Postadjudicatory Juvenile Defense Attorneys: More Thoughts on Reimagining Juvenile Justice

• Author: Megan F. Chaney
• Pages: 491-530

POSTADJUDICATORY JUVENILE

DEFENSE ATTORNEYS:

MORE THOUGHTS ON REIMAGINING

JUVENILE JUSTICE

MEGAN F. CHANEY*

“The idealized vision of a responsive and well-functioning system may

serve an especially important function as a polestar to guide a lawyer’s

practical decision-making in a dysfunctional system when the swirl of the

‘way we do things around here’ threatens a loss of direction.”1

I. INTRODUCTION

Clifford, a seventeen-year-old Hispanic child from an urban

environment, is adjudicated delinquent after taking a plea that reduces

aggravated battery on a pregnant woman, a second-degree felony, to

simple felony battery. In the adult court, his exposure is fifteen years to

life in prison. A juvenile court judge orders him to attend anger

management classes, to abide by a curfew set by his mother, and to refrain

from any violent interaction with the victim—his twenty-year-old sister

who is pregnant with her first child and who also resides with Clifford and

their mother. Clifford agonized over whether he should go to trial or take

the plea because he knew the charges against him were serious. Yet, he

also knew what was currently occurring at home was no different than

what had been occurring his whole life.

Clifford and his sister fought over possession of an old football jersey

his sister’s ex-boyfriend gave Clifford. His sister determined that, because

it was her old boyfriend’s jersey, it was her jersey. Jersey tug-of-war gave

way to screaming and pushing, until someone within earshot called the

police. No matter how it appeared from the outside, it was the same old

Copyright © 2014, Megan F. Chaney.

* Associate Professor of Law, Shepard Broad Law Center, Nova Southeastern

University; B.A., Bard College at Simon’s Rock, 1995; J.D., Benjamin N. Cardozo School

of Law, Yeshiva University, 2000. Thank you to Wayland M. Morrison II, Kent R.

Brinkley, and Amy Williams Smith, who collectively made up my cheerleading squad;

Dan Lewin, Vanessa Seblano, and Berkin Aslan—my pinch-hitting student researching and

editing team; and my greatest gratitude to Cari Shapiro—my right hand. Thank you also to

Capital University Law Review and the National Center for Adoption Law and Policy for

their Ninth Annual Wells Conference on Adoption Law and symposium publication.

1 Katherine R. Kruse, Standing in Babylon, Looking Toward Zion, 6 NEV. L.J. 1315,

1321 (2006).

492 CAPITAL UNIVERSITY LAW REVIEW [42:491

situation for Clifford. He remained, even at six feet tall and nearly

eighteen years old, the “baby boy” in a female-dominated household where

he rarely, if ever, got his way or felt understood. To Clifford, that was

unlikely to change with a new baby girl on the way, destined to live in his

family home.

Unfortunately for him, and for his juvenile record, this was not the first

time Clifford was arrested. However, this was the most serious charge.

Thus, at first glance—and at the briefest glance from the state attorney

viewing the case—Clifford was the typical juvenile delinquent, exhibiting

escalations in violence, who deserved the standard sanctions. The judge

felt the same way and indicated that Clifford had better get his act together

and stop hitting pregnant women or he would find himself in custody.

Before making the decision to take the plea, Clifford paced in and out

of the courtroom. He disappeared completely before the plea colloquy. He

took a long walk around the juvenile hall neighborhood. He appeared

indecisive, angry, and ambivalent to anyone paying attention. When asked

if he was satisfied with the result, Clifford said, “No, because nothin’ was

gonna change.” Clifford’s inexperienced public defender, who thought

taking a plea to a reduced charge that protected his criminal record and

limited his sanctions was “no-brainer,” viewed him as difficult and defiant.

For Clifford, it was a crossroad. He knew when he got home his sister

would have all the control. She was not likely to change; the court was not

ordering her to change. She was belligerent, selfish, rude, bossy, and

unkind. His mother seemed preoccupied by the birth of her first

grandchild. Clifford was largely ignored, unless he made his presence

known or demanded anything—then he was verbally attacked and usually

assaulted. With two years of probation hanging over his head, and the

likelihood that both the new baby and his sister would not be leaving his

childhood home, he was inevitably going to be arrested again. Since they

were little children, every fight between Clifford and his older sister

resulted in some form of physical violence, usually initiated by her.

In order to protect his record and to avoid being arrested again,

Clifford would need to leave home. However, leaving home would

potentially thrust him further into a criminal lifestyle: he had not finished

high school; he did not have a job; and the majority of people he knew had

at least one foot in the criminal justice system already. To Clifford, being

caught in the juvenile justice system placed him in an untenable situation.

He reacted poorly, although typically, to this impossible puzzle because of

his age and poor problem-solving skills. He was largely uncommunicative

because he thought his predicament was obvious—and if no one was

acknowledging it, then no one cared. He appeared aggressive and

2014] POSTADJUDICATORY JUVENILE DEFENDERS 493

ungrateful and, therefore, not worth saving by the stakeholders in the

system.

Clifford’s juvenile public defender did the job she was entrusted to do.

She evaluated the charges against him and determined that overwhelming

evidence, coupled with his previous record, would result in stiff sanctions

if Clifford proceeded to trial. However, preservation of his juvenile record

was not Clifford’s most pressing problem. His juvenile record had,

however, become the focus—and rightfully so—for the lawyers who knew

that the juvenile sanction could have a lasting and detrimental impact on

Clifford’s future. Clifford’s family dynamic was his most pressing

problem, and no sanction was going to change that. After Clifford was

adjudicated delinquent, his juvenile public defender concluded

representation and moved to the next client. She would not see him again

unless he violated his probation.

Who advocates for Clifford to help him manage and define the

probationary period to which he was committed? Did the defense lawyer

visit with Clifford’s family and figure out what they needed in this difficult

time preceding a new baby? Will she now that Clifford is adjudicated?

This is doubtful, as it is not her role. Should Clifford’s programming

include balancing his needs with those of his family? Did the defense

attorney order educational tests to determine Clifford’s educational and

vocational aspirations or what his behavioral triggers are? What will help

Clifford manage a realistic recidivist prevention plan?2 While this is often

the role of a probation officer, or even a guardian ad litem, both of these

roles are beholden to the state or to Clifford’s “best interest.” Clifford

would be more likely to trust the system, thus respecting its mandates, if he

2 One commentator has noted:

To increase offender self-control and to reduce impulsivity,

successful relapse prevention programs seek to develo p an internal self-

management system “designed to interrupt the seemingly inexorable

chain of events that lead to an offense.” Once the chain of events

culminating in criminal behavior is identified, “two interventions are

employed: (a) strategies that help the offender avoid high-risk situations

and (b) strategies that minimize the likelihood that high-risk situations,

once encountered, will lead to relapse.”

David B. Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, 5

PSYCHOL. PUB. POL’Y & L. 1028, 1029 (1999) (footnote omitted) (quoting Robert Prentky,

A Rationale for the Treatment of Sex Offenders: Pro Bono Publico, in WHAT WORKS:

REDUCING REOFFENDING 155, 166 (James McGuire ed., 1995)).