Following a polemic debate, the Parliament in Uruguay passed a new law earlier this month legalizing same-sex couple adoption. Like most of the continent, Uruguay has a strong Roman Catholic culture and history; no other Latin American country has passed similar law. Church leaders quickly renounced the decision, claiming that children placed in gay homes would be blasphemously “conditioned”. The bill also encountered opposition from the country’s central-right Nationalist Party.

This new law is one in a string of laws directed at broadening rights within Uruguay’s gay community. In 2007, the country allowed homosexuals to have civil unions (although not “marriages”) and earlier this year, Parliament voted to relax some of the restrictions on gays in the military.

Nonetheless, the decision may have more to do with the needs of Uruguayan children than the rights of gay adults. Both sides of the debate claim to have the “higher interest” of the child in focus, with the undisputed need to find homes for displaced children in conflict with what the Bishop’s Conference of Uruguay claims is the child’s interest in having a traditional mother-father family structure.

Even for those in support of the law, there are two outstanding concerns. First, the bill still requires President Vazquez’s signature. More significantly, the bill may not actually make adoption as accessible to same-sex couples as initial media coverage purported. The law’s text says nothing about same-sex couple adoptions – it simply does not prohibit them. The stipulation that the adopted child take the surname of the father and the mother might, depending on interpretation, complicate the adoption process for homosexuals such that it is effectively illegal.

The legalization of homosexual couple adoption may seem ‘settled’ in the United States, but three states continue to prohibit same-sex couple foster care or adoption. Only twelve states have made it illegal to deny a couple the right to adopt on the basis of sexual orientation. Opinion polls suggest that the American public remains divided on the issue. What do you think: is it in the best interest of the child to find a happy, healthy home, or does a displaced child have a protectable interest in a traditional family paradigm?

In a recent paper, Yale law professor Anne L. Alstott revisits the dilemma of children’s rights in relation to the family.

• Anne L. Alstott, Is the Family at Odds with Equality? The Legal Implications of Equality for Children, 82 S. Cal. L. Rev. 1 (2008)

Read the rest of this entry »

D.C. Schools Chancellor Michelle A. Rhee has proposed revising the District’s student behavior code to move the system away from out-of-school suspension as the disciplinary method of choice and toward counseling, peer influence and more options for keeping suspended students in school.

According to District figures, suspensions grew 72 percent between the 2006-07 and 2007-08 school years, from 1,303 to 2,245. That represents 4.5 percent of total enrollment.

Rhee’s efforts occur in a national context in which school violence has captured media attention following events such as Columbine and the perception of increased violence among school-age children. School discipline has long been moving towards dealing with discipline issues by referring cases to police or sending misbehaving kids to alternative schools. Rhee considers resort to out-of-school suspensions to occur “far too frequently, putting students behind in their work and increasing the likelihood that they will become truant or drop out.”

Rhee’s proposal, culled from what officials consider best practices in other school systems, divides student misconduct into five tiers, reserving suspensions and expulsions for the most serious incidents. In the first and second tier, for example, profanity, dress code violations or pushing and shoving would mean temporary removal from class or a parent-teacher conference. Persistent low-level violations would be met with stronger measures, but still short of suspension.

Offenses in the third tier — including racial or sexual slurs, bullying or fighting without a weapon — could trigger either in-school or out-of-school suspensions of up to 11 days. Fourth- and fifth-tier offenses, such as assault with a weapon, sexual misconduct, drug sales or arson, would result in off-site suspensions of up to 90 days or expulsion.

• Washington Post: Discipline Code Under Review As Suspensions Lose Impact

As reported in the Legal Intelligencer, Judges to Serve More Than Seven Years in Prison After Pleading Guilty in Kickbacks Probe:

Two Luzerne County, Pa., judges have conditionally agreed to plead guilty and serve more than seven years each in prison for their roles in a Dickensian scheme to channel juvenile offenders into a private detention facility in exchange for payments from the owners.

