As we celebrate Thanksgiving and enter the holiday season, I am reminded of our annual family tradition, one that I imagine is shared by many across the United States. After gathering around the table with our plates piled high with turkey, stuffing and all the trimmings, we take turns sharing what we have been most thankful for during the previous year. The items listed are usually things we’ve had the good fortune to receive — whether they are material and concrete like a new purchase or relaxing vacation or something more abstract, such as the love of family, the company of friends, or recovery from an illness.
Having just returned from Washington, D.C., for meetings and events related to my volunteer work with the Campaign for the Fair Sentencing of Youth (CFSY), I am rethinking what gives me the greatest satisfaction — and what I am most thankful for. CFSY is a national organization whose goal is to ensure that youth under the age of 18 are never sentenced to prison for the rest of their lives without hope of release. Based on the fundamental physical and emotional differences between youth and adults, CFSY believes that young people convicted of serious crimes should be held accountable for the harm they have caused in a way that reflects their capacity to grow and change. They believe that a just alternative to life in prison without the possibility of parole (JLWOP) is to provide careful periodic reviews to determine whether individuals convicted of crimes as youth continue to pose a threat to the community.
During my visit, I was able to speak with a critical group of supporters of CFSY — parents of children who were murdered by young offenders. These moms and dads, in tears as they told of the loss of their sons and daughters, made it clear that victims and survivors of serious crimes committed by youth endure significant hardship and trauma. They deserve, without question, to be provided with supportive services, and they should be notified about sentencing hearings related to their cases. What I wasn’t completely prepared for, however, was the depth of their commitment to ending JLWOP — even for the young offenders who had killed their own children.
For instance, I spoke with Linda White, whose 26-year-old daughter was killed by two 15-year-olds in 1986. In videos produced by CFSY, Linda has explained her perspective this way:
I understood the concept of getting even, but it seemed to me that it wasn’t quite what we needed. People can change. One of the two juveniles who killed my daughter is still in prison. One is already paroled and he’s a remarkably different person. It will never be about saying to him that it’s OK. He knows even better than I do that it will never be OK. But that’s not what forgiveness is in an issue like this.
At the CFSY reception that evening, Father Gregory Boyle addressed the group. Father Greg is a Jesuit priest and the founder and executive director of Homeboy Industries, a Los Angeles-based non-profit that provides hope to former gang members by offering them free job training, employment opportunities and supportive services ranging from anger management counseling to tattoo removal procedures. Founded in 1988, Homeboy Industries is now the largest gang intervention, rehabilitation, and re-entry program in the United States, assisting up to 1,000 people in any given month.
Father Greg sees his work as a calling. “I don't save people. God saves people,” he has shared in interviews. “I can point them in the right direction. I can say, ‘There's that door. I think if you walked through it, you'd be happier than you are.’” When asked how he can get up every day and smile at kids who use drugs, sell drugs, assault and steal, Father Greg has explained, “I would rather stand in awe of the burdens these kids bear than stand in judgment of the way they bear them.” In his book, Tattoos on the Heart, he tells the story of a homeless, heroin-addicted teenager named David who felt angry and disappointed with himself. “Look, David,” Father Greg told him. “You have to crawl before you can walk, and then walk before you can run.” David replied, his eyes filled with tears, “Yeah, but I know I can fly. I just need to catch a gust of wind.” For tens of thousands of young people, Homeboy Industries is that gust.
Driving back the next day to my home in North Carolina, I reflected upon the “three Ts” of philanthropy: time, talent, and treasure. I had just spent several days away from my husband and young daughters, putting 600 miles on an already beat-up car, sleeping on a friend’s couch, rushing around to meetings in a cold wind, and I realized that I didn’t feel depleted by my efforts but energized and inspired. I was struck by the truth underlying the cliché — that one of the greatest gifts is the opportunity to give of ourselves.
During the ride, I happened to catch a radio interview with Kevin Ryan, president of Covenant House International, the largest privately funded agency in the United States and Canada that provides shelter, food and crisis care to homeless kids. When asked how young people become homeless, whether they are runaways or have been thrown out of their homes, Ryan explained that for the vast majority of young people, it’s not a choice: “They're young people whose families imploded, could be because of drugs, could be because of poverty. It could be because a parent died. It could be because of abuse and neglect. Most of the young people who walk in the front door at Covenant House have endured very serious abuse.”
Ryan spoke of a young person who had endured 35 different foster care placements, and then at age 18, the Texas Child Welfare System “graduated him out the door,” ending its services. “There are more than 26,000 young people every year who leave public child welfare systems in the United States to nothing,” Ryan explained. “To no family, no guardian, no forever anything. It's just the streets.”
