It is no secret that when youth end up in court, they are often confused and uncertain about the purpose of the proceedings and what's expected of them when they leave. Why? In spite of the fact that judges and other court professionals try hard to make sure youth know what's expected of them, much of the language used in court is technical and difficult for nonlawyers to understand.
There is a problem with the use of this technical language in youth courts. The legalese that lawyers and judges use in court goes right over kids' heads. Does this complicated loquacious act leave them informed of the court process? Do they know what transpired in court? Do they leave the courtroom with a sense of what it is that they are expected to do once they walk out? Attorneys and judicial officers are hard pressed to assess the unique communication needs of each youth, given the typical time constraints of court and the expertise needed to "diagnose" the challenges a youth might be experiencing.
Recent Supreme Court decisions (Roper, Graham, and Miller) have taken significant steps forward by recognizing the fundamental differences between youthful offenders and adults. In these cases, the Supreme Court considers the unique status of children and their neurophysiological and psychological brain development. The brain development research underpinning these decisions has shown unequivocally that the brain is less developed during adolescence than was previously assumed and that the courts should take this development into account in trying juveniles. Organizations like the National Juvenile Defender Center have dedicated hundreds of continuing legal education hours to ensure that attorneys representing youth in offender proceedings are well trained and informed of the issues underlying the Supreme Court findings in these cases. The large and growing body of research identifying and assessing the health and developmental needs of youth in the juvenile-justice system has informed strategies for prevention and intervention at many stages of a juvenile proceeding. However, given all that we have discovered about adolescent brain development, there is little if any information available about how courts can improve communication with young people.
Any young person coming to juvenile court faces a daunting set of obstacles to understanding, making decisions, and acting on their rights and responsibilities in court. Age, experience, and varying degrees of child development will affect how any youth understands and processes information provided to him or her throughout the proceedings. Yet, youth appearing in juvenile court are more likely to have additional challenges understanding and acting on information in court. A study conducted by J.L. Shufelt and J. Cocozza, Youth with Mental Health Disorders in the Juvenile Justice System: Results from a Multi-State Prevalence Study (2006), found that 65 to 70 percent of youth involved with the juvenile-justice system have at least one diagnosable mental- health disorder and that over 60 percent of youth met criteria for three or more diagnoses. Research has found that the spoken language competency of youth in the juvenile-justice system falls in the bottom 1 percent of the population at large. See M. LaVigne & G.J. Van Rybroek, "Breakdown in the Language Zone: The Prevalence of Language Impairments Among Juvenile and Adult Offenders and Why It Matters," 15 U.C. Davis J. Juv. L. & Pol'y 37 (2011). The high prevalence of language and linguistic delays among youth involved in the juvenile-justice system, mental-health issues, trauma, and other adverse childhood experiences affect how youth hear, process, and retain information. The jargon, abstract language, and complex terminology frequently used in the courtroom can be impossible to navigate even for an adult with average intelligence and no mental-health issues or learning disabilities.
Why Language Matters
The traditional courtroom dynamics make it difficult for youth to speak up when they do not understand a question or term. Judges may expect and be accustomed to youth responding in agreement to questions like the following: Do you understand that you are waiving your rights? Do you understand that you must follow all the conditions of my order or face additional consequences? Have you had sufficient time to review this plea with your attorney? Youth may not know that answering "no" to a judge is an option.
Juvenile offenders are customarily required to comply with a lengthy list of rules imposed by a judge or juvenile probation counselor. Noncompliance with these rules represents a substantial part of juvenile offender dockets and may be punished by serious sanctions, including detention. Failures to comply, even those of a technical nature that result from lack of understanding, may be seen by a judge or probation counselor as willful failures and become aggravating factors at review or disposition hearings that push offenders deeper into the juvenile-justice or adult-court system.
TeamChild—a nonprofit law office based in Washington State—recognized this problem and developed interventions to help youth understand more of what goes on when they appear in court. With the support of Models for Change, a national juvenile-justice reform initiative funded by the John D. and Catherine T. MacArthur Foundation, TeamChild worked with the Washington State Juvenile Indigent Defense Action Network (JIDAN) to create a tool—the judicial colloquies —to train judges and other court practitioners on the use of developmentally appropriate language in court proceedings. We believe that this is a step toward ensuring that youth are meaningfully engaged and understand the court process.
The Washington JIDAN Colloquies Project Team identified two points in a juvenile-court proceeding where understanding the court's instructions is critical to a youth's success: conditions of release given at first appearance and conditions of supervision given at disposition (sentencing).
In Washington State, the conditions of release are explained to youth at the first appearance in court. This is a point in the proceedings where youth may be experiencing court for their first time. If youth do not understand their conditions of release, they may unintentionally violate them, which may result in detention time and harsher consequences if there is an adjudication requiring a disposition. Conditions of supervision are conveyed to youth at their disposition hearing. Violating conditions of supervision could result in up to 30 days in detention.
