Joining the legal significance of adolescent developmental capacities with the legal rights provided by In re Gault

Rutgers Law Review

Volumn 60, Issue 1, 2007, Pages 125-173

  Bishop, Donna M ^a   Farber, Hillary B ^a,b  

^a Northeastern University College of Criminal Justice

^b Northeastern University School of Law

Author keywords

[No Author keywords available]

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EID: 45249085318     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (310)

1. 387 U.S. 1 (1967).
2. 543 U.S. 551 (2005).
3. Id. at 569-70.
4. Id. at 569 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).
5. Id. (quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).
6. Id. at 570.
7. First asserted in the United States in a proceeding involving a juvenile in Ex parte Crouse, 4 Whart. 9 (Pa. 1839), the parens patriae power justifies governmental intervention in the lives of citizens who are unable, by virtue of immaturity, mental illness, or mental retardation, to care for themselves. It is a broadly sweeping authority that was long left unchecked because of the presumption that the state was acting for the good of those on whose behalf it intervened. This authority stands in contrast to the police power, under which the state takes coercive action against those who pose a danger to the public welfare. The police powers of the state have always been carefully circumscribed by law.
8. See, e.g., G. STANLEY HALL, 2 ADOLESCENCE: ITS PSYCHOLOGY AND ITS RELATIONS TO PHYSIOLOGY, ANTHROPOLOGY, SOCIOLOGY, SEX, CRIME, RELIGION AND EDUCATION (1904).
9. For discussions of juvenile court history, see ELLEN RYERSON, THE BEST-LAID PLANS: AMERICA'S JUVENILE COURT EXPERIMENT (1978);
10. DAVID S. TANENHAUS, JUVENILE JUSTICE IN THE MAKING (2004).
11. RYERSON, supra note 8, at 28.
12. Id.
13. Id. at 28-29.
14. Id.
15. On the diversionary rationale for the juvenile court, see Franklin E. Zimring, The Common Thread: Diversion in Juvenile Justice, 88 CAL. L. REV. 2477 (2000).
16. According to Richard Tuthill, the first judge of the first juvenile court (located in Cook County, Illinois), the juvenile court reformers hoped to avoid the twin dangers of "brand[ing] [a child] in the opening years of its life with an indelible stain of criminality" and of placing a child "even temporarily, into the companionship of men and women whose lives are low, vicious, and criminal." Richard S. Tuthill, History of the Children's Court in Chicago, in CHILDREN'S COURTS IN THE UNITED STATES: THEIR ORIGIN, DEVELOPMENT, AND RESULTS 1-2 (1904).
17. See also David S. Tanenhaus, Degrees of Discretion: The First Juvenile Court and the Problem of Difference in the Early Twentieth Century, in OUR CHILDREN, THEIR CHILDREN: CONFRONTING RACIAL AND ETHNIC DIFFERENCES IN AMERICAN JUVENILE JUSTICE 105 (Darnell F. Hawkins & Kimberly Kempf-Leonard eds., 2005).
18. Ryerson, supra note 8, at 29-31.
19. Thomas Le Grand Harris, Ben B. Lindsey, in FAMOUS LIVING AMERICANS 300, 311 (Mary Griffin Webb & Edna Lenore Webb eds., 1914).
20. RYERSON, supra note 8, at 24-27.
21. NATHAN OPPENHEIM, THE DEVELOPMENT OF THE CHILD 9 (1898).
22. Id. at 83.
23. See, e.g., Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence: A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 142 (1997).
24. As Timothy Hurley, the juvenile court's first chief of probation, averred: "[T]he state is, after all, the first great father, and has a right, in the absence of proper care from the natural parents, to step in and take upon itself the work which the natural parents had proved themselves unable to do." CHICAGO VISITATION AND AID SOC'Y, THE JUVENILE COURT RECORD 1 (1903).
25. For example, the 1899 Revised Laws of Illinois defined delinquents to include anyone who: [V]iolates any law of this State; or is incorrigible, or knowingly associates with thieves, vicious or amoral persons; or without just cause and without the consent of its parents, guardian, or custodian absents itself from its home or place of abode, or is growing up in idleness and crime; or knowingly frequents any policy shop or place where any gaming device is operated; or frequents any saloon or dram shop where any intoxicating liquors are sold; or patronizes or visits any public pool room or bucket shop; or wanders about the streets in the night time without being on any lawful business or lawful occupation; or habitually wanders about any railroad yards or tracks or jumps or attempts to jump onto any moving train; or enters any car or engine without lawful authority; or uses vile, obscene, vulgar, profane or indecent language in any public place or about any schoolhouse; or is guilty of indecent or lascivious conduct. Juvenile Court Law of Illinois as Amended, in ORIGIN OF THE ILLINOIS JUVENILE COURT LAW: WHAT IS ITS SCOPE? HOW TO PROCEED UNDER IT 119-20 (Timothy D. Hurley ed., 1907).
26. Grace Abbott, Abstract of Juvenile Court Laws, in THE DELINQUENT CHILD AND THE HOME 247, 251 (Sophonisba P. Breckinridge & Edith Abbott eds., 1912).
27. See JOHN C. WATKINS, JR., THE JUVENILE JUSTICE CENTURY: A SOCIOLEGAL COMMENTARY ON AMERICAN JUVENILE COURTS (1998);
28. ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (1969).
29. THOMAS TRAVIS, THE YOUNG MALEFACTOR: A STUDY IN JUVENILE DELINQUENCY ITS CAUSE AND TREATMENT 187 (1908).
30. Author Donna Bishop served as a juvenile probation officer in a large city on the eastern seaboard during the late 1960s. She reports that, even at the time that Gault was decided, it was standard practice for social history investigations to be read by the judge prior to adjudication.
31. Gault provides an illustration of the laxity of juvenile court procedure. There the judge was unable to recall under what section of the law (the charge) he had found the boy delinquent, let alone the standard of proof he applied in reaching the adjudicatory decision. In re Gault, 387 U.S. 1, 8-9 (1967).
32. Julian W. Mack, The Juvenile Court, 23 HARV. L. REV. 104, 107 (1909).
33. Grace Abbott, A Topical Abstract of State Laws Governing the Trial and Disposition of Juvenile Offenders, in JUVENILE COURT LAWS IN THE UNITED STATES 120, 129 (Hastings H. Hart ed., 1910).
