Collateral damage? Juvenile snitches in america's "wars" on drugs, crime, and gangs

American Criminal Law Review

Volumn 46, Issue 3, 2009, Pages 1145-1190

  Dennis, Andrea L ^a  

^a UNIVERSITY OF KENTUCKY   (United States)

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EID: 67651007543     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (360)

1. Wallace's story is the creation of fictional television writers. See HBO, The Wire: Episode Guide, http://www.hbo.com/thewire/episode/ seasonl/episode01.shtml (last visited Mar. 24, 2009). The show's writers claim that, though characters such as Wallace are fictional, they are rooted in the reality of inner-city life. See Ed Burns et al., Saving Cities, and Souls, Time, Mar. 17, 2008, at 50. Indeed, Wallace's story is similar to the true-life stories of some child informants. See discussion infra Part I.A.
2. See BLACK'S LAW DICTIONARY 1144 (8th ed. 2004).
3. Throughout the article, the terms "child informant," "juvenile informant," and "underage informant" are used interchangeably.
4. This article interchangeably uses the term "informant" and its pejorative colloquial alternative "snitch."
5. See Williamson v. City of Va. Beach, 786 F. Supp. 1238, 1241 (E.D. Va. 1992);
6. MacDonald v. City of Brea Police Dep't, No. G028372,2002 WL 1650018, at *1 (Cal. Ct. App. July 23, 2002);
7. Daren Briscoe, The New Face of Witness Protection, NEWSWEEK, May 2, 2005, at 56;
8. Jerry Markon & Maria Glod, Giving Up a New Life for a Gang Death, WASH. POST, Aug. 10, 2003, at A01;
9. Kyra Darnton, 60 Minutes: The Fight Against MS-13 (CBS television broadcast Dec. 4, 2005), available at http://www.cbsnews.com/stories/ 2005/12/01/60minutes/mainl090941.shtml.
10. JUUE L. WHITMAN & ROBERT C. DAVIS, THE NAT'L CTR FOR VICTIMS OF CRIME, SNITCHES GET STITCHES: YOUTH, GANGS, AND WITNESS INTIMIDATION IN MASSACHUSETTS, 23-25, 37 (2007).
11. See Neely Tucker, Girl's Slaying Opens Window on Intimidation, WASH. POST, Feb. 2, 2004, at Al ("[S]ome of the region's most dangerous criminals have made intimidating witnesses a part of doing business .... The Jan. 23 slaying of 14-year-old Jahkema Princess Hansen - a possible witness to a homicide - is a jarring reminder....").
12. A growing body of literature discusses adult informants. E.g., George C. Harris, Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 PEPP. L. REV. 1 (2000);
13. Graham Hughes, Agreements for Cooperation in Criminal Cases, 45 VAND. L. REV. 1 (1992);
14. Alexandra Natapoff, Comment, Beyond Unreliable: How Snitches Contribute to Wrongful Convictions, 37 GOLDEN GATE U. L. REV. 107 (2006) [hereinafter Natapoff, Unreliable];
15. Alexandra Natapoff, Snitching: The Institutional and Communal Consequences, 73 U. CIN. L. REV. 645 (2004) [hereinafter Natapoff, Snitching];
16. Richard Rosenfeld et al., Snitching and the Code of the Street, 43 BRIT. J. CRIMINOLOGY 291 (2003);
17. Michael A. Simons, Retribution for Rats: Cooperation, Punishment, and Atonement, 56 VAND. L. REV. 1 (2003);
18. Ian Weinstein, Regulating the Market for Snitches, 47 BUFF. L. REV. 563 (1999). In comparison, only a handful of articles from the year 2000 and earlier discuss juvenile informants. See Darci Osther, Juvenile Informants-A Necessary Evil?, 39 WASHBURN L.J. 106 (1999);
19. Lee Sinclair & David L. Herbert, The Use of Minors in Law Enforcement Undercover Operations, 24 OHIO N.U. L. REV. 31 (1998);
20. Charoletta J. Ransom, Comment, Does the End Justify the Means? Use of Juveniles as Government Informants, Helpful to Society While Harmful to the Child, 20 J. Juv. L. 108 (1999);
21. Michael R. Santiago, Comment, "The Best Interests of the Child"-Scrutinizing California's Use of Minors as Police Informants in Drug Cases, 31 MCGEORGE L. REV. 777 (2000). This article both resurrects and moves forward the discussion of juvenile informants.
22. Cf. Linda S. Beres & Thomas D. Griffith, Demonizing Youth, 34 LOY. L.A. L. REV. 747, 747-48 (2001). Beres and Griffith describe the situation in the following manner: Conceptualizing the crime-control mission in military terms - "War on Drugs" and "War on Gangs" - can encourage an "ends justifies the means" attitude. The resulting police conduct can vary from the oft-reported false testifying of officers regarding the circumstances surrounding a stop or search, to the more extreme case of shooting and then framing an innocent man. Id.;
23. see also James Blair, Ethics of Using Juvenile Informants, CHRISTIAN SCI. MONITOR, Apr. 14, 1998, at 3 ("It goes on a lot more than people realize because of the mentality of the drug war.... It's a holy war... and so the police use a lot of tactics that probably would shock the pubic if they came to light.") 10. Beres & Griffith, supra note 9;
24. see also Blair, supra note 9.
25. "Informant" or "snitch" is a term open to various interpretations depending on the speaker and context. Some have adopted a more narrow definition. For example, the term is frequently limited to "jailhouse snitches" or other criminals who provide information in exchange for a government benefit. See, e.g., Natapoff, Unreliable, supra note 8, at 107;
26. Natapoff, Snitching, supra note 8, at 653;
27. Simons, supra note 8, at 2. Alternatively, the term could be defined as an individual who, being a member of a particular community, especially an alienated or outsider community, provides information to authorities about members of that same community. The term as used herein is intentionally broad because the concerns surrounding underage informants are not limited to those who receive a government benefit.
