Abstract
The Restatement of Children and the Law, a legal document examining how laws are applied to children in various situations such as school and society, acknowledges that racial bias is a major problem in these situations, leading to unfair treatment of children, especially Black and Latino youth. The author argues that while the Restatement cannot solve this entirely, it can help promote racial justice by highlighting existing laws and legal standards that minimize unnecessary intervention and offer procedural protections for children.
INTRODUCTION
The Restatement of Children and the Law1 explores the regulation of children in four categories: “Children in Families,” “Children in Schools,” “Children in the Justice System,” and “Children in Society.”2 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.3 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.4 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.5
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.6 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.7 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.8 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.
I. THE CHALLENGE: OBSTACLES TO ADVANCING RACIAL JUSTICE IN A RESTATEMENT
The purpose of any restatement is to clearly state the common law and its statutory elements as they presently stand or might appropriately be stated by a court.9 Restatements are primarily addressed to courts,10 and their reporters hope to make the law accessible by discerning its underlying principles, explaining its rationale, and demonstrating its application. Unfortunately, the rules that comprise the law are not always clear. Reporters have the tremendous task of compiling the common law and distilling it into coherent, generalizable, and precise rules. Often, the law varies by jurisdiction and splits in ways significant enough to require reporters to discern majority and minority rules.11
Although restatement rules aspire toward the precision of statutory language, they are also intended to “reflect the flexibility and capacity for development and growth of the common law.”12 Thus, restatements not only reflect the current law, but also seek to capture trends that anticipate how the law is changing. “Like a Restatement, the common law is not static.”13 Given this complexity, a central tension is evident in the drafting process—the desire to recite the law as it presently exists, on the one hand, and “the impulse to reformulate it, thereby rendering it clearer and more coherent while subtly transforming it in the process,” on the other.14 Unlike model rules and codes, restatements are not meant to be “prescriptive.”15 While a restatement should evaluate competing rules and common law with an eye toward identifying those rules that lead to more desirable outcomes, the choices are generally “constrained by the need to find support in sources of law,”16 and the ALI has “limited competence and no special authority to make major innovations in matters of public policy.”17
Nonetheless, a restatement may lead to changes in the law, which is an appropriate outcome for an organization of lawyers committed to making the law “better adapted to the needs of life.”18 At a minimum, restatements take a position on unsettled and evolving areas of the law, and some even include explicit suggestions for legislators.19 As such, a restatement will never be completely impartial or devoid of perspective. As the handbook for ALI reporters states:
A Restatement . . . assumes the perspective of a common-law court, attentive to and respectful of precedent, but not bound by precedent that is inappropriate or inconsistent with the law as a whole. Faced with such precedent, an Institute Reporter is not compelled to adhere to . . . “a preponderating balance of authority” but is instead expected to propose the better rule and provide the rationale for choosing it. A significant contribution of the Restatements has also been anticipation of the direction in which the law is tending and expression of that development in a manner consistent with previously established principles.
The Restatement process contains four principal elements. The first is to ascertain the nature of the majority rule. If most courts faced with an issue have resolved it in a particular way, that is obviously important to the inquiry. The second step is to ascertain trends in the law. If 30 jurisdictions have gone one way, but the 20 jurisdictions to look at the issue most recently went the other way, or refined their prior adherence to the majority rule, that is obviously important as well. Perhaps the majority rule is now widely regarded as outmoded or undesirable. If Restatements were not to pay attention to trends, the ALI would be a roadblock to change, rather than a “law reform” organization. A third step is to determine what specific rule fits best with the broader body of law and therefore leads to more coherence in the law. And the fourth step is to ascertain the relative desirability of competing rules. Here social-science evidence and empirical analysis can be helpful.20
Ultimately, those who wish to limit the Restatement to a formalistic recitation of existing law will be dissatisfied with any attempt to address racial inequities through the Restatement of Children and the Law. Those who expect the Restatement to articulate a set of rules that benefit everyone equitably and remedy inequities in the law will be dissatisfied with any recapitulation of the common law that ignores new research and emerging trends to maintain a status quo that harms people of color.
The restatement drafting process is long and unwieldy, regularly taking place over the course of many years. Dozens of advisers, a members consultative group, and a council contribute to the work, parsing out the law in meetings, and offering comments on multiple drafts.21 The drafting cycle continues until each segment of the project has been approved by both the Council and the membership.22 The law can change significantly during this process. For example, the Restatement of Children and the Law was launched in 2015,23 and work on the draft continues to this day. If this Restatement had been launched in 2000 rather than 2015, the black letter would look remarkably different than it does now. In just eight years, the U.S. Supreme Court issued four landmark opinions—Roper v. Simmons24 (2004), Graham v. Florida25 (2009), J.D.B. v. North Carolina26 (2011), and Miller v. Alabama27 (2012)—that transformed the way the criminal law responds to children. Recognizing the limitations of children in understanding and abiding by the law and their unique vulnerabilities when interacting with law enforcement, these four cases have drastically changed the way courts analyze and sentence children. Drawing upon contemporary research on adolescent brain development and important psychosocial features of adolescence, state and federal courts have adopted a developmental jurisprudence that significantly constrains the sentencing of youth in adult court and follows a reasonable child standard in its evaluation of procedural questions like those involving custodial interrogation. Most changes to the law are not this sweeping, and identifying more discrete and incremental trends that are likely to shape the law in the short term and long term is a difficult and tedious task.
