Monday, April 27, 2015

Perceiving Adolescence

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

The challenge of demarcating adolescence from childhood and adulthood comes mainly from figuring out when it ends. 18 has been the traditional end point, but many experts increasingly view adolescence as a period that lasts into the mid-twenties. But extending adolescence beyond 18 is probably less pressing than ensuring that those under 18 receive the protections long reserved for childhood (or adolescence, or “not yet adulthood”).

Advocates have been fighting that fight for decades, and the flourishing of knowledge about adolescent brain developmental and psychosocial research on youth has armed reformers with empirical findings that seemed to have aided their efforts. For example, after upholding the death penalty for 16 and 17 year olds in 1989, the Supreme Court reversed course in 2005 in Roper, striking down the death penalty for those who committed crimes under 18. In Roper, as well as the juvenile justice decisions to follow (Graham, J.D.B., and Miller), the empirics of adolescence played a prominent role. Spurred by these findings, the Supreme Court has repeatedly averred that the law cannot proceed against youth “as though they were not children.”

This has appeal, and works, as a general proposition. But as I’ve noted before, perceptions matter. And there is evidence that some youth are not seen, despite their age, as youth, and thus lose the protections of childhood. This happens in 2 primary ways: (1) racial perceptions, by which minority youth are seen as older than their actual age, and more culpable for their acts, and (2) the forfeiture theory, by which youth who break the law are seen as having forfeited the protections that childhood typically offers.

This post focuses on the link between race, perceptions, and childhood, turning again to psychological studies. UCLA Psychology Professor Phillip Atiba Goff and colleagues tested 176 police officers in large urban areas, mostly white males, average age 37, and 264 mostly white, female undergraduate students from large public U.S. universities, to determine their levels of certain types of bias. They found that, beginning around age 10, Black youth are seen as older than their actual age, and more culpable for the same behavior as same-aged White youth. The age gap was not small: the study found that Black youth were more likely to be mistaken as older than their actual age by an average of 4.5 years. That means that the study participants saw a 14 year-old Black youth as 18-19 years old.

Thus, wherever the line is drawn between childhood and adolescence and adulthood, there’s a good chance that black male youth exit childhood and adolescence sooner, and thus lose the dispensations granted to children much sooner than others. This, I argue in a forthcoming paper called Databasing Delinquency, about the unprecedented adult-like data collection and retention and distribution practices that youth are subjected to these days by the criminal justice system (sex offender registration, gang databases, DNA databases, and more), generates support or tolerance for increased adult-like surveillance and more punitive, adult-like responses to rule-breaking behavior by minority youth.

We can see how this research might undermine the Supreme Court’s strong declarations that childhood cannot be ignored when thinking about the J.D.B. decision. J.D.B. says that police must account for age in determining whether an individual is in custody (and thus must be given Miranda warnings) because youth are much more likely to feel like they’re not free to leave encounters with police than adults. However, J.D.B. says that police must account for age only when “the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer.” This is easy in the school setting in which J.D.B. arose – unless police are interrogating staff, they are dealing with someone who is not an adult.

But outside the school setting, the skewed perceptions of the age of minority youth could easily lead many police officers to conclude (as those in the Goff study did) that a 15 year-old Black kid is a 19 year old adult. They will then treat the youth as they would an adult, claiming as they did in many cases I litigated in practice that the youth was free to leave the encounter but choose to stay and keep talking. As a consequence, the aim of the J.D.B. court (to get law enforcement to issue Miranda warnings to more youth) will not come to pass.

This research suggests that the Court got the standard wrong in J.D.B. – rather than making the apparent age a critical factor, the Court could have, and should have, said that police must ask the person’s age, and if they determine or are told it’s 17 or under, they must consider youth in determining custody, and issue Miranda warnings before proceeding with custodial questioning. This should be so even if the officer believes the person looks like an adult. Even if the person is actually lying, and is really 19 or 21, there can be little harm in communicating to an adolescent that he has the Constitutional right to remain silent.

