• False confessions make it harder to establish innocence for alleged juvenile offenders


    Barry Krisberg

    By Barry Krisberg

    The national media has widely reported the story of Brendan Dassey, whose murder and sexual assault convictions were reversed by a federal court in Milwaukee on Aug. 12; he had served nearly nine years in prison. He was ordered released unless prosecutors wanted to file a new charge.

    Dassey, who was 16 at the time of his arrest, was a central figure in a very popular Netflix documentary — “Making a Murderer.” The court found that the youth was mentally unfit and was coerced into confessing his involvement in the crime by false promises by investigators. The court held that his confession was involuntary under the Fifth and Fourteenth amendments. His lawyer had not challenged the propriety of the confession.

    This was not an isolated incident. Davontae Sanford, a developmentally challenged 14-year-old, was also released after more than nine years in a Michigan prison for allegedly murdering four people in a drug house. His confession to police was made after two days of intense questioning without the presence of his guardians or an attorney. A professional hit man subsequently admitted to the murders. It appeared that Sanford’s interrogators ignored or did not reveal gross inconsistencies in the original confession.

    Most Innocence Projects have focused on exonerations of adult defendants. There have been hundreds of these cases over the past decade. Many of these cases involved utilizing forensic evidence, especially DNA. Most of the exonerations are also due to inadequate legal representation, false eyewitness identifications or coerced confessions.

    There are several Innocence Projects that look for cases in which the defendant was under age 18 at the time of the arrest. It is estimated that 38% of juveniles are falsely convicted due to false confessions, compared to 11% of adults convicted due to false confessions. Some research suggests that minors are more likely to tell interrogators what they want to hear or to brag about their gang exploits. The other concern is that youth are not equipped to adequately participate in their own defense and may be victims of inadequate counsel. There is some very limited research suggesting that eyewitness identifications may be harder with younger people.

    These innocence cases often involve plea bargains or jury trials that occur in criminal courts, but they are the tip of the iceberg of excessive punishment for juveniles. Different from the issue of actual innocence are situations in which minors are prosecuted as adults either via statutory mandates, direct filing by prosecutors or transfer hearings in juvenile courts.

    There are many youth advocates pursuing the issue of handling youth as if they were adults, such as student clinics at the University of Southern California and Loyola Marymount Law School. These advocates are relying on recent Supreme Court decisions in Miller v. Alabama as well as some state laws that provide for sufficient due process for minors who receive life with possibility of parole or very long sentences known as “virtual life.” The Supreme Court very recently extended the scope of the Miller decision in Montgomery v. Alabama to all prisoners serving these harsh sentences who were arrested before age 18. Typically, remedies in Miller or Montgomery appeals seek petitions for resentencing or for reconsideration of parole decisions.

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  • We must decriminalize trauma for girls with histories of abuse or neglect

    Desi-SmithBy Neha Desai and Dr. Allison Briscoe-Smith 

    Girls’ involvement in the juvenile justice system is growing disproportionately at a time when arrest rates for boys are declining. And yet, girls’ behavior has not changed; rather, our response to their behavior has changed. This is especially true for girls in the child welfare system.

    Much has been written recently about the “pathways” that lead youth, especially girls of color, from histories of childhood abuse and/or neglect to involvement with the juvenile justice system. We are starting to better understand the ways in which childhood exposure to trauma can lead to survival strategies and behaviors that are criminalized, while child welfare system involvement can exacerbate underlying trauma and result in law enforcement contact for youth who otherwise would have had none.

    Our bodies are finely honed to respond to stress and danger in particular ways — through fight, flight or freeze. With chronic exposure to stress and danger, we develop survival mechanisms based on our evolutionary responses. These survival techniques include:

    • hypervigilance: constant scanning of the environment for threat;
    • exaggerated startle: moving to action quickly;
    • dissociation: a means of trying to cope with overwhelming stimulation; and
    • distrust of authority since the majority of trauma happens at the hands of authority figures.

    These strategies help us survive trauma, but outside the traumatic context, they can lead to conflict with others, distractibility, noncompliance and disrupted relationships. In other words, and as described below, the very behaviors we need to help us survive can become “problematic” and criminalized.

    Girls are disproportionately exposed to sexual trauma and sexual assault, usually at the hands of a caregiver or someone they know well. This type of experience can fundamentally change girls’ ideas about relationships, their bodies and the world.

    For some who have experienced this type of abuse, oppositionality, aggression, self-harm and substance abuse are actually adaptive ways to protect oneself and deal with relationships, authority and the body. However, these coping mechanisms may often get them into trouble. Research has found a strong link between stimulant use and post-traumatic stress disorder (PTSD) in women, suggesting that women are often trying to self-medicate the distressing and disorganizing symptoms of PTSD.

    Research consistently shows that exposure to one trauma increases the likelihood that a person will experience another trauma. This can lead to youth’s expression of further PTSD symptoms and traumatized behaviors. We also know that  youth with adverse childhood experiences are more likely to experiment with substance use, self-harm and risky sexual behavior, which may increase law enforcement contact.

    Youth who enter the child welfare system due to childhood abuse face additional challenges. Involvement with the child welfare system itself can exacerbate underlying trauma and result in juvenile justice involvement.

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