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Attorneys Need to Be Alert to Youth Who May Be Put in Solitary

Tamar BirckheadSometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.

Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.

Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet delays caused by court congestion kept pushing back the trial date.

hub_arrow_2-01Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.

 

As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.

Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”

Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22.

Earlier this week, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would also affect the 10,000 adult inmates serving time in isolation.

After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”

Although the federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently based on their cognitive and psychological capacities. The ban also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.

One important aspect of the discussion of the solitary confinement of youth that has received little attention is the role of race and socioeconomic status. Research has demonstrated that young people of color — like Kalief Browder — are more likely to be placed in the juvenile and adult court systems, to remain in them longer and to experience more punitive sanctions than whites.

This trend is true even when controlling for a variety of factors, including the severity of the offense, and it is particularly true for drug and weapon possession cases, despite higher rates of drug use and possession by white youth than youth of color.

[Related: Important First Steps to End Solitary Confinement for Youth in Federal Prisons]

Similarly, families of means inevitably have greater access than low-income families to voluntary mental health services and other services to treat conditions that can trigger referrals to juvenile court as well as contribute to the likelihood of probation violations. Browder, for instance, had previously been on probation as a “youthful offender” for joyriding, which the judge cited as the reason for holding him after the theft charge. Wealthier families are also more likely to be able to post bail, which Browder’s family could not do.

These trends are compounded by probation officers who assume that all impoverished neighborhoods are high risk and dangerous for youth, increasing the likelihood that they will recommend incarceration for these adolescents, rather than community-based treatment or counseling.

With higher percentages of children of color and poor children charged and then detained in the juvenile and criminal justice systems, higher percentages of them are consequently held in solitary confinement.

At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or other youth advocates willing to expose the practice, report it to the appropriate parties and advocate for its ban.

Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.

Attorneys representing incarcerated young people should regularly ask their clients about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.

If an attorney suspects the excessive use of isolation, she should immediately bring the situation to the judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, she should file a motion for review of the conditions of confinement. The lawyer should also contact the administrator or the licensing or regulatory agency for the facility holding the juvenile.

Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.

With this week’s executive action ending the solitary confinement of juveniles in federal prisons, President Obama has continued to shine a spotlight on some of the most egregious aspects of the criminal justice system. He is the first sitting president to visit a federal prison. His initiative My Brother’s Keeper has funded housing programs for adults and juveniles just released from prison and established second-chance programs to give young offenders the opportunity to enter the workforce.

Kalief Browder’s short life continues to have meaning. As the president wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”

Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill School of Law.

More related articles:

Nebraska’s Solitary Policies Vary Widely, Need Reform, Says ACLU

NY Activists Urge End to Solitary Confinement in Corrections

New Jersey Laws Could Pave Way for More Reforms

Will Supreme Court Decision Be Death Knell for Life Without Parole?

Tamar BirckheadIf I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.

In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.

In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.

At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.

Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.

Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.

Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.

In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”

Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.

[Related: Court Decision Brings Hope, Uncertainty for Juveniles Sentenced to Life]

Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.

This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.

In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.

The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”

The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.

With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.

In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”

It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.

Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.

With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”

Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill School of Law.

More related articles:

Man Jailed 50 Years for Murder Is at Center of Supreme Court Hearing on Youth Life Sentences

OP-ED: California Bill Can End Solitary Confinement for Youth

OP-ED: Juvenile Defense Practice — Small Steps Can Have Ripple Effects, One Case at a Time

Tamar BirckheadRecently I was in juvenile delinquency court in North Carolina with one of my clients, whom I’ll call Alexis. The 13-year-old African-American girl had just heard from the judge that she would continue to be detained in a juvenile jail as she awaited placement in a residential facility for treatment of her mental illness. Alexis had originally been charged months earlier with a minor misdemeanor resulting from an incident at school. Since then, she had repeatedly left home for days at a time and stopped taking her medication, necessitating — the judge, prosecutor and probation officer all believed — some form of detention. From a juvenile defense perspective, Alexis admittedly had few options, as her mother did not have the financial means to keep her secure and safe at home while we waited for a bed to open up in the treatment facility.

Alexis had already been held for nearly six weeks, and she was understandably upset to learn that she would continue to be detained. Her eyes were filling with tears, and she knew that she couldn’t contain her feelings of frustration in this very public forum.

Alexis stood up from her chair at counsel table and said loudly that she wanted to leave the courtroom and go back to the cell block to calm down. The judge seemed to understand and nodded her head.

Alexis was not in handcuffs, but her ankles were shackled together with leg irons. Although North Carolina law requires a judge to find that physical restraints in the courtroom are "reasonably necessary to maintain order, prevent the juvenile's escape, or provide for the safety of the courtroom," in many of North Carolina’s counties leg irons are routinely placed on juveniles arriving for court appearances from a detention center without judicial findings.

hub_arrow_2-01A review by The Center on Children and Families (CCF) at the University of Florida Levin College of Law indicates that juvenile courts in 28 states regularly shackle detained juveniles during court appearances. CCF's observation study of Florida juvenile courts has found that most juveniles, regardless of the charge or the hearing result, were compliant in the courtroom and that courtroom behavior was no different regardless of whether they were shackled.

