Robert E. Shepherd, Jr., is emeritus professor of law at the
University of Richmond School of Law in Virginia. He is also a contributing
editor to Criminal Justice magazine and former chair of the Section’s
Juvenile Justice Committee.
Special
Education Issues:
Part II
A previous column
discussed four recent handbooks addressing the legal issues presented by
children who are behavioral risks in the school system and who then become
involved in the juvenile justice system. (See
Special Education Issues, 17:4 Crim. Just. 38 (Winter 2003).) These
publications afford practitioners in juvenile and family courts outstanding
tools for providing effective representation to young people with educational
disabilities who face delinquency charges. Professor Joseph Tulman has
identified three primary objectives for the lawyer in his valuable handbook: 1)
getting children with special needs the educational services to which they are
entitled; 2) getting these children out of the detention center or other secure
setting through the use of an educational strategy; and 3) getting such
children out of the processes of the justice system and into alternative
services. (Joseph B. Tulman &
Joyce A. McGee, Special Education Advocacy: Under the
Individuals with Disabilities Education Act (IDEA) for Children in the Juvenile
Delinquency System, 1-2 (1998).)
Identifying
special needs
One early strategy
for any lawyer in the representation of a juvenile client is identifying his or
her special educational needs. The initial interviews with both the juvenile
and the parents should focus in part on an attempt to learn as much as possible
about the youth’s educational experience. Is the juvenile in an age-appropriate
grade? Is he or she in a special class or placement, or does she have any
unusual services or resources provided in addition to the normal classroom
setting? Has there been any special testing, or have the parent or parents been
asked to participate in an unusual meeting at the school (perhaps an
individualized education placement (IEP) or plan meeting)? Be sure to get
written permission from the parent or guardian to secure the youth’s school
records; this, in fact, should be one of the first steps in the representation
of every juvenile. The lawyer should examine the school records carefully, and
talk with the youth’s teacher and principal about the client’s school
experience. The lawyer should look for evidence of any special education
placement, and identify the nature of the placement—learning disability (LD);
emotional disturbance (ED), including a wide range of mental disorders; mental
retardation (MR); pervasive developmental disorders (PDD), such as autism or
Asperger’s Disorder, attention deficit hyperactive disorder (ADHD, not always
resulting in a special education placement). (See The Special Needs of
Youth in the Juvenile Justice System: Implications for Effective Practice
(2001), Kimberly J. Adams, Kim Brooks, and Joshua Rose eds., at 19–32.) These
are the primary educational disabilities that may bring the juvenile within the
purview of the federal Individuals with Disabilities Education Act (IDEA).
Getting
services and influencing
detention decisions
Once it is determined
that a juvenile client has a disability that requires services, the lawyer
should seek to divert the case from the delinquency system and return it to the
school for services. As pointed out in the previous column, schools
increasingly seek to “criminalize” school behaviors, especially with children
who are expensive to serve, and counsel should initially try to have the matter
referred back to the educational system. The recent handbook by Eileen Ordover
of the Center for Law and Education, When
Schools Criminalize Disability: Education Law Strategies for Legal Advocates
(April 2002), focuses on what it calls “school-initiated juvenile court
involvement”—petitions filed in juvenile or family courts or crime reports made
by school officials to respond to behaviors in school that may, but not
necessarily should, result in formal court proceedings. The lawyer should try
to use education advocacy based on the IDEA, section 504 of the Rehabilitation
Act, and the Americans with Disabilities Act “to
. . . hold local schools accountable
when they criminalize the behavior for which they are legally obligated to
provide appropriate educational services [,] . . . obtain better outcomes for
clients in the juvenile courts [,] . . . enforce schools’ obligation to address
behavioral issues as educational ones, and . . . reduce the risk of future
school-initiated delinquency petitions or crime reports.” (Id. at v.) Special education arguments can be used to support
motions to dismiss the proceeding for lack of jurisdiction because of
alternative approaches to the problems found in the schools, both in status
offense and delinquency cases. In addition, advocacy can effectively persuade
the intake officer that the child does not “need” the court process to address
the problems presented. (Tulman &
McGee, at 2-2 through 2-9).
