Graham v. Florida Brief Amici Curiae in Support of Petitioners

    Nos. 08-7412 & 08-7621

In The

#uprimt£ (Lrnii iif %  Uniizh M te

T errance  J amar Graham ,
Petitioner,

v.
State  o f  F lorida ,

J oe H arris  Sullivan ,

v.
State  o f  F lorida ,

Respondent.

Petitioner,

Respondent.

On Writs Of Certiorari to the District Court Of Appeal, 
First District, State Of Florida

BRIEF FOR THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC., CHARLES 

HAMILTON HOUSTON INSTITUTE FOR RACE & 
JUSTICE, AND NATIONAL ASSOCIATION OF 

CRIMINAL DEFENSE LAWYERS AS AMICI 
CURIAE IN SUPPORT OF PETITIONERS

J o h n  P ayton 
Director- Counsel 

D ebo  P. A degbile  
Ch ristin a  Swarns 
J in  H ee  L ee
*Vin c e n t  M. Southerland  
NAACP L egal D e fe n s e  & 
Educational  F u n d , In c . 

99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200 
* Counsel o f Record

Additional counsel listed inside cover



Charles J .  O g l et r e e , J r . 
R obert  J . Sm ith  
Charles H am ilton  H ouston  
In stitu te  fo r  Race  & J u stic e  

125 Mt. Auburn St., 3rd Floor 
Cambridge, MA 02138

J effr ey  L. F ish er  
N ational  A ssociation  of  

Crim inal  D e fe n s e  Lawyers 
1660 L St., NW, 12th Floor 
W ashington, DC 20036



CORPORATE DISCLOSURE STATEMENT
P ursuant to Supreme Court Rule 29.6, amici 

NAACP Legal Defense and Educational Fund, Inc., 
Charles Hamilton Houston Institu te  for Race and 
Justice, and National Association of Criminal De­
fense Lawyers certify th a t each are non-profit corpo­
rations with no parent companies, subsidiaries, or 
affiliates th a t have issued shares to the public.



11

TABLE OF CONTENTS

TABLE OF CONTENTS...............................................ii
TABLE OF AUTHORITIES......................... ...... . iv
INTEREST OF AMICUS CURIAE........... .................1

SUMMARY OF ARGUMENT...................................... 2

ARGUM ENT................................................................... 3
I. The Challenges of Developing an Effective

Attorney-Client Relationship with a Teen­
a g e r............................................   4
A. A Child’s Tendency to M istrust Adults

Impedes the Development of a Proper 
Attorney-Client R elationship.......................7

B. Adolescents’ Limited Comprehension 
of Core Legal Concepts, Institutional 
Actors, and the Adjudicatory Process 
Complicates the Development of an 
Effective Attorney-Client Relationship... 11

C. Adolescent Deficits in Judgm ent,
Temporal Perspective and Susceptibil­
ity to Peer Influence Ham per Effective 
Representation of a Child C lient...............12

II. Compromised Attorney/Child-Client Rela­
tionships Hinder Defense Counsel’s Ability 
To Conduct A Constitutionally Appropriate
Factual Investigation......................................... 15

III. Compromised Attorney/Child-Client Rela­
tionships Can Yield Flawed Decisions to 
Accept or Reject Plea B arg a in s............. ......... 19



Ill

IV. Compromised Attorney/Child-Client Rela­
tionships Can Contribute to Children Fac­
ing Inappropriately H arsh Prison Condi­
tions ....................................................................... 25

CONCLUSION............................................................ 27



IV

TABLE OF AUTHORITIES

Cases

A tkins v. Virginia, 536 U.S. 304 (2002)....................3
Florida v. Nixon, 543 U.S. 175 (2004)....................  20
Gideon v. Wainwright, 372 U.S. 335 (1963)............ 5
H unt v. Blackburn, 128 U.S. 464 (1888) ..............  16
Illinois v. Wardlow, 528 U.S. 119 (2000)...............  10
In  re Gault, 387 U.S. 1 (1967).................................  3,5
In re Winship, 397 U.S. 358 (1970)............................3
Kennedy v. Louisiana, 554 U .S .____, 128 S.

Ct. 2641 (2008).........................................................  17
Kent v. United States, 383 U.S. 541 (1966)............. 3
McCarthy v. United States, 394 U.S. 459

(1969)........................................................................  21
Morris v. Slappy, 461 U.S. 1 (1983)............................ 5
Powell v. Alabama, 287 U.S. 45 (1932)......................5
Roper v. Simmons, 543 U.S. 563 (2005)....... 3,4,5,12
Strickland v. Washington, 466 U.S. 668 

(1984)......................................................... 5,15,16, 18
Thompson v. Oklahoma, 487 U.S. 833 (1988).......... 4
United States v. Leviner, 31 F. Supp. 2d 23

(D. Mass. 1998)........................................................ 10
Upjohn Co. v. United States, 449 U.S. 383

(1981).......................................................................... 16
Wiggins v. Sm ith, 539 U.S. 510 (2003)...................  15
Williams v. Taylor, 529 U.S. 362 (2000)................ 15



U.S. C o n stitu tio n  a n d  S ta tu te s

U.S. Const, amend. VIII 3,4,6,27

Other Authorities

A.B.A. Standards for Criminal Justice: 
Prosecution & Def. Function, Standard 4- 
3 .2(a)...................................................................15, 16

A.B.A. Standards for Criminal Justice: 
Prosecution & Def. Function, Standard 4- 
6.1(b)..................................................................... 19-20

Paolo G. Annino, Children in Florida A dult 
Prisons: A  Call for a Moratorium, 28 Fla.
St. U. L. Rev. 471 (2001).......................................  25

Paolo G. Annino et al., Juvenile Life Without 
Parole for Non-Homicide Offenses: Florida 
Compared to the Nation  (July 2009).......................8

Annette Ruth Appell, Representing Children 
Representing What?: Critical Reflections on 
Lawyering for Children, 39 Colum. Hum.
Rts. L. Rev. 573 (2008)............. ......... ................. . 8

Douglas A. Berman, From Lawlessness To 
Too Much Law?: Exploring the Risk of
Disparity from Differences in Defense 
Counsel Under Guidelines Sentencing, 87
Iowa L. Rev. 435 (2002)............ ............................  20

Donna M. Bishop, Juvenile Offenders in the 
A dult Criminal Justice System, 27 Crime
& Just. 81 (2000)................................. 10, 11, 25, 26

Donna M. Bishop & Hillary Farber, Joining  
the Legal Significance of Adolescent Devel­
opmental Capacities with the Legal Rights



VI

Provided by In Re Gault, 60 Rutgers L.
Rev. 125 (2007)..................................................  13-14

C. Antoinette Clarke, The Baby and the 
Bathwater: Adolescent Offending and P u­
nitive Juvenile Justice Reform, 53 U. Kan.
L. Rev. 659 (2005).........................................  2,6,7,21

Laura Cohen & Randi Mandelbaum, Kids 
Will Be Kids: Creating a Framework for In ­
terviewing and Counseling Adolescent Cli­
ents, 79 Temp. L. Rev. 357 (2006)......12, 13, 14,17

Douglas L. Colbert et al., Do Attorneys Really 
M atter?: The Empirical and Legal Case for
the R ight o f Counsel at Bail, 23 Cardozo L.
Rev. 1719 (2002).....................................................  18

