Children & the Law Blog

ABC News and the ABA Journal reported today that a Massachusetts woman is being charged with child endangerment after she failed to pick up medications and take her 8 year old son to follow up treatments for his non-Hodgkin’s Lymphoma. At the time he was diagnosed with the disease, doctors indicated the boy would likely have a 90% chance of survival. However, due to lack of treatment, the boy’s cancer has returned, and doctors now say that his chance for survival has dropped down to 10%.

This case is pretty straightforward; however, it seems somewhat reminiscent of a less straightforward case reported by The Wall Street Journal three weeks ago about the debate over the right of parents to reject medical treatment for their children due to religious reasons.

The recent death from untreated diabetes of an 11-year-old Wisconsin girl has invigorated opposition to obscure laws in many states that let parents rely on prayer, rather than medicine, to heal sick children. Dale and Leilani Neumann of Weston, Wis., are facing charges of second-degree reckless homicide after their child, Madeline Kara Neumann, died on Easter after slipping into a coma. The death, likely preventable with insulin, has renewed calls for Wisconsin and dozens of other states to strike laws that protect parents who choose prayer alone in lieu of medical treatment.

Of course any decision would require states to walk a fine line between the freedom of parents to practice their religion and the responsibility of parents to take care of their children’s needs. Although they vary widely by state, 45 states currently have some sort of legal protection for parents who use spiritual healing. Some provisions uniformly protect parents from prosecution for solely pursuing spiritual healing for their children while others only protect parents from prosecution for said actions in misdemeanor cases. However, the article notes that states are slowly starting to rethink these statutes, opening parents who rely solely on spiritual healing to possible prosecution for child neglect and, in the Wisconsin case, reckless homicide. Some of these laws leave an important question hanging that states must resolve: “If a state permits people to employ prayers for healing, can it then hold a parent criminally liable if those prayers fail?”

Sources:

Wall Street Journal: A Child’s Death And a Crisis for Faith

ABC News: Mom Accused of Withholding Son’s Chemo

Unfortunately, children are sometimes confronted with serious adult situations with lifelong consequences. On April 2, 2008, a fourteen year old Baytown girl encountered such a situation when she gave birth to a baby in the restroom of her junior high school (Houston Chronicle Story). According to the girl’s lawyer, she was unaware she was pregnant and also unaware she had given birth. (Girl’s Story) According to the Baytown police, she intentionally or knowingly killed the baby. On June 26th she was charged with capital murder, and if tried as an adult, could spend the rest of her life in prison without parole. Capital murder in Texas for an adult has two punishments: death or a life sentence without parole. In 2005, the Supreme Court ruled in Roper v. Simmons that the death penalty is unconstitutional for persons under the age of 18. This leaves life without parole as the only available punishment for capital murder committed by a person under the age of 18. The average life expectancy of an American today is 78 years (Source). If found guilty of capital murder, then this girl is expected to spend 64 years in prison.

What We Know From the Press

Its easy to get a distorted view of a situation like this and make assumptions based off of bits and pieces of information presented in the media. From what I’ve read, these seem to be the relevant facts:

The girl was at full term between 35 and 36 weeks. The baby boy was born 5 pounds 6 ounces and 18 inches long. It is uncertain whether or not the girl knew she was pregnant. The girl was in the nurses office for 2 and a half hours with a heating pad for complaints of cramps that morning. After leaving the nurse’s office she went to the restroom where she then gave birth. No adults knew the girl was pregnant, including her parents and the nurse. “The Medical Examiner’s Office determined that the baby boy died after being submerged in water with paper obstructing his airway and receiving blunt force trauma to his head and neck.” (Baytown Sun Article) After a 12 week investigation, the Baytown Police believe the evidence shows that this was done intentionally and knowingly.