This federal plea deal follows on the heels of the Pennsylvania Supreme Court’s denial of Juvenile Law Center’s application for extraordinary relief on behalf of hundreds of youth in the same county, who were subject to delinquency hearings without lawyers. Juvenile Law Center, Pennsylvania Supreme Court Refuses to Hear Children’s Complaints of Massive Rights Violations in Luzerne County.

The Necessity of Counsel at all Stages

The fundamental right to counsel for juveniles was established only in 1967, in the landmark case In re Gault, 387 U.S. 1 (1967). Before that, the civil nature of the informal adjudication process for delinquency (as opposed to an adult criminal trial) was used to justify denial of counsel on the premise that the proceedings were rehabilitative rather than punitive and all the parties were acting in the best interests of the child. This is the clearest case yet of how far from reality that can be.

Following Gault, juvenile courts and advocates have split over the quasi-criminal nature of juvenile proceedings. While counsel is constitutionally mandated for critical proceedings courts in many jurisdictions have made questionable calls on what constitutes a critical proceeding. For instance, while juveniles have a right to counsel at delinquency proceedings, they do not have that right in detention hearings or diagnostics, though local jurisdictions can and sometimes do provide counsel that early.

Where a right to counsel exists, a juvenile may nevertheless proceed without counsel by making a knowing, voluntary and intelligent waiver of that right. Whether waiver is properly made is a very fact-intensive, circumstances-dependent determination that on which appellate courts too frequently give undue deference to the juvenile judge. Juvenile judges are under the same docket pressures that all judges are and the wide latitude of discretion provides ample room for abuse. While there are many excellent, dedicated juvenile judges, the opportunity for malfeasance is built into the system which lacks the necessary constitutional checks and balances that start with the presence of a zealous advocate.

This kind of travesty is made possible when those advocates are removed or silenced. This is not a case of a few ‘bad apples’, but a system that lacks substantive accountability. If anything comes out of this shocking miscarriage of justice, hopefully Pennsylvania and other jurisdictions will recognize the importance and necessity of counsel at all stages and the need for independent advocates empowered to pursue their charge with zeal, without fear of reprisal.

Some Thoughts on the Wisdom of Privatizing Prisons

Law and Economics scholars have argued that private prisons are nominally more efficient - operating at lower costs and potentially at higher quality, depending on the incentives. From a juvenile perspective it may make even more sense to allow private parties, perhaps non-profits with rehabilitative objectives, to take on certain roles within the rehabilitative framework. The obvious dangers feared by many with experience in the juvenile system are the unintended effects of the introduction of a profit motive. Alexander Volokh ably summarizes the debate in his article Privatization and the Law and Economics of Political Advocacy published in the Stanford Law Review. While his analysis is sound, I think his conclusion, aimed at the comparative activity of private and public advocacy, partly misses the point. Where the profit motive fuels the kind of corruption illustrated here it threatens to undermine the sense of trust in the justice system and threatens perhaps even the rehabilitative potential of youths convinced (with good reason) that they are treated unfairly in the justice system. Private prisons and judicial elections are a toxic combination that risk too much in both reality and perception of our justice system.

Belarus: Children - Children Banned from Travel Abroad

On December 16, 2008, President Alexander Lukashenko of Belarus issued a decree prohibiting organized travel of groups of Belarusian children to the United States and member countries of the European Union. Individual travel with the parents or legal guardians is still allowed, if it is not associated with medical treatment. This decision was made immediately after a Belarusian minor, Tatiana Kozyro, refused to return to Belarus from the United States, which she was visiting under the “Children of Chernobyl” program. The program helps children suffering from illnesses associated with the 1986 nuclear incident at the Chernobyl power station to recuperate. The President stated in his decree that after coming under the influence of the Western world, Belarusian youths are induced to lead a depraved life. According to the decree, this ban will improve the country’s image abroad and break the longstanding association of Belarus with the Chernobyl catastrophe that exists in the opinion of the Western public. (Lukashenko Prohibited Children to Travel to Europe, NEWSRU.COM INFORMATION AGENCY, Dec. 16, 2008, available at http://www.rus.newsru.ua/world/16dec2008/noway_print.html.)