A Minor Revolution: How Prioritizing Kids Benefits Us All

May 25, 2023

Information

YSCC Grand Rounds May 23, 2023

Adam Benforado, JD, Professor of Law, Drexel University

ID9961

To CiteDCA Citation Guide

00:00Good afternoon,
00:01everyone and welcome to Grand Rounds.
00:03Just a quick reminder about next
00:05week we will have our second in our
00:08trainee series of posted grand Rounds
00:10with our psychology Fellows and welcoming Dr.
00:13Thema Bryant virtually to the
00:14Child Study Center.
00:15Now it will be a fully virtual event,
00:17but anyone that wishes to come to
00:19the Cohen to be in community here
00:21listening to Doctor Bryant and welcome
00:22you to join us here in the Cohen or
00:24you can join us remotely via Zoom.
00:28And now with no further ado,
00:29I'd like.
00:30So welcome,
00:30Doctor Jim Lichtman to welcome and
00:32introduce our speaker for today.
00:38Well, I'll be fairly brief and
00:40thank you for the opportunity to
00:42make an introduction. My goodness,
00:44I can tell all sorts of stories,
00:46but I'm going to wait until the end of
00:48my introduction before I actually do.
00:50But he's going to be teaching us about
00:53the book that he recently has authored.
00:55And we need to learn more from him
00:57in terms of how best to interact
00:59with policymakers and politicians to
01:00really make a difference in this world
01:02with regard to the needs of children,
01:05which are immense and it's only
01:08sadly getting worse.
01:10But I'm really looking forward to your
01:14presentation and what more can I say
01:16except that this is a a good book to
01:18read and he there's another one that
01:20he published a couple of years ago.
01:22That I would also say I just ordered
01:24it from Amazon and hopefully it'll
01:26be arriving before too long.
01:28But let's see if we can try and
01:31make a child first mindset.
01:34And I think it looks like a number
01:36of people are joining us and
01:40it's wonderful that you're here,
01:41but we need to find out how best to
01:44interconnect with government officials
01:46and policymakers and to try and make
01:49a real difference with regard to.
01:50A sad reality for so many children
01:52that are faced in this world with
01:54the trauma and the rest of it.
01:56And with that, what I'm going to do is
01:59just say a few things that were passed
02:02on to me by my daughterinlaw and my son.
02:05And it turns out that Adam is a graduate
02:08of Yale College and he went to Davenport.
02:12And actually one of the individuals
02:13that was in his class was Catherine.
02:17And she is my dear, dear, dear.
02:19Daughterinlaw. And here are some fun facts.
02:25He's a talented musician.
02:27He sings and he plays guitar on the piano.
02:29So we're going to be looking forward
02:31to that later this afternoon.
02:33And he has two wonderful children
02:35and he actually is apparently
02:36the coach for the basketball
02:38team that your daughter is on.
02:40So that's pretty amazing.
02:43But I guess I'm really grateful
02:45that he's such good friends and.
02:47Makes me think of my journeys down to Philly,
02:49and I always have a great time down there,
02:52so the floor is yours,
02:55but the book is out there.
03:08So thank you all. Thank you to everyone
03:12at the Yale Child Study Center for
03:14inviting me here today. Thank you,
03:17Jim, for the wonderful introduction
03:19and for all of you who are attending.
03:23It feels, as Jim suggests,
03:26particularly appropriate to be coming back to
03:29Yale to talk about my work on youth rights,
03:33because after all, this was one
03:36of the spots where I was a youth.
03:39And I have the embarrassing
03:41photo evidence to prove it.
03:44So here is a picture of me in
03:48the Davenport Courtyard in 1998.
03:53And in truth,
03:54every photograph of me from this
03:57period is cringeworthy in its own way.
04:01But I selected this one because
04:03it's so perfectly captures that
04:06late 1990s fashion zeitgeist.
04:08And here's The funny thing,
04:12when I was 18 and 19 years old,
04:15when I wasn't busy making bold.
04:18Sartorial choices.
04:19I was actually thinking a
04:22lot about children's rights.
04:26Indeed,
04:27I'd always been thinking
04:29about injustice toward kids,
04:32So I thought it was wrong.
04:34When I found out that my best
04:36friend's dad spanked him,
04:38I didn't understand why I wasn't allowed
04:41to vote when I was 12 years old.
04:44I was outraged at the indifference.
04:47Of school administrators at my
04:49junior high school to bullying,
04:52and I bristled at being censored as
04:55a high schooler when I got to Yale.
04:59I was awestruck by the impact
05:01of wealth on our socalled
05:03educational meritocracy meeting.
05:06People who were 4th generation Yaley's
05:10people's people whose father had donated
05:13$1,000,000 before they transferred in.
05:16People who are not only
05:19going to graduate debt free,
05:21but who really had no pressure to
05:23get a job after finishing undergrad.
05:25And I think it was this concern with
05:29unfairness that really propelled me
05:31to law school and shape the questions
05:34that I was drawn to as a law professor.
05:37And certainly that has,
05:39I think,
05:40culminated in this new book project,
05:43A Minor Revolution.
05:44That's the focus of my talk today.
05:47So what is our plan for this early afternoon?
05:52What's kind of our road map?
05:56Not advancing.
05:59So first,
06:00we're going to look at how children are
06:03doing in contemporary America with the
06:05aid of a little historical comparison.
06:08A spoiler they're not doing great.
06:12Second,
06:12we're going to turn to how our
06:16failure to attend to children's
06:18interest throughout their development.
06:20Leads to harm and how Ensuring a core
06:24set of rights could greatly improve
06:26their lives to the benefit of all of us.
06:30Third, we're going to consider the ultimate
06:33source of our failure to protect, invest in,
06:36and empower young people before finally,
06:39I'm going to offer a bit of my grand,
06:42some might say radical,
06:44but I don't actually think it's.
06:46Radical.
06:46I think it's grand vision of
06:49how we can write this ship.
