WASHINGTON — New federal guidelines aim to make it easier for states to show they are registering juveniles convicted of certain sex offenses.
The Department of Justice this week released final guidance that says states will have greater flexibility to show they are in compliance with the Sex Offender Registration and Notification Act (SORNA).
SORNA, part of the Adam Walsh Child Protection and Safety Act, requires states to include on sex offender registries juveniles who are 14 or older and adjudicated delinquent for serious sex offenses. If states do not, they lose federal grant money. The law also includes registration requirements for adult sex offenders.
Under the new guidance, if a state is not in “exact conformity” with the law’s provisions, federal officials will consider other factors that show whether a state’s discretionary policies still meet the requirements.
For example, officials will consider how states:
- prosecute juveniles as adults for sex crimes;
- register juveniles adjudicated delinquent for sex crimes;
- identify, track, monitor or manage adjudicated juveniles in the community; and
- keep records of adjudicated juveniles as needed for public safety purposes.
“This expansion recognizes that jurisdictions may adopt myriad robust measures to protect the public from serious juvenile sex offenders, and will help to promote and facilitate jurisdictions' substantial implementation of all aspects of SORNA,” the guidance said.
Registering juveniles for sex offenses is a controversial practice, one that many advocates and researchers say is harmful to youth and counter to public safety. Of the comments submitted on the guidance before it was finalized, none supported a stricter interpretation of the law, and many pushed for Justice to go further or eliminate juvenile registration entirely.
Most states are not in compliance with SORNA, and juvenile registration is often a sticking point for officials who doubt its efficacy, said Nicole Pittman, director of the Center on Youth Registration Reform at Impact Justice.
Since SORNA took effect, Justice has periodically loosened the juvenile registration requirements to encourage compliance. But the department can go only so far without running afoul of the requirements of the law, a situation officials noted in the guidance. Pittman said that points to the need for modification to the Adam Walsh Act.
“It’s really loud and clear this is as far as we can go,” she said.
In May, a subcommittee of the Federal Advisory Committee on Juvenile Justice, which makes proposals to Congress and the White House, recommended that all juveniles who were under 18 at the time they committed a sex offense should be exempt from all sex offender registration, community notification and residency restriction laws.
In comments, youth advocates and researchers also said they have concerns the guidelines will encourage state practices that run counter to reforms that recognize youth are different than adults.
A coalition including the Campaign for Youth Justice, the Juvenile Law Center and the National Juvenile Defender Center said in a comment letter that criteria that focuses on whether juveniles are charged as adults for certain offenses risks sending more minors to criminal court. They also raised concerns about whether states would loosen confidentiality protections.
“This is the opposite direction that your office and the nation are moving in juvenile justice and could have serious consequences for youth and communities,” they wrote.
Justice disagreed, saying in response to the comments that “these guidelines do not encourage prosecution of juveniles as adults.”
The guidelines took effect Monday.
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Given the high rate of torment suffered by LGBT youth in custody, activists applauded last week’s finalizing of a landmark law that took nine years to get from adoption to implementation.
Last Monday, the federal Department of Justice finalized a set of guidelines under the Prison Rape Elimination Act that could help stem the risks of the already at-risk LGBT population that is incarcerated, including minors.
“We were already working on this issue while PREA was being passed, but this raises awareness,” said Sarah Schriber, senior policy analyst with the Chicago-based Health and Medicine Policy Research group and community convener for the Illinois Court Involved LGBTQ Youth Task Force.
According to Schriber, few juvenile detention center personnel even knew what the existing anti-harassment rules were. “A much harder part is making those policies meaningful on the ground,” she said. “We’re really lagging in education.”
Along with anti-harassment policy, the new regulations create federal requirements for employee training and place limits on cross-gender searches and screenings, ensuring they only happen behind closed doors with a licensed medical practitioner.
