You Can’t Do That!

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[Note: This column has been reprinted with permission by the Juvenile Justice Information Exchange]

“They can’t do that!”

This quickly became my mantra when I started as a juvenile defender nearly a year ago.

My colleagues heard it so often they joked about recording me and just playing it back while I was observing court proceedings so that I wouldn’t have to speak. Unfamiliar with the differences between how the criminal justice system treats juvenile and adult offenders, I was clearly unprepared for some of the things I witnessed when I first arrived in juvenile court.

You see, juvenile courts are quasi-criminal, meaning many of the aspects I expected to see in a criminal court are present, but the result of juvenile delinquency proceedings is supposed to be more rehabilitative than punitive, and “in the best interest of the child.”

What I learned this to mean is that prosecutors, judges, and a state’s department of juvenile justice have much more latitude to make recommendations for a child’s “best interests.”  Because of this latitude, I have actually heard a judge say, “Don’t even think about requesting bond until you tell us where the weapon is,” at a detention hearing.

What happened to the presumption of innocence, or the right to avoid self-incrimination?  Decidedly, this judge believed it to be in the child’s best interest to explain what had happened, even if doing so would implicate the child’s own involvement.

While I was merely observing the hearing and was not this child’s defense attorney, it was all I could do not to jump out of my chair and yell “you can’t do that!” This is just one instance I have seen where a child’s “best interests” obviously diverge from his or her “legal interests,” which makes juvenile delinquency actions particularly challenging to navigate.

While juvenile courts are arguably intended to rehabilitate and treat juvenile offenders rather than punish them, all too often I see blatant disregard for Constitutional rights during juvenile proceedings under the guise of acting in the “best interest of the child.”

Why is it that courts are willing to downplay or outright bypass the rights meant to protect alleged juvenile offenders? Is it because the words “guilty” and “conviction” have been swapped for the words “delinquent” and “adjudication” so that the outcome sounds less devastating?

No child I have represented who has been sent to juvenile detention has suffered any less disruption to his life because of this word-play.

Recently, public defender offices in Georgia that represent juveniles have been asked to comment on the potential financial and operational impact of the new proposed juvenile code provision providing for the appointment of an attorney for each child prior to a detention hearing.

While I agree that a child should have access to representation when his liberty is at stake, I can’t help but wonder why juvenile advocates aren’t clamoring for more significant changes to juvenile procedure.

For instance, a juvenile detention hearing itself would be more meaningful if judges were not privy to police and other evidentiary reports prior to making detention decisions, or at the very least, if arresting officers and complaining witnesses were required to appear, as in adult preliminary hearings.

Guaranteeing representation for juveniles at detention hearings is just the tip of the iceberg for increasing protections for juveniles in Georgia. 

Georgia is a state that allows for even first-time juvenile offenders as young as 14 to be tried as adults in certain offenses, and yet I haven’t seen so much as an email from policy-makers addressing the effect of this law on a juvenile’s due process rights.

I guess even when we have a long way to go, we have to start somewhere.

Cheryl Cutting is an assistant public defender in the Juvenile Division of the Atlantic Judicial Circuit