06:52So to start,
06:53I want to take us back to this
06:56really remarkable moment at
06:58the turn of the 20th century.
07:01And I want to begin with a story,
07:03a direct account of Judge Ben Lindsay,
07:05who in 1904 had just been appointed to the
07:11newly created juvenile court in Denver.
07:13And so this is Judge Lindsay writing
07:18directly in the first person one day
07:21in a busy civil session of the court
07:24trying a will case involving $2,000,000
07:27very large amount of the time.
07:30The courtroom door opened,
07:31and a boy poked in his tussled
07:34head and freckled face.
07:35The bailiff shoot him out.
07:38But he returned,
07:39not with any thought of disobedience,
07:42but because he had learned
07:43that he had rights there.
07:45I ordered a recess of three minutes,
07:47to the disgust I fear of one or
07:49two of the distinguished council,
07:52and the boy came to the bench,
07:54unafraid and smiling now.
07:55Where he was crying with fear The
07:57first time he was brought there,
07:59three months before,
08:01he was what is commonly called
08:04a street boy or newsboy.
08:06He said that he was having trouble,
08:10that for years a policeman on a beat had
08:12let him sell papers on a certain corner,
08:14and now,
08:15as he expressed it,
08:16a fly guy had taken his place
08:19and cuz he was a new cop,
08:20he thought he owned the town
08:22and it therefore ordered him
08:24off the favorite corner.
08:25And he was losing $0.50 a day.
08:28So what did Judge Lindsay do?
08:32He wrote the boy an injunction
08:34to deliver to the officer.
08:36As Lindsay described,
08:37the boy had a case to me as
08:41important as the one before the bar,
08:44involving the millions that a dead
08:46man had left behind for surviving
08:48selfishness and cunning craft
08:50to battle for in the courts.
08:52I do not apologize,
08:54but I rejoice that I thought the
08:57boy and his little case the most
09:00important thing before the court.
09:03It was a stunning interaction
09:05as the newspaper.
09:07This particular newspaper editorial
09:09proclaimed a glimpse of our
09:12brighter future in which quote a
09:14boy of the streets in his rags
09:16has as good footing as the cause
09:19of men clothes in broad cloth.
09:23But this wasn't a singular,
09:25aberrant interaction.
09:26At the dawn of the 20th century,
09:29there was a stirring of children's
09:32rights activism all across the country
09:34to address the plight of factory kids,
09:37starved and battered waves,
09:39poisoned infants,
09:40illiterate girls and doomed boys
09:43destined for arrest and prosecution.
09:46The child savers,
09:47as these reformers were sometimes known,
09:50gave us child labor, labor laws,
09:53and playgrounds.
09:54They helped Marshall resources
09:56to protect children from abuse
09:59and neglect by their parents,
10:01bolstered public education,
10:02and pushed for basic health measures.
10:05Grasping that kids were less culpable
10:08and more amenable to change than adults,
10:11they advocated for the creation of
10:13a separate juvenile justice system.
10:15Based on rehabilitation, not punishment.
10:18And they pushed for regulations to
10:20prevent companies from marketing
10:22products that imperil children's lives.
10:25Across fields, they offered a new vision.
10:29Many societal problems originated
10:31in the poor treatment of children.
10:34But with proper interventions,
10:36young people once destined for lives
10:40of desperation could be steered to success.
10:43So I actually opened the book,
10:46looking at a single newspaper from a
10:50single day in 1906 and marveling at all
10:54of the stories about children's rights
10:56and making the world better for children.
10:58Contained in these four very brief pages,
11:03these progressives were advancing an
11:05argument that the project of raising the next
11:08generation of Americans was a collective 1.
11:11Society bore the ultimate cost
11:13of childhood poverty, abuse,
11:16illiteracy and poor health,
11:18and society therefore had a right
11:21and responsibility to intervene
11:23to better the lives of youth.
11:25And these progressives made
11:27remarkable headway.
11:28By 1912, President William Taft have had
11:34been convinced to create a federal agency.
11:37The Children's Bureau,
11:38the first of its kind in the world,
11:40focused solely on improving the
11:43welfare of all young Americans.
11:45As the Bureau's first director explained,
11:47the core mission was, quote,
11:49to serve all children,
11:51to try to work out standards
11:53of care and protection,
11:55which I'll give to every child.
11:57Fair chance in this world.
12:00At this moment, this remarkable moment,
12:03true advancement seemed possible.
12:06Inevitable, even.
12:09But over the course of the century,
12:12the momentum was lost.
12:14What the these child savers had
12:17provided to us was a promising start,
12:20but it was a flawed one.
12:22Responding to the horrors of
12:24the Industrial Revolution,
12:26the institutions they created,
12:29we're focused on protecting kids from harm,
12:32not with respecting their
12:34autonomy and empowering them.
12:36And that drove reformers in the
12:381960s and 1970s to decide that the
12:41forebears work needed to be raised,
12:44not redeemed.
12:45And over time,
12:47Americans became increasingly convinced
12:49that the project of raising children,
12:52of supporting their proper development,
12:55was the sole responsibility of
12:58parents and not government.
13:02This was a broad cultural shift.
13:04But one that got critical support from
13:07elite institutions like the Supreme Court,
13:09which produced a series of opinions
13:12during this period articulating
13:14parents fundamental rights to control
13:17the upbringing of their children,
13:19to direct their destinies in
13:22matters of education, medical care,
13:25family relationships and everything else.
13:27So in 1924, we have, for example,
13:31Columbia University's president.
13:33Railing against newly introduced child
13:36labor legislation that he warned,
13:38quote,
13:38would empower Congress to invade
13:41the rights of parents and to
13:44shape family life to its liking.
13:46In 1925, in Pierce versus Society of Sisters,
13:50we have the Supreme Court striking
13:53down a mandatory public education
13:55law on the grounds that it quote.
13:57Unreasonably interferes with the
14:00liberty of parents and guardians to
14:03direct the upbringing and education
14:07of children under their control.