The ability to access
special education services may also present a justification for keeping the
child in the community rather than placing the youth in a residential facility,
such as a detention center awaiting further court action. Indeed, the relative
unavailability of such educational services in the detention or other
residential facility may support the argument that it makes more sense to keep
the youth in the community. (Id. at
2-10 through 2-11.)
Educational
disabilities and Miranda
warnings
Knowledge of an
educational disability and development of a special education assessment can be
used to determine that a youth is not capable of understanding the juvenile’s
rights under Miranda or some other
police investigatory practice. A youth with an educational disability may be
especially vulnerable during police interrogation. A juvenile with an auditory
perceptual disability, a form of learning disability, may have difficulty
processing the words in the Miranda
warning, and a mentally retarded youth may “confess” just out of a desire to
please the interrogators. (See, e.g.,
Robert E. Shepherd, Jr. & Dr. Barbara Zaremba, Juvenile Justice: When a Disabled Juvenile Confesses to a Crime: Should
It Be Admissible? 9:4 Crim. Just.
31 (Winter 1995); Tulman & McGee,
2-11 through 2-13; The Special Needs of
Youth in the Juvenile Justice System: Implications for Effective Practice,
89–101.)
School
discipline issues
The delinquency or
status offense charges brought against a particular juvenile may directly
relate to disciplinary problems in the school. The lawyer, even if unsuccessful
in getting them dismissed through diversion or other means, may be able to
defend the case, at least partially, on the basis that the court is an
inappropriate forum for addressing the problems. All of the recommended
handbooks address these issues quite well, with the Ordover book particularly
focused on this issue. (When Schools
Criminalize Disability: Education Law Strategies for Legal Advocates; see also Tulman & McGee, chs. 3 & 4.)
Dispositional
issues
If the case concludes
with an adjudication of the disabled juvenile’s guilt of the delinquency or
status offense charges, all is not lost. The defense lawyer can still argue for
placement in the community, rather than a harsher disposition, as the least
restrictive environment. (Tulman &
McGee, ch. 10.) Counsel can also urge the delivery of necessary special
education services to the youth even if he or she is placed in a correctional
center or some other residential facility. (The
Special Needs of Youth in the Juvenile Justice System: Implications for
Effective Practice, 119–29; Tulman
& McGee, ch. 5.)
IDEA
and other laws
The attorney
representing youth in the juvenile justice system needs to become educated
about the laws affecting the rights of juveniles with disabilities. Each of the
handbooks discussed in the previous column devotes considerable attention to
these laws, especially in the context of juvenile justice. Over half of the
Tulman and McGee handbook, chapters six through 13, constitutes an excellent
primer on the Individuals with Disabilities Education Act (IDEA), and those
materials walk the advocate through the special education process. Chapter four
of The Special Needs of Youth in the
Juvenile Justice System: Implications for Effective Practice also contains
a good summary of the IDEA and the rights articulated there for disabled youth.
Unique
ethical issues
The publication of
the Children’s Law Center, The Special
Needs of Youth in the Juvenile Justice System: Implications for Effective
Practice, has an excellent chapter on the unique ethical issues presented by representing youthful clients with
mental or educational disabilities, and some of these issues need careful
attention by the practitioner. Some disabilities may impair the juvenile’s
decision-making capacity, and thus his or her ability to cooperate with the
attorney in the decision-making process. Also, the existence of a mental
disorder may present the dilemma of pleading “not guilty by reason of
insanity,” or some other defense based on diminished capacity, which might
bring dismissal of the charges, but also may result in a longer loss of liberty
than even a delinquency determination. Such a result might bear a longer-term
stigma than delinquency, despite the increasingly harsh laws on
confidentiality, and may bring about placement in a poorer quality mental
health facility than even a juvenile correctional institution.
Conclusion
Recent studies on the
incidence of mental health disorders and other disabilities covered by special
education and other laws indicate that a disproportionate number of youth in
the juvenile justice system suffer from such disabilities. Thus, it is
essential that lawyers practicing in juvenile or family courts should become
educated about these disabilities, and the laws that address them. Effective
representation of youth includes being knowledgeable about the common
characteristics of such youth, and how to intelligently present their problems
to the court and its personnel.n