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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.

To Keep Kids Out of the System, We Need Community Involvement

Most of the teenagers walking into my courtroom were 1st or 2nd time visitors.  They didn’t want to return, and we worked with them and their parents to make that first visit their last one.

However, some kids need more support and intervention to change their life trajectories from negative to positive.

After seeing the same teens in court year after year, judges wonder what it will take to change the behaviors that keep bringing them back into court. Short of sending a youth off to a state prison, the options usually available to juvenile court judges include stern lectures and warnings, mandated community service, assessment and rehabilitative services, and electronic monitoring.

Sometimes judges reach a point where everything has been tried at least once, and yet the youth is again back in court with a new offense.  When that happens, will the judge leave the youth with his or her family and try for rehabilitation again? Or will the judge think “been there, done that” and send the youth to incarceration far from home?

Sending any young person to prison can’t be equated with sending your troubles away forever. They always return. And when they do, they go right back into the same home environment, same community, and same group of friends or gang.

A few months or even years in a juvenile prison rarely improve behaviors. Unless something has changed at home, chances are that juvenile will be back in court or will age into the adult courts.

Incarceration is an option whenever the teen poses a threat to public safety or his own safety. Otherwise, rehabilitative services are worth repeated attempts. They are far less expensive than prison and are more effective.

While every situation is different, families always are key to keeping sons and daughters out of trouble.

The youth brought repeatedly to juvenile court often have parents who had been in either the juvenile or adult system – or both. Judges, especially in rural areas like my own, come across generations of families in courtrooms. One or more family members appear in child welfare cases, domestic violence situations, small claims court and every nook and cranny of the courthouse.

Because these families are involved in both the child welfare system and the justice system, we should involve both systems in solutions. Bringing community-based services to an entire family, can help parents communicate with their children to resolve arguments and use appropriate discipline to address behavior problems. When social services involve the youth’s entire family, other children in the home benefit as well, and we sometimes can prevent siblings from following the same path into the juvenile justice system.

Early investment in prevention and assistance, such as mental health counseling and treatment for drug addictions, can pay dividends for many years into the future. Breaking a family’s cycle of juvenile and adult crime is an obvious benefit to public safety, but it also means those youth become productive citizens less likely to need other assistance or return again and again to expensive adult prisons.

In Illinois, we’re beginning to apply those same lessons to the most challenging kids and families, through Redeploy Illinois, which keeps kids out of state prisons, and through innovative aftercare programming for youth who do pass through those youth prisons.

In 2011, the Illinois Department of Juvenile Justice (IDJJ) piloted an aftercare program for youth entering prison from Cook County, our state’s largest county. By assigning specially trained aftercare specialists to work directly with youth and their families from the day they first enter prison until they leave and the months beyond, we can better prepare those youth to follow the law and continue in school.

This promising approach works with kids and families to plan for a safe and successful return home and to build support and strengths to keep kids in the community and out of costly and ineffective prisons. It's showing positive impact and is rightly being expanded across the state.

To complement IDJJ’s aftercare specialists, the Illinois Juvenile Justice Commission (IJJC) funded a youth aftercare series pilot project partnering with well established non-profit family service agencies to give added services to youth returning to some of the state’s toughest neighborhoods in Chicago and the East St. Louis region –communities sending the largest number of youth to the state’s juvenile prisons.

Using $1.5 million in federal funds, the Commission’s aftercare projects test the impact of intense, family-focused community services and support in keeping kids at home and out of prison.

Together, these projects are developing replicable models for working with young people at the “deep end” of the justice system.

These responses are even more successful when others in the community work with the juvenile justice system to reach teens in trouble. When service providers, including those outside the justice system, like faith-based organizations and schools, are trying to help the same family and can collaborate, they can create an integrated and powerful response. Communities must come together to save our children.

Whether in prison or not, we can’t give up on any young people. With the right supervision, support and services, all are capable of change and growth.