14:10It was this vision that won the day,
14:13and it helps, I think,
14:14explain how the United States is the
14:17only UN member state in the world
14:19not to ratify the UN Convention
14:22on the Rights of the Child,
14:24a truly groundbreaking treaty.
14:27Introduced in 1989,
14:28a lot of the resistance for the
14:31last 30 years in this country is
14:33because of fears of how protecting,
14:36investing in and empowering kids will
14:39somehow infringe on parents autonomy.
14:42That's front and center in
14:45the Texas GOP platform from
14:482016, which states quote.
14:50Local, state or federal laws,
14:53regulations or policies that limit parental
14:55rights in the rearing of both biological
14:58and adopted children shall not be enacted.
15:01Parents have the God-given right and
15:04responsibility to direct and guide
15:07their children's moral education.
15:09Now, some of you may recognize that
15:13photograph in the upper right hand corner.
15:14That's just from a couple months ago,
15:19March 24th.
15:20When the US House of Representatives
15:22passed the Parents Bill of Rights Act,
15:25designed to enhance the ability of parents
15:29to monitor what happens in schools.
15:32So what is all this mean for kids?
15:36Well, despite the miraculous strides
15:39we've made on so many fronts,
15:43mastering flight, creating computers,
15:46mapping the human genome.
15:48Harnessing nuclear power.
15:50Over the last 100 years,
15:52our efforts to improve the lives of
15:55children have slowed to a trudge.
15:58To be sure,
15:59today far fewer American kids die
16:02of malnutrition or lose fingers in
16:05factory accidents than in 1900.
16:08But on nearly every axis of child wellbeing,
16:12we have simply not made the
16:15expected progress.
16:16Our capacity to better kids lives
16:20would amaze the child savers,
16:22but we have failed to leverage
16:24this incredible wealth,
16:26knowledge and technology.
16:28In a country whose Fortune 500
16:32corporations generated $16.1
16:34trillion in revenue last year,
16:38one in six kids today grows up in poverty.
16:42In our largest cities,
16:44one in seven has experienced
16:47eviction by the age of 15,
16:49and on any given night,
16:50one in five people experiencing
16:52homelessness is a child in the
16:55country with the most billionaires,
16:58724.
16:58One in eight households experiences
17:01food insecurity each year,
17:04a number that skyrocketed to 1:00
17:06and 3:00 during the COVID pandemic
17:10100 years on. We have turned
17:13our back on Judge Lindsay,
17:15reverting to a justice system that
17:17regularly treats kids as adults when
17:20it comes to policing and punishment,
17:22but not when it comes to basic rights.
17:26It is 2023, and poor boys on city
17:30street corners are still being
17:32harassed by police officers since 2002.
17:35One in five pedestrians stopped by New
17:38York City police for 18 or younger.
17:50American children may no longer
17:53be rolling cigarettes in dimly
17:55lit New York City factories,
17:58but many still labor under appalling
18:02conditions for our convenience.
18:04You would think that the hard
18:07fought reforms that folks like
18:09Jane Addams pushed for 100 years
18:12ago we're now set in stone.
18:14But it is not so.
18:16Look at these headlines related to
18:18child labor labor in the United
18:20States from just this month.
18:22I didn't have to go back for there
18:24were there were dozens of them.
18:26Once in the vanguard,
18:27we have fallen behind other
18:29advanced nations on investing
18:31in and safeguarding children.
18:34At every stage of development.
18:36Children in the US are now more likely
18:38to drop out of high school than
18:41kids in other advanced democracies.
18:42An American kid today is 70.
18:46Percent more likely to die before
18:48adulthood than a child living
18:50in one of our peer nations.
18:52That wasn't true 50 years ago.
18:55In the 1960s,
18:56American children were safer
18:58than kids in other wealthy,
19:00developed countries.
19:01But while our peers worked hard
19:04to provide health insurance to
19:06all pregnant mothers and kids,
19:08our policies leave millions
19:10without coverage even today.
19:13More than 10% of children in Texas
19:15do not have health insurance.
19:17Car crashes and firearm injuries
19:20persist as the leading causes
19:22of child fatalities because we
19:25vigorously blocked gun and vehicle
19:28safety laws that are peers past
19:32years ago without controversy,
19:34Now in a minor revolution,
19:37I argue that this inattention and in action.
19:41Is not simply a moral problem.
19:44It's also an economic and social one.
19:47The root cause of nearly every
19:49major challenge we face,
19:51from crime to poor health to poverty,
19:54can be found in our mistreatment of children.
19:58And the positive implication of that
20:00is that the best way to create the
20:03society we all want to live in is to
20:07prioritize children's interests as a society.
20:11It's not a 0 sum game.
20:15As a society,
20:16you always bear the cost of
20:18addressing social problems,
20:20and the choice is simply whether
20:22to pay pennies on prevention and
20:25early intervention in childhood,
20:27or dollars on trying to address ills that
20:31have metastasized and hardened over decades.
20:34Childhood is the window of opportunity,
20:38as I write in the book.
20:40When we invest in the welfare of children,
20:43protecting them from harm,
20:45ensuring their needs,
20:46granting them standing and voice,
20:49the profits compound over their entire lives.
20:53They accrue to their kids,
20:55to strangers,
20:57to generations to come.
20:59Judge Lindsay was right.
21:02The most important thing
21:04is the child before us.
21:07And what he is owed is not the barest
21:10of essentials enough to survive,
21:12but what he needs to thrive.
21:17So in the book I identify 6 core
21:20children's rights tied to particular
21:22stages of development that they argue
21:25we must pursue for the benefit of
21:27both children and broader society.
21:29And I focus on rights because I think
21:33rights carry a particular weight
21:35in the United States of America.
21:38And I emphasize these six because I
21:41think they're particularly important,
21:43fully acknowledging that there are others
21:45that ought to be advanced as well.
21:48Now I'm happy to get into more detail
21:51about these six in the Q&amp;A or informally
21:54this afternoon following my talk,
21:57but I'm just going to highlight one of
21:59them right now, the right to be heard.
