When the Law Doesn’t Fit the Crime: Lessons from the Blogosphere

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Practicing criminal law is not rocket science. It’s also not open-heart surgery. But it’s more than just slapping a slice of cheese between two pieces of bread and calling it a sandwich. Although there are occasional dramatic wins and devastating losses, it is often dull and technical. This is part of the reason why earning a law degree requires years of study and why a comprehensive examination must be passed before you can receive a law license.

Changing our Response to Infanticide

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The facts are still coming in. All we know is what the media is reporting: a newborn is dead, a 14 year-old girl has been charged with first-degree murder, and a grand jury indictment means she will be tried as an adult.

According to a news release from the local sheriff’s office, on Sept. 19, 2012, Cassidy Goodson went into labor in the bathroom of her family’s mobile home in Lakeland, Florida.  To hide her cries of pain, she placed a towel in her mouth and ran the water in the faucet. She used a pair of scissors to pry the nine and a half pound baby out of her womb and into the toilet, where she squeezed its neck until it stopped moving. Then she cleaned up the bathroom, showered with the dead baby, and placed the infant’s body in a shoebox along with her soiled clothes and towels.

Building Bridges Instead of Walls

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Growing up, I lived a short bike ride away from my grandmother.  An elementary school reading teacher, she was always a source of stability for me. When I would go to her with my problems – an argument with a friend, a disagreement with my mother – she would remind me to take a step back and try to build a bridge instead of a wall. With this lesson in mind, I do my best to have cordial interactions with everyone in the court system, though at times it can be trying.  Emotions fly, tempers flare and the inevitable happens: defense attorneys become annoyed by prosecutors, probation officers are frustrated with judges, and we all suffer the effects of working within an adversarial system. A couple of weeks ago, we had our annual panel of speakers from the local juvenile courts in the seminar that I teach each fall.  Judges, prosecutors and probation officers are invited to share their insights and experiences with our 24 third-year law students who defend children charged with crimes in delinquency court.

When Children Kill Other Children

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Last week there was yet another  heartbreaking report of a child killing another child.  This time the news came from Jacksonville, Florida.  Cristian Fernandez is accused of beating to death his two-year-old half brother, David, when he was just twelve years old.  The state has charged Cristian with first-degree murder.  He is being prosecuted as an adult and could face a life sentence. Stories like this get a lot of media attention.  Reporters swarm and sensationalize.  The public consumes and wants more.  To sell their papers, to drive traffic to their web sites, the press complies. He sounds like a bad kid, we think as we read the details.  Only a monster would commit such an act, we tell each other.  He must be truly evil, we conclude as we turn the page to the next tragedy. But wait, there is more.

Taking the Time to Make Juvenile Court Work

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A couple of weeks ago, I was in juvenile delinquency court and as often happens, a particular case got me thinking – and rethinking – about the system as a whole. A 14 year-old, whom I will call Sarah, was charged with misdemeanor assault.  She had hit another girl at the foster care facility where the two were living.  Sarah readily admitted to the charge, and the judge then moved to disposition, similar to sentencing in adult court.  A counselor reported that Sarah was receiving therapy and doing well in a class at the mediation center on “conflict coaching.” Her probation officer recommended that she remain on court supervision under the same terms.

The judge, however, wasn’t satisfied.  “I’m concerned,” she said to Sarah sternly.  “This is the third or fourth adjudication for assault in the past two years.  What is changing to help you get in charge of your emotions?”

Sarah stood and looked down at her hands.  “I don’t know.”  The courtroom was silent. “Your Honor,” her public defender began, standing with his client.  “Sarah has experienced significant trauma.  She is struggling with serious issues that are deep-seeded.  This is not to excuse her behavior, but to explain that she is receiving therapy and making improvements.”

As the hearing continued, I learned that Sarah’s father had never been a presence in her life and that her mother had died several years earlier.  She had been in residential group settings ever since. “Why do you become angry?” the judge asked the girl.  Sarah spoke haltingly. “When I see other people with mothers and fathers, I get upset,” she whispered.  Tears ran down her cheeks.

For Children and Families, It’s a Poorly Mixed World

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The academic year has started at the law school where I teach third-year students advocacy skills and legal doctrine in the area of juvenile courts and delinquency. At the beginning of each semester, I meet individually with each of my students in the Juvenile Justice Clinic to get a sense of their backgrounds, interests, and expectations. I answer their questions and try to assuage their concerns, for within a matter of weeks they will be traveling to unfamiliar neighborhoods for client interviews, learning North Carolina criminal law and procedure, and appearing in juvenile delinquency court for motions and hearings. In one recent conversation, I used the phrase, “It’s a small world,” when a student mentioned someone I had known decades ago.  “Actually,” he replied, with a half-smile, “it’s not a small world; it’s just a poorly mixed world.”

