Disad Juvenile Justice Backlash

Link Legal appeals for adolescent autonomy in health are

at odds with juvenile criminal justice desire for lenient
penalties Mutcherson, 2006

[Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

In the recent past, several young people convicted of capital crimes

received life-term sentences in adult prisons or even the death penalty punishments that seem incompatible with the young age of the defendants.
When a fifteen-year-old commits a serious crime for which adult punishment
is possible, many juvenile justice advocates decry the use of the adult penal
system to contend with "children" too immature to consider the
ramifications of their actions before committing their crimes. These
advocates raise concerns about adolescent impulsiveness, the pull of peer
pressure and, in more recent times, point to research on the still growing
adolescent brain to justify their view that the law should not treat juveniles
as adults when meting out justice. Those who argue against such harsh
penalties for young people do so, at least in part, based on a belief in
adolescent decisional incapacity. In other words, young people lack the
decision-making ability necessary to justify imposing adult sentences upon
them even for the most heinous crimes.
By contrast, when faced with a pregnant fifteen-year-old seeking to access
abortion services or prenatal care, some advocates for young people in the
[*928] healthcare decision-making arena argue that adolescents do posses
the ma-turity and competence to reason through options and make critical
healthcare decisions without the knowledge or con-sent of parents. On this
end of the spectrum, advocates seek enhanced decision-making rights for
adolescents by claim-ing that most adolescents are in fact developmentally
capable of meaningfully participating in and even independently directing
their own healthcare. Advocates have made this argument particularly
strenuously in the context of abortion rights for young women though it also
appears in other healthcare contexts.
Given these potentially clashing views of adolescent decision-making
capacity, it is possible that advocates for ju-veniles in these two areas of
law undermine each other's causes and are at serious odds with each
other. This seeming divide between people who claim allegiance to and

concern for young people and who may, in fact, believe deeply in the other's
cause marks two groups of advocates for young people who are on divergent
paths. Juvenile justice advo-cates march toward a future in which the
criminal justice system, with few exceptions, consistently presumes adolescent developmental deficiencies significant enough to protect young
defendants from much criminal responsibility and certainly sufficient to
protect young people from prosecution and punishment as adults. At the
same time, many healthcare advocates march toward an opposite future in
which those in the healthcare system presume adolescent de-velopmental
capacity also with few exceptions.
In the quest for a unified and all-encompassing legal regime governing
adolescents across areas of law, one might simply choose one understanding
of general adolescent competence or incompetence and apply it across the
board. Arguably, a unified vision is a worthwhile goal if it replaces the
present patchwork of common and statutory law deal-ing directly or
indirectly with questions of competence and young people. However,
embracing one view of the devel-opmental capacity of adolescents seems to
preclude embracing the other. In choosing a single position, one fears that
adolescents will be left unduly vulnerable either in the criminal courts or in
the offices of their healthcare providers.

Disad Juvenile Justice Backlash

The trade-off is zero sum and the disad outweighs because
criminal innocence is more significant than medical
freedom
Mutcherson, 2006 [Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

While not always discussed in such terms, courts must also evaluate juvenile
defendants on their competence to commit a crime, meaning their ability to
intend to engage in the criminal activity. This inquiry again touches upon the
criminal defendant's developmental capacity to understand the
consequences of her actions and her choice to act in the face of those
consequences.
In the end calculus, while there may be some differences in nuance, the
question of competence or capacity, wheth-er in reference to healthcare,
criminal culpability, or participating in a lawyer/client relationship, focuses
on a few nar-row and overlapping categories. At its core, decision-making
capacity is a central component of an individual's overall competence. The
fundamental inquiry, whether termed an evaluation of competence or
capacity, is whether the person being judged possesses the requisite skill to
understand her circumstances when explained to her and make reasoned,
even if not reasonable, choices about how to proceed. If so, she possesses
the required competence and the law should treat her accordingly. If,
however, she lacks these skills of understanding and reason, she is
incompetent and the law, in whatever context, should treat her in
accordance with that finding.
In criminal law, establishing a defendant's inadequate decisionmaking skills could lead to a determination that the defendant is not
criminally culpable or is not morally culpable to an extent that justifies
imposition of the death penalty or a life sentence. In the context of a lawyer
client relationship, a lack of competence might require a lawyer to seek a
guardian for a client, while still endeavoring to include the client in
whatever level of decision-making is appropriate given her skill level. Finally,
in the context healthcare, a lack of competence or capacity might translate
into a determi-nation that a young person is incapable of making
independent decisions thereby requiring the intervention of an adult
decision maker.
Given that judgments about competence or the lack thereof carry with them
serious consequences in both criminal and healthcare care law, there is a

