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Volume 19 - Issue 2


The Anti-Racist Imperative of Infancy

Cohen, Laura | April 6, 2024

In 2019, a widely disseminated video of the arrest of a six-year-old girl in her Florida elementary school provoked outrage across the country. The footage shows the girl sobbing as an armed police officer in full uniform and bullet-proof vest handcuffs and leads her from the principal’s office to a waiting patrol car. Her crime was having a temper tantrum in class after a sleepless night. When it was revealed that another six-year-old was arrested at the same school by the same officer on the same day and for similar reasons, media pundits and the general public debated questions of school discipline and the role of law enforcement in educational settings. The far more important issue, however, is why, and for what purpose, should a six-year-old be arrested at all? This is not an academic question; twenty-four of the fifty states currently set no minimum jurisdictional age for the arrest and prosecution of children, and eighteen others set jurisdictional boundary of ten years old. As a result, between 2013 and 2018, over 30,000 children under the age of ten were arrested in the United States, and, in 2019, more than fifteen percent of incarcerated youth were age fourteen or younger. Such criminalization of childhood is contrary to the teachings of developmental science; drives the gross racial disparities that have defined the juvenile legal system since its inception; and inflicts myriad harms on children, their families, and their communities, including school push-out, negative health and mental health outcomes, the threat of incarceration, and the trauma and stigma that attach to any interaction with police, among others. It also runs afoul of international human rights standards, which require adoption of a minimum age of criminal responsibility of at least fourteen.

This Article stakes out new ground by arguing that the only redress for these deep and continuing harms is the categorical exclusion of developmentally immature children from juvenile court jurisdiction and, with it, the abolition of the juvenile court in its current iteration. Part I charts the harms of legal system involvement, focusing on the immediate and long-term effects of arrest and prosecution of young children. Part II provides a history of the juvenile legal system, focusing on its deep-rooted racial inequities. Part III explores some of the causes of those injustices, including discretionary decision-making, adultification bias, and police in schools. Part IV considers the large body of developmental science establishing children’s lesser culpability, lack of adjudicative competency, and capacity for change. Part V considers and ultimately rejects revival of the common law defense of infancy within juvenile court proceedings and proposes a new doctrine of infancy rooted in the categorical exclusion of young children from arrest and prosecution, rather than case-by-case determinations. The Article concludes by providing examples of effective alternatives to prosecution and positioning age-based jurisdictional boundaries as a pathway to abolition of the structurally biased and discriminatory juvenile legal system.

“I Saw Guns and Sharp Swords in the Hands of Young Children”: Why Mental Health Courts for Juveniles with Autism Spectrum Disorder and Fetal Alcohol Spectrum/Disorder Are Needed

Perlin, Michael; Cucolo, Heather; & Dorfman, Deborah | April 6, 2024

In this Article, we offer—we believe for the first time in the scholarly literature—a potentially (at least partially) ameliorative solution to the problems faced by persons with autism (ASD) and fetal alcohol disorder (FASD) in the criminal justice system: the creation of (separate sets of) problem-solving juvenile mental health courts specifically to deal with cases of juveniles in the criminal justice system with ASD, and with FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with autism, but there are, to the best of our knowledge, no courts set up specifically for these two discrete sets of populations. If mental health courts (or any other sort of problem-solving courts) are to work effectively, they must operate in accordance with therapeutic jurisprudence principles, concluding that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law should attempt to bring about healing and wellness. If such courts are created, we believe this will (1) make it less likely that sanism and other forms of bias affect legal decision-making; (2) make it more likely that those aspects of the defendants’ underlying conditions that may have precipitated (or contributed to) their criminal behavior be placed in a context that understands such conditions, and (3) best ensure that therapeutic jurisprudence principles be employed in the dispositions of all cases.

