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School-to-Prison Pipeline Squeezed in Court, in Class, on the Street

Meridian courthouseATLANTA — If minority students face harsher punishments than white students for the same school infractions in many schools, as plenty of studies say they do, there are also people who want to change that, and the struggle is happening in courts, in state legislatures, in classrooms and at school board meetings.

Nationwide, about 17 percent of all black children in grades K-12 were suspended at least once, according to a 2012 UCLA analysis of 2009-2010 school year data. Take a black child who has a disability and the rate goes up to 25 percent.

For a white child with no disability, the suspension rate was about 5 percent.

According to its authors, UCLA’s Center for Civil Rights Remedies report represents the first effort to analyze and educate about school discipline in nearly every state.

Some districts are more equal than others, it also found. Hundreds of school districts either do not have highly differentiated suspension rates among ethnic groups or they rarely use suspension anyway, or both. By UCLA’s math, 4,504 school districts nationwide have a statistically significant black population. Black students in least 1,400 of those districts are at a 3 percent or less risk of suspension.

schoolppipe_seriesSuspension is a large entryway into what’s called the school-to-prison pipeline: school discipline policies that have the effect of channeling young people out of school and eventually into the juvenile and criminal justice systems.

The federal departments of Justice and Education both say the pipeline is a problem. They battle it with legal action and investigations — like in Memphis, Tenn., and Meridian, Miss., and with support for an initiative to change school discipline policies.

Attacks on the pipeline are coming from other quarters as well.

Professional Pursuit

Law enforcement, judges and state governments are working on best practices on a national level, with three major initiatives rolling out soon.

The Council of State Governments and the International Association of Chiefs of Police are both working on best practices guides for their members. Meanwhile, the National Council of Family and Court Judges is about to send out trainers to 16 jurisdictions that want to learn how to implement the practices that drive down student involvement with law enforcement.

That’s “three very significant and substantial national organizations with a lot of clout who are developing best practices to help local communities” close the school-to-prison pipeline, said Clayton County, Ga., Juvenile Court Chief Judge Steve Teske, who has worked with all three of them.

Teske, an occasional oped writer for JJIE, said once all three initiatives are underway it may be possible to see the end of the pipeline.

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Learn more about school discipline reform trends at the Juvenile Justice Resource Hub HERE.

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His court has been actively fighting the pipeline for almost a decade and driving down Clayton County school arrests. Teske is constantly recruited by other judges and stakeholders for advice and training on his judicially-led model. The demand, he said, is more than one team can handle.

That’s in part because jurisdictions deciding to take their own initiative and working on the problem domain, he said, is growing by “leaps and bounds.”

Lawyers for Texas

In Texas, battles about court and kids take place in court and at the state capitol.

Texas Appleseed, a social and economic justice group, has partnered in filing two legal complaints this year related to the pipeline, said staff attorney Mary Mergler.

One is a complaint to the federal Department of Justice’s Civil Rights divisions about truancy, and Dallas’ answer of fines, followed by contempt of court citations for youth who do not pay.

“Texas is only one of two states that prosecutes truancy as a crime in adult criminal court,” said Mergler. “Dallas County in particular is handling these cases in an especially bad way,” via its Truancy Court, she added. A guilty plea there lands a child with an adult criminal record, she said.

The other is a complaint to the federal Department of Education, which has agreed to investigate southeast Texas’ Bryan Independent School District for alleged ticketing of African-American students at four times the rate of their peers.

(Other groups have used a similar complaint strategy. Starting in 2005, The Southern Poverty Law Center/Southern Disability Law Center went to the Louisiana Department of Education alleging disproportionate minority punishment in three school districts, all of which ended in settlement agreements.)

Back in Texas, Mergler offers kudos to the state legislature on legal changes earlier this year as well. No longer can students get a Class C misdemeanor citation from police for class disruption. It was a “very commonly ticketed offense,” said Mergler, and it sent students to adult courts.

Madison Classrooms

Court plays little part in Madison, Wisc., schools, by contrast.

“We’re struggling as a community to acknowledge that we have racial disparities,” said YWCA Madison CEO Rachel Krinsky.

Her chapter of the YWCA is tackling the black achievement gap and discipline gap in schools as part of its mission to eliminate racism.

In a place where the political culture includes striving to prove liberal credentials and lack of bias, plenty of Madisonites say they “don’t see race,” said Krinsky. Yet African-American students are suspended out of proportion to their enrollment, according to the federal Department of Education.

