Copyright (c) 2009 All rights reserved. http://works.bepress.com/tamar_birckhead Recent documents in Tamar R Birckhead en-us Thu, 27 Aug 2009 13:33:58 PDT 3600 http://works.bepress.com/tamar_birckhead/7 http://works.bepress.com/tamar_birckhead/7 Thu, 27 Aug 2009 13:25:11 PDT Courts and legislatures have long been reluctant to make use of the data, findings, and recommendations generated by other disciplines when determining questions of legal procedure affecting juveniles, particularly when the research has been produced by social scientists. However, given the United States Supreme Court's recent invocation of developmental psychology in Roper v. Simmons, which invalidated the juvenile death penalty, there is reason to believe that such resistance is waning. In 2005 the Simmons Court found, inter alia, that based on research on adolescent development, juveniles are not as culpable as adults and, therefore, cannot be classified among the "worst offenders," deserving of the ultimate penalty. In the 2009-10 term, the Court will take up the arguably related question of the constitutionality of life imprisonment without the possibility for parole for juvenile offenders, making it likely that social psychology will play a role yet again in a Supreme Court decision. This Article critically examines the ways in which courts have determined whether juveniles should be granted certain procedural rights, and it argues that rather than subscribe to the wooden concept of quid pro quo or utilize a completely subjective balancing approach, courts should allow social science research related to adolescents and conceptions of procedural justice to inform the decision. It analyzes United States Supreme Court case law that has addressed this issue and discusses a recent Kansas Supreme Court case that rejects precedent but fails to shift the juvenile justice paradigm. It then examines empirical studies in the area of procedural justice theory, exploring how children and adolescents develop ties to the law and legal actors and demonstrating a causal relationship between juveniles' perceptions of fairness and their likelihood of reoffending. It argues that social science research provides a useful lens through which to analyze whether specific procedural rights should be granted to juveniles. This Article begins the task of applying procedural justice theory in the context of delinquency court, examining for the first time how the theory could frame the debate over whether juveniles have a constitutional right to a jury trial as well as other procedural protections. It concludes by acknowledging the limits of procedural justice theory as applied to juveniles, and it raises questions and offers caveats for moving ahead. Tamar R. Birckhead Criminal Law and Procedure Juveniles Social science research http://works.bepress.com/tamar_birckhead/6 http://works.bepress.com/tamar_birckhead/6 Tue, 18 Nov 2008 14:14:58 PST Tamar R. Birckhead Criminal defense http://works.bepress.com/tamar_birckhead/5 http://works.bepress.com/tamar_birckhead/5 Mon, 04 Aug 2008 11:37:40 PDT The poet Anne Sexton committed suicide in October, 1974, at the age of forty-five. Three months earlier, she had celebrated the 21st birthday of her elder daughter, Linda Gray Sexton, and on that occasion appointed her as Sexton's literary executor. Anne Sexton provided detailed instructions in her will about the disposition of her papers. She made no mention, however, of the four audio tapes of her psychotherapy sessions that were later found. She also did not mention the over 300 therapy tapes that were still in the possession of her principal psychiatrist, Dr. Martin Orne. After Anne Sexton's death, Linda Gray Sexton created an inventory of her mother's papers and transferred their ownership to an archive at the University of Texas. She placed the four tapes and the notebooks in which the poet wrote down her thoughts and reflections of the therapy sessions in a restricted part of the archive. When Linda Gray Sexton asked Diane Wood Middlebrook in 1980 to become her mother's biographer, she agreed to give Middlebrook full access to her mother's estate, including the four tapes and the therapy notebooks. She also authorized Middlebrook to consult with Dr. Orne. In 1986, after Dr. Orne told Linda Gray Sexton that he still possessed the remaining therapy tapes, he made them available to Middlebrook. While Dr. Orne did not explicitly request Linda Gray Sexton's permission to disclose the tapes to Middlebrook, he knew that Sexton had veto power over anything in the biography that she found objectionable to the family. He also had received legal advice to the effect that in most jurisdictions a literary executor could get a court order requiring the release of medical records. In addition, Dr. Orne knew that Middlebrook had already obtained the most sensitive material involving Sexton's life and psychiatric treatment from the therapy notebooks and other biographical sources. Before releasing the tapes, Dr. Orne discussed at length with Middlebrook the issues raised in the manuscript of the biography, and was convinced that nothing "new" in terms of salient biographical information would be gleaned from the tapes. As a biographer, Middlebrook felt that the process of listening to the tapes would provide her with insight into Sexton that she could not gain through any other medium. The psychiatric and the literary communities' response to the publication of Middlebrook's biography in July, 1991, was immediate, impassioned, and well-publicized. Some claimed that by releasing the tapes to the public, Dr. Orne breached "the contract of confidentiality that always exists between psychotherapist and patient" and that his action betrayed the profession. Others, in contrast, felt that the decision to disclose is the patient's - or the executor's - and that the issue is one of "public taste and public opinion." Sexton's close friends and colleagues defended the act of disclosure, while her extended family condemned it. This Essay addresses the issues raised by the release of Anne Sexton's therapy tapes. First, it considers the interrelationships among Sexton's poetry, her psychotherapy, and her identity as a woman. Second, this Essay places the tapes within the legal doctrine of surrogate decision-making. Related to this inquiry is a discussion of doctor-patient confidentiality and the psychobiography of artists. Throughout, the Essay explores difficult questions about the nature of privacy and autonomy and the impact of gender upon these concepts. In addition, a contextualized, fact-specific analysis is emphasized, one that draws upon - rather than minimizes - the paradox, tensions, and ambiguities expressed by the debate itself. Tamar R. Birckhead Family law, doctor-patient confidentiality, privacy, law and literature http://works.bepress.com/tamar_birckhead/4 http://works.bepress.com/tamar_birckhead/4 Mon, 04 Aug 2008 11:25:33 PDT At the heart of the attorney-client relationship lies the ability to communicate freely