CHAMPAIGN, Ill. — A paper from a University of Illinois expert on children and the law examines how lawyers and parents compete for decision-making authority in juvenile criminal and delinquency cases in which there is disagreement between the two parties regarding legal strategy and potential outcomes.
It’s widely assumed – and courts have consistently affirmed – that parents and guardians act in the best interests of their children and have significant latitude in making decisions on how to raise them. But in the juvenile justice context, the traditional role of parental authority has been supplanted or nearly eliminated by the child’s attorney, said Margareth Etienne, a professor of law at Illinois.
“That means that the lawyers for juveniles have to do what the children – not the parents – tell them to do,” she said. “What’s unique about that is we don’t have that expectation in any other occupation that involves children. Other professionals who work with children – teachers or doctors, for example – don’t have to deal with that. They have full, unfettered access to talk to parents about a child’s grades, behavior or medical condition.
“So there’s this exception for how adults engage with children when they are charged with criminal wrongdoing. But how do parents deal with that? How do lawyers deal with the fact that they may be ethically required to follow what their juvenile clients tell them to do, and that they’re not authorized to consult with parents? The law is clear on this issue, but this paper examines how the decision-makers actually manage those two opposing concepts.”
According to the paper, the two examples discussed – allowing parents to assist in an interrogation room and allowing parents to participate in otherwise privileged attorney-client conversations – support the claims that parental inclusion and exclusion can have serious ramifications on a child’s legal case.
“Although parents try to act in the best interest of their children, oftentimes the person best positioned to make and facilitate legal decisions in a juvenile’s best interests is not the child’s parent or guardian. Rather, it’s the child’s lawyer – especially when you consider the very high legal stakes involved when nonlawyers make ill-advised legal decisions,” said Etienne, also the Nancy Snowden Research Scholar in Law and the associate dean for graduate and international programs.
But the binary choice between parental inclusion and exclusion is perhaps too simplistic a framework from which to consider the question of the parents’ role pertaining to a child’s legal jeopardy, Etienne said.
“There’s no coherent vision for how legal counsel and parents interact in the juvenile justice system,” Etienne said. “I tried to look at how lawyers manage this problem, and having spoken to a lot of lawyers who work with juveniles, a lot of what they’ve said is that parents come in all shapes and sizes. When lawyers want parents involved, they figure out a way to get the parents involved. And when they don’t want the parents involved, then they’re happy to go with the standard rule that doesn’t require them to engage with parents about what’s going on.”
For lawyers and legal scholars, the scenario raises complex legal questions. For parents, the scenario represents a difficult parenting decision – “and yet the law doesn’t recognize it as such,” Etienne said.
The age and maturity of juveniles also must be taken into account.
“Sometimes we’re talking about an 8-year-old, and sometimes we’re talking about a 16-year-old, and developmentally that’s very different,” Etienne said. “When a 16-year-old makes a decision between going to trial and accepting a plea, the lawyer may believe it is a poor decision, given the combination of facts and law. But that’s not so different than a 19- or 20-year-old who rejects the lawyer’s advice. The 8-year-old can’t really make that judgment. They may have strong ideas about what happened, but they aren’t mature enough to weigh the potential consequences of their decision.”
There is a potential remedy in treating this aspect of the law like the norms of medicine or education, “but then you run up against the constitutional rights of the child in terms of having a lawyer, having a trial,” Etienne said.
“The paper doesn’t solve that problem, but it does point out that there’s this puzzle that hasn’t been adequately addressed,” she said. “We want to make sure that when kids are charged with wrongdoing – whether it’s a serious offense or a fairly minor infraction – that they are accorded the same rights that adults get. It used to be that that wasn’t always the case. And so that is a welcome change. But that change in the recognition of their rights may not require that they be treated like adults when it comes to how they’re represented and the decision-making process. They’re really still children developmentally.”
The paper was published in the Connecticut Law Review.