The YWCA’s approach is teaching restorative justice in schools — rehabilitation of offenders based on reconciliation with victims and the community. Middle or high school students can enroll in an eight- to nine-week elective where the curriculum includes lessons about the pipeline and racial disparities. When the student finishes the class, they become what’s called a Circle Keeper: a kind of student facilitator who can convene “circles” of parents, staff, teachers and other students to help a student who is having a problem.

The point is to discuss the problem, the people or the situations responsible, and what agreements the parties can come to for resolution, Krinsky said.

Though Madison has Teen Court, Krinsky said, circle-keeping is not modeled on it. The point, she said, is to avoid a court-type trial experience.

Chapters of the YWCA have leeway about how they want to work on their mission of eliminating racism — so Madison’s campaign is local.

Some NAACP chapter campaigns are also local. In places like Meridian, Miss., and Broward County, Fla., local NAACP leaders spearhead grass-roots efforts to change school system codes of conduct, discipline matrices and rules governing police on campus.

But in both places, the NAACP worked with a specialist, The Advancement Project, an organization that’s worked to shut off the pipeline since 1999.

Multi-jurisdiction specialist

“When we first got started, zero tolerance was the rule of the day,” said Thena Robinson-Mock, project director of the Ending the Schoolhouse to Jailhouse Track Campaign at the Advancement Project. Now schools are starting to want something better, she said.

At the forefront of the Advancement Project’s strategy is supporting grassroots organizations that are working on closing the pipeline. That’s why their name comes up in connection with local campaigns across the country, like those of the NAACP, Denver’s Padres and Jovenes Unidos, and Durham, N.C.’s SpritHouse.

Groups approach the Advancement Project for help on “amplifying their campaign,” as Robinson-Mock put it, emphasizing that the grass roots lead the campaign and outline what they need help with: lawyers, organizing, communications and so on.

The Advancement Project has also worked in several other states, including New York, Illinois, Virginia and Maryland.

On the national level, Robinson-Mock said, their strategy is to bring stakeholders together at places like conferences that include administrators, teachers, activists and students.

“Looking at the big picture, you’ve got to have all folks involved in this to improve outcomes for young people,” she said.

Task Force Publishes Comprehensive Suicide Prevention Reading

action_allianceA set of publications three years in the making is out, aiming to help prevent suicide among youth in the juvenile justice system.

“Youths who come into corrections, there’s a lot going on in their lives,” that can lead to suicide ideation, attempts, and even death, said Ned Loughran, executive director of the Council of Juvenile Correctional Administrators, and one of the 18 members of the Juvenile Justice System Task Force, an initiative of the National Action Alliance for Suicide Prevention.

What’s now available online is the latest research on suicide in juvenile detention centers, as well as newly-articulated policies to prevent suicide in other points of contact between youths and the system.

About one in three young people who are involved in the juvenile justice system have attempted suicide sometime in their life, according to the Task Force’s literature review.

Loughran’s organization already embraces well-researched suicide prevention programs for youth correction and detention facilities that are built on eight critical components from staff training to mortality reviews.

“Now we’ve expanded it to the whole continuum from arrest to probate to secure detention and non-secure (detention) to aftercare,” said Loughran.

One resource is a set of three fact sheets tailored for court, detention center and probation professionals. The sheets list in simple language statistics about suicide risk and what they can do to help prevent juvenile suicide.

Donald Belau, the director of the Master of Arts in Counseling program at Doane College in Nebraska, another Task Force member, said he and his colleagues looked to a public health model when it comes to getting out the word.

“In a high traffic area people have 10 seconds to pause,” said Belau, and the point is to show them information that “strikes in them a recognition or reflection.”

He continued, “It’s all about managing and reducing behavior that results in self-harm or death …The best way to do that is to get people at the grass roots level aware.”

For more in-depth study, the Task Force also produced reviews of the latest literature and screening tools, and guides to help agencies to collaborate and to design suicide prevention protocols.

One reason putting all the information in one place is important, said Loughran, is turnover in juvenile justice agencies, as well as a common state practice of appointing someone from outside the juvenile justice community to run the agencies.

“Many of them have a steep learning curve,” said Loughran, who’s also a previous commissioner of the Massachusetts Department of Youth Services. “This is such a life and death issue, this is something they need to be vigilant about.”

 

South Florida Squeezes School-to-Prison Pipeline

School board members, Superintendent Robert W. Runcie, partners and students at the signing of the Collaborative Agreement on School Discipline.
School board members, Superintendent Robert W. Runcie, partners and students at the signing of the Collaborative Agreement on School Discipline.