For the Newly-Elected Judge, a Different View of Juvenile Court

Dozens of lawyers won their first elections as judges this month, and they will soon experience the sensation of viewing the courtroom from the other side of the bench and hearing the words “your honor” directed at them.

In about half the states, including my home state of Illinois, voters elect some or all trial court judges, sometimes after rough-and-tumble campaigns making them household names. These new judges may not have given it much thought, but many of them will begin their judicial service largely out of the public view. They’re not going to preside over headline-grabbing murder trials or referee disputes involving multi-million dollar lawsuits.

Many of the judges-elect, instead, will preside over juvenile court, the one courtroom in most jurisdictions where the public and press are not welcome and a good number of the accused aren’t old enough to shave.

Why do so many new judges begin their careers in juvenile court?

Once elected or appointed to the bench in Illinois, the local Chief Judge assigns a judge to a particular caseload or call. Often, the Chief Judge assigns new judges to juvenile court duties precisely because it is out of the spotlight. It’s a good place for a first-time judge to hone listening skills and to learn how to manage a courtroom. Some judges are eager to get juvenile court behind them and move on to adult trials. Others, like me, maintain a connection to juvenile court throughout their careers.

My own judicial career began in 1984 in a small Illinois county closer to Kentucky than Chicago. I handled every matter, from juvenile to traffic court, from shoplifting to felony cases. Nearly two dozen years later when I retired as Chief Judge of Illinois’ Second Judicial Circuit, I still was presiding over juvenile court. Like many other judges, I had discovered the challenges and rewards of presiding over juvenile trials, and I felt it was important to maintain that connection.

Juvenile court has its share of frustrations and heartbreak but also the potential for great reward, especially in a small community like mine where you see the same teenagers grow into men and women and begin to raise their own families. Of course, not all live “happily ever after” and instead spend their lives going in and out of adult prisons.

Many times I would go home after a day in juvenile court and think over and over again about the young people who had been in my courtroom and too often wished I could have ordered an alternative short of a juvenile prison. Even though juvenile court judges have a wide range of options, the best match for the crime and the teen isn’t always available, especially in rural jurisdictions where public funds are limited and not all therapies are offered.

Even if the child’s crimes were not violent, prison sometimes was the only way the child might find the counseling and therapies to change that behavior. But rehabilitation in prison was no guarantee, did not involve families and put the youth in contact with some of the state’s most violent and troubled teenagers.

Fortunately, that lack of options began to change my last year on the bench.

The counties in my circuit were chosen to be one of the four pilot sites for a new state program, Redeploy Illinois. In exchange for our promise to send fewer young people to the state prison system, Redeploy Illinois provided funding we needed to reach our youth before their behaviors worsened. The local stakeholders – judges, prosecutors, public defenders, law enforcement, and many other community leaders – work together on the program.

Redeploy Illinois has made it possible to assess and screen all youth referred by the court or probation officers. Once we know what services are appropriate to meet each youth’s needs, they attend therapy sessions, sometimes in their homes and they are sent to residential mental health or substance abuse treatment when necessary.

The Redeploy Illinois program requires participating counties to agree to reduce commitments to juvenile prison by 25 percent in exchange for new state funds for local youth services. Statewide, the Redeploy counties have reduced commitments by 51 percent -- more than doubling the target and allowing the state to avert more than $40 million in potential incarceration costs. The results in my Second Judicial Circuit mirror the statewide results. Since 2005, we have reduced eligible commitments by 51 percent and provided services to more than 600 youth in our circuit.

Of course, we’re not the only state to have grasped the cost effectiveness and rehabilitation success of state funding for such local services. The piloting of Redeploy Illinois was based in part on the RECLAIM Ohio program, and financial crises have caused additional states to offer help to divert young non-violent offenders from expensive prisons where rehabilitation too often is an afterthought.

Unfortunately not every county has access to Redeploy Illinois services yet. But the proven cost effectiveness should help convince state leaders to expand the program. If that happens, many of those incoming juvenile court judges will one day want to pull senior rank and remain in juvenile courtrooms.