22:02So why this one?
22:06Well, because in some ways I
22:09think empowering young people,
22:11giving them the right to vote,
22:12serve on juries, run for office,
22:14exercise real power at school and in
22:18our important social institutions
22:20may be the most important right
22:23in securing the other five.
22:26I believe a big part of why we
22:29have not made more progress on
22:31addressing climate change.
22:33Gun violence, crumbling schools,
22:36and childhood poverty is that
22:38kids themselves have no power.
22:41As Susan B Anthony explained, quote,
22:44the moment you deprive a person of his
22:46right to a voice in the government,
22:49you degrade him from the status of a
22:52citizen of the Republic to that of a subject.
22:55A person helpless,
22:57powerless,
22:58bound to obey laws made by superiors.
23:03There was a brutal honesty to
23:06octogenarian Senator Dianne
23:07Feinstein's explanation of why she
23:10wouldn't be listening to the young
23:12teen climate activists who'd come
23:14to meet with her in 2019.
23:17Well,
23:18you didn't vote for me.
23:22Now, when I talk to folks about extending
23:25the franchise to those under 18,
23:27the first response I usually get is that
23:31kids don't have the necessary capacity.
23:34But I think that is belied by the evidence
23:37we have from psychology and neuroscience,
23:39which suggests that when it comes to voting,
23:42relevant cognition,
23:43that sort of cold rational cognition,
23:46there doesn't appear to be a significant
23:49difference between the average 16
23:51year old and the average adult.
23:53And of course, and this is a big of course.
23:56We allow millions of adults who
23:59are well below average indeed,
24:01who are suffering from very severe
24:03deficits to vote, no questions asked.
24:07The fall back defense that I get is that
24:11even if it is true that kids shouldn't
24:14be disqualified based on incapacity,
24:16it is a fact that those under 18 don't
24:20have sufficient life experience.
24:23But that's not true either.
24:25Indeed,
24:25many young people have significant
24:28lived experience relevant to the
24:31most pressing issues of the day.
24:33They know what a lockdown drill feels like,
24:37they've experienced racism and sexism,
24:41they know how TikTok works,
24:45and they have skin in the game.
24:48A 15 year old is going to live with
24:50the consequences of the next election.
24:53On her reproductive choices,
24:54on her job prospects,
24:56on the habitability of the world
25:00in a way that her 89 year old
25:03great grandfather simply will not.
25:06So what is the major impediment we face
25:09in changing course on building on the
25:12legacy of the child savers and really
25:16pushing forward on children's rights?
25:19I'm convinced that it is not
25:21animosity to children some desire.
25:24Although we harm children in countless ways,
25:27it is not out of a desire to
25:29harm children that that happens.
25:32It happens, I think,
25:34because of a heedlessness,
25:39and I want to spend a bit of time
25:41considering how this indifference
25:43has manifested in the legal system,
25:45in particular the criminal justice system.
25:48And once again, let's start with a story.
25:54So when I talked to Adam and Ariel
25:57about the early years of their lives,
26:00Adam used the words Fondest memories.
26:03Twice there were horses and haylofts.
26:07There was a pond and an easy bake oven.
26:11They love their parents.
26:13But at six and three, Adam and Ariel.
26:17And their younger sister were uprooted,
26:19pulled up from that North Carolina
26:22family farm and tossed into an orphanage.
26:25Within Adam's words,
26:26a lot of really angry children cast
26:30offs shuffled from room to room.
26:34Their parents had been arrested
26:36for taking part in a conspiracy to
26:38distribute cocaine and marijuana.
26:41The prosecutor secured 4 life
26:44sentences for their father.
26:46And then?
26:47Appealed the 6 1/2 years he'd
26:49gotten for their mother,
26:51arguing that the trial judge had
26:53erred by taking into consideration
26:55that she had young children.
26:59According to him,
27:01she should have gotten 15 to 20 years.
27:043 judges on the 4th Circuit agreed.
27:07Adam and Ariel were relevant
27:11as the judges wrote quote.
27:13Because there is nothing extraordinary
27:14about the fact that the defendant
27:16had three minor children.
27:18A departure on that basis was improper.
27:23If that strikes you as monstrous, it is.
27:29But this blindness to children
27:31is the norm in criminal law.
27:33It's usual cruelty.
27:37We built our system of mass
27:39incarceration without much of A thought
27:41for how it might impact children,
27:43and today we operate a correctional system
27:46that excludes and erases them at every turn.
27:50Some 5,000,000 American kids have
27:52or have had a parent locked up.
27:56Sentencing guidelines may now be
27:58advisory rather than required,
28:01but judges continue to toe the line.
28:03With a downward departure on account
28:06of family ties granted in just 9% of
28:09federal cases, as we have set about
28:13assigning prisoners to prisons,
28:15making visitation rules,
28:16and entering phone and mail contracts,
28:20kids have not been at the negotiating
28:23table or even in the room. Sorry.
28:26Your mom is now housed in a
28:29facility hundreds of miles away.
28:31Sorry.
28:32We don't allow sitting on laps during visits.
28:36Sorry.
28:37Calls to your dad cost a dollar a minute,
28:41as Ariel explains.
28:43My mom was in Lexington, KY,
28:45and my dad was in Atlanta,
28:48and we saw them about once a year.
28:51She remembers when she turned 8
28:53and prison officials told her
28:55that she could now no longer
28:57hold her dad during the visit.
29:00Sorry.
29:03Our policing practices reflect this
29:06same heedlessness to children's
29:08welfare in America today.
29:10Police officers kicked down doors in
29:13the dead of night with guns drawn to
29:15drag away fathers as they're terrified.
29:18Children watch.
29:19They execute pit maneuvers,
29:22flipping minivans,
29:23carrying children when mom doesn't pull
29:26over quickly enough on the highway.
29:28They use the same restraint techniques
29:31on 100 pound autistic 14 year old who
29:35gets upset playing laser tag as they
29:37do on a 200 pound man with a knife.
