Justice for children: how do we get there?

• Author: Geraghty, Thomas F.
• Position: Symposium on the Future of the Juvenile Court

1. INTRODUCTION

   A. THE CONTEXT

   This article is the response of a lawyer who represents children charged with crimes in juvenile court to those who call for the abolition of the juvenile court(1) and for placing increased criminal responsibility upon delinquent youth.(2) I argue that the juvenile court and the juvenile justice system (including community-based support programs for children and families) should be retained after being reinvigorated with both financial and human resources.(3) These investments will allow the juvenile courts to perform credibly--even when dealing with the relatively few "serious" or "violent" offenders who now pass through our juvenile justice system.

   I make this argument because I see daily the tragic impact of the criminalization of the juvenile court and referral of my clients to criminal court and believe that this trend does not serve victims or society at-large. The acts of a very few children and their access to guns drive the campaign for "get tough" measures which include increased transfer of youth to criminal court and, tragically, the marginalization of juvenile courts.(4) In the course of representing the increasingly young children who find themselves in jeopardy of becoming defendants in criminal court,(5) I learn about their experiences and about what has brought them to this tragic point. I do not claim that this perspective is unique or that it should be the only perspective considered in this debate. But it is an important perspective that has heretofore carried relatively little weight.(6)

   My perspective is informed by practice in the Juvenile Court of Cook County, and so admittedly some of the lessons I have learned and the conclusions I draw may be parochial. I leave it to the readers with knowledge of other juvenile court systems to judge whether my conclusions resonate with theirs.

   I begin with an attempt to contextualize my observations and conclusions by describing a case which places in focus the competing interests and tensions involved in deciding whether children should be tried in juvenile or criminal court. I then describe and address the uncertainties which cause many to question whether juvenile courts have a future. Next, I discuss the reasons for believing that juvenile courts can and should be revitalized to address the concerns of critics and why our adult criminal justice system will not "do justice" to children. Finally, I articulate an admittedly imprecise vision of what juvenile courts of the future might look like, taking into account present failures, successes, and new challenges. I argue that the best ideas for revitalization of the court to meet new challenges are most likely to come from the lawyers who represent children.

   B. A CASE

   In an effort to make my arguments and my perspective more concrete, let me describe a composite of the increasingly typical case seen in the clinical program at the Northwestern University School of Law and the juvenile Court of Cook County.(7)

   1. The Crime

      The neighborhood is gang-controlled. The gang's major source of income comes from the sale of drugs. The gang has a hierarchy. The bottom rung is occupied by the ten to twelve-year-olds, including my client, who do the bidding of older members of the gang. My client's biological family consists of his mother and several siblings. An older gang member, age twenty-one, engages my client to sell drugs. An occupant of a large apartment building, outside of which drugs are being sold, calls the police to report the drug dealing. The drug trade is temporarily disrupted. The older gang member tells one of his younger "employees" to bum the building down. Late one evening, a fire starts in the building. An elderly woman dies of smoke inhalation. Other occupants of the building are injured as they attempt to flee the burning building. The person who complained about the gang's drug selling says that she thinks she sees my client coming out of her building just before the fire started.

   2. My Client

      My client is thirteen-years-old. He is charged with murder of the elderly woman who died in the fire. The State wants to try him as an adult. He is the smallest person I have ever represented. When he sits up straight at counsel table in juvenile court, his chin rests on the surface of the table. His I.Q is 54. He reads at a third grade level. His record contains eight prior "station adjustments"(8) and three referrals to juvenile court--all occurring within the last eighteen months. At the time of this incident he was on probation for criminal damage to property. He seems to have little comprehension of what is going on around him in court. When he was placed on probation six months ago, the juvenile court judge who sentenced him ordered the Department of Children and Family Services (DCFS) to find him a residential placement. He was sent home to await placement. No placement was found. The DCFS worker was looking for a placement when my client was arrested for the murder. The only assistance or guidance he received during the four months he spent at home waiting for placement were two counseling sessions.

      The client's narrative of his family history and of his alleged involvement in the crime is difficult to obtain and to organize. He lacks the ability to recount these "stories" spontaneously and accurately. Much work needs to be done by his legal team to gather information from him and from the members of his family. Social workers, psychologists, and psychiatrists are enlisted to help develop a family history and to identify educational deficits and emotional and psychiatric needs.

      The work of the lawyer, social worker, psychologist, and psychiatrist team reveals that our client is heavily gang-involved, primarily as a result of the gang allegiance of his older brother. Our client is failing in school. He attends school infrequently. His mother is a single parent who is unemployed. She is challenged by the task of nurturing and supporting her two sons and three daughters, all under age seventeen.

   3. The Courtroom

      The courtroom is in the Juvenile Court of Cook County, a building which contains not only the sixteen delinquency courts, but also the sixteen neglect and abuse courts as well. In addition, the building houses the Cook County juvenile Temporary Detention Center, where children in custody pending trial are held. While waiting trial in the Detention Center, they attend school, some for the first sustained period in their lives. They are also well fed. There are no adults facing criminal charges housed with the children in the Temporary juvenile Detention Center. The Detention Center is, however, overcrowded with almost a third more children there than it is licensed to accommodate.

      In the courtroom during the hearing are my client, my colleagues and law students on the defense team, the judge, the prosecutor, the probation officer, and the victim's family. With the victim's family is a witness advocate from the prosecutor's office. The victim's family occupies the first row of seats. My client's family sits behind the victim's family. My client sits between his lawyers at counsel table.

      If you were to approach counsel table from the rear as you enter the courtroom, you would be struck by the comparison in size between his two lawyers, whose bodies are both below and above the table, and my client, who, except for his head, is below the table. My client doodles on a legal pad while the testimony is presented. He is not listening. He nudges his lawyers when he has drawn something of which he is particularly proud.

   4. The Evidence

      A police officer testifies that my client admitted to him that he acted as a "lookout" while other youngsters went into the building. The police officer cannot recall if my client said anything that supports the prosecution's contention that my client played a part in the scheme to set the fire. The judge rules that the state has made a showing that a grand jury would probably indict.(9) The state presents a probation officer and a psychiatrist who describe the child's history and mental status. Neither the probation officer nor the psychiatrist recommend transfer to criminal court. We present a psychologist who has diagnosed our client as having a conduct disorder with adolescent onset,(10) the significance of which, our witness contends, is that my client is a good candidate for treatment interventions.

      All of the witnesses agree that my client will probably be rehabilitated within the seven years that he would be required to spend in the juvenile Division of the Department of Corrections if he were to be convicted of murder in the juvenile court. We call the DCFS worker responsible for finding a placement for our client. He testifies that indeed no treatment or services were provided. Closing arguments are given.

      My colleagues and I leave the courtroom convinced that our client has understood little about the nature and purpose of the proceedings that he has just witnessed. He understands even less about the momentous decision that the juvenile court judge is about to make about his future. His lack of comprehension persists despite our repeated efforts to explain to him the significance of the transfer hearing.

      Why begin this article with an example from the real world of community, courts, and practice? Because the example places in perspective the dilemmas involved in charting the course of the future of justice for children. Without taking into account such examples, we are unlikely to fashion solutions which respond to realities. What is the level of the moral responsibility of my client? To what extent should we take into account factors such as the capacity of his family to nurture him, his subservience to older gang members, and his low intellectual functioning? Can the juvenile justice system "rehabilitate" my client so that, assuming he is now "dangerous," he will no longer be so when released? What kind of...