34. Judge Benjamin Lindsey became perhaps the most influential model of the juvenile court judge. He was his own probation officer, made home visits, read books to his wards, played sports with them, and corresponded with and visited youth in institutions. He was a dynamic man who related well to children regardless of race, ethnicity, or social class, and openly discussed with them all variety of sensitive topics (e.g., sex, venereal disease). He was first and foremost a social worker, secondarily a jurist. See BENJAMIN B. LINDSEY, THE PROBLEM OF THE CHILDREN AND HOW THE STATE OF COLORADO CARES FOR THEM (1904).
35. Juvenile court proceedings often took place in chambers or around a small table in the courthouse. Judges frequently wore street clothes rather than intimidating black robes, and sat at the table with the youth and his parents. The highly regarded Judge Lindsey was known to sit younger boys on his lap and to place his arm around the shoulder of older boys in gestures of affection. The relaxed environment lent itself to informal conversation, which was believed to be the most effective means of understanding the child, his lifeetyle, and his underlying problems. See STEVEN L. SCHLOSSMAN, LOVE AND THE AMERICAN DELINQUENT: THE THEORY AND PRACTICE OF "PROGRESSIVE" JUVENILE JUSTICE, 1825-1920, 124-26 (1977).
36. Mack, supra note 27, at 119-20. See also Edward L. Thompson, Juvenile Delinquency: A Judge's View of our Past, Present, and Future, 46 OKLA. L. REV. 655, 657-58 (1993)
37. See, e.g., Gustav L. Schramm, The Judge Meets the Boy and His Family, in SOCIAL CORRECTIVES FOR DELINQUENCY - 1945 YEARBOOK, 186-88 (1945).
38. See, e.g., Patricia G. Erickson, The Defense Lawyer's Role in Juvenile Court: An Empirical Investigation into Judges' and Social Workers' Points of View, 24 U. TORONTO L.J. 126, 145-48 (1974);
39. David A. Harris, The Criminal Defense Lawyer in the Juvenile Justice System, 26 U. TOL. L. REV. 751, 762-64 (1995).
40. Further, because rehabilitation was the goal, dispositions were necessarily open ended rather than time limited. In most jurisdictions, commitments to juvenile corrections departments were indeterminate, extending until the child turned twenty-one, or until the juvenile corrections department made a determination that the youth had been rehabilitated.
41. See, e.g., PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMIN. OF JUST., TASK FORCE REPORT: JUVENILE DELINQUENCY AND YOUTH CRIME (1967).
42. See, e.g., JEROME G. MILLER, LAST ONE OVER THE WALL: THE MASSACHUSETTS EXPERIMENT IN CLOSING REFORM SCHOOLS 4 (1991);
43. DAVID STREET, ROBERT D. VINTER & CHARLES PERROW, ORGANIZATION FOR TREATMENT: A COMPARATIVE STUDY OF INSTITUTIONS FOR DELINQUENTS (1966).
44. 347 U.S. 483 (1954).
45. 316 U.S. 455 (1942).
46. Mapp v. Ohio, 367 U.S. 643 (1961).
47. Gideon v. Wainwright, 372 U.S. 335 (1963).
48. Malloy v. Hogan, 378 U.S. 1 (1964).
49. Pointer v. Texas, 380 U.S. 400 (1965).
50. 384 U.S. 436 (1966).
51. 391 U.S. 145 (1968).
52. 383 U.S. 541 (1966).
53. Id. at 554.
54. 387 U.S. 1 (1967).
55. 397 U.S. 358 (1970).
56. Id. at 369.
57. See, e.g., O'Connor v. Donaldson, 422 U.S. 563 (1975) (mandating standards for commitment of the mentally ill); Addington v. Texas, 441 U.S. 418 (1979) (raising the standard of proof in involuntary civil commitment).
58. See Gault, 387 U.S. at 57.
59. Id.
60. Id. at 4-5.
61. Id. at 5. The petition cited only that Gerald was a delinquent minor in need of protection by the court. Mrs. Gault asked that the complainant, Mrs. Cook, be summoned to court, but the judge denied her request on the grounds that there was no procedure requiring witnesses to come to court. Id. at 5-7.
62. Id. at 7.
63. Id. at 5.
64. Id.
65. Id. at 7-8.
66. Id. at 8-9.
67. Id. at 27-28 ("[I]t would be extraordinary if our Constitution did not require the procedural regularity and the exercise of care implied in the phrase 'due process.' Under our Constitution, the condition of being a boy does not justify a kangaroo court."). The Court reaffirmed that "[d]ue process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise." Id. at 20.
68. Id. at 30-31.
69. Id. at 33-34.
70. Id. at 41.
71. Id. at 57.
72. Id. at 55.
73. Id. at 30-31. The Court contrasted the procedural due process rights that Gerald Gault would have received had he been eighteen years or older with the lack of rights and protections available to him in the instant case. Id. at 29. The Court then opined: So wide a gulf between the State's treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliché can provide. As Wheeler and Cottrell have put it, "The rhetoric of the juvenile court movement has developed without any necessarily close correspondence to the realities of court and institutional routines." Id. at 29-30. See also Emily Buss, The Missed Opportunity in Gault, 70 U. CHI. L. REV. 39 (2003) (arguing that the Court created a false dichotomy between the need for procedural protections to ensure fairness and the aims of the juvenile justice system. Buss contends that, rather than revert to adult-like rights to ensure procedural fairness in delinquency proceedings, the Court could easily have created a set of well-designed due process rights for children).
74. Why the Court did not contemplate creating a set of rights crafted to account for the biological and psychological development of adolescents is uncertain. Certainly the neuroscience that the Court later relied upon in Roper v. Simmons, 543 U.S. 551 (2005), was not available or known at that time, but much was known about young people's impressionability and their tendency to make poor judgments.
75. See infra Parts IV and V.
76. See, e.g., infra cases discussed Part III.
77. See Haley v. Ohio, 332 U.S. 596 (1948); Gallegos v. Colorado, 370 U.S. 49 (1962).
78. 332 U.S. at 599-601.
79. Id. at 598.
80. Id. at 599-600.
81. Gallegos, 370 U.S. at 53-54.
82. Id. at 50. The boy made initial admissions almost immediately in response to questioning at the crime scene, and was thereafter held in detention for five days before "formalizing" his confession at juvenile hall. Id. He had no contact with his parents over this period. Id. at 54. Prior to the stationhouse questioning, he was advised that he could be charged with murder, that he did not have to make a statement, and that he could have an attorney or his parents present if he chose. Id. at 59 (Clark, J., dissenting). At the stationhouse, and without his parents present, he confessed. Id. In deciding the case, it mattered little to the Court that the second confession was made after warnings had been given, or that the second confession merely confirmed the first. Id. at 54-55 (majority opinion).