Juveniles Not Entitled to Legal, Parental Counsel Prior to Police Investigations, Ohio Supreme Court Rules

Last week, the Ohio Supreme Court ruled that the state’s laws do not entitle juveniles the right to an attorney during interrogations that occur before charges are formally filed, or prior to an initial appearance in Ohio’s juvenile courts.

The decision stems from a case involving a juvenile, caught driving without a valid license, when he was initially stopped by a Cleveland-area police officer. Later, the teen signed a Miranda Rights waiver and a statement admitting he was involved in a robbery.

The teen’s defense team said that his statement should not have been admitted into evidence, as police did not provide him with a lawyer.

A portion of Ohio state law requires minors in delinquency cases to have legal counsel “at all stages of proceedings.” Ohio’s high court, in a 4-3 ruling, determined that “proceedings” does not entail investigator actions.

The ruling also affirms a prior decision that state laws prohibiting minors from waiving their right to counsel before consulting a parent, custodian or lawyer was applicable only to court proceedings, and not police interactions.

Justice Terrence O’Donnell wrote the court’s majority opinion, joined by Justices Judith Lanzinger, Robert Cupp and Evelyn Stratton.

Writing in dissent, several justices wrote that the ruling “defies law, logic and common sense” and “offends fundamental notions of due process and fairness.”

“The majority’s holding offends the United States Supreme Court’s constitutional commands on a juvenile’s due process and Fifth Amendments rights,” wrote Chief Justice Maureen O’Connor, who was joined in dissent by Justices Paul Pfeifer and Yvette McGee Brown.

 

JJIE Presents: The Juvenile Justice Documentary Project, in Partnership with Calamari Productions

Aaron, 18 years old and dressed in an oversized, light grey sweatshirt, sits blankly across from Intake Officer Clayton in an Indiana detention center while she asks him questions, his face betraying little emotion and his voice barely above a whisper.

“I can’t hear you,” Clayton says, and Aaron repeats his answer, just loud enough for her to hear.

As Clayton tells Aaron of an impending charge, shock flickers across his otherwise still face – this was the first he’d heard anything about it.

Scenes such as this are common in the work of Calamari Productions. In an effort to continue bringing innovative, accurate insights on juvenile justice, The Juvenile Justice Information Exchange has formed a partnership with this award-winning production. Dubbed The Juvenile Justice Documentary Project, the partnership showcases documentary clips that give first-person accounts from teens and employees of the system on JJIE’s sister site, Bokeh.

Calamari, an independent digital media and television production company, is unique for its sole focus on juvenile justice and child welfare programming. With shows that have been featured on several major networks including MSNBC, A&E, Dateline NBC and MTV, Calamari goes beyond providing inside access to juvenile detention centers and court hearings and succeeds in showing the human side of the juvenile justice system.

“When you’re making films or projects about youth and especially youth who are at a crossroads in their life or in a state different place, it’s easy to get their stories wrong. So, there’s a heightened responsibility for filmmakers in this area,” said fellow documentarian Bernardo Ruiz of Quiet Pictures.

Founded in the spare bedroom of President and Executive Producer Karen Grau in 1995, Grau felt the push to focus on these issues when, for an unrelated matter, she sat in on an abuse and neglect hearing.

“And without any intent on altering her life course, she was so affected by what she saw in that courtroom and she just felt people had to know what goes on…she felt very strongly that the public needed to know,” said Chip Warren, Vice President of Production and New Media Development at Calamari.

Warren, who began working with Calamari on a part-time basis in 2005 and fully made the transition in 2008, also never intended to commit his life to this work. With extensive production and development experience, it was also Warren’s time spent around kids in crisis that lead him to commit to this cause.

“The really powerful experience is walking into a detention center or prison for the first time --- those kids are scary,” said Warren. “Going from that to talking to them about their past and opening up to them and them opening up to me -- that human connection, and feeling like you could make a real connection if you just treat them like normal,” said Warren.