Finally, updating a restatement after it has been published presents another set of challenges. There is no mechanism to substantially edit a restatement once its final version has been published.28 Instead, the ALI will typically convene a second restatement to make necessary changes and the process begins again. In short, the reporters on the Restatement of Children and the Law have a very difficult job and have maybe only one chance to do it right in the near future.
II. THE INTENT: ADDRESSING RACE IN THE RESTATEMENT OF CHILDREN AND THE LAW
Notwithstanding the difficulty of advancing racial justice through a restatement, the reporters for the Restatement of Children and the Law have been clear about the disparate regulation of children and families of color and transparent in their desire to protect all youth from the harms of state intervention. This Restatement arose in response to changing views about children’s legal status.29 The law has come to regard children as having varying degrees of autonomy, legal competence, and authority despite once viewing them as entirely dependent on their parents.30 Lawmakers in the twenty-first century are also increasingly concerned with promoting the well-being of the child.31 From this emerges the “Child Wellbeing Framework,” which guides the development of this Restatement and includes the recognition and remediation of “racial and class biases that have long permeated the regulation of children and families” as one of its three pillars.32 The reporters also invited several legal scholars on race and juvenile and family law to serve as advisers to the Restatement.33
Perhaps the best evidence of the reporters’ desire to advance racial equity in the Restatement is in their existing comments, reporters’ notes, and illustrations. The most robust examples of the reporters’ engagement with race can be found in Part 1, “Children in Families;” Part 2, “Children in Schools”; and Part 3, “Children in the Justice System.”34
Throughout these parts, the reporters incorporate history, data, empirical research, and analysis that contextualize the law and carefully consider the interplay between race and various legal principles. In this way, the Restatement serves a critical role in educating its audience and embracing rules and rationales that reduce harms and enhance protections for all youth, including youth of color.
A. Part 1: Children in Families
In Part 1 of the Restatement, “Children in Families,” the introduction establishes that “[r]espect for the diversity of families is a critically important principle that should, and typically does, guide courts and legislatures.”35 The introduction further explains that robust legal protections for parental authority are necessary to restrict state interventions that may be grounded in racial, cultural, or class bias.36 These two concerns—respecting diversity and combatting biased results in the law—drive the discussion in “Children in Families,” and the reporters return to these themes several times throughout this section.37 “Children in Families” acknowledges that there is a history of racial discrimination against parents of minority backgrounds and bias against practices, particularly corporal punishment, that are more commonly used in minority households.38 Much of the introduction to Chapter 2, “State Intervention for Abuse and Neglect,” and its accompanying reporters’ notes are devoted to the disparate racial impacts of the child welfare system.39
Drawing connections between the early child welfare system and emerging juvenile courts, the reporters explain that state intervention historically focused on low-income families of color and note that Black women, who were excluded from social supports available to white women, often formed their own groups to address children’s needs.40 This historical context provides a backdrop for the reporters’ discussion of modern family regulation. Startling statistics show that children of color, particularly Black children, are more likely to be removed from their homes and more likely to have negative experiences while in the system.41 Similar racial disparities exist in the issuance of Child in Need of Services (CHINS) petitions, which is highest for Native American42 youth and followed closely by petitions for Black youth.43 Although the Restatement notes that Native American youth have a high rate of foster care placement,44 a more in-depth discussion of the impact of state intervention on Native American families is reserved for the Restatement of the Law of American Indians.45
The reporters examine several factors that are believed to contribute to the overrepresentation of families of color in the welfare system.46 This analysis situates the root cause of racial disparities in systemic forces outside of the home and pushes back on any suggestion that something is inherently broken within families of color.47 By promoting respect for the diversity of parenting styles, including corporal punishment,48 the reporters prevent readers from misinterpreting the statistics and assuming that families of color are simply more likely to mistreat their children. As courts look to the Restatement for guidance in the resolution of child welfare cases, the Restatement guides decision-makers to culturally competent decisions that understand and respect parenting styles that may differ from white middle-class perspectives but are not abusive.