Much of this work was already underway in Illinois, due in part to a coalition of researchers, lawyers and justice department personnel. In 2010, the Illinois Court Involved LGBTQ Youth Task Force was established to draft better policy for the Illinois juvenile justice system and lead employee trainings.
Two years later, the task force has led trainings for nearly every Cook County Juvenile Temporary Detention Center employee who works directly with youth, educating personnel on policy and broader issues and on definitions related to sexual orientation and gender identity.
Similar workshops are being held for juvenile prisons, run by the State of Illinois Department of Juvenile Justice, as well as Cook County juvenile probation employees.
The issues facing LGBTQ youth in custody are often invisible to juvenile justice personnel and policy makers, because many young people choose not to self-identify, said Mykel Selph, director of the Office of Girls and Gender at Cook County Juvenile Temporary Detention Center.
But a 2010 study by Angela Irvine, director of research at the Oakland-based National Council on Crime and Delinquency, found 13 percent to 15 percent of youth in the juvenile justice system consider themselves gay or gender non-conforming. In the overall population, 5 percent to 7 percent of youth identify this way.
According to a recent report by the Center for American Progress, LGBTQ youth are more likely to end up in the juvenile justice system, likely due to higher rates of bullying and harassment and lower social support at home.
Once in custody, research suggests gay and transgender youth may be more likely to experience sexual assault and harassment.
Research from 2007 by the California Department of Corrections and Rehabilitation found 67 percent of gay or gender non-conforming men reported sexual assault by other inmates, a rate 15 times higher than among heterosexual, non-transgender male inmates.
Some sexual abuse and harassment stems from housing gender non-conforming youth with members of their biological sex. In the nation’s juvenile justice centers, a young transgender woman must still live among young men.
“People assume if you put a transgender female in a female unit, that person will assault others,” Schriber said. “Often it is the other way around.”
In Chicago, Cook County Jail has begun housing transgender women with other women, but Schriber said the policy is harder to change for youth facilities.
“People don’t understand that gender identity is pretty well established early on,” she said. “They think it’s a phase.”
The PREA guidelines mandate that “in deciding whether to assign a transgender or intersex resident to a facility for male or female residents, the agency shall consider on a case-by-case basis whether a placement would ensure the resident’s health and safety.”
But there are smaller changes detention centers can make to create a safer environment, Selph said.
Allowing transgender boys to wear boxers or having every youth in custody wear the same clothing, instead of blue and pink t-shirts, can go a long way in helping a transgender youth’s mental wellbeing, Selph said.
“Homophobia can happen in a very subtle, unintentional way,” Selph said, during a recent gathering of experts and practitioners hosted by the federal Office of Juvenile Justice and Delinquency Prevention. “When we talk about safety, emotional safety is implied but not focused on in a deliberate [way.] It is emotional safety that is of the utmost importance.”
Christie Thompson is a reporter with the Chicago Bureau
Photo by Advancing Transgender Equality
When most people think of gangs and the criminal activity often associated with them problems of the inner-city may come to mind -– issues that are far from their manicured suburban lawns, something that could never touch their lives directly.
But the demographic makeup and geographic location of gangs are changing, according to Rebecca Petersen, author of Understanding Contemporary Gangs in America and a Criminal Justice Professor at Kennesaw State University near Atlanta*.
“We have seen this trend of gangs moving out of the city and into the suburbs for 20 years now,” Petersen said. “We don’t associate the suburbs with people being poor or homeless, but it’s one of the fastest growing populations [in the suburbs].”
While gangs are not exclusively comprised of low-income members, the correlation between harsh economic conditions and the proliferation of gang activity has been documented in communities around the country since at least the late 1980s.
In the decade leading up to 2010, the suburban poor in major-metropolitan suburbs grew by 53 percent, compared to an increase of 23 percent within the cities, according to the Census Bureau. As a result, the majority of the traditionally urban poor population now resides in suburban communities throughout the United States. In 2010, suburbs housed about a third of the nation’s poor, outranking major urban centers that accounted for about 28 percent of the impoverished population.
