Today in Slate — which, as Elizabeth observed, must owe me money for all the clicks I’ve gotten them — Dahlia Lithwick defends Supreme Court Justice Sonia Sotomayor’s decision in JDB v. North Carolina. At issue in the case was whether a law-enforcement officer, having removed a 13-year-old from a classroom and escorted him to an interrogation room, is obliged to remind him that he has the right to terminate the interrogation, even when a reasonable adult would already know this?
Speaking for a five-justice majority, Sotomayor says yes, on the grounds that persons of diferent ages perceive situations very differently:
Sotomayor, writing for the court’s four liberals and Justice Anthony Kennedy, explained that the pressure of a custodial interrogation is “so immense that it ‘can induce a frighteningly high percentage of people to confess to crimes they never committed’ ” and referred to studies showing that youngsters are particularly susceptible to such pressure. Therefore, she explains, “a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go” and that—empathy alert!—”such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.”
Sotomayor points out that the law has no trouble setting distinct standards for children and adults based on the idea that events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” And she notes that “these observations restate what ‘any parent knows’—indeed, what any person knows—about children generally.”
Sotomayor doubles down on the need to show special solicitude to the suspect’s age by mocking the absurdity of a judge trying her level best to imagine how “a reasonable adult [might] understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to ‘do the right thing’; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker.” She concludes that empathy is hardly impossible to muster in these settings: “Just as police officers are competent to account for other objective circumstances that are a matter of degree such as the length of questioning or the number of officers present, so too are they competent to evaluate the effect of relative age. … The same is true of judges, including those whose childhoods have long since passed. … In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.”
In his dissent, Justice Samuel Alito argues that, to expect a reasonable adult to think like a erasonable child is downright unreasonable:
Justice Samuel Alito, dissenting on behalf of the court’s conservative wing, eschews the idea that judges and police officers could ever substitute their judgment for that of a child. He faults Sotomayor for turning Miranda’s “one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures.” He worries that until today a “core virtue” of Miranda has been the clarity and precision of its guidance to “police and courts.” Alito also has “little doubt that today’s decision will soon be cited by defendants—and perhaps by prosecutors as well—for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus.”
But what seems to bother Alito most is that the rule requiring that age be taken into account for purposes of a Miranda inquiry “will be hard for the police to follow, and it will be hard for judges to apply.” Alito feels acutely for the “60-year-old judge attempting to make a custody determination through the eyes of a hypothetical, average 15-year-old.” He notes that “forty-five years of personal experience and societal change separate this judge from the days when he or she was 15 years old. And this judge may or may not have been an average 15-year-old.” How, he wonders, can a 60-year-old judge do it? (And how, he might have asked—and soon we may learn whether he did ask— can a judge know the effects of violent video games on a 15-year-old boy if he can’t even remember being an average 15-year-old himself?)
For one year — and, I hasten to add, one year only — I taught ESOL at a middle school in Mainland China. One of my classes corresponded to seventh grade, in American usage; the youngest of my students was 12. Before I learned to order a plate of kung pao chicken (a regional speciality, which tastes even better in its native land than it does here), I learned that cruel banter does not hold the interest of 12-year-olds, as it might in American college seniors. Instead, it crushes their self-esteem, and turns them mute for the better part of a semester. It does not take a Jean Piaget to know that the average kid’s psychic armor is much thinner than the average adult’s.
I’m sorry to say, it took me more than one mistake to internalize this lesson. Students at Chinese boarding schools spend evenings in prep, or study hall. In those days, the city’s generators couldn’t supply the entire city with electricity at once, with the result that the city experienced a rolling blackout: at certain odd hours of the day, the power would go off. If a blackour happened to fall during prep, each child would remove a small hallogen lamp from his desk and study by its purple, rather poor light. He might ruin his eyes — and often did — but at least he wouldn’t fall behind.
Foreign teachers’ apartments were not spared the effects of these blackouts. One evening, when the lights went off, I decided that strolling the school grounds by moonlight would be more fun than reading Pickwick Papers by candlelight. After a few minutes’ walking, some impulse drew me inside the school, where shafts of eerie purple light played on the walls. Driven by what I can only describe as expatriate fatigue, I stuck my head in the door of the classrooms, and yelled, “BOO!”
I was expecting giggles; I got 40 voices screaming in what East Asian philosophers like to call harmony. There must have been more terror in that one classroom than the Red Guards could have struck in ten years. The screaming went on for at least 90 seconds; by the time the prep teacher quieted everyone down, my own nerves were all but shot. Having peeled her charges off the ceiling one by one, the teacher turned to me, shaking with fury. Pointing a finger as straight as a carbine, she spat out, “Feng zi!” which, as I understand it, can mean either “lunatic” or “idiot.” Then the kids started laughing.
So, to all the hardworking law-enforcement professionals in post-JDB America, a simple message: kids scare easy.
Use that, don’t abuse it.