tendency to seek easy ways to measure the presence or absence of such

competence. Presumptions of competence may help to streamline
some court proceedings, but these presumptions may lead to unintended or undesirable results.
A presumption of incompetence for purposes of healthcare decision-making
that offered no exceptions to the usual requirement of parental involvement
in all healthcare decisions made by young people may discourage some
minors from accessing needed care for fear of having to confront their
parents. This potential consequence is part of the ra-tionale behind statutes
that allow young people to access treatment for sexually transmitted
infections, prenatal care, [*934] abortion, or drug treatment without
parental consent or notification. n25 A presumption of adolescent incompetence that made these healthcare emancipation statutes suspect could have
a detrimental impact on young people.
On the positive side, in the criminal context, a presumption of
adolescent incompetence would shield minors from criminal
culpability, extended criminal sentences, incarceration in adult
facilities, or the death penalty and could create greater opportunities
for rehabilitation of youthful offenders.

And, this outweighs - mass incarceration affects all minority groups

from economics to race and gender its the worst moral evil
Dixon, Managing Editor, 2013 [By Bruce A. Dixon, Global Research, April 01,
2013, Black Agenda Report
Region: USA Theme: Police State & Civil Rights, 112, 16 3 ,629
http://www.globalresearch.ca/black-mass-incarceration-the-prison-industrial-complex-and-theprison-state/5329328]
Prisons are certainly not new, and the employment of prisons to enforce a racially unjust
social order isnt new either. The post-civil war Black Codes prescribed heavy penalities for
all sorts of infractions by African Americans. But the scale of the modern US

prison state simply has no precedent. Nobody has ever locked up this
many people for as little, for as long. Whatever you want to call the present
situation with prisons, prisoners and US society, you have to call it something brand new.
Is it Jim Crow?
Not exactly.
Michelle Alexanders 2010 book, The New Jim Crow, was a breakthrough in many ways. It
came at a time when just about every African American family knew there was a crisis, when

the shadow of prison literally squatted in the homes of hundreds of

thousands, but when the black political class the gaggle of preachers, politicians and
business types we imagine to be our leaders lacked even the language to
discuss it, apart from tropes inherited from the jailers themselves, like
personal responsibility, and do the crime, do the time.
Describing the prison state as a New Jim Crow played to the imagined history of the current
black political class, which never stops celebrating the fifties and sixties victories over the old
Jim Crow which made its birth possible, and which incorrectly advertises itself as the author
of those victories, rather than the after-the-fact beneficiaries of them. In truth, the struggle
against Jim Crow wasnt conducted by black politicians because there werent many of them,
especially in the South. Some black business people supported that struggle but they didnt
lead it either, and most black preachers stood aside as well. The cutting edge that broke Jim
Crow and carried out the final wave of organizing in the South which resulted in the Voting
Rights Act were black youth.
New Jim Crow also absolved the black political class, at least initially, from responsibility
for the prison state. They were the civil rights leaders and such, after all, you could hardly
blame them for Jim Crow, old or new. And above all, by evoking the imagined spirit of classblind racial unity which prevailed during the struggle against the old Jim Crow, New Jim
Crow as a sort of descriptive slogan strengthened the credibility of the black political class.