The interview concluded with the question of what Covenant House would do if it received unlimited funds from a generous donor. Kevin Ryan replied that he would expand the agency to serve more homeless kids and start health clinics at the locations that lack them. “Any pediatrician who practices with this group would tell you that the disease profile for homeless kids is quite significant and very worrisome. They look like a population that's much older than 18, 19, 20,” he said. “If we had unlimited resources, I'd want Covenant House to be a bridge to economic opportunity and healing for all the kids who are out there.”
So, when you are approached this holiday season with requests to donate your time, your talent, or your treasure, please remember that the solicitor is actually giving you a gift, rather than the other way around. They are providing you with an opportunity to feel a sense of joy, exuberance and inspiration, for what you will get back is so much more than what you give.
I plan to share these sentiments with my family and friends when we gather for our Thanksgiving meal on Thursday, and I encourage you to do the same. If the adults are distracted and the kids are clamoring for dessert, get their attention the way I did with this column’s headline: announce that you have a holiday gift for everyone.
In fact, now it’s time for you to open my gift. Please click on the links below, give one of the three Ts, and get ready to be inspired.
As with most natural disasters, the attention of the media was initially centered on the havoc wrecked by Hurricane Sandy. We were drawn to its most dramatic images – the dangling crane at the construction site of a luxury high-rise in Midtown Manhattan; the New York City building whose façade collapsed, resembling the open side of a dollhouse; the half-submerged roller coaster, all that remained of an amusement park on the Jersey shore; the river of water running through the narrow streets of Hoboken; and the weeping mother who lost two toddlers amidst the flooding on Staten Island.
We watched cable news. We texted REDCROSS to 90999. We donated canned goods and batteries.
Yet, consistent with human nature, our interest soon faded. As we resumed our regular activities, the media began another news cycle – focusing on the election results, the next nor’easter, a celebrity marriage or the latest grisly murder. It is unfortunate but inevitable.
Meanwhile, millions of Americans are left to pick up the pieces – just as they have after previous natural disasters, whether hurricanes, tornados, wildfires or earthquakes. They grieve for those who have died. They attempt to document the damage, file insurance claims and make repairs. They grapple with shock, depression and post-traumatic stress. They try to move on.
What is absent from the narrative, however, is the particularly severe impact that such disasters have on those who are already among our most vulnerable – the poor, infirm, elderly and mentally ill, many of whom fit into more than one of these categories.
New York City’s “Zone A” was the first to be evacuated in anticipation of Hurricane Sandy. It includes the Lower East Side of Manhattan and has 26 public housing developments and tens of thousands of residents. City officials turned off elevators, heat and hot water to these multi-story buildings on the Sunday evening before the storm, giving residents less than 24 hours to find a public shelter or another place to stay.
One 87 year-old woman, Margaret Maynard, was alone in her 16-story building for several days. Unable to reach family or friends by phone after the electricity went out, she wore layers of robes and wrapped a scarf around her head to keep warm. She said she’d been surviving on crackers and juice. Only after an NPR reporter shared a working cell phone was she able to arrange for someone to help her down the many flights of stairs and take her to her nephew’s home in Queens.
In the wake of Sandy, people remained in public housing units, doing their best to cope with the precarious conditions. Tall buildings without emergency lighting presented a particular challenge for the aged and disabled, who were unable to negotiate the dark hallways and stairwells. Phone lines were not operating or were continually disrupted. Toilets wouldn’t flush without water. Subway and bus lines were shut down and took many days to resume service.
In addition, thousands of low-income residents were unable to buy basic necessities – including groceries, paper goods and toiletries. Because power outages left vast swaths of the New York metropolitan area without electricity, many stores only accepted payment in cash. Yet those families and individuals who receive supplemental nutritional assistance (a.k.a. food stamps) do so electronically via debit cards, meaning that they lost the ability to make purchases.
It is undeniable that Hurricane Sandy has had a devastating impact on millions of people in New York, New Jersey, Connecticut and beyond. It is counterproductive to try to calculate who suffered more, who lost more, or who needs the most help in the months to come.
Yet the extreme disparities in income that already exist in the United States are even more stark during times of disaster. Before Hurricane Sandy touched ground, most people of means could leave – whether by car, train or plane. In addressing its impact, they can turn to their insurance agents and lawyers. If they or their loved ones need physical or psychological treatment, they have private health insurance. If their homes are destroyed, they have options and choices – stay in a motel or with family and rebuild, or request a job transfer, relocate and make a fresh start. None of this is easy, but it is easier with resources.