29:40The invisibility of children across
29:43our legal system is a product of both
29:47careless apathy and indifference by design.
29:51Indeed, the general assumption
29:54is that to ensure accuracy.
29:57Fairness and objectivity.
29:58We should remove kids from the equation.
30:02The plea to think of the children
30:06is dismissed as a logical fallacy,
30:10a detour into sentiment tower.
30:15Don't get distracted by the dead
30:176 year old child and applying
30:19that second degree murder statue
30:21to the facts of the case.
30:23Ignore the pictures of those
30:25crying kids at the border.
30:27When setting immigration policy,
30:30postpone the debate over that gun
30:33control bill until memories of the
30:37latest school shooting have dimmed.
30:40Good law is made in the absence of children,
30:43we are told.
30:45I'm convinced that is wrong,
30:48and it's not only devastating to kids but
30:52also deeply destructive to our country.
30:55Children need to be prioritized when lawyers,
30:58judges,
30:58police officers and others
31:00approach their work.
31:05Now, given the overwhelming evidence on
31:08the importance of attachment between
31:10primary caregivers and young children,
31:13and the crushing lifelong toll
31:16of parental incarceration,
31:17the default should never be
31:19to lock up a fit guardian.
31:22We should look to other correctional tools,
31:24like monitoring,
31:25that do not take kids away from
31:28their parents and draw confidence
31:30in the data that shows that strong
31:34family connections reduce recidivism.
31:36As we work toward that ambitious goal,
31:40we can move more quickly on bail
31:42reform to keep most parents at
31:44home with their kids pretrial,
31:46and on making all phone calls between
31:49children and incarcerated parents.
31:51Free.
31:53The same mindset would lead us to
31:55eliminate common law enforcement methods,
31:58including high pressure interrogation
32:00procedures known to elicit false
32:02confessions from juveniles,
32:04no knock warrants that put children at
32:07unnecessary risk in their own homes,
32:09and tear gassing migrants and protesters,
32:12which can be particularly harmful to kids.
32:15In cases involving child victims,
32:18we would draw our focus toward them.
32:21Not away from them.
32:23And over time we would shift the
32:26emphasis of our justice system
32:28from responding to crime after
32:30the fact with police officers,
32:33prosecutors, investigators, trials,
32:35prisons, parole officers,
32:38to prevention keeping our community safe
32:41by bolstering investment in preschools,
32:44top quality healthcare,
32:46excellent public housing,
32:47mentoring and other social
32:49services for young people.
32:51But putting children first in
32:54legal decision making also
32:56entails A broader set of reforms.
33:01Imagine for a moment that the
33:05dominant approach to interpreting the
33:07Constitution was not originalism,
33:09asking what reasonable people
33:11living in the 18th century would
33:14have thought the text meant,
33:17but asking what the words ought to me.
33:20In light of the best interests of children,
33:24why is originalism any more
33:27legitimate than a child?
33:29First perspective when, say,
33:31deciding whether prohibiting gun
33:33ownership by someone subject to a
33:36domestic violence restraining order
33:38violates the Second Amendment,
33:45Mr. Rahimi was subject to such an order.
33:48Following an alleged assault,
33:50a court in Texas barred him from harassing,
33:53stalking or threatening his
33:56exgirlfriend and her child.
33:59Rahimi knew he was not allowed to
34:02possess firearms, but he had them anyway,
34:04and he used them five separate times
34:07between December 2020 and January 2021,
34:12as the United States Court of Appeals
34:14for the 5th Circuit recounted.
34:16On December 1,
34:17after selling narcotics to an individual,
34:20Rahimi fired multiple shots into
34:22that individual's residence.
34:24The following day,
34:25Rahimi was involved in a car accident.
34:27He exited his vehicle,
34:28shot at the other driver and fled the scene.
34:31He returned to the scene in a different
34:33vehicle and shot at the other driver's car.
34:36On December 22nd,
34:37Rahimi shot at a constables vehicle.
34:40On January 7th,
34:41Rahimi fired multiple shots in the
34:43air after his friend's credit card was
34:46declined at a Whataburger restaurant.
34:51Subsequently,
34:51police officers searched his home,
34:54found guns and charged him with illegal
34:57possession under this federal law.
35:00An open and shut case,
35:02I would tell my criminal law students.
35:05But in February 2023,
35:08the 5th Circuit decided that
35:11the law was unconstitutional.
35:16The three judge panel acknowledged that
35:19the firearm ban for people determined
35:23again after notice and hearing.
35:26To be a quote credible threat to
35:28the physical safety of an intimate
35:30partner or child reflected quote
35:33salutary policy goals meant to protect
35:37vulnerable people in our society.
35:40But the merits of the law, said the court,
35:44were completely irrelevant.
35:45What mattered,
35:46and all that mattered was that it was
35:50not a restriction quote our ancestors
35:52would have accepted the government.
35:54Had not been able to point to a quote
35:58relevantly similar historical regulation.
36:01In other words, kids whose abusive
36:04fathers are currently under court order.
36:07Your dad gets to keep his guns
36:10because back in the 18th century,
36:12men who threatened and abused
36:15their kids got to keep theirs.
36:18The response from my progressive
36:20pals in legal academia has
36:23largely been to dig deeper.
36:25Into the dusty tomes,
36:27let's out history of Let's find
36:31those hidden historical analogs.
36:34And the market for gun historians is booming,
36:38with lawyers needing experts to help
36:41them travel back to the earliest days
36:44of the Republic anytime a modern
36:46firearm restriction is challenged.
36:49But what's the point of trying to
36:51win a game with rules that are set?
36:55Up for children to lose.
36:58The rules of interpretation are the problem,
37:02and the rules can be changed.
37:05Does it really make more sense to
37:09construe the right of the people
37:11to keep and bear arms based on the
37:14understanding of folks who lived
37:16in a time of muskets and cartouche
37:18boxes than to read it in light?
37:21Of the experiences of children
37:23exposed to the threat of gun violence
37:25today and in the years to come,
37:29firearms are the number one cause of
37:32death of children in the United States,
37:35and the risk of fatality increases
37:38by 500% when a gun is present.