Part of the problem, Petersen noted, is that many suburbs and outlying towns don’t have well developed social support systems or infrastructure to deal with the influx.
A number of factors contribute to the shift of population to the suburbs, including immigration, availability of affordable and subsidized housing and economic stagnation. According to a 2009 study by the National Youth Gang Center, quality of life issues, such as employment or educational opportunities, were the most significant factors in gang member migration, and not the expansion of existing criminal activity.
“More often than not it’s not a gang migration, but an individual migration,” said George Knox, Director of the National Gang Crime Research Center, adding that family ties and economic opportunities usually underpin the relocation of gang members. “It’s not as if [a gang] suddenly got together and took a vote on whether to move.”
Nationally, gangs have been migrating from the inner city to suburban communities for more than three decades, starting slowly in the 1970’s and becoming “entrenched in many suburban communities across the nation” during the 1990s, according to the "Attorney General's Report to Congress on the Growth of Violent Street Gangs in Suburban Areas" in 2008. According to the same report, suburban gang migration also contributed to an increase in violent crime, including homicide, within a number of the suburban communities they moved to.
For example, in 2007 law enforcement officials in Irvington, N.J., a Newark suburb, reported 23 homicides for the year – 20 of which were gang related.
“The suburbs just aren’t geared for this type of issue,” Knox said. “Usually [the suburbs are] more vulnerable, and gang members know this.”
According to Petersen, most gang-related violent crime was directed at rival gang members, while a variety of less-serious offenses made up the majority of overall gang criminal activity.
Looking at arrests in Cobb County, Ga., an Atlanta suburb, Petersen found that about 60 percent of gang member arrests were for misdemeanor offenses. The most common crimes included property damage, drug possession, theft and burglary – along with arrests for robbery, aggravated assault and statutory rape.
From Atlanta, a closer look:
In metro Atlanta, gangs have long been seen as a largely black, inner-city problem. But when Peterson moved to the city in 2002 she was “shocked” to learn that the majority of gangs were of Hispanic origin and mostly operated away from the city center.
“Immigrants are moving to the suburbs as their first step when arriving here in the United States,” Petersen said, “where before they would typically go to the cities, and then the suburbs.”
In Cobb County, Ga., the focus of Petersen’s recent research, Hispanics account for about 74 percent of the known gang population – a demographic trend that is mirrored in national data.
“All you have to do is drive up and down the highway in Atlanta to see the evidence of gang migration,” Knox said.” There’s MS 13 (a notorious Hispanic street gang) markings prominently displayed everywhere.”
Unlike in the past, many of these gangs don’t claim “turf,” or a given geographic area with strict boundaries, as their own, Petersen said. Instead, members can be scattered across a wide area and often travel outside their own neighborhood to commit criminal activity.
Gang recruitment, especially among Hispanics, largely takes place in middle school where kids are still impressionable and have a stronger desire to fit in than older teens, Petersen said. For law enforcement, it’s also a time to drive home the dangers and consequences associated with gang life.
Since Cobb County’s inception of the Cobb Anti-Gang Enforcement (CAGE) Unit in 2002, the operation has documented more than 53 different gangs with more than 600 known members. Petersen said the actual number of gang members is likely three times that of known members.
Gang involvement declined throughout the late 90S until hitting an all-time low in 2003. Since then, the number of gangs around the country has slowly crept back up, but still hasn’t hit previous highs. Gang activity continues to be largely centered around major metropolitan areas, with two-thirds of all gangs residing, the National Gang Center reports.
*This is a publication of the Center for Sustainable Journalism at Kennesaw State University.
Juvenile sex offenders in Ohio will no longer be required to register as sex offenders for life, the state’s Supreme Court ruled last week. The 5-2 decision ruled the lifetime requirement is cruel and unusual punishment, reigniting a national debate on how young people convicted of certain sexual offenses should fare under the criminal justice system.