The media will soon direct its attention elsewhere, but let’s not forget those among us for whom the effects of the storm will continue to reverberate. For the most vulnerable, Sandy not only took away everything, but they have no means to get it back.
Professor Birckhead’s commentary is also posted at the Huffington Post.
DURHAM, N.C. -- The local detention center where my juvenile clients are held while their cases are pending is called the “Youth Home.” The irony of the label is never lost on me, as the contrast between the name and the reality could hardly be starker.
The rundown building is surrounded by barbed wire. Inside, kids sleep in narrow locked cells, no different from what you’d find in an adult jail. They are subjected to strip searches and attend an hour or two of “school” in a crowded room filled with a random selection of books.
Juveniles are detained here for a variety of reasons. Some have been deemed dangerous to the community as a result of past or current criminal charges. Others are runaways or throwaways whose parents say they have no other options. A good number are drug addicted or mentally ill children who are awaiting placement in treatment centers. Many are caught up in both the child welfare and juvenile justice systems, without family to support their release.
In speaking with kids over the years about their detention experiences, I mostly am told how boring it is and how lonely and sad they become. Some talk about having to learn to fight – or at least act like they could win a fight – in order to get by. And these are the good days.
Yet, in the scheme of things, conditions here are relatively benign.
Across the United States, juvenile detention facilities have come under increasing scrutiny. In Polk County, Fla., where youth are held in a wing of the county jail, allegations of mistreatment include the use of pepper spray and other chemical agents by guards. The Southern Poverty Law Center has initiated a class action lawsuit against Polk, with a trial set for May. At other facilities, there are reports of overcrowding, inadequate medical care and sexual predators.
According to the federal Office of Juvenile Justice and Delinquency Prevention (OJJDP), more than 30,000 young people are confined in short-term detention facilities annually. Of the approximately 730 facilities, county, city, or municipal employees staff the vast majority. In 2008, 42 percent reported using mechanical restraints (i.e., handcuffs, leg cuffs, waist bands, leather straps, restraining chairs, strait jackets, or other mechanical devices) in the previous month, and 45 percent locked youth alone in some type of seclusion. While the overall population of juveniles in custody is declining each year, the numbers and the conditions of confinement are sobering.
Repeated studies have demonstrated that locking up young people has little impact on recidivism rates and that ultimately it is harmful to the individual as well as the community. Research has shown that neither the type of offense nor the length of the sentence is an accurate predictor of whether a juvenile will reoffend. In fact, there is no significant difference between the rearrest rate for offenders who served probation versus those who were committed.
So, what is the alternative? Suspend the practice of reflexively placing young offenders in detention settings for both the short and long-term, whether for punitive or treatment-related purposes. In most cases, use community-based services, wraparound therapy for families, and outpatient treatment instead of removing adolescents from their homes and families. For those young people with no other options, turn our juvenile detention facilities and "training schools" into centers of rehabilitation that offer psychological treatment, vocational training and quality education.
We don't have to look far to find examples that work. Consider the Regional Youth Center in Waverly, Mo., or the New Beginnings Youth Development Center in Washington, D.C. These facilities have colorful dormitories and counselors who give hugs instead of concrete cellblocks and armed guards. They provide daily group therapy and a full day of academics instead of boot camps and solitary confinement. And they cost less to operate than traditional models, ultimately saving taxpayer dollars.
Just imagine if the Durham Youth Home were transformed. The razor wire would be removed, the cell walls taken down, and at-risk children and teens would be provided with support, services and education in a positive, affirming environment. Now that would be a place worthy of its name.
Professor Birckhead’s commentary is also posted at the Huffington Post.
In the 1993 book "Dead Man Walking,” Sister Helen Prejean tells the story of people directly impacted by capital punishment – convicted murderers counting down to their own executions, wardens and guards dutifully operating the machinery of death, and victims who are consumed by rage and grief.
Prejean’s book, upon which the popular movie was based, is much more than a memoir. Well-researched and annotated, it carefully explores the legal, ethical and philosophical issues raised by the most controversial form of punishment in the United States. But the power of the book comes from its candor – from the fact that Prejean began her journey without a clear perspective or opinion on the death penalty.
I read "Dead Man Walking" when it was first published. I had recently graduated from law school and was clerking for an appellate court judge. Although only vaguely interested in criminal law, I finished it quickly, engrossed by Prejean’s account of her experiences as a spiritual adviser for men on death row and moved by her struggle to find common ground with the families of victims.