37:41In a domestic violence context,
37:44the notion of replacing originalism
37:47might have seemed laughable.
37:50Just a few years ago,
37:52for conservative judges it had become gospel,
37:56and even liberal stalwarts like
37:58Elena Kagan Benthan knee at her
38:012010 confirmation hearings,
38:03conceding quote We are all originalists now.
38:08But it was always a fraud,
38:10in the words of Harvard Law
38:12professor Adrian Vermeil,
38:14a quote useful rhetorical
38:17and political expedient.
38:19Invented in the 1970s and 80s to allow
38:22legal conservatives to make headway
38:25against a progressive legal culture,
38:27what has been charring for many
38:30lefty academics has been the speed
38:32at which those on the right,
38:34including Vermeal,
38:35have been willing to toss it
38:37out the window with the war for
38:40the Supreme Court seemingly won.
38:42As Ramil explained in a recent
38:44Atlantic article,
38:45quote,
38:45originalism has now outlived its
38:48utility and has become an obstacle
38:50to the development of a robust,
38:53substantively conservative approach to
38:55constitutional law and interpretation.
38:58That is enraged and, I would say,
39:01frightened many liberals.
39:04But this is actually a moment of
39:07great possibility and opportunity.
39:09In this disorienting shakeup,
39:11there is a genuine chance to chart
39:15a new course.
39:16So why prioritize children
39:18in construing our statutes,
39:21including the Constitution?
39:23Part of the answer is that the judicial
39:26branch was designed to protect those
39:29in the minority against the majority,
39:31with judges appointed to life
39:34terms keeping the popularly elected
39:37branches of government in check.
39:39And since children currently
39:41cannot vote nor hold office,
39:43the Court ought to have a special
39:46responsibility to act as their voice,
39:49to be a counterweight against
39:51oppression by those over 18 who
39:54enjoy complete dominion over the
39:57executive and legislative branches.
39:59But that's not what has happened.
40:02In recent decades,
40:03the Supreme Court has acted to
40:06restrict the rights of children.
40:08To privacy, free speech,
40:10racial equality,
40:12and bodily integrity,
40:13It is imperiled the ability of
40:16kids to be matched with loving
40:19L GB TQIA plus foster parents,
40:21and blocked environmental laws designed
40:24to protect their lives and futures.
40:27If you want to predict a pending
40:30Supreme Court decision today,
40:32a good rule of thumb is to step.
40:35Into the shoes of any children
40:37implicated in the case,
40:39consider what they'd want,
40:40and then go with the opposite outcome.
40:44Yet the most compelling reason to interpret
40:47the law, to privilege children's interest,
40:50is not simply to benefit kids, but again,
40:54because it is the best way to achieve
40:57the society we all want to live in.
41:00Prioritizing children's welfare is the least
41:04costly and most effective way to address the
41:08major social problems we face as a country.
41:11Focusing on children's welfare also helps
41:14to get judges and lawyers thinking about
41:17the longterm health of our country,
41:20a cataract in the eye of originalism which
41:24never cared a job about America's future.
41:27When you're focused on youth rights,
41:29it becomes essential to think
41:32about the decades ahead,
41:33to preserve resources,
41:36to see connections between generations.
41:39Finally, it's worth noting the kids
41:42are Canaries in our coal mines.
41:45The things that harm kids also
41:48tend to harm adults,
41:49but kids are more sensitive
41:51to the bad effects,
41:52so when we make them our primary focus.
41:55We intervene earlier and more completely
41:58with major health benefits for everyone.
42:02Now, if adopting a child First approach
42:04makes sense to apply on the back
42:06end to figure out what a law means,
42:09it makes even more sense to apply
42:12on the front end as we create
42:15statutes and regulations.
42:19What if before,
42:21federal agencies pursued new policies?
42:23They first had to consider
42:26the impact on children.
42:28That's already being done in
42:30countries like New Zealand, Austria,
42:32Belgium, Finland and Sweden.
42:34And one of the great benefits of these
42:38assessments is that they can allow,
42:40excuse me, lawmakers and regulators,
42:44to notice and prioritize children's
42:46interests in areas where the effect
42:50on children is large but hidden.
42:52Sometimes the driest,
42:54most adult sounding things preemption rules,
42:59zoning provisions,
43:00intellectual property guidelines
43:02can have visceral implications
43:05on our youngest citizens.
43:08In making this a reality,
43:10I believe we should strongly consider
43:12creating a new independent federal
43:15agency focused on the whole child.
43:18To stand alongside the Department
43:20of Transportation and Homeland
43:22Security and the Consumer
43:24Financial Protection Bureau,
43:25we need a single entity promoting
43:28children's interests and
43:30consolidating efforts currently
43:31spread thinly across the government.
43:34Now one possibility is to recast and
43:37vastly expand the Children's Bureau,
43:39that first federal agency focused on kids.
43:43It still exists.
43:44But it's now housed within Health
43:47and Human Services and constrained
43:49by a much narrower focus.
43:51Whatever the path to creation,
43:53I think such an agency could help with
43:56what might be the biggest idea here,
44:02redefining the guiding principle of law,
44:06the answer to what it is for as acting in
44:12the best interests of children that has.
44:15Profound implications for all of
44:18our structures of government.
44:21With such a mindset, federal and state
44:24budgets necessarily shift spending
44:26from the end of life to the beginning.
44:31With such a mindset,
44:33the tax code no longer defers to a
44:37conception of inheritance focused
44:40on preserving dynastic wealth.
44:43Instead, it advances A notion of
44:46inheritance focused on collective
44:48investment in all children.
44:50With such a mindset,
44:52the norms and rules of corporate law,
44:55what we tell officers and directors
44:59to maximize fundamentally changes.
45:01Shareholder primacy gives way
45:05to child primacy.
45:07In the end,
45:09this might all feel radical
45:11and perhaps even dangerous.