B. Part 2: Children in Schools
Within Part 2 of the Restatement, “Children in Schools,” the reporters address race in Chapter 7, “Discipline and Order Maintenance” and Chapter 8, “Student Speech Rights.” Race is central to the Restatement’s discussion of school discipline and exclusion. Chapter 7 educates readers on the history of exclusionary discipline, including how the adoption of zero tolerance policies exacerbated existing racial disparities in suspensions and expulsions.49 The reporters’ note includes data on disparities in multiple forms of discipline and summarizes research on the harms of exclusion.50 The reporters also draw an important distinction between corporal punishment in schools and corporal punishment in families by refusing to extend their deference to diverse parental discipline to staff in the school setting.51 Absent this deference, racial disparities in school-based corporal punishment are especially suspect.52 The reporters’ notes incorporate research showing that disabled children of color are especially likely to suffer corporal punishment at school53 and note that racial disparities alone have been cited as a reason to end the use of corporal punishment altogether in schools.54
In their discussion of student speech rights in Chapter 8, the reporters meaningfully incorporate race into several of the illustrations exploring the permissible bounds of student speech. In its black letter, the Restatement concludes that
[p]ublic school students cannot be prevented from or disciplined for expressing their own ideas in school unless the expression: (1) causes or is likely to cause a material and substantial disruption in the operation of the school; (2) interferes with the legal rights of others; (3) promotes illegal conduct that threatens to undermine a school’s educational mission; or (4) sharply departs, in its form or manner of expression, from the school’s norms of civility.55
To illuminate the rule prohibiting speech that will likely provoke violence or other material and substantial disruption of the school, the reporters offer an illustration to demonstrate that a school that already has a history of racial violence and tension may censor a student wearing a T-shirt with a Confederate flag on its front during a period of national unrest concerning police shootings of African Americans.56 In another illustration, the reporters conclude that a district-wide ban on Confederate symbols does not violate students’ First Amendment57 rights in a high school where Black students, who comprise just 2% of the school population, have been verbally and physically antagonized by white students on and off school grounds.58 The reporters’ notes recognize that cases involving the regulation of students wearing or otherwise displaying Confederate flag symbols turn on whether there is a prior history of racial violence or tension at the school or in the district.59 By highlighting these cases and illustrations, the reporters acknowledge the importance of racial harms in context and help the courts recognize racialized assaults and police shootings as a concrete basis for censoring speech to prevent substantial disruption in schools.60
C. Part 3: Children in the Justice System
Part 3, “Children in the Justice System,” begins by examining a minor’s capacity to consent to a law enforcement search. In its black-letter articulation of the standard, the Restatement concludes that the search of a minor based on the minor’s consent is lawful only if the government demonstrates that consent was voluntary and not the result of duress or coercion.61 Determination of whether the search was voluntary involves a consideration of the totality of the circumstances, including the minor’s age, education, intelligence, understanding of the right to refuse consent, experience (or lack of experience) in the justice system and “any other relevant circumstance.”62 Again, drawing upon developmental research regarding youths’ deference to adult authority figures and vulnerabilities to police coercion and surveying state courts that embrace that research,63 the Restatement requires courts to give special attention to the age and maturity of the minor in the consent analysis.
Although the black letter does not explicitly identify race as a factor to be considered in the voluntariness inquiry, the comments acknowledge that youth of color may be particularly reluctant to refuse consent to a search when pressed by a law enforcement officer or instructed by parents to show deference to law enforcement for the child’s personal safety.64 The reporters’ notes cite scholarship addressing the importance of race in the Fourth Amendment65 consent analysis66 and note that some state courts have been asked to adopt a reasonable Black child standard in cases involving police encounters with Black youth.67 Even as these questions remain unsettled in the courts, the Restatement’s acknowledgement of these concerns in their commentary increases awareness of the very real impact of race in the search and seizure context. Although restatements are primarily directed at courts, they are also read by practitioners, scholars, and students. Educating this broad audience on the racialized impacts of the law paves the way for new legal standards that better protect youth of color from unwarranted intrusions by the state.
Part 3 of the Restatement also discusses race in its review of the law related to dispositions and risk assessment tools that predict the level of threat a person poses to themselves and the community. Chapter 14, “Delinquency Dispositions,” and its comments embrace the requirement that individualized dispositions be no more restrictive than necessary68 and evaluate the effectiveness of risk-assessment instruments to guide and limit sentencing in delinquency cases.69 Risk-assessment tools have long been controversial given the racialized outcomes they frequently produce. Summarizing the research and debate in favor of and in opposition to these tools, the reporters note that risk assessments can perpetuate racial bias embedded in the information submitted for assessment70 and amplify the impacts of preexisting racial disparities in the defendants’ criminal history scores, which are themselves symptomatic of biases in policing and enforcement.71 The reporters also consider the contrary view that risk assessments can accurately predict criminal violence and are no more biased than structured professional judgment or judicial discretion.72 Some researchers have even speculated that risk assessments have the potential to reduce racial bias.73 This debate helps readers understand the reporters’ ultimate decision to endorse “a structured professional judgment” approach that relies on tools for information gathering and decision-making without binding decision-makers to any one outcome.74 The reporters hope this approach will both minimize the abuse of discretion and reduce racial disparities in decisions that require an assessment of risk.