Capital Murder in Texas

In Texas, murder is “intentionally or knowingly causing the death of an individual.” Tex. Penal Code §19.02(b)(1). To be capital murder, the crime must be committed with one of the circumstances listed under the capital murder statute. §19.03(a). In this case, the relevant circumstance was the age of the victim. It is capital murder if the victim is under six years old. § 19.03(a)(8). A prosecutor has discretion when deciding what charges to bring against the defendant. So for example, the prosecutor could charge the defendant with a lesser offense, even though all the elements of capital murder are present. However, in Harris County, the District Attorney’s office has a policy of charging defendants with the highest level crime for which all the elements are met. As of now, the prosecutor for this case is following that policy. (Houston Chronicle)

Adult or Juvenile: A Critical Decision

If this girl is not tried as an adult, but instead tried as a juvenile, then the maximum sentence she can receive is 40 years in prison. Tex. Family Code § 54.04(3)(a)(i). She would be sent to a TYC facility until the age of 19. (Overview of TYC) After turning 19, she would then be transferred to the adult prison system to finish the remaining 35 years of her sentence. If given the maximum 40 years, she would leave prison at the age of 54. In determining whether to waive original jurisdiction and transfer the girl to the adult criminal court, the Judge should look at several factors according to Tex. Family Code § 54.02(f):

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) the sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities currently available to the juvenile court.

“This is a very, very serious offense,” Thomas said to the girl. “But this is not permanent,” he said. “Your detention can be re-evaluated again in 10 days. So remember, we’ll be watching very closely to see if you behave appropriately.”(Houston Chronicle Article).

(e) At the conclusion of the hearing, the court shall order the child released from detention unless it finds that:

(1) he is likely to abscond or be removed from the jurisdiction of the court;
(2) suitable supervision, care, or protection for him is not being provided by a parent, guardian, custodian, or other person;
(3) he has no parent, guardian, custodian, or other person able to return him to the court when required;
(4) he may be dangerous to himself or may threaten the safety of the public if released; or
(5) he has previously been found to be a delinquent child or has previously been convicted
of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

Roper v. Simmons and the Moral Culpability of a 14 Year Old Girl

[T]he Thompson plurality stressed that“[t]he reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.”Id., at 835, 108 S.Ct. 2687. According to the plurality, the lesser culpability of offenders under 16 made the death penalty inappropriate as a form of retribution, while the low likelihood that offenders under 16 engaged in “the kind of cost-benefit analysis that attaches any weight to the possibility of execution” made the death penalty ineffective as a means of deterrence. Id., at 836-838, 108 S.Ct. 2687

[A]s any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.”

Capital murder in Texas is reserved for the most severe forms of murder. It carries with it the two most severe penalties in our criminal justice system. Although Roper was about the death penalty specifically, the Supreme Court makes important points about how we punish children under the age of 18. A 14 year old girl has a lot of life left to live. This makes a life sentence even that much more severe and that much more important to diligently apply in a fair and just way.

To be continued…

The events in Baytown at this junior high school is truly a tragedy. A newborn baby has been killed by what looks to be the actions of his young mother. The fate of that baby was in his mother’s hands that day, and now her fate is in our hands. As a society we must now decide what should be done. What eventually is done will reflect upon us as a society. The judicial process is really only just beginning for this girl and there is a long way left to go.

References:

Kent Greenawalt, Punishment 3 Encyclopedia of Crime and Justice 1282 (Joshua Dressler, Editor-in-Chief 2d ed. 2002, 1286-1287 in Joshua Dressler et al., Cases and Materials on Criminal Law 32, 36, 39 (3d ed.) 2003.

Michael S. Moore, The Moral Worth of Retribution Responsibility, Character, and the Emotions: New Essays in Moral Psychology (Ferdinand Shoeman, ed. 1987), 179-182 in Joshua Dressler et al., Cases and Materials on Criminal Law 32, 36, 39 (3d ed.) 2003.