45:15But it is the status quo which
45:18merits our suspicion and fear.
45:21How can America be the only United
45:24Nations member state not to ratify the
45:27Convention on the Rights of the Child?
45:31How safe and prosperous a future
45:33are we making for ourselves when
45:36we tell children they have no
45:38standing to sue the government for
45:40its inaction on climate change?
45:42When we say there's nothing wrong with
45:44their public school principal hitting
45:46them with a paddle as discipline,
45:49when we ensure that half of US kids
45:52have a parent with a criminal record,
45:55are we the good people that we think we are?
46:01Ariel told me her saddest moment as a kid.
46:06It was quote when my mom
46:08recorded reading a story to us.
46:10Green Eggs and ham.
46:11And they mailed a video to us of
46:13her reading it in prison clothes,
46:15and we watched it over and over
46:17to hear her voice.
46:19At that time,
46:20I was so broken and felt so
46:22alone and just wanted my mom.
46:26We did that too, Ariel.
46:29Her mother broke the law, yes,
46:31but it was us who decided that
46:35the result should be the torture.
46:37Ariel to take her away from her mom.
46:40To lock her in an orphanage.
46:43It is us who are failing to
46:46live up to our core principles.
46:50In 1765, William Blackstone declared
46:54that it is better that 10 guilty persons
46:58escape than that one innocent suffer.
47:01The words appear in chapter one of
47:04the criminal law case book I use.
47:07They are bedrock.
47:08Upon which all the doctrine to come rests.
47:12Focus on the rights of the innocent.
47:15Build your system upon that.
47:19How is it that we do not see the
47:23innocent children suffering right
47:25in front of us because of us?
47:30Look back at Ariel's family. 2.
47:34Guilty people were punished and three.
47:39Innocent children suffered as a result.
47:43That is the math of dystopia.
47:47But it is not our destiny.
47:49We can remake our legal world to put
47:53children first for them and for us.
47:57And I want to leave you with a challenge.
48:01In this short talk,
48:02I focused on a few arenas where
48:04we might prioritize children,
48:06but there are many people in
48:07this audience who work in.
48:08Other fields who are
48:10focused on other concerns,
48:12who are grappling with other
48:15issues and your homework is to
48:18think about what you know best.
48:21What would your field or concern
48:23look like if it were rebuilt or
48:26reformulated to truly put children first?
48:29What does child prioritization
48:32mean for emergency medicine?
48:35What is a child first environmental movement?
48:38Look like,
48:40What would immigration policy entail if
48:44it privileged the rights of children?
48:47What is youth centered,
48:50feminism or racial justice?
48:53What does child primacy mean for art,
48:56curation, or architecture?
49:01I look forward to reading your essays,
49:04but for now.
49:06I'd love to answer any questions you have.
49:09Thank you so much for having me here today.
49:23Questions in the Cohen or online
49:31Susie.
49:37Thanks so much Adam for
49:38this amazing presentation.
49:39I love your, your title of being
49:41a crusading lawyer and I think
49:43that's the epitome of a compliment.
49:44So thank you so much for all of this.
49:47The additional story that I'd like you
49:49to tell you mentioned as we were walking
49:51in about the environmental story and
49:53the environmental burden as an insult
49:54and and that an asset to children.
49:58Yeah. So you know what's interesting?
49:59I focused on sort of telling the
50:03criminal justice story about our apathy,
50:06our indifference, our heedlessness.
50:08But I could tell a story about almost
50:11any area, and I'll tell you a very quick
50:13story because we didn't get to it before.
50:15So I live in downtown Philadelphia and.
50:18We bought an old house house built in 1860,
50:22and when we got the report, they said, oh,
50:24there's a lead service line in the basement.
50:26And being someone who knows and cares
50:29about these things, what did I do?
50:30Well, I called up the water
50:33department to have it tested.
50:34I talked to the man who came.
50:36We went down in the basement.
50:37He said good news,
50:39we treat our water so it's it's
50:41not like Flint, MI,
50:42it's all going to be good.
50:45And sure enough.
50:46A couple weeks later I received a letter.
50:49It said everything's fine,
50:51no detectable lead at all.
50:53And so my wife and I and our two year old
50:57daughter moved into the house and started
51:00using the water as we normally would be.
51:03Now my dad, couple weeks later
51:06sends me a message and says, hey,
51:08there's this nonprofit startup
51:09that's collection data and you know,
51:11you might want to help them out.
51:12It's a nice thing.
51:14And I said, OK,
51:15no sure they can come over and test it.
51:19Went off on vacation,
51:21got back the letter from doctor
51:24Mark Edwards down at Virginia Tech,
51:26who actually was one of the people
51:29involved in exposing some of some
51:31of the lead scandals recently.
51:34And the letter said,
51:37you have high lead levels in your water.
51:43I my first reaction literally was
51:44this was sent to the wrong address.
51:46They must,
51:47they must have put the wrong
51:49letter in the envelope.
51:51And then I started to actually compare
51:54things and being the person that I am
51:57both lawyer and a science oriented person,
51:59I said I would like to learn
52:01more about these techniques of
52:03testing water and how this works.
52:06And what I discovered was they'd use
52:09very different testing procedures.
52:12The people from Philadelphia Water,
52:13what they had done was to collect
52:17the water directly out of the brand
52:20new non lead tap for sample then
52:24turn on the tap for 10 minutes.
52:28Now they had asked me let the water
52:31be stagnant in the pipes but they
52:33didn't test any of the water actually
52:36sitting in the pipes in my house.
52:37They tested the water that was
52:40in the non lead.
52:41Main out on the street,
52:43that's what happens if you
52:44let it flush for 10 minutes.
52:46No surprise what head doctor Edward sample
52:48it tested the water that was actually
52:51in the lead service line and in those
52:54copper pipes with the lead solder joints.
52:56And what's fascinating is I didn't
52:58called off Philadelphia water and I
53:00said what happened here And they said,
53:01oh let's come back,
53:02we'll do a profile sample.