83. Id. at 50-51.
84. Id. at 54.
85. See generally Kenneth J. King, Waiving Childhood Goodbye: How Juvenile Courts Fail to Protect Children from Unknowing, Unintelligent, and Involuntary Waivers of Miranda Rights. 2006 WIS. L. REV. 431, 453-62 (examining several state cases that evaluate a juvenile's Miranda waiver and concluding that there is uniformly little or no accommodation for the age of the suspect).
86. See also Barry C. Feld, Competence, Culpability, and Punishment: Implications of Atkins for Executing and Sentencing Adolescents, 32 HOFSTRAL. REV. 463 (2003).
87. 442 U.S. 707 (1979). Compare id. at 717 n.4 (demonstrating that, although Gault had not explicitly stated that Miranda applies to juvenile proceedings, the Court in Fare "assume[d] without deciding that the Miranda principles were fully applicable to the present [juvenile] proceedings"), with In re Gault, 387 U.S. 1, 55 (1967) ("[T]he constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults.").
88. The following is the exchange between respondent Michael C, and the officers: Q. ... do you understand all of these rights as I have explained them to you? A. Yeah. Q. Okay, do you wish to give up your right to remain silent and talk to us about this murder? A. What murder? I don't know about no murder. Q. I'll explain to you which one it is if you want to talk to us about it. A. Yeah, I might talk to you. Q. Do you want to give up your right to have an attorney present here while we talk about it? A. Can I have my probation officer here? Q. Well I can't get a hold of your probation officer right now. You have the right to an attorney. A. How I know you guys won't pull no police officer in and tell me he's an attorney? Q. Huh? A. [How I know you guys won't pull no police officer in and tell me he's an attorney?] Q. Your probation officer is Mr. Christiansen. A. Yeah. Q. Well I'm not going to call Mr. Christiansen tonight. There's a good chance we can talk to him later, but I'm not going to call him right now. If you want to talk to us without an attorney present, you can. If you don't want to, you don't have to. But if you want to say something, you can, and if you don't want to say something you don't have to. That's your right. You understand that right? A. Yeah. Q. Okay, will you talk to us without an attorney present? A. Yeah I want to talk to you. Fare, 442 U.S. at 710-11.
89. Id.
90. Id. at 724.
91. Id. at 725.
92. Id. at 726. The connection between prior experience with the legal system and understanding one's rights and the consequences of waiving one's rights, is much less straightforward than the Court seems to recognize. See infra Part V.
93. Id. at 722-24. In his dissent, Justice Marshall argued that: [M]iranda requires that interrogation cease whenever a juvenile requests an adult who is obligated to represent his interests. Such a request, in my judgment, constitutes both an attempt to obtain advice and a general invocation of the right to silence. . . . Requiring a strict verbal formula to invoke the protections of Miranda would "protect the knowledgeable accused from stationhouse coercion while abandoning the young person who knows no more than to ask for the . . . person he trusts." Id. at 729-30. (Marshall, J., dissenting) (quoting Chaney v. Wainwright, 561 F.2d 1129, 1134 (5th Cir. 1977)).
94. Id. at 724 (majority opinion) (emphasis added). More consistent with its finding on this issue, the Court would subsequently rule that interrogation is barred only after suspects "unambiguously request counsel." Davis v. United States, 512 U.S. 450, 459 (1994).
95. The only time the Court ever referenced Michael's minority status was when the Court opined that, in the lower court's estimation, Michael was not a "young, naïve minor who lacked experience with the courts." Fare, 442 U.S. at 713.
96. There the Court stated: If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair. In re Gault, 387 U.S. 1, 55 (1967).
97. Fare, 442 U.S. at 725.
98. See, e.g., State v. Dutchie, 969 P. 2d 422, 429 (Utah 1998) (finding a waiver where fifteen-year old was able to "parrot back portions of the warnings"); Ingram v. State, 918 S.W.2d 724, 728 (Ark. Ct. App. 1996) (finding valid waiver where a twelve-year old represented that he understood each right); State v. Gray, 100 S.W.3d 881, 886-87 (Mo. Ct. App. 2003) (upholding waiver of a sixteen-year-old, mentally retarded boy who suffered from anxiety and depression and who was questioned alone); W.M. v. State, 585 So. 2d 979, 983 (Fla. Dist. Ct. App. 1991) (upholding waiver of a mentally retarded ten-year-old boy who was crying when taken into custody and who was held alone by the police for nearly six hours); In re W.C., 657 N.E.2d 908, 925-26 (Ill. 1995) (upholding waiver of a thirteen-year old who was illiterate, had an IQ of forty-eight, and who was developmentally the equivalent of a six- or seven-year old); see also Wallace J. Mlyniec, A Judge's Ethical Dilemma: Assessing a Child's Capacity to Choose, 64 FORDHAM L. REV. 1873 (1996).
99. 541 U.S. 652 (2004).
100. Id. at 656, 660.
101. Id.
102. See id. at 656-57.
103. Id. at 658.
104. See id. at 663.
105. Thompson v. Keohane, 516 U.S. 99, 112 (1995).
106. These include: (1) whether the suspect was informed at the time of questioning that the questioning was voluntary, that the suspect was free to leave or request the officers to do so, or that the suspect was not considered under arrest; (2) whether the suspect possessed unrestrained freedom of movement during the questioning; (3) whether the suspect initiated contact with authorities or voluntarily acquiesced to official request to respond to questions; (4) whether strong arm tactics or deceptive stratagems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; and (6) whether the suspect was placed under arrest at the termination of the questioning. United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990).
107. Alvarado, 541 U.S. at 666.
108. Id. at 660.
109. Id.
110. Id. at 667-68.
111. See id. at 667. In her concurrence, Justice O'Connor stated that age may be relevant to the custody inquiry under Miranda. However, because the defendant here was seventeen and a half ("so close to the age of majority"), in this case age was all but irrelevant. Id. at 669 (O'Connor, J., concurring).
112. Id. at 667 (majority opinion).
113. The irony is that in Gault itself, the Court drew upon the language of Haley and Gallegos in admonishing that "admissions and confessions of juveniles require special caution." In re Gault, 387 U.S. 1, 45 (1967). The Court also observed that: If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair. Id. at 55.
114. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMIN. OF JUST., THE CHALLENGE OF CRIME IN A FREE SOCIETY 86-87 (1967), http://www.ncjrs.gov/pdffiles1/nij/42.pdf: [hereinafter PRESIDENT'S COMM'N: CRIME]. The most informal and well-intentioned of judicial proceedings are technical; few adults without legal training can influence or even understand them; certainly children cannot. Papers are drawn and charges expressed in legal language. Events follow one another in a manner that appears arbitrary and confusing to the uninitiated. Decisions, unexplained, appear too official to challenge. But with lawyers come records of proceedings; records make possible appeals which, even if they do not occur, impart by their possibility a healthy atmosphere of accountability. Id.; see also Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963) (holding that the Fourteenth Amendment gives indigent criminal defendants the right to state-appointed counsel); Faretta v. California, 422 U.S. 806 (1975) (rejecting counsel being forced upon defendant who voluntarily and intelligently elects to represent himself);
115. Walter v. Schaefer, Federalism and State Criminal Procedure, 70 HARV. L. REV. 1, 8 (1956) ("Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.").
116. Whether it ie a facial challenge to the validity of the charging document, disputing the validity of a Miranda waiver, or electing the witneeses who will testify, the expertise of a lawyer is central to the fair administration of justice.
117. "The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare to submit it." Gault, 387 U.S. at 36 (footnote omitted); see also Mary Berkheiser, The Fiction of Juvenile Right to CounselWaiver in the Juvenile Courts, 54 FLA. L. REV. 577, 597 (2002).
118. WILLIAM M. BEANEY, THE RIGHT TO COUNSEL IN AMERICAN COURTS, 234-35 (1955).
119. Ted Kaczynski asserted his right to represent himself on several occasions despite the urging of the trial judge to allow his highly competent and respected attorneys to represent him. Adam Liptak, Legal Analysis; Rights, and Wrongs, N.Y. Times, Oct. 21, 2003, at A24. He is currently serving a life sentence. Id. Colin Ferguson refused assistance of counsel and represented himself against murder charges in a 1995 Long Island railroad shooting. Id. He was convicted. Id. John Muhammed, "the Washington Sniper," represented himself in one of his state murder prosecutions.
120. Rona Marech, Advancing the Issue: Self-Representation, DAILY PRESS (Newport News, Va.), May 9, 2006, at A3. He is currently on death row. Id.
121. Gault, 387 U.S. at 36. The Court compared a juvenile proceeding in which the child is subject to loss of liberty for years with a felony prosecution, and observed that both adjudications were equally serious. Id.
122. Id.
123. Id. "The child requires the guiding hand of counsel at every step in the proceedings against him." Id.
124. See AM. BAR ASS'N JUV. JUST. CTR., A CALL FOR JUSTICE: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS (1995), available at www.njdc.info/pdf/cfjfull.pdf [hereinafter A CALL FOR JUSTICE].
125. Id. at 44-45. "45% of public defenders [said] the [waiver] colloquy is only 'sometimes' or 'rarely' as thorough as [that] given to adult defendants." Id. at 45.
126. Id.
127. Id.
128. The Twelfth Judicial Circuit of Florida consists of DeSoto, Manatee, and Sarasota counties. State of Florida Twelfth Judicial Circuit, http://12circuit.state.fl.us oast visited Nov. 16, 2007).
129. The Sixth Judicial Circuit of Florida serves Pasco and Pinellas counties. State of Florida Sixth Judicial Circuit, http://www.jud6.org (last visited Nov. 16, 2007).
130. PATRICIA PURITZ & CATHRYN CRAWFORD, FLORIDA: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS 27, 28 (2006).
131. Similar findings were made in other states during NJDC-sponsored assessments. In a 2002 assessment in Virginia, experts estimated that in one county fifty percent of youth waived counsel regardless of the seriousness of the offense. See AM. BAR ASS'N ET AL., VIRGINIA: AN ASSESSMENT OF ACCESS TO COUNSEL AND QUALITY OF REPRESENTATION IN DELINQUENCY PROCEEDINGS 23, 23-24 (2002) [hereinafter VIRGINIA ASSSESSMENT].
132. A CALL FOR JUSTICE, supra note 113, at 7-8.
133. PURITZ & CRAWFORD, supra note 119, at 28.
134. Id.
135. Id.
136. Id. at 29.
137. Id. One court observer in the Virginia assessment overheard a bailiff tell a father, who was found by the court not to be indigent, that the court would not be further inconvenienced with his son's case and would proceed the next time he came to court even if his child did not have a lawyer. See VIRGINIA ASSSESSMENT, supra note 119 at 23, 24.
138. PURITZ & CRAWFORD, supra note 119, at 29.
139. Id. See also VIRGINIA ASSESSMENT, supra note 119, at 24.
140. PURITZ & CRAWFORD, supra note 119, at 28.
141. Id. at 31.
142. PURITZ & CRAWFORD, supra note 119, at 29.
143. See A CALL FOR JUSTICE, supra note 113, at 45.
144. Many states have statutes requiring parents or guardians to reimburse the state for the cost of the minor's appointed attorney's fees. See, e.g., N.H. REV. STAT. ANN. 169-B:40 (2003) (reimbursement statute for cost of defense attorney for juvenile in a delinquency proceeding).
145. See A CALL FOR JUSTICE, supra note 113, at 45.
146. See infra Part VI; see also Hillary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe?, 41 AM. CRIM. L. REV. 1277, 1291-98 (2004) (identifying various conflicts of interest parents or guardians may face, which interfere with decisions about whether invoking right to counsel in an interrogation setting is in the child's best legal interest).
147. PRESIDENT'S COMM'N: CRIME, supra note 105, at 86-87.
148. 543 U.S. 551 (2005). The facts of Roper are particularly heinous. They involve the execution of a chilling plan instigated by Christopher Simmons, then seventeen, who, with two friends ages fifteen and sixteen, broke into the home of an elderly woman at two o'clock in the morning to commit burglary and murder. Id. at 556-57. They found the victim awake in her bedroom, tied her up with duct tape and electrical wire, then drove her to a state park, where they threw her from a bridge into a river below, where she drowned. Id.
149. See id.
150. See id. at 569-74.
151. Id. at 573-74. See also Thompson v. Oklahoma, 487 U.S. 815, 833-38 (1988) (noting the importance of these characteristics with respect to youth under sixteen).