28. See infra Part II. Moreover, Fourth Amendment jurisprudence takes a broad view of the term informant. Criminals and those involved in the criminal milieu, victims, and witnesses are all a type of informant, although victims and witnesses are usually further identified as citizen-informants. See 2 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §§ 3.3(c), 3.3(d) (3d ed. 2007);
29. 79 C.J.S. Searches § 215 (2008). Legal culture reflects a trend toward defining informant to include all human sources of information, regardless of their motivations. Cf. DEP'T OF JUSTICE, THE ATTORNEY GENERAL'S GUIDELINES REGARDING THE USE OF FBI CONFIDENTIAL HUMAN SOURCES 4 (2006) [hereinafter CONFIDENTIAL SOURCE GUIDELINES], available at http://www.fas.org/irp/agency/doj/fbi/ chs-guidelines.pdf. The FBI defines "confidential human source" as: [A]ny individual who is believed to be providing useful and credible information to the FBI for any authorized information collection activity, and from whom the FBI expects or intends to obtain additional useful and credible information in the future, and whose identity, information or relationship with the FBI warrants confidential handling. Id.;
30. see also Boston Police Dep't, Special Ord. No. 96-31 (1996), available at www.cityofboston.gov/police/pdfs/rule333.pdf (defining "source of information," "paid confidential informant," "defendant informant," and "other informant");
31. Cincinnati Police Dep't Proc. Manual 12.131 (Rev. Feb. 1998), available at http://www.cincinnati-oh.gov/police/downloads/police- pdf33731.pdf (defining "sources of information," "confidential informants," "confidential defendant informants," and "inactive confidential informants");
32. Denver Police Dep't Operations Manual 307.01(1) (Rev. Mar. 2006), available at http://www.denvergov.org/DenverPoliceDepartment- OperationsManual/tabid/392273/ (defining "participating informant" and "non-participating informant");
33. Iowa City Police Dep't Gen. Ord. No. 01-02 (Effective Aug. 2008), available at http://www.icgov.org/site/CMSv2/File/police/generalOrders/ genorder37.pdf (defining "confidential informant" and "source");
34. Olympia Police Dep't Gen. Ord. 42.2.5.I (Rev. Nov. 2003), available at www.icgov.org/site/cmsv2/file/police/generalorders/genorder37.pdf (defining "voluntary informants" and "confidential informants"). Similarly, popular culture -including more particularly street culture and youth culture - increasingly define "informant" expansively to include any individual who provides information to the government for the investigation and prosecution of another. See Whitman & Davis, supra note 6, at 37 (finding from interviews with youth that simply being seen talking to the police, whether or not information was shared, leads to the "snitch" label).
35. Kg., United States v. McCotry, Nos. IP 06-CR-25-01-H/F, 06-CR-25-02-H/F, 2006 WL 2460757, at *l-2 (S.D. Ind. July 13,2007) (third-grade student interviewed at school by school officials, law enforcement officers, and school social worker provided information regarding criminal drug activity of mother and mother's paramour);
36. Richard v. State, 820 N.E.2d 749, 752 (Ind. Ct. App. 2005) (eight-year-old citizen informant told school counselor about criminal drug activities on father's property which was used to obtain a search warrant);
37. Commonwealth v. Alvarez, 661 N.E.2d 1293, 1296 (Mass. 1996) (juvenile arrested for cocaine distribution provided information regarding his supplier);
38. State v. Kerr, 511 N.W.2d 586, 587 (Wis. 1994) (seventeen-year-old citizen informant working as desk clerk at a motel provided information to law enforcement supporting search warrant for motel room).
39. For other definitions of juvenile informant see Osther, supra note 8, at 108-09;
40. Sinclair & Herbert, supra note 8, at 33-34.
41. See, e.g., True N. Energy, L.L.C. v. Liquor Control Comm'n, No. 07AP-393,2007 WL 3293349 (Ohio Ct. App. Nov. 8, 2007) (underage informant unlawfully obtained alcohol);
42. State v. Lutz, No. CA-81-18, 1982 WL 3043 (Ohio Ct. App. July 12,1982) (juvenile informant purchased alcohol from a beer carryout store).
43. See Public Health Service Act of 1992 §1926, 42 U.S.C. § 300x-26 (2000) (commonly called the "Synar Amendment"). SAMHSA suggested, but did not require, that law enforcement use juveniles to conduct stings. 61 Fed. Reg. 1492, 1494 (1996). SAMHSA, nevertheless, suggested that sting operations employing juveniles are the most efficient means of inspection and stated that it knew of no other alternative means of satisfying inspection requirements. See Sinclair & Herbert, supra note 8.
44. E.g., United States v. Howard, 447 F.3d 1257, 1260 (9th Cir. 2006) (juvenile informant provided information that defendant was a firearms dealer and gang member);
45. United States v. Payne, 341 F.3d 393, 396 (5th Cir. 2003) (seventeen year-old victim of child sexploitation, who had been arrested on unrelated credit card abuse charge, provided information in support of search warrant of defendant's home);
46. United States v. Moore, 92 F.3d 1183 (4th Cir. 1996) (juvenile arrested for illegal possession of a handgun was recruited to act as informant and participated in controlled buys);
47. United States v. Taylor, 302 F. Supp. 2d 909,914 (N.D. Ind. 2004) (juvenile who associated with defendant provided information linking defendant to homicide and robbery at the encouragement of a parent);
48. Morrow v. State, 704 P.2d 226,228 (Alaska Ct. App. 1985) (juvenile who confessed to attempted drug distribution informed against supplier providing testimony in support of search warrant);
49. Munoz v. State, 629 So. 2d 90,101 (Fla. 1993) (sixteen-year-old who had been arrested for drug distribution was recruited by law enforcement for participation in a "sting" to uncover the sale of pornography to minors);
50. State v. Hendrex, 865 So. 2d 531, 532 (Fla. Dist. Ct. App. 2003) (finding that juvenile informant, who was known to police and had provided information in the past, provided credible information supporting probable cause to arrest);
51. People v. Potts, 374 N.E.2d 891, 893 (Ill. App. Ct. 1978) (juvenile informant allegedly involved in homicide provided information supporting arrest warrant for another juvenile);
52. State v. Krajeski, 16 P.3d 69, 71 (Wash. Ct. App. 2001) (juvenile informant provided information regarding theft of bicycle from store);
53. State v. Carver, 753 P.2d 569, 570 (Wash. Ct. App. 1988) (ten-year-old and eight-year-old child informants provided information supporting search warrant application for neighbors' home for criminal drug activity).
54. For more discussion of the program, see infra text accompanying notes 55-59.
55. Martin v. City of Covington, 541 F. Supp. 803, 803 (E.D. Ky. 1982);
56. see also Munoz, 629 So. 2d at 101 (sixteen-year-old who had been arrested for drug distribution was recruited by law enforcement for participation in a "sting" to uncover the sale of pornography to minors).
57. Martin, 541 F. Supp. at 803.
58. Id. at 804.
59. MacDonald v. City of Brea Police Dep't, No. G028372, 2002 WL1650018 (Cal. Ct. App. July 23,2002).
60. Id.
61. Id. at *l-2. The local prosecutor handling Chad's case agreed with the deal. Id. at *3.
62. Id. at *2.
63. Id.
64. Id.
65. Id. at *2-3.
66. Id. His tires were slashed and a phone caller threatened that his informant activities "would cost him his life." Id. at*2.
67. Id. at *4. Prior to his murder, Chad had been terminated as an informant and his police handler refused to request the prosecutor grant Chad leniency. Id. at *3.
68. See Williamson v. City of Virginia Beach, 786 F. Supp. 1238, 1242 (E.D. Va. 1992).
69. Id. at 1241-42.
70. See Stuart Pfeifer et al., O.C. Teen Informer Case Has Parallels, ORANGE COUNTY REG., Mar. 29, 1998, at A01.
71. See Paul Bradley, Gang Member's Story is Recounted After Leaving Witness Program, She Returned to MS-13, Was Killed, RICH. TIMES DISPATCH, Apr. 13, 2005, at B1;
72. Markon & Glod, supra note 5;
73. Jerry Markon & Jamie Stockwell, U.S. Faulted in Slaying of Witness, WASH. POST, Apr. 13, 2005, at B01;
74. Jamie Stockwell, In MS-13, a Culture of Brutality and Begging, WASH. POST, May 2, 2005, at A01;
75. Darnton, supra note 5;
76. News Release, U.S. Att'y, E. Dist. of Va. (May 17, 2005).
77. Markon & Glod, supra note 5.
78. Id.
79. Id. The federal government has placed other teens into the program. See Briscoe, supra note 5.
80. Markon & Glod, supra note 5. One can speculate on the reasons a juvenile in Brenda's position would initiate contact with those on whom she was informing and she knew to be dangerous, including peer pressure, loneliness, boredom, naivete, high tolerance for risk-taking, or a high level of attachment.