I thought of this last weekend after reading Ethan Bronner’s article in The New York Times on reactions to Miller v. Alabama, the 2012 U.S. Supreme Court decision holding that mandatory life without parole sentences for juvenile offenders are unconstitutional. With more than 2,000 offenders across the country who may be resentenced as a result of Miller, Bronner focused on a single case – a pregnant teen killed by her 15-year-old boyfriend – and prominently featured an interview with the victim’s sister, Bobbi Jamriska, who is active in the National Organization of Victims of Juvenile Lifers.
Unlike Prejean’s book, but typical of most coverage of criminal sentencing, the Times article explicitly pits juveniles serving life sentences against victims’ families; it asserts without attribution that the decision in Miller threw "thousands" like Jamriska into "anguished turmoil at the prospect that the killers of their loved ones may walk the streets again.” Such hyperbole only perpetuates the notion that the ideal resolution is always to warehouse young offenders – without opportunity for review of their sentences – forever.
I do respect Mr. Bronner’s work, but I don’t agree with the way he handled this piece and I told him so.
In response to my email, he wrote in part: “… For some reason, you took the article to be an endorsement of Ms. Jamriska's perspective. It was an attempt to put a strong case forward for both sides in this issue -- that of the juvenile offender and the brain science that says juveniles must be judged differently from adults, and that of the victim's family. It was important to me to represent both sides. I'm sorry it didn't come across that way to you.”
Fair enough, yet contrast the Times piece with a recent video from the Campaign for the Fair Sentencing of Youth, in which parents of murder victims express sympathy for juvenile offenders and, ultimately, forgiveness. One mother, Mary Johnson, related that it was healing to watch O’Shea Israel, the youth who had killed her son 20 years earlier, develop into a respectable adult after his release from prison. As the two stood side by side, Johnson explained, "He’s not that 16 year-old boy that has taken my son’s life. He’s now a man. He’s turned his life around, and I know it’s genuine."
Jamriska and others have voiced a legitimate concern that post-Miller resentencing hearings will force victims’ families to "relive the horrors again."
One option is for these hearings to be narrowly focused on the offender – the young person’s background, the circumstances of the crime, and his or her role in the offense – rather than publicly reexamining the pain and loss experienced by the victims. Another option is for victim impact statements and other documentary evidence introduced at the original sentencing hearing to be considered anew, making it unnecessary for the victims' families to be physically present in court. Although hardly perfect, such procedures may provide the first steps toward an acceptable solution.
An additional issue may be addressed through reasoned discussion and education. In the Times article, Jamriska repeats a common refrain heard among victims and others who oppose the reconsideration of life sentences for youth: "I don’t care if you’re 5 or 50, you know that killing is wrong” – with the implication being that as long as an offender understood the wrongfulness of the act, the punishment should be the same regardless of his or her age.
Yet, there's a difference between capacity and culpability.Yes, most adolescents understand intellectually that to kill another human being is wrong. That is precisely why we condemn it and punish those who commit it. But because of the lesser culpability or blameworthiness of young offenders, the punishment should not be as harsh as it is for adults.
By the end of "Dead Man Walking", Prejean’s story has come full circle. She begins her narrative suspicious and judgmental of the men on death row; she sees only their brutal crimes, not the human beings behind them. Once she has connected with them, however, she is conflicted and avoids their victims. Prejean finds peace only after she has reached out to those victims, met with and listened to them – and they to her.
In the wake of the Miller decision, we must be sensitive to victims’ families and try to understand their desire for retribution – but at the same time we must emphasize that imprisoning juveniles for life is not the answer.
The words of Mary Johnson, who befriended O’Shea Israel, continue to resonate:
“The young people that have been given life without parole – we need to think about them as though they are our children. Give them the opportunity – if they’ve been worked on in the prison and have worked on themselves – give them the opportunity to come out and prove themselves, as O’Shea has done.”
Sister Helen Prejean would agree. Perhaps one day Bobbi Jamriska will as well.
Professor Birckhead’s commentary is also posted at the Huffington Post.
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.
Criminal practice – whether defense or prosecution – is guided by statutes passed by legislatures and court decisions written by judges. Equally important are the facts of each individual case – not just what investigation reveals but whether the evidence is admissible, as only reliable facts can be brought into evidence and considered by a jury. No two fact-patterns are exactly the same, and the presence or absence of a single fact can mean the difference between a conviction and an acquittal.
A large part of the power wielded by prosecutors comes from their initial charging decisions – determining under which statute the defendant should be prosecuted. Each part – or element – of each statute must be proven by the state beyond a reasonable doubt. If the prosecutor chooses a statute that doesn’t fit the evidence or if the admissible facts don’t fulfill all the elements required by the statute, the prosecution will fail. Similarly, if the prosecutor doesn’t advance a theory at trial that is consistent with the requirements of the chosen statute, the prosecution will fail.
