Wednesday, June 30, 2010

The Families Matter Symposium: Working Toward a More Therapeutic Family Justice System

The invitation-only “Families Matter” Symposium was held last Thursday and Friday, June 24 and 25, at the University of Baltimore.  Co-sponsored by CFCC and the American Bar Association Section of Family Law, the symposium promises to be a powerful catalyst for change.  It was exhiliarating to participate in the exchange of groundbreaking ideas that emerge when you put together some of the leading professionals from a range disciplines to discuss how to improve the experience of children and families in the family justice system.  More exciting, however, is the fact that this group of high-powered experts is committed to move from theory to action by implementing many of their recommendations for changing the family law system.

Maryland’s Chief Judge Robert Bell’s inspiring keynote reminded participants to keep those families who are less fortunate in mind while developing a roadmap for the future, and Georgia’s retired Chief Justice Leah Ward Sears, in her heartfelt concluding address, urged us to focus on the preservation of stable families when possible, even while considering the divorce process.

A small group led by CFCC Senior Fellow Gloria Danziger
discusses the availability and use of services for family
court litigants. (Photo by Chris Hart)
In between these powerful speeches, participants worked in small, interdisciplinary groups, identifying some of the most urgent problems facing the family justice system, analyzing solutions to those problems, and creating action steps for implementation.  In each small group there were some of the country’s top family lawyers, judges, mental health professionals, accountants, academics, and  domestic violence experts, each offering his/her perspective on how the current family justice system hurts children and families and what each discipline can offer to alleviate the harm.   After each small-group session, participants gathered in a plenary to  report on progress and to bounce ideas off of the larger collection of over 60 participants. 

At the end of the two days, not only did we have a rich, multidisciplinary understanding of the effects of the current system on children and families, but we also had practical action plans covering the gamut of relevant issues, from family resources to an overtaxed judicial system and many more. 

We at CFCC look forward to working with the ABA, all of the symposium’s sponsors and participants, and the wider community to implement these action plans.  The symposium has set in motion a movement toward real change, based on a holistic and therapeutic approach to family law.  Although the Families Matter Symposium accomplished so much in such a short period of time, the real work lies ahead of us.  The Families Matter initiative – a multiyear project – is just beginning.   I encourage you to become involved as we move forward.  Check back often and please check the links on CFCC’s website for recordings of both keynotes and pictures from the event.  CFCC and the ABA Section of Family Law hope to publish the proceedings shortly.   We also encourage you to join in this critical discussion on this blog and in your communities.

Wednesday, June 9, 2010

Youth are Different

One of the Center for Families, Children and the Courts’ (CFCC) fundamental premises is that the law must consider the realities of human development when acting upon people’s lives. Children are especially vulnerable to harm, and they also differ from adults in their capacities, understanding, and judgment. Once again, the Supreme Court has recognized this fact.

We at CFCC applaud their recent decision in Graham v. Florida, No. 08-7412, 560 U.S. (2010). Graham categorically prohibits a life without parole sentence for juveniles in non-homicide offenses. Writing for the majority, Justice Anthony Kennedy (joined in the opinion by Justices Stevens, Breyer, Ginsburg, and Sotomayor, and in the decision by Chief Justice Roberts) has relied heavily on Roper v. Simmons, 543 U.S. 551 (2005), the case prohibiting the death penalty for crimes committed while a juvenile. Justice Kennedy wrote:

Roper established that because juveniles have lessened culpability they are less deserving of the most severe punishments. 543 U.S. at 569. As compared to adults, juveniles have “a lack of maturity and an underdeveloped sense of responsibility; they “are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure;” and their characters are “not as well formed.” Id., at 569-70. These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” Id., at 573. Accordingly, “juvenile offenders cannot with reliability be classified among the worst of offenders.” Id., at 569. A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson, supra, at 835. (plurality opinion). (Slip opinion, p. 16.)

Justice Kennedy goes on to explain that theories of punishment such as deterrence and incapacitation operate differently when applied to young people, and rehabilitation is an especially important goal. “A life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity.” (Id., p. 22). Graham does not force states to parole youth, but it does require that they give young people a “meaningful opportunity” for release, “based on demonstrated maturity and rehabilitation.” (Id., at 24).

Justice Roberts agreed with the Court’s decision because of the particular facts, but he was not willing to establish a categorical rule.

CFCC commends the Court’s recognition that children deserve special consideration and its willingness to preserve hope for youth who might previously have faced a sentence without end. Not decided in Graham was the validity of the sentence for young people found guilty of homicide.