National Juvenile Justice Network is Hosting Several Events throughout October

In a Proclamation from the White House, President Biden officially claimed October 2021 as National Youth Justice Action Month. He called on Americans to “observe this month by taking action to support our youth and by participating in appropriate ceremonies, activities, and programs in their communities.” [1] Heeding that call, I have provided events and actions that we can take throughout the month (and beyond) to support this year’s mission, “Acting to End Racism: Pursuing Equity through Policy.”[2]

  • The National Juvenile Justice Network is hosting several events throughout the month:
  • Tuesday, Oct. 12th 3:00-4:30 PM ET “Treat Kids as Kids: Stop the Adult Criminalization of Youth.” This workshop will focus on policy changes that ensure youth are not treated like adults, including ending youth interrogations, direct file reform, and repealing Juvenile Life Without Parole laws.
  • Monday, Oct. 18th 3:00-4:30 PM ET “Care Not Cages: Invest in Families and Community.” This workshop will focus on how states have begun closing youth prisons, ending contracts with for-profit residential treatment centers, and committed to reducing use of congregate care.
  • Monday, Oct. 18th through Friday, October 22nd “Virtual Hill Visits.” Participants are encouraged to schedule meetings with their federal delegations to discuss important youth justice issues. NJJN will provide information/training on pending federal legislation and materials.

To register for workshops, please visit https://www.tfaforms.com/4926781.

  • The Texas Network of Youth Services is hosting a Town Hall on Tuesday, Oct. 19th from 3:00-4:00 PM CDT where they will “explore how youth-serving providers can prevent justice involvement and best support young people involved in the juvenile justice system.” For information and to RSVP, please visit http://tnoys.org/events/.
  • Support legislation aimed at reinvesting in America’s Youth. As part of his Fiscal Year 2022 budget, President Biden proposed $800 million for juvenile justice and youth reentry programs. If passed, this would be the highest allocation in the history of the Juvenile Justice and Delinquency Protection Act.[3] Contact your Members of Congress and demand they pass a budget that adequately addresses the needs of our children.

Now more than ever, we must make our voices heard to protect and advocate for our children. Please join us during this #YJAM to do just that.

[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/30/a-proclamation-on-national-youth-justice-action-month-2021/

[2] https://www.tfaforms.com/4926781

[3] https://www.juvjustice.org/blog/1339

October is for Youth Justice Awareness Month

October is Youth Justice Awareness Month. With that in mind, the entries for this month will focus primarily on issues related to the juvenile justice system. The following post offers a brief discussion on the right to counsel in juvenile delinquency proceedings.

In 1967, the Supreme Court recognized juveniles’ right to Due Process under the 14th Amendment in the landmark case In re Gault. This decision granted juvenile defendants many of the same due process rights afforded to adults, including the right to formal notification of the charges against them, the right against self-incrimination, the right to confront witnesses, and the right to counsel. While this was a huge victory for children and child’s rights advocates, the reality of the situation is decidedly less triumphant.

In most cases, the right to counsel “kicks in” just prior to the child’s initial detention hearing; at this point, the child and their parents are notified of their right to counsel and the child is appointed an attorney if the child is determined indigent. However, this is not the child’s first point of contact with the juvenile justice system—that would be when the child is first taken into custody. This is a critical point for the child, as things can potentially go very wrong if they do not have access to counsel at this early stage. Research has shown that children are far more susceptible to coercion than adults, so it is likely that a child may offer incriminating evidence upon being questioned, irrespective of their guilt or innocence. Furthermore, children typically lack a thorough (or in many cases, even cursory) understanding of how the justice system works, so it is imperative they have an advisor at every stage of the process to ensure their rights are protected.

To illustrate this point, one need only look to Fare v. Michael C. (1979), where the Supreme Court established that a juvenile’s right to counsel must be explicitly invoked. In this case, the child’s request to see their probation officer (a trusted adult) was deemed insufficient to invoke his Fifth Amendment right against self-incrimination, and therefore the child’s statements made during police interrogation were all admissible in court. But how can we expect children to know precisely whom to ask for help, and when? How are children supposed to know the right things to say, or not to say, when most adults in similar positions are equally unaware? The justice system is complex and the children who find themselves within it are often under a great deal of stress—not only from the experience itself, but also from outside influences such as their parents, police, prosecutors, and even judges. 