81. Id.
82. Kg., United States v. Howard, 447 F.3d 1257 (9th Cir. 2006) (juvenile informant provided information that defendant was a firearms dealer and gang member);
83. People v. Thames, 483 N.Y.S.2d 583 (N.Y. Sup. Ct. 1984) (two-year-old child used as informant in homicide case);
84. State v. Clinton, No. 35225-7-II, 2008 WL 186740 (Wash. Ct. App. Jan. 23, 2008) (ten- and twelve-year-old girls acting provided information supporting Terry stop);
85. State v. Hart, 830 P.2d 696 (Wash. Ct. App. 1992) (juvenile detained for traffic infraction and possession of an open container of alcohol provided information regarding marijuana distributor).
86. E.g., United States v. Payne, 341 F.3d 393 (5th Cir. 2003) (seventeen-year-old victim of child sexploitation, who had been arrested on unrelated credit card abuse charge, provided information in support of search warrant of defendant's home);
87. People v. Fredrics, 395 N.E.2d 723 (Ill. App. Ct. 1979) (eleven-year-old child informant who was crime victim provided information in support of search warrant);
88. Richard v. State, 820 N.E.2d 749 (Ind. Ct. App. 2005) (eight-year-old informant told school counselor about criminal drug activities on father's property);
89. State v. Jannetta, 355 N.W.2d 189 (Minn. Ct. App. 1984) (twelve-year-old child informant who was crime victim provided information in support of search warrant);
90. State v. Brush, No. M1999-00622-CCA-R3-CD, 2000 WL 378315 (Tenn. Crim. App. Apr. 14, 2000) (three-year-old sex abuse victim provided information for search warrant of defendant's home);
91. State v. Carver, 753 P.2d 569 (Wash. Ct. App. 1988) (ten-year-old and eight-year-old child informants provided information supporting search warrant application for neighbors' home for criminal drug activity);
92. State v. Kerr, 511 N.W.2d 586 (Wis. 1994) (seventeen-year-old informant working as desk clerk provided information to law enforcement supporting search warrant for motel room).
93. E.g., Hong v. Att'y Gen. of the U.S., 165 F. App'x 995 (3d Cir. 2006) (asserting that fifteen-year-old boy provided information to government and agreed to testify at trial regarding international illegal smuggling operation run by Chinese gang).
94. See 3 THOMAS GRISSO, JUVENILES' WAIVER OF RIGHTS 182-86 (1981) (studying parent-child interactions during juvenile interrogations).
95. See id. at 182 (concluding that most parents who advised a child on whether to cooperate with police interrogation about criminal involvement told the child to cooperate);
96. Pfeifer et al., supra note 32 (quoting father of Gregory "Sky" Erikson, a juvenile informant who was murdered, as stating: "I feel responsible because I talked him into this .... ").
97. See GRISSO, supra note 42, at 182 (concluding that a small percentage of parents advised their child not to cooperate with law enforcement interrogation).
98. See Mary Dodge, Juvenile Police Informants: Friendship, Persuasion, and Pretense, 4 YOUTH VIOLENCE & JUV. JUST. 234, 240 (2006) ("[A] high level of coercion is generally present in the recruitment of the juvenile turned informant.");
99. cf. In re Gault, 387 U.S. 1, 51-52 (1967): [I]t seems probable that where children are induced to confess by "paternal" urgings on the part of officials and the confession is then followed by disciplinary action, the child's reaction is likely to be hostile and adverse - the child may well feel that he has been led or tricked into confession and that despite his confession, he is being punished.
100. Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. CRIM. L. & CRIMINOLOGY 219 (2006). Feld is not the first to examine juvenile interrogations. In the mid to late 1970s, psychiatrist Thomas Grisso gathered similar data in St. Louis, Missouri.
101. See generally Grisso, supra note 42. Grisso was researching juveniles' "understanding of the meaning and significant of the rights to silence and counsel." Id. at 8.
102. Feld, supra note 46, at 220.
103. Id.
104. Id. at 275.
105. Id. at 282-85.
106. Id. at 301-302.
107. Id. at 298-302. Given the increasing numbers and rate of children transferred to adult criminal court and the severity of the penalties available in adult criminal court, the incentive to inform in order to avoid adult prosecution may be great.
108. Id. at 276.
109. Id. at 275.
110. See Reuben Greenberg, Solving the Problem: Rehabilitation, Reformation, and Other Solutions, 23 PEPP. L. REV. 909, 915-916 (1996) (discussing how the Charleston Police Department "decided to give one hundred dollars to anybody who reported someone who had an illegal gun in public");
111. see also Susan DeFord, Fur Flies After School Food Fight, WASH. POST, Jan. 11, 2008, at B01 (describing offer of principal of a Maryland county high school to give thirty dollars to students who provided the names of those students earlier involved in a food fight in the school cafeteria);
112. Susan DeFord, Offer of Cash Continues for Informants, WASH. POST, Jan. 30, 2008, at BOS (discussing school administrators offering cash to students for informing on their classmates).
113. Greenberg, supra note 55, at 909.
114. Id. at 915-16.
115. Id. at 916.
116. Id.
117. Dodge, supra note 45, at 236 (noting that most law enforcement agencies are "reluctant to officially admit to the practice" of using underage informants);
118. see also Roper v. Simmons, 543 U.S. 551,569 (2005) (describing how juveniles' lack of maturity and other qualities often result in "impetuous and ill-considered actions and decisions").
119. See Pfeifer et al., supra note 32 (describing the case of Cecil Calloway, a murdered juvenile informant, whom police said "walked in and just volunteered .... We didn't have any charges on him, he wasn't working anything off; he just came in off the street and wanted to help us. He just said he wanted to get the drugs off the street.");
120. see also Williamson v. City of Virginia Beach, 786 F. Supp. 1238 (E.D. Va. 1992) (discussing case in which mother of Robbie Williamson, a volunteer juvenile informant, sued city officials for damages owing to his suicide).
121. See Bradley, supra note 33 (FBI witness protection handler for one juvenile who was killed by the targets of her informing activities stated his responsibility "was to provide her with a safe place to live and food and sustenance.... The burden of personal responsibility for safety [fell] upon the witness.").
122. Cf. Beres & Griffith, supra note 9, at 760 (pointing out, in the context of gang databases, that "[yjouths stopped and questioned by the police may fear retaliation if they refuse to answer the question asked or if they deny permission to be photographed").
