There's a lot to be said for Justice Streeter's partial dissent in this case. It demonstrates insight, compassion and a keen sense of practical reality -- attributes that are wonderful to see in an opinion.
But I'm still not entirely persuaded.
Justice Streeter makes a doctrinal point as well as a policy point. As for the former, he says that there's not clear and convincing evidence here sufficient to rebut the presumption (established in Section 26(1) of the Penal Code) that the 13-year old child in this case was unaware of the "wrongfulness" of her conduct. Justice Streeter highlights the factual context of the case and the child's upbringing to say that she might well not have fully understood that what she was doing was wrong.
But I think that Justices Tucher and Pollack have the better of the argument on that point.
The facts are surely disturbing. You don't generally want to read that a 13-year old child has been charged with battery on a police officer (!) and resisting arrest. Are we really at such a stage in society? If so, how depressing is that?
The factual background about how we got to this state of events is equally -- if not more -- depressing.
A mother (A.R.) and daughter (J.E.) get into an argument. That happens sometimes (unfortunately). This time it's about cleaning the house. The argument escalates when A.R. (I'm going to a call her "Amy") pushes J.E. (I'll call her "Jenny"). Jenny significantly escalates the dispute further by hitting her mother a couple of times in the face, causing her nose to bleed.
That's never good. Nope. Not at all. When daughters are punching mothers in the face, we're not in a good place.
After hitting her mother, Jenny bolts from the family home, and Amy calls the police to find her. The police arrive and Amy fills out a citizen's arrest form for battery, which Jenny has indeed committed.
The police then spot Jenny down the street and go to her, telling her she's got to come with them back home so they can collectively "figure out how to handle" the situation. Jenny's uninterested, and tells the police "F*** you. I'm not going to go with you guys," and begins walking away. The police tell her to stop numerous times, but she keeps on walking, at which point the two police officers grab Jenny's arms (one on each side) and say "We're going to escort you home." Prompting Jenny to start (perhaps predictably) twisting and turning and flailing in an attempt to get away from them.
Now, if this were all that transpired, I'd be somewhat sympathetic to Justice Streeter's point. Yes, what has gone down thus far technically counts as "resisting" a police officer. But it's a kid. Doing what kids sometimes (unfortunately) do in the context of being restrained.
But it goes further than this.
The police then handcuff Jenny and start walking her back to the patrol car. Jenny then starts spitting at them, as well as kicks a different vehicle, causing a dent. Uncool. Then the officers place Jenny in the back seat of the vehicle, and while she's lying there, Jenny kicks one of the officers in the gut.
Very much uncool.
Fortunately, the officer saw the kick coming, so she was able to pull back sufficiently so the kick didn't hurt much. Still. Deliberately kicking a cop in the stomach. Not good.
That's the evidence for resisting and battery. Fairly extensive. We've still got to clearly prove that Jenny knew that what she did was "wrong" (to rebut the Section 26 presumption about minors of her age). But any rational adult viewing the situation would surely recognize that we're dealing with a non-trivial legal infraction.
There's other stuff in the opinion that may provide some insight into Jenny's upbringing and why she acted as she did. For example, Amy testified at trial that she never taught Jenny right from wrong and taught her to "stand up for herself" when confronted. And this was far from the first time that Jenny implemented her mother's alleged instructions. At school, Jenny had already been suspended twice for "being physically aggressive and making threats towards staff." She'd also been "disciplined on several occasions for unexcused absences, disrupting class, using profanity, and being under the influence of marijuana."
Remember: This is a 13-year old girl. And this is already her background.
For additional details about the mother-daughter relationship, one might also glean some knowledge from their interactions after the police officers drove Jenny back to her mother. The officers had Amy talk to Jenny while she was in the vehicle, presumably to "talk things through" and to see whether the relationship could be salvaged or whether they needed to temporarily remove Jenny from home and put her in juvenile hall. That question was sufficiently answered (in my mind) when the mother yelled at her daughter: "I hope you die. I hope they beat your ass in there. I hope they never let you out."
Yikes.
So putting Jenny back with mother seems like a definite no-go, so the officers ask Amy to step back from the vehicle so they can transport her to juvenile hall. At which point Amy tells the officer: "F*** you b****." Classy.
Okay, so I get it. Jenny's home life is not great. She's not in a good place. At all.
Was there clear and convincing evidence that Jenny knew that what she was doing was wrong? Justice Streeter doesn't think so. Not given Jenny's background. Nor given the overarching social milieu in which the relevant interactions transpired (as Justice Streeter notes, Jenny is African-American, and needless to say, minority-police interactions are a fairly not topic in the news these days).
But on this point, I think that the majority opinion has the better of the argument. Yes, lots of what Jenny did was surely instinctive. With respect to the initial flailing and resisting the police officers, I could see a definite argument that Jenny didn't necessarily know that was wrong -- particularly since you're allowed to walk away from the police in lots of different contexts.
But when Jenny (1) spit at the officers, (2) kicked an adjacent vehicle hard enough to make a dent, and then (3) kicked one of the officers in the stomach; well, at that point, I feel exceptionally confident that Jenny knew that what she was doing was wrong. Was definitely not allowed. Sufficient to rebut the presumption of Section 26 of the Penal Code.
