Jane Spinak on the Campbell Conversations
Grant Reeher: Welcome to the Campbell Conversations, I'm Grant Reeher. My guest today is Jane Spinak. She's the Aranow Clinical Professor of Law Emerita at Columbia Law School, where she directed clinical programs and family regulation. She's with me today because she has a new book out titled, “The End of Family Court: How Abolishing the Court Brings Justice to Children and Families”. Among professor Spinak’s many accomplishments and awards, she served as the attorney in charge of the Juvenile Rights Division of the Legal Aid Society of New York and was named a Human Rights Hero by the American Bar Association's Human Rights Journal. Professor Spinak, welcome to the program.
Jane Spinak: Thanks so much, Grant.
GR: So, let me just start with a real basic question for you about this book. Why did you want to write a book about this topic at this particular time?
JS: Well, I've been practicing in and teaching in the Family Court for almost 45 years. I began my practice there representing children and then when I began to teach students about representation, we represented children and parents and later adolescents and young adults. So I've been very involved in the practice in the court for a very long time. I've also been very involved in reform efforts around the court, both locally in New York City, more broadly in New York State and then nationally as well. And when I began this book, I really thought, okay, the previous reform efforts haven't been so good, partially because they seem to have focused on more resources and more judges and don't ask harder questions about the structure of the court. So I was prepared to ask those questions and to see if the court could be a better version of itself. And unfortunately, as I dove into the history of the court and the challenges and the reports about the court throughout the 20th century, I came to realize that it couldn't be made into a better version of itself. And we needed to think very differently about whether we needed this court at all.
GR: Well, I want to get into some of those things a little bit later in our conversation. But just to sort of do some other introductory types of things, I think it's important probably for our listeners to get a little background on Family Court itself. I mean, let me just start with this, what kinds of cases are typically handled there?
JS: Well, it depends a lot on the state. I would say for New York listeners, it is everything from when the state intervenes in the juvenile legal system, status offenses, when children are brought to court for misbehaving but not breaking the law, what's called child protection or child welfare and I often now call it family regulation or family policing. Those are the areas that my book is about, but family Court in New York also deals with custody and visitation, paternity and support. The one area of family that it does not deal with is matrimonial law, that is divorce. And that's mostly because divorce lawyers wanted to stay in Supreme Court and not go to Family Court, which is a pretty chaotic place compared to the Supreme Court in New York.
GR: So now tell us a little bit, and briefly if you could because I know we could talk for the whole time about this, but the history of family court, particularly in New York State, I mean, take us, you know, kind of maybe from the beginning of the 20th century up to the present. What are the main lines of trajectory there?
JS: Sure. So I think it's important to understand that the family court, what I call the family court, was started originally as a juvenile court. And in different places around the country they still call it juvenile court, children's court, domestic relations court. For me, it was easiest to say family court, of course, because in part, I practice in family court in New York. It was started for two reasons. In 1899, and the first reason as a reason we should be holding on to, which is that children should be treated differently than adults when they come into court. And this was the idea behind the juvenile court that rather than children being taken into criminal proceedings, there would be a benevolent judge and a probation officer or a social worker who would try to figure out why this young person was getting into trouble and do something about it. And originally it was supposed to be therapeutic but unfortunately, over both near the beginning and over time, it really became a punishment system. It was not intended to be, but it devolved into that, certainly. But the other reason the court was founded was because there was such an influx of immigrants from southern and eastern Europe at the end of the 19th century. And these families were often impoverished. They were flooding into the major cities in the country. They were very different than the earlier white settlers in culture, in language, in clothing, and even in skin tones. So there was a racialized element of the difference between those immigrants and earlier immigrants. And they were also almost overwhelmingly poor. And so the idea of the juvenile court founders was to turn these immigrants into proper Americans, Americans who looked a lot like the settlers who had come generations earlier. And those were the two main goals of the court. And even our Supreme Court today says we should treat children differently. And I agree with that. But we don't need a separate court to do that. We really need a court of law that takes into consideration that children are different and treats them differently. But I'll explain more about why overall the process of the court doesn't work.
GR: You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher, and I'm speaking with Jane Spinak. She's an emeritus professor at Columbia Law School and the author of, “The End of Family Court: How Abolishing the Court Brings Justice to Children and Families”. So we will get to those criticisms that you have, but laying some of the other ground work out, one of the questions that immediately came to my mind is, are family courts now today, do they operate similarly across the state? Or are there important differences based on district or region?
JS: Well, I would say they operate differently around the issue of how much due process is there. So this is true in the whole country. There are jurisdictions which are much more focused on providing counsel, providing due process, making sure everybody involved has some element of due process. And this is true upstate as well. Some counties have much more access to attorneys and to services. One of the real strains I would say in the upstate is the lack of public transportation, the scarcity of services that families may need. And so that has an impact on, it may not have so much of an impact on what the court orders, but it definitely has an impact on what families actually are able to get. Because, you know, the service that the judge may order for, let's say mental health treatment, may be an hour and a half away. So the ability to secure that service is really doubtful, especially if, for example, you don't have a car or you can't afford the gas.
