THE NATIONAL JUDICIAL COLLEGE
ABA – UNR
BUREAU OF JUSTICE ASSISTANCE
CHILDREN AS ADULTS IN COURT
“Interpreting In-Court
Behavior of Juveniles”
Michael L. Lindsey, J.D., Ph.D. ~ Presenter
Nestor Consultants ~ Dallas, Texas
I. WELL-SETTLED LAW / BRIGHT LINES
A. Inchoate crimes
B. Parol evidence rule
C. Negligence
D. a. Reasonable person standard
b. Reasonable child
E. When is a child an adult (for court purposes)?
II. NOT WELL-SETTLED – NO BRIGHT LINE
A. When should a “child/adolescent” be held to an adult standard?
B. The legislatures speak.
C. What research / science tells us.
III. WAIVER AND TRANSFER OF JUVENILES TO ADULT COURT
All states allow juveniles to be tried as adults in criminal court under certain circumstances. For example:
A. Judicial waiver
B. Concurrent jurisdiction
C. Statutory exclusion.
In most states, juvenile court judges can waive juvenile court jurisdiction over certain cases and transfer them to juvenile court. For example:
· Any criminal offense
· Certain felonies
· Capital crimes
· Murder
· Certain person offenses
· Certain property offenses
· Certain drug offenses
· Certain weapon offenses
Few states allow prosecutorial discretion, but many juveniles are tried as adults in this way. In states with concurrent jurisdiction, the prosecutor has discretion to file certain cases, generally involving juveniles charged with serious offenses, in either criminal or juvenile court (Snyder 1995).
IV. RECENT ADOLESCENT DEVELOPMENT RESEARCH
Developmental psychology, broadly defined, concerns the scientific study of changes in physical, intellectual, emotional and social development over the life cycle. Development is generally defined as change that is systematic, age-related, universal, predictable, enduring, and adaptive, in the sense that development usually involves some sort of lasting improvement in the competencies and capabilities that occurs across the population around a given age (Steinberg and Schawartz, in Grisso and Schwartz, p. 21).
Today, most experts in developmental psychology agree that the period between twelve and seventeen occupies a crucial place in contemporary human development, for four interrelated reasons. Ironically, these very features of adolescence as a developmental period are simultaneously interesting to developmental psychologists and perplexing to policymakers and legal practitioners.
· First, adolescence in modern society is an inherently transitional time during which there are rapid and dramatic changes in physical intellectual, emotional, and social capabilities.
· Second, adolescence is a period of tremendous malleability, during which experiences in the family, peer group, school, and other settings have a great deal of influence over the course of development. . . adolescence is a period of tremendous plasticity in response to features of the environment.
· A third, and in some ways paradoxical, point is that despite its malleability, adolescence is also an important formative period during which many developmental trajectories become firmly established and increasingly difficult to alter. . . it is much easier to alter an individual’s life course in adolescence than during adulthood.
· The final and most important point is that adolescence is a period of tremendous variability, both within and between individuals (ibid, pp. 23-24).
Giedd, et.al., have published research findings that show significant brain development during the adolescent years. The results of these longitudinal studies report that there is significant brain growth during the preadolescent and adolescent years, with a decrease in such growth during the post adolescent years. These findings are now available due to current neuroimaging research. Similar earlier work was not available because of concern of exposing the brain to unwarranted x-rays – the only technology available prior to neuroimaging (1999).
The John D. and Catherine T. MacArthur Foundation funded the Youth Law Center, the Juvenile Law Center, and the American Bar Association Juvenile Justice Center to develop and provide training for juvenile justice professionals. The goal of the project was to develop a training curriculum that applied the findings of adolescent development and related research to practice issues confronted by juvenile court practitioners at the various decision-making stages of the juvenile justice process (Lourdes, p. iii).
The first module (Kids Are Different) focuses on five key areas of development: 1.) cognitive, 2.) moral, 3.) identity and social, 4.) biological, and 5.) competence (mastery of skills) development. After participating in Module One, juvenile court personnel will be able to better answer the following questions:
Cognitive Development
· How do adolescents think?
· How does adolescent thinking differ from that of children and that of adults?
· How does adolescent thinking increase the likelihood of taking risks and engaging in undesirable behavior as compared to the thinking of children or adults?
