Juvenile Law Commons^™

"A Plain Denial”: Reclaiming Equal Protection In American Juvenile Law, Addie C. Rolnick, David S. Tanenhaus, Justin Iverson, Danielle L. Silvestri

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Juvenile courts are based on the premise that children are different from adults and should therefore be treated differently. Children may be treated more informally by courts, punished for different purposes, and brought before the court for different behaviors. Since In re Gault, the Supreme Court has been clear that there are limits to how different juvenile courts can be. Juveniles are entitled to many of the same procedural protections as adult criminal defendants, although the Court has preserved some procedural differences where it has determined that their benefit is outweighed by the need to preserve the informality, flexibility, …

What's In A Name? Policing, Juliet., Shanée Brown

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Child welfare" and "child protection" are misnomers. These terms do not accurately depict the investigatory nature of the system purported to help families, or at the very least, save endangered children. Contrary to public opinion, the "child welfare system" comprises of state actors who police parents and children. It is the naming of this system that convinces the public that these agencies are excised from the category of law enforcement, persuading many that the agencies engage in social work and not police work. Calling the system what it really is-family policing-is a step toward achieving justice for families adversely impacted …

Child-Taking, Diane Marie Amann

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A ruling group at times takes certain children from their community and then tries to remake them in its image. It tries to rid the child of undesired differences, in ethnicity or nationality, religion or politics, race or ancestry, culture or class. There are too many examples: the colonialist residential schools that forced settler cultures on Indigenous children; the military juntas that kidnapped dissidents’ children; and today’s reports of abductions amid crises like that in Syria. Too often nothing is done and the children are lost. But that may be changing, as the International Criminal Court is seeking to arrest …

They're Cops, Too, Shanée Brown

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Caseworkers or child protective workers are government officials tasked with investigating allegedly endangered children and their parents or guardians. They work for state agencies and exercise police power, but this kind of police power intrusively interferes with the life of an individual more than police power wielded by other law enforcement agencies. The Fourth Amendment provides individuals with protections against illegal searches and seizures of bodies and private spaces by the government, and police officers, as well as caseworkers, are required to respect these constitutional protections. Caseworkers, who are state actors, are dedicated to public safety in that they have …

An Unprecedented Verdict: Expanding Parental Liability For Children’S Violent Crimes, Jolie Bodner Zangari

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No abstract provided.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

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This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

“Cops Or Coaches?” The Statutory Role Of Juvenile Probation Officers In A Transformative Age, Justin Iverson, David S. Tanenhaus

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For more than a century, juvenile justice proponents have had a difficult time precisely defining the proper role of the juvenile probation officer while simultaneously stressing that the juvenile probation department is the “workhorse” of the entire system. Existing literature largely focuses on which aspects of policing and social work these officers should embody while ignoring the foundational moorings in state statutes. This Article offers both a historical account of the rise of the juvenile probation officer and a thorough analysis of each state’s laws regarding peace officer status, employing authority, the power of arrest, and the power to carry …

International Child Law And The Settlement Of Ukraine-Russia And Other Conflicts, Diane Marie Amann

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The Ukraine-Russia conflict has wreaked disproportionate harms upon children. Hundreds reportedly were killed or wounded within the opening months of the conflict, thousands lost loved ones, and millions left their homes, their schools, and their communities. Yet public discussions of how to settle the conflict contain very little at all about children. This article seeks to change that dynamic. It builds on a relatively recent trend, one that situates human rights within the structure of peace negotiations, to push for particularized treatment of children’s experiences, needs, rights, and capacities in eventual negotiations. The article draws upon twenty-first century projects that …

Csec Treatment Courts: An Opportunity For Positive, Trauma-Informed, And Therapeutic Systems Responses In Family And Juvenile Courts, Emma Hetherington, Allison Dunnigan, Hannah Elias Sbaity

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In an effort to improve outcomes for CSEC (commercial and sexual exploitation of children) youth and to facilitate accurate identification of survivors through the implementation of multidisciplinary, survivor-focused responses, jurisdictions have increasingly looked towards treatment courts to serve as a model for prevention, intervention, diversion, and treatment. Juvenile and family courts are uniquely positioned to intervene in cases involving CSEC. Several jurisdictions have already created treatment courts to specifically address the needs of survivors and those at risk of CSEC, particularly those who are involved in the child welfare or juvenile justice systems. The goal of treatment courts for survivors …

If Animals Are Like Our Children Let Us Treat Them Alike: Creating Tests Of An Animal's Intelligence For Determinations Of Legal Personhood, Paul Mclaughlin

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No abstract provided.