South Florida’s Broward County School Board voted unanimously to sign new rules, written by many hands, which are meant to drive down arrests and their unintended consequences in the state’s second most populous school district.

The Nov. 5 Memorandum of Understanding approved by the school board has its signatories promise “appropriate responses and use of resources when responding to school-based misbehavior.”

Broward County School Superintendent Robert Runcie said the signing of the MOU was a historic day for ending the “schoolhouse to jailhouse pipeline”: school discipline practices that channel fairly inoffensive young people into the criminal justice system.

schoolppipe_series“The agreement brings together district officials and community partners to create an alternative to failed zero-tolerance policies,” he tweeted just after the signing ceremony.

It marks a “return to common sense” in school discipline, said Ft. Lauderdale NAACP branch President Marcia Ellison, who has been pushing for changes for years.

The document specifies how school administrators are to use the discipline matrix and recommends that first-time, low-level offenses be handled at school, even if their act meets the technical definition of a misdemeanor. It also directs all parties involved in discipline to consider a student’s age, history or other potentially mitigating factors.

The signers of the Broward document include the area’s state prosecutor and public defender, the chief judge of the Seventeenth Judicial Circuit, the Broward sheriff, the Ft. Lauderdale police and the state Department of Juvenile Justice.

“All different stakeholders at the table recognize that this is a problem,” said Ellison.

“You have to realize,” said Ellison, “that children who were exhibiting delinquent behavior … that behavior could have been running in the hallway, could be yelling in the cafeteria … could be scribbling on a wall, and that it would be referred to law enforcement.”

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Learn more about school discipline reform trends at the Juvenile Justice Resource Hub HERE.

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And in Florida, she added, that means a permanent arrest record that appears in background checks that employers, the military and others can order from the state.

Many school systems are already following a Broward-like disciplinary model, or are looking into something similar.

But what sets Broward apart is the very broad, deep and complete buy-in, said Alana Greer, a staff attorney with the Advancement Project, a Washington D.C.-based civil rights organization that supports the MOU principles and works on juvenile justice issues in several states.

“They changed the Code of Conduct, they created this agreement, they created an intervention program, all working together so that the programs and policies were all created to support one another,” said Greer.

“We’ve seen districts in places after many years of campaigns and work get to that place,” she said, but “we’ve never seen anyone do it in one move.”

She also said it’s rare to find people who see school discipline as a racial justice issue.

The Nov. 5 document says that youth of color are disproportionally arrested for the same schoolhouse antics as white youth, a pattern that’s been alleged or documented in other jurisdictions.

And in the 2011-2012 school year, Broward arrested more students on campus than any other Florida system: 1,062.

The new Code of Conduct has been in effect since this August. Arrests, suspensions and expulsions are each down by more than 40 percent compared to the same time last year, according to county data.

But in Florida, school boards control policy, so the discipline a child experiences still depends heavily on where he or she lives.

In Jacksonville, the Urban League announced last month that it and other community partners are forming a coalition to push for greater use of civil citations, rather than arrests, for certain juvenile offenses.

“The problem is that Florida is criminalizing youthful behavior,” said David Utter, the director of policy for Florida at the Southern Poverty Law Center, which is part of the Jacksonville coalition.

But the support he’s starting to see for civil citations is “an indication or acknowledgement that for thousands, if not tens of thousands of children arrested in Florida, it’s unnecessary,” said Utter.

In Florida, on-campus arrest rates for grades six through 12 vary by county, according to state numbers.

In the 2011-2012 school year, Broward County arrested eight of every 1,000 students. Dade, which includes Miami, tied for the lowest rate with rural Holmes County, at three out of every 1,000.  The highest was rural Madison County, which arrested 50 of its 1,369 students, or, 3.7 percent of them.

Discovery Imminent in Mississippi School-to-Prison Allegations

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ATLANTA -- Official interviews and evidence gathering will start soon in Meridian, Miss., a year after federal officials accused several agencies of operating a schoolhouse-to-jailhouse pipeline. The case has helped motivate other communities to look more closely at their own schools, said Scott Roberts, who leads the Advancement Project’s Ending the Schoolhouse to Jailhouse Track campaign in Mississippi.

The Department of Justice sued the city of Meridian, Lauderdale County, the county Youth Court judges, the state and two state agencies in October 2012.

