U.S. states are rapidly removing Confederate statues, symbols of racial oppression. But there is another holdover from slavery that is prevalent in our society today — the routine use of shackling persons using handcuffs, leg irons and other hardware to confine individuals in the justice system.
This past summer, I had the opportunity to view a felony appellate courtroom in Casablanca, Morocco. These were appeals by people imprisoned for felony offenses who were asking the court to reduce their sentences. The people who were appealing — appellants — were brought in from prison and sat on benches behind a wooden screen. Their families sat on the other side of the court. One by one, the appellants were led to the front of the courtroom and directly addressed the judges, standing with dignity next to their lawyers.
What was remarkable was the fact that every person who stepped up to appeal their sentence was dressed in street clothes and unshackled. They stood respectfully before the appellate justices and were free to consult with their lawyers without the degradation of handcuffs, of leg irons, of belly chains and of prison uniforms.
The court resembled a U.S. traffic or civil court — not a felony criminal court.
The lack of prison uniforms and shackles dramatically changed the tone of the proceedings, serving as a reminder of the essential dignity of each of the persons appealing their sentence.
We observed a case of a young man in his early 20s appealing a 10-year sentence in a drug case. He was free to confer with his lawyer and to respond to questions by the court, without the interference of shackles on his hands or legs. The fact that he wore street clothes, not a prison uniform, served as an additional equalizer. A person who appears respectful and dignified in street clothes standing freely before the court seems a more likely candidate for early release from prison than a person in a prison uniform and shackled. The court subsequently reduced his sentence to four years.
In the United States, even children who are accused of a crime and confined in detention/prison appear in court in prison clothing and shackled with handcuffs. Leg irons and belly chains are frequently used along with handcuffs. Shackles are used in court from the first moment of the case — even before the trial and well before sentencing and appeal. A campaign by the National Juvenile Defender Center has convinced several states, including Illinois, to ban the use of handcuffs and shackles on children in courtrooms — but these instruments of human degradation are still used to transport children from detention to court.
Corporations that manufacture the hardware have convinced U.S. justice system officials that shackling individuals is essential for secure courtrooms and safe transport. A few decades ago, handcuffs alone were enough — but a consumer market was then developed for leg irons and belly chains and states rushed to invest in the “necessary” hardware. Shackling human beings is less than first world — and the experience in the Morocco felony courtroom demonstrates vividly that shackling is not essential to safety.
The racial legacy in the use of shackling is clear. One of our former staffers discovered that juveniles are not shackled in her home nation of Japan. A Japanese academic explained that this is a uniquely U.S. practice that is the legacy of slavery, the current iteration of the former use of “slave chains.”
Indeed, while the practice of shackling children is nearly universal in urban courtrooms filled with black and brown children from low-income neighborhoods, children from families of means who demonstrate similar “criminal” behavior have access to mental health and/or substance abuse treatment centers that generally do not use human shackling hardware, except in short-term “crisis” situations.
Testimony at a public hearing when Illinois considered adopting a Supreme Court Rule to end indiscriminate shackling of children in court included emotional comments from a former juvenile court judge. She noted that the use of shackles on children was common practice in her courtroom when she first came to the bench, and she didn’t think to challenge the practice.
In retrospect, she stated that she wished she had changed the policy — she recalled the horror on the faces of parents as they saw their child brought into the court in shackles and the shame on the faces of the children. Another lawyer argued there was no “safety” issue, as his experience with children shackled in the court system and children with similar issues who were not shackled in the mental health system convinced him that children could be safely transported and appear in court without shackles.
Respecting the human dignity of all individuals, including those accused/convicted of criminal offending, is essential to ensure a strong civil society. The use of shackles on human beings in the U.S. is the legacy of slavery — today’s slave chains. It is especially problematic given the profound racial disparities in our justice system. It is time to end this practice and extend to all our citizens — especially children — their human right to stand unshackled in our courtrooms.
