At an interdisciplinary symposium held on March 18, entitled “Adolescents in Society: Their Evolving Legal Status,” panelists addressed the many complex issues that lie ahead for lawyers, educators, and others working with adolescents in the field.
Over 150 practitioners and scholars participated in the full-day symposium, co-sponsored by Brooklyn Law School’s Center for Health Science and Public Policy and the Journal of Law and Policy and organized by Professors Cynthia Godsoe and Karen Porter, the Executive Director of the Center.
At the heart of the discussions was the transformation of the rights and protections accorded adolescents over the past decade, whether through court decisions, legislation, or social change.
“In many ways, teens have more freedom to make their own decisions than ever before. In many respects, they enjoy a quasi-adult status,” Professor Porter said. “However, new data shows that adolescents are not as neurologically and socially developed as adults. Their decision-making abilities are not fully formed. In effect, adolescents have one foot in childhood and one in adulthood,” she added.
This new evidence has led to debates about teens in the juvenile justice system, in the health care system, and as users of the Internet, cellphones, and other technologies. Are they to be considered and treated as children or as adults?
Judging Children as Children
Michael Corriero, the former Judge of the Court of Claims, Supreme Court, State of New York delivered an impassioned keynote address about how a “fair and democratic society” should treat adolescents in trouble with the law.
For more than half of his 28-year career on the bench, Judge Corriero presided over Manhattan’s Youth Part, a special court within the adult court system that deals exclusively with the cases of 13, 14, and 15-year-olds charged with the most serious and violent crimes. The court works with other agencies to devise early intervention strategies to help teens avoid the lifelong stigma of a felony conviction.
“America leads the world in incarcerating kids under 16. Our current system is the most expensive option with the worst outcomes. New York and North Carolina are the only states in which 16-year-olds are tried as adults with no recognition of their developmental differences from adults,” he said.
Mandatory sentencing guidelines call for imprisonment for felonies. He maintained that “this applies regardless of the adolescent’s involvement in the underlying crime and even when the behavior was little more than just being there” when the crime was committed.
Judge Corriero urged the formation of a partnership between Family Court and Criminal Court to provide rehabilitative services to children in trouble with the law, and for a much greater investment in New York’s juvenile justice system.
“Children tried as adults are more likely to re-offend” with huge costs to society, he explained. In 2010, Corriero founded and became executive director of the New York Center for Juvenile Justice, which advocates for extending the jurisdiction of the Family Court to include 16 and 17-year-old teenagers. He has advised courts and lawmakers worldwide, and is the author of the book Judging Children as Children: A Proposal for the Criminal Justice System, among other works.
Emerging Issues in Juvenile Justice
The panel on emerging issues in juvenile justice included Tamar R. Birckhead of the University of North Carolina at Chapel Hill School of Law, Mark R. Fondacaro, of John Jay College of Criminal Justice, Jeffrey Fagan of Columbia Law School, and Hilary B. Farber of the School of Criminology and Criminal Justice at Northeastern University. The moderator was Professor Godsoe of Brooklyn Law School.
Referencing the recent U.S. Supreme Court decisions, Roper v. Simmons (2005), and Graham v. Florida (2010), Birckhead argued that these cases may succeed in reforming the juvenile justice system where Gault, a 40-year-old, precedent-setting decision, did not.
In Gault, the Court held that juveniles in court have due process rights to counsel, under the Fourteenth Amendment. But local courts and other actors in the juvenile justice system, Professor Birckhead maintained, have failed to implement Gault, and representation of juveniles continues to be substandard. “Gault was only a symbolic victory.”
The panelists discussed how Roper and Graham are significant because they clearly recognize the fundamental differences between adult and juvenile offenders, they call for different treatment of the two groups, and they hold that youth be considered as a mitigating, not an aggravating, factor in sentencing.
Professor Farber spoke about a new case before the Court that could have far-reaching implications, JDB v. North Carolina, which deals with the interplay between adolescent development and the determination of police custody for Miranda warnings. Professor Fagan discussed adolescent development in the context of modern Fourth Amendment practice, and Professor Fondacaro posited a juvenile justice model integrating behavioral science and the law to manage risks to society.
Adolescent Health and the Law
Can adolescents make well-reasoned decisions about their own health care? Panelists addressing this question included Jennifer A. Drobac, of Indiana University School of Law, Jonathan Todres of Georgia State University College of Law, and Abigail English of the Radcliffe Institute for Advanced Study. The moderator was Margo Kaplan, Visiting Assistant Professor of Law at Brooklyn Law School.
In addition, a longtime friend of BLS—Jennifer L. Rosato, Dean of Northern Illinois University College of Law— was welcomed back as a panelist. (At BLS, she was Associate Dean of Student Affairs and co-director of the Center for Health, Science and Public Policy). Rosato described some of the ethical and legal challenges in teen health care, including parental consent for administering the HPV vaccine to young teenage girls, for genetic testing for late-onset diseases like breast cancer, and for hormone treatments for transgendered youth.
“The law relating to minors presumes their incapacity,” she said. However, “there is a growing body of literature that shows teens as young as 14” can make well-reasoned medical decisions in certain contexts. Lawmakers and courts should “proceed with caution as they move toward individualized decisions and medical emancipation,” she said.
Professor English gave a powerful presentation on sexual exploitation and trafficking of adolescents, in which $35 billion in profits is estimated worldwide each year. ”Unlike the trafficking in guns or drugs, the ‘product’ can be sold again and again,” English said. She explored opportunities for lawyers and healthcare professionals to develop policies to reduce exploitation and sex trafficking and to aid those who have been victimized.
Teens and Technology
Technological advances in communications have given teens unprecedented freedom to interact with society on their own terms. Yet young teens engage in risky behaviors like “sexting” and they are the leading victims of cyber-bullying. What laws and policies should govern minors in their use of technology?
The panelists addressing this question were Amanda Lenhart, of the Pew Research Center’s Internet & American Life Project; Chris Hansen, of the American Civil Liberties Union; and Professor John A. Humbach, of Pace University School of Law. The moderator was Jonathan Askin, Associate Professor of Clinical Law at Brooklyn Law School.
Professor Lenhart said that cyber-bullying involves repeated unwanted communications with content that is easily spread, hard to delete, and invasive, reaching the victim’s cell phone and computer, in school and at home.
A telephone survey by the Pew Research center and American Life Project found in 2009 that five percent of 14 to 17-year-olds have sent naked photos of themselves by cell phone, and 18 percent have received them. Sexting can occur between two willing, romantic partners, or it can take harassing and coercive forms. In several cases, teens have been prosecuted under federal child pornography laws for the wide distribution of photos of minors. Most current laws, however, simply direct school districts to create anti-cyber-bullying policies to handle the problems.
Chris Hansen said that the ACLU is opposed to criminalizing sexting, and suggests that there are other legal avenues to address unwanted sending or sharing of private photos. Existing laws that carry the potential of a felony conviction and sex offender status should not address teen sexting. Professor Humbach discussed the government’s and teenagers’ rights to know about sex and violence.
At the end of the symposium, Professor Godsoe said, “We’re really fortunate to have had such a wealth and wide range of expertise among the panelists and audience members. The companion symposium issue of the Journal of Law and Policy, which will include the papers of our distinguished panelists, is sure to be a valuable addition to the scholarship in this area.”