Alexanders persistent calls for a mass movement to be raised against the

New Jim Crow are on target. But where do we imagine that
movement will come from? College students? Not likely, as todays
students are burdened by debt as no others before them in history, and
college-educated blacks are by relatively exempt from the
depredations of the police and prison state. A college educated black male
today stands a third the chance his uncle in 1980 did of going to prison, while todays black
male high school dropout is several times more likely to serve prison time sometimes during
his life than his uncle the same age and status in 1980. Business people just dont lead mass
movements ever so thats not worth thinking about, and the black church, which often
makes the historically absurd claim that it was the fount and wellspring of the fifties and
sixties Freedom Movement wont do it either. Neither will our black political

class, who are deeply implicated in the day to day running of the prison
state.
Alexander herself notes that if US incarceration rates were to be rolled back to 1980 levels,
not only would more than a million prisoners walk free, but a million prison guards, sheriffs,
judges, bail bondsmen contractors, and others would suddenly be jobless. A lot of their faces
are black, which brings us to a second difference between the old and new Jim Crows. In
the old Jim Crow, apart from black business people who had captive markets white firms
didnt compete with them over, its hard to identify any stratum of black people who had a
material interest in keeping the old system. You cant say the same about this New Jim
Crow.
The closer one looks, in fact, the more New Jim Crow looks like a slogan, a metaphor, rather
than accurate analysis. To her credit, Ms. Alexanders is pretty clear on the question of class
within the black community, noting that she had to make a personal journey of her own to
begin to see lower-class black males and through them their families and communities as the
principal victims of the predatory penal state.
But not everybody who throws around New Jim Crow as a slogan has or will ever bother to
read the book. And not all who do read the book bother to read it carefully or closely. New
Jim Crow is an acceptable term for the prison state for the black political class and even for
much of white America precisely because it seems to blame racism for everything, and in

blaming racism actual human beings and governments they act through tend to be
obscured.

Its the job of intellectuals to come up with not just catchy slogans
and malleable metaphors, but actual analysis. Anyone who deals with actual
people on the ground knows that people will, after a short while, begin to treat catchy slogans
as if they ARE analysis. You plan for it, its just the way you expect a lot of people to operate.
For example, during Occupy Atlanta last year there were misguided souls in the
(non)leadership who took anti-immigrant positions because they imagined that we are the
99% meant they should adhere to whatever positions the vast majority of Americans did, and
most Americans were thought to be (if you read the mainstream media) hostile toward
immigrants.

Its more useful and concrete to note that police, prisons, courts and
criminal laws are are functions of government than it is to say they
are racist institutions being run in a racist way. Under one
formulation we are fighting the state, trying to re-make the state. If our
enemy is racism and New Jim Crow, exactly who or what are we fighting, and by what means?
Is the Prison Industrial Complex Real?
Finally, for the sake of clarity, we should look at the problematic term prison industrial
complex.
It seems to say that the growth in prisons during the last thirty years was motivated by profit.
The facts dont seem to back this up. Most prisoners are not working, not performing any
economic activity. Better than 90% of all prisoners any given day are simply languishing in
their dorms or cells, period, not doing anything. Federal prison industries in several of the
last few years, have failed even to make a profit. There are plenty of contractors, who handle
everything from feeding prisoners to medical services, and they are raking it in. But they
arent dictating the growth of prisons over the last thirty years. Politicians do that, for

reasons that have lots to do with sustaining their own careers, and
asserting the authority of the state over supposed delinquent
segments of the population, teaching them a lesson, supposedly
deterring crime, ensuring public safety and all that. In short, prisons cost
money, they dont make money and the money that is being made from prisons is far too small
to account for the six and sevenfold increase in US prisoners over the last 40 years.

its hard to
imagine anything more evil than a privatized prison. Although a number of
Those of us on the left generally and correctly regard privatization as evil, so

very profitable private prison outfits DO exist, the fact is that the percentage of prisoners
housed in privatized prisons is growing very slowly, and most of that growth is

confined to a single sector, the incarceration of immigrants.