Steven Drizin & Greg Luloff, Are Juvenile 
Courts a Breeding Ground for Wrongful 
Convictions'?, 34 N. Ky. L. Rev. 257 (2007)......... 4

Jeffrey Fagan, This Will Hurt Me More Than 
It Hurts You, 16 Notre Dame J.L. Ethics &
Pub. Pol’y 1 (2002)..................................................  25

Lisa M. Farabee, Disparate Departures Un­
der the Federal Sentencing Guidelines: A  
Tale of Two Districts, 30 Conn. L. Rev. 569 
(1998)..........................................................................20

Barry Feld, A  Century of Juvenile Justice: A  
Work in Progress or a Revolution that 
Failed, 34 N. Ky. L. Rev. 189 (2007)...............  9,12

Barry Feld, Unmitigated Punishment: Ado­
lescent Criminal Responsibility and LWOP
Sentences, 10 J. L. & Fam. Stud. 11 (2007)....... 13

Thomas Grisso, The Competence of Adoles­
cents as Trial Defendants, 3 Psychol. Pub.
Pol’y & L. 3, 16 (1997).............. ...................  7,11,23



Thomas Grisso et al., Juveniles’ Competence 
to S tand Trial: A  comparison of Adoles­
cents’ and A du lts’ Capacities as Trial De­
fendants, 27 Law and Hum. Behav. No. 4,
333 (2005)..................................................... ........... 24

Samuel Gross, Exonerations in the United 
States 1989 Through 2003, 95 J. Crim. L.
& Criminology 523 (2005)..................................... 4

Jan e t C. Hoeffel, Toward a More Robust 
Right to Counsel of Choice, 44 San Diego L.
Rev. 525 (2007)..........................................  10, 17, 22

Kristin Henning, Loyalty, Paternalism, and  
Rights: Client Counseling Theory and the 
Role of Child’s Counsel in Delinquency 
Cases, 81 Notre Dame L. Rev. 245
(2006)........................................................... 12, 13, 14

Theresa Hughes, A  Paradigm of Youth Client 
Satisfaction: Heightening Professional Re­
sponsibility for Children’s Advocates, 40
Colum. J.L. & Soc. Probs. 551 (2007)............  7, 13

Hum an Rights Watch, The Rest of Their 
Lives: Life Without Parole for Youth Of­
fenders in the United States in 2008 (2008)........9

Michelle Jacobs, People from the Footnotes:
The Missing Element in Client-Centered 
Counseling, 27 Golden Gate U. L. Rev. 345
(1997)......................................................................... 10

Amanda M. Kellar, They Ye Just Kids: Does 
Incarcerating Juveniles With Adults Vio­
late the Eighth Am endm ent?, 40 Suffolk U.
L. Rev. 155 (2006)

vii

25



vm

Sheldon Krantz et al., The Right to Counsel 
in Criminal Cases: The M andate of
Argersinger v. Ham lin  (1976)..............................  18

Michael Lindsay, The Impact of Gault on the 
Representation of Minority Youth, 44 No. 3 
Crim. Law Bulletin 4 (2008)....................................9

N at’l Council on Crime and Delinquency,
A nd Justice for Some: Differential Treat­
ment of Youth of Color in the Justice Sys­
tem, (Jan. 2007).......................................................... 9

Kenneth Nunn, The Child as Other: Race 
and Differential Treatment in the Juvenile 
Justice System, 51 DePaul L. Rev. 679 
(2002)............................................................................ 9

Michael Pinard, The Logistical and Ethnical 
Difficulties o f Informing Juveniles About 
the Collateral Consequences of Adjudica­
tions, 6 Nev. L. J. 1111 (2006).......................  13, 24

Patricia Puritz & Katayoon Majd, Ensuring  
Authentic Youth Participation in Delin­
quency Cases: Creating a Paradigm for 
Specialized Juvenile Defense Practice, 45 
Fam. Ct. Rev. 466 (2007)............................ 6, 10, 21

Melinda Schmidt et al., Effectiveness of Par­
ticipation as a Defendant: The Attorney- 
Juvenile Client Relationship, 21 Behav.
Sci. Law 175, 179 (2003).......................................  22

Elizabeth S. Scott & Thomas Grisso, Devel­
opmental Incompetence, Due Process, and  
Juvenile Justice Policy, 83 N.C. L. Rev.
793, 816 (2005).... .............................................  14, 23

Elizabeth S. Scott & Thomas Grisso, The 
Evolution o f Adolescence: A  Developmental



IX

Perspective on Juvenile Justice Reform, 88
J. Crim. L. & Criminology 137 (1997)...........  7, 13

Elizabeth S. Scott & Laurence Steinberg,
Blam ing Youth, 81 Tex. L. Rev. 799 (2003).........6

Abbe Smith, “I  A in ’t Takin No Plea”: The 
Challenges in Counseling Young People 
Facing Serious Time, 60 Rutgers L. Rev.
11 (2007)................................................... ...............  19

Laurence Steinberg, Adolescent Development 
and Juvenile Justice, 5 Ann. Rev. Clin.
Psych. 459 (2009)......... ........ 2, 6, 11, 13, 14, 17, 26

U.S. Dep’t  of Justice, Office of Juvenile Ju s ­
tice and Delinquency Prevention, Dispro­
portionate Minority Confinement 2002 Up­
date (Sept. 2004)....................  9

U.S. Dep’t of Justice, Office of Juvenile Ju s ­
tice and Delinquency Prevention, Minori­
ties in the Juvenile Justice System  (Dec.
1999).................     ...8

U.S. Dep’t  of Justice, OJJDP Statistical 
Briefing Book (2008)............................................... 10

U.S. Dept, of Justice, Office of Juvenile Ju s ­
tice and Delinquency Prevention, Juveniles 
in Corrections (June 2004)......................  8

Julie W hitman & Robert Davis, Snitches Get 
Stitches: Youth Gangs, and Witness In ­
timidation in Massachusetts, The National 
Center for Victims of Crime (2007).....................  18



1

INTEREST OF AMICUS CURIAE1

The NAACP Legal Defense & Educational Fund, 
Inc. (LDF), is a non-profit corporation formed to as­
sist African Americans and others who are unable, 
on account of poverty, to employ legal counsel to se­
cure their rights by the prosecution of lawsuits. LDF 
has a long-standing concern with the impact of racial 
discrimination on the criminal justice system. It has 
served as counsel of record and/or as amicus curiae 
in th is Court in, inter alia, Furman v. Georgia, 408 
U.S. 238 (1972), McClesky v. Kemp, 481 U.S. 279 
(1987), Swain v. Alabama, 380 U.S. 202 (1965), 
Alexander v. Louisiana, 405 U.S. 625 (1972) and 
Ham v. South Carolina, 409 U.S. 524 (1973) and ap­
peared as amicus curiae in Roper v. Simmons, 543 
U.S. 551 (2005), Kimbrough v. United States, 552 
U.S. 85 (2007), Miller-El v. Cockrell, 537 U.S. 322 
(2003), and Batson v. Kentucky, 476 U.S. 79 (1986).

The Charles Hamilton Houston Institu te  for Race 
and Justice a t Harvard Law School (CHHIRJ) con­
tinues the unfinished work of Charles Hamilton 
Houston, one of the Twentieth Century’s most ta l­
ented legal scholars and litigators. The CHHIRJ 
m arshals resources to advance Houston’s dreams for 
a more equitable and just society. It brings together 
students, faculty, practitioners, civil rights and 
business leaders, community advocates, litigators,

1 Letters of consent by the parties to the filing of this brief 
have been lodged with the Clerk of this Court. Pursuant to S. 
Ct. Rule 37.6, counsel for the amici states that no counsel for a 
party authored this brief in whole or in part, and that no per­
son other than the amici, their members, or their counsel made 
a monetary contribution to the preparation or submission of 
this brief.