The majority opinion found certain parts of the Ohio Adam Walsh Act enacted in 2008 unconstitutional. Many states expanded laws pertaining to juvenile sex offenders following federal legislation in 2006 that sought to standardize how young sex offenders were classified and registered across the nation.
“Registration and notification requirements frustrate two of the fundamental elements of juvenile rehabilitation: confidentiality and the avoidance of stigma,” Ohio Justice Paul Pfiefer wrote in the court’s majority opinion. “Confidentiality promotes rehabilitation by allowing the juvenile to move into adulthood without the baggage of youthful mistakes.”
As a population, juveniles convicted of sexual offenses reoffend at a lower rate than their adult counterparts and juveniles charged with other delinquent behavior, according to the National Center on Sexual Behavior of Youth. About 5 percent to 14 percent of juvenile sex offenders
reoffend recidivate by committing some form of criminal offense, compared to 40 percent of convicted adults and anywhere from 8 percent to 58 percent of juveniles who participate in other delinquent behavior.
Ohio was among the first to comply with near identical state-level laws, Pfiefer noted, yet since then many states have refused to follow suit – based largely on opposition to lifetime registration and notification requirements.
In 2011, the U.S. Attorney General Eric Holder modified guidelines to the federal law, Title I of the Adam Walsh Act, also known as the Sex Offender Registration and Notification Act (SORNA), removing the requirement that lower jurisdictions publicly disclose juvenile sex offender information following adjudication and making it optional for states to provide the same information to sex offender websites, schools and other specified groups.
That same year, the first comprehensive survey looking at state laws for juvenile sex offender registration was published. Among the findings in “A Snapshot of Juvenile Sex Offender Registration and Notification Laws: A Survey of the United States:”
- Juveniles are subject to sex offender registration and notification requirements in 35 states.
- Seventeen of the states requiring registration of juveniles adjudicated delinquent do not subject them to adult registration requirements.
- Juveniles are subject to lifetime registration in seven states.
“It feels like almost every state objects to the cost and the juvenile [privacy] issues,” Human Rights Watch Researcher and author of the snapshot, Nicole Pittman, said – adding that only three states (New York, California and Texas) have officially refused to comply. “Law enforcement does not feel it’s necessary to track kids like they do adult predators, and it’s taking away valuable resources.”
“It’s not an effective tool.”
Despite efforts to regulate the classification and handling of juvenile sex offenders across the nation, the study found that state registration requirements varied widely more than five years after the federal legislation went into effect.
The range of state laws is due, in part, to varying interpretations of SORNA, Pittman said.
With the Supreme Court set to hear oral arguments in a case that could determine the constitutionality of life sentences without parole for juveniles, a new report looks at the lives of the more than 2,300 people currently serving life sentences for crimes they committed before they turned 18.
The new report, “The Lives of Juvenile Lifers,” analyzes the findings of a first-ever national survey of this unique prison population.
“The goal was to find out more about who these people are, their community and background,” Marc Mauer, executive director of the Sentencing Project, which produced the report, said during a conference call Wednesday.
Ashley Nellis, the report’s author and a research analyst at the Sentencing Project, said the intention was to highlight the individual stories of those serving sentences of life without parole.
“A lot of times we hear solely about the offense for which they are serving,” she said. “They are more than just their crime.”
Many came from troubled homes. According to the survey, nearly 80 percent of those serving juvenile life without parole sentences (JLWOP) experienced high levels of exposure to violence in their homes. More than half witnessed weekly violence in their neighborhoods.
“More than a quarter of those surveyed had a parent in prison,” Nellis said.
JLWOP sentences are fraught with controversy. Mark Osler, a professor of law at the University of St. Thomas in Minnesota and former federal prosecutor, points to research showing juveniles’ brains do not fully develop until they are in their 20s.
“The science we see emerging is propelling us to think of youth brains as different from adult brains,” Osler said. “We’re not looking at the same brain that is going to emerge later.”