GR: So let's now get into the meat of the book here, what are the biggest problems with family court? You've given us some hints along the way, but what are your main criticisms of how this court operates?
JS: Well, there are a couple of things. It was started as a so-called social court where there was no due process at all. And a child could kind of be brought into this court just because they were misbehaving and some “reputable” citizens dragged him into court and said, you know, this kid needs some help or this kid needs to be controlled. So it was that unstructured for a long time. And the idea was that the judge and later the probation officer or the psychiatrist or whomever the court employed, were going to fix the child and later, their families. And the court in the very beginning, the court actually had some services directly under the court's control. But for the most part, what these young people and their families needed was not available through the court. And the court was in a position of trying to solve the problems of families without the right tools. One person said it's like using a spade instead of a scalpel to try to fix something. And that came out, and soon after the court was started even supporters of the court began to say, well, you know what families need? They need good schools and good housing and good health care and parks and recreation and services in their communities. And if they had that, they would be much less likely to be brought to court. We're still saying that today and we're still bringing people to court as if it is their responsibility that there aren't good schools so their child is unhappy in school and maybe becomes truant, or their problem that they can't access the mental health treatment or decent housing. But these things brought families into court at the beginning of the 20th century and are still bringing families into court as if it's their individual responsibility, as opposed to society's responsibility for making sure most families have the basic needs. So it's the wrong forum to provide to families what they need, and instead they get blamed for not somehow managing to care for their children in the way they would like to.
GR: You're listening to the Campbell Conversations on WRVO Public Media. I'm Grant Reeher and I'm talking with Jane Spinak. She's the Aranow Clinical Professor of Law Emerita at Columbia Law School and the author of, “The End of Family Court: How Abolishing the Court Brings Justice to Children and Families” and we've been discussing her book. So, Professor Spinak, you were talking about kind of the mismatch and the harms that come out of this. But obviously, you know, one thing that comes to mind is, well, if we don't have this system, what are some of the harms that children might be exposed to if we just treat them like adults when they do engage in activity that is criminal or concerning in other ways? So, help me sort of think through that and feel better about that.
JS: Sure. So let me talk about both the juvenile legal system and the child welfare system, because they're slightly different. So we have, for example, now in New York, the minimum age of legal responsibility for a young person is 12, that was changed pretty recently. In many states there is no lower limit. So you could bring seven and eight year-olds, and you used to be able to do that in New York, into court for doing something that technically was a crime like shoplifting or getting into a fight that harmed someone. But they're seven and eight or ten and their ability to understand and to be punished, actually punished for an action that they don't really understand nor do they really understand the process that they're going through. That's why the international standard for juvenile responsibility is 14, because the belief is if a young person gets into trouble or breaks the law below that age, they don't have the understanding. And so what they need is community-based help and their family needs community-based help to figure out how to get this young person back in the right direction. In the child welfare, what I now call family regulation area, of course people are worried, are children going to be harmed? Children are being abused and neglected. What many people don't understand is the vast majority, as much as 75 to 80% of the cases that are labeled neglect and abuse are neglect and are poverty. They are not actually harm being done to the child by their parents, which is why so many cases never even reach the family court because they're screened out. Most of those families are living in poverty, are disproportionately families of color who are dealing with inequality and don't have the resources to properly care for their children in the way they want, but they're not harming their children. And our system of mandated reporting requires almost anybody who comes into contact with a child, a child is dirty – uh oh. The child comes to school and is hungry, uh oh, we better call up CPS instead of thinking, well, why is this child hungry and can we do anything about that before we call? And those kinds of cases get called in but the families don't necessarily get the services. They get investigated and then there's a determination for some of them that they'll go on to the court. But for some of them, they neither get the services, nor do they, but they're investigated, so it's very disruptive. And the key issue there is that it makes parents afraid to seek help in their schools, in their hospitals, with their doctor, with the child care person, because they're afraid in communities in which there's a very high percentage of children being reported, then parents become afraid to reach out for help. And so those small number of cases that need a legal determination because a child really is in danger, really in harm's way or has been harmed physically or sexually or through something like extreme neglect, like starvation, of course we need a court process for that. But we've set up this court that thinks it can solve problems. So we keep sending all the rest of the cases toward that court, even if they don't all make it there and end up not supporting the families in the way that they need.