Elizabeth Clarke of Evanston, Illinois, is founder and president of the Juvenile Justice Initiative, a coalition working to transform the juvenile justice system in Illinois.
In Michigan, 17-year-olds are not allowed to buy lottery tickets, get a tattoo, rent a car or hotel room or drop out of school. They can’t vote, serve on a jury or sign a legal contract either, presumably because they don’t possess the requisite maturity to make adult-level decisions. This distinction, however, is tossed out the window if a 17-year-old breaks the law. Suddenly, they are adults, facing devastating repercussions that can come with an adult conviction.
That’s because Michigan is one of only five states that automatically consider 17-year-olds adults for any offense. In the past decade, more than 20,000 youth under age 18 have been charged as adults in Michigan.
The majority of these 17-year-olds were charged with nonviolent offenses, and most had no previous involvement in the juvenile justice system. But in Michigan, a first-time mistake can lead to a lifetime of harsh consequences.
Despite the inherent dangers of placing a child in prison, more than half the 17-year-olds convicted as adults were confined in adult facilities. Research shows that youth in adult jails and prisons are more likely to experience sexual victimization and physical violence, and more likely to commit suicide. Even exposure and proximity to violence can severely disrupt the course of healthy physical, emotional and intellectual development in teens.
It is not surprising, then, that youth convicted as adults have worse physical and mental health outcomes over their lifetimes than those who enter the juvenile justice system. Their problems are compounded by the fact that youth with criminal records have a harder time accessing housing, furthering their education and securing long-term employment.
Youth with adult convictions are more likely to reoffend, and reoffend more violently, than their counterparts in the juvenile justice system. If the goal of our justice system truly is public safety, then directing these young people to rehabilitative youth services is a far better choice.
So, why are 17-year-olds considered adults in the first place? Because that’s how our system was created in 1908 — the year the first Ford Model T automobile was introduced. A century later, Michigan desperately needs a new model for adjudicating youth.
Michigan’s juvenile justice system isn’t perfect but it does strive to continuously make itself better. Over the past decade, some juvenile courts have begun embracing evidence-based practices that are proven to reduce crime and improve outcomes for children and their families.
During the same time span that tens of thousands of 17-year-olds were systematically funneled into the adult criminal justice system, Michigan’s innovative juvenile justice system managed to cut detention and out-of-home placement rates by 40 percent. We have seen the emergence of high-quality diversion and community-based programs that allow kids to stay in school and receive treatment for their entire families. Unfortunately, 17-year-olds who commit crimes are prohibited from accessing these services; their options are adult probation, jail or prison.
Michigan’s juvenile system already serves 17-year-olds who entered their jurisdiction prior to their 17th birthday. In fact, the juvenile court can maintain jurisdiction until one’s 19th or 21st birthday, depending on the offense. Probation and facility staff are already trained to work with this age group and offer successful programming designed to meet their developmental and behavioral health needs.
This is important because we know that adolescence is a period of significant developmental growth, characterized by impulsivity, risk-taking and strong influence by peers. As part of normal human development, young people experience rapid physiological and psychological changes that do not fully mature until well beyond age 18.
These changes establish the architecture that will eventually allow young adults to temper risk-taking behaviors, evaluate costs and benefits and fully grasp the consequences of their actions. As such, youth are far more amenable to rehabilitative programs and behavior modification during these formative years. Conversely, harsh treatment during adolescence can further solidify a child’s trajectory down the wrong path.
Experts estimate that 90 percent of justice-involved youth have experienced at least one traumatic event. In Michigan, the vast majority of youth convicted as adults have had a friend or family member killed, domestic violence or substance abuse in the home, multiple foster home placements or parental incarceration. Rather than retraumatizing youth by sentencing them to prison, we should support them with juvenile justice services that build their coping and resilience skills and teach them accountability.