This is what is meant by the state carrying the burden of proof. It is one of the cornerstones of the criminal justice system.
These are just some of the thoughts I’ve had while following the latest uproar over an appellate court opinion in a criminal matter. This time it’s a Connecticut Supreme Court decision reversing the conviction of Richard Fourtin for the offenses of attempted sexual assault in the second degree and sexual assault in the fourth degree, both of which require the prosecution to prove that the victim was “physically unable to communicate” her lack of consent to sexual intercourse.
Most of the facts are not in dispute. The victim is a woman with significant disabilities, including cerebral palsy, mental retardation, and hydrocephalus. Fourtin, the defendant, was her mother’s boyfriend. He lived nearby, helped care for the victim, and the victim liked him. Although she is nonverbal, the victim is capable of communicating with others by “gesturing and vocalizing.” She expresses her displeasure by kicking, biting, and scratching, and she can convey her feelings by groaning or screeching.
Fourtin was found guilty at trial, but because the state failed to produce any credible evidence that the victim was physically unable to convey the concept of ‘no’ at the time of the alleged assault, the Connecticut appellate courts reversed the conviction. As a result, Fourtin – who had served four years of a six-year sentence – was released and cannot be retried because of principles of double jeopardy.
Given the combination of such high-voltage facts as a severely disabled woman, allegations of sexual assault, and whether lack of consent was sufficiently expressed, it is not surprising that tempers have run high in the media’s coverage of the decision.
Initial reports wrongly stated that a rape conviction had been reversed because a disabled woman didn’t fight back. An op-ed deemed the decision a travesty of justice because a state’s highest court had blamed the victim. The story quickly morphed into a broader one about the return of “rape culture” where “good girls don’t get raped” and women are assumed to consent to sex unless they can prove otherwise.
Law bloggers, enraged by the mischaracterizations and inaccuracies, linked to the relevant texts -- the court’s opinion, the statutes, and the earlier cases upon which the decision was based. They argued that the law isn’t about feeling but about thinking. One went a step further, asserting that some people “feel more strongly about rape than they feel about rights.” The narrative was now about the defense bar “scolding progressives” for their reaction to the decision. A moderator for a liberal site responded to attempts to correct the record by telling a commenter to “shut the f*** up instead of being a rape apologist,” a message that disappeared almost as soon as it had been posted.
As someone who practiced for a decade as a public defender, representing many clients who were charged with rape and other forms of sexual assault, I naturally gravitated toward the position taken by the criminal defense bloggers.
Why won’t people read the opinion, look at the statute, and accept that it was the prosecutor’s mistake for charging the guy under the wrong statute, I wondered. Why are they determined to fit this scenario into an old cliché? Why blame the court for confirming that juries can’t convict someone for crimes he didn’t commit?
But then I remembered how some of my female friends reacted long ago to my career choice. It wasn’t just “how can you defend those people?” but “how can you defend men who victimize women?” and “how can you be a feminist and also a criminal defense lawyer?”
Each of us who does this work answers these questions differently, but the questions themselves haven’t changed and they continue to be asked. I’ve found that responding with a statement about the Sixth Amendment right to counsel can produce eye-rolling and that attempts to talk rationally about cases where women have made false accusations of rape nearly always fail.
Yes, I do know victims of rape, and as the mother of two girls, I desperately want “no” to always mean “no,” but my unqualified disgust with acts of violence against women does not lessen my commitment to the rights of the accused.
I did notice one positive sign amidst the brouhaha. It came from blog editor Xeni Jardin, the author of a post that calls the decision, “Your daily dose of rage.” After being inundated with comments and tweets pointing out the errors and misrepresentations in the coverage, Jardin updated the post by linking to law blogs that had provided “a different perspective” and including an explanatory comment from another blogger.
It wasn’t exactly an admission of guilt, but it was an acknowledgement that there was more to the court’s opinion than what had originally been reported. As I said, it’s not rocket science.
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.
Three days later, after smelling a strong odor coming from Cassidy’s room, her mother found the deceased newborn and placed a frantic call to the police. Upon questioning by homicide detectives, Cassidy confessed to choking the baby to stop him from breathing because she “didn’t know what to do with it.” Autopsy results have confirmed that the cause of death was asphyxia from strangulation and blunt force trauma. The ninth-grader is now being held at the county juvenile detention facility and ultimately could be sentenced to life in prison.
