Criminal Law Commons^™

Reappraising T.L.O.'S Special Needs Doctrine In An Era Of School-Law Enforcement Entanglement, Joshua Gupta-Kagan

Faculty Scholarship

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school …

"Which One Of You Did It? Criminal Liability For "Causing Or Allowing" The Death Of A Child, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This article analyzes how current U.S. criminal law addresses the problem of securing a homicide conviction where multiple defendants are accused in a child's non-accidental death. Part III sets forth the English response: a statute that includes (1) a new substantive crime; (2) a permissible negative inference against a defendant who fails to account for the non-accidental death of a child for whom he or she is responsible; and (3) delay of a motion to dismiss for failure to establish a prima facie case until after the defense has been presented or the jury has been allowed to draw the …

Eroding Confidentiality In Delinquency Proceedings: Should Schools And Public Housing Authorities Be Notified?, Kristin N. Henning

Georgetown Law Faculty Publications and Other Works

In this Article, Professor Henning examines how schools and public housing authorities obtain juvenile records and explains how these institutions may use the records to exclude children and their families from the basic benefits of education and housing. Drawing on recent research in the field of developmental psychology, Professor Henning reevaluates early assumptions about adolescents' amenability to treatment and the impact of stigma on children and explores the practical implications of sharing records with schools and public housing authorities, questioning whether new confidentiality exceptions actually will yield the expected benefits of improved public safety. She concludes that legislators should deny …

Reluctant Participants In Restorative Justice? Youthful Offenders And Their Parents, David R. Karp Phd, Gordon Bazemore

School of Leadership and Education Sciences: Faculty Scholarship

This paper examines offender and parental involvement in the Vermont Juvenile Restorative Panels Program. In this program, juvenile offenders on probation appear before citizen-run boards to negotiate the terms of their probation, which may include apologies, community service, restitution, and competency development tasks. Victims and parents of the offender also participate. This study reports findings from a qualitative analysis of 22 cases, including observations of panel meetings and interviews with program coordinators, offenders, parents, and victims. We find that offenders vary in the level of participation as well as in their willingness to take responsibility. Parents do not understand the …

Be Careful What You Wish For: Legal Sanctions And Public Safety Among Adolescent Offenders In Juvenile And Criminal Court, Jeffrey Fagan, Aaron Kupchik, Akiva Liberman

Faculty Scholarship

Three decades of legislative activism have resulted in a broad expansion of states' authority to transfer adolescent offenders from juvenile to criminal (adult) courts. At the same time that legislatures have broadened the range of statutes and lowered the age thresholds for eligibility for transfer, states also have reallocated discretion away from judges and instituted simplified procedures that permit prosecutors to elect whether adolescents are prosecuted and sentenced in juvenile or criminal court. These developments reflect popular and political concerns that relatively lenient or attenuated punishment in juvenile court violates proportionality principles for serious crimes committed by adolescents, and is …

Hierarchies Of Harm In Canadian Criminal Law: The Marijuana Trilogy And The Forcible 'Correction' Of Children, Janine Benedet

All Faculty Publications

The author examines the seemingly contradictory Supreme Court of Canada decisions which upheld the prohibition on possession of marijuana (R. v. Malmo-Levine), yet allowed the defence of “reasonable correction” for parents and teachers charged with assaulting a child (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)). She argues that these two decisions speak to the limits of the criminal law and the role that section 7 of the Canadian Charter of Rights and Freedoms plays in setting those limits. These decisions are also linked by the attempt by some members of the Court to establish a …

Gangs In Public Schools: A Survey Of State Legislation, Jesse Christopher Cheng

Brigham Young University Education and Law Journal

No abstract provided.

Juvenile Law Developments—“One Last Chance”: Applying Adult Standards To Extended Jurisdiction Juvenile Proceedings—State V. B.Y., Kathryn A. Santelmann, Kara Rafferty

William Mitchell Law Review

In 1995, Minnesota created a blended sentencing option for serious, violent juvenile offenders. Under this new option, Extended Juvenile Jurisdiction (“EJJ”), the juvenile court retains jurisdiction over the offender until age 21. In EJJ cases the court also imposes an adult sentence, which is stayed on the condition that the offender complies with the conditions of probation. Since the passage of the EJJ statute, the Minnesota Supreme Court has issued a limited number of opinions reviewing EJJ cases. State v. B.Y., issued April 24, 2003, involves an issue of first impression. The B.Y. opinion addresses standards to be applied in …

The Quandary Of Megan's Law: When The Child Sex Offender Is A Child, 37 J. Marshall L. Rev. 73 (2003), Timothy E. Wind

UIC Law Review

No abstract provided.