In the past 10 years, numerous other states have raised the age of jurisdiction, citing improved public safety, greater access to children’s services and better outcomes for youth and their families. The other four states that prosecute 17-year-olds as adults — Wisconsin, Missouri, Georgia and Texas — are also considering legislative changes to raise the age.
The proposed legislation in Michigan would continue to allow for the “waiver” of a 17-year-old into the adult system, depending on the seriousness of the offense. Those youth would be housed in a juvenile facility until they reach the age of majority, and then sent to an adult prison.
Why hasn’t Michigan raised the age yet? The short answer: money and a lack of political will. During legislative hearings in 2016, every single stakeholder group — from prosecutors to judges to facility staff — clearly stated that raising the age was the “right thing to do.” The big question was, “How do we pay for it?”
Other states have managed to pay to raise the age and, as it turns out, at a much lower cost than initially anticipated. In Illinois, the overall cost of the system actually went down after raising the age.
It is true that Michigan’s funding system poses unique challenges. The state pays the full cost for inmates in the adult criminal justice system, while counties pay costs in the juvenile justice system with the state reimbursing half of eligible expenses. Counties rightly fear they may get saddled with massive costs if 17-year-olds automatically come into their systems, and that serving additional youth will impact the quality of their existing services.
There are data limitations as well. But none of this excuses legislators and other policymakers from finding solutions that nearly every other state has come up with — solutions that will enhance public safety, protect existing services and help more troubled youth turn their lives around. We have the brainpower to figure out the funding. Now we just need the willpower.
At the end of the day, we must ask ourselves one important question: Have I done everything I can today to prevent a child from being harmed? With each passing day, young people are forced into an adult justice system that does not address their needs and, in fact, exposes them to significant physical harm and psychological trauma. For their well-being, for the safety and protection of our communities, it’s time to raise the age in Michigan.
Paul Elam, Ph.D., is the president of Public Policy Associates, Inc. and has worked on national, state and local efforts to create fair and effective juvenile justice policies and practices. He is a board member of the Michigan Council on Crime and Delinquency and a consultant to the Michigan Committee on Juvenile Justice.
Mary King is executive director of the Michigan Council on Crime and Delinquency. She previously served as community coordinator for the Michigan Prisoner ReEntry Initiative, where she engaged key stakeholders in a unified effort to provide evidence-based services for returning citizens.
More than two years after U.S. Supreme Court decisions started throwing out mandatory death and life sentences for minors, judges in Washington, Illinois and dozens of other states still lack guidance on what to do with juveniles past and present convicted of murder and some other serious felonies.
“Courts are uncomfortable in trying to figure out what ‘life’ means in terms of years,” said Kimberly Ambrose, senior law lecturer at the University of Washington School of Law. Sherepresented Guadalupe Solis-Diaz at the state’s Court of Appeals, arguing against a 92-year sentence he’s serving for six counts of first-degree assault and other charges for his role in a drive-by shooting. The then 16-year-old Solis-Diaz fired into a crowd in Centralia, Wash., in 2007, though did not injure his target or anyone else.
It’s not clear in Washington if those 92 years are equivalent to what the U.S. Supreme Court calls “life” sentences. The federal high court has definitively thrown out state sentencing laws that mandate life without parole for juveniles. Beginning with the 2005 Roper v. Simmons case and more recently with Graham v. Florida in 2010 and Miller v. Alabama in 2012, the court says that juveniles are not yet fully mentally developed, are less culpable and more capable of reform. Therefore, lower court judges must consider those and other mitigating factors when sentencing juveniles for both homicide and non-homicide offenses.
Solis-Diaz’ counsel at his original sentencing failed to mention that U.S. Supreme Court trend. That omission, said the state appeals court, was one of several mistakes that contributed to their decision this month to throw out Solis-Diaz’ 92 years, on grounds of ineffective counsel.
“This is the first life-equivalent case to come before a Washington appellate court,” said Ambrose, speaking of non-homicide offenses.