53:04And I said I don't know what that is
53:06but you clearly do what they did.
53:07They came back measured the pipes.
53:10And then they tested it at set
53:11intervals and what they found was,
53:13huh, look at that.
53:16If you test at actually I'll
53:18do it this way so you can see a
53:20little bit better if you test at
53:22moment zero non lead water pipe,
53:24no lead if you let it go for 10 minutes.
53:28But if you test it where the water
53:30actually is. And I thought why?
53:33Why?
53:34Why would you possibly test in
53:36this way Philadelphia water?
53:40You don't write test if your child has
53:44a fever by putting him in an ice bath
53:46and then having them drink right and
53:48eat a popsicle and then put in the the,
53:51the the thermometer.
53:52Why would they do it?
53:54Well because if a certain number of
53:58samples that they test comes back
54:02above a certain level their subject.
54:04To have to pay for remediation,
54:06to actually have to fix.
54:07So they don't want to know
54:09that there's a problem.
54:10And when I did a little bit more
54:12poking around, I said, well,
54:14I'm so interested because all of
54:15the stuff that they have sent
54:16me is all about how, you know,
54:17as long as we can get your
54:19lead level at under, you know,
54:21it's like 15 parts per billion,
54:2310 parts parts per billion.
54:24I guess that's the safe level of lead.
54:26What was fascinating is why is it set there?
54:29It's not set there because 10 parts.
54:32Per million is the safe level of lead.
54:34What's the safe level of lead?
54:36Zero. No lead is safe.
54:39Why is it set that high?
54:41Because lead exposure is so pervasive.
54:45If we set it,
54:46we're actually should be all these
54:49old cities like Philadelphia.
54:50We'd have to fix everything.
54:53And here's the amazing thing.
54:54Philadelphia is a progressive city.
54:57The people that I know from the
54:59water department are people.
55:01Who are nice people who you would say
55:03that person cares about children.
55:06It's not that they are setting
55:08out to harm children,
55:09it's that they are going through the motions.
55:13They are assuming while everything
55:15works just fine and I think in
55:18every industry we kind of do that.
55:20So in immigration contacts, right,
55:22we kind of assume, well okay,
55:24we'll just here's a little kid
55:25and then we'll ask them questions.
55:28It's like you're asking questions
55:29about what do you face.
55:30You know,
55:31a persecution your country and
55:32you're 2 years old.
55:33You're asking a 2 year old this question.
55:36But everything you know the
55:37we're following the protocol.
55:38We're just going through the motion.
55:40That's what I think we have to change.
55:41We have to.
55:42If you work for the water department,
55:43your goal should be to deliver safe water.
55:46You want to know how what is in
55:50people's water exactly as they use
55:51it when a little kid goes to the sink
55:54in the middle of the night and turns it on.
55:56That's the sample that you want to take,
56:00Jim.
56:06You so much, Adam. We're very grateful
56:08for your thought and your energy.
56:11Teach us what's happening
56:13in Pennsylvania and then Philadelphia
56:14with regard to some of the things
56:17that you've really focused on here in
56:19terms of how we can make a really big
56:21difference with regard to society,
56:23to the laws, to everything that
56:25we think is important in terms of
56:28moving forward with our society.
56:29And then of course,
56:31I'd be interested in hearing from
56:33our colleagues here in Connecticut.
56:35How things are moving forward as well,
56:37Yeah. So I think there are things that
56:41Philadelphia and Pennsylvania are doing well
56:44and lots of things we could be doing better.
56:46So one of the things about Philadelphia with
56:49respect to let is we actually are better
56:53than the number of other urban environments.
56:56One things that Philadelphia actually
56:58was kind of a leader on was,
57:00you know, lead paint.
57:02Related remediation, their rules about
57:04actually testing and disclosures,
57:07I think we need to do way more,
57:10but at least I think Philadelphia
57:12on that exposure has done more.
57:16I think 1 area they need to do in
57:18addition to water that they need to
57:20do more on is actually construction.
57:23There are a lot of you know.
57:25Gentrification is booming.
57:27A lot of areas,
57:29particularly in the Northeast were
57:31had a lot of injured industry for
57:34decades and decades lead smelting,
57:36things like that.
57:37When buildings are knocked down,
57:39a lot of that air,
57:40air it actually gets into the air and
57:43I think that's a real danger where we
57:45need to do more now in criminal justice.
57:47You know we have a progressive prosecutor
57:51in Philadelphia and I think one of the
57:53things that he has really emphasized.
57:54Is trying to avoid getting kids into
57:59the socalled school to prison pipeline
58:03and I think those efforts to avoid which
58:07which particularly impact children of.
58:10Color.
58:10There's a lot of data on how the same
58:13acting out behavior that, you know,
58:15tweens and early teens engage in.
58:18If you're a white little boy,
58:20it's, you know, messing around,
58:21your parents get called.
58:22If you're a black child,
58:24the police are called and that
58:26initial interaction can just
58:28set you completely off course.
58:30I think certainly the DA.
58:35Understands that and has been
58:39trying to launch programs to
58:41avoid sweeping young people up.
58:44An area of failure though
58:45is gun violence right.
58:47So we have not been able to
58:49solve that and I we just had a
58:54mayor primary for the
58:58Democratic candidate and.
59:00I hope that the candidate who
59:02won will go beyond kind of the
59:05rhetoric from the campaign.
59:06She was very focused on just
59:08hiring more police officers.
59:10I personally don't think that's going to.
59:13Do the take the steps necessary to protect
59:19young people from gun violence in the city.
59:22But I think the area where
59:24I actually am am excited.
59:25I just talked to a journalist in
59:28Philadelphia about a lot of efforts
59:30to actually make the physical space.
59:33Of the city more conducive to children.
59:36And that means more green space
59:39that has effects in countless ways,
59:42including simply, you know,
59:44just lowering the temperature of
59:47certain neighborhoods that are leafier.
59:49But I think it also comes to
59:52putting in more public parks,
59:54better bike lanes.
59:55All of those things can make a difference.