The DOJ alleges that the agencies run a “school-to-prison pipeline:” a system that criminalizes youths, especially young people of color, by answering petty rule-breaking with placement in a system that deprives them of due process.

JJIE.org first reported on the case last year.

Two months after the suit was filed, the defendants asked the U.S. District Court judge in Jackson to dismiss the case against the two Youth Court judges.

This month, the judge rejected the motion and scheduled a case management conference for Oct. 7.

That’s when the judge and attorneys from both sides will set ground rules for their case, such as how many witnesses and questions will be allowed, and the timeframe for gathering evidence and filing motions.

“We are not going anywhere. Our children are too important to us,” said Lauderdale County NAACP President John Harris. “We won’t stand by and let our most valuable resource go down the drain without a fight.”

His NAACP chapter was an early mover in the effort to research, document and call for legal action with regard to school discipline.

Meridian City schools are not part of the school-to-prison pipeline case, but they are under DOJ supervision in a similar matter tied to a separate, decades-old desegregation case. In May, Meridian schools signed a consent order to settle DOJ charges that black students face harsher punishment that white students for similar misdeeds.

The order directs Meridian schools to handle minor rule-breaking on campus with school staff instead of police calls, trips to court, and long student suspensions or expulsions.

It also mandates the schools use Positive Behavior Intervention and Supports (PBIS), a discipline system that encourages positive, proactive prevention over reactive punishments for students. The schools must also collect standardized data on rule-breaking and rule-breakers.

“I think we’re moving in the right direction,” said Harris. “Of course we need more transparency with the school system” about the discipline numbers being collected.

Harris sits on a DOJ-mandated advisory board that aims to make sure the schools’ code of conduct mirrors the consent decree.

Meridian started this school year with a leader who took office in 2011, after the DOJ collected the data it used in the complaint against the system. Superintendent Alvin Taylor wrote a public letter at the beginning of this school year saying that PBIS will be fully implemented in every school by the time the students take summer break.

Over two years, the school board’s goals include maintaining safe and orderly schools and brining the graduation rate to at least 85 percent.

“The school-to-prison pipeline is still a very serious issue in Mississippi,” said Scott Roberts.

Roberts is a man on a mission. Or rather, a campaign. He works with the Advancement Project, a Washington D.C.-based civil rights group, and leads its Ending the Schoolhouse to Jailhouse Track campaign in Mississippi.

In a January 2013 report entitled “Handcuffs on Success,” the Advancement Project, the Mississippi NAACP and state ACLU argued that statewide Mississippi too often refers youth to detention centers for “typical adolescent” non-violent behavior.

Besides channeling kids into trouble, the report argued, the system harms teachers, families, communities and even Mississippi’s economic health.

Since it was published, “we’ve definitely seen some serious responses from school districts and probably more from parents,” said Roberts.  Greenville City schools have changed their rules and seen referral numbers decline. Parents and students in DeSoto County formed a group promoting justice in schools, he said.

Next week is the annual nationwide Week of Action on School Push Out, organized by the Dignity in Schools campaign, a nationwide network of juvenile justice, civil rights, legal aid and other organizations. At least nine Mississippi towns will host events.

Plenty of people at the local level “get it” now, said Roberts, they see a thing that they want to change.

It’s less so under the dome in Jackson, however. This year, the state Legislature voted some $7 million in funding to help put armed officers in schools.

On the law enforcement side, the “Handcuffs” report recommends training school resource officers in restorative justice, and hiring other professionals to help with discipline, like counselors and social works.

“This is a work in progress,” said Harris. “We’ve had some wins but there are many more wins that need to take place.”

Nationwide, juvenile justice programs in seven states are involved in open cases with the Department of Justice’s Special Litigation Section: California, Indiana, Louisiana, Mississippi, New York, Ohio and Tennessee. Most are about treatment at detention centers.

Bryan Stevenson Optimistic About Juvenile Justice Trends, But Work Remains

Bryan Stevenson at TED 2012: Full Spectrum
Bryan Stevenson at TED2012: Full Spectrum, February 27 – March 2, 2012. Long Beach, CA.

ATLANTA — The man who took the fight against life without parole sentences for juveniles to the U.S. Supreme Court said he is optimistic about juvenile justice trends, but said there is much work to do in a few areas, most especially around housing youth in adult lockups.

Bryan Stevenson, executive director of the Equal Justice Initiative in Montgomery, Ala., also said the number of states that try juveniles as adults is a problem.