As a teen, Warren also spent some time in a juvenile detention center, which he feels gave him a marginally better chance at being prepared to enter into this field of work.

“Coming from a well-to-do middle- to upper-class background, spending a weekend in juvie really impacted me,” said Warren. “It better equipment me to step outside my comfort zone and embrace that human connection in these environments.”

And, showcasing that human connection is just one of the things that has helped Calamari grow and bring these stories to life. In just over a decade, the company has flourished from a small bedroom office to headquarters in Indianapolis, Ind. with satellite offices in New York City and Austin, Texas.

Grau’s commitment to staying true to the topic as well as her hands-on, holds-no-barred attitude pushed her to petition the Indiana Supreme Court for camera access in the courts, a request to venues that – by law – are close to the media. Grau, along with Calamari Productions, made history by becoming the first director/producer and production company to have the state law waived and gain unrestricted access to Supreme Court hearings. And although others have been granted temporary access, Calamari’s remain the only cameras allowed inside several juvenile and child welfare courts and juvenile prisons with unrestricted access.

This access couple with Calamari’s commitment to educating the public on the inner workings of the juvenile justice and child welfare system has resulted in numerous award-winning network television series and documentary films.

Through growth and innovation, Calamari has managed to stick to its main goal: Sharing the stories of children, teens and officials who deal with the juvenile justice and child welfare systems.

“We want to de-stigmatize these families and courts, because they don’t get their story told,” said Warren. “And to help people realize what brings kids into trouble in the first place. And, that there’s a reason to care,” Warren explains. “And it’s not about being lenient. We’re showing that they are challenging cases. [There is] more of an opportunity to rehabilitate a 15-year-old than a 25-year-old.”

JJIE’s Bokeh will begin with an exclusive look at one teen’s process in the juvenile justice system. In a three-part series entitled “Aaron’s Story,” this young man shares his story on how he landed in the system, and what’s in store for his future. For the full feature, follow this link: The Juvenile Justice Documentary Project

Georgia Appeals Court Rejects Check-Box Juvenile Court Order

An order by a Juvenile Court judge on a pre-printed form made by checking boxes and writing cursory comments, was thrown out by the Georgia Court of Appeals. The judge admits he got sloppy on the form, but stands by the merits of his decision and explains that the case was complicated by Georgia sentencing guidelines.

JXB, a minor from central Georgia, was sentenced to a year in secure state detention for bringing a weapon to school, as specified in an order earlier this year from Ocmulgee Judicial Circuit Juvenile Court Judge Philip Spivey.

But the order itself was a pre-printed form that offered check-box options to serve as findings, such as: offender “has demonstrated by his conduct a lack of respect for authority, both parental and legal.”

The form also includes boilerplate language on the five categories that Georgia law requires juvenile sentencing judges to consider, such as needs and best interests of the child and protection of the community. Underneath, there is space for the court to record the facts in each category, said Carl Cansino, JXB’s attorney.

“But in my particular case, most of the lines said ‘N/A, not applicable’ … there’s not any facts in there,” he contended.  As soon as he saw the order, Cansino said, he knew he would appeal.  He brought the question of the form itself and the merits of the case to the appeals court.

“Mea culpa,” admitted Spivey, but explained, “I did the right thing; I just didn’t do it in the right form.”

The Court of Appeals remanded the order back down to Spivey’s court but did not rule on the merits of the case. Spivey this month released JXB on time served: six months.

“I wish I had given him six months to start with, that’s what I would like to have done, but you know we can’t do that,” Spivey said.

Georgia has two types of secure detention facility for minors—those for short sentences of 30 days or less and those for long sentence of one year or more.

There’s no way for Spivey or any other juvenile judge to order medium-term confinement.

JXB took a baseball bat to school and used it to hit another student—a bully who scared JXB and who is now an adult in the Baldwin County Jail, according to Cansino.

