Mr. Perlin’s presentation will be based on a paper he co-wrote with Alison Lynch, JD, Disability Rights New York. An abstract follows. Recent Supreme Court decisions declaring unconstitutional both capital punishment (Roper v. Simmons, 2005) and life without parole (Graham v. Florida, 2010) in cases involving juveniles might lead a casual observer to think that we are now in an era in which dignity of juveniles is privileged in the legal system and in which humiliation and shame are subordinated. This observation, sadly, would be wrong.
Inquiries into a range of issues involving juveniles – commitment to psychiatric institutions; trials in juvenile courts; aspects of criminal procedure that, in many jurisdictions, bar juveniles from raising the incompetency status or the insanity defense; waivers that allow juveniles (some younger than 14) to be tried as adults; caselaw that has developed on the question of the validity of Miranda waivers in juvenile cases; conditions in juvenile punishment facilities -- reveal that, regularly, juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest, trial, conviction and institutionalization, shame and humiliation that are often exacerbated in cases involving racial minorities and those who are economically impoverished.
First, we discuss the meanings of shame and humiliation, and contextualize them into the juvenile justice system that we discuss in this paper. Next, we look specifically at how this is reflected in case law involving psychiatric institutionalization and the criminal process (including, but not limited to, juvenile delinquency prosecutions, matters involving mental status defenses, and the correctional system. We then consider these findings through the filters of therapeutic jurisprudence and international human rights laws, urging that these approaches be relied upon so as to best remediate the current state of affairs and infuse this system with some badly-needed dignity. Although scholarship by judges concludes that “Juvenile justice professionals should treat family members with dignity and respect” (Burkemper, Balsam & Yeh, 2007), it is clear that this is, more often than not, not the case.
Remarkably, there is a paucity of recent legal scholarship available on much of what is discussed in this paper. We hope that this paper encourages others – judges, scholars, policymakers – to think carefully about the questions we seek to address, and to weigh equally carefully the ultimate impact that out current policies – drenched in shame and humiliation – have on the population in question.
Perlin, Michael L. and Lynch, Alison J., ['She's Nobody's Child/The Law Can't Touch Her at All': Seeking to Bring Dignity to Legal Proceedings Involving Juveniles](https://ssrn.com/abstract=2912499 or http://dx.doi.org/10.2139/ssrn.2912499) (February 6, 2017). NYL)S Legal Studies Research Paper No. 2912499. Full text (pdf).
Perlin, Michael L., 'Yonder Stands Your Orphan with His Gun': The International Human Rights and Therapeutic Jurisprudence Implications of Juvenile Punishment Schemes (April 12, 2013). Texas Tech Law Review, Vol. 45, 2013; NYLS Legal Studies Research Paper No. 12/13 #76.
Perlin, Michael L. and Weinstein, Naomi, 'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation (January 17, 2014). Available at SSRN: https://ssrn.com/abstract=2380701 or http://dx.doi.org/10.2139/ssrn.2380701.