Identity and Social Development
· How do adolescents develop an identity?
· What role does family, peers, and the larger community play in identify development?
Moral Development
· How do adolescents’ concepts of right and wrong develop, and how are they expressed in adolescence?
· How do peers and the family influence an adolescents’ moral reasoning?
Biological/Physical Development
· What are the major physical changes that occur during adolescence?
· How do these physical changes influence adolescent behavior?
Competence Development (Mastery of Skills)
· How do adolescents develop competence?
· How important is it for adolescents to feel competent in the eyes of their peers, their parents, and in their own eyes?
· What are some of the sources adolescents have for developing competence?
We have acknowledged that there are “bright lines” or areas of well-settled law with respect to when or if children should be tried as adults. Courts must comply with these state and federal statutes; however, those decisions are based on legislative priorities, not scientific evidence. At this writing, definitive scientific studies are not available. There is much we still do not know about how the brain works. What we are slowly discovering is that the brain of a child and adolescent is physically different from that of an adult. What we must still learn is whether these differences can and should make a difference with respect to the legal areas of culpability and competence.
Until these questions are answered, we should be cautious in how we treat children beyond the protections/safeguards unique to the juvenile justice system. There are certain ways in which we know children and adolescents behave that may affect whether they appear as “smart,” “remorseful,” and “penitent” defendants. While some of these differences will be noted below, it is impossible to have a fully meaningful discourse about these issues without face-to-face interchange with jurists and social scientists simultaneously to discern how best to consequate adolescent delinquent and/or criminal behavior within a context of appropriate punishment, rehabilitation and deterrence.
V. PHENOMENOLOGICAL APPROACH TO AN ECOLOGICAL SYSTEMS THEORY OF LIFE SPAN HUMAN DEVELOPMENT*
Each of us has a particular way of perceiving and making sense of the world around us. This is called a “frame of reference.” Our frame of reference provides a set of filters through which thoughts, actions and decisions pass. Another way to describe it is to say that we each wear a pair of glasses through which we receive information about the world. The lenses filter out something while allowing us to focus on other things.
Our frame of reference is determined by our total experiences. It is as if the lenses we see through have been grounded by the parents who reared us, the teachers who taught us, the communities which surround us, the cultural norms which are part of the societies we live in, and our own personal experiences and learning styles.
We should ask, “How similar are the lenses of the police officer, ‘jailer,’ prosecutor, defense attorney, and/or judge to the ethnic minority, and poor white, adolescent defendants who are appearing as children in adult courts?” One professor captures the essence youth angst in the title of his article, “Missed, Dissed, and Pissed: Making Meaning of Neighborhood Risk, Fear and Anger Management in Urban Black Youth” (Stevenson 1997). Some of the features, perceptions and struggles of ethnic minority youth are highlighted below.
A. Risk Contributors
1. Self appraisal processes
a. In response to stereotypes and biases
(i) Race (e.g., ethnicity/color bias)
(ii) Socioeconomic status (e.g., poverty; neighborhood quality)
(iii) Sex: male: e.g., need for instrumentality (weapons/bravado)
(iv) Sex: female: perception of femininity/aggressiveness
(v) Physical status (e.g., early maturing)
(vi) Biological characteristics (e.g., temperament)
B. Stress Management
1. Intermediate experience of stress
a. Neighborhood dangers
b. Social supports
c. Daily hassles
C. Coping Methods
1. Corrective problem-solving strategies
2. Maladaptive solutions
a. Exaggerated (macho) sex role orientation
b. Reactive, ethnocentrism (strong identification with one’s race/ethnicity)
c. Personal (social superiority) orientation
3. Adaptive solutions
a. Achieved social status (pro social)
b. Interpersonal competence / confidence (self-confidence/self esteem)
c. Self acceptance
D. Emergent Identities
1. Integration of cultural goals and perceived/realistic available means
2. Cultural / ethnic identity
3. Sex role identity
4. Personal identity
E. Life Stage Outcomes
1. Behavioral and health relevant outcomes
2. Adverse
a. Adjudication / deviance
b. Mental illness
c. Poor health
d. Lack of intimacy
3. Productive
a. Competence
b. Physical health
c. Healthy relationships
d. Effective parenting
(*Adapted from Montemayor, Adams, Gullotta, 2000.)
