Discretion in Child Cases Should be Structured to Avoid Discrimination, Schwartz says

March 20, 2009

After 34 years with the country's oldest public interest law firm for children, Robert Schwartz has learned to litigate through relationships and find creative ways to influence his field, he told students last week.

Robert Schwartz

The Center for the Study of Race and Law hosted Schwartz, co-founder and executive director of Philadelphia's Juvenile Law Center. In the organization's first years, its attorneys shared space with a doctor's office and accepted any work they were offered, he said.

"I was a sports official and did baseball and basketball," Schwartz said. "I called it 'arbitration' on my resume."

Decades later, the firm is thriving and has made payroll every year since 1982. The attorneys have narrowed their focus to the most vulnerable children, often those involved in the foster care, child welfare, juvenile justice and criminal justice systems. And race plays a strong role in much of the firm's work, he said.

"Needless to say, given the coercive involuntary systems with which we deal with foster care and juvenile justice, race matters and has always been a backdrop of our work," he said.

Schwartz talked about the role of discretion in children's legal issues, saying the true challenge is in finding ways to structure discretion without eliminating it.

"Much of the work of being a lawyer for kids is trying to change the way discretion is used so that kids are in the most benign, least harmful setting and a situation in which they have the greatest opportunities," he said.

"In our world, every day, decision-makers define children coming out of public systems and in the process, put some in the juvenile justice system, putting others in different child service systems."

He said the system labels children either "bad," "mad," "sad" and "can't add," and sorts them into either juvenile justice, child welfare, mental health or special education systems.

How children are sorted for similar crimes is affected by the traits and conduct of either the children or their parents, he said.

Specifically, children and their parents are classified based on their race and class.

People in power have the option to exercise discretion when making decisions about the futures of these children, he said, and that is where having a positive impact on the use of discretion is beneficial.

Usually, it's best for children to stay out of juvenile detention, and to stay at home with their families.

The Juvenile Law Center has a wider reach than simply helping individual children. Schwartz said they also aim to influence systems locally and state-wide with committee work, and by networking and promoting positive change within bar associations.

Conducting studies, writing articles and speaking to students at law schools are other ways the Juvenile Law Center's attorneys expand their reach and influence.

Building respectful personal relationships, he said, is often more helpful than any other action.

"We learned how to litigate through relationships. There are a lot of things you can do when you know the chief inspector in charge of the juvenile division of the Philadelphia police department that you could do with a phone call and a little respect that solves problems easier than a press conference or a complaint," he said.

"The fact that we're in the position to litigate meant that our phone calls were taken and the problem was solved without litigation."

Schwartz told the students that even 34 years of advocating for children has not prepared him for some of the situations with which he's regularly presented. However, he said, by being prepared, working hard and building relationships, the students will be ready as possible when opportunity knocks

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