As Alexis walked from the middle of the courtroom to the door leading back to the cells, the court officer began to place his hands on her.

“Don’t touch me,” she said.

The officer did not reply and firmly put his hands on her arm and her shoulder.

“Don’t touch me,” she said again, backing away from him.

Stunned, I watched as the officer then put his arm around Alexis’ neck in a tight grip and pulled her — a small, thin girl — out of sight and toward her cell.

He pulled her like she was a dog.

He pulled her like she was nothing.

After they left the courtroom, the rest of us sat in silence, hearing her cries on the other side of the metal door.

I have since learned that the court officer was not disciplined for his actions. On the contrary, he took out a criminal complaint against 13-year-old Alexis for resisting, delaying or obstructing an officer in the midst of his duties, a criminal offense under North Carolina law. The matter is pending, and I'm hoping that a delinquency complaint does not ultimately issue against Alexis.

This one episode in juvenile court, a single snapshot of the often heartbreaking scenes that occur there, raises more questions than it clarifies. Why was Alexis shackled when there was no evidence that it was "reasonably necessary" to maintain order or prevent her escape? Why had she been confined in a punitive setting for weeks at a time when she desperately needed mental-health treatment in a therapeutic setting? If Alexis had been white and middle class, would her treatment by the court system have been different? For those of us who work with youth, the myriad of challenges that our clients face can become overwhelming, even to us.

I try to learn from such incidents, however, and renew my commitment to rigorous advocacy. The next time Alexis or another client is brought to the courthouse from the detention center, I will insist that all shackles, including leg irons, be removed before she enters the courtroom and that the judge make written findings if my request is denied. This one small shift in my practice has parallels outside the courtroom as well, as a renewed commitment to advocacy by those who work with youth in other settings can also make a difference. Such a shift may not bring about systemic change, but it could have a ripple effect, which is often all that any of us can accomplish.

Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill.  

OP-ED: Inaction and Unbudging Tally Keeps Our Juvenile Courts the Same

Tamar BirckheadOne recent morning I sat in juvenile delinquency court on the fifth floor of the county courthouse in Durham, N.C., and kept a bleak tally. A 14-year-old boy admitted to a larceny charge for having stolen a video console and games from his neighbor, a serious crime — a felony, because the property was worth more than $1,000. The boy was thin and wiry, and had a blank expression. He wore jeans, a long-sleeved shirt and no coat, despite cold temperatures. He was African-American.

A 15-year-old boy was charged with larceny of an iPhone and possession of marijuana. His lawyer told the judge that when the boy was sleeping during “in-school suspension,” someone had placed another classmate’s iPhone in his coat pocket. As soon as the teen had awoken, he gave the phone to the school resource officer, yet he was still charged. In the courtroom, the boy stood up straight, dutifully said “yes, sir” and “no, sir” to the judge, and was placed on probation for a year, a disposition that could lead to incarceration for up to five days, placement with the Department of Social Services or nine months in a boot camp. He also was African-American.

Another 14-year-old boy was charged with assault with a dangerous weapon inflicting serious injury, a violent felony, for a scuffle with an older teenager who was an alleged gang member. The “dangerous weapon” was a small hand weight the boy carried for protection. The “serious injury” was a deep cut to the older teen’s head, which had been injured after the boy threw the weight in anger. The boy stood nervously with his mother, who spoke no English. He was Latino.

There were several other cases on that morning, and the pattern continued: young teenagers — either black or brown — who were charged with criminal offenses typical of adolescence. They had taken things that didn’t belong to them, used illegal drugs or gotten into fights. Yet, in a metropolitan area with a population of 288,000 that is 42 percent white, 38 percent black and 13 percent Latino, there was not one white child in the courtroom.

Having practiced in the juvenile courts of this Southern purple state for the past decade, I can report that this latest tally was not unusual. In fact, according to the federal Office of Juvenile Justice and Delinquency Prevention, children of color are significantly overrepresented in juvenile courts across the U.S. While white children are occasionally charged with criminal offenses, the vast majority are African-American or Latino.

That same week I watched the new documentary, “Kids for Cash,” a chilling tale of corrupt juvenile court judges in Luzerne County, Pa., who took kickbacks of nearly $2.6 million to build two private, for-profit detention centers. From 2003 through 2008, the judges committed hundreds of children to these facilities following brief court appearances during which the children unknowingly waived counsel and admitted guilt to minor offenses. Many then spent months or years separated from their families, leaving them profoundly damaged. Thanks to the dogged advocacy of lawyers Marsha Levick and Robert Schwartz from the Juvenile Law Center in Philadelphia, the judges were eventually convicted in federal court and themselves sentenced to lengthy prison terms.

What struck me most about the film was not the unusual nature of the cash kickbacks but the fact that the real tragedy in Luzerne County — like Durham, where I practice, or your own local juvenile court — was the inaction of others, including probation officers, prosecutors and defense attorneys, who all stood by and said nothing.

