“She's Nobody's Child/the Law Can't Touch Her at All”: Seeking to Bring Dignity to Legal Proceedings Involving Juveniles
| Published date | 01 January 2018 |
| Date | 01 January 2018 |
| DOI | http://doi.org/10.1111/fcre.12324 |
“SHE’S NOBODY’S CHILD/THE LAW CAN’T TOUCH HER AT ALL”:
SEEKING TO BRING DIGNITY TO LEGAL PROCEEDINGS
INVOLVING JUVENILES
1
Michael L. Perlin and Alison J. Lynch
Inquiries into a range of issues involving juveniles in the psychiatric hospitalization and criminal trial process reveal that, regu-
larly, juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest, trial, conviction, and
institutionalization, shame and humiliation that are often exacerbated in cases involving racial minorities and those who are
economically impoverished. We contextualize them into the juvenile justice system, and look specifically at how this is
reflected in the case law. We then consider these findings through the filters of therapeutic jurisprudence and international
human rights laws, concluding that these approaches best remediate the current state of affairs and infuse this system with
badly-needed dignity.
Key points for the Family Court Community:
We discuss why and how all relevant aspects of the legal system shame and humiliate juveniles, and deprive juveniles
of dignity, whether in the civil commitment system, the criminal justice system, or the correctional system.
We explain why this shame and humiliation disproportionately affects racial minorities and those who are economi-
cally impoverished.
We discuss why the application of international human rights law and therapeutic jurisprudence can best remediate
this shame and humiliation.
Keywords: Civil Commitment; Criminal Procedure; Dignity; International Human Rights Law; Juvenile Delinquency;
Therapeutic Jurisprudence; and Shame and Humiliation.
I. INTRODUCTION
Recent Supreme Court decisions declaring unconstitutional both capital punishment
2
and life
without parole
3
in cases involving juveniles might lead a casual observer to think that we are now in
an era in which dignity of juveniles is privileged in the legal system, and in which humiliation and
shame are subordinated.
4
This observation, sadly, would be wrong.
5
Inquiries into a range of issues involving juveniles—commitment to psychiatric institutions; trials
in juvenile courts; aspects of criminal procedure that, in many jurisdictions, bar juveniles from rais-
ing the incompetency status or the insanity defense; waivers that allow juveniles (some young er than
fourteen) to be tried as adults; case law that has developed on the question of the validity of Miranda
waivers in juvenile cases; conditions in juvenile punishment facilities—reveal that, regularly,
juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest,
trial, conviction and institutionalization, shame and humiliation that are often exacerbated in cases
involving racial minorities and those who are economically impoverished. As we will discuss
subsequently, we believe that these shaming and humiliating policies violate human rights law and
constitutional law and fly in the face of therapeutic jurisprudence (TJ) principles.
In this article, we discuss this wretched state of affairs and look to both TJ and international
human rights laws as approaches that should be relied upon to remediate the current state of affairs
and infuse this system with some badly needed dignity.
6
Although scholarship by judges concludes
that “[j]uvenile justice professionals should treat family members with dignity and respect,”
7
it is
Correspondence: michael.perlin@nyls.edu; mlperlin@mdlpa.net
FAMILY COURT REVIEW, Vol. 56 No. 1, January 2018 79–99
V
C2018 Association of Family and Conciliation Courts
clear that this is, more often than not, not the case. We believe that due process is an essential ele-
ment of dignity and that this is abjectly absent in most aspects of the juvenile justice system and that
authentic dignity requires a genuine understanding of the individual before the court both as an
individual and in the context of their actions.
We believe that a turn to TJ—a school of thought that we discuss extensively below
8
—requiring
that we focus on the law’s influence on emotional life and psychological well-being,
9
while mandat-
ing that inquiries into therapeutic outcomes do not mean that “therapeutic concerns ‘trump’ civil
rights and civil liberties,”
10
is the best response to the current state of affairs. In this context, a system
that relies on shaming and humiliation
11
is utterly inimical to the bases of TJ.
12
If we embrace TJ,
shame and humiliation will diminish and greater dignity will be provided.
Remarkably, there is a paucity of recent legal scholarship available on much of what is discussed
in this article.
13
We hope that this article encourages others—judges, scholars, and policy makers—
to think carefully about the questions we address here and to weigh equally carefully the ultimate
impact that our current policies—drenched in shame and humiliation—have on the population in
question.
First, we discuss the meanings of shame and humiliation in these contexts and explain how the
practices of shaming and humiliation are even more troublesome in the context of cases involving
juveniles.
14
Next, we review the substantive relevant areas of the law: commitment to psychiatric
institutions
15
and the multiple relevant aspects of the criminal process (related to juvenile courts,
matters related to questions of mental status, waivers of constitutional rights, waivers to adult courts,
and juvenile correctional facilities).
16
We then look carefully at the issues related to the employment
of TJ
17
(including specifically, the relationship between TJ and problem-solving courts)
18
and inter-
national human rights,
19
then conclude with some modest suggestions.
20
II. ON SHAME AND HUMILIATION
Shame is used as a modality to control behavior.
21
We believe that—together—humiliation and
shaming “contravene basic fundamental human rights.”
22
In an earlier article with another colleague,
one of the coauthors (Perlin) has urged that “humiliating and shaming techniques be banned in order
to enhance dignity for society and the legal system.”
23
Although juvenile justice issues were but one
subtopic of that piece,
24
we believe that our ultimate conclusion there—that “the law regularly
shames and humiliates those who come before it”
25
—will apply equally to an analysis of the range
of issues that we are discussing in this article.
26
Shaming practices lead to recidivism, inhibit rehabilitation, discourage treatment, and injure
victims.
27
Shame forces a downward redefinition of oneself
28
; “the thrust of [shame’s] aggression is
to dehumanize.”
29
It is bordered by “embarrassment, humiliation, and mortification, in porous ways
that are difficult to predict or contain”
30
and is “one of the most important, painful and intensive of
all emotions.”
31
Shaming is public; its dehumanization and social demotion occurs when a shameful
trait or act becomes “visible, and is exposed to others.”
32
Shaming sanctions may be psychologically
debilitating. The director of a mental health program for juveniles has directly criticized the shaming
approach, stating that “[a]ll of our mental health programs end up having more and more people
come in with trauma at the hands of humiliation ... the behavior [will] show up in different ways ...
[and] unfortunately, the morgue may see that person.”
33
Humiliation has been broadly defined as “the rejection of human beings as human, that is, treating
people as if they were not human beings but merely things, tools, animals, subhuman, or inferior
humans.”
34
Humiliation can also reflect “a loss of control over one’s identity”
35
or “being denied a
certain status in communion with others.”
36
The predictable response to humiliation is for its target
to “lash out at the humiliator” via a combination of anger and fear.
37
Aggression seems to be predict-
ably, automatically, and at times uncontrollably activated in response to humiliation.
38
Studies show
the devastating consequences of systematic humiliation
39
and demonstrate that humiliation may
cause depression, paranoia, violence, generalized and social anxiety, and suicide.
40
Importantly, in
80 FAMILY COURT REVIEW
To continue reading
Request your trial