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 Runaways: Foster Youth & Sex Trafficking in Houston, TX

I can say without controversy, and as a die-hard Houstonian, that the streets of Houston are not an ideal place for unaccompanied minors— especially those without adequate resources and support—to have healthy, formative experiences. And yet, thousands of children find themselves in this situation every year. The Texas Department of Family & Protective Services reported that 1,707 youth placed under their conservatorship ran away from their placements in 2017. In its annual Foster Youth Runaway Report, DFPS noted that being a runaway or homeless youth constitutes the number one risk factor for exploitation. A total of 35 young people reported having been sex trafficked while on runaway status in 2017, per that same report.

Establishing a causal link between homelessness and exploitation in young people might seem straightforward or even obvious given the lack of resources, familial support, stability, and guidance inherent to being unhoused. But unpacking the concrete reality of the situation reveals even more distressing truths. According to several studies cited in a 2013 report by the HHS Administration on Children, Youth, and Families (ACYF), anywhere from fifty to more than ninety percent of children who were victims of sex trafficking had been previously involved with child welfare services. What do we make of this unsettling correlation? How are we failing foster kids by allowing them to fall victim to trafficking?

Last week, I attended a Zoom panel hosted by the Juvenile & Children’s Advocacy Project (JCAP), United Against Human Trafficking (UAHT), and Unbound Houston, an organization centered on human trafficking awareness and prevention. One of the panelists, NH, spoke on the harrowing experience of foster care and surviving human trafficking. She pointed out that, when dealing with trafficking allegations, DFPS focuses its investigations on the child’s household; that is, the Department only has the legal authority to investigate the people directly responsible for the child’s welfare, like a parent or legal guardian. Traffickers don’t typically target members of their own households, let alone their own children. But the 2013 ACYF report noted that sex traffickers often recruit foster kids from group homes. And in NH’s case, the Department actually approved placement for her—a pregnant minor at the time—in a home with the man who would be her trafficker. Such a complete oversight shocks the conscience and makes one wonder: What, if anything, is being done to prevent this from happening?

In 2017, DFPS established the Human Trafficking and Child Exploitation Division (HTCE); two years later, DFPS implemented a screening tool, called the Commercial Sexual Exploitation – Identification Tool (CSE-IT), developed to help caseworkers identify potential victims of trafficking among the kids who come under the care of the Department. The State is taking steps toward ameliorating the issue of child sex trafficking, largely due to widespread criticism—and legal action—regarding its previous methods. However, in 2019, DFPS reported that 2,122 kids under their conservatorship had run away at some point in the year and that 46 of those reported being sex trafficked—an increase in both the number of runaways and in trafficking instances compared to 2017. (Although this could be due to improved tracking/reporting systems). Also, data shows that sex trafficking cases (both of adults and youth) in Harris County actually doubled in 2019, with no indication of these numbers decreasing. Naturally, the 2020 pandemic has had some impact on these statistics, and perhaps it is still too early to determine whether the efforts of HTCE and DFPS’s improved screening techniques will help kids in situations like NH’s. But there is still the issue of the runaways.

From what I’ve learned working with trafficked youth over the past few months, part of the problem lies in the fact that many kids prefer the streets to foster placements, which often impose strict rules and services the kids just aren’t interested in. The teens (particularly the older ones) may struggle to connect with their caregivers and advocates, and would rather be among their chosen folk in a looser, more familiar environment. Overcoming the effects of grooming is also a major challenge; as I’ve unfortunately witnessed, recovered runaways are prone to return to their traffickers at the earliest chance they get. This is where HTCE and organizations like UAHT, Unbound Houston, and Harris County Youth Collective (HCYC) get it really right: by focusing on community awareness and offering resources for kids involved with the system outside the system. 

Part of HTCE’s efforts—like those of other worthy local organizations—have involved providing outreach and education on human trafficking at the community level. Over the past year, these groups have trained thousands of people on how to recognize and prevent trafficking in their communities, established safe spaces for victims and families, and built databases for connecting individuals with the resources they need most (See: the 2020 Human Trafficking Prevention Task Force Report). HCYC’s Youth & Community Specialists offer mentorship and counseling to young people from a lived-experience perspective; they understand what these kids are going through (and what their particular needs may be) because they’ve actually been through it themselves. This community-based work is vital to harm prevention and improving outcomes for kids in foster care, especially those most susceptible to exploitation. 

It’s about empowering youth to commit to their own futures and creating environments conducive to staying on that well-lit path. That means giving these kids resources they’ll actually want to partake of, equipping locals with the necessary tools, and creating a community prepared to fight to keep their young people safe. In this way, we can work toward making the mean streets of Houston a better place to be.

