Juvenile Justice

Robert E. Shepherd, Jr.

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.

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).)

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).

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.)

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.)

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.)

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.

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.

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