As reported by the Child Welfare League of America, a bill has been introduced to reauthorize the Juvenile Justice and Delinquency Prevention Act of 1974.  The law is the largest source of federal funding for the improvement of states’ juvenile systems.  As summarized on the Building Blocks for Youth website, Congress placed four stipulations on states’ receipt of federal funding: the de-institutionalization of Status Offenders (with some exceptions), the removal of juveniles from adult jails (unless convicted in adult court for a felony offense and/or immediately before or after a court hearing), the prohibition of “sight and sound” contact of juveniles placed in adult jail under the previous exceptions, and the assessment of the issue of disproportionate confinement of minority juveniles.

On June 18, Senators Patrick Leahy (D-VT), Arlen Specter (R-PA), and Herbert Kohl (D-WI) introduced legislation to reauthorize the Juvenile Justice and Delinquency Prevention Act (JJDPA), S. 3155. This much anticipated bill would reform and strengthen juvenile justice in a number of areas, including in cases of youth who come in contact with law enforcement and who have histories of abuse or neglect.

The bill urges states to make key improvements to juvenile justice systems, would prioritize and fund mental health and drug treatment for juvenile offenders, and encourages states to further address the overrepresentation of minorities in the juvenile justice system. The legislation supports the efforts of states that attempt to comply with the core requirements of JJDPA by making funds available through improvement grants to help bring states into compliance with the law.

The Senate Judiciary Committee is expected to take up this legislation soon after the July 4 break. When a companion bill will be introduced in the House is not clear.

Following colleagues’ posts, Why Death Penalty Won’t End Sexual Assault: A Social Work Perspective on Kennedy v Louisiana and Supreme Court Rejects Death Penalty for Child Rape, I’ll hazard a slightly different perspective.

As is too often the case, the analysis of the opinion in the media distorts what was actually decided or even what was at stake. Supreme Court opinions are often treated as being about (1) what the policy should be, rather than (2) who should set that policy. We shouldn’t come down on commentators too hard for conflating these issues, however, as even the Justices tend to get this confused from time to time. The fundamental disagreement in this 5-4 decision is that five Justices thought the case primarily about number (1) - categorically prohibiting death penalty in child rape cases - and the other four thought it primarily about number (2) - allowing state legislatures to set punishments within constitutional bounds.

Ever Evolving Standards of Decency

Much of the majority’s opinion is spent justifying its determination of the ‘evolving standards of decency’ by reference to “objective indicia of society’s standards, as expressed in legislative enactments and state practice with respect to executions.” We don’t have to look very far into our history books to know that our sense of decency has indeed evolved -

Two Centuries’ Growth of American Law, 1701-1901 By Yale Law School

The logic, however, of a court striking down a law passed by a democratically elected legislature based on a perceived consensus of democratically elected legislatures, seems bafflingly circular. What more appropriate measure of society’s standards than the collective statements of its duly elected representatives? That the majority finds it necessary to usurp that position for the sake of uniformity displays a preference for setting rules rather than setting boundaries. But here I’m just poorly paraphrasing Justice Alito’s dissent, who is left surmising, as am I, at the true policy behind the court’s ruling (see II B for his best guess).

Whose best interests?

It is, of course, entirely possible for statutes to be both Constitutional and terrible laws that hurt the people it’s designed to protect and there is good reason to believe that imposing the death penalty in cases of child rape imposes costs as well as confers benefits on child victims. In no other area of the law are unintended consequences so prevalent or so devastating and in its affect on children. Here are a few unintended consequences that imposing the death penalty in child rape cases might have created -

1. Incentive to kill ones victims - the death penalty’s power of deterrence, though hotly debated, is the most obvious benefit to the victim. The specter of death, we believe, if proportional, encourages criminals to limit the damage they cause. If a child rapist is subject to death for the rape, there is no further incentive not to kill his young victim in order to cover up evidence of the crime.
2. Discouraging Reporting of Child Rape - children are most frequently abused sexually by family members. Child victims may choose not to report rape because they fear that the rapist will be put to death. The tremendous guilt felt by victims remains for me the most stunning and tragic aspect of childhood sexual assault and may be magnified when the death penalty is imposed.
3. Discouraging Cooperation in Prosecution by Child Victim - the Sixth Amendment’s confrontation clause requires the defendant have the right to confront and cross-examine witnesses. This can exacerbate an already bad situation for child victims who must often relive the trauma of the event in full court and in front of their attacker. The delicate balance walked by courts in protecting constitutional rights of defendants and avoiding any further harm to the victim/witness is further stressed in capital trials.
4. Denying Opportunity for Closure or Explanation - an unexpected argument, raised in my colleague’s post here is the common desire among victims for explanation, apology, or other mechanisms of closure that is potentially lost if the assailant is put to death.