On Statutory Rape, Strict Liability, And The Public Welfare Offense Model, Catherine L. Carpenter

American University Law Review

Statutory Rape. At the center of a long-standing debate on whether its commission should require proof of a criminal mens rea, the prosecution of statutory rape offers a revealing look at the struggle to demarcate the parameters of the public welfare offense doctrine. Specifically, with respect to statutory rape, disagreement is deep and entrenched on whether statutory rape should be categorized as a public welfare offense, which would render irrelevant defendant's lack of knowledge of the victim's age. And despite wholesale revamping of state statutory rape laws on issues of age, gender, and potential grading and punishment, the debate on …

Blaming Youth, Elizabeth S. Scott, Laurence Steinberg

Faculty Scholarship

In March of 2001, a fourteen-year-old Florida boy named Lionel Tate was sentenced to life in prison without parole for killing six-year-old Tiffany Eunick during a wrestling match that took place when Lionel was twelve years old. Lionel was convicted of first degree murder on the ground that the killing was the result of aggravated child abuse, a crime that contemplates injury of a child by an adult caretaker. His conviction and sentence have prompted much debate and discussion – about his case and, more generally, about the criminal punishment of young offenders. Although the verdict and Lionel's sentence received …

Punishment, Proportionality, And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Aaron Kupchik, Jeffrey A. Fagan, Akiva Liberman

Faculty Scholarship

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and …

Zero Tolerance Or (In)Tolerance Policies? Weaponless School Violence, Due Process, And The Law Of Student Suspensions And Expulsions: An Examination Of Fuller V. Decatur Public School Board Of Education School District, Kevin P. Brady

Brigham Young University Education and Law Journal

No abstract provided.

Measured Interpretation: Introducing The Method Of Correspondence Analysis To Legal Studies, Bernard E. Harcourt

Faculty Scholarship

Professor Harcourt develops and advocates a method to more rigorously measure and evaluate how qualitative “social meaning” variables relate to legal practices and public policies. The method integrates in-depth qualitative interviews with an experimental free associational component, map analysis of the interviews, and a methodology, correspondence analysis, that remains little known in the United States despite its acceptance in other parts of the world. Correspondence analysis, according to Professor Harcourt, is a tool that allows researchers to visually represent the relationship between structures of social meaning and the contexts and practices within which they are embedded. This method opens up …

So Young And So Untender: Remorseless Children And The Expectations Of The Law, Martha Grace Duncan

Faculty Articles

A nine-year-old speaks with apparent callousness as he walks by the body of the girl he has killed. A fourteen-year-old jokes about "body parts in her pocket" after bashing in her mother's head with a candlestick holder. And a fifteen-year-old laughingly names his accomplice ''Homicide" after participating in a robbery that culminated in the victim's death. Seemingly remorseless acts such as these can have a crucial impact on the way a child or adolescent fares in the juvenile justice or criminal system. Yet, when one looks closely at what the courts interpret as indicators of remorselessness -- ­taking into account …

The Fiction Of Juvenile Right To Counsel: Waiver In Juvenile Courts, Mary E. Berkheiser

Scholarly Works

Although a number of juvenile justice advocates and scholars have decried the prevalence of juvenile waiver of right to counsel, no one has undertaken a comprehensive study of the problem. This Article attempts to fill that gap. The Article begins with a review of the historical context in which juvenile right to counsel arose and proceeds to a discussion of the landmark In re Gault decision and the due process underpinnings of juvenile right to counsel. The Article then chronicles the long-standing practice of permitting juveniles to waive their right to counsel and shows that the vast majority of nearly …

“Owing To The Extreme Youth Of The Accused”: The Changing Legal Response To Juvenile Homicide, David S. Tanenhaus, Steven A. Drizin

Scholarly Works

In this essay, the authors seek to dispel the myth that the juvenile court was never intended to deal with serious and violent offenders; a myth that has largely been unchallenged, especially in the mainstream media, and one that critics of the juvenile court have used to undermine its legitimacy. The discovery of homicide data from the Chicago police department from the early twentieth century, the era in which modern juvenile justice came of age, provides us with new historical date with which to put this dangerous myth to rest, by showing that the nation’s model juvenile court—the Cook County …

This Will Hurt Me More Than It Hurts You: Social And Legal Consequences Of Criminalizing Delinquency, Jeffrey Fagan

Faculty Scholarship

What happens to adolescents once placed in the criminal justice system and the potential violations of human rights that ensue is the focus of this essay. The pace of change, the severity of the new laws, the potential for unintended negative outcomes, and the empirical reality of adult punishment of juvenile offenders creates new urgency to these questions. Unfortunately, there has been little analysis of the comparative effects of statutes and administrative laws that relocate juvenile offenders to the adult court, and there has been virtually no research on the efficacy, impact and consequences of sentencing juveniles as adults. There …

