — in the courtroom — children are still mercilessly shackled without any thought from those who engage in this barbarism.

Just this week, I was visiting a client at the Juvenile “Justice” Campus, and walking down the hall was a former client. He was being transferred from one “pod” to another. In other words, being walked down a largely empty hall from one triply-protected area of security to another triply-protected area of security.

In shackles.

Because he might otherwise — what? I have no idea. Regardless of anything else, he’s still inside a tightly-locked prison, inside a razor-wire-topped fence, being escorted by an individual armed with pepper-spray, and I don’t know what else. (Thankfully, they don’t get guns. At least that I recall seeing.)

It is ironic that I started working juvenile cases primarily because of my belief that with those, I could have a hand in helping kids. And all the while I have been helping kids, the very system within which I have been working has been working against me.

And them.

The problem, again, is systemic.

Recently, I had a case in which my client — a Hispanic boy ^[2]You’ll know why that matters in a minute. — was involved in a situation where someone was killed. And there was a real question as to what level of involvement — if any — my kid had. There was evidence that he was at least in the vicinity of the crime. There was some questionable evidence that he was more than just present. There was no evidence that he, himself, was responsible for the death, or that he had any inkling anyone was going to die.

Sure, I know. “Natural and probable consequences.” The problem is that there remains a question, as I said, not just about his level of involvement, but whether he was actually close enough to the act to be deemed involved. But, more importantly, children do not stop to think about natural and probable consequences of certain types of activities. They’re barely physiologically capable of making such judgments. Neuroscience tells us that the areas of the brain needed for that are not fully developed in minors, and consequently the necessary substrate for such reasoning skills may be absent.

[According to Dr. Deborah Yurgelin-Todd of Harvard Medical School], “one of the things that teenagers seem to do is to respond more strongly with gut response than they do with evaluating the consequences of what they’re doing.” Also, appearances may be deceiving: “Just because they’re physically mature, they may not appreciate the consequences or weigh information the same way as adults do. So we may be mistaken if we think that [although] somebody looks physically mature, their brain may in fact not be mature.”

This discovery gives us a new understanding into juvenile delinquency. The frontal lobe is “involved in behavioral facets germane to many aspects of criminal culpability,” explains Dr. Ruben C. Gur, neuropsychologist and Director of the Brain Behavior Laboratory at the University of Pennsylvania. “Perhaps most relevant is the involvement of these brain regions in the control of aggression and other impulses…. If the neural substrates of these behaviors have not reached maturity before adulthood, it is unreasonable to expect the behaviors themselves to reflect mature thought processes. ^[3]Adam Ortiz, “Adolescence, Brain Development, and Legal Culpability” ABA Juvenile Justice Center, p.2 (January 2004).

In particular, according to Frances Jensen, a pediatric neurologist at Children’s Hospital in Boston,

They aren’t yet at that place where they’re thinking about — or capable, necessarily, of thinking about the effects of their behavior on other people. That requires insight.

Robert Epstein, who holds a Ph.D. in psychology, appears to disagree that teenage brains are incapable of reasoning like adult brains:

[W]e know that an individual’s genes and environmental history— and even his or her own behavior—mold the brain over time. There is clear evidence that any unique features that may exist in the brains of teens—to the limited extent that such features exist—are the result of social influences rather than the cause of teen turmoil. As you will see, a careful look at relevant data shows that the teen brain we read about in the headlines—the immature brain that supposedly causes teen problems— is nothing less than a myth.

According to Epstein, anthropological studies of pre-industrial cultures show,

about 60 percent had no word for “adolescence,” teens spent almost all their time with adults, teens showed almost no signs of psychopathology, and antisocial behavior in young males was completely absent in more than half these cultures and extremely mild in cultures in which it did occur.

It wasn’t until they were exposed to Western influences that these societies began to experience difficulties with teens.

But whether we accept that teen brains are not well-developed enough to exhibit “adult” reasoning, or that “teen turbulence” is a creation of Western culture, the fact remains that contemporary teens growing up in impoverished neighborhoods are not helped by a system that expects them to reason — and behave — as if they were affluent over-50-years-old white men in black robes.

Perhaps it is these cultural realities — rather than out-and-out racism — that explains why we consistently see that California’s Division of Juvenile Justice is filled almost entirely with black and brown children. In 2011, over fifty-eight percent of incarcerated children were Hispanic, just over twenty-eight percent were African-American, and less than ten percent were white. In 2012, over sixty-one percent were Hispanic, over twenty-seven percent were African-American, and just over seven percent were white. And in 2013 — the last year for which I could find numbers — it was just over fifty-nine percent Hispanic, still just over twenty-seven percent African-American, and exactly nine percent white.

Whatever the cause, judges hold nearly all the blame.

In the case I mentioned above, my client ultimately entered a “no contest” plea — under threat of being sent to the adult court, charged with murder — to assault with a deadly weapon, and, because allegedly there were gang members present, and it was a gang-related crime, to a gang enhancement, on an aiding and abetting theory. The prosecutor’s sole argument at disposition ^[4]It is appropriate that we call “sentencing” in the juvenile court, a “disposition,” because it is there we dispose of children. was that there was a dead kid, and he was never going to get to enjoy any of the benefits that a live kid would enjoy. The judge, in the face of the fact that my kid had no criminal history — not even a ticket — had entered detention with a second-grade reading level and there applied himself until he was reading “teen” books, had (not just in working with me, but with others) drafted extensive goals complete with schematics of how to achieve them, and had maintained for nearly his entire incarceration a “stage III,” which is the highest stage of compliance and good behavior achievable, agreed: there is a dead boy here, and even though you didn’t kill him, he’s dead.

And so off to prison he goes.

I cannot count for you the number of other kids — and not just white kids — who I’ve represented, who were charged with the same crime, but did less than six months of a local commitment. ^[5]At the same time, I cannot point to a single white kid who has ever gone to prison under similar circumstances. I’m not saying the judge is prejudiced, however. I am concerned, though, about the glaring disparities. That same day, I noticed that the white kid brought before my case was called was given a diversion program and walked out smiling, after a lecture about how such crimes as he committed would not be tolerated in the future. Another white family leaving while I was talking to my client’s family all came out with smiles and high-fives. I don’t know what their crimes were, but you seldom see high-fives and smiles from the less-than-white kids and families.

Again, I’m not saying the judge in the case I described above is prejudiced. I cannot say that I’ve seen any overt signs that he is. Nevertheless, judges should carefully consider this. Why are more than ninety-percent of children sent to the youth prison non-white?

And, notwithstanding “we have a dead kid here,” would my client have been sent to the youth prison, based on his minimal involvement, and the judge’s admission that he’d never seen anyone work as hard to prove himself as my kid, if he were white?

We can — judges can — ask this question without assuming the ugliness of racism. We can take a page from Epstein. Recognize that whatever the reason, ninety percent of kids in the juvenile prisons of California are not white. We can think about what sending them off to prison as children does to their futures. We can ask ourselves if giving them a chance at rehabilitation — which, oddly enough, is the goal of the juvenile “justice” system — rather than taking retribution because “we have a dead kid here,” would someday help reduce the racial disparities in adult prisons.

Because, know this: we are shaping lives; we are shaping our future society.

And it starts with the children.