As I sit in these courtrooms, I try to remain conscious of my own role in perpetuating a system of racial and socioeconomic inequality. Have I failed to speak? Have I failed to act? Weeks, months and years pass, and the composition of the children in juvenile court remains the same. I know that I am not doing enough, but it is not clear what can or should be done. I only know that whenever possible, I am driven to keep our young clients out of the juvenile justice system, because it is very difficult for them to get out.

Tamar Birckhead is a criminal defense attorney, law professor and director of clinical programs at the University of North Carolina at Chapel Hill.  

OP-ED: Juvenile Lifers: Reason for Hope?

Tamar BirckheadThe Supreme Court has again deflected an effort to clarify whether its landmark 2012 decision in Miller v. Alabama banning mandatory life without parole sentences for juveniles should be applied retroactively. It was the second time this term and at least the fourth time since June.

The Court’s Dec. 1 refusal to hear an appeal of an Illinois Supreme Court ruling allowing for retroactive application means that at least 80 of the 100 inmates serving juvenile life without parole in that state will now have an opportunity for resentencing.

While the fate of an estimated 2,000 individuals across the United States who are currently serving mandatory life-without-parole sentences for homicide offenses committed as minors still remains unclear, post-Miller decisions in state supreme courts and state legislatures suggest they may have reason to hope.

To put in perspective the latest deflection, each year the Court receives some 10,000 petitions to hear cases. The justices and their law clerks then narrow the list down to about 80 for review. In most cases, including this one, the Court offers no explanation for its decision either to grant or deny certiorari (review).

Of four recent petitions that the Court has declined to review on whether mandatory juvenile life without parole should be applied retroactively, two were appealing state court decisions that allowed for retroactivity; the other two were appealing ones that had denied it.

Miller v. Alabama was the third in a recent series of juvenile sentencing decisions from the Court that interpreted the Eighth Amendment’s ban on cruel and unusual punishment. Roper v. Simmons, decided by the Court in 2005, banned the use of the death penalty against juvenile offenders. Graham v. Florida, decided in 2010,banned life without parole sentences for juveniles convicted of non-homicide offenses.

With Miller, the Court effectively struck down laws in approximately 28 states, as well as federal statutes that required mandatory, non-parole-eligible life sentences to be imposed on individuals under 18 who were convicted of homicide.

According to the Campaign for the Fair Sentencing of Youth, Miller also led six states (Delaware, Hawaii, Massachusetts, Texas, West Virginia, and Wyoming) to abolish juvenile life without parole sentences in their entirety and five others (California, Florida, North Carolina, Pennsylvania, and Washington) to severely limit its use. On a national level, in October, the Criminal Justice Section of the American Bar Association passed a resolution, likely to become ABA policy in February, calling on states and the federal government to abolish juvenile life without parole.

The Miller Court, in its 5-4 ruling, called for individual review of each case and careful consideration of the classic hallmarks of adolescence, including immaturity, impetuosity and the failure to appreciate risks and to assess consequences. Miller also required sentencing judges to recognize the impact of the child’s family and home environment as well as the child’s role in the offense and potential for rehabilitation.

The Court said discretionary life sentences for minors should be rare. Justice Elena Kagan, writing for the majority, declared:

Given all that we have said in Roper, Graham, and this decision about children’s diminished culpability, and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.

Since the Miller decision, state legislatures have been slow to respond. But in fact, that may not be a negative development.

According to the Sentencing Project, 15 of the 28 states affected have not passed compliance legislation. However, of the 13 that have passed new laws, 11 require young offenders to serve lengthy terms ranging from 15 to 40 years before parole review can even be considered.

In Missouri, the lack of legislative action has actually produced a more positive result through the state’s supreme court, which ruled in State v. Hart that prosecutors must persuade the jury beyond a reasonable doubt that a life without parole sentence is “just and appropriate under all the circumstances.”  So far, the state has been unable to secure such a sentence.

The central, unanswered question by the Miller Court is whether the decision applies to those estimated 2,000 individuals sentenced before 2012 to mandatory life-without-parole sentences for homicides committed as minors. If it does, these offenders could receive new sentencing hearings, and, possibly, new sentences.

If not, the life sentence would stand, forever foreclosing the opportunity for a judge to consider the young offender’s individual characteristics and circumstances.

With repeated denials of certiorari in the past six months, the Supreme Court appears content to allow individual states to resolve the issue of retroactivity, despite a clear split among state supreme courts as well as federal circuit courts. Traditionally, such splits warranted the Court's review of so-called percolating issues; but since judicial review is discretionary (requiring at least four of the nine justices to agree to accept a case), it is difficult to predict if or when the Court will address the issue.

Meanwhile, there have been a growing number of state court decisions in which  the majority ruled  in favor of retroactivity. In October, the Court let stand the Nebraska Supreme Court’s decision in Nebraska v. Mantich to apply Miller retroactively. In addition to Nebraska and Illinois, seven other state supreme courts have applied Miller retroactively to juvenile offenders whose homicide conviction was final before June 25, 2012: Iowa, Massachusetts, Mississippi, New Hampshire, South Carolina, Texas and Wyoming.

