Fight for juvenile right to humane treatment

U.S. Supreme Court decisions have recognized over the last decade that juveniles are not simply smaller versions of adults, a prominent juvenile lawyer and advocate said Tuesday at a Rutgers-Camden legal conference.

The court has "rewritten constitutional law when it comes to children and has essentially articulated a new jurisprudence about what constitutes cruel and unusual punishment for children," said Marsha Levick, cofounder of Juvenile Law Center in Philadelphia.

Invoking Charles Dickens' A Tale of Two Cities, Levick described the court's decisions as creating "the best of times," while the failure to make full progress has simultaneously created "the worst of times."

Levick addressed about 75 people Tuesday afternoon at Rutgers-Camden, part of a one-day conference, "Creating Bridges for Camden's Youth: Juvenile Justice Concerns and Local Solutions," which also featured panels and a reception at an on-campus gallery exhibit showcasing photographs of juveniles in prison facilities.

Rutgers-Camden's law school has a Children's Justice Clinic for third-year law students, and civic engagement is considered a primary mission for the campus. In addition representing juveniles in active cases, the clinic does some advocacy to change the juvenile system.

"The court said that the science teaches us that the differences - the developmental differences that we see between children and adults - are differences that are directly related to their culpability and their blameworthiness for their criminal conduct," said Levick, the conference keynote speaker. "And in fact related in such a way that the only conclusion that the court could reach in these sentencing cases was that kids are less blameworthy for their conduct."

Science "teaches us that children are not the worst of the worst," she said. "We must give them some opportunity for hope that they may get out of prison one day."

Levick, deputy director and chief counsel of the Juvenile Law Center, cowrote amicus briefs in all four Supreme Court cases.

In Roper v. Simmons (2005), the court banned the death penalty for crimes committed while under the age of 18. In Graham v. Florida (2010), the court struck down sentences of life imprisonment without parole for juveniles convicted of non-homicide offenses, and the 2012 Miller v. Alabama extended that ban to homicides. In 2011, the court held in J.D.B. v. North Carolina that age is a relevant factor for Miranda purposes when determining police custody.

Those decisions recognize developmental differences between children and adults, Levick said. Compared with adults, juveniles are less mature in judgment, appreciate risk less, and are more susceptible to peer pressure - plus, she said, they have "that unique capacity for change and rehabilitation."

Still, Levick said, advances in the juvenile justice system have not gone far enough. For example, New Jersey's Juvenile Justice Commission and Rutgers University settled a case with the Juvenile Law Center in December 2013 over solitary confinement of two boys.

One boy, diagnosed with mental-health issues, was held in isolation from February 2009 to October 2010.

As lawmakers in many states have tried to restrict solitary confinement of children, many do not ban it altogether, Levick said. That can lead to their decrying seven months' solitary confinement as inhumane, but three days of isolation as acceptable, she said.

"So as much progress as we have made, and as much as we can look at what the United States Supreme Court - of all places - has done in giving us a road map and a framework for thinking very differently about juveniles, it turns out that we still quite haven't gotten it about how to treat kids humanely," Levick said.

Asked during a question-and-answer session for specific recommendations for New Jersey, Levick said she'd like to see restrictions on shackling of juveniles in the courtroom and a requirement to have judges give a statement of reason every time they place a child in the system.

Overall, Levick said, the changes of the last few years suggest to her that more movement may be on the way.

"I remain optimistic and resilient. . . . As things began to change, I'm feeling like maybe my original goal here might work out after all," she said.

"And it may be that we as lawyers, working in cooperation with stakeholders, educators, community leaders, policymakers, that we, together, can use this thing called the law . . . to create a world that treats our kids humanely, that recognizes their special qualities, that holds them accountable . . . but in developmentally appropriate ways."