152. Roper, 543 U.S. at 569 (quoting Johnson v. Texas, 509 U.S. 350, 367 (1993)).
153. Id. (citation omitted). See also Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) ("[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence . . . .").
154. Roper, 543 U.S. at 570.
155. Id. at 571-73.
156. Id. at 572-73.
157. Elizabeth Cauffman & Laurence Steinberg, Researching Adolescents' Judgment and Culpability, in YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 325, 326-27 (Thomas Grisso & Robert G. Schwartz eds., 2000).
158. Scott & Grisso, supra note 19, at 160-64.
159. See id. at 160.
160. Laurence Steinberg & Elizabeth Cauffman, A Developmental Perspective on Jurisdictional Boundary, in THE CHANGING BORDERS OF JUVENILE JUSTICE 379, 383 (Jeffrey Fagan & Franklin E. Zimring eds., 2000).
161. Scott & Grisso, supra note 19, at 160.
162. Thomas Grisso, The Competence of Adolescents as Trial Defendants, 3 PSYCHOL. PUB. POL'Y. & L. 3, 17-18 (1997).
163. Id. at 18. See also Shawn L. Ward & Willis F. Overton, Semantic Familiarity, Relevance, and the Development of Deductive Reasoning, 26 DEVELOPMENTAL PSYCHOL. 488, 488 (1990) (stating that experiments demonstrate a lack of deductive competence prior to the eighth grade).
164. See, e.g., James P. Byrnes & Harry Beilin, The Cognitive Basis of Uncertainty, 34 HUM. DEV. 189 (1991);
165. Deanna Kuhn, Children and Adults as Intuitive Scientists, 96 PSYCHOL. REV. 674 (1989);
166. Willis F. Overton, Competence and Procedures: Constraints on the Development of Logical Reasoning, in REASONING, NECESSITY, AND LOGIC: DEVELOPMENTAL PERSPECTIVES 1 (Willis F. Overton ed., 1990).
167. Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 81 TEX. L. REV. 799, 812-13 (2003).
168. FRANKLIN E. ZIMRING, AMERICAN JUVENILE JUSTICE 17 (2005) ("Being mature takes practice.").
169. See, e.g., Elizabeth S. Scott, The Legal Construction of Adolescence, 29 HOFSTRA L. REV. 547, 552-54 (2000).
170. This perspective was initially presented in Elizabeth S. Scott, N. Dickon Reppucci & Jennifer L. Woolard, Evaluating Adolescent Decision Making in Legal Contexts, 19 L. & HUM. BEHAV. 221, 222-23 (1995). See also Scott & Grisso, supra note 19.
171. The "judgment" factors were modified somewhat by Laurence Steinberg and Elizabeth Cauffman. See Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 L. & HUM. BEHAV. 249 (1996); Cauffman & Steinberg, supra note 145, at 325;
172. Margo Gardner & Laurence Steinberg, Peer Influence on Risk Taking, Risk Preference, and Risky Decision Making in Adolescence and Adulthood: An Experimental Study, 41 DEVELOPMENTAL PSYCHOL. 625 (2005).
173. See Scott et al., supra note 156, at 229-32.
174. See, e.g., B. J. Casey, Nim Tottenham, Conor Liston & Sarah Durston, Imaging the Developing Brain: What Have We Learned About Cognitive Development?, 9 TRENDS IN COGNITIVE SCI. 104, 108 (2005);
175. see also Beatriz Luna et al., Maturation of Widely Distributed Brain Function Subserves Cognitive Development, 13 NEUROIMAGE 786 (2001);
176. Laurence Steinberg, Risk Taking in Adolescence: New Perspectives From Brain and Behavioral Science, 16 CURRENT DIRECTIONS PSYCHOL. SCI. 55 (2007).
177. Shannon Brownlee, Inside the Teen Brain, U.S. NEWS & WORLD REPORT, Aug. 9, 1999, at 45.
178. Id.
179. Antonio R. Damasio & Steven W. Anderson, The Frontal Lobes, in CLINICAL NEUROPSYCHOLOGY 404, 433 (Kenneth M. Heilman & Edward Valenstein eds., 4th ed. 2003).
180. See, e.g., id. at 434; see also ELKHONON GOLDBERG, THE EXECUTIVE BRAIN: FRONTAL LOBES AND THE CIVILIZED MIND (2001);
181. M. Marsel Mesulam, Behavioral Neuroanatomy: Large-Scale Networks, Association Cortex, Frontal Syndromes, the Limbic System, and Hemispheric Specializations, in PRINCIPLES OF BEHAVIORAL AND COGNITIVE NEUROLOGY 1, 42-48 (M. Marsel Mesulam ed., 2d ed. 2000).
182. Id.
183. Longitudinal research using magnetic resonance imaging (MRI) and other sophisticated scanning techniques (e.g., PET scans, MRS) have provided images of brain functioning at rest and during various tasks, during regular intervals through adolescence and into adulthood. Using these technologies, Dr. Elizabeth Sowell, Dr. Jay Giedd, and others, have shown that the prefrontal cortex undergoes dramatic changes during the adolescent years, and is one of the last areas of the brain to reach maturity. The gray matter thins in a "pruning" process that tightens the connections among neurons. In the same areas where gray matter thins, white matter increases through a process called "myelination." The accumulation of myelin around brain cell axons forms an insulating sheath, which increases communication among cells and allows the executive center to process information more efficiently and accurately. Significantly, the myelination process eventually completes the circuitry that integrates the executive center with other regions of the brain, so that greater control is exerted over the social and emotional impulses originating in the limbic region. See Elizabeth R. Sowell et al., Mapping Continued Brain Growth and Gray Matter Density Reduction in Dorsal Frontal Cortex: Inverse Relationships During Postadolescent Brain Maturation, 21 J. NEUROSCIENCE 8819, 8826-29 (2001);
184. Jay N. Giedd et al., Brain Development During Childhood and Adolescence: A Longitudinal MRI Study, 2 NATURE NEUROSCIENCE 861 (1999).
185. See Steinberg, supra note 158, at 56-57.
186. See id.
187. Id.
188. Id.
189. See, e.g., Ruth Beyth-Marom et al., Perceived Consequences of Risky Behaviors: Adults and Adolescents, 29 DEVELOPMENTAL PSYCHOL. 549, 558-60 (1993).