Decriminalizing Childhood, Andrea L. Dennis

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Even though the number of juveniles arrested, tried and detained has recently declined, there are still a large number of delinquency cases, children under supervision by state officials, and children living in state facilities for youth and adults. Additionally, any positive developments in juvenile justice have not been evenly experienced by all youth. Juveniles living in urban areas are more likely to have their cases formally processed in the juvenile justice system rather than informally resolved. Further, the reach of the justice system has a particularly disparate effect on minority youth who tend to live in heavily-policed urban areas.

The …

Native Youth & Juvenile Injustice In South Dakota, Addie C. Rolnick

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In this essay, Professor Rolnick uses the three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, she describes the tribal juvenile justice systems in the state. She argues tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, she examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can …

Juvenile Justice In Global Perspective: From Chicago To Shanghai And Back To First Principles, David S. Tanenhaus

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No abstract provided.

‘Let’S Change The Law’: Arkansas And The Puzzle Of Juvenile Justice Reform In The 1990s, David S. Tanenhaus, Eric C. Nystrom

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No abstract provided.

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

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In this article, Professor Hanan explores the issues surrounding reforms to the criminal justice system, juveniles, and conflict resolution. She asserts that enthusiasm for restorative justice as the best method of out-of-court dispute resolution in criminal cases should be tempered in favor of mediation, which is neutral because it does not assume that the accused is guilty and that "healing" or repair is warranted. Because decriminalization is not complete and the state retains jurisdiction, Professor Hanan argues for a neutral mediation program, which should (1) function to reduce overall contact with the criminal courts and (2) include procedural safeguards in …

Review Of Alaska Mental Health Statutes, Sara Gordon, Melissa Piasecki, Gil Kahn, Dawn Nielsen

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This report identifies key statutory provisions that we recommend be amended, a description of our findings based on interviews with stakeholders, legislative history of the Alaska statutes, reviews of national best practices and, where applicable, information about emerging areas in national mental health law for Alaska to consider in creating new law. Our recommendations are based in large part on significant advances in law and medicine in the understanding and treatment of mental illness that have occurred in the years since Alaska last made significant and substantive reforms to its criminal and civil mental health statutes. It is important to …

Untangling The Web: Juvenile Justice In Indian Country, Addie C. Rolnick

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The juvenile justice system in Indian country is broken. Native youth are vulnerable and traumatized. They become involved in the system at high rates, and they are more likely than other youth to be incarcerated and less likely to receive necessary health, mental-health, and education services. Congressional leaders and the Obama administration have made the needs of Indian country, especially improvement of tribal justice systems, an area of focus in recent years. The release of two major reports—one from a task force convened by the Attorney General to study violence and trauma among Native youth and the other from a …

Locked Up: Fear, Racism, Prison Economics, And The Incarceration Of Native Youth, Addie C. Rolnick

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Native youth are disproportionately incarcerated, often for relatively minor offenses. One potential solution is to move more Native youth out of federal and state courts and invest in tribal juvenile justice systems. Tribal systems are assumed to be less punitive than nontribal ones, so greater tribal control should mean less incarceration. Little is known, however, about the role of incarceration in tribally run systems. This article examines available information on Native youth in tribal juvenile justice systems from 1998 to 2013. At least sixteen new secure juvenile facilities were built to house youth under tribal court jurisdiction, with federal investment …

Making Space For Good Things To Happen: A Restorative Approach To The School To Prison Pipeline, Jon Powell

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No abstract provided.

Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf

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This Article explores the ways children, many of whom are in foster care, are psychologically harmed by the law’s failure to ensure that the bonds they have with their siblings-of-origin are not permanently broken when one of the siblings is adopted; it therefore proposes ways that courts can better protect children from the psychological harm of having a biological sibling permanently removed from their life. It suggests that what is needed is a framework that allows visitation by biological siblings with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of the adoptive parents at issue …

Talk Don’T Touch? Considerations For Children’S Attorneys On The Physical Touch Of Clients, Andrea L. Dennis

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Researchers focused on the representation of children and attorneys for children have taken great pains to explore issues surrounding the attorney-child client relationship and recommend strategies and policies supporting positive development of the relationship. Notwithstanding the breadth of available information, almost no attention has been aimed at whether attorneys should physically touch their clients. This article fills that gap.

This Article consists of three parts. Part I describes the literature commanding attorneys for children to develop quality relationships with their clients. These works recognize that young clients seek good relationships with their attorneys, but that barriers to creating quality relationships …

Good Cop -- Bad Cop: Police Violence And The Child’S Mind, Andrea L. Dennis

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Police violence against citizens lately has gripped the nation’s attention because of recent cases in Ferguson, Missouri; Staten Island, New York; Cleveland, Ohio; Baltimore, Maryland; and elsewhere. Children in those communities and nationwide have been directly and indirectly exposed to these well-publicized incidences of police killings and the aftermath of those killings.

Exposure to police violence may cause children physical, cognitive, emotional, and social trauma. Moreover, the exposure may negatively influence children’s mindsets regarding the criminal justice system and police.

Undoubtedly, these events of late are not the first and only instances in which children have been exposed to physically …

Pursuing Justice For The Child: The Forgotten Women Of In Re Gault, David S. Tanenhaus

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In this article, I first draw on my recent book The Constitutional Rights of Children to introduce the facts of the case and place the case in the larger context of the history of American juvenile justice. I then focus specifically on the role of four remarkable women in the history of this landmark decision: Marjorie Gault, Gerald's mother; Amelia Lewis, Gerald's lawyer; Lorna Lockwood, an Arizona lawyer who became the first woman to serve as the Chief Justice of a State Supreme Court; and Getrude "Traute" Mainzer, who assisted in the litigation of Gerald's case before the U.S. Supreme …

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

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In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

Developmental Detour: How The Minimalism Of Miller V. Alabama Led The Court's "Kids Are Different" Eighth Amendment Jurisprudence Down A Blind Alley, Mary E. Berkheiser

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No abstract provided.

The School-To-Prison Pipeline Tragedy On Montana's American Indian Reservations, Melina Healey

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American Indian adolescents in Montana are caught in a school-to-prison pipeline. They are plagued with low academic achievement, high dropout, suspension and expulsion rates, and disproportionate contact with the juvenile and criminal justice systems. This phenomenon has been well documented in poor, minority communities throughout the country. But it has received little attention with respect to the American Indian population in Montana, for whom the problem is particularly acute. Indeed, the pipeline is uniquely disturbing for American Indian youth in Montana because this same population has been affected by another heartbreaking and related trend: alarming levels of adolescent suicides and …

Dean's Column: Unchain The Children, Mary Berkheiser

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No abstract provided.

Can They Do That To Me - Does The Eighth Amendment Protect Children's Best Interests?, Maryam Ahranjani

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No abstract provided.

Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser

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In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time …

Prosecutorial Discretion And The Neglect Of Juvenile Shielding Statutes, Andrea L. Dennis

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When legislatures enact statutes, furtherance of legislative intent depends on the behavior of actors in the executive and judicial branches of government. In the criminal justice system, prosecutors may frustrate legislative intent when they exercise prosecutorial discretion. This Article examines an instance in which prosecutors’ choices work to the detriment of children.

This Article reviews the failure of juvenile shielding statutes to take hold in the prosecution of cases involving child witnesses because of prosecutors’ discretionary decisions not to use these statutes. The Article investigates prosecutors’ pragmatic and doctrinal justifications for not utilizing juvenile shielding statutes and concludes that the …