There are 29 states where kids are routinely put in adult jails and prisons, Stevenson said, and “in a kind of perverse way, kids suffer more than adults in these facilities.”

“You put a 14- or 15-year-old in an adult jail who’s awaiting pretrial, they can’t focus on the trial, they can’t focus on defense, they can’t focus on their family and their attorneys,” he said. “They have to focus on survival.”

Then, if a youth is locked up with adults after conviction on a parole-eligible offense, it’s hard for the young person to build up the kind of institutional history that would win them parole. “These kids have three times the disciplinary problems as adults because they’re the targets of so much assault, abuse and violence,” Stevenson said.

The United States must change its narrative about youths, Stephen said in an address to some 450 attorneys and others gathered at the annual summit of the National Association of Counsel for Children.

Or rather, he said, we muct return to what Stevenson sees as the historical norm of considering children as different from adults and properly subject to different consequences.

It was only in the late 1980s that “we categorically gave up on that for thousands of kids,” he said. During the tough-on-crime years, policymakers nationwide, drawing on a narrative that prescribed punishment for both adult and juvenile law-breakers, cracked down on crime with laws like mandatory minimum sentences and mandatory transfer of certain youth to adult courts.

Supreme Court rulings, like the 2012 pronouncement in Miller v. Alabama, which Stevenson argued, may represent a national shift away from the ‘80s and ‘90s narrative of children as predators, and tough-on-crime punitive laws.

The Supreme Court is “probably ahead” of the rest of society in considering children different from adults, Stevenson said.

EJI, a nonprofit, provides legal representation to both youth and adult indigent defendants and prisoners, especially those whose trials are marked by racial bias or prosecutorial misconduct.

California Offers Lessons in Expanding Foster Care

Foster care map
Sixteen states have enacted some sort of extended foster care, and three more have plans in the works, according to Christopher Wu, of the Center for Families, Children and the Courts at California’s Administrative Office of the Courts.

ATLANTA — Some 5,200 former California foster youth aged 18 to 21 are among the first in the nation to join a program meant to ease their transition to adulthood under a federal policy enacted five years ago and the evolving state law that implements it.

Some practitioners on the forefront of the philosophy say it’s a good idea, but offer ideas to other states thinking of giving it a try. For instance, build a coalition that crafts a thoughtful, flexible bill.

California is the “most important early adopter. … It has arguably the most expansive approach to this,” said Mark Courtney, a professor at the University of Chicago School of Social Service Administration who has studied post-foster care young adults in several states. He was speaking as part of a panel at the National Association of Counsel for Children’s annual conference on Aug. 26.

What California is rolling out, and continues to tweak now, is its Assembly Bill 12, signed in 2010, which extends foster care up to age 21. It’s meant to give young people time to work on things like finding a job, applying for school and financial aid, opening a bank account and finding a permanent connection to an adult supporter.

It can come with direct foster care payments to pay for independent living quarters like a dorm, apartment or room to rent.

Another option allows for support while living with biological family. According to Courtney’s research, young post-foster adults are more likely to live with biological family than foster family. One challenge to policy-makers, he said, is “to appreciate how heterogeneous this population is.”

Christopher Wu said California’s extended foster care law is “emblematic” of bipartisan cooperation in the state Assembly on major policy questions over children in care over the last few years.
Christopher Wu said California’s extended foster care law is “emblematic” of bipartisan cooperation in the state Assembly on major policy questions over children in care over the last few years.

California’s law comes in the wake of the federal Fostering Connections Act of 2008.

The federal law does many things, but “one big one” was making it optional for states to expand the definition of child up to the age of 21, making states eligible for key title IV-E federal foster care funds, said Christopher Wu, of the Center for Families, Children and the Courts at California’s Administrative Office of the Courts.

Sixteen states have enacted some sort of extended foster care, and three more have plans in the works, according to Wu’s count.

When Miranda Sheffield was turning 18 and about to age out of California foster care, “it was either you have someplace to go, either transitional housing or the homeless shelter,” the now-27-year-old said. Her situation was “unique” because the woman she calls her “heart mom” took her in, she said. “The experience for my brother and everybody else was much more drastic. They didn’t have those options,” said Sheffield, who is now Fostering Success Connections Peer Advocate at the Children's Law Center of California in Los Angeles.

Peer advocates who are foster alumni are key because they’ve walked in clients’ shoes, said Leslie Heimov, also of the Children’s Law Center. That is, trained advocates who know the law, like Sheffield. “That’s a very important part of the program,” Heimov said.