It seems that private prison companies want to make profits. The least profitable prisoners
are the old, the sick and those requiring extra security precautions. Immigrants came here to
work. They are mostly young, mostly healthy, and not especially disposed to violence, which
makes them the most profitable prisoners. The trouble is that the Obama

administration has rounded up and is deporting record numbers of

immigrants, and with the unemployment levels remaining quite high, immigration as a
whole is declining. So the boom in immigrant prisons is not sustainable either.

Think about it. Can anyone seriously argue that the drive for profit has fueled the six and
sevenfold growth of US prisons over the last 40 years? For this to be true there would have to
be not a handful, but dozens, perhaps hundreds of prison billionaires, just as there are
hundreds of billionaires connected with military contracting. But these do not exist. There are
profiteers, but not a hundredth as many even as in the field of rapidly privatizing education.
Prisons have never been especially profitable.

aggressive policing, runaway prosecutions and racist

policing have all been about enforcing a new social order on
population segments whose labor is no longer needed as it was 50
years ago, and for whom no jobs, training, quality housing or meaningful
education will be provided. Prisons are about showing somebody whos
boss, about perceived public safety, about enforcing an unjust social
order.
Lock-em-up laws,

To fight the prison industrial complex , like generating a movement

against the new jim crow, is to fight a ghost. Neither of them are real.
Whats real is 2 million plus people in US prisons and jails. Prisons are
real, and prisons are about statecraft, not about runaway profits, not
about neo-slavery, whatever that is, and not about racism, which is
everywhere anyhow.
A movement that challenges the prison state must come in part from
the prisoners and former prisoners and their families. It will have to be a
movement that challenges the way we are governed, the way housing,
health care, jobs and resources are distributed, the way we educate our
young and care for our elders. The prison state is another aspect, along with privatizations
and austerity, of neoliberal capitalism. Thats whats real. Time to wash the new jim crow
pixie dust from our eyes.

Link Extensions
Its zero sum
Mutcherson, 2006

[Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

When speaking to each other, juvenile justice advocates and healthcare

advocates have little trouble embracing each other's positions on adolescent
competence and perceive no lapse in logic in their claims. My concern,
however, is with a wider audience of judges and policymakers who remain
unconvinced that one can make claims of both compe-tence and
incompetence in the same breath. Rather than preaching to the converted,
this article seeks to create a few more converts and begins with the
assumption that advocates for young people, in whatever field, must explain
their embrace of the fluctuating nature of competence such that the same
young person can be competent in one realm and concurrently incompetent
in another. This concept of elasticity seems quite [*929] intuitive, but is too
frequently masked in discussions that leave a reader with an impression of
competence as a rigid construct.

Uniqueness/Internal link
Uniqueness - Law doesnt give adolescent autonomy this
takes out solvency or proves a link because either plan
changes the whole system or it fails to truly provide
autonomy
Mutcherson, 2006

[Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

In an earlier writing, this author expressed opposition to the law's general

command that those under the age of eighteen not be able to make their
own decisions about healthcare, instead granting wide authority and sole
legal deci-sion-making power to parents and other adult caretakers. n33
Though there are [*937] critical exceptions to the general rule of
adolescent capacity, n34 I contend that such exceptions are too limited to
achieve the goal of protecting and pro-moting adolescent autonomy n35 and
articulated a standard of shared decision-making power between parent and
minor children age fourteen and older with an opportunity for adolescents to
opt-out of sharing decision-making in some cas-es. The exception to the
power of opt-out exists when the young person lacks decision-making
capacity or if the young person is making a decision with a substantial risk
of leading to death or permanent disability. n36 A shared decision-making
model based on a presumption of adolescent competence directly conflicts
with the basic legal regime premised upon a belief that all minors, whether
seven or seventeen, are incapable of mature decision-making.