The history of juvenile courts bears that out, Nellis said.
“We used to account for the important differences between youth and adults,” she said. “As a society we felt strongly that kids were different from adults and that’s why we developed a separate juvenile justice system. Now the system has shifted and we are quick to throw these kids’ lives away.”
The U.S. Supreme Court ruled in 2010 that JLWOP sentences were unconstitutional for all crimes except murder. But according to Nellis, the United States is no longer handling juvenile crime the best way possible.
“Overall,” she said, “our findings show that our society is off track in the way that we punish youth for their misdeeds.”
The system began to change in the 80s and 90s following an upswing in juvenile violent crime, Nellis said. Politicians warned of teenage “superpredators” and pushed for tougher sentences. But the statistics never caught up with the perception and the so-called superpredators “never arrived,” Nellis wrote in the report.
“We now know through this experiment that ‘tough on crime’ does not work,” she said during the conference call. “It doesn't work on young lives that are not done maturing.”
Juvenile life sentences also show “a disturbing racial disparity,” Nellis said. According to the report, the racial dynamics of victims and offenders may play a large role in determining if an offender receives a life sentence.
“The proportion of African Americans serving JLWOP sentences for the killing of a white person (43.4 percent),” Nellis writes in the report, “is nearly twice the rate at which African American juveniles are arrested for taking a white person’s life.”
Osler is concerned the sentence is given out too easily.
“When we think about a sentence we have to worry that it’s being used arbitrarily and that there are things such as race that are bubbling up,” he said.
Currently 33 state allow JLWOP sentences.
Also on the conference call was Linda White of Houston, whose daughter was murdered by two juveniles. Life sentences without parole were not an option when the offenders were sentenced. Over time, she said, one of the offenders showed significant growth and she now has a “caring relationship” with him.
“At the time [of sentencing] I probably would have been happy with a life without parole option had it been available,” she said. “I have a completely different opinion today. Today I believe that it is not only unscientific but inherently cruel to sentence juveniles to life sentences without the hope of parole or release.”
“We’re living in the midst of a revolution in neuroscience, molecular biology and genomics,” said Dr. Jack Shonkoff, chairman of the National Scientific Council on the Developing Child, at Tuesday’s “Breakthrough Research on Building Better Brains” presentation in Atlanta.
The lecture, sponsored by the Arthur M. Blank Family Foundation Speaker Series and the national nonprofit research center Child Trends, focused on the influence of “toxic stress” on the development of children, which Dr. Shonkoff called both a major psychological and physiological detriment to youngsters.
He began the presentation by speaking about the “plasticity” of brains for young children, which he said is firmly influenced by early childhood experiences.
“Early life experiences are built into our bodies, for better or for worse,” Dr. Shonkoff said. “Things that happen early in life are creating physiological changes later on.”
He said children that experience a lack of response from adults, primarily parental figures, in their formative “birth-to-5” years are much likelier to suffer from “toxic stress,” which he said may potentially weaken neuroconnectors in the brain.
Dr. Shonkoff said that “toxic stress,” which he defined as “prolonged activation of stress response systems in the absence of protective relationships,” generally increases the likelihood of individuals developing depression, substance abuse issues and even cardiovascular disease later in life.
“The pileup of adversity affects the brain,” he said.
He criticized what he considered the “fragmentation” of health, education, economic development and human services, stating that he was a proponent of a more comprehensive model. “An integrated science of early childhood development,” he said, “could drive more productive investments across sectors.”
He said that parenting education, sound nutrition, stimulating experiences, and health-promoting environments were vital to modern “developmental trajectories”, stating that those that ignore such issues are doing so at their own peril. Dr. Shonkoff, a pediatrician by trade, said that when adversity levels overwhelm the capacity of programs to counteract toxic stress, children are much likelier to experience impaired health and development.
“All of us have a huge investment in improving outcomes,” he said. “It’s a compelling moral imperative.”