Making the Case
We took it as a given that judges and others in the courtroom had tried hard to explain to youth what they needed to know. What was going wrong? To help us figure that out, we assembled focus groups with youth—10 middle school students and 14 high school students became our advisers. Most of the youth in the groups had experience with the juvenile-justice system and therefore had previously been exposed to the language in the forms used in court. Despite this, the youth confirmed that in general, they didn't understand the language used in the pre-adjudication release and probation orders, which provides the framework for what judges say to the juvenile offenders.
In fact, we learned that some commonly used words and phrases, which we thought were perfectly clear, were confusing to the youth. For example, when we talked with the kids about "appearing in court as required," a number of them (even older high school students) thought we were referring to the way they were supposed to look when they came to court: hair combed, modestly dressed. We explained what it really meant, and finally one young man said, "Why don't you just say, 'You have to come to court when you're told to'?" That was a "Duh!" moment for the adults in the room.
The team identified two pilot sites to conduct surveys to determine the baseline understanding of youth attending these hearings. A researcher sat in on each hearing and logged in the conditions explained by the judge. Another researcher surveyed youth as they left the courtroom. The results of those interviews were startling. The youth were interviewed minutes after the hearings, and most of them were confused and mistaken about what the judge had stated and ordered just moments before. Overall, the youth surveyed recalled only a third of the conditions that were ordered. Seventeen-year-olds, even those who had previous juvenile-court experience, were only slightly more likely than 14-year-olds to understand the judge's orders. Most of the youth who were detained after the initial appearance did not know why they were not released.
Youth were also confused about the roles of others in the courtroom. For example, one quarter of the youth surveyed were not sure who the prosecutor was or believed that no prosecutor was present during the hearing even though a prosecutor was at every hearing. Thirty percent of the youth stated that they did not have an attorney represent them during the first appearance hearing. This was startling given that 100 percent of the youth interviewed had a court-appointed attorney present with them during the hearings.
The Colloquies Project Team also evaluated the written orders that were provided to youth at these proceedings. Standard court orders, which underscore a judge's oral communication in court, are laden with technical, legal terminology and concepts. For example, Washington's Order on Adjudication and Disposition (WPF JU 07.0800) is the template for juvenile plea forms and is commonly used by juvenile court judges as a guide in speaking to juveniles during plea hearings. It is written at a 12.9 grade reading level, using the Flesch-Kincaid reading grade level test, and has a very low readability score (i.e., difficult to read and best understood by university graduates) as measured on the Flesch Reading Ease test. Both metrics indicate the form's vocabulary is not only well above the average reading level of youth involved in the juvenile-justice system but also above the level of most adult defendants in the criminal justice system.
With the work and advice of experts in hand, both adult and juvenile, we drafted colloquies that we hoped would be helpful in bridging the gap between what lawyers and judges say in court and what kids need to better understand.
The pilot sites implemented and used the colloquies and the accompanying forms for three months before the team returned to repeat the youth survey and court observations to see if they had an impact on how much youth understood about their court proceedings. We were astonished by the remarkable increase in comprehension of the court directives and of the court proceedings overall. The team found that the colloquies, written at a sixth-grade level, remarkably improved the youths' understanding of the conditions set by the court. In one court, the youth interviewed reported understanding 90 percent of the conditions of release and probation ordered by the judge. This is a 128 percent change in the level of understanding compared with the level of understanding prior to the introduction of the colloquies.
The dramatic increase in understanding and retention suggests an improvement in the court's communication with youth. TeamChild found that overall these colloquies and accompanying documents can help court personnel be more effective in communicating with youth because the colloquies integrate current adolescent cognitive-development research relating to the ways in which children communicate and process critical information. Contact with the court system can be intimidating for adults and even more so for youth. Understanding the process and expectations can decrease the inherent anxiety associated with the risk of incarceration and other unknown consequences. Thanks to an increased level of understanding of the court process for youth and their families, youth may experience higher levels of compliance and lower rates of detention, which could ultimately prevent further penetration into the juvenile-court system. These outcomes not only include societal and familial benefits but may also result in significantly lower costs of adjudication.
To help judges, probation officers, attorneys, and others implement the colloquies—or tailor their own—we developed a new guide, called the "Washington Judicial Colloquies Project: A Guide for Improving Communication and Understanding in Court." We hope you will download it now and share it with your colleagues. For more context and explanation, I urge you to listen to a webinar I gave on the judicial colloquies for the National Juvenile Justice Network.
Keywords: litigation, children's rights, colloquies, language, juvenile-justice system, cognitive development, mental health, Flesch Reading Ease test