In June, the Court let stand the Pennsylvania Supreme Court’s decision in Cunningham v. Pennsylvania not to apply Miller retroactively, and in October it let stand a similar decision from the Ohio Court of Appeals. Supreme courts in three other states — Louisiana, Michigan Minnesota — have also ruled that it does not apply retroactively, while those in Alabama, Colorado, Florida and North Carolina (among others) are still considering the retroactivity issue.

As for the federal courts, no appellate courts have squarely decided for or against Miller retroactivity, although there have been recent arguments in the 4th and 8th Circuits, and a case that’s being briefed in the 3rd, where decisions will all be forthcoming.

A number of circuits have addressed the strength of the retroactivity argument in assessing whether to allow habeas petitions from prisoners serving juvenile life without parole.  At least six (1st, 2nd, 3rd, 4th, 5th and 8th) have allowed these petitions to go forward, while two have not (5th and 11th). None of these rulings, however, is either precedential or appealable.

Federal district courts have also begun to rule on the issue, with decisions on both sides. It is possible that the Supreme Court is waiting to see how other lower courts sort out the question of retroactivity before it addresses the issue itself.

Time may actually prove to be an ally.  If state supreme courts continue to find Miller retroactive and order resentencing hearings, and as judges begin to conduct those hearings, the Supreme Court may be hard pressed to rule against such a trend.

The Court's latest decision will have an immediate impact on one particularly high-profile case in Illinois. In Illinois v. Davis, the state court had allowed Addolfo Davis to apply for a review of his original LWOP sentence. In 1990, Davis, then 14, was accused, along with two older teens, of fatally shooting two people and injuring two others from a rival gang in Chicago. There was conflicting testimony during the trial about whether Davis himself fired a weapon or had merely stood by the doorway while his co-defendants forced their way into the apartment where the shooting occurred.

Although neither testimony nor forensic evidence established that he injured or shot anyone, he was ultimately convicted and sentenced under an Illinois law requiring life without parole for first-degree murder.

Because of the mandatory nature of the state statute, the sentencing judge was prohibited from considering Addolfo's youth, family background, role in the offense or any other potentially mitigating factors.

At the time of the crime, nearly 25 years ago, Davis was 5 feet tall and 100 pounds. He was raised by his grandmother, who worked long hours to support her husband, who was disabled and bedridden, a son with an intellectual disability and a drug-addicted daughter, who was Addolfo's mother. They lived in a building’s cellar that lacked separate rooms or a kitchen; there was only a refrigerator and electricity from an extension cord connected to the landlord’s upstairs apartment. When he was 9, Davis committed his first crime — grabbing the purse of a woman at a gas station to pay for something to eat. Drawn to older men in the neighborhood who were gang members, he quickly learned how to steal cars and deal drugs.

Less than a year before the shootings, Davis could barely read or write and was displaying signs of mental illness. He was reported to bang his head against the wall, burn himself with cigarettes and jump from the roof of one building to another. Despite recommendations that he be placed in a psychiatric facility, the Illinois Department of Children and Family Services put him in a temporary shelter that experts had described as a “human warehouse.”

Soon after, he ran away, and the murders took place five days later.

Davis is now 38. He is incarcerated at Menard Correctional Center near the southern tip of Illinois. He writes poetry and has earned his high school equivalency degree. With the Supreme Court’s decision, he finally has the opportunity to demonstrate the basic premise behind Miller: that children are not merely miniature adults and that they have the unique capacity to change.

Tamar R. Birckhead is an associate professor and director of clinical programs at the University of North Carolina at Chapel Hill School of Law. This essay is jointly published by The Crime Report and the Juvenile Justice Information Exchange. Birckhead welcomes comments from readers.

OP-ED: ‘Kiddie Court’ Is No Joke to Juveniles

Tamar Birckhead new head shotA client of mine, who I’ll call Deanna, was a 15-year-old in the ninth grade at a public high school in North Carolina. She lived with her mother, who was unemployed, and two younger brothers in government-subsidized housing. She had never been in juvenile court, and had an unblemished school disciplinary record. She was struggling academically, however, in danger of failing algebra.

A rumor circulated among students that someone was going to “shoot up” the school on Dec. 21, the date signifying the end of the phase of the Mayan calendar thought by some to represent the end of the world.

The police officer assigned to the school interviewed several students to determine who started the rumor. A ninth-grade boy claimed he heard it from Deanna. When questioned, Deanna denied starting the rumor but admitted she had seen something about it on Facebook and mentioned it to her friends.

The rumor quickly spread, and the school community became alarmed. Administrators sent an email to the district relaying the rumor and advising parents to keep their children home from school on Dec. 21 if they chose.

In January, the school officer filed a juvenile delinquency complaint against Deanna, alleging that she had committed the serious felony of making a false report concerning mass violence on educational property. An element of that complaint requires proof that the juvenile knew or had reason to know that the report was false.