But the court also noted it would not opine on any other sentence for Solis-Diaz.
“The legislature is the appropriate body to define crimes and fix punishments. To the extent that Graham suggests that an opportunity for parole must be available for juvenile offenders convicted of non-homicide offenses, only the Legislature has the authority to amend the SRA [Sentencing Reform Act] to allow for such remedy,” the opinion reads.
They remanded the case for resentencing.
Many judges are grappling with how to amend their current laws to comply with the U.S. Supreme Court rulings on juvenile sentences. Some state legislatures have yet to update laws to comply with the two-year-old Graham case. And most state legislatures have been closed since the June, 2012 Miller decision, so have had no chance to start thinking about it. Thus judges dealing with juveniles convicted of murder must figure out if it would apply to juvenile offenders sentenced before it, and how to handle appeals, all without legislative guidelines.
“There’s lot of people trying to figure out what to do and how to proceed, and if it [Miller] would apply retroactively,” said Randolph Stone, a law professor at the University of Chicago.
The answers so far vary by state.
More than 100 people have been sentenced to life without chance of parole in Illinois for crimes committed as minors, according to a 2010 report by the National Conference of State Legislatures. Nationally, there are more than 2,500 juvenile offenders who have received this sentence in the states that did or do allow it, according to The Campaign for Fair Sentencing of Youth, an advocacy group.
“Does each of those people get a new hearing? If so, what sort of sentence will they be facing?” Stone asked.
He argued that because the Miller decision was bundled with one out of Arkansas, which relieved a defendant convicted for a crime he committed in 1999, juvenile offenders nationwide who had already been sentenced before the decision should have a chance for a new trial and sentencing.
“It’s a question of whether it will be decided on a case-by-case basis or a broad remedy that can be fashioned to deal with them all at the same time” he said.” I think it’s pretty clear that it does [apply retroactively], although the prosecutors are saying that it doesn’t.”
Michigan’s Supreme Court declined to settle retroactivity in its state this month. Attorney General Bill Schuette asked the Court to rule out retroactivity on the life sentence of a man convicted of participating in an armed robbery as a 16-year-old. Instead, the court remanded the case for resentencing.
One prosecutor who’s agreed to applying Miller to one existing conviction is New Hampshire’s Senior Assistant Attorney General Jeffery Strelzin. Steven Spader was 17 when he hacked to death a woman in her home. In 2010, he was given his state’s mandatory sentence: life in prison. The court also added 76 years on other charges.
“Spader is the only defendant who has filed anything in court. We have agreed that he will be resentenced in light of the Miller decision,” said Strelzin.
“Four other defendants have indicated they may contest the applicability of Miller to their cases. However, none have filed any motions in court yet asking for a new sentencing hearing,” he said.
Spader’s case was still on appeal when Miller was published. Pennsylvania’s Supreme Court is hearing a similar case.
If the definition of “life” sentences varies by state, so does the definition of “juvenile.” In Illinois, 17-year-olds facing felony charges are tried as adults, and children ages 15 and older charged with first- degree murder and other felonies, such as robbery at gun-point, are automatically transferred to adult court.
And an accountability statue in Illinois often leads courts to treat accomplices with the same degree of culpability as the shooter.
Illinois has to wrangle with a decade-old ruling by its state Supreme Court that foretold the later U.S. ruling, but may also preclude it being retroactive.
The court shot down a mandatory life sentence for a 15-year-old who had served as a lookout for two people convicted of homicide. The court wrote that under the state’s automatic transfer, accountability, and sentencing statutes, “a court never considers the actual facts of the crime, including the defendant's age at the time of the crime or his or her individual level of culpability.”
Matt Jones, of the state’s Attorneys Appellate Prosecutor’s office, said that mandatory sentencing for juveniles was already shot down in Illinois with this decision, and that courts had abstained from the practice since then, except in the case of 17-year-olds, who were still tried as adults.