2

and policymakers to focus on, among other things, 
reforming criminal justice policies.

The National Association of Criminal Defense 
Lawyers (NACDL) is a non-profit corporation with 
more th an  10,000 members nationwide and 28,000 
affiliate members in 50 states, including private 
crim inal defense lawyers, public defenders and law 
professors. The American Bar Association recog­
nizes NACDL as an affiliate organization and 
awards it full representation in its House of Dele­
gates. NACDL was founded in 1958 to promote 
study and research in the field of criminal law, to 
dissem inate and advance knowledge of the law in 
the area of criminal practice, and to encourage the 
integrity, independence, and expertise of defense 
lawyers in criminal cases. NACDL seeks to defend 
individual liberties guaranteed by the Bill of Rights 
and has a keen in terest in ensuring th a t legal pro­
ceedings are handled in a proper and fair manner. 
Among NACDL’s objectives is the promotion of the 
proper adm inistration of justice.

SUMMARY OF ARGUMENT
Experience, science and this Court’s precedents 

all recognize th a t children are fundam entally differ­
ent th an  adults.2 One of the most significant aspects

2 Since its inception, the juvenile justice system has coun­
tered the stark differences between youth and adults through 
“individual assessment and treatment” of children in an effort 
to reintegrate young offenders into society. C. Antoinette 
Clarke, The Baby and the Bathwater: Adolescent Offending and 
Punitive Juvenile Justice Reform, 53 U. Kan. L. Rev. 659, 667 
(2005); see also Laurence Steinberg, Adolescent Development 
and Juvenile Justice, 5 Ann. Rev. Clin. Psych. 459, 462 (2009) 
(“[I]t is clear that the founders of the juvenile justice system



3

of this difference is th a t children who commit crimi­
nal offenses are less culpable than  adults. Roper v. 
Simmons, 543 US. 563, 569-70 (2005). These princi­
ples bear directly on the constitutionality of juvenile 
life without parole sentences. Such sentences fail to 
comport with the requirem ents of the Eighth 
Amendment for the reasons raised by the Petitioners 
and supporting amici and because the unique char­
acteristics of youth can critically underm ine defense 
counsel’s ability to effectively assist their teenaged 
clients, and the compromised attorney-client re la ­
tionship contributes to an increased likelihood of u n ­
reliable sentencing outcomes th a t fail to reflect cul­
pability and guilt. A tkins v. Virginia, 536 U.S. 304, 
320 (2002). For these reasons, individuals younger 
than  age 18 at the time of the offense should not be 
subject to life without parole sentences.

ARGUMENT
This brief explains how the characteristics of 

youth can interfere with the development of an effec­
tive attorney-client relationship and how the im ­
paired relationship with counsel, in combination 
with the concerns raised by Petitioners and their

began from the premise that adolescents are developmentally 
different from adults in ways that should affect our interpreta­
tion and assessment of their criminal acts.”). This Court has 
appropriately addressed the developmental concerns of youth 
by affording children the rehabilitative benefits of the juvenile 
justice system and such procedural and substantive safeguards 
rooted in due process as the rights to counsel, confrontation, 
cross examination, proof beyond a reasonable doubt and free­
dom from compelled self-incrimination. See In re Winship, 397 
U.S. 358 (1970); In re Gault, 387 U.S. 1 (1967); Kent v. United 
States, 383 U.S. 541 (1966).



4

supporting amici, so underm ine the reliability of life 
without parole sentences th a t such punishm ents are 
unconstitutionally disproportionate for children 
younger than  age 18 a t the time of the offense.

This Court has acknowledged th a t a child’s im ­
m ature judgment, impulsive decision-making and 
vulnerability to peer pressure reduce culpability 
such th a t the capital sentencing of offenders younger 
th an  age 18 violates the Eighth Amendment. See 
Roper, 543 U.S. a t 569-70; Thompson v. Oklahoma, 
487 U.S. 833, 834-35 (1988). These attributes, in 
addition to the dynamics of race, class and the n a ­
ture of indigent defense, can also disadvantage a 
child’s relationship with counsel and contribute to a 
significant risk of an unreliable sentencing outcome 
th a t fails to reflect actual culpability.3 Given the se­
verity and finality of a death-in-prison sentence, this 
Court should categorically exempt children from life 
without parole sentences.
I. The C hallenges o f D evelop ing an Effective  

A ttorney-C lient R elationship  w ith  a T een­
ager.
A criminal defense attorney’s ability to effectively 

represent her client and fairly subject the prosecu­

3 See Samuel Gross, Exonerations in the United States 1989 
Through 2003, 95 J. Crim. L. & Criminology 523, 545, 548-51 
and Table 6 (2005) (describing unreliable outcomes for children 
and adolescents in the criminal justice system and noting 
higher concentration of false confessions among adolescent as 
compared to adult exonerees); see also Steven Drizin & Greg 
Luloff, Are Juvenile Courts a Breeding Ground for Wrongful 
Convictions?, 34 N. Ky. L. Rev. 257 (2007) (discussing charac­
teristics of children, juvenile, and criminal justice system that 
lead to wrongful convictions).



5

tion’s case to “a reliable adversarial testing process,” 
Strickland v. Washington, 466 U.S. 668, 688 (1984) 
(citations omitted), is critically dependent on the ex­
istence of a trusting  attorney-client relationship and 
the client’s ability to assist counsel, guided by a 
meaningful understanding of the legal proceedings. 
See Powell u. Alabama, 287 U.S. 45, 69 (1932) (sta t­
ing th a t defendants need “the guiding hand of coun­
sel a t every step in the proceedings against 
[them]”).4

This Court has acknowledged th a t children, as a 
class, “lack [ ] m aturity  and [possess] an underdevel­
oped sense of responsibility [that] often result[s] in 
impetuous and ill-considered actions and decisions,” 
are “vulnerable and susceptible to negative influ­
ences and outside pressures,” and have a “transitory, 
less fixed” personality. Roper, 543 U.S. a t 569 (cita­
tions omitted). Experts consistently concur with this 
Court’s assessm ent and note th a t each of these 
youthful qualities, which are rooted in the neurologi­
cal differences between adults and children,5 can

4 See also Morris v. Slappy, 461 U.S. 1, 21 n.4 (1983) (citing 
A.B.A. Standards for Criminal Justice, commentary to § 4.29 
(2d ed. 1980)) (“Nothing is more fundamental to the lawyer- 
client relationship than the establishment of trust and confi­
dence.”); Gault, 387 U.S. at 36 (1967) (determining that a child 
“needs the assistance of counsel to cope with problems of law, to 
make skilled inquiry into the facts, to insist upon regularity of 
the proceedings, and to ascertain whether he has a defense and 
to prepare and submit it”); Gideon v. Wainwright, 372 U.S. 335, 
344-45 (1963) (describing the right to counsel as “fundamental 
and essential to fair trials”).