But according to Spivey, JXB had also exhibited violence in the classroom and had directed that violence against others.  He said teachers testified that JXB was in the worst fight they had ever seen.

The assault on the victim was pre-planned, the judge said, and with a bat in play, “people could have been seriously injured or killed, that’s what I was concerned about.”

As for the form, Spivey said it is used in about eight of ten designated felony cases — the most serious offenses — that go through his eight-county court circuit.  He got it from another judge at a seminar.

It’s not one of the many forms referenced in the Uniform Rules for the Juvenile Courts of Georgia, said Council of Juvenile Court Judges of Georgia Executive Director Eric John.

But he defended forms, when used correctly. “There are all kinds of forms out there … with preprinted verbiage,” John said, “but you have to type in the crucial language.”

Cansino criticized the form saying, “I think any time you have a fill-in-the-blank or check form, it lends itself to being as brief as possible.”

He continued: “How many cases have gone where people are now in the RYDC with check-boxed orders?” He predicted courts will “flush” the form.

However, John said he does not think poorly-filled out juvenile orders are a widespread problem; if it were, more cases would appear in appeals court.

But few juvenile cases appear in the Court of Appeals on any grounds.  A recent study of several states gives some explanations. One is that many juvenile sentences are so short, measured in months, that they are served out before an offender could get a court date.

Because JXB is a juvenile, court records and his name are sealed.

Taking the Time to Make Juvenile Court Work

A couple of weeks ago, I was in juvenile delinquency court and as often happens, a particular case got me thinking – and rethinking – about the system as a whole.

A 14 year-old, whom I will call Sarah, was charged with misdemeanor assault.  She had hit another girl at the foster care facility where the two were living.  Sarah readily admitted to the charge, and the judge then moved to disposition, similar to sentencing in adult court.  A counselor reported that Sarah was receiving therapy and doing well in a class at the mediation center on “conflict coaching.” Her probation officer recommended that she remain on court supervision under the same terms.

The judge, however, wasn’t satisfied.  “I’m concerned,” she said to Sarah sternly.  “This is the third or fourth adjudication for assault in the past two years.  What is changing to help you get in charge of your emotions?”

Sarah stood and looked down at her hands.  “I don’t know.”  The courtroom was silent.

“Your Honor,” her public defender began, standing with his client.  “Sarah has experienced significant trauma.  She is struggling with serious issues that are deep-seeded.  This is not to excuse her behavior, but to explain that she is receiving therapy and making improvements.”

As the hearing continued, I learned that Sarah’s father had never been a presence in her life and that her mother had died several years earlier.  She had been in residential group settings ever since.

“Why do you become angry?” the judge asked the girl.  Sarah spoke haltingly. “When I see other people with mothers and fathers, I get upset,” she whispered.  Tears ran down her cheeks.

“Thank you for sharing that,” the judge told her softly.  “We want you to find the right way to handle your anger so we can get you the help you deserve.  You need to let other people in and not to push them out.”

Sarah’s lawyer put his arm around her shoulder.  Her probation officer handed her a tissue.  The judge announced that she was accepting the probation officer’s recommendations and that Sarah would remain on the same conditions of probation that had been imposed months earlier.  A review date was set for the next month.

As the hearing concluded, the judge spoke once more.  “Sarah,” she said, “nobody’s giving up on you.”  Then the judge asked to meet with the girl in the corridor.

The court officer announced a brief recess, and when Sarah returned ten minutes later, she was no longer crying.  As she joined her lawyer and caregivers, the judge called after her, “Don’t forget what I said.  I will see you again soon.”  Sarah turned toward the judge and smiled.

I don’t know what words were exchanged between the judge and Sarah outside the courtroom, but I felt that I had just witnessed something special.  A teenager had accepted responsibility for her actions, and the adults around her had responded with the right balance of solemnity and empathy.  Sarah left knowing that her behavior was unacceptable and needed to change but that she wasn’t alone.