Dr. Shonkoff said that in the United States, early childhood policies and programs are often relegated to education issues.
“But it’s only half the story,” he said. He added that the “same roots of disruption” found in early childhood education can also be linked to health issues. The matter of childhood development, he said, is as “much about disease prevention” as it is schooling.
“An integrated science-based logic model could inform more effective early childhood policies and programs,” he said. “Science has more to offer now than politics and ideology”
He said that “new approaches” to strengthen parent and service provider capabilities are needed to combat the effects of toxic stress, especially regarding parents with limited education and income.
Dr. Shonkoff said that differences in the pre-frontal cortex development in children of varying social classes can be apparent as early as infancy. “What’s missing isn’t information, but skills building,” he said. He then referred to the key neurological development periods of early childhood and adolescence as “windows of opportunity we really ought to be grabbing.”
He said that, typically, the difference between healthy development and poor development in children was a matter of “biological adaptation or disruption” in the form of “supportive, stable relationships,” which he said was the most important aspect in determining the environmental “toxic stress” levels in the lives of young children.
“The goal is around the relationships children have with the important people in their lives,” he said. This is especially significant regarding parents in need of economic support, he noted.
“We can improve outcomes for children,” Dr. Shonkoff said, “[but] we have yet to show that we can eliminate the disparities.”
New research on brain development showing abuse, neglect and poverty may have lifelong negative consequences for children will be featured in a program sponsored by the Arthur M. Blank Family Foundation Speaker Series.
Dr. Jack Shonkoff, director of Harvard’s Center on the Developing Child, will present a program Feb. 28 titled “Breakthrough Research on Building Better Brains.” Shonkoff’s research identifies “toxic stress,” persistent, highly adverse experiences that damage a child’s brain circuits. Toxic stress may include living with physical abuse, emotional abuse, neglect, exposure to violence, severe maternal depression and prolonged economic hardship.
Consequences of living with toxic stress may persist into adulthood and include poor learning and higher rates of heart disease or substance abuse.
“Dr. Shonkoff’s findings cement the importance of improving the health and well-being of our youngest children,” said Penelope McPhee, president of The Arthur M. Blank Family Foundation. “As we come together with business and government leaders to improve outcomes for young children, this kind of research is critical to maximizing the return on our investment.”
The program will be webcast live beginning at 6 p.m. EST. The Blank Family Foundation will partner with national nonprofit research center Child Trends to produce the webcast. Child Trends president Carol Emig will be on Twitter during the webcast highlighting key points.
Damian Browning, 16, Marietta High School
“I see 2012 as a chance to keep my grades up, think clearly and level headed and stay sober. I was 14 when I started drinking and 15 when I started smoking weed. The probation I’m on actually is a big help in keeping me sober, but my parents have really wised up to what I was up to and are paying close attention. Plus, I’ve got a new baby brother (born around Thanksgiving). When I see him, I just think what I was doing is not worth it.
“Right now, I’m making the best grades I’ve made ever and I’m beginning to think about college. I’d like to be an architect or design engineer one day. My resolution is to keep those things in mind and work hard toward achieving them and be a good role model for my brother.”
Tomorrow, Meet Nick
[This article was reprinted with permission from YouthToday]
The U.S. Supreme Court ruled today in a 5-4 decision that said a police officer must take a child’s age into consideration when determining whether to issue a Miranda warning to a juvenile suspect.
The case, J.D.B.v. North Carolina is the latest in a string of cases in which the high court has applied protection to certain groups of juveniles. The court banned the juvenile death penalty in the 2005 Roper v. Simmons case, and last year ruled in Graham v. Florida that life without parole sentences were unconstitutional for juveniles convicted of any crime other than homicide.
“This represents the court’s settled commitment to its view that kids are different,” said Marsha Levick, deputy director and co-founder of the Philadelphia-based Juvenile Law Center. “It’s just a further shoring up of that direction they’ve been moving in for last several years.”