5 These unique characteristics of adolescent children are a 
direct product of the neurological development of the brains 
prior to adulthood. The frontal lobe of the brain, which “man­



6

and often do impede a child’s judgment, decision­
making, and ability to develop the trust, confidence 
and open communication necessary for an effective 
attorney-client relationship. See Steinberg, supra 
note 2, a t 468-71; Patricia Puritz & Katayoon Majd, 
Ensuring Authentic Youth Participation in Delin­
quency Cases: Creating a Paradigm for Specialized 
Juvenile Defense Practice, 45 Fam. Ct. Rev. 466, 474 
(2007).

Many characteristics of youth complicate the de­
velopment of a proper attorney-client relationship. 
As detailed below, a teenager’s tendency to d istrust 
adults, lim ited understanding of the criminal justice 
system and the role of the defense lawyer within it, 
deficits in judgment, and considerations of race and 
class combine to inhibit the development of an effec­
tive attorney/child-client relationship and further 
dem onstrate how juvenile life without parole sen­
tences cannot be reconciled with the Eighth 
Amendment.

ages impulse control, long-term planning, priority setting, cali­
bration of risk and reward and insight [,] is still growing and 
changing during adolescence and beyond . . . .” Abbe Smith, “I  
Ain’t Takin No Plea”: The Challenges in Counseling Young Peo­
ple Facing Serious Time, 60 Rutgers L. Rev. 11, 20 (2007); see 
also Elizabeth S. Scott & Laurence Steinberg, Blaming Youth, 
81 Tex. L. Rev. 799, 816 (2003) (discussing the connection be­
tween brain development, judgment, and decision-making). 
“[Tjasks involving planning, self control, inhibiting impulsive 
actions, learning from experience, social judgment, and weigh­
ing rewards and risks in decision-making situations” may not 
reach full development “until adolescents reach their twenties.” 
Clarke, supra note 2, at 710.



7

A. A Child’s T endency to M istrust A dults 
Im pedes the D evelopm ent o f  a Proper At­
torney-C lient R elationship .

The well-known failure of adolescents to relate  to 
and tru s t adults and authority  figures presents a 
fundam ental impediment to the candid communica­
tion necessary for an effective attorney-client re la ­
tionship. See Thomas Grisso, The Competence of 
Adolescents as Trial Defendants, 3 Psychol. Pub. 
Pol’y & L. 3, 16 (1997) (explaining th a t th is m istrust 
may be the product of the natu ra l adolescent stage of 
a child working through “developmental issues of in ­
dependence and identity” or from previous experi­
ences with adult authority figures). A child’s process 
of “establishing autonomy from . . . parents” can 
m anifest itself in a “rebellion against parental values 
. . . until late adolescence or early adulthood.” 
Clarke, supra note 2, a t 697 (footnotes omitted); see 
also Elizabeth S. Scott & Thomas Grisso, The Evolu­
tion of Adolescence: A  Developmental Perspective on 
Juvenile Justice Reform, 88 J. Crim. L. & Criminol­
ogy 137, 156 (1997) ((citing Terrie Moffitt, Adoles­
cent-Limited and Life Course Persistent Antisocial 
Behavior: A  Developmental Taxonomy, 100 Psychol. 
Rev. 674 (1993)) noting th a t “adolescents are striving 
for elusive autonomy from parental and adult au ­
thority in a context in which most privileges of adult 
status are withheld”). As a result of th is process, 
adolescents are notoriously “reluctant to participate 
in conversation with adults or answer their ques­
tions . . . .” Theresa Hughes, A  Paradigm of Youth 
Client Satisfaction: Heightening Professional Re­
sponsibility for Children’s Advocates, 40 Colum. J. L. 
& Soc. Probs. 551, 566 (2007).



8

This adolescent aversion is likely to affect the a t­
torney-client relationship because “lawyers are not 
fam iliar figures in children’s lives, unlike teachers, 
doctors, and nurses. . . . [YJouth are more likely 
than  adults to refuse to speak with their attorney, 
thereby inhibiting the effectiveness of the represen­
tation.” Id. a t 566-67 (footnotes omitted). As a re ­
sult, children are more likely to d istrust counsel and 
are less likely to engage in the type of communica­
tion required for an effective relationship with an 
attorney.

T rust barriers may also be exacerbated by the 
cross-racial nature  of m any attorney/child-client re­
lationships.6 African-American children are over- 
represented7 among those subjected to life-without- -

6 See Annette Ruth Appell, Representing Children Repre­
senting What?: Critical Reflections on Lawyering for Children, 
39 Colum. Hum. Rts. L. Rev. 573, 596 (2008) (describing cross 
racial nature of representation for children).

7 The overrepresentation of African-American children in 
the criminal justice system is a well documented subject of nu­
merous respected studies. The United States Department of 
Justice, Office of Justice Programs noted that in 2004, minority 
youth comprised 70% of juveniles held in custody for violent 
offenses, and that black youth were twice as likely as white 
youth to be sentenced to prison. See U.S. Dept, of Justice, Of­
fice of Juvenile Justice and Delinquency Prevention, Juveniles 
in Corrections, 9, 21 (June 2004). In 1999, DOJ found that 
“[mjore than three-quarters of youth newly admitted to State 
prison were minorities.” U.S. Dept, of Justice, Office of Juve­
nile Justice and Delinquency Prevention, Minorities in the Ju­
venile Justice System, 15 (Dec. 1999); see also Paolo G. Annino 
et al., Juvenile Life Without Parole for Non-Homicide Offenses: 
Florida Compared to the Nation, 3 (July 2009) (finding that in 
Florida, the state from which the two cases before this Court 
arise, 84% of the total population of children serving life with­
out parole for non-homicide offenses are African American);



9

parole sentences,* 3 * * * * 8 and many factors—including the 
phenomenon of racial profiling and the negative im ­
pression of the criminal justice system th a t it n a tu ­
rally produces—are likely to breed significant m is­
tru s t of the criminal justice system and its actors, 
including defense attorneys, among African-

Barry Feld, A Century of Juvenile Justice: A Work in Progress 
or a Revolution that Failed, 34 N. Ky. L. Rev. 189, 252 (2007) 
(“[F]orty-one of forty-two states found minority youths overrep­
resented in secure detention facilities and all thirteen states 
that analyzed institutional commitment decisions reported dis­
proportionate minority confinement.”); Michael Lindsay, The 
Impact of Gault on the Representation of Minority Youth, 44 No.
3 Crim. Law Bulletin 4 (2008) (African-American youth are in 
the juvenile justice system are “most consistently, and perva­
sively overrepresented across the United States.”); Nat’l Coun­
cil on Crime and Delinquency, And Justice for Some: Differen­
tial Treatment of Youth of Color in the Justice System, 3, 34
(Jan. 2007) (finding that in 2002, three out of four adolescents 
who were newly admitted into adult prisons were youth of 
color, and “African American youth accounted for 58% of total 
admissions to adult prisons”); Kenneth Nunn, The Child as
Other: Race and Differential Treatment in the Juvenile Justice 
System, 51 DePaul L. Rev. 679, 686-87 (2002) (discussing the 
racial disparities present in the juvenile justice system and 
disproportionate number of African-American youth arrested, 
detained, charged and sentenced); U.S. Dep’t of Justice, Office 
of Juvenile Justice and Delinquency Prevention, Dispropor­
tionate Minority Confinement 2002 Update, 2 (Sept. 2004) (ex­
amining data from 1990-1997 and describing African-American 
youth as overrepresented at all stages of the juvenile justice 
system compared with their proportion in the U.S. population).