190. Brownlee, supra note 159, at 48 (evaluating the effects that brain development has on teenage behavior).
191. See id. at 48-49.
192. See, e.g., Edward P. Mulvey & Faith L. Peeples, Are Disturbed and Normal Adolescents Equally Competent to Make Decisions About Mental Health Treatments?, 20 LAW & HUM. BEHAV. 273, 273-75 (1996).
193. See Steinberg, supra note 158, at 56.
194. See id. at 56-57.
195. See, e.g., Scott & Steinberg, supra note 153, at 813.
196. See, e.g., Gardner & Steinberg, supra note 156, at 632; Dana L. Haynie & Danielle C Payne, Race, Friendship Networks, and Violent Delinquency, 44 CRIMINOLOGY 775 (2006);
197. DEVIANT PEER INFLUENCES IN PROGRAMS FOR YOUTH: PROBLEMS & SOLUTIONS (Kenneth A. Dodge et al. eds., 2006).
198. See, e.g., MARK WARR, COMPANIONS IN CRIME: THE SOCIAL ASPECTS OF CRIMINAL CONDUCT 22-29 (2002).
199. ADOLESCENT BEHAVIOR AND SOCIETY: A BOOK OF READINGS 175 (Rolf E. Muuss ed., 3d ed. 1980).
200. See, e.g., Thomas J. Berndt, Friendship and Friends' Influence in Adolescence, 1 CURRENT DIRECTIONS IN PSYCHOLOGICAL SCIENCE 156 (1992);
201. Thomas J. Berndt, Developmental Changes in Conformity to Peers and Parents, 15 DEVELOPMENTAL PSYCHOL. 608, 615-16 (1979);
202. Joseph P. Allen, Mary-Frances R. Porter & F. Christy McFarland,
203. Thomas J. Dishion, Francois Poulin & Bert Burraston, Peer Group Dynamics Associated with Iatrogenic Effects in Group Interventions with High-Risk Young Adolescents, in THE ROLE OF FRIENDSHIP IN PSYCHOLOGICAL ADJUSTMENT: NEW DIRECTIONS FOR CHILD AND ADOLESCENT DEVELOPMENT 79, 87-90 (D.W. Nangle & C.A. Erdley eds., 2001);
204. Darcy A. Santor, Deanna Messervey & Vivek Kusumakar, Measuring Peer Pressure, Popularity, and Conformity in Adolescent Boys and Girls: Predicting School Performance, Sexual Attitudes, and Substance Abuse, 29 J. OF YOUTH & ADOLESCENCE 163, 173-76 (2000).
205. See ZIMRING, supra note 154, at 73-90.
206. See, e.g., WARR, supra note 177, at 39-44.
207. See id. at 45-89.
208. See id. at 45-58.
209. See id.
210. See id.
211. See id.; Beyth-Marom et al., supra note 169, at 560-61. This study showed the reaction of peers was the most cited consequence for declining to engage in risky behaviors, and much less salient for performing risky behaviors. Furthermore, avoiding ridicule and rejection by adolescent peers was a more powerful motivator than desire for approval.
212. Gardner & Steinberg, supra note 156, at 629-30.
213. Id.
214. See, e.g., Steinberg, supra note 158, at 57.
215. See, e.g., Laurence Steinberg, Juveniles on Trial: MacArthur Foundation Study Calls Competency Into Question, CRIM. JUST., Fall 2003, at 20, 23 (2003);
216. Karyn J. Saywitz & Thomas D. Lyon, Coming to Grips with Children's Suggestiblity, in MEMORY AND SUGGESTIBILITY IN THE FORENSIC INTERVIEW 85 (M.L. Eisen, J.A. Quas & G.G. Goodman eds., 2002).
217. John C. Coleman, The Focal Theory of Adolescence: A Psychological Perspective, in THE SOCIAL WORLD OF ADOLESCENTS: INTERNATIONAL PERSPECTIVES 44, 44-46 (Klaus Hurrelmann & Uwe Engel eds., 1989);
218. John C. Coleman, Friendship and the Peer Group in Adolescence, in HANDBOOK OF ADOLESCENT PSYCHOLOGY 408, 425-28 (Joseph Adelson ed., 1980).
219. See, e.g., Steinberg, supra note 158.
220. See infra Part VI.
221. See Brownlee, supra note 159, at 47-48.
222. See, e.g., Lita Furby & Ruth Beyth-Marom, Risk Taking in Adolescence: A Decision-making Perspective, 12 DEVELOPMENTAL REV. 1, 1-3, 38(1992).
223. See, e.g., Gardner & Steinberg, supra note 156.
224. Furby & Beyth-Marom, supra note 195, at 9-23. See also Amy Alberts, David Elkind & Stephen Ginsberg, The Personal Fable and Risk-Taking in Early Adolescence, 36 J. OF YOUTH & ADOLESCENCE 71, 71-75 (2007) (regarding notions of invulnerability).
225. Steinberg, supra note 158, at 57. See also Alida Benthin, Paul Slovic & Herbert Severson, A Psychometric Study of Adolescent Risk Perception, 16 J. OF ADOLESCENCE 153, 153-56, 163-67 (1993);
226. Furby & Beyth-Marom, supra, note 195, at 1-9; William Gardner, A Life-Span Rational-Choice Theory of Risk Taking, in ADOLESCENT RISK TAKING 66, 66-70 (Nancy J. Bell & Robert W. Bell eds., 1993).
227. THOMAS GRISSO, JUVENILES' WAIVER OF RIGHTS: LEGAL AND PSYCHOLOGICAL COMPETENCE (1981) [hereinafter JUVENILES' WAIVER].
228. Id.
229. See, e.g., Thomas Grisso et al., Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 LAW & HUM. BEHAV. 333 (2003);
230. Carolyn M. Brown & Richard Segal, Ethnic Differences in Temporal Orientation and Its Implications for Hypertension Management, 37 J. OF HEALTH & SOC. BEHAV. 350, 350 (1996).
231. See, e.g., ADOLESCENT BOYS: EXPLORING DIVERSE CULTURES OF BOYHOOD (Niobe Way & Judy Y. Chu eds., 2004).
232. See, e.g., Jeffrey Fagan & Deanna L. Wilkinson, Guns, Youth Violence, and Social Identity, 24 CRIME & JUST. 105 (1998).