III. THE OPPORTUNITY: ADDITIONAL WAYS TO ADVANCE RACIAL JUSTICE IN THE RESTATEMENT OF CHILDREN AND THE LAW
As the previous discussion demonstrates, a restatement can guide the courts to a more equitable framework for the regulation (or deregulation) of children and families. By integrating important history, supplying data and statistics, citing empirical research and other scholarship, spotlighting case law, providing thoughtful commentary and analysis, and creating instructive and relatable illustrations, the Restatement of Children and the Law can be an effective tool to advance racial justice. Just as the Restatement draws upon developmental science to shape the law on children in the justice system, the Restatement can also draw upon new and evolving research to help us understand how race and trauma impact legal outcomes for children. Even in the eight short years since the ALI launched this Restatement, we have a wealth of new empirical research on racial bias, the traumatic effects of policing on youth of color, and the impact of stereotype threat on encounters between police and youth.75 Ignoring this research would ignore the real-world implications of race on the law and reinforce prevailing racial biases that perpetuate social inequities in the juvenile and criminal legal systems.76
Recognizing that youth as a class are particularly vulnerable to the intimidating presence of the police and are often disadvantaged in the adjudicative process, the Restatement attempts to guard against these vulnerabilities by providing special protections to youth in several contexts, including search and seizure, interrogation, and sentencing, among others. Each of these discussions also provides an opportunity to consider whether additional protections might be necessary for youth of color. This Part of the Essay identifies sections of the Restatement that can be enhanced by history, research, and the growing number of judicial opinions that have acknowledged the importance of race in criminal law. This discussion focuses primarily on Part 3 of the Restatement, “Children in the Justice System,” as racial disparities are especially pronounced in delinquency proceedings.77
At the time this Essay was written, most of the black-letter provisions and comments for the Restatement of Children and the Law were completed and approved by the ALI. Yet in the months leading up to final publication, there is still time for Reporters to edit their notes. After publication, the Restatement will need to be edited soon, and race should remain at the forefront of this project. The sections highlighted here are prime candidates for early, if not immediate, revision.
A. Race, Adolescence, and Search and Seizure
In 2011, the Supreme Court announced a major shift in criminal justice jurisprudence when it held in J.D.B. that the test for determining whether a child was in “custody”—and no longer free to terminate a police interrogation for purposes of Miranda v. Arizona78—must be evaluated through the lens of a “reasonable child” rather than a reasonable adult.79 Since then, several scholars—and now courts—have called for the extension of the reasonable child standard to other aspects of criminal law and procedure, including Terry stops, consent searches, and other critical Fourth Amendment questions.80 Although the Restatement surveys the law regarding consent searches and the interrogation of minors,81 it does not define seizure or examine the justifications for a Terry stop and frisk. As each of those questions is deeply impacted by race and adolescent development, they are both worthy of review and guidance in a Restatement of Children and the Law.
1. Seizure.
The Supreme Court articulated the black-letter definition of seizure when it held in United States v. Mendenhall82 that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”83 As embraced throughout the Restatement of Children and the Law, a child’s age should be given weight in multiple questions of criminal law and procedure. Just as a child’s age affects the determination of whether a child is in custody for purposes of Miranda, it should also affect the determination of whether a child has been seized in the Fourth Amendment context.
The child’s race should also be considered in each of these questions. Youth of color know from personal and vicarious experiences how dangerous contact with the police can be. Young people are routinely exposed to videos and news clips of police encounters that quickly turn into serious, and even deadly, beatings or shootings.84 Black youth, in particular, often have relatives and friends who share stories of police violence and caution them to keep their hands where police can see them, avoid sudden movements, and behave in a courteous and respectful manner when they engage with the police.85 Data show that these fears are far from unfounded as police use force against people of color at disproportionately high rates.86 These experiences, combined with developmental features of adolescence, leave Black youth particularly vulnerable to the psychological pressures of police presence.87 The Restatement would benefit from a brief recitation of this data and social context along with a review of new research on the traumatic effects of policing on Black and Latino youth.88
Several courts have already acknowledged that race is relevant in the seizure analysis. One of the earliest such acknowledgments came in 2015 from the United States Court of Appeals for the Seventh Circuit, which held in United States v. Smith89 that a Black man was seized and not free to leave when the police encountered him in a dark alley and immediately asked him if was armed.90 Addressing arguments in the appellant’s brief that “no reasonable person in his ‘position’—as a young black male confronted in a high-crime, high-poverty, minority-dominated urban area where police-citizen relations are strained—would have felt free to walk away” from the police, the Seventh Circuit echoed the sentiments of the Supreme Court in Mendenhall that while Mr. Dontray Smith’s race is ‘not irrelevant’ to the question of whether a seizure occurred, it is not dispositive either.91 The Court was able to find on the strength of other factors that Mr. Smith was seized.