8 See Human Rights Watch, The Rest of Their Lives: Life 
Without Parole for Youth Offenders in the United States in 
2008, 39 (2008) (stating that nationwide, black teenagers are 
ten times more likely to receive life-without-parole sentences 
than their white counterparts and African Americans consti­
tute 60% of youth serving life without parole sentences).



10

American youth.9 See, e.g., Illinois v. Wardlow, 528 
U.S. 119, 133-34 nn.9-10 (2000) (Stevens, J., concur­
ring in part and dissenting in part) (noting the 
prevalence of racial profiling by law enforcement 
against citizens of color); U.S. v. Leviner, 31 F. Supp. 
2d 23, 33 & n.26 (D. Mass. 1998) (describing the 
criminal history score of an African-American defen­
dant as reflective of racial disparities th a t have 
grown out of racial profiling). This problem of dis­
tru s t may also be enhanced among poor children 
who m ust rely on appointed counsel whose commit­
m ent to zealous advocacy the child may doubt. See 
Donna M. Bishop, Juvenile Offenders in the A dult 
Criminal Justice System, 27 Crime & Just. 81, 136- 
37 (2000) (footnote omitted) (finding several respon­
dents in the study to be “especially critical of public 
defenders, whom they believed feigned advocacy in 
an effort to m anipulate them  to accept pleas tha t 
were not in their best in terests”); Puritz, supra, a t 
474 (citing studies “suggesting] th a t children are 
less likely to tru s t or communicate with attorneys 
whom they know are court-appointed”).10

9 See Michelle Jacobs, People from the Footnotes: The Miss­
ing Element in Client-Centered Counseling, 27 Golden Gate U. 
L. Rev. 345, 377 (1997) (discussing influence of cultural dynam­
ics on attorney-client relationship); Puritz, supra at 472 (“Re­
search indicates that African American children . . . are consis­
tently less likely than their White counterparts to trust their 
defense attorneys.”).

10 As of 2007, African-American and Hispanic youth were 
nearly three times as likely to live in poverty as white youth. 
U.S. Dept, of Justice, OJJDP Statistical Briefing Book (2008), 
available at http://ojjdp.ncjrs.gov/ojstatbb/population/ 
qa0140.asp.qaDate-2007.

http://ojjdp.ncjrs.gov/ojstatbb/population/


11

Thus the tru s t necessary for an effective and col­
laborative relationship between attorney and client 
is often underm ined by an adolescent defendant’s 
age-based likelihood to d istrust counsel.

B. A dolescen ts’ L im ited C om prehension o f  
Core Legal Concepts, In stitu tion a l Ac­
tors, and the A djudicatory P rocess Com­
p lica tes the D evelopm ent o f an E ffective  
A ttorney-C lient R elationship .

The attorney-client relationship and its critical 
requirem ent of confidentiality are difficult concepts 
th a t few children can fully understand. Children of­
ten  assum e th a t their lawyers are required to report 
the substance of their communications to the court 
or other authority figures, such as police officers or 
parents. Youth under age 19 often “incorrectly be­
lieve [ ] th a t [a defense] attorney was authorized to 
tell judges or police officers what was discussed in 
confidential attorney-defendant conversations.” 
Grisso, supra, a t 15 (citations omitted). Moreover, 
children “may develop a belief th a t all adults in ­
volved in the proceedings are allied against [them], 
perhaps after seeing defense attorneys and prosecu­
tors chatting together outside the courtroom.” 
Steinberg, supra note 2, a t 475. Accordingly, 
“[m]any youths fail[ ] to differentiate the roles and 
functions of judges, prosecutors, and defense counsel, 
whom they perceived as one, and as adversarial.” 
Bishop, supra, a t 136.

These m istaken beliefs can have devastating con­
sequences. “[A] child who is unpersuaded by his a t­
torney’s loyalty may simply withhold information 
from the attorney, depriving both the attorney and



12

the child of an opportunity to exchange im portant 
insights in the case.” Kristin Henning, Loyalty, Pa­
ternalism, and Rights: Client Counseling Theory and  
the Role of C hild’s Counsel in Delinquency Cases, 81 
Notre Dame L. Rev. 245, 273 (2006).

C. A dolescen t D efic its in Judgm ent, Tem po­
ral P ersp ective  and Su scep tib ility  to 
P eer In fluence Hamper E ffective R epre­
sen ta tion  o f a Child Client.

A young client’s im m aturity in judgm ent and lim ­
ited tem poral perspective may frustrate  the devel­
opment of a viable relationship between counsel and 
client. See Feld, supra note 7, a t 225 (“[Gjeneric de­
velopmental lim itations im pair juveniles’ ability to 
understand legal proceedings, make rational deci­
sions, and assist counsel.”); Henning, supra, a t 272- 
73 (discussing influence of peers, temporal perspec­
tive and deficits in judgm ent on decision-making and 
relationship with counsel). “It has been noted tha t 
‘adolescents are overrepresented statistically in v ir­
tually every category of reckless behavior.’” Roper, 
543 U.S. a t 569 (quoting Jeffrey Arnett, Reckless Be­
havior in Adolescence: A  Developmental Perspective, 
12 Developmental Rev. 339 (1992)). It is therefore 
not surprising th a t deficiencies in judgm ent can also 
prevent a child from fully considering all available 
adjudicative options and lim it his or her ability to 
“assess or integrate long-term consequences into 
their analysis.” Laura Cohen & Randi Mandelbaum, 
Kids Will Be Kids: Creating a Framework for Inter­
viewing and Counseling Adolescent Clients, 79 Temp. 
L. Rev. 357, 367 (2006). For example, an adolescent 
“engaging in a cost-benefit analysis [may] ‘weigh the 
particular cost or benefit [s]”’ of certain choices dif­



13

ferently from an adult who possesses the experience 
and tem poral perspective to make well-reasoned 
choices. Id. a t 368 (quoting Elizabeth S. Scott, et al. 
Evaluating Adolescent Decision M aking in Legal 
Contexts, 19 L. & Hum. Behav. 221, 233 (1995)). 
Similarly, an adolescent may “withhold information 
from his attorney in order to feel the immediate 
benefit of not fully incriminating himself, but fail to 
recognize the long-term costs of compromising his 
own defense . . . .” Henning, supra, a t 273; see also 
Hughes, supra, a t 565 (noting the difficulty children 
have in comprehending the role of a lawyer and the 
influence on information sharing caused by differ­
ences between children and adults in future orienta­
tion, cost-benefit analytical processes, and the child’s 
focus on immediate gains).11

11 See also Barry Feld, Unmitigated Punishment: Adolescent 
Criminal Responsibility and LWOP Sentences, 10 J. L. & Fam. 
Stud. 11, 53 (2007) (noting that adolescents “undersestimate 
the magnitude or probability of risks, use a shorter time-frame, 
and focus more on potential gains rather than losses” as com­
pared to adults); Michael Pinard, The Logistical and Ethical 
Difficulties, 6 Nev. L. J. 1111, 1121 (2006) (“[S]tudies have 
found both that [children] do not understand the various 
phases of the criminal process and that they cannot fully com­
prehend long-term consequences (or tend to ignore these conse­
quences in favor or immediate consequences) . . . .”); Scott, Evo­
lution, supra, at 171 (noting that a youth’s narrow temporal 
perspective, which leads to a focus on short-term rather than 
long-term consequences, limited concept of time and tendency 
to take risks can “influence judgments about the value of ac­
cepting plea bargains”); Steinberg, supra note 2, at 475 (“Im­
mature youths may lack capacities to process information and 
exercise reason adequately in making trial decisions, especially 
when the options are complex and their consequences are far 
reaching.”); Donna M. Bishop & Hillary Farber, Joining the 
Legal Significance of Adolescent Developmental Capacities with