The complaint was assigned to a juvenile probation officer (JPO), whose evaluation consisted of a 20-minute interview with Deanna and her mother, during which Deanna had no right to counsel and received no information about any other rights she might have.

The JPO authorized the complaint to be filed as a juvenile delinquency petition, following her office’s practice that complaints that allege felonies are presumptively approved. She conducted no independent investigation or analysis of evidence. The cursory intake interview, which focused on Deanna’s mediocre grades and her mother’s unemployment, merely confirmed for the JPO that juvenile court involvement was warranted.

Deanna’s initial court appearance was in February. The judge notified her that counsel would soon be appointed. By then, however, Deanna had already received a 10-day school suspension and had missed yet another day of instruction to appear in court.

Deanna became increasingly anxious and upset. She was teased at school for having been suspended, and she worried her friends would find out about the pending criminal charges. Meanwhile, her mother’s job hunt was repeatedly interrupted by the case, increasing tension at home. By the time she met with her public defender, Deanna only wanted the case to end, imploring, “Can we just move on and say I started the rumor? This is stupid.”

Deanna’s entry to the juvenile court system is representative of how many young people find themselves in U.S. delinquency courts. Deanna was accused of typical adolescent misconduct committed in a school setting, which is one of the primary feeders into juvenile court. Since the mid-1990s, zero-tolerance policies in public schools have led to children being criminally charged for misbehavior that previously would have been addressed through internal school procedures. As a result, Deanna not only received a two-week suspension, she was also questioned by a police officer, interviewed by a JPO, adjudicated in a public forum and placed on court supervision for at least 12 months, with a variety of conditions imposed on both her and her parents.

Although the media, members of the public and even some JPOs, prosecutors and judges colloquially refer to juvenile court as “kiddie court,” presuming it has few negative effects on children, research indicates that the impact of juvenile court processing — such as Deanna’s — is not benign. Potential negative consequences of juvenile delinquency adjudications are felt in areas such as housing, employment, immigration and education, as well as enhanced penalties for future offenses.

Deanna’s felony adjudication, for example, could be used against her in the contexts of pretrial release, plea negotiation or sentencing if she were to face new charges as an adult in criminal court.  The prosecutor could invoke it during a bail hearing to support an argument for a higher bond or during plea-bargaining to push for a more punitive sentence. It could also potentially hinder her ability to obtain employment and college admission, as well as financial aid. Furthermore, longitudinal studies have shown that children exposed to juvenile court reoffend at higher rates and are stigmatized by even the most minimal contact with the court system.

We also know that contact with the juvenile justice system is inherently criminogenic, and that when young people perceive court procedures to be unfair, they reoffend at higher rates. We know that detention, even for short periods of time, can be damaging to a child’s emotional well-being and that it exposes young people to the risk of physical and sexual assault. We know that long-term commitment exacerbates the conditions of those with pre-existing behavioral and mental health problems, which includes a significant subgroup of those who enter the juvenile court system. We know that reducing the rate of juvenile incarceration does not increase juvenile crime or violence, and that the number of cases that are either diverted or petitioned approximates the same percentage of youth who have been found to grow out of delinquent behavior through normal adolescent development without any court intervention.

Yet we continue to use the juvenile justice system as the primary safety net for many poor children and their familiestwitter-bird-small. We allow those children with the most needs to be fast-tracked through an indiscriminate intake system. We watch passively as they are saddled with the stigma of juvenile delinquency adjudications and are often warehoused for months or years in juvenile detention facilities.

Imagine if Deanna were from a family of means, with two college-educated parents who were gainfully employed. Imagine that she had ready access to tutors and therapists. Picture her living in a well-tended home. Would this have made a difference at intake? Would the JPO have recommended some alternative to formal issuance of a felony petition? What separates these two versions of Deanna? Until the intake process is restructured, we will continue to have a juvenile court system in which the only logical answer to this question is socio-economic status.

Tamar. R. Birckhead is associate professor of law and the director of clinical programs at the University of North Carolina School of Law whose research on the juvenile court intake process was published in the Fall 2013 Texas Tech Law Review.

OP-ED: The Solitary Confinement of Youth

Tamar Birckhead new head shotIsmael Nazario was raised in Brooklyn, N.Y., by his mom, a single parent who always emphasized the importance of education and doing well in school. When Ismael was 13, his mother was diagnosed with breast cancer. As she underwent chemotherapy and radiation, Ismael began to struggle.

By 10th grade, he had lost interest in school and instead spent his time smoking marijuana and talking to girls. At 15, he got into a scuffle with another student and was arrested, placed in handcuffs and taken to the police station. A year later, at age 16, he was charged with assault and sent to Rikers Island jail to await resolution of his case.

There he was attacked by four inmates who demanded his phone privileges and commissary food and required him to ask their permission before sitting in a chair or using the bathroom. Ismael quickly learned that in order to survive, he needed to be ready to fight.