Other courts have given more weight to race in the seizure analysis. The United States Court of Appeals for the District of Columbia Circuit held in Dozier v. United States92 that a Black man was seized when he was approached by the police in an isolated setting and “reasonably could have feared that unless he complied with the police requests, he would be vulnerable to police violence, without hope that anyone would come to his aid or witness what happened.”93 The court further recognized that “[t]he fear of harm . . . at the hands of police is relevant to whether there was a seizure because feeling ‘free’ to leave or terminate an encounter with police officers is rooted in an assessment of the consequences of doing so.”94 The Washington Supreme Court held in State v. Sum95 that a petitioner who identified as Asian/Pacific Islander was seized when a sheriff’s deputy requested his identification while implying that he was under investigation for car theft.96 That case held for the first time under Washington state law that the race and ethnicity of an allegedly seized person are relevant to the determination of whether a seizure occurred. In doing so, the court noted that any objective observer “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.”97
Although Smith, Dozier, and Sum involved adult defendants, the U.S. Supreme Court noted in Mendenhall that race, age, gender, and education are all relevant in the totality of evidence in deciding whether a police encounter was consensual.98 The Massachusetts Supreme Court addressed race and age more directly in its seizure analysis in Commonwealth v. Evelyn99 in 2020. There, the court concluded that 17-year-old Tykorie Evelyn was seized when an officer in the front passenger seat of a police cruiser opened his door after having trailed Evelyn and repeatedly trying to talk with him.100 The court acknowledged the troubled history of policing in Black communities, but declined to decide in Evelyn’s case whether the race of a defendant must be considered in the seizure inquiry.101 The court, however, did hold that age must be considered in the totality of the circumstances when the suspect’s age is known or objectively apparent to the officer.102
These five cases, and others like them, signal a shift in the courts’ recognition of both race and adolescence in the seizure analysis. By locating and embracing those cases, the Restatement could educate readers, provoke more thoughtful analysis, and expand our understanding of the totality of the circumstances in the Fourth Amendment and other legal inquiries. Together, the social context, emerging common law, developmental science, and empirical evidence of racial trauma make clear that race and age are relevant in the regulation of children and should guide courts to more racially equitable outcomes.
2. Reasonable articulable suspicion.
The Restatement would also benefit from a review of relevant case law and research on adolescent development, racial bias, trauma, and the common justifications for a police stop. Here, the blackletter would be guided by the basic articulation in Terry v. Ohio103 that officers must have reasonable articulable suspicion that criminal activity is afoot before they may stop a child.104 Thereafter, the comments, reporters’ notes, and illustrations should highlight the ways in which both adolescence and racial bias distort perceptions of suspicion. Police officers often interpret behaviors like flight, nervousness, and furtive gestures as evidence of a suspect’s consciousness of guilt,105 but even a brief analysis of adolescent development would remind judges that impulsivity, peer influence, and lack of experience influence how children respond in the presence of police. A teenager who is nervous or afraid during a police contact might fidget, avoid eye contact, or even run away without being guilty of any crime. These nervous responses are amplified for youth of color.
As discussed above, youth of color have every reason to fear the police. Empirical research shows that Black and Latino youth who share these fears often experience trauma-like symptoms, such as hyperarousal, trembling, a rapid heartbeat, nausea, excessive sweating, and trouble breathing when they encounter the police.106 Studies also show that youth of color are more likely to feel unsafe, scared, or angry during a stop,107 which can trigger a classic “fight-flight-freeze” response.108 Sometimes the fightflight-freeze response can become so persistent and overactive that it triggers reactions to nonthreatening situations, especially among youth who live in heavily-surveilled neighborhoods and have an extensive history of direct and vicarious contact with the police.109 Unfortunately, these natural trauma responses are often misinterpreted as suspicious.
Reasonable articulable suspicion rests not only on the youth’s behavior but also on the officer’s assignment of meaning to that behavior. Police officers, like most people, have implicit racial bias, especially racial bias that associates Black people with criminality.110 Black youth are particularly vulnerable to a stop and frisk when police evaluate their conduct through a racially biased lens. The Restatement could introduce readers to empirical evidence demonstrating that individuals are more likely to interpret ambiguous facial expressions and innocuous behaviors as threatening and aggressive when associated with a Black face while interpreting those same behaviors and facial expressions as harmless when associated with a white face.111 The Restatement should also educate readers on the many ways racial bias distorts perceptions of Black youth in particular—including research showing that both police and civilians are likely to perceive young Black males to be older, taller, stronger, more muscular, and more threatening than they actually are,112 and that adults tend to perceive Black girls as more mature and less innocent than their white peers.113
The Restatement would also benefit from a discussion of the data documenting racial disparities in stops and frisks of Black, Latino, and other marginalized youth. For example, data show that Latino people are searched at higher rates than white people and report experiencing police use of force at more than twice the rate that white people do.114 Empirical research further demonstrates that Black people congregated in a group are more likely to be stopped and frisked, and are more likely to experience force than white people in a group.115
Most important, the Restatement should review and embrace those judicial opinions—including concurring and dissenting opinions—that have already laid the groundwork for a race-conscious approach to reasonable articulable suspicion. Cases discussing the meaning of flight and nervousness in the reasonable articulable suspicion framework are particularly useful. In Illinois v. Wardlow,116 the key Supreme Court case in which a 5–4 majority held that it was reasonable to infer consciousness of guilt from flight and nervousness, Justice John Paul Stevens wrote a dissenting opinion in which he argued that “flight” can often be attributed to other innocent explanations.117 As he noted, “[a]mong some citizens, particularly minorities and those residing in high crime areas, there is [ ] the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police itself can be dangerous . . . . For such a person, unprovoked flight is neither ‘aberrant’ nor ‘abnormal.’”118