Do I think that Jenny had impulse control problems? Of course I do. Like many 13-year olds. Times a thousand, perhaps. But I do think she knew it was "wrong" to spit at other people and to kick them in the stomach? Yes. Yes I do. Just like I think Jenny knew it was wrong to punch her mother in the nose multiple times. Notwithstanding Amy's instructions that Jenny should "stand up for herself," I think it's definitely the case that Jenny knew that it was "wrong" to engage in these events.
She still did it, of course. But she knew it was wrong. Even if she found it exceptionally difficult to control herself and her emotions in the moment.
And the fact that Jenny had already been suspended from school twice for "being physically aggressive and making threats towards staff" only further proves the point. She had done similar things in the past at school, and she received official adverse consequences for doing so. When you get suspended twice for threatening school officials, that's a lesson that it's not okay to do so. I'm fairly confident that lesson extends to "don't spit at police officers or try to kick them in the stomach." It's not a lesson that's easy for every 13-year old to fully internalize or unvaryingly follow. But the lesson was received and fully understood. Of that I'm confident.
So, in the end, while I understand Justice Streeter's contrary perspective, on these facts, I find the majority opinion more persuasive. The presumption established by Section 26 was adequately rebutted in this case.
(Parenthetically, I'm not even sure that I find the underlying presumption especially helpful or factually accurate. Section 26 derives from common law presumptions about "children" and their capacity for moral reasoning. We know a fair piece more about these things these days; though, admittedly, it's still a difficult area, particularly when attempting to draw a somewhat bright-line age-based rule. But I'm not sure that it's true that your average 13-year old doesn't understand whether the majority of common criminal acts are "wrong". Seems like, as a factual matter, most do. I randomly noticed a law review article back from 1979 that seemed to have a critical take on the Section 26(1) presumption, and also noticed that it appears to be written by this judge back when he was a law student. Interesting. Worth a thought, anyway.)
Justice Streeter's partial dissent also has a policy point, one that's definitely worth considering as well as (I'm sure) somewhat motivates his doctrinal and factual conclusions in the present case.
Justice Streeter argues that punishing J.E. overcriminalizes her conduct. That's good for no one, he argues. And, FWIW, there's a pretty good law review article on this point as well, if you're in the law-review-reading state of mind. (Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform (2013) 98 Cornell L.Rev. 383).
I get that point. Mind you, we're only "charging" J.E. with misdemeanors here. And I put "charging" in quotes because we don't imprison minors; we just subject them to juvenile justice proceedings. To take the present case, for example, based on what she did, J.E. was declared a ward of the court and placed on probation. That's an infringement on liberty, to be sure. But it's not like we're putting her in prison for hitting a cop (or her mother).
Still, Justice Streeter argues that this is too much. We're using criminal law enforcement to solve social problems. That's not right.
I get the argument. It's a powerful one.
I'm just not so sure how far it goes in the present case.
We're unfortunately faced with a choice. Yes, putting J.E. on probation and "into the system" is not perfect, and generates real downsides. But the alternative is what? Put her back home with her mother and hope for the best? Come on. Let's remind ourselves that the mother told her kid "I hope you die. I hope they beat your ass in there. I hope they never let you out." Whereas J.E. on the day in question repeatedly punched her mother in the face and on prior occasions, according to mother, "hit her with a hanger and threatened to kill her."
Not putting J.E. "into the system" seems like it's just flatly giving up on her. Saying, essentially: "We don't care what you and your mother do to each other, or what you become as a result. Deal with it. It's your problem, not ours."
It's not that I have illusions about the juvenile justice system, or think that juvenile hall is a wonderful summer camp experience (or that being on supervised probation uniformly works). It's just that at the present time, in contexts like these, it might well be the best of two very bad alternatives.
Would it be great if we could have a social worker visit this family twice a week, get the parent and child into therapy, teach everyone coping skills, etc.? Of course it would.
But that's not going to happen. Not absent state compulsion, anyway. Which is precisely what the juvenile justice system permits.
For some reason, mother and daughter think that things are "just fine" as they are. That getting suspended multiple times for threatening violence is par for the course for a 13-year old. That telling your child that you hope she dies is acceptable parenting. That punching your parent in the face is a permissible way to "stand up for yourself" as you've been taught.
Nope. Not for me, anyway.
I want the state to at least try. Try hard. The juvenile justice system is far from perfect. But in a context like this one, I want there to be a person -- a person in authority (e.g., a person in a robe) -- to permissibly intervene and to try to make things better. Not only for society's sake, but for the sake of both the child and her parent(s). We gotta do something here. We can't just let things go on as they are. The status quo isn't working. At all. Making J.E. a ward of the court and putting her on probation isn't awesome. But at least it has the chance of making things better. Putting her back in the house and hoping for the best won't work. We know that. So if we care -- and I do -- we've got to try something.
Even at the risk of "overcriminalizing" certain behavior. I'm exceptionally sympathetic to the view that we routinely overcriminalize. But in contexts like this one, we've got to do something. And while, yes, I'd like that something to be better than what we often do, I'm also not willing to let the perfect be the enemy of the good. Sometimes, as here, what we're going is simply better than the alternative. There's no better defense than that.
Which is why, although I'm sympathetic to everything that Justice Streeter says, at the end, I come out the other way. At least for J.E.
With the caveat that I have no illusions about this either. I know that the status quo won't work. But I also realize that the juvenile justice system probably won't work either. Most likely, we're not looking at a good outcome. That's extraordinarily unfortunate.
But at least we have to try. Something. Something better than the status quo.