Although the hearing took place in an urban district court with a crowded docket, the judge devoted nearly 45 minutes of careful consideration to the matter.  Sarah’s defense lawyer had been well-prepared and spoke effectively.  Her caregivers were present and committed to their work.   Sarah had an opportunity to speak and be heard.

Given my years in delinquency court, I knew that there would be further bumps along the road for her, but today, at least, Sarah’s experience in the juvenile justice system was a positive one.

The difficult question is whether this scenario can be replicated for other children.  Like many juveniles, Sarah is caught up in both dependency and delinquency courts, and while these systems are not – and never will be – perfect, she is seemingly being helped.  At 14, it is unlikely that she will ever be formally adopted into a family, but it’s possible that she can gain the life skills needed to become a productive member of the community.

Through practicing, teaching, and writing in this area, I have found that it’s easy to focus on everything that is wrong with juvenile court – and there is, admittedly, a lot in that category.  Perhaps if we try harder to identify what is right about the system – or at least instances in which cases go particularly well – we can more effectively find models that work.

The principle lesson learned from Sarah’s case is the necessity of having an adequate block of time for each disposition.  In my experience, at least 30 minutes is the minimum amount needed for a judge to gain a sense of a child, to hear from her caregivers, and to forge a connection.  Will this be challenging for busy juvenile courts with limited personnel and budgetary constraints?  Yes, of course, it will.  Is it worth it?  One needs only to glimpse Sarah’s smile as she left the courtroom to know the answer.

Gateway to Adult Court for Young Defendants Slowly Closing

In a Georgia courtroom last month, 11-year-old Dalton Archer plead guilty to murdering his father’s girlfriend near Christmastime last year, when he was 10. Archer automatically went through juvenile court, something that took years of fighting for a similar defendant in Pennsylvania. Though changes are happening across the country, not all young people are guaranteed a juvenile court hearing instead of adult court for very serious crimes.

In 1997, Oklahoma law specified that children as young as 7 could be handed to adult courts, according to a 1998 report from the federal Office of Juvenile Justice and Delinquency Prevention. At that time, about one-third of the states set some floor age between 10 and 15 for eligibility for transfer to criminal court. The rest set none.

By 2008, a handful of references to 7- and 8-year-old eligibility for adult trials were erased from state codes. Two-thirds of states had set a floor for transfer to adult courts on murder charges, all between 10 and 15 years old. And most states had set a minimum age for adult court on non-murder charges, according to a 2009 report by Michele Deitch of the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin.

Yet 22 states and the District of Columbia still had no minimum age for adult court, Deitch reported at that time. Which, read with laws on minimum age for criminal intent, meant children as young as 7 could go to adult court, she wrote. And numerous states automatically sent juveniles charged with certain crimes straight to adult court, a process called mandatory transfer.

Deitch still studies youth in adult courts and says since her report, she’s “not seen any state take this [mandatory transfer] on explicitly, though it may be part of other reforms.” But she also added that she is “seeing some states remove some items from transfer-eligible offenses.”

Mississippi put most 17-year-olds charged with arson, drug offenses or robbery firmly in juvenile court under a 2010 law. The same year, Nevada closed a loophole that allowed prosecutors to delay filing charges against 13-year-olds until they were 14 and would be sent to adult court. And Colorado decided to send most 14- and 15-year-olds to juvenile court by default instead of adult court.

But for some juveniles involved in serious crimes, the adult system remains the first stop after arrest, no matter what.

“Pennsylvania, like some other states, treats all cases of murder as adults in the first instance,” noted Robert Schwartz, executive director of the Juvenile Law Center in Pennsylvania.

“For example, the case earlier this year, Jordan Brown was arrested at 11 for murder,” said Schwartz. “Originally he was kept in the adult system then sent to juvenile court.”

Brown was arrested in 2009, but it took until 2012 for his defenders to get him moved to and his case heard in a juvenile court.

"But serious, violent felony cases involving preteen defendants make up only a handful of all criminal cases involving minors of all ages," Schwartz noted.