Since Wardlow was decided in 2000, several state high courts have considered race in their assessment of flight and nervousness and have concluded that neither factor alone is per se evidence of guilt, especially among people of color who fear the police. The first state high court to reach this conclusion was Massachusetts when it noted in Commonwealth v. Warren119 that Black men have “reasons for flight “totally unrelated to consciousness of guilt,” such as the desire to avoid the recurring indignity of being racially profiled.120 The D.C. Court of Appeals relied heavily on race-based empirical research and data in Miles v. United States121 to find that a Black man had ample reason to fear police considering “the proliferation of visually documented police shootings of African-Americans that has generated the Black Lives Matter protests.”122 That court held that Mr. Miles’ flight was provoked and not probative of guilt. Taking a similar view as the state courts, the Ninth Circuit concluded in United States v. Brown123 that “[g]iven that racial dynamics in our society—along with a simple desire not to interact with police—offer an ‘innocent’ explanation of flight . . . we are particularly hesitant to allow flight to carry the day in authorizing a stop.”124 Considering nervousness in the more rigorous probable cause standard, the Vermont Supreme Court held that the defendant’s nervousness was only minimally relevant to the question of whether there was probable cause for the search of a vehicle. Referencing Justice Stevens’s dissent and discussion of minorities in Wardlow, the court agreed that “nervous behavior in the presence of police officers could be indicative of illegal behavior but could be completely innocuous. It is not uncommon for citizens to be nervous when confronted by law enforcement.”125
Again, although each of these cases involves adult defendants, the principles they articulate are no less applicable to youth. In fact, given everything we know about adolescent impulsivity, risk taking, peer influence, and the fears associated with policeyouth encounters, these principles should be embraced even more vigorously when children are involved. As the Restatement continues to grapple with the meaning of adolescence in critical legal questions arising out of the Fourth Amendment, it must also consider the intersection of race and adolescence.
3. Consent to search.
As noted in Part II of this Essay, the Restatement already recognizes that youth of color are even more likely than white youth to feel compelled to consent to a police officer’s request for a search.126 Notwithstanding this important acknowledgement, Chapter 12, § 12.10 can be enhanced with a more robust analysis of the role of race in the consent to search inquiry, either by incorporating or referring back to the history, research, data, and common law outlined above in the seizure analysis. In a basic black-letter reading of the law, the state has the burden of showing that consent was freely given and not the result of express or implied duress or coercion.127 The consent analysis not only involves some objective evaluation of the facts and circumstances but is also a subjective inquiry that takes into account personal characteristics and experiences that drive fears and motivate people to act.128 As such, the consent to search law is arguably already better suited to accommodate age and race in the assessment of the voluntariness of a child’s consent.
Multiple courts have explicitly identified race, without further discussion or application, as a characteristic that can impact the voluntariness of consent.129 Other courts have discussed and applied race more directly in the voluntariness analysis. Ironically, the most compelling discussion of the impact of race in a consent to search case appears in Jamison v. McClendon,130 an opinion finding that qualified immunity ultimately protected an officer against a Black man’s § 1983131 claims for damages after his vehicle was unlawfully searched.132 The court noted that “Jamison was a Black man driving through Mississippi, a state known for the violent deaths of Black people and others who fought for their freedom,”133 and emphasized that “Black people in this country are acutely aware of the danger traffic stops pose to Black lives.”134 With this history established as essential context, the court concluded that the “circumstances point to Jamison’s consent being involuntary, a situation where he felt he had ‘no alternative to compliance’ and merely mouthed ‘pro forma words of consent.’”135 The Jamison court offers a thorough and evocative examination of the pressures that Black people feel when asked to submit to a police search and is a useful example for the Restatement to highlight in its effort to expose readers to the history and impact of racial trauma on critical legal questions.
4. Race, adolescence, and interrogation.
Like the search and seizure analysis, the law governing police interrogations is deeply impacted by race and adolescence. Further embracing the developmental science, the Restatement joins a growing number of state and federal courts in recognizing the unique vulnerabilities of youth and the special protections they need when interrogated by police. Outlining the features of adolescence that leave youth vulnerable to involuntary waivers and false confessions, the reporters state that compared with adults, youth are less able to delay their impulses and appropriately evaluate the immediate and long-term consequences of a decision.136 Youth also struggle to comprehend abstract concepts, like their Miranda rights, and are more susceptible to the influence of both peers and adult authority figures.137
The Restatement also acknowledges that race is relevant in the interrogation analysis. In the introduction to Part 3, “Children in the Justice System,” the reporters note that youth of color are more likely to be the target of police suspicion and may be even more susceptible to coercive tactics due to fear of the police.138 The Comment to § 14.20, “Rights of a Juvenile in Custody,” notes that “minority youth” may be instructed to comply with police for their own safety.139 The reporters’ note that accompanies § 14.21, “Waiver of Rights in a Custodial Setting,” discusses the false confessions of five youth in the Central Park jogger case to highlight the difficulties youth have in resisting the pressures of a police interrogation.140 While each of these discussions makes a valuable contribution in the work toward racial equity, each would also benefit from a more thorough and explicit examination of the intersecting effects of race and adolescence in the interrogation context, especially in light of new research on racial trauma and stereotype threat in police interrogations.