VI. HOW DOES THE ADOLESCENT VIEW THEIR LIFE STRUGGLE?
A. Transference
The child projects maladaptive feelings onto authority figures (teachers, police, judges).
B. Counter transference
The adult projects maladaptive feelings onto (students. clients, patients, “supervisees”).
VII. A FEW CULTURAL EXAMPLES
A. African American youth
1. “It’s the system.” “Nothing I do matters.” “No one is going to listen to what I say.”
a. It is more important to look good for “their boys,” their “homies,” than adult/authority figures. (This is whom they must survive with; if they lose credibility with this reference group, there is a sense of worthlessness – both perceived and real.)
2. Legacy of discrimination
3. New images
a. Black middle class
b. Political leadership
c. Role models
4. Occupational aspirations
a. Often mainstream
b. Entrepreneurial
5. Major struggles
a. Have’s
b. Have not’s
c. The permanent underclass
B. Latino/Hispanic youth stressors
1. Parents getting sick and going to hospital.
2. Having a family member arrested.
3. Father or mother drinking.
4. Living in poor neighborhood where there is crime.
5. Leaving relatives friends behind when moving.
6. Parents not making enough to pay bills.
7. When other kids make fun of the way you speak English.
8. Not understanding the teacher when he/she explains something in English.
9. Getting into trouble in school.
10. When other kids (not Latino) talk about you.
11. Moving from one neighborhood to another.
12. Being pressured by friends to get into fights.
13. Being called bad names because you are Hispanic.
14. Being called names because you were not born in the United States.
15. When other kids make fun of the way you dress.
16. Living in a house with many people.
17. Not having enough Latino or Hispanic friends.
18. When you speak one language and your friends speak another.
19. Being pressured to speak only Spanish at home.
20. Being teased at home about not knowing how to speak Spanish well.
21. Being pressured to speak only English at home.
22. Making new friends at school.
23. Having to take care of your brothers or sisters.
(In court the perception may be; if the Judge, lawyer, etc., are not Spanish, there is no way they are going to understand me. If they speak Spanish, at least I can tell them how I feel using my own words. But, still if they speak Spanish, they will see me as a bad person for being in trouble.)
C. Asian youth
1. Chinese
2. Japanese
3. Southeast Asian
4. East Asian
5. Middle Easterners
6. Immigrants
a. Education
b. Economic resources
c. Network / support
d. A plan upon arrival
7. Refugees
a. Political oppression
b. Economic oppression
c. Cultural oppression
d. Forced removal from home
e. “Dropped” into American communities
f. Language problems
g. Cultural problems
h. Economic problems
(In court refugee youth may be from poor families, struggling in
peer relationships, alienated, lots of pressure by family to
conform. Embarrassment by adult family. Immigrant families;
many similar issues – fewer economic issues. Intense pressure
to “conform.” The more generations of Asian youth born in the
United States, the greater rejection of traditional Asian values
(e.g., group/community emphasis; interdependence; conformity;
patience/modesty; suppression of emotion; rigidity of role and
status.)
D. Native American youth
1. Native American is a person with one-fourth or more Native American blood.
2. 1995 Census – 2,242,000 persons identify themselves as Native American.
3. Highest birthrate.
4. Highest death rate.
5. Shortest life expectancy of any other group in the United States.
6. Hunger, malnutrition, obesity, and high risk of diabetes are problems.
7. Substance abuse, particularly alcohol is rampant.
8. Education issues are historically problematic, often viewed as a tool to destroy Native American culture and way of life.
9. No “typical” Native American family. There are tribes, and family structure and values differ from tribe to tribe.
10. Cultural perspectives may create problems for youth when in court.
a. Present oriented.
b. Human life in harmony with nature.
c. Group oriented; cooperation.
11. Many youth face identity crisis
a. Accommodate to majority culture.
b. Retain traditional customs and values and live apart.
(Native American youth suffer psychological strain under the
impact of cultural change. Progress is affected by being
caught between two cultures and immobilized from going in
either direction easily. Anger, frustration and alienation may
be anticipated.)
VIII. CULTURAL COMPENTENCY = LANGUAGE FLUENCY