Complete national statistics are not available, but a large FBI dataset called the Uniform Crime Reporting Program listed nine juveniles aged 12 and under arrested for murder or manslaughter in 2010, and a dozen the year before. Robberies barely topped 600 in each year.

Powerful Tool Shines Light on Secrecy in Juvenile System

Traditionally, juvenile courts have protected children from lasting stigma and emotional trauma through aggressive secrecy, in contrast to their adult counterparts. But the anonymity provided by the juvenile system is a direct impediment to journalists and others charged with delivering information to the public. But a powerful new tool, published this month by the Reporters’ Committee for Freedom of the Press (RCFP), provides a state-by-state breakdown of access to juvenile courts.

The report, funded by a grant from the McCormick Foundation, appears in the Spring 2012 issue of RCFP’s quarterly publication, The News Media & The Law. Each state is profiled in detail, describing which juvenile proceedings and records are available to the public and which require special permission. An at-a-glance chart highlights the critical privacy laws in each state.

According to the report, “Secret Justice: Access to Juvenile Justice,” public access to information on juvenile crime is typically related to the severity of crime. But the guide helps level the playing field for those who depend on access to the system.

Lucy Dalglish, RCFP’s executive director says the guide is an equally valuable resource for the families of children caught up in the juvenile justice system.

“Your kid gets sucked up into this system and it’s like being on another planet,” she said. “The entire process is a mystery for most families.”

The report, Dalglish said, can help families navigate a complicated and often confusing system.

“It explains who will be there in the court proceedings and what the community is allowed to find out,” she said.

While protecting the privacy of juveniles in the system is important, Dalghlish said, the community benefits from transparency.

“There is a lot that can be told to a community when they are informed about how their juvenile justice system works,” she said. “Everything from what trouble they are getting into to what is driving that.

“It’s important to know what issues kids are facing today,” she added. “It’s important to know what is happening to these kids in juvenile court.”

And many states recognize how important transparency is to the community, Dalglish says.

“Even states that do not allow routine public access sometimes allow the media to cover certain proceedings if they are important to the community,” she said.

Photo by Clay Duda | JJIE.org

Well-being of Children Central to Courts’ Mission, Expert Panel Says

 

(L to R) Judge Robert Hofmann, Eva Klain and David Kelly

The nation’s juvenile and family courts need to lower walls that have blocked the sharing of data that is key for to marshaling a child through state agencies and the justice system, according to a gathering of court experts Thursday.

If the courts fail, a child’s mental, physical and emotional well-being could be damaged, according to a series of measures and recommendations put forth by the panel to guide judges and courts in handling youth in the system.

“The days of sitting in your office creating your own [data] system without input from others – those days are gone,” said Sandra Moore, head of Pennsylvania’s Office of Children and Families in the Court. “We just can’t function that way anymore…The court system needs to be able to talk to the child welfare system.”

Courts Have Had Some Success

Gene Flango
Gene Flango, executive director at the National Center for State Courts.

Over the years, judges and the courts have had success pushing forward the conversation on the safety of state wards and foster children, as well as dealing with matters like visitation and permanent placement, the panelists said.

“The problem is, with well-being, frankly we weren’t sure how effective the courts would be,” said Gene Flango, executive director at the National Center for State Courts. And this includes health data, education data and drug, alcohol or medication use – areas where the laws have been historically strict on the transfer of information from one hand to the other.

It also involves engaging neighborhood or parental groups, the faith community and educators.

Five Goals for Outcomes

Nora Sydow, a knowledge and information services analyst for the National Center for State Courts, noted five chief goals - or well-being outcome areas - that drove the plans and measures on the table Thursday:

  • Physical health, including immunizations and health screenings during the hearings.
  • Mental health, including medications.
  • Permanent relations with siblings placements and visitations during court hearings; and
  • Transition to adulthood; and
  • Enhanced family capacity to raise a child.
Nora Sydow
Nora Sydow, with the National Center for State Courts.