14

The influential role th a t a teenager’s peers may 
play in the decision-making process also has the po­
ten tial to impede the development of a proper rela­
tionship between counsel and client. “Peer influence 
affects adolescent judgm ent both directly and indi­
rectly.” Steinberg, supra note 2, a t 469. Adolescents 
may “make choices in response to direct peer pres­
sure” or act in ways th a t relate to their “desire for 
peer approval and consequent fear of rejection 
Id. As a result, judgm ents about collaboration and 
cooperation with authorities and counsel are some­
tim es made through the often illegitimate filter of a 
child’s feelings about how decisions will inform and 
define their role among peers. See Cohen, supra, at 
363-64 (discussing the influence of peers on adoles­
cent decision-making); Henning, supra, a t 273 
(same); Elizabeth S. Scott & Thomas Grisso, Devel­
opmental Incompetence, Due Process, and Juvenile 
Justice Policy, 83 N.C. L. Rev. 793, 816 (2005) 
(“[S ubstan tia l evidence supports th a t adolescents 
are more susceptible to peer influence than  adults. . 
. At least during the period of early- and mid- ado­
lescence, decisions often are driven by acquiescence 
or opposition to authority or by efforts to gain peer 
approval (or avoid peer rejection).”); Cohen, supra, at 
363 (“Susceptibility to peer influence appears to in ­
crease between childhood and early adolescence, 
peaks at about age fourteen, and then . . . decreases 
into early adulthood.”).

the Legal Rights Provided by In Re Gault, 60 Rutgers L. Rev. 
125, 158-59 (2007) (explaining that “perceived difference be­
tween a sentence of five years and ten years is a lot less mean­
ingful to a teen than to an adult”).



15

Thus, an attorney’s ability to develop a constitu­
tionally effective relationship with a child client is 
often impaired by the characteristics of youth.

II. Com prom ised A ttorney/C hild-C lient R ela­
tion sh ip s H inder D efense C ounsel’s A bility  
To Conduct a C onstitutionally  A ppropriate  
F actual Investigation .
As detailed above, the characteristics of youth 

can significantly complicate the development of a 
proper attorney-client relationship. An attorney’s 
capacity to adequately investigate his child-client’s 
case is directly affected by this compromised re la ­
tionship.

The duty to investigate is a vital component of 
every defense attorney’s constitutional obligation to 
his or her client. Williams v. Taylor, 529 U.S. 362, 
395-96 (2000); Wiggins v. Sm ith, 539 U.S. 510, 522- 
27 (2003); Strickland, 466 U.S. a t 690-91; see also 
A.B.A. Standards for Criminal Justice: Prosecution 
& Def. Function, Standard 4-3.2(a) (“[D]efense coun­
sel should seek to determine all relevant facts known 
to the accused . . .  [a]s soon as practicable.”). A law­
yer’s ability to conduct an adequate defense investi­
gation is, in turn, dependent upon her ability to 
communicate with the client.

Counsel’s actions are usually based, quite 
properly, on informed strategic choices made 
by the defendant and on information sup­
plied by the defendant. . . .  For example, 
when the facts th a t support a certain poten­
tial line of defense are generally known to 
counsel because of what the defendant has 
said, the need for further investigation may



16

be considerably diminished or elim inated al­
together. . . .  In  short, inquiry into counsel’s 
conversations with the defendant may be 
critical to a proper assessm ent of counsel’s 
investigation decisions, just as it may be 
critical to a proper assessm ent of counsel’s 
other litigation decisions.

Strickland, 466 U.S. a t 691 (citation omitted); see 
also A.B.A. Standard for Criminal Justice: Prosecu­
tion & Def. Function, Standard 4-3.2, cmt. (“The cli­
ent is usually the lawyer’s prim ary source of infor­
mation for an effective defense.”).12

“A trusting  client is far more likely to reveal facts 
and details th a t not only help in formulating the de­
fense, but, in the absence of broad discovery rules, 
help the attorney learn  more about the prosecution’s 
case.” Jan e t C. Hoeffel, Toward a More Robust 
Right to Counsel of Choice, 44 San Diego L. Rev. 525, 
541-42 (2007) (citing Morris, 461 U.S. a t 20-21). A 
lawyer-client relationship characterized by suspicion 
and m istrust will leave an attorney less likely to 
learn  critical facts and less able to provide effective

12 See also Upjohn Co. v. United States, 449 U.S. 383, 389 
(1981) (the attorney-client privilege was developed “to encour­
age full and frank communication between attorneys and their 
clients” in recognition of the fact “that sound legal advice or 
advocacy serves public ends and that such advice or advocacy 
depends upon the lawyer’s being fully informed by the client.”); 
Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which 
places the seal of secrecy upon communications between client 
and attorney is founded upon the necessity . . .  of the aid of per­
sons having knowledge of the law and skilled in its practice, 
which assistance can only be safely and readily availed of when 
free from the consequences or the apprehension of disclosure.”).



17

representation. Thus open communication is a nec­
essary precursor to an adequate factual investigation 
and “is well recognized by the courts and ethical 
rules as ‘the cornerstone of the adversary system.’” 
Hoeffel, supra, a t 541-42 (quoting Linton v. Perini, 
656 F.2d 207, 212 (6th Cir. 1981)).

As described in Section I.A, supra, the communi­
cation needed to shape counsel’s investigation can be 
significantly precluded by a teenager’s na tu ra l m is­
tru s t of adults. A child may be unwilling to share 
relevant factual information regarding her case or 
refuse to speak with her attorney at all, thereby n a r­
rowing the scope and adequacy of counsel’s investi­
gation.

Additionally, a child’s “ability to receive and 
communicate information adequately . . . may be 
compromised by im pairm ents in attention, memory, 
and concentration,” and this can and often does im ­
pede an attorney’s capacity to elicit the information 
necessary for a constitutionally adequate investiga­
tion. Steinberg, supra note 2, a t 475. Specifically, 
children may experience difficulty “responding] to 
instructions or . . . providing] im portant information 
to [counsel], such as a coherent account of the events 
surrounding the offense.” Id.-, see also Kennedy v.
Louisiana, 554 U .S .___, 128 S. Ct. 2641, 2663 (2008)
(“The problem of unreliable, induced, and even imag­
ined child testimony means there is a ‘special risk of 
wrongful execution’ in some child rape cases.” (quot­
ing Atkins, 536 U.S. a t 321)); Cohen, supra, a t 360 
(explaining th a t youth inhibits counsel’s ability to 
gather information from a child client).



18

Furtherm ore, as discussed in Section I.C, supra, 
a child may, to her own detriment, place greater 
value in protecting her peers or winning their ap­
proval th an  providing counsel with the factual in ­
formation necessary for appropriate investigative 
efforts. See Julie W hitm an & Robert Davis, Snitches 
Get Stitches: Youth Gangs and Witness Intim idation  
in Massachusetts, The National Center for Victims of 
Crime, 47 (2007) (detailing results of a study show­
ing th a t “the idea of being viewed as a snitch was a 
huge deterrent to reporting crime for youth” and 
th a t “youth do not want to be labeled and rejected by 
their neighbors or peers for snitching”).