Adding Value To Families: The Potential Of Model Family Courts, Jane M. Spinak

Faculty Scholarship

The Harlem Community Justice Center (Justice Center) officially opened in July 2000 with all the fanfare of a major civic event. The Chief Judge of the State of New York, Judith Kaye, and the Mayor of the City of New York, Rudolph Guiliani, were keynote speakers, lauding the combined efforts of private administrators and public officials in reopening a deteriorating but magnificent 1892 court building in the center of Harlem. The ceremony began and ended with gospel sung by the Addicts Rehabilitation Center Choir, a musical reflection of one component of the Justice Center's jurisdiction. The new Juvenile Intervention Court …

Policing Guns And Youth Violence, Jeffrey A. Fagan

Faculty Scholarship

To combat the epidemic of youth gun violence in the 1980s and 1990s, law enforcement agencies across the United States adopted a variety of innovative strategies. This article presents case studies of eight cities' efforts to police gun crime. Some cities emphasized police-citizen partnerships to address youth violence, whereas others focused on aggressive enforcement against youth suspected of even minor criminal activity. Still others attempted to change youth behavior through "soft" strategies built on alternatives to arrest. Finally, some cities used a combination of approaches. Key findings discussed in this article include:

• Law enforcement agencies that emphasized police-citizen cooperation benefited …

School Violence: The Call For A Critical Theory Of Juvenile Justice, Karen L. Michaelis

Brigham Young University Education and Law Journal

No abstract provided.

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Child Witnesses And Procedural Fairness, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

Professor Gershman's Article notes that courts and lawmakers have changed procedural and evidentiary rules to protect child witnesses in child sexual abuse cases. Gershman discusses how courts apply the changed rules with careful scrutiny in an effort to ensure that the interests of the child witness and the accused defendant are appropriately balanced.

Growing Up Dependent: Family Preservation In Early Twentieth-Century Chicago, David S. Tanenhaus

Scholarly Works

Beginning in 1911 with Illinois’ passage of the Funds to Parents Act—the first statewide mothers’ pensions legislation—the Chicago Juvenile Court built a two-track system for dependency cases that used the gender of single parents to track their children. The first or “institutional” track followed a nineteenth century model of family preservation that poor families had relied upon since before the Civil War, in which parents had used institutions to provide short-term care for their children during hard times. The juvenile court also established a “home-based” track for dependency that reflected a new model of family preservation. Progressive child-savers denounced the …

The Boynton Beach Juvenile First Offender Program: Does It Really Work?, Andrew M. Rosenberg

Graduate Student Dissertations, Theses, Capstones, and Portfolios

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When Are Children Adults? Juveniles On Trial As Adults: Adults On Trial As Juveniles, Suzanne M. Knight

Buffalo Women's Law Journal

No abstract provided.

Arkansas's Extended Juvenile Jurisdiction Act: The Balance Of Offender Rehabilitation And Accountability, Connie Hickman Tanner

University of Arkansas at Little Rock Law Review

No abstract provided.

A Proposal To Strengthen Juvenile Miranda Rights: Requiring Parental Presence In Custodial Interrogations, Robert E. Mcguire

Vanderbilt Law Review

On October 31, 1997, eleven-year-old Nathaniel Abraham was at school and enjoying Halloween with his grade school classmates. The festivities ended, however, when members of the Pontiac, Michigan police department entered the classroom and arrested Nathaniel for first degree murder. Two days before, on October 29, eighteen- year-old Ronnie Lee Greene was walking out of a convenience store in Pontiac when a .22 caliber bullet struck him in the head and killed him.' Police suspected Nathaniel who, at the time of his arrest, had over twenty encounters with law enforcement. Once in custody, Nathaniel eventually confessed to shooting Greene and …

Rationalizing Juvenile Justice, Carolyn J. Frantz

Michigan Law Review

Few issues have occupied the public mind so much in recent years as the problem of youth violence. Due to sensational school shootings and public paranoia about the violence of youth gangs, America is concerned - very concerned - about the growing criminality of its children. In our concern, we find ourselves caught in the classic conundrum of criminal responsibility: reconciling the unavoidable knowledge that much of human behavior is determined with our strong instincts about free will. We blame violent television and video games, we blame single mothers, we blame low church attendance, but when all is said and …

Judicial Review & The Policy Of Federal Abstention: A Juvenile's Right To Ensure The Existence Of A "Substantial Federal Interest", Matthew Drexler

Michigan Law Review

The problem of juvenile delinquency must be dealt with in an effective and meaningful manner if we are to reduce the ever increasing levels of crime and improve the quality of life in America. With these words, the United States Senate opened its report in support of the first major federal juvenile delinquency statute in almost forty years. The goal of the statute and of federal involvement in juvenile delinquency proceedings was to give the highest attention to preventing juvenile crime and to minimizing the involvement of juveniles in the juvenile and criminal justice systems. Until 1974, the federal government …