GR: And I imagine what went through my head is when you were describing that, as those populations also have less and less trust in the government generally, then that's only going to amplify their concern about becoming reported or seeking help. So let me pose this counterfactual to you, let's say a 12 year old does go out and mug somebody and hurts them, in your alternative system that you would like to see, they would go into the regular court system, correct? But that court system then would treat them differently because they are only 12, is that right?
JS: You do have that right.
JS: And what it would look like, there are examples of youth parts in criminal courts which do treat children differently. They are given more due process, their needs as children are taken into account. For example, what a young person needs when they get arrested is to actually understand their Miranda rights and be able to say, I need a lawyer before I ever talk to you. And that's really hard for a child, and that's hard for a parent dealing with that child. So there needs to be a system where that child has someone immediately saying, even if it's a law enforcement agent, don't talk to me, we're going to go into the precinct I'm going to call your parents, I'm going to call a lawyer, don't talk to me because I understand you're 11 years old and couldn't possibly know what the right thing to do is. So that's an example. You don't need a whole court for that, especially because unlike what people hear on the media, the number of youth crimes has dropped drastically over the last decade, as has incarceration of young people. Many, many fewer young people are being incarcerated and many, many fewer are being arrested. Because even though there are obviously crimes and everybody gets upset about them as they should, it's not a trend. The trend is continuing to decrease the amount of crime by young people.
GR: If you've just joined us, you're listening to the Campbell Conversations on WRVO Public Media and my guest is the former Columbia Law School professor, Jane Spinak. So when you were just talking, my mind immediately went to, maybe it doesn't apply and you can tell me why, but the Central Park jogger case. There was a documentary about these teenagers that were wrongly convicted for that. Ultimately, the actual perpetrator was discovered. Is that an instance where, now they were older, but they were kind of given the regular police treatment of, you know, trying to get one to roll over on the other and they manufactured confessions, essentially, as I understand it. If we'd had a different sense because of their age, might that have gone down differently? I mean, that police technique, frankly, is disturbing at any age.
JS: At any age, absolutely.
GR: Yeah, could you just comment on that?
JS: Well, I think that, you know, the idea of due process for young people, the Supreme Court has said it's fundamental fairness, what's required for fundamental fairness for a young person. And it has to be different then for an adult. What I described earlier about having a lawyer and parents there is crucial because, you know, both because the parents need to understand from the lawyer what situation their child is in and why it's so important to have a lawyer there. Because often parents believe, oh, if you just tell the truth, it'll go away. But of course it doesn't. And you would never be able in that kind of system, the kind of system I'm talking about, you couldn't coerce children for hours on end into giving false confessions, it simply would not be allowed. And of course there are jurisdictions that don't do that. But we know from too many examples around the country that too often it does happen. Maybe it's not a false confession, but maybe it's a confession that had a young person understood with a lawyer by their side what the consequences of talking was, maybe they would have waited and been able to be advised, just like we all want to be advised. And so that's just one example in that system that would be different.
GR: And where in your idea of a better system, what would the cutoff be? I mean, at some level, any age is arbitrary, but you have to choose one. If you're going to say, okay, you go into this path versus you go into that path is 18, is it 16? What is it?
JS: Well I think what it is, I think realistically the international standard of 14 for juvenile responsibility is the right age. Because 14 you have some capacity to understand when someone says to you, well just tell me all about it to say no. And you have the capacity to understand with a good lawyer what you've done and what you're getting yourself into and what the consequences are. Below that age, we're pretty clear from the science that you don't understand. Yes, of course you understand you did something wrong, but you don't understand the consequences. And so what we know now from brain science and developmental sciences between 14 and 24, you're continuing, your brain is continuing to grow and to understand and risk and to understand how to push back against peer pressure. I understand that those juveniles and young adults may need to be in a court, but they need special protections in that court.
GR: So we've only got about a minute left and this is going to be now the lightning round for you. I want to squeeze two questions in in one minute. So this is going to be sort of like very short, very short answer. But I do want to ask these…
GR: What do you think is likely going to be the future of family court in New York State? Is it going to sort of trundle along or are we going to make big changes, yes or no?
JS: Yes, we are going to make big changes because impacted families, parents and young people are on the on the line forcing legislators to think about what's happened to them.
GR: Final question, if you had to give a grade, letter grade, you were a professor, a letter grade without grade inflation to how in New York State, the poor get legal representation. What would that grade be?
JS: Let's say a C-minus. Because I know in other parts of the country it's a D and an F. And New York does have some representation that is pretty good.
GR: All right. Well, take a C-minus as a happy ending. That was Jane Spinak and again, her new book is titled, “The End of Family Court: How Abolishing the Court Brings Justice to Children and Families”, It's a very thoughtful critique and I recommend taking a look at it. Professor Spinak, thanks so much for taking the time to talk with me.
JS: Thank you, Grant. I appreciate the time.
GR: You've been listening to the Campbell Conversations on WRVO Public Media, conversations in the public interest.