For policy makers the balancing of consequences and benefits is an uneasy and inexact science, but a task more appropriately performs by state legislatures. Most, I suspect, would find the cost of imposing the death penalty outweighs its benefits or that it would be imposed in a manner that, like Texas’ Penal Code § 12.42(c)(3) was reserved for repeat or habitual offenders.

In my opinion, this will never, fortunately or unfortunately, be the biggest problem facing children in our nation. Far more children will lose their lives to disease, inadequate nutrition and health care and outright neglect. Others will soon be caught in the very same legal system that here debates the best method of their protection. However, we should use the Kennedy case as a reminder that legal issues involving children are seldom as clear-cut as they seem and only a diligent and holistic approach to children’s rights can truly reflect their best interests.

Landmark Cases in the Supreme Court’s Death Penalty Jurisprudence

• Kennedy v. Louisiana, 554 U. S. ____ (2008) (holding that the Eighth Amendment bars states from imposing the death penalty for the rape of a child not resulting in death)
• Roper v. Simmons, 543 U. S. 551 (2005) (execution of juveniles violates the Eighth Amendment because the offender has a diminished personal responsibility for the crime)
• Atkins v. Virginia, 536 U. S. 304 (2002) (the execution of mentally retarded persons “cruel and unusual punishment” prohibited by the Eighth Amendment)
• Enmund v. Florida, 458 U. S. 782 (1982) (capital sentence of a defendant who aided and abetted a robbery during which a murder was committed but did not himself kill, attempt to kill, or intend that a killing would take place violates Eighth Amendment)
• Furman v. Georgia, 408 U. S. 238, 382 (1972) (held that the death penalty could not be administered in a capricious or discriminatory manner)
• Coker v. Georgia, 433 U.S.584 (1977) (held death penalty disproportionate to the rape of an adult woman and did not result, or was not intended to result, in the victim’s death)
• Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion), (noting that the Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society.”)
• Weems v. United States, 217 U. S. 349, 367 (1910) (the Eighth Amendment’s protection against excessive or cruel and unusual punishments flows from the basic “precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.”)

As reported by the Kansas City Star and Juvienation, the Kansas Supreme Court decided 6-1 that all juveniles have the right to a jury trial. Previously, it had been the practice in Kansas to have juvenile cases decided by a judge as opposed to a jury because “the benevolent, child-cognizant, rehabilitative, and parens patriae character distinguished it [the Kansas juvenile justice code] from the adult criminal system.” However, the majority believed that these values were no longer the main focus of the juvenile justice code. The Court argued:

1. Changes to the Kansas Juvenile Justice Code since 1984 have eroded the benevolent, child-cognizant, rehabilitative, and parens patriae character that distinguished it from the adult criminal system. Because the Kansas Juvenile Justice Code has become more akin to an adult criminal prosecution, it is held that juveniles henceforth have a constitutional right to a jury trial under the Sixth and Fourteenth Amendments.

2. The proceedings under the KJJC fit within the meaning of the phrase “all prosecutions” as set forth in §10 of the Kansas Constitution Bill of Rights, and juveniles have a right to a jury trial under the Kansas Constitution.

3. The right to a jury trial in juvenile offender proceedings is a new rule of procedure, it does not operate retroactively. This right will apply only to cases pending on direct review or not yet final on the date of filing of this opinion.

Please click here to see the full Court’s decision.

Source: In the Matter of L.M., Appeal No. 96,197 (June 20, 2008)