'She's Nobody's Child/The Law Can't Touch Her at All': Seeking to Bring Dignity to Legal Proceedings Involving Juveniles

50 Pages Posted: 7 Feb 2017

See all articles by Michael L. Perlin

Michael L. Perlin

New York Law School

Alison Lynch

Disability Rights New York

Date Written: February 6, 2017


Recent Supreme Court decisions declaring unconstitutional both capital punishment (Roper v. Simmons, 2005) and life without parole (Graham v. Florida, 2010) in cases involving juveniles might lead a casual observer to think that we are now in an era in which dignity of juveniles is privileged in the legal system and in which humiliation and shame are subordinated. This observation, sadly, would be wrong.

Inquiries into a range of issues involving juveniles – commitment to psychiatric institutions; trials in juvenile courts; aspects of criminal procedure that, in many jurisdictions, bar juveniles from raising the incompetency status or the insanity defense; waivers that allow juveniles (some younger than 14) to be tried as adults; caselaw that has developed on the question of the validity of Miranda waivers in juvenile cases; conditions in juvenile punishment facilities – reveal that, regularly, juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest, trial, conviction and institutionalization, shame and humiliation that are often exacerbated in cases involving racial minorities and those who are economically impoverished.

First, we discuss the meanings of shame and humiliation, and contextualize them into the juvenile justice system that we discuss in this paper. Next, we look specifically at how this is reflected in caselaw involving psychiatric institutionalization and the criminal process (including, but not limited to, juvenile delinquency prosecutions, matters involving mental status defenses, and the correctional system. We then consider these findings through the filters of therapeutic jurisprudence and international human rights laws, urging that these approaches be relied upon so as to best remediate the current state of affairs and infuse this system with some badly-needed dignity. Although scholarship by judges concludes that “Juvenile justice professionals should treat family members with dignity and respect” (Burkemper, Balsam & Yeh, 2007), it is clear that this is, more often than not, not the case.

Remarkably, there is a paucity of recent legal scholarship available on much of what is discussed in this paper. We hope that this paper encourages others – judges, scholars, policymakers – to think carefully about the questions we seek to address, and to weigh equally carefully the ultimate impact that out current policies – drenched in shame and humiliation – have on the population in question.

Keywords: Juveniles, Civil Commitment, Juvenile Delinquency, Criminal Procedure, Therapeutic Jurisprudence, International Human Rights Law, Shame and Humiliation, Dignity

Suggested Citation

Perlin, Michael L. and Lynch, Alison, 'She's Nobody's Child/The Law Can't Touch Her at All': Seeking to Bring Dignity to Legal Proceedings Involving Juveniles (February 6, 2017). NYLS Legal Studies Research Paper No. 2912499. Available at SSRN: https://ssrn.com/abstract=2912499 or http://dx.doi.org/10.2139/ssrn.2912499

Michael L. Perlin (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States
212-431-2183 (Phone)

HOME PAGE: http://https://www.nyls.edu/faculty/faculty-profiles/emeriti_faculty/

Alison Lynch

Disability Rights New York ( email )

25 Chapel St
Suite 1005
Brooklyn, NY 11201
United States

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