A child’s failure to relate all necessary and rele­
vant information to defense counsel can have devas­
ta ting  consequences for the outcome of her case. 
When defense counsel is not provided with all of the 
information necessary for an adequate investigation, 
“the defendant can be harm ed by the inevitable n a r­
rowing of vision when the full flexibility of disposi­
tion is not considered.” Sheldon Krantz et ah, The 
Right to Counsel in Criminal Cases: The M andate of 
Argersinger v. Ham lin  184 (1976); see also Strick­
land, 466 U.S. a t 691 (“[Cjounsel has a duty to make 
a reasonable investigation or to make a reasonable 
decision th a t makes particular investigations unnec­
essary.”); Douglas L. Colbert et al., Do Attorneys 
Really M atter?: The Empirical and Legal Case for 
the R ight of Counsel at Bail, 23 Cardozo L. Rev. 
1719, 1763, 1776 (2002) (explaining th a t those who 
are held in pretrial detention “are more likely to be 
convicted and to receive a harsher sentence than  
people freed pending tria l,” largely because “the de­
fense’s ability to locate witnesses is greatly en­



19

hanced” when a client gains pretrial release since 
“[m]any potential witnesses are more likely to coop­
erate and provide information when the lawyer, an 
unfam iliar face and frequently from a different race 
and class background, is accompanied by someone 
they know.”). Determ inative evidence may go undis­
covered. Strategic decisions regarding the represen­
tation will be lim ited by the disadvantage suffered 
by counsel who is not privy to all the facts at issue. 
Potentially viable defense theories may be discarded 
because counsel lacks the factual clarity th a t a client 
who was willing to communicate could provide. Ac­
cordingly, for child defendants who have not fully 
communicated all relevant information to counsel, 
the chances of suffering an extremely harsh  and po­
tentially inappropriate sentencing outcome are sub­
stantially increased.

III. Com prom ised Attorney/C hild-C lient Re­
la tion sh ip s Can Yield F law ed D ecisions  
to A ccept or Reject P lea Bargains.

Defense counsel’s diminished ability to obtain vi­
ta l information from an adolescent client can also 
have a profound impact on plea negotiations. In or­
der to evaluate the appropriateness of a plea bar­
gain, counsel m ust have a clear command of all rele­
vant facts. Indeed, the American Bar Association 
cautions th a t “[u]nder no circumstances should de­
fense counsel recommend to a defendant acceptance 
of a plea unless appropriate investigation . . . has 
been completed . . . .” A.B.A. Standards for Criminal 
Justice: Prosecution & Def. Function, S tandard 4-



20

6.1(b).13 As previously discussed, and for a variety of 
reasons, children often struggle to convey informa­
tion to counsel and may be unable or unwilling to 
provide their attorney with all necessary facts and 
information about their case. As a result, the ability 
of both the attorney and client to effectively analyze 
the  appropriateness of a plea bargain is critically re ­
duced.

Additionally, a child client m ust fully understand 
the conditions and obligations of a plea bargain as 
well as the rights th a t will be waived. “A guilty plea 
. . .  is an event of signal significance in a criminal 
proceeding. . . . [A]nd the high stakes for the defen­
dant require ‘the utm ost solicitude.’” Florida v. 
Nixon, 543 U.S. 175, 187-88 (2004) (quoting Boykin 
v. Alabama, 395 U.S. 238, 243 (1969)). Criminal pro­
ceedings th a t expose children to the possibility of a 
life-without-parole sentence require the child defen­
dant to take stock of a wide range of possible sen­
tencing alternatives and consider the long-term con­
sequences of decisions made during the adjudicatory 
process:

13 See also Douglas A. Berman, From Lawlessness To Too 
Much Law?: Exploring the Risk of Disparity from Differences in 
Defense Counsel Under Guidelines Sentencing, 87 Iowa L. Rev. 
435, 446 (2002) (“From the very outset of representation, a de­
fense attorney needs to assess the range of possible trial and 
sentencing outcomes for his client in order to properly craft an 
effective defense strategy and evaluate the prospects for strik­
ing a beneficial plea bargain.”); Lisa M. Farabee, Disparate De­
partures Under the Federal Sentencing Guidelines: A Tale of 
Two Districts, 30 Conn. L. Rev. 569, 576 (1998) (noting that a 
“defense attorney is more likely to favorably affect his client's 
sentence if he possesses,” inter alia, “good lines of communica­
tion with his client”).



21

A defendant who enters . . .  a [guilty] plea 
simultaneously waives several constitutional 
rights, including his privilege against com­
pulsory self-incrimination, his right to tria l 
by jury, and his right to confront his accus­
ers. . . . [BJecause a guilty plea is an adm is­
sion of all the elements of a formal criminal 
charge, it cannot be tru ly  voluntary unless 
the defendant possesses an understanding of 
the law in relation to the facts.

McCarthy v. United States, 394 U.S. 459, 466 (1969) 
(citation and footnotes omitted). Thus, a child m ust 
weigh costs and benefits, understand the quantum  of 
proof and caliber of evidence associated with particu­
lar charges and evaluate the long and short-term  re ­
percussions of all available options before deciding 
w hether to go to tria l or enter a guilty plea.

As discussed in Section I.C, supra, a child’s ca­
pacity to fully engage in this critical evaluative proc­
ess is greatly reduced, relative to th a t of an adult, 
because adolescents’ ability to conduct reasoned de­
liberation regarding a plea offer may be diminished 
by their impulsive and reckless nature and limited 
tem poral perspective th a t often focuses on immedi­
ate, ra ther than  long-term, consequences.

A child’s ability to thoroughly consider a plea 
bargain is also reduced by the simple fact th a t chil­
dren possess significantly less practical knowledge 
and experience to inform their choices and under­
stand the consequences of a guilty plea or trial than  
adults. Puritz, supra, at 474; Clarke, supra note 2, 
a t 694 (“As a class, adolescents are likely to have less 
knowledge and experience to draw on in making de-



22

cisions than  adults.”). The values and experiences 
th a t drive a teenager’s choices are grounded upon 
characteristics th a t are not as established or static 
as those of adults. Melinda Schmidt et al., Effective­
ness of Participation as a Defendant: The Attorney- 
Juvenile Client Relationship, 21 Behav. Sci. Law 
175, 179 (2003). Unlike an adult, the experiences, 
values, and priorities th a t a child will rely on in 
evaluating the desirability of a plea bargain are 
likely to change because teenagers are still in the 
process of m aturation. Thus their decision-making is 
likely to be very different from th a t of an adult. 
Schmidt, supra, a t 179-80.

The barriers of tru s t described in Section I.A, su­
pra, also affect the attorney’s ability to properly 
counsel a child about a plea offer. “A good lawyer 
tries to persuade his client to plead guilty when, in 
his or her professional opinion, a plea will produce a 
better outcome. . . .  If the [child] client does not tru st 
his lawyer, the client’s instincts will tell him to fight 
the lawyer at every step. Representation, and likely 
the outcome, will suffer.” Hoeffel, supra, a t 542 
(footnotes omitted); see also Scott, Evolution, supra, 
a t 171 (footnotes omitted) (explaining th a t “[h]ow de­
fendants respond to attorneys’ advice and weigh the 
consequences of their choices in the tria l process 
may be affected by psychosocial factors such as peer 
and adult influence, tem poral perspective, and risk 
preference and perception,” and these factors “might 
influence youths’ judgm ents about the value of ac­
cepting plea bargains and of waiving im portant 
rights in the legal process”).