Of course, we’ve been down this road before. A teenage girl hides her pregnancy, gives birth in secret, and puts the infant in a trash bag or dumpster. The baby is discovered – sometimes alive, but more often than not, dead. The public responds with anger and disgust. The girl reports paralyzing fear and intense shame – for having sex, getting pregnant, not knowing what to do, and abandoning or smothering her own baby. The criminal justice system steps in, extracts a conviction, and imposes punishment – typically including a prison sentence.
In this instance, Cassidy Goodson, only 5’3” and 100 pounds, concealed her pregnancy with baggy clothing. Although family members suspected she might be pregnant, she produced home pregnancy tests that were negative. Some blame her mother for the infant’s death, claiming that Teresa Goodson was “in denial.” Others blame the girl, stunned by her seeming cruelty. “It’s repulsive and it makes us all sick to our stomach,” Polk County Sheriff Grady Judd has publicly stated. He has also told journalists, “Her son was still connected to her by the umbilical cord when she choked him to death. I just can’t get over that.”
We are left with two central questions: how do we prevent these situations, and once they occur, how do we deal with them?
The answer on the front end seems easy, but in reality it is not. Although teen pregnancy has been on a long-term decline in the United States since the late 1950s, the teen birth rate remains one of the highest among industrialized countries. In 2010, more than 365,000 American teenagers bore children, with the highest rates for African-Americans and Latinas. Meanwhile, our government funds $50 million annually for the promotion of sexual abstinence outside of marriage and our schools teach about abstinence more frequently than methods of contraception – despite the lack of evidence that abstinence-only education is effective. Further, although most teens receive formal instruction about the prevention of sexually transmitted infections (STIs) and HIV, roughly nine million new STIs occur annually among U.S. teens and young adults, with particularly high rates of gonorrhea and chlamydia.
As for what happens after a mother has committed infanticide (the killing of a child under a year old) or neonaticide (the killing of a newborn), the legal history is revealing. In 17th century England, single women found to have concealed the death of their infants were criminally prosecuted for murder and punished by death. By the late 18th century, acquittals for these crimes increased, and by the late 19th century, prosecutions decreased.
In 1922, England passed the Infanticide Act, amended in 1938, providing that a woman who killed her child would be prosecuted for the lesser crime of manslaughter. Since that time, the majority of women charged under the Act have been presumed to be acting under postpartum hormonal imbalance or a dissociative state; most receive psychological counseling and community service instead of prison sentences. More than 20 countries, including Greece, India, Italy, Korea, New Zealand, and Turkey, follow this approach.
In the United States, however, not much has changed in the past 400 years. The media sensationalizes the crime, and the public responds with alarm. The legal system shames and punishes the mother, and the cycle continues. Infant safe haven laws have been enacted in many states as an incentive for mothers in crisis to relinquish their babies to designated locations, but pregnant teens are poorly positioned to take advantage of these programs. If we are to reconsider how we respond to these acts, we must take steps to understand the causes of infanticide and deal with its complexity.
It may be too late to change the ultimate outcome for Cassidy Goodson, but thousands of other young girls are currently hiding their pregnancies in our neighborhoods and communities. They feel panicked, confused, and alone.
They are children having children, and we must help them.
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.
The two-hour conversation had an intensity I had not felt in past years. One judge spoke of her belief that no other forum in the criminal justice system was more important than juvenile court. She told of a case that had made a lasting impression – four 14-year-old boys were charged with felony breaking and entering into a residence and several counts each of injury to personal and real property.
The judge showed us photos of the destruction the teens had wrecked – broken windows, furniture turned upside down, clothing and other possessions dumped on the floor. The boys had urinated on the beds and had scrawled racial epithets and swastikas on the walls of the children’s room. After admitting to the offenses in juvenile court, the teenagers were stone-faced, showing no signs of remorse.
Then it was time for disposition and the victim’s opportunity to speak. A carefully dressed woman who took pride in her home, she turned to the boys who were all looking away. Minutes passed. Folks sitting in the courtroom started to grumble, angry with the juveniles and impatient to see them punished. When the boys finally met her gaze, she uttered only three words: “I forgive you.”
The judge shared how the woman’s compassion released a torrent of emotion in the young men – first tears, then expressions of regret. We talked about juvenile court’s emphasis on accountability as well as forgiveness and about its potential to effect change.
During the second half of the panel discussion, the conversation turned to the economy and the impact that the downturn has had on the resources available to juveniles. One probation officer spoke about long-term detention facilities (also called youth development centers or YDCs) – the secure institutions where young people are committed for terms of at least six months.
“Detention centers don’t change behaviors,” the officer told us, “but they may modify them.” He emphasized the critical need for transitional residences to house youth after they are released from YDCs and before they are returned to their families. At one time these “multipurpose homes,” located in rural areas of the state, provided small groups of kids with a treatment-oriented, community-based program for up to 12 months. Yet they were closed with a recent round of state budget cuts, and nothing has replaced them.