5. Miranda analysis: custody and waivers.
The Supreme Court’s ruling in J.D.B. lies at the heart of the Restatement’s discussion of custodial interrogations involving youth. The black letter at § 14.20 recognizes that a child in custody is entitled to counsel and has the right to remain silent when questioned by police about their alleged involvement in criminal activity.141 Following the Court’s lead in J.D.B., the Restatement concludes that age is relevant in the determination of whether a child is in custody for purposes of Miranda and embraces the Court’s recently articulated “reasonable child standard” in its analysis of procedural protections for youth.142 Thus the determination of whether a child is in custody turns on whether a reasonable person of the child’s age would believe their freedom of movement was substantially restricted such that they were not free to terminate the interview and leave.143 The black letter at § 14.21 further notes that a child’s statement to the police during custodial interrogation is admissible only if the child has knowingly, intelligently, and voluntarily waived their rights to remain silent and to assistance of legal counsel.144 The determination of whether a child’s waiver is knowing, intelligent, and voluntary requires an assessment of the totality of the circumstances, again including the child’s age, education, experience in the justice system, and intelligence.145
For all the reasons outlined in this Essay, subsequent iterations of the Restatement should explicitly name race as a relevant and significant factor in both the custody analysis and waiver of rights inquiry. Even now, before the black letter can be revised, the Reporters can use the comments and reporters’ notes to help readers appreciate the fears that youth of color experience in their encounters with the police and enhance protections for those youth who are disproportionately targeted by police. As the Comment to § 14.20 notes, youth of color are even more vulnerable to the inherent coerciveness of any police encounter and may be instructed by parents to comply with an officer’s interrogation out of concerns for the youth’s physical safety.146 Given this reality, youth of color are more likely to focus on their immediate safety instead of evaluating the advantages and disadvantages of waiving their rights and are less likely to believe they can terminate an interview.147 Forensic psychologists have explored the psychological impacts of prior vicarious and direct police contacts on people of color and urge their colleagues to consider the impact of those contacts and other racial trauma in their evaluations of an individual’s capacity to understand and appreciate their Miranda rights.148 Forensic evaluations like these and their underlying research would enhance judicial decision-making in the waiver analysis.
Other relevant research shows that people of color often live with the pervasive fear that they will be stereotyped as criminal solely because of their race.149 People who are afraid of being stereotyped spend a lot of mental energy trying to prevent others from thinking they are criminal. Researchers call this phenomenon “stereotype threat.”150 Expending mental energy in this way creates a “cognitive overload” and depletes the mental capacity individuals need to make reasoned decisions about waiving their rights and the psychological strength they need to resist police pressure during an interrogation.151 Awareness of stereotypes associating race with criminality can also instill hopelessness in people of color, undermining their confidence that any claim of innocence will be believed and increasing their risk of making an involuntary—and even false—confession.152 The Restatement of Children and the Law would benefit from a review of this research as it considers the unique vulnerabilities of youth of color.
6. Voluntariness and coercion.
The Restatement also concludes in § 14.21 that no child’s statement will be admissible unless it was made voluntarily and free of police coercion.153 The Supreme Court first considered the voluntariness of youth confessions long before the familiar Miranda warnings were conceived. In its 1948 decision in Haley v. Ohio,154 the Court acknowledged that a child can be an “easy victim of the law” and that “special care” must be taken in evaluating the circumstances of the interrogation.155 As yet, the Supreme Court has not explicitly opined on the unique vulnerabilities of youth of color to police coercion, but it has acknowledged in Colorado v. Connelly156 that “unique characteristics” matter.157 Without rehashing all that has been outlined in previous sections of this Essay, suffice to say that distrust, fear, and racial tensions in society make youth of color more vulnerable to coerced confessions. The Restatement would benefit from a more explicit analysis of the risk of false and involuntary confessions by youth of color.