and without fear that someone is listening. Since 9/11, the government has passed regulations, such as the Special Administrative Measures ("SAMs"), that by virtue of their broad scope and lack of procedural safeguards have endangered this privilege, particularly for incarcerated criminal defendants. The recent conviction of attorney Lynne Stewart for providing material support to a foreign terrorist organization has brought this issue to the forefront, as the prosecution relied upon government-monitored conversations between Stewart and her client, convicted terrorist Sheik Abdel Rahman, to prove its case against her. This Article argues that post-9/11 administrative mechanisms such as the SAMs represent a classic case of governmental overreaching, one that is in line with a long history of compromising civil liberties and limiting access to the courts during periods of war and national anxiety. It analyzes the effects of such mechanisms upon criminal defen-dants and those who represent them, and uses Lynne Stewart's conviction as a lens through which to examine the his-tory that brought us to this point as well as serving as a concrete example of what can, and does, happen when rules regulating the bounds of proper legal advocacy are violated. It concludes by demonstrating that although effective de-fense strategies may temper the impact of certain aspects of the SAMs, the regulations' very existence has the potential to "chill" the attorney-client relationship and thereby threaten the Sixth Amendment -- a reality the courts have yet to acknowledge. Tamar R. Birckhead Criminal Law and Procedure Criminal defense http://works.bepress.com/tamar_birckhead/3 http://works.bepress.com/tamar_birckhead/3 Mon, 04 Aug 2008 11:17:46 PDT With its recent decision in Roper v. Simmons, invalidating the imposition of the death penalty on offenders who were younger than eighteen when their crimes were committed, the U.S. Supreme Court has heralded a major shift in the perspective of the legal system--and the culture at large--towards adolescents who commit crimes. Invoking social science research as well as a "common sense" understanding of the differences between teenagers and adults, the Court found that as a categorical matter, juveniles are not as culpable as adults and thus, cannot be classified among the "worst offenders," deserving of the most severe punishment. Yet, in writing for the majority, Justice Kennedy did not base the Court's decision solely on the developmental differences between juveniles and adults or on the arguably stereotyped and romantic notion of youth as immature, unpredictable works in progress. His emphasis was also on the grave difficulty--the impossibility, even--of maintaining confidence in a system that relies on human beings, with all their frailties and prejudices, to determine whether the ultimate punishment should be imposed upon society's most violent sixteen- and seventeen-year-olds. Simmons explicitly recognizes and draws a bright line to counteract the all too human tendency to objectify violent juvenile offenders, to consider their youth as an aggravating factor in the calculus, and to perceive and judge them through the lens of stereotype and bias.This Article argues that implicit bias--seeing the type or category of the person instead of the three-dimensional reality--relates not only to how capital jurors perceive juvenile offenders but also to how law enforcement views the juvenile suspect. It explains how Simmons can inform a new approach by both law enforcement and the courts to the questioning of juvenile suspects, one that is consistent with what recent studies have revealed about the ways in which adolescents experience interrogation and is also consistent with the law's approach to the questioning of minors who are witnesses or alleged victims of crime. It argues that the principal bases of Simmons be applied to the area of juvenile interrogation, and it proposes changing the culture behind the questioning of adolescents with reforms and strategies for legislators and judges as well as for police officers and community groups. Tamar R. Birckhead Criminal Law and Procedure Juveniles http://works.bepress.com/tamar_birckhead/2 http://works.bepress.com/tamar_birckhead/2 Mon, 04 Aug 2008 11:09:04 PDT North Carolina is the only state in the United States that treats all sixteen- and seventeen-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Thirty-seven states cap juvenile court jurisdiction at age eighteen, while ten do so at seventeen. In addition, as reflected by international treaties and instruments, many nations of the world consider eighteen to be the most appropriate age for delineating between juvenile and adult court jurisdiction. Not surprisingly, the consequences of North Carolina's scheme for prosecuting minors can be particularly severe. The approximately 26,000 sixteen- and seventeen-year-olds who are convicted each year in North Carolina's criminal court system encounter significant barriers when attempting to secure employment or access higher education. According to empirical research, a less punitive approach to youth crime lowers recidivism rates and better protects public safety. Further, providing intensive probationary supervision and rehabilitation to young offenders, rather than incarcerating them with adults, is consistent with recent findings in the areas of brain development and adolescent psychology. Nonetheless, resistance to raising the age of juvenile court jurisdiction in North Carolina has been steadfast, with vocal opposition from law enforcement and prosecutors. This Article examines the repeated attempts by advocates and lawmakers to raise the age of juvenile court jurisdiction in North Carolina. Grounded in primary source materials and legislative records, the Article demonstrates that there has been a recurring pattern over the past century: despite the backing of scholars, child welfare experts, and prominent legislators, proposals to extend jurisdiction from age sixteen to ages seventeen or eighteen have been consistently defeated. Although the precise reasons for North Carolina's refusal to join the majority are difficult, if not impossible, to identify, this Article suggests several likely causes: the self-perpetuating claim by opponents of raising the age that an already-underfunded system should not be expanded; the enduring power of the specter of youth violence; and the continued reluctance of the bench and bar to view juvenile court as a critical forum requiring specialization and commitment from its participants, rather than a mere training ground for inexperienced judges and lawyers. Finally, the Article argues that an appreciation and understanding of the historical context should cause lawmakers to revisit the issue with a greater sense of urgency, providing them with the momentum needed to break with the status quo and to raise the age of juvenile court jurisdiction in North Carolina. Tamar R. Birckhead Criminal Law and Procedure Juveniles Legal History