Although Ismael’s assault charge was ultimately dismissed, the two months that he spent in jail changed the way in which he saw himself and his place in the world. The following year, at age 17, he was once again held at Rikers — this time for two alleged robberies — as he could not afford to post bail. After getting into a fight with a group of other inmates, which guards characterized as inciting a riot, Ismail was placed in solitary confinement.

While there, he hallucinated, paced, talked to himself, cried and screamed. The New York City Department of Corrections disciplinary rules allow for inmates to be sentenced to punitive solitary confinement for such seemingly minor infractions as horseplay, noisy behavior or annoying a staff member.

Before Ismael left Rikers two years later, he had spent more than 300 days in “the box,” a six-by-eight-foot cell containing a bunk, sink, toilet, and metal door with no natural light and a small mesh window through which food is delivered. His longest stretch in solitary lasted four months. All of his time incarcerated at Rikers was in pretrial detention — he had not yet been convicted of a crime.

Ismael Nazario’s experience is representative of the many thousands of young people who are held in isolation on any given day across the globe. I’ve conducted new research that reveals that approximately 30 percent of the world’s countries either employ the practice or legally condone its use.

Whether the young person is held in a juvenile or immigrant detention center, adult jail or prison, the common denominator for all these settings is that the individual is under the age of 18, removed from the general population of the facility, and kept alone in a room or a cell for 23 hours each day, with one hour of exercise in what is often a small cage.

Frequently the triggering event for imposing isolation is a relatively minor misbehavior that violates the facility’s rules. Large percentages of teenagers in solitary have diagnosed mental health problems. Solitary may also be imposed during pretrial detention to coerce suspects into confessing or pleading guilty.

Government entities have long justified the practice of solitary confinement on only a few grounds. U.S. Bureau of Prisons regulations stipulate that solitary confinement is warranted to ensure the safety and security of the facility or as a sanction for committing a prohibited act. Corrections officers maintain that solitary is the best way to prevent violence among inmates, many of whom are mentally ill, and is necessary for prison guard safety. Studies have found that isolation is one of the key correlates for reports of illness, self-mutilation and jail suicides.

When the inmate is alone and living in disciplinary or segregated housing, violence toward staff has also been found to be significantly more likely. It has even been suggested that isolation and intensified control measures in prison settings generate a culture or ecology of cruelty, causing long-term psychological harm to the correctional officers who work in these units. Likewise, studies have found that subjecting prisoners to solitary confinement makes it more difficult for them to assimilate back into their communities, increasing the risk of recidivism.

There is no easy answer to the question of why the practice of isolating young inmates continues to persist despite extensive evidence of its harm. Since the 1980s, a major factor has been the tough on crime penal philosophy perpetuated by legislators and a lack of meaningful judicial review of the conditions of isolation. From the perspective of those within the prison industrial complex, it is easier to keep adolescent super-predators locked alone in cells than to implement the reforms necessary to create a healthy correctional environment.

This attitude is particularly pronounced when the young people are black or brown, have no one to advocate for them, and have been labeled bad kids or throwaway kids by the juvenile and criminal justice systems. These factors are further compounded by the high percentages of imprisoned youth who are mentally ill, have drug or alcohol addictions, or both, presenting even greater challenges to facilities with few resources.

Ismael Nazario, who spent more than 300 days in “the box” in Rikers Island jail, is now in his mid-20s. His mother survived cancer, and she and her son are still close. Ismael eventually pled guilty to one of the robbery charges and the other was reduced to a misdemeanor, enabling him to avoid a felony conviction. Since his release he has found meaningful employment — for three years he worked as a case manager with at-risk adolescents in Brooklyn and more recently with adults and teenagers who have been released from Rikers Island. Ismail does not talk with his clients about his own time in the box, but he has seen what the experience has done to other boys.

Most young people who are held in isolation are not as fortunate as Ismail. Yet, the question of whether to continue to isolate youth cannot be characterized as merely another intractable issue about which reasonable minds may differ. The justifications that allow governments to keep teenagers alone in cells for hours, days and weeks at a time are not the result of rational thinking based on evidence. Instead, the solitary confinement of youth is one more byproduct of the systemic problems that continue to plague modern society: the vanishing social safety-net, generational poverty, implicit bias, the school-to-prison pipeline, mass incarceration and the criminalization of mental illness. Ending the practice of isolating children is an important step toward confronting these broader issues.

Tamar. R. Birckhead is associate professor of law and the director of clinical programs at the University of North Carolina School of Law. Her research on solitary confinement will be published in 2015 in the Wake Forest Law Review.

OP-ED: Students Help Keep Juvenile Court and Other Youth-Service Providers Honest

Tamar Birckhead new head shotAs I approach the end of my 10th year of teaching in a clinical program at the University of North Carolina School of Law, I have been thinking a lot about the value that students add to the dynamics of the courtroom on any given day, as well as what they contribute to the juvenile justice system as a whole. The same, of course, can be said about the contributions that students in other graduate disciplines, such as social work and public policy, offer to their field placements and other types of student internships.