233. DEANNA L. WILKINSON, GUNS, VIOLENCE, AND IDENTITY AMONG AFRICAN AMERICAN AND LATINO YOUTH (2003).
234. See, e.g., ZIVA KUNDA, SOCIAL COGNITION: MAKING SENSE OF PEOPLE 211 (1999).
235. See Steinberg, supra note 158, at 56.
236. See Elizabeth Cauffman & Laurence Steinberg, (Im)maturity of Judgment in Adolescence: Why Adolescents May be Less Culpable than Adults, 18 BEHAV. SCI. & L. 741 (2000).
237. See, e.g., sources cited infra notes 209-247.
238. Barry C. Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 MINN. L. REV. 26 (2006). The study is also of limited usefulness because the sample does not include subjects under sixteen years of age. Id. at 62-63.
239. A. Bruce Ferguson & Alan Charles Douglas, A Study of Juvenile Waiver, 7 SAN DIEGO L. REV. 39, 53 (1970) (finding that eighty-one out of eighty-six juveniles did not consciously and fully understand their rights).
240. Richard A. Lawrence, The Role of Legal Counsel in Juveniles' Understanding of Their Rights, JUV. & FAM. CT. J., Winter 1983-1984, at 41, 52.
241. Id. at 52-53.
242. THOMAS GRISSO, INSTRUMENTS FOR ASSESSING UNDERSTANDING & APPRECIATION OF MIRANDA RIGHTS (1998).
243. Id. at 9-11.
244. Id. See also Rona Abramovitch, Michele Peterson-Badali & Meg Rohan, Young People's Understanding and Assertion of Their Rights to Silence and Legal Counsel, 36 CANADIAN J. CRIMINOLOGY I (1995);
245. Naumi E. Sevin et al., Juvenile Offenders' Miranda Rights Comprehension and Self-Reported Likelihood of Offering False Confessions, 10 ASSESSMENT 359 (2003);
246. Allison D. Redlich, Melissa Silverman & Hans Steiner, Pre-Adjudicative and Adjudicative Competence in Juveniles and Young Adults, 21 BEHAV. SCI. & L. 393 (2003).
247. Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134, 1153 (1980).
248. Id. at 1153-54.
249. JUVENILES' WAIVER, supra note 199, at 192. See also Grisso, supra note 150, at 12.
250. JUVENILES' WAIVER, supra note 199, at 192.
251. Id. at 182.
252. Id.
253. See, e.g., Travis Hirschi & Michael J. Hindelang, Intelligence and Delinquency: A Revisionist Review, 42 AM. SOC. REV. 571, 573-75 (1977) (discussing importance of IQ as a variable in delinquency);
254. David A. Ward & Charles Tittle, IQ and Delinquency: A Test of Two Competing Explanations, 10 J. QUANT. CRIM. 189, 191 (1994) (noting delinquents score eight percentage points lower than nondelinquents on IQ tests).
255. See generally Grisso et al., supra note 201; Abramovitch et al., supra note 214. See also Ferguson & Douglas, supra note 209; JUVENILES' WAIVER, supra note 199.
256. Jodi L. Viljoen, Patricia A. Zapf & Ronald Roesch, Adjudicative Competence and Comprehension of Miranda Rights in Adolescent Defendants: A Comparison of Legal Standards, 25 BEHAV. SCI. & L. 1 (2007).
257. Id. at 9.
258. Id.
259. Id. On the basic understanding measure, fifty-eight percent of defendants ages eleven to thirteen, thirty-three percent of defendants ages fourteen to fifteen, and eight percent of defendants ages sixteen to seventeen were impaired. Id. Although Viljoen and her colleagues hypothesized that today's youth would have more legal awareness and understanding than those of twenty to thirty years ago, when Grisso's early research was conducted, they found that this was not the case. Id. at 14.
260. Id. at 9.
261. See, e.g., Sevin, supra note 214.
262. See, e.g., Ferguson & Douglas, supra note 209, at 54 (reporting that ninety-six percent of subjects waived their Miranda rights); J. Thomas Grisso & Carolyn Pomicter, Interrogation of Juveniles: An Empirical Study of Procedures, Safeguards, and Rights of Waiver, 1 L. & HUM. BEHAV. 321, 334 (1977) (searching juvenile court records showed that ninety percent of juvenile defendants chose to talk, although it was not clear whether Miranda rights were waived);
263. Jodi L. Viljoen, Jessica Klaver & Ronald Roesch, Legal Decisions of Preadolescent and Adolescent Defendants: Predictors of Confessions, Pleas, Communication with Attorneys, and Appeals, 29 L. & HUM. BEHAV. 253, 261, 263 (2005) (reporting that eighty-seven percent of defendants eleven to seventeen years of age in Washington juvenile detention facility had waived their right to remain silent, and that only 9.65% requested an attorney).
264. See Grisso, supra note 215, at 1160-161; Viljoen et al., supra note 223, at 16-17; Abramovitch et al., supra note 214, at 4.
265. See JUVENILE'S WAIVER, supra note 199, at 59; Lawrence, supra note 210, at 49;
266. Jodi Viljoen & Ronald Roesch, Competence to Waive Interrogation Rights and Adjudicative Competence in Adolescent Defendants: Cognitive Development, Attorney Contact, and Psychological Symptoms, 29 L. & HUM. BEHAV. 723, 733 (2005); Grisso et al., supra note 201, at 347.
267. See Grisso et al., supra note 201, at 356-57; see Lawrence, supra note 210, at 53.
268. See, e.g., Fare v. Michael C., 442 U.S. 707, 725 (1979); Matthews v. State, 991 S.W.2d 639, 643 (Ark. Ct. App. 1999) (noting that the fact that the child had one prior charge of "fleeing" supported finding that she understood the situation when interrogated on murder and attempted murder charges); State v. Gray, 100 S.W.3d 881, 887 (Mo. Ct. App. 2003) (noting that prior relevant experience consisted of school resource officers intervening when the child became disruptive in school on numerous occasions, although only two interventions resulted in his being placed in "custody" while he was taken to speak with his mother, and that the child had been interrogated on one prior occasion a little over a year earlier); State ex rel. Juvenile Dep't v. Deford, 34 P.3d 673, 676, 685 (Or. Ct. App. 2001). Here, the court explained that some of the relevant "experience" that supported a finding that an eleven-year old understood the consequences of the waiver was that he watched Cops on television and "kind of figured out [he] was going to get arrested. The cops don't read you your rights for no reasons [sic]." Id. at 685. See also Rone v. Wyrick, 764 F.2d 532, 535 (8th Cir. 1985) (unusually bright and mature juvenile with vast experience with the law made valid waiver without parent present); State v. Jones, 628 P.2d 472, 478 (Wash. 1981) (holding a waiver valid where fifteen-year-old Canadian defendant had experience with police in Canada, and circumstances indicated a full understanding of rights).