Furthermore, the notion that a child can waive their constitutional rights—in particular the right to counsel—is ludicrous, and such waivers should be per se unallowable. The decision giving juveniles the right to counsel in Gault was predicated on due process considerations, rather than the right to counsel guaranteed by the 6th Amendment. While an adult’s right to waive counsel in criminal proceedings arises out of the 6th Amendment, due process under the 14th Amendment does not necessitate the same result for juveniles. In fact, given the developmental differences between children and adults, it would be clearly out of line with due process considerations to allow juveniles to waive their right to counsel. The chances of obtaining a “voluntary,” “knowing” and “intelligent” waiver (as is required by law) from a child are severely diminished in consideration of the various stressors the child faces while in contact with the system. This, combined with the fact of the still-developing adolescent brain and compounded by the vital role of counsel in juvenile proceedings, make waiver of the right to representation totally inappropriate in these cases.

 If a child under these circumstances can waive their right to counsel, how can any of their other constitutional rights be guaranteed? Without an inalienable right to representation in delinquency proceedings, the due process considerations extended to juveniles in Gault are effectively meaningless. Therefore, the right to counsel should activate automatically and inviolably at the earliest stage possible to ensure that a child’s rights are protected throughout the entire juvenile justice process.

For a more thorough discussion on this topic, see:

Gary G. Strieker, Waiver of Constitutional Rights by Minors: A Question of Law or Fact, 19 Hastings L.J. 223 (1967). Available at: https://repository.uchastings.edu/hastings_law_journal/vol19/iss1/9

Ellen Marrus, Gault, 40 Years Later: Are We There Yet?, 44 Criminal Law Bulletin 413 (2008), U of Houston Law Center No. 2014-A-51. Available at: https://ssrn.com/abstract=2450171

The Supreme Court Shaping the Future of Athletes, Lawmakers, and Businesspeople from High School to College Sports

The Supreme Court of the United States is now allowing college athletes to be compensated for their name, image, and likeness. As stated by Justice Kavanaugh “The NCAA is not above the law.”[i] The ability to have a Supreme Court Justice state this message is a huge win for high school athletes planning to pursue athletics in college. Additionally, Justice Kavanaugh states “the NCAA couches its arguments for not paying student-athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”[ii]

Now that high school athletes will be facing a new playing field of being able to receive compensation when they attend college, how do they go about this? High school athletes that do plan to play college sports need better preparedness for the new business model, the NCAA will be instituting to compensate athletes. With imminent laws allowing college players to make money off their name, image, and likeness, most schools are in an arms race, hiring third-party companies to act as consultants in content creation, education, and compliance. This is extremely important for students as businesses can now enter into contracts with high school students for when they go out and become athletes at colleges. To be prepared for this, high school students will need to take courses or be given instruction to understand their role in the business. It is well known that a lot of musical artists who sign contracts do not have proper representation at times and end up getting scammed out of the compensation they earned, because of the inability to understand contractual agreements. Which is not the fault of the musical artist. High schools athletes and their parents will now take on a larger responsibility in ensuring that the athletes who are being represented by a company, while they are athletes in college, are properly equipped with the knowledge to receive just compensation from their name, image, and likeness.

The way that high school athletes can be prepared for the new business model of receiving compensation from their name, image, and likeness is by requiring high schools to teach about the new laws in their sports courses. In the state of Texas, the majority of public high schools require their athletes to take a course of the sport they play on their schedule. This is done to give the students physical education credit. During this course, the Texas education system should instruct the teachers/coaches of this course to teach the high school athletes about the new law of getting compensation in college. Additionally, in that same course, the Texas education system should instruct the teachers/coaches to teach the high school students about personal and business finance. This will set the high school athletes up for a better chance of success when being compensated in college as an athlete.

High school athletes need to understand their place in the new business model and need to understand how to go about receiving compensation in college and not get lost within it. As stated by a father of a high school athlete “How are we going to protect them? … How are we going to make it about the purity of the game?”[iii] This reiterates the importance of educating the high school athletes before the college of the new business model they are about to enter into. Additionally, this is a great opportunity to educate high school-age students who have an interest in the legal and financial side of sports, ways of understanding the college athlete’s compensation model to create ways they may influence athletes to make the best choices for themselves. Many avenues may implememnted to help benefit the high school athletes that want to play college sports and have the potential to earn compensation from doing so. It is the job of lawmakers and the state education systems to apply those avenues to create a better future for these future college athletes, lawyers, and businesspeople.

[i] Dan Murphy, Supreme Court unanimously sides with former college players in dispute with NCAA about compensation, ESPN, https://www.espn.com/college-sports/story/_/id/31679946/supreme-court-sides-former-players-dispute-ncaa-compensation.

[ii] Id.

[iii] Roman Stubbs, High school sports will feel the impact of NIL changes. For some, that’s cause for concern., Wash Post: High School Sports, https://www.washingtonpost.com/sports/2021/06/21/nil-changes-high-school-sports/.