Heimov started working on AB 12 long before the California Assembly considered it.

“It took us three years to write the first draft” of the legislation, she said.

By “us,” she meant the dozens of groups and individuals who consulted weekly on the bill for years: social workers, their union and management, juvenile justice officials, court-involved youth, foster families, relative caregivers, educators and more.

They wrangled over questions like eligibility for extended foster care.  If a youth must be in education or training to qualify, what is “in school?” One class, a full load, or something in between?  And for working young people, what if they lose a job through a layoff, no fault of their own, should they lose eligibility?

The result was a bill into which so many people put so much work, preparation, education and lobbying that it passed nearly unanimously.

“All of this is emblematic of the collaborative environment on major policy issues regarding children in care that we have enjoyed in California for the past few years,” said Wu, who was also part of the birth of AB 12.

“Not everybody thought it was a good idea,” said Heimov.

They were afraid foster connections would take the pressure off permanence and result in fewer kids reaching permanence by 18.

“It shouldn’t be a pass,” said Heimov. “It’s still something we talk about and we’re trying to balance.”

It’s a complicated act to watch, and is taking years, but may be very instructive for foster care policymakers.

Law Expert Lays out Legal Trends in Childrens’ Cases

John E.B. Myers, a professor at the University of the Pacific’s McGeorge School of Law said the child welfare legal system “is full of faults, and you hear about it  … but it works most of the time.”
John E.B. Myers, a professor at the University of the Pacific’s McGeorge School of Law said the child welfare legal system “is full of faults, and you hear about it … but it works most of the time.”

ATLANTA — An attorney and law professor, author and expert on child maltreatment, said some of the most important questions about evidence in child welfare cases now rolling through courts have to do with Shaken Baby Syndrome, authenticating electronic evidence like text messages, and how to prove or disprove child sexual assault.

“These are developments I think useful to practicing lawyers, either to argue in court or to put in a brief,” said John E.B. Myers, a professor at the University of the Pacific’s McGeorge School of Law in Sacramento, Calif.  He was presenting his ideas, along with a reading list, to some 450 of his colleagues in Atlanta at the 36th National Child Welfare, Juvenile, and Family Law Conference, a project of the Colorado-based National Association of Counsel for Children.

The ability to provide the right evidence is “one of the most essential skills for any attorney,” said NACC Executive Director Kendall Marlowe. It’s especially difficult in child abuse cases, he said, where evidence can often be unclear or opinions differ.

Shaken Baby Syndrome

“There is a big debate right now about Shaken Baby Syndrome,” said Myers.

Shaken Baby Syndrome -- caregivers shaking babies out of frustration -- has been cited in courts for at least two decades as a form of abuse that can cause brain, eye, spinal and other damage.

There’s no question that head trauma is a form of abuse, but as Myers pointed out, U.S. Supreme Court Justice Ruth Bader Ginsburg wrote, (in a dissenting opinion in Cavazos v. Smith in 2011) that doubt has increased in the medical community “over whether infants can be fatally injured through shaking alone.”

Indeed, the Florida Court of Appeals in 2012 agreed with an aggravated child abuse defendant who said he should have been allowed to bring in a biomechanics expert to speak about child accidents and injuries.

But SBS is far from discredited, the Oklahoma Court of Criminal Appeals found in a first-degree murder case. In June 2013, in Day v. State, Judge Clancy Smith wrote “Expert testimony is not rendered unreliable by criticism.”

E-Evidence

As more and more court evidence comes in the form of pixels and electrons sent between computers and phones, via Facebook, text and any other number of programs, attorneys have to figure out how to authenticate that communication.

Courts in Pennsylvania and Massachusetts have recently said the basic principles of authentication are the same, said Myers.  Just as a signature does not prove who inked a handwritten letter, e-mail headers do not prove who sent a message.

Instead, “you put all the circumstances together to authenticate an e-mail or a text message,” said Myers.

For example, looking at a person’s computer hard drive, contents and appearance of a note, or figuring out who has a password on an account.

Or, if harassing texts, for example, stop while a defendant is in jail and restart when he or she is let out.

Proving Child Sexual Abuse

Finally, he outlined principles that are on the forefront on how to prove child sexual abuse — or rather, the question of if it’s provable at all.

“The most important case on that is not a brand new case,” said Myers, but “it’s a very important decision.”

In 2009, the Oregon Supreme Court said in State v. Southard that a physician diagnosis that a child has been sexually abused is inadmissible when there is no physical evidence.

