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

Juvenile Justice Systems around the Globe: Alternative Ways to Address Youth (“AWAY”) Project

The “AWAY” Project analyzed changes implemented in the various juvenile justice systems of several European countries over the course of two years- from 2017 to 2018. [1] The countries included in the analysis were Bulgaria, Croatia, Hungary, Romania and Belgium. The project’s main research questions were: (1) What are the existing measures and processes for diversion that exist in the countries, and in what percentage of cases of children in conflict with the law are they used?; (2) What factors (existing needs, gaps and pitfalls) hinder better and more frequent use of diversion and child-friendly justice practices?; and (3) what needs to be improved in the juvenile justice system to promote diversion and restorative justice using a child friendly approach? [2] Over the course of several blogs, I will discuss the findings of the “AWAY” project as it relates to the specific countries, and what the United States can take away and implement in our own system.

Juvenile Justice System: Belgium

Throughout Europe, national and European legislation (along with the ratification of the CRC) establishes that individuals under the age of 18 are considered children with limited legal capacity. [3] In Belgium, the juvenile justice system is called “protective justice” and the term “act deemed to constitute an offence (ADCO)” is used in place of “crime” or “offence” to enforce the view that children are not fully capable of understanding the nature of their criminal actions. [4] If a child is suspected of an “ADCO,” they will first meet with the police and be informed of their rights. [5]A prosecutor then has the choice to refer the case to the juvenile court or use a diversion method. These methods include taking no action, issuing a warning, or suggesting mediation with the victim. If a case is referred to a juvenile court, the judge has the option to issue several measures aimed at allowing the child to remain with their family or legal guardian. These options include issuing a warning, an order to take on a written project, outpatient therapy, community or educational services, restorative options, or for the child to go under supervision. In rare circumstances, the judge may place the child with a temporary guardian, or in an institution for psychiatric, therapeutic, or education services. [6]

Belgium’s system focuses on restorative justice and aims to repair the damage done by an ADCO and restore the bond between the perpetrator and the victim. If a victim has been identified the prosecutor must consider mediation, and if they choose against it, they must issue a written document stating that they have considered it but concluded that other measures are needed. All parties must agree on the mediation. The goal of the system is to keep the child with their families or legal guardian and always consider a restorative measure first. [7]

In comparison to the U.S. juvenile justice system, the “protective justice” system of Belgium gives police, prosecutors, judges, victims, children, and their parents/guardians far more options. Institutionalization is viewed as a last resort and there are multiple safeguards put in place to ensure it stays that way. Additionally, I think the language that the Belgium system uses is something the U.S. system could borrow from. It enforces the fact that that children’s brains are still developing, and as a result they are not able to fully comprehend the criminality of their actions in the way most fully developed adult brains could.

[1] Éva Kerpel et al., Alternative Ways to Address Youth (AWAY) Project Research Synthesis Report 5 (Viktória Sebhelyi et al. eds., 2018).

[2] Id. at 6.

[3] Id.

[4] Id. at 22.

[5] Id.

[6] Id.

[7] Id. at 23.

$127M Lawsuit Against a Kent County Children’s Hospital and Its Workers

Cumberland Hospital for Children and Adolescence is being sued for physical and sexual abuse of their child patients. Law firm Breit Cantor filed a multi-million dollar lawsuit in Richmond Circuit Court on October 20, 2020, against Cumberland and its parent company Universal Health Services (UHS), its former Medical Director Dr. Daniel Davidow, and Herschel “Mickey” Harden, a former psychotherapist who was indicted in February for sexually abusing a former female client.

The allegations in the lawsuit go as far back as 2008. As per a report by CBS News 6, Dr. Davidow took femoral pulses of his female clients and would “place his hand beneath the minor patient’s undergarments and sexually abuse the minor patient by intentionally touching the minor patient’s intimate body parts.”[1] Additionally, Dr. Davidow “wasn’t taking the femoral pulse of patients when their parents were in the room, he was only taking the femoral pulse of patients when they were alone when they didn’t have somebody there to speak for them and when they are the most vulnerable.”[2] Patients as young as 12 years old have made allegations of sexual abuse by the doctor.

The complaint filed alleges some of the following:

  1. UHS, Cumberland, Davidow, and Harden constantly pressured staff to change the primary diagnosis of patients, chart aggressive or sexually aggressive precautions in the patients’ records, and otherwise made fraudulent and materially false statements in medical records to justify longer stays.
  2. If a patient’s parent or guardian would not consent to admission or questioned changes to the medical records, the staff at Cumberland Hospital would threaten to call the police and the Virginia Department of Child Protective Services to force the patients’ parents to admit their child to Cumberland Hospital and silence them from making reports or question decisions made by Cumberland, UHS, Davidow, and Harden.
  3. Contrary to Cumberland’s “Seclusion and Restraint Philosophy and Family Notification,” UHS, Cumberland, Davidow, and Haden frequently used physical restraints and seclusion to coerce, discipline, and retaliate against patients.

Davidow since then has had his medical license revoked. The hospital is also alleged to have been playing a money game, by moving clients around the hospital to different beds in order to increase profits. This is being done even though Cumberland does not have adequate staff, proper licenses, and resources to take care of the children. The allegations against Davidow were brought up in a group session led by an intern. As stated by an alleged victim per CBS 6 News “He had me slide down my pants and he grabbed my underwear and pulled them down.”[3] Additionally, the alleged victim stated, “I was obviously very tense because it was a very uncomfortable situation and he was like just relax, just relax and he still did not have gloves on.”[4]

The complaint can be found here.

For more information see the CBS News 6 press release.

[1] Laura French, $127M lawsuit filed against doctors, Cumberland Hospital for Children for alleged sexual abuse, CBS News 6, (Oct. 21, 2020, 6:09 PM), https://www.wtvr.com/news/problem-solvers/problem-solvers-investigations/127m-lawsuit-filed-against-doctors-childrens-hospital-for-alleged-sexual-abuse.

[2] Id.

[3] Id.

[4] Id.