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June 16, 2013

"Closing the Widening Net: The Rights of Juveniles at Intake"

The title of this post is the title of this notable new piece by Tamar Birckhead now available via SSRN. Here is the abstract:

Should juveniles have more, fewer, the same or different procedural rights than are accorded to adults?  This question, posed by Professor Arnold Loewy for a panel at the 2013 Texas Tech Law Review Symposium on Juveniles and Criminal Law, requires us to examine our goals for the juvenile court system.  My primary goal, having practiced in both adult criminal and juvenile delinquency forums for over twenty years, is to ensure that the reach of juvenile court is no wider than necessary, as research indicates that when children are processed through the juvenile court system and adjudicated delinquent, the impact is not benign.  Potential negative consequences of juvenile delinquency adjudications are felt in such areas as housing, employment, immigration and education as well as enhanced penalties for future offenses.  Further, longitudinal studies show that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the juvenile court system.

This Article, the second in a series on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the intake process, which operates as one of the primary gateways to juvenile court.  The Introduction describes a typical case, highlighting the shortcomings of the current process and the risks — short- and long-term — that they pose to juveniles.  Part II presents the nuts and bolts of the intake stage, including details regarding who conducts the screening, its purpose, and the assessment criteria applied.  Part III discusses the procedural rights of juveniles at intake according to the U.S. Supreme Court, state courts and legislatures.  Part IV analyzes what can — and often does — go wrong with the intake process, resulting in a wider net being cast around minorities and low-income children and families.  Part V offers proposals for reform, including providing counsel to children prior to intake; mandatory advising of children and their parents by the juvenile probation officer conducting the intake interview; and introducing an objective rubric for the evaluation of delinquency complaints by juvenile probation officers.

June 16, 2013 at 10:55 PM | Permalink


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A lot of juveniles processed and locked up in the "system" were not "offenders". A large aspect of this involves the mentally ill or mentally defective. They do not commit crimes but they get rounded up because they are insane or deficient. Another category are the abandoned kids. Or kids with parents in jail and no Aunt DoeDoe. Then there are offenses which are not really "crimes" like truancy. When I came of age as a lawyer the so called juvenile courts had just come into existence. I had a client who was my exact age who got locked up in the mental health system when he was seven and held until 1981. At one time he was diagnosed mentally retarded (now that word is outlawed) and at other times as mentally ill. He in fact had an IQ above borderline that was probably warped by the fact that he was locked up with adult nutcases since age 7. He had no DSM III diagnosis which would stick and in fact had not been really clinically diagnosed by a legit M.D. until we got him an evaluation. He has now been in the outside world for thirty years and has done no harm or crimes. I would name him but it might defame him.

One of my points here is be careful if you think you are protecting some human by imposing the juvenile court system upon him/her. The first age of reform was to not stigmatize and lock up a kid with adults for what they were not old enough to understand to be criminal behavior. But this morphed into not having to prove much in order to stick the kid into the juvenile ward or jail. A moral of this is to be careful what you preach or teach and remember that all humans should have the full panoply of constitutional rights.

Posted by: Liberty1st | Jun 17, 2013 1:05:34 AM

Lib: Give me one of your anecdotes, I will return 100 of juvenile organized crime members who need to be executed as soon as possible.

The criminal law suffers from both an unacceptable rate of false negatives and false positives. It is just bad. It itself is a crime, the result of a criminal cult enterprise infiltrating the three branches of government and imposing its sick supernatural doctrines, its feminist masking ideology all in pursuit of the rent. Rent seeking is a synonym for armed robbery. It is in utter failure. That is the lawyer profession, which must be controlled and excluded from all benches, legislative seats, and responsible policy positions in the executives. To save this country.

Posted by: Supremacy Claus | Jun 17, 2013 9:56:37 AM

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