The reporters’ note that accompanies § 14.21 of the Restatement discusses the Central Park jogger case as an example of how youth are vulnerable to aggressive police interrogation tactics.158 The reporters remind us that five boys, ages 14 to 16, were wrongfully convicted of raping of a woman in Central Park in 1989.159 In the detectives’ eagerness to solve the crime, police arrested and aggressively interrogated the boys. Four of the five falsely confessed.160 The tragedy of the Central Park Five (now known as the Exonerated Five),161 also presents a powerful opportunity to highlight the unique vulnerabilities of youth of color in police interrogations. Four of the Exonerated Five were Black and one was Latino.162 The zeal with which detectives and prosecutors investigated the rape mirrored the racialized fear of Black and Latino youth in the late 1980s and 1990s.163 The Restatement does not mention the race or ethnicity of any of the people involved in the Central Park case and does not discuss the political backdrop or racialized crime narratives that were propagated at the time. The Restatement’s comment and reporters’ note would benefit from a close examination of the media frenzy and pseudoscientific predictions of an emerging Black “superpredator” that made these five youth particularly likely targets for police coercion and deception.164 The reporters might also highlight the Connecticut Supreme Court, which admonished the trial court in State v. Belcher165 for relying on the racially charged and thoroughly discredited “superpredator” myth in a sentencing and held that the trial court abused its discretion when it denied a youth’s motion to correct the illegal sentence based on its classification of him as a “superpredator.”166
Further, while the comment to § 14.21 does include research and data showing that youth as a class are more inclined than adults to give false confessions,167 the comments should also include data showing that Black people make up over half of all exoneration cases involving false confessions,168 and that Black youth, in particular, account for 66% of all exonerated youth who falsely confessed.169 Fortunately, the reporters have laid a strong foundation for a discussion of race and age in their analysis of the law on interrogations and the admissibility of statements. A few additions could transform that foundation into a compelling summary of how both the developmental research and the research on racial bias and trauma can transform the law to ensure that all youth meaningfully benefit from the procedural protections they need in the interrogation setting.
B Race, Adolescence, Transfer, And Sentencing
Recognizing that many modern courts now accept the developmental research indicating that adolescents are both less mature and less culpable for their behavior and more amenable to change than adults,170 the Restatement embraces rules that call for a less punitive approach to adolescent crime and that seek to reduce the harm legal systems impose on the developmental trajectory of youth.171 Following recent Supreme Court rulings in Roper, Graham, and Miller, the Restatement rejects punitive sentences like juvenile life without the possibility of parole in nonhomicide cases and requires an individualized approach to youth offending that considers the mitigating factors of adolescence.172 Yet, even as the law has adopted new developmentally appropriate rules that reduce the overall number of youths in the justice system, racial disparities persist in criminal courts and suggest that youth of color have not enjoyed the full mitigating benefits of the developmental research.
This hypothesis is bolstered by empirical research finding that when study participants were provided with information about the diminished capacity of adolescents and their amenability to change, the participants were more likely to agree that severe sentences like life without the possibility of parole are not appropriate for youth when they were prompted to believe that the youth involved were white.173 Study participants were more likely to favor harsh sentences when they were prompted to believe the youth involved were Black. Just a oneword shift, from white to Black, changed participants’ views on the appropriate response to serious adolescent sentencing.
To further highlight these disparities for readers, the reporters’ notes in the Restatement would benefit from a brief summary of data showing that Black and Latino youth are significantly more likely to be prosecuted as adults. For example, in 2020, less than 15% of all youth under juvenile court jurisdiction aged 10 and up in the United States were Black, yet Black youth accounted for more than 53% of all youth who were transferred by a judge from juvenile court to a criminal court that year.174 Racial disparities in juvenile transfer exist across the country even among children who have committed similar types of crimes;175 and those disparities are even more pronounced in state records.176 The reporters’ notes should also include data highlighting disparities in the imposition of severe sentences like life without the possibility of parole. Although the overall number of youth serving juvenile life without parole (JLWOP) sentences declined 38% between 2016 and 2020, racial disparities increased.177 While Black youth made up 61% of people serving JLWOP sentences before Miller v. Alabama was decided in 2012, they made up 70% of new cases between 2012 and 2022.178 Youth of color made up 78% of all children who were sentenced to JLWOP between 2012 and 2022.179 Again, racial disparities in JLWOP at the state level are often even more extreme.180
Given the Restatement’s commitment to a Child Wellbeing Framework and extensive reliance on the developmental science, the Restatement’s comments and reporters’ notes would be greatly enhanced by the developmental research showing that youth of all races, classes, and nationalities follow a remarkably similar developmental trajectory and have similar capacities to change. Many studies controlling for socioeconomic status and race have found similar patterns of impulsivity, sensation seeking, susceptibility to peer influence, and limited future orientation across all youth groups.181 These studies challenge racialized presumptions that Black and Latino youth are more dangerous and less amenable to rehabilitation and would aid the courts—and the Restatement—in their quest for equitable decision-making.
C. Other Areas of Opportunity
While this Section has centered on select topics within Part 3, “Children in the Justice System,” the recommendations offered here can apply to a range of topics in and beyond this Part. In Part 4, “Children in Society,” for example, Chapter 16, Topic 2, “Liability for Sexual Activity,” might consider how the adultification of Black boys and girls,182 the longstanding myths of Black sexuality,183 and the perceived increased culpability of Black children184 might impact the law and its application. Chapters 19, “Juvenile Curfews,”185 and 18, “Minor’s Civil Rights and Civil Liberties Outside the School Context,”186 would benefit from a discussion of the disproportionate enforcement of curfew laws against people of color,187 including the enforcement of curfews to restrict protests in pursuit of racial justice.188 Ultimately, this Essay does not purport to catalog every section of the Restatement that might address race but instead identifies those elements of a Restatement—such as reporters’ notes and comments—that provide the greatest flexibility for advancing racial equity and highlights a few examples that address race well and others that could benefit from additional analysis.
CONCLUSION
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.