Learning Law in Elementary and High School: Innovating Civics Education for a More Empowered Citizenry

Liberman, Ariel & Broyde, Michael | April 6, 2024

A principal objective of the public school system in a democracy is to promote societal cohesion by way of preparing students for civic engagement. There exists a founding belief that a democratic nation ought to be composed of educated activists, run by innovators, and kept in check by involved citizens. For, indisputably, the democratic experiment—our values, our institutions—can only be upheld anew with each generation on the backs of critique, reinvention, and reinvigoration. But, as so many have mentioned when discussing the civics education paradigm, the increase in educational opportunities and the marked expansion of our school system has not translated into higher numbers of “citizens”—higher levels of civic knowledge and youth participation. Here, we offer a partial solution addressing substantive improvements to the civics paradigm. We argue for augmenting the current learning structure with a push towards learning law young, or else endowing children with a working knowledge of law and its methodologies. To learn law young is to approach and understand the values, rights, duties, obligations, and American questions of citizenship from a different perspective than that currently held in civics classroom, one that is at once more complex and functional. One learns by interrogating constitutional questions underpinning our civic institutions, considering reasoning behind ideological arguments, all while garnering critical analytical skills now exclusively at the disposal of the law student. This is about teaching a new way of thinking, a way of thinking necessary for every citizen today, a way that is currently not routine. The objective of this paper is to obviate the need—and extoll the benefits—of integrating law learning into childhood civics education.

Note or Comment

Applying Movement Lawyering Principles to the Redistricting Movement

Prabhakar, Lavanya | April 6, 2024

Despite national attention to unfair congressional district maps, efforts to make maps more representative through litigation have felt futile. However, despite unfavorable Supreme Court rulings, organizing around redistricting has seen wins on the state level, through the creation of independent redistricting commissions and map redraws. First, this Note reviews the history of race-based and partisan gerrymandering and the volatile swings of redistricting litigation. Then, it considers the role of organizing in redistricting, focusing on case studies from Ohio and North Carolina. Finally, relying on firsthand interviews and available data, this Note argues that organizing and litigation must work together under the principles of movement lawyering to inform and guide the direction of redistricting action. Lawyers must take the lead from community organizers to determine how to fight unfair maps, be it through legislative advocacy, political advocacy, or traditional litigation.

Incarcerated Workers Will Be Heard: Protecting the Right to Unionize Prisoners Through Dignity

Richter, Samuel | April 6, 2024

This Comment posits that incarcerated workers possess an inherent right to unionize pursuant to human dignity. Centering dignity in this discussion highlights the ways in which prisoners’ unions secure the economic and political conditions needed to express their autonomy and foster rehabilitation. By reviewing the historical successes and missteps of the incarcerated workers’ labor movement in the United States, this Comment demonstrates that an appreciation for dignity is crucial to prevent factional violence between incarcerated people on the one hand and the over-professionalization of prisoner organization on the other. Recognizing that unionization is a matter of dignity, not free speech or existing labor law statutes, also provides a more cohesive legal framework for extending the right to unionize to incarcerated workers. The right to dignity structures foundational constitutional principles and appeals to the benefits unionization offers to both incarcerated and nonincarcerated workers. In this way, the right to dignity provides a workable legal structure for understanding incarcerated workers’ right to unionize.

Reproductive Rights and Felony Disenfranchisement: The New Frontier of an Old Voter Suppression Tactic

Rubini, Jessie | April 6, 2024

Voter suppression and anti-abortion, anti-reproductive care efforts are mutually reinforcing, working together to diminish political participation, especially for women of color. I argue that politicians could use the Dobbs decision to further suppress Black voters, specifically Black women voters, by prosecuting abortions as felonies. The effect would be disenfranchisement of thousands of people. This Comment covers the connected histories of voting rights and abortion rights in America. The first section of this Comment will briefly cover the history of voting rights in America with a focus on racial discrimination. The second section will cover one voter suppression, felony disenfranchisement. Finally, in the third section I argue that Dobbs gives politicians and lawmakers a new way to increase felony disenfranchisement and decrease Black women’s voting power, and that without further advocacy against felony disenfranchisement, more women will lose the right to vote.