Who's the Real Monster?

If you’ve read many of my posts, you know that I seldom write about cases I’ve handled. It’s always been my belief that part of my job is protecting my client’s anonymity to the degree that I can. I actively try to avoid the press, even sometimes managing to thwart them getting into court hearings, or photographing my clients. ^[1]Even in this case, I managed that to some extent. Some attorneys thrive on being “movie stars,” getting their cases in the news. It makes them “famous,” and brings in more clients. I prefer to try my cases in a courtroom that hasn’t been polluted by the inevitable detritus that passes for “fair reporting.” My clients suffer less, and they, as well as other attorneys who see me work, send me more clients.

But sometimes, you just have to say something.

Notwithstanding the provocation, I still wouldn’t comment except that the case is over now. Last Thursday was the “disposition” ^[2]I’ve never really liked the word “disposition” to describe in the juvenile court what would be known as “sentencing” in the adult court; I don’t like the thought that we’re “disposing” of a child. for a juvenile case that, despite my best efforts, has made the news at least twice.

Now, mind you, there’s not a lot that’s particularly special about this case. I’ve had many cases much worse for which the paper never spilled one drop of ink. I’ve had cases with a lot of blood spilled, people killed, terrible things done to numerous people. It’s part of what happens when you handle criminal defense cases. As I’ve said before, not all of my clients are innocent. Any criminal defense attorney that only defended innocent people would probably not be able to stay in practice very long.

BUT AS I’VE ALSO SAID, PARTICULARLY TO THOSE WHO MAY FIND THEMSELVES SITTING AS JURORS, until you’ve heard all the evidence, you don’t know if the particular client before you is one of the innocent, or one who is not. 

That last paragraph is important. Whether you want to believe me, or not, this is true, and I do not want you to misunderstand me. We get more than a few cases where our clients are innocent — completely innocent — of any crime. Add to that a larger number of cases where our clients may have done something wrong, but not as wrong as the crime, or crimes, with which they are charged.

To some extent, that’s a cultural problem; to no small extent, it’s a strategic move on the part of the prosecutor: “Let’s pile on the charges to scare the shit out of the accused person” — they always say “defendant,” of course — “and then we’ll offer what we really think they did as a plea agreement, which they’ll likely jump on.” 

That’s true. They likely will. Sometimes that’s because the prosecutor is right: the accused person really did something, and the plea offer is a match for that. Other times — and prosecutors know this, even if they will never admit it — it’s because the alternative of taking a case to trial “with all those charges” for crimes the client did not commit is just too damn scary, or risky, or both. But more often than many “law-abiding” people know, or want to believe, innocent people — actually, factually, innocent people — will take a deal because of the risks of facing a jury of their peers fellow citizens — citizens who too often demonstrate how the Colosseum was able to thrive.

Which brings us back to what I started with: the juvenile case for which the “disposition” was heard last Thursday.

A little background on the case: my client, a 12-year-old boy, was accused along with two 15-year-old boys, of committing a home invasion against a 91-year-old man. ^[3]Depending on who you talk to, and when, his age is either 91, 92, or 94. I think at the time of the crime, it was 91, and that now he is 92. During the course of the invasion of the man’s home, all his things were gone through. A gun was pointed in his face. He was hit on the head with the gun at least once. He was thrown into a closet head-first. His head was said to have made a hole in the closet wall. ^[4]Since it wasn’t litigated, these facts are what were stated in court, which was open to the public due to the nature of the charges. Not that it matters much, but the hole in the wall got bigger as the case went on. Various things were taken from the house, including money, which can be replaced, and some keepsakes, which cannot.

It was an ugly crime, and should never have happened. There is no excuse for it. There is no reason to minimize it. There is no reason to pretend any part of it is acceptable.

A couple of weeks ago, my client admitted to some of the charges that came out of the case. It requires an appropriate response.

But what is an appropriate response? If you read through the responses to the story the Fresno Bee published about the “disposition” hearing, the most popular response seems to be something like that from Buddy Deroy:

Should be put down like a rabid dog.

So far, that response has received 5 “likes” from people responding via their Facebook profiles. A response to that response says:

Correct Buddy. He and the other two “juvenile” monsters will be a pain the azz to society their whole lives. Put them down now. They can’t be helped.

That gets 3 “likes” and Robert Graham “Top Commenter and Brainless Twit” gets one “like” for responding to the responder to Buddy with:

They are beyond repair.

I’m not sure how he would know, since I’m fairly certain from looking at his profile that he’s never been near anyone even remotely like my client.

At any rate, another commenter says,

String ’em up. That’s what I say! Drawing and quartering is too good for ’em.

Fortunately, it appears that someone — the Fresno Bee maybe? — has deleted the racist comment I saw the first morning which stated something to the effect that the child, described in the story as having “a curly mop of black hair,” was obviously black. ^[5]Whether he is, or not, depends on which racist formula we use for the calculation of African-Americanness. The commenter appeared to believe that explained everything, even suggesting that the reason my client got such a “lenient” sentence was because of his race. ^[6]That alone shows the ignorance of the comment. Non-whites suffer disproportionately harsh sentences in the United States criminal “justice” system.

So aside from the assholes, the idiots, and the bigots, what is the appropriate response? How should we react to what this child has admitted to doing?

This partly depends on the point of the response. What is our goal? And how can we best achieve it?