But he also said the ruling made it clear that it shouldn’t be applied retroactively, and that he doesn’t think the Supreme Court’s decision in June will be applied retroactively either.
Stone argues the opposite, that the Illinois Supreme Court’s decision only applied to that specific case, and that courts throughout Illinois still maintained mandatory sentencing for minors convicted of homicide. He said that a new bill or amendment to the Illinois Code of Corrections must be made to comply with the Supreme Court’s ruling.
The U.S. Supreme Court rulings do not talk about such details. But juvenile rights advocates hail the principle.
“These [mandatory sentencing] laws make it difficult for judges,” said Shobha Mahadev, a Northwestern University law professor. “The decision is taken out of the judge’s hand. We have to change the way we treat children and change these laws.”
The Illinois Legislature may take the question up when it reconvenes in November. Ambrose expects it to be an issue in Washington as well. Pennsylvania legislators have already held hearings on a rewrite.
I went into foster parenting with a touch of optimism, a dash of parenting skills and a whole heap of naiveté, none of which prepared me for the role of foster parent. One of my first lessons was the tenuous role I actually was allowed to play in two little girl’s lives.
I welcomed Jayden* and Alicia* into my suburban Wheaton, Ill., home on a sunny morning in August. The bedroom was prepared with bunk beds and a chest of drawers ready to fill with little girl clothes and toys.
We had a great set-up for adding children to our family of three sons. We had a large, comfortable home and lived less than two blocks from the elementary school where my sons attended. Our first few days together flew by as we visited the school and registered the girls for first grade and kindergarten. Jayden had just turned six and Alicia was five. That’s the first time I realized that the “real” parent was really the state of Illinois. All paperwork for the girls was routed through the court-appointed guardian in Cook County (Chicago). Because I was a foster parent, I soon discovered I was unable to sign, approve, or make decisions for the girls beyond what they would wear, eat for breakfast, or when they’d head to bed. Even a simple field trip form to have the girls walk with their class from school to a nearby park had to be faxed to some child welfare office in downtown Chicago and resent back to the school – a lengthy procedure.
But the worst night dealing with the state as these girls’ “replacement” parent was when my kids, filled with excitement and excess energy, went running through the house one Saturday night. I’d warned them thousands of times not to do this, but Jayden tripped and her forehead connected with the corner of the wall opening a nasty gash on her forehead. As I comforted a screaming six-year-old with one arm, I hugged her frightened sister with the other and dialed the local case manager for permission to head to the emergency room for stitches. She approved and we left for the hospital. After our arrival, we waited for hours as the hospital official faxed permission to Springfield, the state capitol, to have a state guardian give permission to treat Jayden.
When my husband and I agreed to fold Jayden and Alicia into our home, their case manager, definitely wearing rose colored glasses, called them two “normal” girls. I guess her version of “normal” and mine were worlds apart because I quickly discovered that: a) Jayden had cerebral palsy, and b) both girls exhibited signs of fetal alcohol syndrome. Also, they’d been in the foster care system since age 2 and 1, respectively. Their parents were serving in separate prisons for some type of drug crime.
These girls had experiences similar to a lot of foster children:
- They’d been moved to several foster homes and temporary placement settings since the night their parents were taken to jail.
- They were part of a sibling set of six children, yet they rarely saw their brothers and sister.
- One or both of my girls had been sexually abused in a previous foster home by another, older foster child.
I don’t have any solutions to the problems experienced by our young people who, through no fault of their own, find themselves living with the state of California, Georgia, New York, or some other as their new “parent.” I do know that may state child welfare systems are suffering from budget cuts, are understaffed and have to deal with a lot of new problems such as the meth epidemic and the AIDs crisis.
But, speaking as a mother, I find it categorically unfair to these foster children to “raise” them within a system beset by such problems, then “emancipate” them when they turn 18 with little more than a black garbage bag for their clothing and a high school diploma clutched in their sweaty palms.
