Abstract

Excerpted From: Kristin Henning, Advancing Racial Justice Through the Restatement of Children and the Law: the Challenge, the Intent, and the Opportunity, 91 University of Chicago Law Review 345 (March 2024) (188 Footnotes) (Full Document)

The Restatement of Children and the Law explores the regulation of children in four categories: “Children in Families,” “Children in Schools,” “Children in the Justice System,” and “Children in Society.” Each category surveys the laws that facilitate or guard against the intrusion of the state into the lives of young people. Despite the state's ostensibly noble aims, racial bias often frustrates children's interactions with the law. Even state interventions that are meant to protect and aid children often reflect societal biases that disproportionately harm historically marginalized youth. When the state intervenes to protect children at risk of abuse from family members, bias frequently leads the state to remove Black and Indigenous youth from their homes at disproportionately high rates. When schools discipline youth to maintain order and mold them into responsible citizens, stereotypes of violence and myths of intellectual inferiority commonly influence how staff and teachers manage Black and Latino youth and contribute to overly punitive responses to their normal adolescent behaviors. When police intervene to keep youth and the public safe, they often increase surveillance in communities of color and routinely interpret innocent or ambiguous behaviors among Black and Latino youth as suspicious.

The disparate treatment of youth in each of these contexts--family, school, and community--increases the likelihood that youth of color will enter our nation's juvenile and criminal legal systems. Once in these systems, children of color are especially vulnerable to the coercive nature of police interrogation and are further disadvantaged in the adjudicative process when they are judged by traditional legal standards that fail to account for racial bias and the traumatic effects of policing in communities of color. Youth of color are also more likely to face harsh and punitive sentences that ignore the developmental science that mitigates adolescent culpability and urges a more rehabilitative response to adolescent offending. The American Law Institute's (ALI) release of its first Restatement of Children and the Law provides an important opportunity to assess the law's role in perpetuating these disparities and its power to dismantle them.

By its very name, a restatement is a recitation of existing law. As such, we cannot expect it to do the radical work of transforming oppressive systems that were designed from their outset to limit and control indigent families and people who look different from those in power. We also cannot expect it to eliminate generations of deeply entrenched biases that drive fears and cause people to criminalize youth of color. However, with some intention and nuance, a restatement can guide, shape, and even push the law toward racial justice by embracing those rules, judicial opinions, and legal standards within the common law that reduce unnecessary intrusions into the lives of children and offer the greatest procedural protections for all youth when intrusions are necessary.

The Restatement of Children and the Law includes black-letter rules, “comments” that describe the basis of the black letter, “illustrations” that provide concrete and real-world examples of the black-letter law, and “reporters' notes” that further elaborate on the rules by analyzing judicial authority and other material of interest. The Restatement also includes a series of “introductory notes”--at the beginning of the project and at the start of each section--that frame the overarching themes and principles undergirding the work. Even when the black-letter law does not explicitly address race, these additional elements of the Restatement allow the reporters to identify emerging trends; incorporate data and science on adolescent development, cognitive bias, and the traumatic effects of state interventions; and offer rationales for Restatement rules that might reduce racial inequities.

Racial inequities are addressed to varying degrees in at least three of the four sections of the Restatement of Children and the Law. This Essay evaluates whether and how well this Restatement advances racial justice and identifies additional opportunities for the ALI to address racial inequities now and in future iterations of the Restatement. The Essay begins in Part I with an acknowledgement of the challenges that any reporter will face in drafting a restatement to achieve radical reform. Part II recognizes that the reporters for the Restatement of Children and the Law were concerned about the harmful impacts of racial bias in the laws and systems that impact children and hoped their commentary and analysis would highlight and reduce those harms. Specifically, Part II identifies examples from “Children in Families,” “Children in Schools,” and “Children in the Justice System” to show how the reporters effectively addressed race in their comments, reporters' notes, and illustrations. Part III recognizes that our understanding of racial disparities and their root causes is ever evolving as new research emerges, and a small but growing number of judges across the country make decisions that acknowledge the importance of race in society and establish much-needed safeguards for people of color in the legal system. Focusing on selections from “Children in the Justice System,” Part III capitalizes on the opportunity created by this rapidly changing landscape to identify additional areas of the Restatement that can reduce harm and increase protections for youth of color. The Conclusion recognizes that as the reporters near the end of this work, there is still time to edit the reporters' notes and urges the ALI to create mechanisms to quickly update the Restatement without reconvening their advisers for a second Restatement of Children and the Law.

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The ALI launched the Restatement of Children and the Law to bring clarity and coherence to the increasingly complex and uncertain landscape of the juvenile court and the law related to children. As the Restatement surveys the courts' growing respect for the developmental plasticity and potential of children, it is crucial that the law afford all youth--regardless of race and class--the full benefits of the developmental research and enhanced procedural protections.

Despite the limitations of any project that seeks primarily to recite existing law, this Restatement has great potential to advance racial equity in the care and regulation of youth. The Restatement should tell a complete story, including information to help readers understand how youth of color are impacted by the law. By painstakingly locating and embracing judicial opinions that acknowledge the role of race in juvenile, criminal, and family law, and by incorporating relevant history, data, research, and analysis, the Restatement can serve a crucial role in educating readers on the sources of and remedy for racial inequities in the various legal systems that affect children.

The reporters have already given significant attention to the historical and contemporary racial disparities that persist in the regulation of children in their families, school, and the justice system. They have also highlighted the unique challenges and pressures youth of color face in contact with law enforcement. And yet, the growing body of research on adolescent development, racial trauma, stereotype threat, and cognitive biases in policing, along with new and emerging trends in the law, make it clear that a Restatement of Children and the Law can do even more to advance racial justice in this field. Even now, as the black letter and comments have been completed, the reporters can modify their notes to amplify their great work and provide even more race-related context and legal analysis to guide and even push the law toward equity.

Finally, as the reporters close out this inaugural edition of the Restatement of Children and the Law, the ALI should also be thinking about how the Restatement can be updated with greater ease in the future. Advances in research and changes to the law itself will not wait until it is convenient to draft the Restatement (Second) of Children and the Law. The reporters might consider producing a periodic supplement or releasing online updates to keep the Restatement current and comprehensive.

Blume Professor of Law, Director, Juvenile Justice Clinic & Initiative, Georgetown University Law Center.