It might help to take a look at how the juvenile court system came to be. As the Juvenile Defender Delinquency Notebook points out:

Near the end of the nineteenth century, reformers called for the protection of children from the harshness of criminal justice systems. By the middle of the twentieth century, 46 states, three territories, and the District of Columbia had established juvenile courts with rehabilitative, rather than punitive, ideals. In these courts, children were to be treated separately from adults in benign, informal, non-adversarial proceedings. The court was to determine not whether the child was guilty, but whether she had a need for treatment or rehabilitative services. When deciding what actions to take on behalf of the child, the state was to function as guardian or parens patriae, literally “parent of the country”. ^[7]National Juvenile Defender Center, Advocacy and Training Guide: Juvenile Defender Delinquency Notebook, Second Edition, p. 2 (2006).

By the 1960s, though, we started to realize that the system wasn’t working so well. What was intended — and appeared to be — a benignly informal system was actually turning out to be more harsh, more punitive, and more unjust. To address this, courts began to say that children were entitled to some of the same constitutional and legal protections as adults.

Unfortunately, this meant they were also to be subjected to some of the same failings — overworked defense attorneys, increasingly harsh sentences — but with a few additional deficiencies. More children sucked into the “justice” system have mental health issues, or lack social structures which because of their age and inability to care for themselves impact them more severely than adults would be impacted. And children aren’t just “little adults.” Their psychology is radically different. Few attorneys, or judges, are trained to understand that. That affects everything from how they are evaluated for “rehabilitation,” to how we even communicate with them. ^[8]The most amazing thing to me is to go into court, and have judges use words which to the judges are quite simple — words like “consequences,” or “waive,” or “hearing” (as in a court hearing) — but which many children have never heard, and therefore cannot understand. Add mental disabilities, or inadequate education (for whatever reason), and things are even worse.

Perhaps this would not be a problem, if all that mattered is for us to punish children, as we do adults, by just locking them up and then forgetting about them. But, as the United States Supreme Court noted in 2005, there are reasons to treat children differently.

Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” … (“Even the normal 16-year-old customarily lacks the maturity of an adult”). It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behavior.” In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. (“[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage”). This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. (“[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting”).

The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. ^[9]Roper v. Simmons, 543 U.S. 551, 569-570, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), citations omitted.

Because of this — particularly that last part — a primary goal of the juvenile system is rehabilitation. As California Welfare & Institutions Code, section 202, subsection (b), puts it:

Minors under the jurisdiction of the juvenile court as a consequence of delinquent conduct shall, in conformity with the interests of public safety and protection, receive care, treatment, and guidance that is consistent with their best interest, that holds them accountable for their behavior, and that is appropriate for their circumstances. This guidance may include punishment that is consistent with the rehabilitative objectives of this chapter.

And subsection (e) of that same section notes that punishment “does not include retribution.”

And again, all this is because — contra commenters — children who do wrong, even committing terrible crimes, are not “rabid dogs.” They are neurologically and psychologically undeveloped human beings. A rabid dog, perhaps, is “beyond repair,” but an undeveloped human being will naturally develop. This development alone means that many children who commit crimes will, quite literally, grow out of it. Brain imaging has clearly shown us that the brain grows throughout adolescence and that both cognitive reasoning and impulse control are the last human capacities to develop. ^[10]Kristin Henning, “What’s Wrong with Victims’ Rights in Juvenile Court: Retributive Versus Rehabilitative Systems of Justice” 97 Calif. L. Rev. 1107, 1136 (2009).

These neurological delays mean that youth generally have diminished capacity to plan, organize information, and think about the possible consequences of their behavior. Youth also have delayed emotional responses and diminished capacity for impulse control, both necessary for the rational identification and consideration of alternative courses of conduct. ^[11]Id.

A child’s psychological development also means that children have a reduced range of emotions compared to a fully-developed adult. ^[12]Id. at 1149. Their ability to feel empathy is limited not only by the fact that, because they are children, they have had limited life experience, but neurologically they are not yet fully wired for empathy. ^[13]Id. at 1149-1152.

Finally, as I noted at the “dispositional” ^[14]I have continued to put “dispositional” in quotes here because I detest the word. It sounds too much like we’re “disposing” of the child, a position which, when I listen to prosecutors in the juvenile court, seems all too often to be what we’re actually trying to do. hearing, many children who commit crimes have been surrounded in their early developing years by forces that do not contribute to a healthy development. Many are left to their own devices, with their own undeveloped brains, assisted by the undeveloped brains of their peers, contributing to bad decisions, inability to accurately assess the world around them, and a lack of instruction on appropriate goal development.

There are, therefore, very strong reasons for believing that children — even children who commit heinous crimes — are not “beyond repair.” Rather, a focused program — based on appropriate training of juvenile court judges, attorneys, and probation officers which is all too often either absent, or insufficient — aimed at rehabilitation, recognizing that we aren’t dealing with tiny little adults fully-capable of understanding us and reasoning like us, can quite literally reshape their brains (hence their minds), and transform them as persons.

The adults who want to “put down [a child] like a rabid dog,” or who think that “[d]rawing and quartering is too good for ’em,” or who won’t say what should be done to the child because his suggestion is a crime? Presumably, their brains have already matured. Presumably, they have significant life experiences that should have made them capable of empathy. Presumably, they are capable of adult-level reasoning.

So who’s the real monster?