That’s because there is so much debate on how to prove child sexual abuse, that a doctor’s testimony, though valuable, runs too high a risk of prejudicing a jury, as Myers explained Oregon’s ruling.

Reliable expert testimony must speak to complicated mathematical subjects, like the base rate of a certain symptom, and at what rate symptoms are found among abused and non-abused children, he said.

“I’m actually in favor” of allowing expert testimony diagnosing child sexual abuse, said Myers, “but only when it’s done by people who actually know what they’re talking about.”

This does not, he said, include many attorneys.

And any but the very best forensic interview is open to attack, Myers said. A defense attorney must pick apart every question to a child, if the interviewer asked coercive questions, did multiple interviews, taped the talk or used an anatomical doll.

Then there’s another scientific debate on how truthful children are at all, and how much they are influenced by what they overhear or are told. Some scientists say it’s unwarranted to think a child’s elaborateness or consistency of testimony is a marker of truth.

Yet Myers counseled against pessimism. Reading the literature, “you become convinced there is no point in trying to talk to kids; just give up, nothing works,” he said.

But he also said he thinks that focus on failure and falsehoods is itself a bias.

“The system is full of faults, and you hear about it  … but it works most of the time,” he said.

“We sometimes are caught in the moment and forget how far we have come.”

 

Youth Attorneys, Experts Arrive for Atlanta Summit

NACC_logo

National Association of Counsel for Children

ATLANTA — The National Association of Counsel for Children 36th National Child Welfare, Juvenile, and Family Law Conference opens this morning with remarks from Georgia Supreme Court Presiding Justice P. Harris Hines to open three days of discussions on how best and how better to represent young people in courts.

Scheduled topics include the very lawyer-oriented, such as introducing electronic evidence in court, along with updates on hearsay and investigation techniques.

But organizers aim to present a broader picture of best practices in child welfare as well, inviting activists and public interest attorneys to talk about changes in the system and problems that still exist.

It’s the 36th annual conference for the Colorado-based NACC.

Lawmakers Study Neurology Along With New Juvenile Justice Policy Ideas

Elizabeth Cauffman shows a group of lawmakers brains in various stages of development.
Elizabeth Cauffman displaying images of brains in various stages of development.

“Why do most adolescents drive like they’re missing part of their brain? Because they are,” said Elizabeth Cauffman, professor of Psychology & Social Behavior and Education at the University of California, Irvine.

She was speaking to a group of state lawmakers, staff and others at a forum at the National Conference of State Legislatures summit in Atlanta on Aug. 14. The forum topic was using brain science to craft new policies.

The specific pieces that are missing can have much to do with judgment, impulse control and other behavioral aspects of interest to people who work with juveniles.

Physically, the prefrontal cortex — the part of the brain right behind the forehead — is not fully formed until about age 25. That’s the part that handles things like impulse control and emotion, Cauffman said.

According to her research, the brain is still pruning away indirect, inefficient paths among synapses. And those neural pathways are still growing the special cells that speed information among nodes. Additionally, dopamine, the chemical that contributes to happiness, is at its greatest circulation during the late adolescent years.

Georgia state Rep. Wendell Willard (R-Sandy Springs), the sponsor of the state’s 2013 juvenile justice code rewrite, put it differently. The human brain develops like an onion, Willard said, starting with a basic core of skills like seeing and hearing. And “the last to develop is judgment.”

Reginald Betts, who at age 16 was sentenced to nine years in adult prison for a carjacking. He’s now en route to Yale and criticizes the system that channeled him into adult punishment.
Reginald Betts, who at age 16 was sentenced to nine years in adult prison for a carjacking. He’s now en route to Yale Law School and criticizes the system that channeled him into adult punishment.

Author, essayist and spokesman for the Campaign for Youth Justice Reginald Betts fell into the juvenile justice system at the age of 16. The honors student and a friend were arrested for carjacking. Betts was immediately scared, and confessed within seconds of being arrested.

“I was automatically transferred to adult court,” said Betts. And treated like an adult during his nine-year sentence.

The young Betts, though he was already studying physics and calculus and was on the way to college, was still growing the part of his brain that governs emotions.

People know the difference between right and wrong just as well as adults by about the age of 16, according to Cauffman. In scientific terms, they are at near cognitive parity with an adult: they can understand what happens to them in court, for example.

But they can’t yet control their emotions and impulses, she said. That’s the underdeveloped prefrontal cortex.

Now Betts is on his way to Yale Law School, but he lamented that his judge, prosecutor, defense attorney and lawmakers lacked the “imagination” to see him as anything but a criminal.

He said he is still asked by every landlord if he has a criminal record and that Howard University turned him down because of his felony conviction as an adult.

Sealing records for youth offenses is something lawmakers nationwide might do well to look into, said Maria Schneider, assistant state attorney for the 17th Judicial Circuit of Florida.

In Schneider’s state, completing a diversion program can erase a young person’s criminal record. But an arrest can still be visible.

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Maggie Lee / JJIE

“We had kids going on job applications who said they had no record,” said Schneider. But when employers order a Florida background check and see an arrest, they figure they are catching applicants in a lie, Schneider said.

“We don’t need to hold these kids back” if they are really reformed and rehabilitated, she said.

Schneider noted that for adults, we have a “penal” system, a system for punishment; and for youth, a rehabilitative system.

Maybe it would be worthwhile, she told the legislators, to have a conversation about a bigger part for rehabilitation, rather than punishment, when locking people away.

MacArthur Pledges New $15 million to Juvenile Justice Reform

ATLANTA — The John D. and Catherine T. MacArthur Foundation announced it will increase its juvenile justice reform funding by some $15 million, a major part of which will be used to establish the new Models for Change Resource Center Partnership.

“Right now there are no go-to places to get the kind of information, resources, toolkits, [and] access to colleagues who have ‘been there done that,’” for would-be juvenile justice reform advocates, said Laurie Garduque, director of justice reform for the MacArthur Foundation.

Laurie Garduque, director of juvenile justice reform for the MacArthur Foundation, announced the new $15 million juvenile justice spending at a state lawmakers conference in Atlanta.
Laurie Garduque, director of juvenile justice reform for the MacArthur Foundation, announced the new $15 million juvenile justice spending at a state lawmakers conference in Atlanta.

Garduque said the Partnership aims to be that place people call when they want to make the kind of policy changes the MacArthur Foundation says result in better outcomes for kids and communities: rehabilitation, treatment in home communities and competent legal defense, among other things.

Creating the Partnership is the latest round in nearly two decades of MacArthur research, funding and advocacy on juvenile delinquency treatment and prevention.

The announcement came at the 2013 summit of the National Conference of State Legislatures, an annual gathering of some 5,000 state lawmakers, staff, advocates, lobbyists and others. NCSL will be one of several allies that MacArthur will tap to help coordinate and push juvenile justice reforms, according to the Foundation’s announcement.

That’s the the other half of what the Partnership aims to do, said Garduque: make sure people like legislators, sheriffs and court administrators see MacArthur-researched juvenile justice practices when they get together and discuss their own best practices.

The Partnership will set up four go-to centers in different policy areas: Mental health training and care, legal defense, status offense reform and a more general juvenile justice center focused on court-involved youth. The last center will be led by the Robert F. Kennedy National Resource Center for Juvenile Justice.

The work the National Juvenile Defender Center (NJDC) will do as one of the four resource centers will be familiar, said NJDC Senior Policy and Communications Associate Rey Banks.

Rey Banks of the National Juvenile Defender Center says joining the new MacArthur Partnership will add the gravitas of the respected foundation to her office’s work.
Rey Banks of the National Juvenile Defender Center says joining the new MacArthur Partnership will add the gravitas of the respected foundation to her office’s work.

The scope of work as a partner to MacArthur will be familiar because “we are a resource center already,” said NJDC Senior Policy and Communications Associate Rey Banks. The Washington, D.C.-based NJDC links up juvenile defense reformers with case studies, research, examples from other states, expert testimony and other resources.

“This brings the gravitas of the MacArthur Foundation to our organization,” said Banks.

In mental health, the Partnership Resource Center will be the Center for Mental Health and Juvenile Justice, (NCMHJ) based in Albany, N.Y.

Becoming a Resource Center is “the next major step up the ladder,” said NCMHJJ Director Joseph Cocozza.

The NCMHJJ already works in 16 states, helping juvenile justice systems handle youth who have mental health disorders. That can include diverting certain youth and treating them appropriately when they must be in custody.

The center “will be an opportunity and mechanism to spread the message nationwide,” said Cocozza.

The Partnership is expected to be fully operational by the end of 2013.  The new spending brings MacArthur funding of juvenile justice programs to $165 million, according to the Foundation.

Editor’s note: The MacArthur Foundation is a supporter of the JJIE.