"The hardest thing about being a judge is making the right decision,” said Judge Robert Hofmann of Mason, Texas. “The more information that we have, the better decisions that we’re going to make and the better the outcomes are going to be for children.”

But if judges - who might be resistant to change or bending to rules more applicable to business than meting out justice or piecing together broken families - keep asking the right questions of court officials and experts, the right answers will come, he said.

Foster Care and Youth Detention by the Numbers

The number of children in foster care has dropped sharply, falling 23 percent to 424,000 between 2000 and 2009, according to a 2011 Child Trends snapshot. Other studies and groups put the figure much higher, at 500,000 or even 800,000.

The number of youth in detention, meanwhile, officially stood at about 71,000 as of 2010. However, some juvenile justice experts put the number – which is heavily skewed against blacks and Hispanics – at close to 100,000.

What is not contested, however, is the impact that placement in the system has on a child.

The Impact of Placement on a Child

On education, for example, the group’s draft Issue Paper released Thursday stated the academic field was terribly lopsided, working against foster children and others in the system since they had low graduation rates and college enrollment, high dropout and mobility rates with excessive transfers and poor achievement.

"The long-term outcomes for those with poor educational experiences include difficulty in the transition to adulthood, poverty, homelessness and incarceration,” according to the report, which runs more than 50 pages. All this can translate into emotional and social troubles and trauma, such as disengagement from social circles and being "ill-prepared for adulthood."

Poignant Timing for Panel

childrens bureauThursday’s panel, which came during National Foster Care Month, was put on by the U.S. Department of Health and Human Services and moderated by David Kelly, a child welfare program specialist for the department’s Children’s Bureau.

Kelly, in opening the session, noted Thursday was the anniversary of the landmark Brown v. Board of Education Supreme Court case – "one of the most most important civil rights cases in history, and it certainly has implications for a child's well-being. It is especially poignant in framing our discussion."

Needs of the Children

On health, the group (which started a focus group last year to build on efforts underway since 2009) wrote: “Some estimates say approximately 80 percent of children in foster care have significant health care needs, including chronic health conditions and developmental concerns.”

There are also many issues involving medication or over-medication and social engagement.

Nor is there disagreement on the need to share information and get a quick start on implementing some of the panel’s recommendations. While agreeing it may be impossible to implement all of the measures at once, all on the panel said courts can certainly make headway by looking at their current systems and capitalizing on existing strengths, whether it's collection of health data, medication logs, or educational attainment.

The Importance of Sharing Information

Hofmann noted that judges often "default to the most stringent interpretation" of laws governing data that deals with a child's privacy, especially in the realms of education and health.

To deal with this, officials in every state should "look for the low-hanging fruit," Moore said. "Find something that you're being successful at and celebrate that. Help people understand that we really can help people; we really can do something with these well-being measures to help children. And then move on to the next [area]. Success breeds success."

The panel, which also included Eva Klain, director of child and adolescent health at the ABA's Center on Children and the Law, noted that data systems do exist. It's a matter of collaboration and making systems more user-friendly across agencies so sharing is encouraged and not something to shy from.

States like Colorado are gaining on real-time sharing of data between the courts and child welfare agencies, while others, including Delaware, are just starting to create more complex databases to house information vital to a child's well-being, according to the panel.

Defining a Child’s Best Interest Not Easy

The management of the nation's child and family courts has been a sore issue for decades as judges, attorneys on either side of the aisle and advocates wrestled with what constituted a child's best interest. Just as harsh penalties dominated for years in juvenile court, in family and child welfare proceedings safety took precedence.

This, according to many experts, shoved out many needs of the child. Where there was punishment, rehabilitation was needed, they argued. Where there was removal of the child, education evaluation of the entire family structure was needed.

"If we protect children," Moore said, "but we don't do well on that journey in protecting the well-being of children, then I don't know that we've done them service."

Eric Ferkenhoff is the editor of The Chicago Bureau.