That evening I recalled a visit I had made several years earlier to the home of a juvenile client. The boy, whom I’ll call Daniel, resided a mere mile from my house. He was 12 and lived with his parents and three younger siblings in a single-story concrete structure that was more like a free-standing garage or outbuilding than anything else; inside it was sparsely furnished, dark and dank. I had never been on his block and was unfamiliar with the surrounding streets. Upon entering and seeing there was no place to speak with Daniel alone, I sat with him outside on the curb. We discussed his court case, and I learned that he had severe learning disabilities, asthma, and a hearing impairment that resulted from chronic ear infections. I went inside and spoke with his parents, well-meaning folks who worked when they could find jobs and did their best to patch together what was left of the social safety net to feed and clothe their children. They offered me a soft drink, and I tried not to flinch as a cockroach scrambled over my feet. Then I went home. At that time, I lived with my husband and two daughters on a cul-de-sac in a tony subdivision with a soccer field and lush backyards. There were rooms in our house that we rarely used.  After two and half hours with Daniel and his family, the five-minute drive failed to prepare me for the culture shock I experienced upon entering my neighborhood.

The Age of the Child

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When I first began practicing in juvenile delinquency court in North Carolina eight years ago, I was shocked to discover that the maximum age of jurisdiction is 15. This means if you are 16 or 17 and charged with a criminal offense, you are automatically prosecuted in adult criminal court. There are no exceptions, no possibility of waiving the rule, and no second chances. So, when a 10th grader pushes another student in the hallway of a school that has a zero-tolerance policy, the 16-year-old will face misdemeanor assault charges in criminal district court.  Likewise, a 17-year-old prosecuted for stealing a bike from a neighbor’s garage would face charges of breaking and entering as well as larceny.

Sentencing Youth as Adults Harms Us All

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On August 15, 2012, when most teenagers were enjoying the last few weeks of summer vacation, 16-year-old Fernando Garibay-Benitez was shot in the head outside an apartment complex on Rolling Green Court in Raleigh, N.C. A rising sophomore at Millbrook High School who played soccer, Fernando was dead when police arrived. By the end of the next day, a 13-year-old and a 15-year-old had been arrested in connection with the shooting. Their names have not been released, because state law requires that juvenile court records be withheld from the public absent a court order. The juveniles have been charged with first-degree murder. If the state demonstrates at the next hearing that there is “probable cause” or a reasonable ground to suspect that the youths committed the crime, they will be tried automatically as adults in state superior court. Consistent with the recent U.S. Supreme Court decision in Miller v. Alabama, if convicted they will face sentences of either life without parole or life with the possibility of parole after 25 years imprisonment. It has not always been possible for kids as young as 13 to be prosecuted as adults in North Carolina, but a single case two decades ago brought about a change in the law. When 13-year-old Gregory Gibson brutally murdered an elderly widow in 1992, he was given the harshest penalty available at the time: commitment to juvenile prison (formally known as “training school” or “youth development center”) until his 18th birthday. As a result of public outcry over the state’s inability to try Gibson as an adult, the Legislature subsequently lowered the minimum age of transfer to 13. North Carolina is not alone in its ability to try very young teens in adult criminal court. In fact, more than 30 states allow for this type of “transfer” to occur at age 13 or younger, with approximately 20 states not imposing any age restriction at all for certain offenses.

Delinquent by Reason of Poverty

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With the publication of Michelle Alexander’s provocative book, "The New Jim Crow: Mass Incarceration in the Age of Colorblindness," our attention has been drawn to the troubling reality that the majority of young African-American men living in our cities are either incarcerated or on probation or parole. As a result of the ill-conceived “War on Drugs,” our communities of color have been decimated, and a vast population has been left unemployable and disenfranchised. Professor Alexander powerfully demonstrates that America’s racial caste system did not end with the outlawing of state-sanctioned segregation but merely reconstituted itself. With the demise of Jim Crow, the criminal justice system now functions as our society’s system of racial control. Yet, there is an important piece of this picture that has been overlooked.

OP-ED: Shameful Treatment of Children in Meridian, Miss. Is Not the Only Example of School-to-Prison Pipeline

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In recent years, juvenile justice advocates, lawyers, policy-makers, and reformers have increasingly sought to raise awareness of the American phenomenon of the “school-to-prison pipeline.”

The term refers generally to the process in which substandard public schools fail to provide adequate support and resources for at-risk children and their families, resulting in high drop-out rates and ultimately leading to court-involvement, detention and incarceration. More specifically, the term refers to the pattern in which students who have committed school-based wrongdoing — whether by pushing another child in the hallway, taking a pencil from a teacher’s desk, or disrupting class — are summarily arrested, charged with violating a criminal offense, and prosecuted in juvenile delinquency court. After a judge finds them delinquent, youth are then placed on probation and court-ordered to comply with a long series of conditions, typically including that they not be suspended (or not be suspended again) from school. In many jurisdictions when a juvenile on probation is suspended — even for a minor infraction at school — the consequences of the violation may include incarceration in a detention center. Research has shown that youth who are disproportionately impacted by the school-to-prison pipeline are likely to be those who are already the most vulnerable: low-income students, children of color, English language learners, youth in foster care, students with disabilities (whether physical, psychological, or developmental), and homeless children.