In today's Irish Times, Marsha Levick and Ursula Kilkelly write on how strategic litigation combined with academic research has helped advance the rights of children.
Although few look to the US for guidance on issues of juvenile justice, a centre in Philadelphia is leading the way in challenging the treatment of children in the juvenile and (adult) criminal justice systems across the US.
Formed in 1975, the Juvenile Law Centre (JLC) is an innovative law centre that provides legal representation for vulnerable children including those involved in child welfare and juvenile criminal justice cases. Crucially, however, JLC plays a strategic role in advocating on behalf of young people and for the past 35 years has achieved major success campaigning for reform of the legal system in this area.
Juvenile Law Centre uses legal advocacy, publications and public education, special projects, policy analysis and training to ensure that the child welfare, juvenile justice and other public systems provide vulnerable children with the protection and services they need to become productive adults.
It promotes and protects the rights of children through the strategic use of litigation by both initiating and joining in lawsuits that aim to expand procedural safeguards or other rights of juveniles. Crucially, JLC engages in direct representation and joins in litigation as amicus curiae (friend of the court) in cases that JLC considers will have a major impact on the rights of young people.
In recent years, JLC has filed briefs in numerous state appellate courts, federal courts of appeals and the United States Supreme Court. JLC believes justice can be promoted by procedural safeguards, which help ensure that decisions about children are better informed, more accurate and most appropriate. JLC also promotes laws, policies and practices that are research driven and reflect the developmental differences between juveniles and adults.
The centre has pioneered the practice of working with academia to ensure that the courts are informed by the most up to date research and evidence. For example, in 2005, JLC co-authored an amicus brief on behalf of a coalition of advocacy organisations and academics that urged the United States Supreme Court to consider recent developmental research about the unique traits of adolescence in ruling on the constitutionality of the juvenile death penalty.
JLC also noted the prevalence of state laws restricting the abilities of people under 18 to participate in many civic and social activities without parental consent, as well as the Supreme Court’s historic treatment of youth as a special status under the United States constitution. JLC’s brief was one of several filed opposing the juvenile death penalty, including briefs relying on neuroscience and principles of international law to strike down the penalty, leading to the ruling that the juvenile death penalty was unconstitutional.
In early 2007, JLC attorneys began to investigate irregularities in Luzerne County, Pennsylvania, as they heard from youth who were found guilty in the county juvenile court. JLC found that hundreds of youth had been tried, convicted and, in many cases, placed in residential programmes, all without the benefit of counsel.
In April 2008, JLC filed an application with the Pennsylvania Supreme Court, asking it to vacate the convictions and expunge all of the records of the affected youth. The court denied the application on January 8th, 2009, but reconsidered – in response to JLC’s re-filed and amended pleadings of January 29th – in the wake of the disclosure that two Luzerne County judges had been involved in taking illegal kickbacks from the private detention facilities to which the children were being sent.
The role of JLC was not just to ensure that those children wrongly detained as a result of the “kids-for-cash” scandal had their rights vindicated, but also to ensure the juvenile justice system was reformed to prevent such abuses from occurring in the future. Securing the right to counsel for every juvenile is a key part of this aim and JLC has been campaigning on this issue with some success.
JLC also plays a key role progressing law reform at a national level. Having been key to the Supreme Court’s decision to find the death penalty unconstitutional in the case of juveniles, JLC, as part of a national coalition working to end juvenile life sentences without parole, next focused on challenging the sentence of life without parole, which the majority of states allow to be imposed on children under 18.
JLC was lead counsel in this case when on May 17th, 2010, the US Supreme Court ruled in Graham v Florida that sentences of life without the possibility of parole imposed on juveniles convicted of non-homicide offences violate the Eighth Amendment.
The centre continues to work through courts and legislatures to end the policy and practice of sentencing juveniles to life without the possibility of parole, and recently argued the constitutionality of this sentence before the Pennsylvania Supreme Court in a case involving a 14-year-old convicted of first-degree murder.
In many respects, JLC is a world leader in providing advocacy and representation on juvenile issues in the US. Ireland’s lawyers and juvenile justice advocates have much to learn from their approach including their unique engagement with academia, and their involvement with civil society law reform.
Combining all three elements – expert legal representation, up-to-date research evidence and targeted funding – is clearly a winning strategy for the advancement of law reform in children’s cases.
Marsha Levick is the deputy director and chief counsel for Juvenile Law Centre and visits Ireland in January to launch the Child Law Clinic at the faculty of law, University College Cork. This is an initiative of Ursula Kilkelly that provides legal research services to lawyers in children’s litigation.
Marsha will present a seminar organised by Irish Penal Reform Trust and Public Interest Law Alliance on January 10th at 5pm.