Uniqueness Supreme Court

Supreme Court rules against adolescent autonomy
Mutcherson, 2006

[Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

B. The Supreme Court and Adolescent Patients

The Supreme Court has struggled to articulate a coherent position on

adolescents and access to healthcare that protects young people from bad
decisions while respecting their growing decision-making capacities. As is
true with the death penalty in the context of criminal law, abortion cases
force the Court to answer the question of the role of adolescents within
families and the existence, or lack thereof, of adolescent ability to make
significant decisions with far reaching consequences. n47
In Bellotti v. Baird, in which the Court adjudicated the Constitutionality of a
parental consent for abortion statute, the Justices faced a named plaintiff
representing the "class of unmarried minors in Massachusetts who have
adequate capacity to give a valid and informed consent [to abortion], and
who do not wish to involve their parents." n48 That the courts allowed this
young woman to proceed as a representative of young people with sufficient
maturity and skills to make abortion decisions indicates some appreciation
for the fact that there are minors who are capable of informed and mature
decision-making.
In the course of declaring the challenged parental consent statute
unconstitutional, the District Court in Bellotti not-ed that potentially a
sizeable majority of seventeen-year-olds and a significant portion of those
sixteen and younger are capable of giving informed consent to an abortion
procedure. n49
Whereas the lower court acknowledged the decision-making capacity of
many pregnant women under the age of eighteen, the Supreme Court based
its [*940] analysis on its earlier jurisprudence allowing states to
circumscribe the choices of young people where "serious consequences"
might result. n50 The court based these rulings on its 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. n51

In language mirroring later pronouncements in cases involving juvenile

defendants, the Court explains that their immaturity prevents minors from
making "fully informed choices that take account of both immediate and
long-range consequences." n52 As such, according to the Court, it is
appropriate and constitutional to legislate in a manner that en-courages, if
not mandates, parental involvement in the abortion decisions of unmarried
minors.

Unique link Juvenile Sentences less harshly

Courts give juvenile leniency now the link is unique

Mutcherson, 2006

[Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

Advocates and the Supreme Court believe that the bulk of adolescent
defendants possess a diminished ability to appre-ciate the consequences of
their actions and to avoid acting out in ways that are reckless and perhaps
criminal. Further, even when they do become lawbreakers, it is likely that
the non-conforming behavior of adolescents is fleeting and youthful
offenders are more amenable than their adult counterparts are to attempts
to correct their bad behavior. This reality means that young people accused
of crimes are deserving of more leniency and protection than are adults who
have committed crimes.

Link - Abortion
Abortion precedent is key
Mutcherson, 2006

[Copyright (c) 2006 Nevada Law Journal, Nevada Law Journal Spring, 2006, 6 Nev. L.J. 927, LENGTH: 22087 words, SPECIAL ISSUE ON LEGAL
REPRESENTATION OF CHILDREN: ARTICLE: Minor Discrepancies: Forging a Common
Understanding of Adolescent Competence in Healthcare Decision-Making and Criminal
Responsibility, NAME: Kimberly M. Mutcherson*, BIO: * Associate Professor, Rutgers School
of Law-Camden, p.lexis. ]

[*954] When viewing the issue of competing views of competence through

the lens of the Supreme Court, one finds a thread of continuity to an extent
that is not true of the advocates with whom this article concerns itself. From
the perspective of the Supreme Court, young people are consistently flawed
and generally immature whether they are com-mitting capital crimes or
seeking to terminate an unwanted pregnancy. The language used by the
Court in cases dealing with adolescent competence in these two arenas is
strikingly similar even if the outcomes may initially appear contra-dictory.
In its abortion jurisprudence, while extending some protection to adolescent
women seeking to end their pregnan-cies, the Supreme Court does not stake
a claim for the maturity of young women. Instead, the justices who support a
young woman's right to seek an abortion without the knowledge or consent
of her parents do so based on several ration-ales including an assertion that
abortion, like the death penalty, is different and therefore requires some
bending of the general rule on parental consent for healthcare for minors.
n134 In the words of the Court:

The abortion decision differs in important ways from other decisions that
may be made during minority. The need to preserve the constitutional right
and the unique nature of the abortion decision, especially when made by a
minor, re-quire a State to act with particular sensitivity when it legislates to
foster parental involvement in this matter. n135