23

Even in those instances when children heed their 
attorney’s advice, the questionable reasoning and 
judgm ent a child may employ in reaching a decision 
to accept or reject a plea bargain is also a source for 
concern. The potential problem can m anifest itself 
in one of two ways: (1) as discussed in Section I.A, 
supra, a child may reject, out of hand, an attorney’s 
recommendation regarding a plea bargain because 
she is inclined to reject any advice offered by an 
adult or authority figure; or (2) the child may fail to 
take on the requisite directive role in the attorney- 
client relationship due to her socialization to let 
adults make decisions for her. See Scott, Develop­
mental Incompetence, supra, a t 824 (noting th a t in a 
recent study of psychosocial influences on adolescent 
decision-making regarding plea offers, “75% of the 
eleven- to thirteen-year-olds, 65% of the fourteen- to 
fifteen-year-olds, and 60% of the sixteen- to seven- 
teen-year-olds recommended accepting the plea of­
fer,” compared to the “evenly divided” responses of 
young adults, thus suggesting “a much stronger ten ­
dency for adolescents than  for young adults to make 
choices in compliance with the perceived desires of 
authority figures”); see also Grisso, supra, a t 19 
(“[T]he process of achieving autonomy and a sense of 
identity often takes the adolescent through phases in 
which others’ values play a strong role in his or her 
choices. At times this will be manifested in extreme 
deference to others’ judgments . . . , while at other 
times choices may be made primarily in opposition to 
others’ preferences.”). W hether a youth rebels 
against the judgment of adult actors, exercises a 
strict fidelity to the views of others, or acts in a way 
th a t combines or contradicts both of these methods 
of decision-making, children are forced to find an ap­



24

propriate balance between their own feelings of dis­
tru s t in the system and reliance on counsel. In 
reaching th is balance a young person often acts to 
her own detrim ent, ensuring th a t the ultim ate result 
is an exceedingly complicated and often deficient re ­
lationship w ith counsel. See generally Thomas 
Grisso et al., Juveniles’ Competence to S tand Trial: A  
Comparison of Adolescents’ and A du lts’ Capacities as 
Trial Defendants, 27 L. and Hum. Behav. No. 4, 333, 
357-361 (2003) (discussing influence of authority fig­
ures on adolescent decision-making).

At bottom, children facing the possibility of a life 
without parole sentence m ust engage in the daunt­
ing task  of weighing a m ultitude of complex factors 
in order to reach a decision about a plea bargain tha t 
may have perm anent and lifelong consequences. 
The compromised attorney/child-client relationship 
combined with the characteristics of youth and other 
factors yield a strong likelihood of error in th is criti­
cal decision-making process. See Pinard, supra, note 
11 at 1121 (“[Gjiven the studies th a t have found both 
th a t juveniles do not understand the various phases 
of the criminal process and they cannot fully com­
prehend long-term consequences (or tend to ignore 
these consequences in favor of immediate conse­
quences), serious questions should arise as to 
whether juveniles can adequately consider, weigh 
and understand these consequences when analyzing 
the m erits of entering a guilty plea.”).

For children subject to life without parole sen­
tences, a faulty plea decision can result in a veritable 
death sentence with no hope for a life outside of 
prison.



25

IV. Com prom ised A ttorney/C hild-C lient Re­
lation sh ip s Can Contribute to C hildren  
F acing Inappropriately Harsh Prison  
C onditions.

For the reasons detailed above, a reduced capac­
ity to develop and sustain a meaningful attor- 
ney/client relationship can play a critical role in in ­
appropriate sentence outcomes. This concern is p a r­
ticularly salient in the context of extreme sentences 
where children may not only receive severe and 
perm anent sentences th a t fail to accurately reflect 
culpability, but also where children, once sentenced, 
are likely face unique suffering in adult prison.14 
This circumstance further demonstrates the inap­
propriateness of juvenile life without parole sentenc­
ing.

“Adolescents in adult institutions have a rela­
tively low and weak position in the social hierarchy 
of prison, and physical vulnerability to attack ac­
companies their low status.” Jeffrey Fagan, This 
Will Hurt Me More Than It Hurts You, 16 Notre 
Dame J. L. Ethics & Pub. Pol’y 1, 22 (2002). Conse­
quently, when compared to adults, children in the 
adult institutions are “eight times more likely to 
commit suicide, 500 times more likely to be sexually 
assaulted and 200 times more likely to be beaten by 
staff than  adults.” Amanda M. Kellar, They’re Just

14 A majority of states (31) house transferred youth offend­
ers in adult correctional facilities. Bishop, Juvenile Offenders, 
supra, at 138. “Florida leads the nation in incarcerating chil­
dren between the ages of thirteen and seventeen in adult pris­
ons.” Paolo G. Annino, Children in Florida Adult Prisons: A 
Call for a Moratorium, 28 Fla. St. U. L. Rev. 471, 471 (2001).



26

Kids: Does Incarcerating Juveniles With Adults Vio­
late the Eighth A m endm ent?, 40 Suffolk U, L. Rev. 
155, 171 (2006) (citing Jeffrey Fagan, Juvenile Ju s­
tice Policy and Law: Applying Recent Social Science 
Findings to Policy and Legislative Advocacy, 183 
PLI/Crim. 395, 407-08 (1999) (citing an American 
Bar Association study comparing violence juveniles 
face to violence adults face)). Unfortunately, trad i­
tional attem pts to protect children in adult prison 
often fail because isolation in protective custody ex­
cludes the child from educational and other pro­
gramming activities. Bishop, Juvenile Offenders, 
supra, a t 146.

Thus, the adult “correctional setting becomes the 
environm ent for social development” during an ado­
lescents’ most “formative period of development,” 
thereby “stun t [ing] the development of cognitive 
growth and psychosocial m aturity  . . . [and] likely 
exacerbating] ra ther than  am eliorating] many of 
the very factors th a t lead juveniles to commit crimes 
in the first place (mental illness, difficulties in school 
or work and . . . psychological im m aturity).” 
Steinberg, supra note 2, a t 478, 480.

While these problems affect children in adult 
prison regardless of their sentence, they take on a 
qualitative difference for those young people who 
have no hope of ever escaping the violence of their 
surroundings.



27

CONCLUSION
The characteristics of youth may always present 

a potential barrier to effective representation by 
counsel and contribute to unfair criminal justice out­
comes. Given the severity and finality of juvenile life 
without parole sentencing, the ways in which com­
promised attorney/child-client relationships can con­
tribute to unreliable sentencing outcomes supports 
the significant constitutional concerns raised by Pe­
titioners and their other supporting amici. This 
Court should therefore conclude th a t life without pa­
role sentences for offenders under age 18 at the time 
of their offense violates the Eighth Amendment.

Respectfully submitted,

J ohn Payton 
Director-Counsel 

Debo P. Adegbile 
Christina Swarns 
J in Hee Lee 
*Vincent Southerland 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200

* Counsel of Record

Charles J. Ogletree, J r . 
Robert J. Smith 
Charles Hamilton Houston



28

Institute for Race & 
J ustice

125 Mt. Auburn St., 3rd Floor 
Cambridge, MA 02138

J effrey L. F isher 
National Association of 

Criminal Defense Lawyers 
1660 L St., NW, 12th Floor 
W ashington, DC 20036

J uly 23,2009