123. See Dodge, supra note 45, at 243. In this article, Dodge sets forth results from a qualitative study of law enforcement perspectives on the use of juvenile snitches. She notes that the "low number of participants limits generalizability and may not reflect majority perspectives in other cities, though consistent themes were identified among this group of respondents." Id. at 239;
124. see also Blair, supra note 9 (noting that after a juvenile informant was killed, the Brea Police Department "maintained that Chad took part voluntarily and that they were not responsible for his death").
125. See Blair, supra note 9 (quoting prosecutor who says use of child informants is "very infrequent");
126. Dodge, supra note 45, at 235 (quoting officer who says use of child informants is "negligible").
127. See Blair, supra note 9 (citing former police chief who thinks that "the number of underage operatives being used may be higher than many think");
128. Dodge, supra note 45, at 235 (citing commentators who "claim the use of underage operatives is frequent").
129. Data on adult informants is likewise not routinely and widely collected. See Natapoff, Snitching, supra note 8, at 654. The United States Sentencing Commission occasionally collects data on the use of adult cooperators in the federal criminal justice system. See, e.g., U.S. SENTENCING COMM'N., SOURCEBOOK of FEDERAL SENTENCING STATISTICS tbl. 25 (2007), available at http://www.ussc.gov/ANNRPT/2007/SBTOC07.htm (stating that 0.5% of cooperating offenders received a downward sentence from the guideline range);
130. see also LINDA DRAZGA MAXFIELD & JOHN H. KRAMER, NAT'L INST, OF CORR., SUBSTANTIAL ASSISTANCE: AN EMPIRICAL YARDSTICK GAUGING EQUITY IN CURRENT FEDERAL POLICY AND PRACTICE 9 (1998) ("Approximately two-thirds (67.5% or 158 of the 234 cases with available data) of all defendants provided some form of assistance to the government during prosecution.").
131. Dodge, supra note 45, at 239.
132. Id.
133. Id.
134. See Natapoff, Snitching, supra note 8, at 657 ("Police jealously guard the identities of their informants, often failing to reveal that an informant has contributed to a case.").
135. See Dodge, supra note 45, at 235 (noting that the secrecy surrounding the use of juvenile informants is "connected to the particular rights of minors, the confidentiality of juvenile records");
136. Osther, supra note 8, at 107.
137. Pollock v. Superior Court, 272 Cal. App. 2d 548, 555-56 (Cal. Ct. App. 1969) (stating that juvenile who was arrested for, and admitted to, burglary informed on the individual to whom he sold the stolen items).
138. See cases cited supra notes 16, 39-41.
139. See Blair supra note 9;
140. Pfeifer et al., supra note 32;
141. Stockwell supra note 33.
142. See Dodge, supra note 45;
143. Feld, supra note 46, at 275 (noting that in 13% of cases juveniles were reluctant to inform and officers used varying strategies to overcome their reluctance).
144. See supra Part LB for a discussion of "flipping" tactics.
145. Short of a full-blown empirical study, one method to generate such information may be to extrapolate from data on juvenile victims and offenders. In 2006, the federal government issued a report providing comprehensive, nationwide data on juvenile crime, which may serve as a source of information on the demographics of juvenile criminals and criminal activity. HOWARD N. SNYDER & MELISSA SICKMUND, U.S. DEP'T OF JUSTICE, JUVENILE OFFENDERS AND VICTIMS: 2006 NATIONAL REPORT 125-52 (2006).
146. See CONFIDENTIAL SOURCE GUIDELINES, supra note 11. Indeed, the terms "juvenile" or "minor" appear nowhere in the guidelines.
147. Blair, supra note 9. On January 23, 2008, the author submitted an online information request through the National District Attorneys Association (NDAA) website inquiring whether the organization had such regulations. On January 24, 2008, the author received a voice message from Susan Broderick of the NDAA-Juvenile Section confirming that the NDAA does not have any regulations.
148. See Blair, supra note 9.
149. See, e.g., Boston Police Dep't supra note 11;
150. Cincinnati Police Dep't, supra note 11, at 12.131(C)(1)(a);
151. Denver Police Dep't, supra note 11, § 307.04(1);
152. Iowa City Police Dep't supra note 11, § J.V.F.;
153. Olympia Police Dep't, supra note 11.
154. Olympia Police Dep't, supra note 11(requiring juvenile court approval for use of juveniles as confidential informants).
155. N.J. ATT'Y GEN., LAW ENFORCEMENT GUIDELINES ON THE USE OF JUVENILES AS INFORMANTS [hereinafter N.J. JUVENILE GUIDELINES], reprinted in THE NEW JERSEY SCHOOL SEARCH POLICY MANUAL A10-1 (1998).
156. See id. These exclusions make New Jersey's definition of informant narrower than the definition adopted herein. See supra Part I.A.
157. See N.J. JUVENILE GUIDELINES, supra note 83.
158. Id.
159. Id.
160. Id. at A10-2.
161. Id.
162. Id.
163. See id.
164. See id.
165. CAL. PENAL CODE § 701.5 (West 2006) (commonly called "Chad's Law").
166. For scholarly discussion of the legislation, see Santiago, supra note 8, at 782-83 (noting the arguments for and against the California statute).
167. See also Osther, supra note 8, at 124-26 (critiquing the use of age and maturity as the only guiding factors for the capacity of the child to inform).
168. § 701.5(e).
169. The California definition is significantly narrower than the definition of informant adopted in this article. See supra Part I.A.
170. § 701.5(e). The original legislation sought to ban all juveniles from acting as "minor informants," but law . enforcement officials successfully defeated this measure. See E. Bailey, Law Signed Limiting Use of Youth Informants, L.A. TIMES, Sept. 26, 1998, at B04.
171. § 701.5(b).
172. § 701.5(c). On its face, the statute does not require the court to hold a hearing to make such a determination.
173. Id.
174. § 701.5(d)(1).
175. § 701.5(d)(2).
176. § 701.5(d)(3)
177. § 701.5(d)(4).
178. See BLACK'S LAW DICTIONARY 1144 (8th ed. 2004).
179. See Parham v. J.R., 442 U.S. 584 (1979) (upholding the commitment of a child to a mental health facility against his will on the grounds that children are unable to make sound judgments concerning their need for treatment and that parents are assumed to act in the best interests of their children).
180. See Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944).
181. Lois A. Weithom, Envisioning Second-Order Change in America's Response to Troubled and Troublesome Youth, 33 HOFSTRA L. REV. 1305, 1404-05 (2005).
182. See Santosky v. Kramer, 455 U.S. 745, 766-67 (1982) (discussing the state interest in preserving and promoting the welfare of a child through parens patriae).
183. See Prince, 321 U.S. at 165 ("Against these sacred private interests ... stand the interests of society to protect the welfare of the children....")
184. Id. at 167.
185. In re Gault, 387 U.S. 1, 15-16 (1967);
186. Jonathan Simon, Power Without Parents: Juvenile Justice in a Postmodern Society, 16 CARDOZO L. REV. 1363, 1384-85 (1995).
187. Barry C. Feld, Violent Youth and Public Policy: A Case Study of Juvenile Justice Law Reform, 79 MINN. L. REV. 965, 970-71 (1995).
188. 543 U.S. 551,575 (2005).