LGBT Youth Exist, are Overrepresented in the Foster Care & Juvenile Systems, and Deserve Protections

 

Despite campaigning on promises to protect and support the LGBTQ community, the Trump Administration has sought out to harm LGBT folks since his inauguration in 2017 weaponizing various policy initiatives and a cabinet of notoriously anti-LGBTQ politicians against the community. While largely aimed at LGBTQ adults, these attacks have also hurt LGBT youth. Despite making up only 9.5 percent of youth in the US, percent of LGBTQ Youth are disproportionality represented in both the Foster Care and Juvenile Systems. In a recent study of California youth grades 6-12, researchers found over 30% of youth living in foster care identified as LGBTQ. While not widely researched, it is estimated that 20% of all youth in juvenile justice facilities are LGB. Additionally, LGBT Youth are 120% more likely to experience homelessness. These youth are particularly vulnerable youth are in dire need of increased protections, and the incoming Biden-Harris administration is in an excellent position to provide just that.

The Obama administration did some work to help LGBT youth, including issuing anti-bullying guidance through the Department of Education and a Dear Colleague letter containing legal guidelines that reaffirmed the rights of LGBT youth in schools. These advancements, at the time seemingly indicative of progress tirelessly pursued by the LGBTQ community, were quickly stripped away by the Trump administration.
Trump Administration’s Harmful Policies Affecting LGBT Youth

  • The U.S. Departments of Justice and Education revoked the Obama Administration’s guidance detailing school obligations to transgender students under Title IX of the Education Amendments of 197
  •  Housing and Urban Development (HUD), withdrew two notices impacting LGBT people: the first requirement for emergency shelters receiving HUD funding to post information about LGBTQ people’s rights to access shelter safely, and the second being critical data collection and implementation guidelines for a homelessness prevention initiative targeting LGBTQ youth.
  • Department of Health and Human Services (HHS) attempted to remove language protecting the rights of LGBTQ folks to access programs funded by HHS including child welfare services and openly announced protections would only be granted to types of discrimination already banned by federal statute. In 2019, at the time of this announcement, discrimination based on sexual orientation and gender identity were not yet statutorily protected. Shortly thereafter the Trump administration issued a waiver to the same effect to the state of South Carolina, prompting outrage from the House Ways and Means Committee for the “intentional” violation of a congressional mandate to act in the best interests of children. The combined result of these actions was that otherwise qualified families could be turned away-with little to no recourse- from adopting or fostering youth from federally funded welfare programs on the basis of the prospective parent(s)’ sexual or gender identity, leaving LGBT youth with even fewer options for loving, affirming homes. HHS rule overturning Obama-era protections against LGBT discrimination in healthcare. The rule would have allowed the HHS to adhere to biological definitions of sex meaning male or female, completely disregarding an earlier regulation that accounted for an individual’s gender identity. Fortunately, a federal judge blocked the ruling stating that the move directly opposed the SCOTUS decision in Bostock v. Clayton County.
  • Ed Dept. memo that Bostock ruling doesn’t apply to children or Title IX cases (though the memo does state that Bostock may be used to guide cases depending on circumstance)
  • HUD allowance for discrimination against transgender individuals and youth in single-sex accommodations for homeless individuals.

Today, the Biden-Harris administration has the opportunity to step-up and help protect LGBT youth, and so far it looks like they might do just that. On his first day in office, President Joe Biden issued a sweeping executive order protecting LGBTQ folks from discrimination in schools, housing, the workplace and healthcare. Though the order falls directly in line with the June 2020 SCOTUS ruling in Bostock v. Clayton County, backlash from conservative and religious groups alike have begun, with both groups claiming their rights – or those of women – are being erased or threatened by the choice to uphold LGBTQ rights. While promises to pass the hotly contested Equality Act within the first 100 days of his presidency have recently been rescinded due to difficulties with a newly democratic senate, the Biden administration remains openly optimistic that the act will be passed sooner rather than later, codifying protection from discrimination based on sexual orientation and gender identity into federal law in the areas of federally funded programs and public accommodations which are not covered under the most recent executive order.

The Human Rights Campaign has set forth a list of demands for the new administration, which includes calls to protect LGBTQ youth in foster care, create a comprehensive federal definition of bullying which would include sexual orientation and gender identity, and an end to the violent practice of conversion therapy. This is especially important for LGBT youth, considering that in 2020, of the 10% of LGBT youth that reported undergoing conversion therapy, roughly 78% of them reported their experiences took place before age 18. The practice has long been debunked as an effective method of “therapy” and instead carries an increased risk of suicide for those who have been subjected to it. Once more, this risk is amplified in youth. The passage of the Equality Act would address this as well as the neglect and harm experienced by LGBT youth in foster care, homeless shelters, and the criminal justice system. Only time can tell for sure whether or not Biden will honor the promises to push for total equality made on the campaign trail, but to those watching closely, this presidential term already seems promising.