269. See JUVENILES' WAIVER, supra note 199, at 111; Lawrence, supra note 210, at 49-51.
270. Gary B. Melton, Children's Concepts of Their Rights, 9 J. CLINICAL CHILD PSYCHOL. 186, 186 (1980).
271. JUVENILES' WAIVER, supra note 199, at 129-30.
272. Id. See also Melton, supra note 235, at 186-87.
273. Grisso, supra note 212, at 11.
274. JUVENILES' WAIVER, supra note 199, at 115-120;
275. Rona Abramovitch & Meg Rohan, Young's People's Understanding and Assertion of Their Rights to Silence and Legal Counsel, 37 CAN. J. CRIMINOLOGY 1, 5 (1995).
276. Id.
277. Id. at 11.
278. Id. at 13.
279. Ferguson & Douglas, supra note 209, at 53.
280. See Michele Peterson-Badali & Rona Abramovitch, Children's Knowledge of the Legal System: Are They Competent to Instruct Legal Counsel? 34 CAN. J. CRIMINOLOGY 139, 150-51 (1992).
281. See JUVENILES' WAIVER, supra note 199, at 119.
282. In related research, it was reported that a majority of high school students believe that attorneys and the police are dishonest. See David M. Rafkey & Ronald W. Sealey, The Adolescent & The Law: A Survey, 21 CRIME & DELINQ. 131, 133-34 (1975).
283. Also, there is evidence that, like Michael C., juvenile offenders tend to trust their probation officers more than their attorneys. See W. VAUGHAN STAPLETON & LEE E. TEITELBAUM, IN DEFENSE OF YOUTH (1972).
284. See Ferguson & Douglas, supra note 209, at 39; S. Manoogian, Factors Affecting Juveniles' Comprehension of Miranda Rights (1978) (unpublished Ph.D. dissertation, St. Louis University).
285. See Grisso et al., supra note 201, at 353.
286. Id. at 353-54.
287. Id. at 354.
288. Id. at 355-56.
289. Id.
290. Id.
291. Id. at 350-56.
292. See id. at 350-57.
293. There is considerable research on juveniles' capacities as trial defendants, especially with regard to psychosocial and neuropsychological factors that may impair an adolescent's competence. See, e.g., Grisso et al., supra note 201. We have intentionally avoided discussion of competence to stand trial, not because it is irrelevant to the Roper decision, but because the breadth of the topic is beyond the scope of this Article. Much, if not all, of the discussion of adolescent development and its implications for youths' exercise of Fifth and Sixth Amendment rights is applicable to juveniles' trial competency as well.
294. Delinquents tend to have more difficulty understanding their legal rights than their nondelinquent peers because they are of below-average intelligence and lag behind in grade level. In addition, many have mental disorders and learning disabilities (e.g., attention deficit disorder) that interfere with their ability to attend and concentrate for more than brief periods of time. See, e.g., Linda A. Teplin et al., Psychiatric Disorders in Youth in Juvenile Detention, 59 ARCHIVES OF GEN. PSYCHIATRY 1081, 1133-43 (2002).
295. Grisso, supra note 212, at 9-16; Rafkey & Sealey, supra note 246, at 133-34.
296. Grisso, supra note 212, at 15-16.
297. What co-defendants do when taken to the stationhouse for questioning may influence the client to want to do likewise. If the client is held in detention, he is likely to be exposed to volumes of information and advice from more experienced peers, who may well be viewed as "experts" who are more credible than his attorney. Mistrust of attorneys is reinforced among peers in institutional settings. See, e.g., Donna Bishop & Charles Frazier, Consequences of Transfer, in THE CHANGING BORDERS OF JUVENILE JUSTICE 227 (Jeffrey Fagan & Franklin E. Zimring eds., 2000).
298. Emily Buss, The Role of Lawyers in Promoting Juveniles' Competence as Defendants, in YOUTH ON TRIAL: A DEVELOPMENTAL PERSPECTIVE ON JUVENILE JUSTICE 243, 254 (Thomas Grisso & Robert G. Schwartz eds., 2000).
299. Id.
300. Viljoen & Roesch, supra note 231, at 733-34.
301. Substantial numbers of delinquent youth do not understand that the defense lawyer is bound by duty to advocate on the client's behalf. See, e.g., Grisso, supra note 212, at 15-16.
302. Buss recommends two strategies to communicate loyalty to the child: (1) demonstrating "a commitment to confidentiality . . . in the face of . . . pressure . . . to reveal information," and (2) "willingness to exclude the minor's parents from the . . . lawyer-client relationship." Buss, supra note 261, at 257. [T]hese two demonstrations may be most effective when combined: in all likelihood, the minor will experience the keeping of secrets from parents as particularly extraordinary. . . . To help the minor understand the special relationship between client and lawyer, the minor must be made to understand the counterintuitive lesson that the lawyer will do the minor client's bidding regardless of the parents' wishes. Parental inclusion in the relationship should come, if at all . . . because the child has expressly chosen to value that involvement. Id. at 257-58.
303. See Steinberg, supra note 158, at 58.
304. See, e.g., Patricia Puritz & Katayoon Majd, Ensuring Authentic Youth Participation in Delinquency Cases: Creating a Paradigm For Specialized Juvenile Defense Practice, 45 FAM. CT. REV. 466 (2007).
305. ELIZABETH CALVIN ET AL., NAT'L JUV. DEFENDER CTR.: JUVENILE DEFENDER DELINQUENCY NOTEBOOK 17-19 (2d ed. 2006), available at http://njdc.info/delinquency_notebook/interface.swf.
306. See, e.g., ANNE GRAFFAM WALKER, HANDBOOK ON QUESTIONING CHILDREN: A LINGUISTIC PERSPECTIVE (1994).
307. See Grisso et al., supra note 201, at 335. See generally Steinberg, supra note 158.
308. See infra Part V.
309. See MODEL RULES OF PROF. CONDUCT RR. 1.14, 1.3 (2006);
310. IJA-ABA, JOINT COMM'N ON JUV. JUST. STANDARDS, JUVENILE JUSTICE STANDARDS: STANDARDS RELATING TO COUNSEL FOR PRIVATE PARTIES 3.1 (1980).