189. Id. at 569-70.
190. Id. at 572.
191. Id.
192. Id. at 571-72.
193. For example, U.S. Presidents have declared "war" on traditional social and health issues such as poverty, illiteracy, and cancer. The "War on Poverty" was launched by President Lyndon Johnson during his January 1964 State of the Union address to Congress. In 1971, President Nixon launched the "War on Cancer." See Dwight B. Heath, The War on Drugs as a Metaphor in American Culture, in DRUG POLICY AND HUMAN NATURE 279, 280 (Warren Bickel & Richard J. DeGrandpre eds., 1996).
194. TH CONGRESS AND RELATED DEVELOPMENTS 1 (2003). President Reagan continued the battle cry in October 1982 during a weekly radio address. See Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why The "War On Drugs" Was a "War On Blacks", 6 J. GENDER RACE & JUST. 381, 386-87 (2002). Presidents Bush and Clinton maintained their efforts. The Reagan-George H.W. Bush presidencies invoked the "War on Crime" terminology. In his 1997 State of the Union Address, President Clinton called for legislation that "declarefd] war on gangs." President William J. Clinton, State of the Union Address (Jan. 31, 1997) (transcript available at http://www.cnn.com/2005/ALLPOLITICS/01/31/sotu.clintonl997.3/index.html).
195. Some have commented that the use of conventional war and military tactics and strategies transforms the rhetorical war into a literal war. E.g., Heath, supra note 118, at 281;
196. Nunn, supra note 119, at 386.
197. Nunn, supra note 119, at 404.
198. Id. at 404-09.
199. Many jurisdictions have been subject to wide-scale investigation by die United States Department of Justice for civil rights violations. Information regarding investigations and settlements is available on the Department of Justice website. See U.S. Dep't of Justice, Civil Rights Div.: Special Litig. Section Documents and Publ'ns, http.//www.usdoj.gov/crt/split/findsettle. htm#Police%20Misconduct%20Settlements (last visited Mar. 20,2009).
200. Bruce Lambert, Man, 18, Is Fatally Shot by Police in Brooklyn, N.Y. TIMES, Nov. 13, 2007, at B01.
201. Id.
202. Id.
203. Id.
204. MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, A 25-YEAR QUAGMIRE: THE WAR ON DRUGS AND ITS IMPACT ON AMERICAN SOCIETY 3 (2007), available at http://www.sentencingproject.org/Admin/Documents/ publications/dp- 25yearquagmire.pdf (citing FED. BUREAU OF I NVESTIGATION, CRIME IN THE UNITED STATES, Arrest tbl. (2005)).
205. Id. at 7.
206. See CHRISTOPHER J. MUMOLA, BUREAU OP JUSTICE STATISTICS, INCARCERATED PARENTS AND THEIR CHILDREN 2 (2000), available at http://www.ojp.usdoj. gov/bjs//pub/pdf/iptc/pdf.
207. See id.;
208. THE SENTENCING PROJECT, WOMEN IN THE CRIMINAL JUSTICE SYSTEM: BRIEFING SHEETS 5 (2007), available at http://www.sentencingproject.org/ Admin%5CDocuments%5Cnews%5Cwomenincj-total.pdf.
209. In 1999, approximately 1.5 million children had a parent in state or federal prison, up by more than 500,000 in 1991. MUMOLA, supra note 130, at 2. "Black children (7.0%) were nearly 9 times more likely to have a parent in prison than white children (0.8%)." Id.
210. For discussions of California's gang database, see Beres & Griffith, supra note 9, at 759-63;
211. Joshua D. Wright, The Constitutional Failure of Gang Databases, 2 STAN. J. CRV. RTS. & CIV. LIBERTIES. 115 (2005).
212. See SNYDER & SICKMUND, supra note 77, at 186 (describing trends injudicial waivers of juveniles).
213. See, e.g., Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 111(8), 120 Stat. 587 (2006).
214. See infra Part II.C.
215. The legal problems that may arise from the use of juvenile informants, particularly facilitating criminal conduct and delinquency, have been elsewhere discussed. See Sinclair & Herbert, supra note 8, at 35-39 (analyzing government's use of child informants as violation of alcohol, tobacco, and drug laws as well as contributing to the delinquency of a minor). One additional consideration may be whether the government's actions constitute abuse and neglect of children because of the potential serious harm that may result from being an informant. See Letter from David L. Armstrong, Att'y Gen., Ky., to Hon. R. Hughes Walker, General Counsel, Cabinet for Human Resources, 1985 WL 193277 (1985) (advising that police use of juveniles in child sex abuse sting could constitute abuse under child welfare laws).
216. See Blair, supra note 9 (explaining that using teen informants can sometimes be the only way to enter a world where only minors are trusted);
217. Dodge, supra note 45, at 235;
218. see also N.J. JUVENILE GUIDELINES, supra note 83, at 88 ("Juvenile informants should be used only when there is no practicable alternative that will enable a law enforcement agency to end an illegal activity is endangering the community."). Despite such claims, in 2006, a female, undercover law enforcement officer in Falmouth, Massachusetts,
219. Dodge, supra note 45, at 235.
220. See id.;
221. see also N.J. JUVENILE GUIDELINES, supra note 83, at 88 ("Juvenile informants should be used only when there is no practicable alternative that will enable a law enforcement agency to end an illegal activity that is endangering the community.");
222. Blair, supra note 9;
223. Ransom, supra note 8, at 108 ("Law enforcement is made up of the adult population, therefore it is faced with a dilemma when attempting to infiltrate criminal activity conducted by juveniles.").
224. See N.J. JUVENILE GUIDELINES, supra note 83, at 88 (the use of juveniles as informants "may be necessary to protect juveniles in a community from the distribution of controlled dangerous substances, the sale of firearms, or gang activity");
225. Blair, supra note 9;
226. Dodge, supra note 45, at 244.
227. See Dodge, supra note 45, at 240.
228. See Maryland v. Craig, 497 U.S. 836, 854-55 (1990).
229. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) ("Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there are often no witnesses except the victim."). Additionally, current Supreme Court precedent makes it difficult for the government to admit as trial evidence the child's out-of-court statements regarding the abuse. See Crawford v. Washington, 541 U.S. 36, 59 (2004) (explaining that statements of witness absent from trial may only be admitted "where the declarant is unavailable, and only where the defendant has had prior opportunities to cross-examine"). But see Robert P. Mosteller, Crawford v. Washington: Encouraging and Ensuring the Confrontation of Witnesses, 39 U. RICH. L. REV. 511, 591-92 (2005) (discussing a hearsay exception that "any and all hearsay describing 'an act of sexual conduct with or on the child' is admissible if the child 'testifies at the proceeding and is subject to cross-examination'").
230. See Craig, 497 U.S. at 836 (holding use of one-way closed circuit television that prevents a child from testifying face-to-face with the defendant does not violate Confrontation Clause).
231. On remand from the Supreme Court, the government in Maryland v. Craig dismissed the case reportedly because the parents did not want their children to have to testify in a second trial. See Stephen Buckley, Prosecutors Reject New Trial in Sandra Craig Abuse Case, WASH. POST, July 3, 1991, at C1.