Recently I watched as one of my third-year students negotiated the terms of an admission with a prosecutor in a local juvenile delinquency court. The student, who I’ll call Carly, insisted the state did not have enough evidence to prove that her 14-year-old client had committed the crimes of breaking and entering or larceny. During the previous week, she had visited the scene of the offense, interviewed witnesses and researched the law. As a result, she knew that the police report was inaccurate — that one of the witnesses could not positively identify her client as the person seen leaving the empty house and that another witness had no intention of appearing in court. The most the state could prove, by Carly’s analysis, was that her client had conspired with another young person to break in, but that he had neither entered the premises nor possessed the stolen items — evidence consistent with a minor misdemeanor rather than a serious felony.

I stood several yards away while Carly made her pitch to the prosecutor, and I recognized the veteran lawyer’s facial expression: a mixture of bemusement and annoyance. Then Carly opened her case file and took out the police report, which was marked up and highlighted, and she methodically explained why the evidence was insufficient and why she had advised her client to fight the charges at an adjudicatory hearing. The investigating police officer in the case sat between them, listening closely as Carly argued that the elements of the offenses could not be proven beyond a reasonable doubt. When she had finished, the prosecutor slowly shook his head as he told her, “You are exhausting me.”

Moments later the case was called, and we hesitantly approached the front of the courtroom with the young client and his mother. “Do we have a deal?” I asked Carly. “I’m not sure,” she answered. “The prosecutor hasn’t told me his decision.” We soon learned that Carly’s offer had been accepted and that her client would admit to a single misdemeanor, a charge that was consistent with the evidence and acceptable to the teenager. In the context of juvenile defense practice, it was a win.

In 1899, when the first juvenile court in the United States was established in Chicago, the proceedings were closed to those who were not parties to the case, ostensibly for the purpose of protecting children’s privacy rights. In the decades that followed, as delinquency court sentences became more punitive and due process protections were ignored, there was a movement to open the courtroom to allow the public to observe and serve as witness to the proceedings. Yet the reality today is that even in states like North Carolina — where juvenile courtrooms remain open — outside observers are rarely present; instead, there are overworked defense attorneys, worn down by the systemic pressure to move cases, bargain away their clients’ rights and not ruffle the feathers of prosecutors or judges, who often determine case assignments.

This has created a system in which students practicing under the supervision of law school clinical professors provide the only scrutiny of these forums. They have been taught the meaning of burden of proof and inadmissible hearsay. They appreciate the necessity of rigorous advocacy by defense counsel, and they hold these principles to be essential to establishing an even playing field for their clients. Their faith that the other actors in the system — prosecutors, judges and police officers — will ultimately do the right thing, rather than being naïve and misplaced, is actually infectious. Their lack of cynicism helps ensure the integrity of the proceedings and re-inspires jaded lawyers like me, just as students in other disciplines infuse vigor into deliberations in their work settings and bring tenacity to the mission. This is why, after a decade of juvenile court practice, I am more than willing to continue — as long as I have a law student by my side.

Tamar R. Birckhead is associate professor of law and director of clinical programs at the University of North Carolina School of Law.

OP-ED: When Reform Fails on the State Level, Turn to Local Advocates

Tamar Birckhead newNorth Carolina is the only state in the U.S. that treats all 16 and 17-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. Although New York also ends juvenile court jurisdiction at 16, it has a law that allows judges, in certain circumstances, to seal the criminal conviction of a 16 or 17 year old and sentence her to probation. Only nine other states end juvenile court jurisdiction at age 17, with the vast majority prosecuting everyone under 18 in juvenile court. Despite the fact that child welfare advocates, scholars and some lawmakers in North Carolina have repeatedly backed legislative proposals to extend jurisdiction to ages 17 or 18, they have consistently been defeated on the state level.

Why does the upper age of juvenile court jurisdiction matter? The main reason is that young people who are convicted of criminal offenses face significant barriers when attempting to secure jobs or gain access to higher education. Employers in most states can deny positions to — or even fire — anyone with a criminal record, regardless of the individual’s history, the circumstances or the relationship between the job or the license sought and the applicant’s criminal record. Employers in most states can also deny jobs to people who were arrested for, but never convicted of, a crime. While all states have the power to lift bars to employment by issuing “certificates of rehabilitation,” only a handful offer this option, and North Carolina is not among them.

As for higher education, increasingly U.S. colleges and universities are using criminal history background checks in the admissions process and then developing exclusionary policies to deny admission to certain categories of applicants — despite the fact there is no evidence that such policies increase safety on college campuses or that an applicant’s prior criminal record is a relevant risk factor when assessing future dangerousness.

Likewise, the harmful impact of having a criminal conviction extends far beyond employment and higher education to immigration status, access to public housing and benefits, and exclusion from military service.

In short, because all 16- and 17-year-olds charged with crimes are automatically tried and sentenced as adults (and eventually imprisoned with them), tens of thousands of young North Carolina residents are burdened with these consequences each year and denied the rehabilitative services and programs offered by the juvenile justice system. Although this particular policy is specific to my state, nearly every state can transfer minors to adult court for relatively minor offenses, forcing adolescents across the country to confront similar hurdles.