Justice Sonia Sotomayor, writing for the majority, said, “So long as the child’s age was known to the officer, or would have been objectively apparent to a reasonable officer,” law enforcement and the courts must factor age into a decision to give a Miranda warning to a juvenile suspect.
“Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances,” wrote Sotomayor, joined in her opinion by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
“This does not mean that a child’s age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore.”
Dissenters in the case – Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas – expressed fear that the decision would be the first of many to obscure Miranda guidelines past their usefulness.
The justices heard oral arguments in March in the case, which involved a 13-year-old boy who was questioned by police at his school in connection with two home burglaries. The teen was questioned in a closed (but not locked) room, in the presence of a police investigator, a police officer who was assigned to the school and an assistant principal.
J.D.B. initially denied being involved in the break-ins, and was advised by his assistant principal to “do the right thing.” J.D.B. was then told by the investigator that the case would be going to court, and that he might be detained before trial, at which point the boy confessed to the crimes.
The investigator then told J.D.B. that he did not have to answer further questions and was free to leave. The teen continued to answer questions until the end of the school day, and then went home.
It is the first time since the Miranda v. Arizona ruling established the current custody analysis in 1966 that the high court has mandated the consideration of a factor specific to the individual in question. The Miranda process historically only requires officers (and courts upon review) to consider specific circumstances such as where questioning occurred, how long it lasted or whether any physical restrain was used to keep a suspect in a certain place.
The majority cited a number of previous cases to bolster its argument that age is a factor worthy of distinguishing from other potential considerations about an individual.
“A child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action,” Sotomayor wrote.
Sotomayor’s opinion cited Haley v. Ohio’s finding that in the specific context of police interrogation, events that “would leave a man cold and unimpressed can overawe and overwhelm a” teen, and quotes from the Roper v. Simmons case that ended the juvenile death penalty: juveniles “are more vulnerable or susceptible to . . . outside pressures” than adults.
Writing for the dissenting justices, Justice Samuel Alito voiced concern that the decision in J.D.B.could lead to a “fundamental transformation of the Miranda custody test – from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda Court found to be unsatisfactory.
“I have little doubt that today’s decision will soon be cited by defendants – and perhaps by prosecutors as well – for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus,” Alito wrote. “Indeed, there are already lower court decisions that take this approach.”
More specific to the case at hand, Alito argued that juveniles are already protected in school by Miranda’s requirement that setting be a factor.
“The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems,” he wrote.
And juveniles are protected in general, Alito said, by the ability of judges to assess the voluntariness of their communication with police under the Fifth and 14th Amendments.
“If Miranda’s rigid, one-size-fits-all standards fail to account for the unique needs of juveniles, the response should be to rigorously apply the constitutional rule against coercion to ensure that the rights of minors are protected,” Alito wrote. “There is no need to run Miranda off the rails.”
During the oral arguments in March, Alito challenged J.D.B.’s attorney Barbara Blackman on whether or where a bright line should be drawn as to what age range must be specially considered by law enforcement. Alito expressed wariness over using the case of a 13-year-old who may not have understood that he could walk away from questioning to mandate protection for older teens.
“Sympathetic cases can make bad law,” Alito said during the oral arguments. “So take the same set of facts and let's hypothesize that this is a 15-year-old. Would the 15-year-old appreciate that he could go? Or make him a street-wise 17-year-old.”
He returned to this line of discussion in his dissent.
“Most juveniles who are subjected to police interrogation are teenagers nearing the age of majority. These defendants’ reactions to police pressure are unlikely to be much different from the reaction of a typical 18-year-old in similar circumstances. A one-size-fits-all Miranda custody rule thus provides a roughly reasonable fit for these defendants.”
The majority was not persuaded by that argument.
“Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether,” Sotomayor said. “Not once have we excluded from the custody analysis a circumstance that we determined was relevant and objective, simply to make the fault line between custodial and noncustodial ‘brighter.’ "