232. This rationale - that teenagers are able to make decisions equally as well as adults and so therefore are competent to decide to inform - wholeheartedly embraces the personhood jurisprudential approach to children. See Osther, supra note 8, at 118-20. In the juvenile delinquency context, personhood and autonomy theories are used to support the conclusion that children are competent to waive their Miranda rights. See Fare v. Michael C, 442 U.S. 707, 724, 726 (1979) (holding that there is no special protection for Miranda waivers by children because they are potentially competent);
233. see also Bellotti v. Baird, 443 U.S. 622,650 (1979) (applying the mature minor doctrine to the abortion context). Additionally, the recent trend toward waiver of juvenile court jurisdiction in favor of adult criminal court jurisdiction is rationalized by the claim that children are competent decisionmakers who have chosen to engage in criminal activities warranting their treatment like adults. Cf. Roper v. Simmons, 543 U.S. 551, 618-19 (2005) (J. Scalia, dissenting) (quoting Stanford v. Kentucky, 492 U.S. 361, 374 (1989)) ("[I]t is absurd to think that one must be mature enough to drive carefully, drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards.").
234. See Elizabeth S. Scott & Thomas Grisso, The Evolution of Adolescence, A Developmental Perspective on Juvenile Justice Reform, 88 J. CRIM. L. & CRIMINOLOGY 137, 158-59 (1997) (discussing claim that, by about fourteen years of age, juveniles have similar cognitive decision-making capacity as adults).
235. Dodge, supra note 45, at 241;
236. see also Fare, 442 U.S. at 726 (approving Miranda waiver by a juvenile who was sixteen-and-a-half-years-old and had "considerable experience with the police").
237. Bradley, supra note 33.
238. Id. (quoting an officer: "My responsibility with Miss Paz was to provide her with a safe place to live and food and sustenance .... The burden of personal safety falls upon the witness,");
239. Dodge, supra note 45, at 242 (quoting an officer: "We always run the risk that people will discover the source because kids are stupid. If the perpetrator does find out, it is most often the kid's fault for bragging to all of his friends about his undercover adventures with the police.");
240. Pfeifer et al., supra note 32 (quoting an officer commenting on the death of a juvenile informant: "It's a risk they take .... They know it in the back of their minds. And we take every precaution we can with our informants. We don't throw them to the wolves with their eyes closed. I feel bad about it. But I don't fee [sic] responsible for it.").
241. Roper, 543 U.S. at 569-75 (holding that juveniles are ineligible for the death penalty).
242. Id. at 568-74.
243. See GRISSO, supra note 42, at 90-93.
244. Id. at 128-30. The exception is for those children who have a lengthy history of prior serious offenses and commensurate exposure to the court system. Id. at 128. These juveniles had the understanding typical of adults. Id.
245. "Current evidence suggests that compared with adults, youths under age fifteen are at greater risk of having a poor knowledge of matters related to their participation in trials. For adolescents fifteen and older, on average their understanding may be more like that of adults." Thomas Grisso, Youths' Capacities, in YOUTH ON TRIAL 139, 152 (Thomas Grisso ed., 2000).
246. GRISSO, supra note 42, at 91.
247. See also Simons, supra note 8, at 33-41 (advancing a similar argument in relation to adult informants).
248. See Dodge, supra note 45, at 241(quoting officers' descriptions of "positive aspects" of informing).
249. See Markon & Glod, supra note 5 (noting a juvenile informant's experience losing her gang friends after informing). When law enforcement asked Brenda Paz why she was cooperating against her gang family, she reportedly responded that it was "a way out. It's a way to start turning the comer.... Either I help you put these people away and I don't have anyone to hang out with and I'm forced to find new friends. Or they kill me." Id.
250. See Sinclair & Herbert, supra note 8, at 35-39;
251. Ransom, supra note 8, at 109-11;
252. Santiago, supra note 8, at 784-92.
253. In addition to a child-centered perspective, this Article's discussion of children's concerns is suggestive of a therapeutic jurisprudence lens. See generally David B. Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. COOLEY L. REV. 125 (2000). The severity of the harms may vary with the age of the child, the nature of the informer activities, and the nature of the crime being investigated. Without delving into the particular variables, this section describes those harms.
254. See Barbara Bennett Woodhouse, Hatching the Egg: A Child-Centered Perspective on Parents 'Rights, 14 CARDOZO L. REV. 1747, 1838 (1993) (proposing that children's needs and experiences should be the lens through which parental rights and responsibilities should be considered). Woodhouse notes the following: [We] must apply adult intelligence to examine children's status in law and move children from the margin to the center of formal legal analysis. Adults must begin to ask "the child question"- how have children's experiences and values been left out of the law? How does the mismatch between children's experiences and law's assumptions and imposed structures serve the interests of those who hold power over children? In an ideal world, what would the life situation of children look like and how could law play a role in bringing this ideal' world about?
255. Markon & Glod, supra note 5. See footnote 37 for speculation as to why she may not have been able to permanently separate.
256. See PETER FINN & KERRY MURPHY HEALEY, U.S. DEP'T OF JUSTICE, PREVENTING GANG- AND DRUG-RELATED WITNESS INTIMIDATION 9 (1996) (explaining why juveniles are vulnerable to witness intimidation, including inability to relocate and susceptibility to family and peer pressure);
257. cf. WHITMAN & DAVIS, supra note 6, at 23-25, 37 (reporting that witness intimidation often occurs in public places or schools). Indeed, children merely suspected of being informants are in physical danger. Criminals in fourteen-year-old Jahkema Princess Hansen's neighborhood in the District of Columbia killed her because they believed that she had incriminating information to tell the police about them. See Tucker, supra note 7.
258. Markon & Glod, supra note 5.
259. MacDonald v. City of Brea Police Dep't, No. G028372, 2002 WL1650018, *3-4 (Cal. Ct. App. July 23, 2002).
260. See Dodge, supra note 45, at 236 (discussing juvenile informants as "more gullible and higher risk takers" than their adult counterparts);
261. see also Roper v. Simmons, 543 U.S. 551, 569 (2005) ("It has been noted that 'adolescents are overrepresented statistically in virtually in every category of reckless behavior.'" (quoting J. Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 DEVELOPMENTAL REV. 339 (1992))).
262. WHITMAN & DAVIS, supra note 6, at 24.
263. See FINN & HEALEY, supra note 165, at 9 (explaining why juveniles are vulnerable to witness intimidation, including inability to relocate and susceptibility to family and peer pressure).
264. See WHITMAN & DAVIS, supra note 6, at 24;
265. Judi Villa, Who's the school snitch? Alertrecall.com, THE ARE. REPUBLIC, Oct. 4, 2005, http://www.azcentral.com/ arizonarepublic/news/articles/1004alert04.html (explaining that, according to a high school senior, "being labeled a snitch is one of the worst things that can happen. 'You get excluded and people want to fight you .... You become a snitch and nobody likes you anymore. That's the Number 1 rule in high school. You don't do it.'").
266. See N.J. JUVENILE GUIDELINES, supra note 83, at A10-4 ("[Enforcement officers should avoid introducing the juvenile to offenders or conduct which might immerse the juvenile more deeply in a criminal or delinquent culture.").
