{"id":399,"date":"2011-06-17T23:40:34","date_gmt":"2011-06-17T23:40:34","guid":{"rendered":"http:\/\/www.patheos.com\/community\/diaryofawimpycatholic\/?p=399"},"modified":"2015-03-13T15:04:49","modified_gmt":"2015-03-13T21:04:49","slug":"sotomayor-think-like-kids-coppers","status":"publish","type":"post","link":"https:\/\/www.patheos.com\/blogs\/diaryofawimpycatholic\/2011\/06\/sotomayor-think-like-kids-coppers\/","title":{"rendered":"Sotomayor: Think Like Kids, Coppers"},"content":{"rendered":"\n<\/head>

Today in Slate<\/i> \u2014 which, as Elizabeth observed, must owe me money for all the clicks I\u2019ve gotten them \u2014 Dahlia Lithwick defends Supreme Court Justice Sonia Sotomayor\u2019s decision in JDB v. North Carolina.<\/i><\/strong><\/a> 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?<\/p>\n

Speaking for a five-justice majority, Sotomayor says yes, on the grounds that persons of diferent ages perceive situations very differently:<\/p>\n

Sotomayor, writing for the court\u2019s four liberals and Justice Anthony Kennedy, explained that the pressure of a custodial interrogation is \u201cso immense that it \u2018can induce a frighteningly high percentage of people to confess to crimes they never committed\u2019 \u201d and referred to studies showing that youngsters are particularly susceptible to such pressure. Therefore, she explains, \u201ca reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go\u201d and that\u2014empathy alert!\u2014\u201dsuch 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.\u201d
\nSotomayor points out that the law has no trouble setting distinct standards for children and adults based on the idea that events that \u201cwould leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.\u201d And she notes that \u201cthese observations restate what \u2018any parent knows\u2019\u2014indeed, what any person knows\u2014about children generally.\u201d<\/p>\n

Sotomayor doubles down on the need to show special solicitude to the suspect\u2019s age by mocking the absurdity of a judge trying her level best to imagine how \u201ca 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 \u2018do the right thing\u2019; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker.\u201d She concludes that empathy is hardly impossible to muster in these settings: \u201cJust 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. \u2026 The same is true of judges, including those whose childhoods have long since passed. \u2026 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\u2019s 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.\u201d<\/p><\/blockquote>\n

In his dissent, Justice Samuel Alito argues that, to expect a reasonable adult to think like a erasonable child is downright unreasonable:<\/p>\n

Justice Samuel Alito, dissenting on behalf of the court\u2019s 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\u2019s \u201cone-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic\u2014age\u2014that is thought to correlate with susceptibility to coercive pressures.\u201d He worries that until today a \u201ccore virtue\u201d of Miranda has been the clarity and precision of its guidance to \u201cpolice and courts.\u201d Alito also has \u201clittle doubt that today\u2019s decision will soon be cited by defendants\u2014and perhaps by prosecutors as well\u2014for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus.\u201d<\/p>\n

But what seems to bother Alito most is that the rule requiring that age be taken into account for purposes of a Miranda inquiry \u201cwill be hard for the police to follow, and it will be hard for judges to apply.\u201d Alito feels acutely for the \u201c60-year-old judge attempting to make a custody determination through the eyes of a hypothetical, average 15-year-old.\u201d He notes that \u201cforty-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.\u201d How, he wonders, can a 60-year-old judge do it? (And how, he might have asked\u2014and soon we may learn whether he did ask\u2014 can a judge know the effects of violent video games on a 15-year-old boy if he can\u2019t even remember being an average 15-year-old himself?) <\/p><\/blockquote>\n

It\u2019s a fascinating read. Speaking as a non-jurist, I\u2019m sure Alito\u2019s right that civil libertarians will try to force police to factor in other demographic qualites when judging a suspect\u2019s \u201csusceptibility to coercive pressure.\u201d Events might prove me wrong, but I trust good sense will protect this decision from any reduction to the absurd. I have equal faith that the headspace of a 13-year-old is much more accessible than Alito fears. <\/p>\n

For one year \u2014 and, I hasten to add, one year only \u2014 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\u2019s psychic armor is much thinner than the average adult\u2019s.<\/p>\n

I\u2019m 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\u2019s generators couldn\u2019t 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 \u2014 and often did \u2014 but at least he wouldn\u2019t fall behind.<\/p>\n

Foreign teachers\u2019 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<\/i> by candlelight. After a few minutes\u2019 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, \u201cBOO!\u201d<\/p>\n

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, \u201cFeng zi!\u201d which, as I understand it, can mean either \u201clunatic\u201d or \u201cidiot.\u201d Then the kids started laughing.<\/p>\n

So, to all the hardworking law-enforcement professionals in post-JDB America, a simple message: kids scare easy. <\/p>\n

Use that, don\u2019t abuse it. <\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":"

Today in Slate \u2014 which, as Elizabeth observed, must owe me money for all the clicks I\u2019ve gotten them \u2014 Dahlia Lithwick defends Supreme Court Justice Sonia Sotomayor\u2019s 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 […]<\/p>\n","protected":false},"author":192,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[139,219],"class_list":["post-399","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-law","tag-sonia-sotomayor"],"yoast_head":"\nSotomayor: Think Like Kids, Coppers<\/title>\n<meta name=\"description\" content=\"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\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.patheos.com\/blogs\/diaryofawimpycatholic\/2011\/06\/sotomayor-think-like-kids-coppers\/\" 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