If they are that lucky.
*Not real names.
Foster Care Facts: State By State
According to the most current AFCARS (Adoption and Foster Care Analysis and Reporting System) Report, released in September 2010, there were approximately 423,773 children in the United States in foster care on September 30, 2009.
For state-specific information on the number of entries, exits and children in care on the last day of the federal fiscal year 2009, please see the table on the Children's Bureau website.
An amended law that took effect July 1 made Mississippi the latest state to rethink how youth under the age of 18 are handled in criminal court. The new measure prevents most 17-year-old misdemeanor and nonviolent felony offenders from being tried as adults. Certain felonies including rape, murder and armed robbery may still warrant charges in the adult court system.
Two other states, Connecticut and Illinois, passed similar reforms earlier this year bringing the national total to 39 states that view juveniles as any individual below the age of 18, according to a report issued last week by the Campaign for Youth Justice.
“This is a good news report.” Liz Ryan, director of the Campaign for Youth Justice, -- a Washington, D.C.-based non-profit focused on the issue -- told USA Today. “This really shows that there is a turning tide in the way states are treating kids in the juvenile justice system.”
Some juvenile advocates consider the amendment a positive change in the treatment of youthful offenders, but Mississippi law enforcement and juvenile officials worry it could adversely impact an already over-burdened Youth Court system.
“It’s going to create a tremendous pressure on our juvenile justice system with no increase in resource,” Harrison County Youth Court Judge Margaret Alfonso told the (Biloxi-Gulfport) Sun Herald. “So, it’s creating pressure on a system that’s already pressed.”
Legislators in Mississippi amended the law following state budget cuts that reduced bed space and maximum detention times, among other things, in juvenile facilities. But officials failed to allocate additional funds to the Youth Court system to deal with added expenses and growing number of offenders.
It costs states more to incarcerate offenders in juvenile than adult facilities due to health, counseling and other obligations, but juvenile inmates tend to have a lower recidivism rate than their counterparts in the adult system, according to the same Campaign for Youth Justice report.
Nationally, the United States has witnessed a five-year trend of states rethinking how juveniles are handled in the criminal justice system in large part due to research in adolescent brain development.
Crimes committed by minors aren’t always done with malice because they can’t fully distinguish right from wrong, Gina Vincent, assistant professor at the University of Massachusetts Medical School, told JJIE at a brain development conference in early May.
Only 11 states, including Georgia, still try offenders younger than 18 in adult courts for nonviolent offenses. Roughly 250,000 offenders under the age of 18 are prosecuted in adult courts annually, according to the Campaign for Youth Justice report.
Blogger Benjamin Chambers brings up the subject of debilitating state budget cuts, pointing out the depressing news that the state of Illinois plans to zero-out its budget for alcohol and drug prevention and treatment programs and asks, just how bad can it get?
As of March 15, the state of Illinois is cutting its $54 million budget for alcohol and drug treatment and prevention services to zero (full disclosure: I wrote the news summary linked to here).
That's right: zero.
According to providers, that means many of them will shut down.
What's left, without state money? According to provider representatives, about 80 percent of their clients (or about 55,000 people) get treatment funded by the state, leaving 20 percent of their clients who are covered by Medicaid -- -- women only, though. The state will reportedly be cutting the amounts it reimburses for Medicaid services by six percent.
What's not precisely clear from news reports is the impact on youth treatment. Prevention services serving about 230,000 youth a year are definitely gone, but children's treatment can be covered by Medicaid - I'm not sure how that's handled in Illinois. However, in my experience, most treatment agencies rely on the volume of their adult treatment programs to support their youth treatment programs. Without the mix, I would guess that many youth programs -- even those billing Medicaid -- might not survive.
Will other states follow?
The above story is reprinted with permission from Reclaiming Futures, a national initiative working to improve alcohol and drug treatment outcomes for youth in the juvenile justice system.