267. Cf. Natapoff, Snitching, supra note 8, at 687-88 (describing how informants continue to commit criminal activities while out in the community).
268. See Dodge, supra note 45, at 234 (describing power differential between law enforcement officers and informants);
269. cf. In re Gault, 387 U.S. 1, 51-52 (1967). The court in Gault commented: [I]t seems probable that where children are induced to confess by "paternal" urgings on the part of officials and the confession is then followed by disciplinary action, the child's reaction is likely to be hostile and adverse - the child may well feel that he has been led or tricked into confession and that despite his confession, he is being punished. Id.
270. In other circumstances, bargains resulting from such power differentials would be void. See RESTATEMENT (SECOND) OF CONTRACTS § 177 (1981).
271. See Blair, supra note 9 ("What it teaches - to become a betrayer, to become a seducer, to become a traitor to the trust of other people - is certainly a bad thing to teach to young people.").
272. See Patrick J. Carr et al., We Never Call the Cops and Here is Why: A Qualitative Examination of Legal Cynicism in Three Philadelphia Neighborhoods, 45 CRIMINOLOGY 445, 457-58 (2007);
273. Terrance J. Taylor et al., Coppin'an attitude: Attitudinal differences among juveniles toward police, 29 J. CRIM. JUST. 295, 302 (2001).
274. It is well-documented that adult informants will fabricate information. For example, snitch cases accounted for 45.9% of the 111 death row exonerations since capital punishment was resumed in the 1970s. Rob WARDEN, NORTHWESTERN UNTV. SCH. OF LAW, CTR. ON WRONGFUL CONVICTIONS, THE SNITCH SYSTEM: HOW SNITCH TESTIMONY SENT RANDY STEIDL AND OTHER INNOCENT AMERICANS TO DEATH ROW 3 (2004), http://www.law. northwestern.edu/wrongfulconvictions/issues/causesandremedies/snitches/.
275. This Article does not address the reliability of juvenile informants and their impact on the criminal justice process. For such research, see generally Tamar Birckhead, The Age of the Child: Interrogating after Roper v. Simmons, 65 Wash. & LEE L. REV. 385, 413-14 (2008) (discussing studies of the suggestibility of child witnesses).
276. See Bellotti v. Baird, 443 U.S. 622, 635 (1979). The Bellotti Court discussed limits placed on children, stating: [T]he States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences. These rulings have been grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them. Id.
277. See Wisconsin v. Yoder, 406 U.S. 205, 233 (1972) ("The duty to prepare the child for 'additional obligations,' referred to by the Court, must be read to include the inculcation of moral standards, religious beliefs, and elements of good citizenship.").
278. See, e.g., Pfeifer et al., supra note 32 (quoting father of Gregory "Sky" Erickson, a juvenile informant who was murdered, as stating: "I feel responsible because I talked him into this. There's just a lot of people that miss the hell out of him.").
279. The following discussion is based on research regarding parent-child interactions during police questioning of juveniles. For an in-depth discussion of the potential conflicts between a parent and child in the interrogation context, see 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).
280. See also GRISSO, supra note 42, at 180-86 (detailing empirical studies regarding advice parents would give their children respecting their right to remain silent during police questioning). To date, no such research exists with respect to juvenile informants and their parents.
281. See GRISSO, supra note 42, at 181-82.
282. See supra Part I.D for a discussion of age restrictions and parental consent requirements adopted by some jurisdictions with respect to juvenile informants.
283. Whether parental consent should ever be sufficient is beyond the scope of this Article.
284. See Roper v. Simmons, 543 U.S. 551, 581-87 (2005) (listing examples of state statutes establishing the minimum age to vote).
285. See generally Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) (upholding statute requiring parental or judicial approval for a minor's abortion);
286. Parham v. J.R., 442 U.S. 584,603-04 (1979) (holding parents have authority to seek their child's commitment to a mental health institution).
287. See RESTATEMENT (SECOND) OF CONTRACTS § 14 (1981) ("[T]he modern rule in the absence of statute is that they are voidable by the infant.").
288. Some scholars have suggested that the metaphorical war on drugs has become an actual war. See HEATH, supra note 118, at 281-82. Carrying war rhetoric to its fullest extent, an underage informant arguably may be metaphorically characterized as a "child soldier" for the American government.
289. 10 U.S.C.§ 505(a) (2006).
290. Id.;
291. see Major John T. Rawcliffe, Child Soldiers: Legal Obligations and U.S. Implementation, 2007 ARMY LAW. 1, 3-4 (2007). Approximately 4% of new enlistees are seventeen years of age at the time they arrive at basic training. Id. at 3.
292. 10 U.S.C.§ 505(a).
293. Many nations in Asia, Africa, Europe, the Middle East, and Latin America use child soldiers in wars. See U.S. STATE DEP'T, THE FACTS ABOUT CHILD SOLDIERS (2005), http://www.state.gov/g/tip/rls/fs/2005/50941.htm[hereinafter U.S. STATE DEP'T]. For more extensive information on child soldiers, visit Coalition to Stop the Use of Child Soldiers, www.child-soldiers.org (last visited Apr. 6, 2009), or Human Rights Watch, www.humanrights-watch.org (last visited Apr. 6, 2009).
294. Additional Protocol I to the Geneva Conventions art. 77, (Jun. 8, 1977) (Parties must "take all feasible measures in order that children who have not attained the age of fifteen years do not take direct part in hostilities" and may recruit children between the ages of fifteen and seventeen years. The U.S. is not a party.);
295. see also Additional Protocol II to the Geneva Conventions art. 4 (Jun. 8, 1977);
296. Optional Protocol to the United Nations Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (May 25, 2000) (prohibiting drafting of children under age eighteen years; requiring states "take all feasible measures" to ensure those under eighteen years of age "do not take a direct part in hostilities." Children under eighteen years of age may not be voluntarily recruited unless certain procedural requirements are satisfied. U.S. satisfied procedures to recruit those who are seventeen years of age.);
297. Office of United Nations High Commissioner for Human Rights, Convention on the Rights of the Child (Nov. 20, 1989) (children under fifteen years of age may not be recruited or participate in armed conflict. The U.S. is not a party.).
298. U.S. STATE DEP'T, supra note 194.
299. A third potential justification is that the children in foreign nations who become child soldiers are not vastly unlike the children who act as informants for the American government. Both are often poor, homeless, parentless, and have limited access to information. Moreover, both child soldiers and child informants agree to serve for similar reasons: fear, economic need, or the desire to protect oneself or one's family. See Coalition to Stop the Use of Child Soldiers, Some Facts, http://www.child-soldiers.org/ childsoldiers/some-facts (last visited Apr. 6, 2009);
300. Human Rights Watch, Facts About Child Soldiers, http://hrw.org/campaigns/ crp/fact-sheet.html(last visited Apr. 6, 2009). Indeed, some have argued that juvenile gang members in America are similar to foreign child soldiers and should be treated as such. See generally Elizabeth Braunstein, Are Gang Members, Like Other Child Soldiers, Entitled to Protection from Prosecution under International Law?, 3 U.C. DAVIS J. JUV. L. & POL'Y 75 (1999). Juvenile gang members, and others involved in criminal activity, obviously may have the best likelihood of becoming informants. The similarities are unexplored in this Article.