Tuesday, April 21, 2015

Defining Childhood

By Professor Kevin Lapp

Prof. Lapp is guest blogging on Prawfsblawg, where this post originally appeared.

A foundational, definitional problem for those like me who write about childhood and juvenile justice issues is figuring out who is a child and who is an adult, because rights and responsibilities frequently turn on whether someone is considered an adult or not. The answer, of course, is that it depends. The law considers people to reach maturity at a range of ages: it might be 21 (drink alcohol), 18 (vote), 16 (drive), 10 or 7 (ages of potential criminal responsibility). Of course, age need not be the deciding factor. Determining maturity could turn on capacity instead of age, but the bright line of age is much easier to implement than individual capacity-based inquiries.

The law in all sorts of areas uses this age-based binary approach: people are children until they reach a certain age, at which point they become, or are subject to the same rules as, adults. But however or wherever the line between adults and non-adults is located, a secondary question is becoming more pressing as developmental science teaches us more and more about the process of maturing: are there any categories within the group of people who are legally children (or “not yet adults”) and should the law account for such?

Monday, April 20, 2015

ADA at 25, Chicago style

By Professor Michael Waterstone

Prof. Waterstone is guest blogging on Prawfsblawg, where this post originally appeared.

On Friday, I had the good fortune of attending the kick off event for ADA25Chicago. There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different. It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government. These individuals did not just give speeches, but expressly set the stage for actual commitments.

The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities. ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer? Count me in!). And there are specific plans in place to hold these groups publicly accountable for their commitments.

I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues. ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap. By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning. I really look forward to watching how this all unfolds.

Wednesday, April 15, 2015

Remembering Dean Emeritus Gerry McLaughlin

Loyola Law School mourns the loss of Professor Gerald T. McLaughlin, who passed away on Sunday, April 12, 2015.

McLaughlin joined Loyola as its 14th dean on January 1, 1991 and served in that capacity until March 1, 1999. But his mark on the institution extended far beyond he tenure as its leader. He wrote the book on Loyola Law School: In 2000, he published Loyola Law School: A Sense of Purpose and a Sense of Mission. The tome is a comprehensive history of the school at which McLaughlin himself played a pivotal role for nearly 20 years.

Memorial Reception:
  • Thursday, April 16, 2015 from 5-8 pm at Vittorio Ristorante, 16646 Marquez Ave, Pacific Palisades, CA 90272
  • All friends of Gerry are welcome. Please RSVP with number of attendees to
Leaving an academic legacy of service and substance, McLaughlin instituted the 40-hour pro bono requirement for students and the joint JD-MBA degree. He encouraged the law reviews to raise their profiles by publishing symposia on a wide variety of legal topics. He was integral to the founding of the Cancer Legal Resource Center, which earned him the prestigious Cancer Vanguard Award in 2013. And through it all, he was a renowned commercial law expert, lecturing and writing extensively in the field of letters of credit. 

“Gerry McLaughlin was a true renaissance man,” said Dean Victor Gold. “In addition to serving as Loyola's dean, Gerry was a novelist, legal scholar, teacher and historian. Gerry's wife was seriously ill for most of the years he served as dean – years when his children were still young. Gerry never faltered, courageously carrying the burdens of both his office and the family he loved.” 

McLaughlin orchestrated the construction of the current parking garage, which for the first time allowed all faculty, students and staff to park on campus. McLaughlin’s other campus expansion initiatives included purchase of the building now known as Founders Hall and the land that would eventually house the Girardi Advocacy Center.

Prior to joining Loyola, McLaughlin was an associate dean and professor at Brooklyn law School. Previously, he taught at the law schools at the University of Connecticut, Fordham and Georgetown. Before entering academia, McLaughlin worked in the New York office of Cleary, Gottlieb, Steen & Hamilton LLP.

McLaughlin earned his bachelor’s degree summa cum laude from Fordham College and his LLB from NYU Law School, where he was a Root Tilden Scholar and managing editor of the law review.

Remembrances of Dean McLaughlin are welcome below: