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?

Moffett-Gutierrez a Victory for Juvenile Advocates

By Clinical Professor Christopher Hawthorne

Attorneys will quibble about its nuances, and the work of implementing the decision will go on for years to come, but People v. Moffett/People v. Gutierrez is the California Supreme Court opinion juvenile advocates were hoping for.  First, the Court firmly declares that section 190.5 California Penal Code is covered by the 2012 U.S. Supreme Court case Miller v. Alabama, which banned mandatory life without the possibility for parole (LWOP) for juveniles.  This is a significant legal step, because section 190.5 is not strictly mandatory.  Instead, the statute declares that LWOP is the presumptive sentence for 16- and 17-year-olds who fall under the special circumstance murder laws.  The judge, at his or her discretion, may choose a sentence of 25 to life.  For years, courts have debated whether 190.5 offered the judge complete sentencing discretion, or only the discretion to occasionally override the presumption.  The latter view, embodied in People v. Guinn, was the more popular, and for good reason.  Not only did Guinn absolve trial court judges of the charge of arbitrariness; it also absolved the court of the necessity to actually consider mitigating evidence related to the defendant’s youth.

Moffett-Gutierrez changes all that.  After the Supreme Court’s ruling, trial court judges must think hard, and think on the record, about whether to sentence a teenager to LWOP.  And, just as important, the Court gives a roadmap to judges who are thinking about imposing these harsh sentences.  When choosing a sentence for a youthful offender, judges must now take into account the "distinctive attributes of youth," which is another way of saying that judges must consider whether the child they are sentencing is the “rare juvenile offender whose crime reflects irreparable corruption.”  The Court directs judges to consider “how children are different and how those differences counsel against a sentence of life without parole ―before imposing a particular penalty.”

One thing Moffett does not decide is whether Miller is retroactive:  in other words, whether it applies to juveniles who have already been convicted and are serving LWOP.  Juvenile advocates in California have been filing Miller petitions as if they assume retroactivity is a done deal, but other states are split on the issue.  Illinois and Texas say Miller is retroactive.  Pennsylvania says it's not.  Expect the California Supreme Court to enter that debate soon.

Proposed Juvenile Court Order Subjects Youth to More Harm

By Maureen Pacheco

This op-ed was originally published in the Nov. 28 edition of the Los Angeles Daily Journal.

As a former public defender and current clinical director of the delinquency clinic at Loyola Law School, Los Angeles, I've seen far too many children charged with crimes. It is especially heartbreaking when I see young people whose poor behavior can be traced back, in part, to a dependency system that failed to meet their needs.

I want nothing more than to strengthen the dependency system and improve outcomes for young people who deserve our protection and support. Unfortunately, a proposed blanket order from Los Angeles Juvenile Court Presiding Judge Michael Nash to presumptively open juvenile dependency court proceedings - hearings for foster children and youth - to the public and the media would do more harm than good.

That's the conclusion legislators reached earlier this year, when they listened to youth and attorneys for both children and families and squarely rejected a bill to presumptively open dependency courts. Yet Judge Nash is moving forward with an order that circumvents the legislative process, contradicts current law, and disregards the youths' desire for privacy.

Youth have put forward an alternative that would both protect them and accomplish the goal of opening the system to greater analysis: allow the youth or his attorney to "opt out" of the automatic opening of a public hearing. Judge Nash should listen to the youth and adopt this alternative, or scrap his damaging blanket order.