301. See Bellotti v. Baird, 443 U.S. 622, 643-4 n.23 (1979);
302. Elizabeth S. Scott, The Legal Construction of Adolescence, HOFSTRA L. REV. 547, 561 (2000).
303. See Roper v. Simmons, 543 U.S. 551, 574 (2005) ("The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.").
304. See supra Part I.C.
305. Scott, supra note 198, at 560-61.
306. See Kristin Henning, It Takes a Lawyer to Raise a Child?: Allocating Responsibilities among Parents, Children, and Lawyers in Delinquency Cases, 6 NEV. L.J. 836, 843 (2006) ("Proponents of family-focused juvenile justice strategies believe first, that families are in the best position to rehabilitate children....").
307. Scott, supra note 198, at 547-48.
308. See Roper, 543 U.S. at 574 ("The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already retained levels of maturity some adults will never reach.").
309. See Bellotti v. Baird, 443 U.S. 622, 642 (stating that minors should have the right to make important decisions that will have "grave and indelible" consequences).
310. See Scott, supra note 198, at 559-60 (2000). Some researchers have concluded that children who have reached age fourteen or fifteen years have adult-like decision-making capacity. Accepting this premise as true suggests that setting the standard at eighteen years is too high.
311. See FED. R. EVID. 601;
312. see also CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE §6.2 (3d ed. 2003).
313. See supra Part II.C.2.C This Article does not seek to resolve whether a parent should rightly possess the absolute authority to make what may be a life-or-death choice for the child.
314. Henning, supra note 202, at 851-52.
315. See supra Part I.D for a discussion of California's statute, which adopts such an approach in addition to setting age-based restrictions.
316. A delay of several weeks or even a few days to appear before a judge and conduct a hearing may make the potential informant's information stale. The child's informant opportunity thus expires, and any expected benefits for the child and the public will not be obtained.
317. Cf. Santosky v. Kramer, 455 U.S. 745, 769-70 (1982) (holding that clear and convincing evidentiary standard applies to termination of parental rights proceedings).
318. Troxel v. Granville, 530 U.S. 57,68 (2000).
319. Vivian Hamilton, Principles of U.S. Family Law, 75 FORDHAM L. REV. 31, 43 (2006) (describing the state's role in custodial proceedings as well as other proceedings relating to children in which the parents are presumed to act in the best interests of the child).
320. See id.;
321. see also Simon, supra note 111, at 1405-06.
322. See Jennifer L. Rosato, The Ultimate Test of Autonomy: Should Minors Have a Right to Make Decisions Regarding Life-Sustaining Treatment?, 49 RUTGERS L. REV. 1, 17 (1996) ("Under the current common law and statutes on health care decisions, there is little, if any, precedent recognizing a minor's right to make life-sustaining treatment decisions.").
323. Scott, supra note 198, at 567-68.
324. Id. at 568.
325. Id. at 573-74.
326. Bellotti v. Baiid, 443 U.S. 622, 643 (1979) (considering mature minor doctrine in abortion context);
327. Scott, supra note 198, at 574.
328. Rosato, supra note 216, at 62-65.
329. Id. at 64-65;
330. see also Fare v. Michael C, 442 U.S. 707, 725 (1979). The Fare Court held that the totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.... The totality approach permits-indeed, it mandates-inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. Id.
331. See generally Bellotti v. Baird, 443 U.S. 622, 644 n.23 (1979): The nature of both the State's interest in fostering parental authority and the problem of determining "maturity" makes clear why the State generally may resort to objective, though inevitably arbitrary, criteria such as age limits, marital status.... Not only is it difficult to define, let alone determine, maturity, but also the fact that a minor may be very much an adult in some respects does not mean that his or her need and opportunity for growth under parental guidance and discipline have ended.
332. THE NAT'L COMM'N FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMED. AND BEHAVIORAL RESEARCH, NAT'L INSTS. OF HEALTH, THE BELMONT REPORT: ETHICAL PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF HUMAN SUBJECTS RESEARCH, Part C.l. (1979) [hereinafter BELMONT REPORT], available at http://ohsr.od.nih.gov/guidelines/belmont.html.
333. Id.
334. Id.
335. Id.
336. Id.
337. Id.
338. Indeed, it may be questioned whether an agreement to cooperate is ever truly voluntary. But see Fare v. Michael C., 442 U.S. 707, 727 (1979) ("The police did indeed indicate that a cooperative attitude would be to respondent's benefit, but their remarks in this regard were far from threatening or coercive.").
339. BELMONT REPORT, supra note 224, at Part C.1.;
340. cf. Fare, 442 U.S. at 727.
341. For example, if a child chose not to inform it would not be coercion for a prosecutor to charge the child with a more serious crime that the prosecutor could irrespective of cooperation.
342. See supra Part I.C.
343. See supra note 11.
344. See Carl E. Schneider, Discretion, Rules and Law: Child Custody and the UMDA's Best-Interest Standard, 89 MICH. L. REV. 2215, 2219-25 (1991), for a thorough summary of critiques of the best interests of the child standard.
345. See also Jon Elster, Solomonic Judgments: Against the Best Interests of the Child, 54 U. CHI. L. REV. I, 11-28 (1987).
346. Andrea Charlow, Awarding Custody: The Best Interests of the Child and Other Fictions, 5 YALE L. & POL'Y REV. 267, 267, 269 (1986) (characterizing the bests interests of the child standard as a "vague platitude" and "euphemism for unbridled judicial discretion");
347. LeAnn Larson LaFave, Origins and Evolution of the "Best Interests of the Child" Standard, 34 S.D. L. Rev. 459, 481 (1989) (explaining that best interests of the child standard is criticized as vague and amorphous).
348. LaFave, supra note 236, at 481.
349. Id.
350. Id. at 481-86.
351. See Charlow, supra note 236, at 268 (noting that "it is not clear whether the 'best interests of the child' means a 'happy' childhood or a childhood that leads to a well-adjusted adult regardless of the happiness experienced").
352. Id.
353. See Charlow, supra note 236, at 270 (self-serving litigation);
354. LaFave, supra note 236, at 497 (unpredictable outcomes).
355. See Scott, supra note 198, at 567-68 (discussing the mature minor doctrine in the context of beneficial medical treatment where parental consent is hard to obtain).
356. Id. at 583.
357. Bellotti v. Baird, 443 U.S. 622, 638 (1979).
358. Elizabeth S. Scott et al., Evaluating Adolescent Decision Making in Legal Contexts, 19 LAW & HUM. BEHAV. 221, 224-26 (1995).
359. See id. at 224-26.
360. This Article takes no position on whether this measure should be independently adopted by law enforcement and prosecutor agencies or established through the legislative process. Arguably, law enforcement and prosecutors have more experience and familiarity with the issue; thus, they are in a better position to adopt policies. Additionally, self-regulation may be preferred. On the other hand, police and prosecutors arguably have a stronger interest in investigation and prosecution than protecting children; thus, democratic adoption of regulations through the legislative process may better serve the public's interest.