What can be done when state representatives fail to act? Recently, the chief district court judge in Durham County, Marcia Morey, has taken a bold step — the first of its kind — to help young people avoid arrest and what she calls the “tattooing” effect it can have on their futures. In January, Judge Morey initiated a program, the Misdemeanor Diversion Project, for 16- and 17-yearold first-offenders charged with non-violent misdemeanors. If the law enforcement officer agrees, the teen will be directed to a community-based program instead of jail. The conditions imposed might include conflict resolution or mediation, restitution and community service, or substance abuse or mental-health counseling. The Project will also include meetings at the courthouse that teach teens about the legal system and the unintended consequences of breaking the law. Excluded from eligibility are crimes that involve firearms, sex offenses, motor vehicle violations or gang activity. Successful completion of the Misdemeanor Diversion Project, which has the backing of the local police chief and district attorney, will result in no criminal charges being filed and a clean record.

In 2012, more than 600 16- and 17-year-olds in Durham, N.C., were charged with misdemeanors, including possession of marijuana, shoplifting, larceny, disorderly conduct and trespassing. Judge Morey estimates that the Project will be able to help about 500 of these teens each year. It’s not a large number, but it’s a good start. When it comes to the impact of the criminal justice system on our young people, whether in the Tar Heel State or beyond, we have nowhere to go but up.

Tamar R. Birckhead is associate professor of law and interim director of clinical programs at the University of North Carolina School of Law.

OP-ED: Reflections on Miller v. Alabama: Roses, Thorns and Buds

Tamar Birckhead newTo generate some (hopefully) meaningful conversation around our dinner table, I have begun to use a tool that my daughters picked up at one of their summer camps: “Rose, thorn and bud.” We each describe a good thing from our day (the rose), followed by a lousy thing (the thorn), and then conclude with something we are looking forward to (the bud). The exercise enables each person to share several different moments from the past 12 hours with the rest of the family; it doesn’t require too much effort or contemplation, and it is relatively light-hearted. In fact, not infrequently the rose is the dinner itself and the bud is the dessert. The discussion that follows rarely leads to anything profound, but the ritual forces us to pause, consider the day’s events and make an effort to connect.

Imagine my surprise when I attended the annual convening of the Campaign for the Fair Sentencing of Youth (CFSY) in November and the same prompt was used. A group of about 40 of us — lawyers and advocates, family members of those serving juvenile life without parole sentences (JLWOP), and former juvenile lifers — had been divided into geographical regions and were seated around tables in a small meeting room at the Hyatt Hotel near Union Station in Washington, D.C. “Please share a rose, thorn, and bud since the last convening,” the facilitator at my table directed, “and consider how things have changed.”

For most of us this meant reflecting on the impact of the 2012 U.S. Supreme Court decision in Miller v. Alabama that ended mandatory JLWOP and required individualized sentencing hearings. While it was a promising opinion by the Court, it was not the decision many of us hoped would end, once and for all, life imprisonment for juvenile offenders.

As we took our turns, it was clear that the past year had meant different things to each of us — with many thorns among us. For the mom of a young man serving JLWOP whose new sentencing hearing resulted in the imposition of the same sentence, the Miller decision represented dashed hopes.

For a father whose state had ruled that Miller did not apply retroactively, it meant complete devastation. For a former juvenile lifer who had been released, there was the rose of freedom but the thorns of guilt and sadness for his friends who were still — and would likely remain — incarcerated.

When it was my opportunity to speak, I shared what I am perhaps best equipped to offer to the discussion: perspective on the broader legal landscape and how quickly it has shifted to reflect an enlightened view of adolescent culpability and capacity, as well as an endorsement of the proportionate sentencing of youth.

I recalled that only eight years ago, it was legal in the United States to put juvenile defendants to death, but that Roper v. Simmons ended that practice when the Supreme Court ruled that it violated the Eighth Amendment prohibition on cruel and unusual punishment.

I reminded folks that only three years ago, it was legal to sentence juveniles to LWOP for non-homicides, but that Graham v. Florida ended that practice as well.

And while Miller v. Alabama didn’t impose a flat ban on JLWOP, the decision did require that before such a sentence may be imposed as punishment for homicide, the offender’s age, background, mental and emotional development must be considered. Likewise, the Court specifically emphasized that the offender’s immaturity, impetuosity and failure to appreciate risks and consequences — basic hallmarks of youth — must also be taken into account.

One year later, there aren’t many roses, but then again, thorns exist to protect the flower’s petals and blossoms from those who try to graze on them. It’s not a perfect analogy, to be sure, but there is cause for feeling optimistic, for hoping that the bud is the celebration we will have at next year’s CFSY convening, when we will be one step closer to ending the practice of sentencing children to die in prison.

 

Tamar R. Birckhead is associate professor of law and interim director of clinical programs at the University of North Carolina School of Law.