Without the option of programs to assist young people with the reentry process, the officer explained, some kids act out in an effort to extend their stay at the YDC. They deliberately violate rules of the facility – even to the point of assaulting someone – because they know they’re not yet ready to leave and face the temptations of the street. For others, the prison-like setting provides the basics they would otherwise lack – electricity, hot water, and reliable meals – and gives them a rare opportunity to relax and feel like kids.
A student raised her hand and spoke about her experiences assisting adults in reentry programs in New York. The probation officer suggested that she attend a meeting with him and others to discuss transitional alternatives for juveniles in North Carolina. She readily agreed.
Earlier that day, I had been worried that the panel discussion would not go well – that conversation would be stilted or students would lose interest. The class meets in the late afternoon, when it’s not easy to stay alert and engaged. But my concerns had been unwarranted.
As I packed up my papers at the close of the session, several folks lingered to continue talking. A prosecutor spoke animatedly and gave out her email address. A student announced that she wished there were more time because she still had questions. A probation officer hugged me.
I was somewhat stunned. Here we had gathered together, listened to each other and made connections. Although we fulfill very different roles in the juvenile court system and often disagree, for a couple of hours we set all that aside.
My grandmother would have been proud.
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. Cristian himself was born to a twelve year-old child, a girl who was sexually assaulted by a 25 year-old man. At age two, he was placed in foster care after he was found, naked and dirty, wandering the streets of South Florida at 4 a.m. His young mother had disappeared. His grandmother, entrusted with his care, was holed up in a nearby motel, high on cocaine.
We listen and reluctantly acknowledge the boy’s history. But it doesn’t excuse killing your own kin, we say. Even twelve year olds know the difference between right and wrong. Right…?
Yet, the litany continues. We learn that Cristian was sexually abused at age eight by an older cousin. He acted out in troubling ways that caught the attention of officials – killing a kitten, masturbating at school, and simulating sex with classmates. At eleven, living with his mother and her new husband in a Miami suburb, he came to school with a severe eye injury. When he was examined at the hospital for retinal damage, Cristian told police that his stepfather had punched him in the face. Officers arrived at their apartment only to find the man dead by a self-inflicted gunshot wound.
The family tried to recover. They moved north to Jacksonville. Cristian entered middle school, but the damage had been done.
Within months, two-year-old David was also dead, his skull fractured and his brain bleeding. Cristian admitted to the crime. The boys’ mother, now 25, was charged with aggravated manslaughter. She had left her small children alone with Cristian and failed to take the unconscious toddler to the hospital quickly enough to save him. She has pled guilty and could face 30 years in prison.
Meanwhile, Cristian’s case is pending. After his five-year-old half brother told a psychiatrist that Cristian had sexually assaulted him, another charge was added.
Investigators, therapists, and lawyers have since weighed in. Some say that Cristian’s actions were triggered by a “flashback” to his stepfather’s abuse, that police violated his rights, and that he lacked the intent necessary to commit the crimes. Others say that he poses a significant risk to the community if released, that he should be held accountable for his crimes, and that he must be punished as an adult, for he was old enough to “know better.”
Motions will be filed; hearings will be held. Reporters will ask questions, and more articles will be written.
Despite the intense degree of media attention given to such incidents, homicides committed by children under 14 are exceedingly rare in the United States. According to the U.S. Department of Justice, there were only 29 in 2010, the most recent year for which statistics are available.
So, the question becomes a choice between different theories of punishment: retribution or rehabilitation. Must we exact revenge on children when they murder other children? Must we cast them out of society until they are old and enfeebled, as we do with the majority of adults convicted of homicide?
Or might these concepts be immaterial when sentencing young offenders? Instead of fashioning a proportionate punishment for the death of one child at the hands of another, why not commit ourselves to the surviving child’s healing? Shouldn’t society bear some, if not most, of the responsibility for these tragedies? Rather than spend hundreds of thousands of dollars on the criminal prosecution and imprisonment of a young offender like Cristian Fernandez, why not invest those monies and resources toward his recovery?
Last week as I celebrated the Jewish New Year, my rabbi reminded the congregation that the oft-used phrase, “l’chaim,” does not mean, “to a single life,” but “to lives.” In other words, when we toast to the future, to happiness, and to health, we are not merely hoping for our own wellbeing but for the good of all.
One child’s life has already been lost. Must we lose another?
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.
“Thank you for sharing that,” the judge told her softly. “We want you to find the right way to handle your anger so we can get you the help you deserve. You need to let other people in and not to push them out.”
Sarah’s lawyer put his arm around her shoulder. Her probation officer handed her a tissue. The judge announced that she was accepting the probation officer’s recommendations and that Sarah would remain on the same conditions of probation that had been imposed months earlier. A review date was set for the next month.
As the hearing concluded, the judge spoke once more. “Sarah,” she said, “nobody’s giving up on you.” Then the judge asked to meet with the girl in the corridor.
The court officer announced a brief recess, and when Sarah returned ten minutes later, she was no longer crying. As she joined her lawyer and caregivers, the judge called after her, “Don’t forget what I said. I will see you again soon.” Sarah turned toward the judge and smiled.
I don’t know what words were exchanged between the judge and Sarah outside the courtroom, but I felt that I had just witnessed something special. A teenager had accepted responsibility for her actions, and the adults around her had responded with the right balance of solemnity and empathy. Sarah left knowing that her behavior was unacceptable and needed to change but that she wasn’t alone.
Although the hearing took place in an urban district court with a crowded docket, the judge devoted nearly 45 minutes of careful consideration to the matter. Sarah’s defense lawyer had been well-prepared and spoke effectively. Her caregivers were present and committed to their work. Sarah had an opportunity to speak and be heard.
Given my years in delinquency court, I knew that there would be further bumps along the road for her, but today, at least, Sarah’s experience in the juvenile justice system was a positive one.
The difficult question is whether this scenario can be replicated for other children. Like many juveniles, Sarah is caught up in both dependency and delinquency courts, and while these systems are not – and never will be – perfect, she is seemingly being helped. At 14, it is unlikely that she will ever be formally adopted into a family, but it’s possible that she can gain the life skills needed to become a productive member of the community.
Through practicing, teaching, and writing in this area, I have found that it’s easy to focus on everything that is wrong with juvenile court – and there is, admittedly, a lot in that category. Perhaps if we try harder to identify what is right about the system – or at least instances in which cases go particularly well – we can more effectively find models that work.
The principle lesson learned from Sarah’s case is the necessity of having an adequate block of time for each disposition. In my experience, at least 30 minutes is the minimum amount needed for a judge to gain a sense of a child, to hear from her caregivers, and to forge a connection. Will this be challenging for busy juvenile courts with limited personnel and budgetary constraints? Yes, of course, it will. Is it worth it? One needs only to glimpse Sarah’s smile as she left the courtroom to know the answer.
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.
A poorly mixed world indeed.
It is hardly surprising that Americans spend the largest percentage of their income on housing and that residential areas are now segregated not only by race and ethnicity but also by socioeconomic class. In 1970, 66 percent of us lived in middle-income neighborhoods; in 2008, the percentage had dropped to 43. At the same time, the numbers of those at the furthest extremes of poverty and wealth have increased by 60 percent. As a result, we are much more likely than 40 years ago to reside in areas where the majority of our neighbors – whether rich or poor – are from the same income class.
This means that children like Daniel are next door to other struggling families, all too overwhelmed to help each other. It also means that children like mine rarely encounter peers who do not have an over-abundance of material goods, blinding them to their own privilege.
Segregated residential areas create unequal access to public resources – parks, community centers, and playgrounds – as well as to amenities such as sidewalks, streetlights, and public sewer and water lines. Such segregation also translates into unequal exposure to environmental and social hazards, such as pollution and crime.
Perhaps most critically, homogeneous neighborhoods mean homogeneous schools. Yet, even in school districts that are integrated by class, upper-income families generally spend nine times as much on their children as low-income ones. Data show that in 2012, parents of school-age children expected to spend an average of $688 at the start of the academic year, 14 percent more than last fall. Sixty percent of those surveyed planned to buy some type of electronic device.
Family income is also closely related to academic performance, and as the income gap has widened, the achievement gap has also widened. In fact, the achievement gap in families from the highest and lowest income levels is 30 to 40 percent larger among children born in 2001 than it was 25 years ago. Family income is now nearly as strong a predictor of a child’s success in school as the parents’ level of education.
So, how do we remedy a situation in which children who live in adjacent – though very different – neighborhoods have little or no opportunity to interact? What values are we promoting when future achievement is determined by economic status? When will we confront the fact that social mobility is no longer possible for many Americans?
My students often tell me that the most profound aspect of their law school clinic experience is getting to know their young clients. These bright and motivated students are on the brink of their professional lives. They are open-minded. They are capable of effecting change.
Given the speed with which technology is advancing, I imagine that the world will continue to feel small. For children like Daniel and my own girls, however, it must first be more effectively mixed.