Easing Drug Laws the Answer to the Nation’s Drug, Prison Problem – Or Precursor to More Crime?

The atmosphere of incarceration might change soon with the deliberation over the Smarter Sentencing Act, which deals with drug sentences.
The atmosphere of incarceration might change soon with the deliberation over the Smarter Sentencing Act, which deals with drug sentences.https://creativecommons.org/licenses/by-sa/2.0/) cropped.

From the Chicago Bureau: 

Alan Mills is not one to make apologies for his beliefs – and one strongly held by the legal director of the Uptown Peoples Law Center is about America’s current drug laws.

“We’re locking up too many people for too long.”

chicago logoMany laws, especially drug laws, have punishment lengths that do not fit the crime, he and other critics explain. In fact, a recent report titled “Nation Behind Bars: A Human Rights Solution,” explains that unnecessarily long sentences contribute to America having the world’s highest reported rate of incarceration.

And these laws are harming youth in Chicago and across the country, which ensnare many youth in drug crimes early on, especially in poorer neighborhoods.

“This is a population of our society who have been neglected. We haven’t done right by them, there have been a lot of broken promises,” said David Kelly, the executive director of the Precious Blood Ministry of Reconciliation. “Too many young people live without possibilities and live for today because they have to live from one day to the next.”

The Precious Blood Ministry of Reconciliation has been reaching out to those effected by violence since 2002. The organization frequently deals with youths in prison. Kelly explains that this day-to-day mindset is very harmful for youth, and many deal with the resulting pain by numbing themselves with drugs or trying to make money by selling drugs.

This can be particularly dangerous, as there is a lot of pressure from politicians and the police to arrest those who violate drug laws.

Alan Mills, a Lawyer with the Uptown People’s Law Center, who states, "we’re locking up too many people for too long.”
Alan Mills, a Lawyer with the Uptown People’s Law Center, who states, "we’re locking up too many people for too long.”

“In Chicago, we don’t have stop and frisk,” Mills said. “We have stop and incarcerate,” Mills said.

And these arrests have the potential to permanently damage a juvenile’s future.

“As soon as a kid gets a record, the pathway to more serious and adult arrests is there, so in a way it sets them up for further incarceration. And incarceration just inflames the problem,” Kelly said. “Kids come out more disconnected from their family and community and are behind in school. So we spend a lot of money incarcerating a kid and they end up worse than they went in.”

But the atmosphere of incarceration might change soon with the deliberation over the Smarter Sentencing Act. The bill, which has already passed the Senate Judiciary Committee, deals with drug sentences.

Among other things, the bill would allow judges to disregard mandatory minimum sentences if the defendant’s criminal history is not higher than category two and reduce sentences for crack cocaine passed before the Fairer Sentencing Act to be in accordance with that act.

This means that mandatory minimums will not be implemented if the defendant does not have more than one criminal history point and that the sentences for crack will now be in an 18:1 ratio to powder cocaine rather than a 100:1 ratio. The Fairer Sentencing Act also eliminated the five-year mandatory minimum for simple possession of crack.

Crack sentences have persistently been blamed for being discriminatory. Studies have shown that demographically, African Americans are more likely to use crack cocaine while white Americans are more likely to use powder cocaine. Before the Fairer Sentencing Act, the sentencing for crack cocaine was much higher than that for powder cocaine even though they are pharmacologically the same drug.

Illinois’ senior U.S. Senator, Dick Durbin, who is sponsoring legislation to ease drug laws that disproportionately impact minority communities.
Illinois’ senior U.S. Senator, Dick Durbin, who is sponsoring legislation to ease drug laws that disproportionately impact minority communities.

The bill, introduced by Senator Richard Durbin (D-IL) and Senator Michael Lee (R-UT), now has 17 Democrat and 12 Republican sponsors in the House of Representatives.

“What we’re talking about here, is doing everything we could do, sensibly, to reduce the level of incarceration,” Durbin said at a Senate Judiciary Committee hearing. “Our bill focuses on drug cases, and those represent about 50 percent increase in prison incarceration.”

In a statement about the bill, Durbin also explained that the bill could help ease overcrowding in the nation’s prisons and lighten the load on a budget that currently spends roughly $30,000 each year for one inmate.

There are currently 10,520 drug-related inmates in Illinois state prisons today. They make up 21.6 percent of the current Illinois state prison population.

The bill has attracted the support of many civil rights groups, such as the Drug Policy Alliance, Human Rights Watch and Families Against Mandatory Minimums.

According to Families Against Mandatory Minimums, they support the bill because it will save billions of dollars typically incurred by incarcerating drug offenders, address over-criminalization and help ameliorate a longstanding racial injustice.

Further, complying with the Fairer Sentencing Act’s elimination of the mandatory minimum for crack cocaine and allowing re-sentencing would shift discretion in drug cases away from the prosecutor and return it to judges.

In the current system, the sentence largely depends on the charge with which the prosecutor charges the defendant. Since the prosecutor has a one-sided agenda in the case, returning discretion to the judge could result in a more appropriate charge and fairer sentences.

However, many other groups, such as the National Sheriffs’ Association, the National Association of Police Organizations and National Narcotic Officers’ Associations’ Coalition oppose the bill.

“We’re looking right now at historically low crime rates across the nation,” said Bob Bushman, President of the National Narcotic Officers’ Associations’ Coalition. “And that’s because of the good work of the police to get repeat offenders off the streets,”

Bushman also fears that reducing the sentence for drugs may send a message to Americans, especially juveniles, that drugs are not dangerous.

Many supporters believe that the bill is a start but does not go far enough in dealing with those struggling with drug problems. Proponents of the bill claim that drug addiction is a medical issue and should be dealt with in a medical fashion, such as replacing prison with rehab when dealing with drug abusers.

“We seem to have a problem grasping that drug addiction is in fact an addiction,” Mills said. “The analogy I use is that it makes no sense to lock somebody up if they have a fever. You have to treat the underlying disease.”

Some suggest the solution could be to destigmatize addiction and provide resources to often poor communities to help combat drug use.

“We need to have community based organizations and resources so the kids can access what they need in their own community and don’t have to be incarcerated at all,” Kelly explained.

Although the Smarter Sentencing Act does not deal with the underlying cause of drug use and its aftermath, the number of cosponsors in the House of Representatives is rising. It seems that this effort to reform drug sentences may be on its way to the White House.

Youth Facing Adult Jail Time now Excels in Alternative Program

Daryl Mensah-Bonsu, once facing adult jail time, is now excelling in a local community program.

After spending a night and the entirety of the next day cold and scared in New York City’s 61st Precinct, Daryl was ready to go home. [Editor's note: We are not using Daryl's last name because he is a minor.]

JID_art_front-01But, about 24 hours after he was arrested, when the Brooklyn District Attorney’s office presented him with his first plea bargain, that hope was crushed. If he admitted his guilt, he would serve only one to three years, which seemed like an eternity for the 15-year-old. During the time leading up to his arrest in September 2012 he had worked on becoming a musician and a dancer and was devastated by the idea of leaving the performing arts scene he had fought so hard to break into.

new york logo 01When he arrived at his second court appointment about a week later, the situation looked bleaker. The lawyer who had helped him the first time was missing, and then Frederic Pratt approached him and his grandmother to tell them he was the new attorney.

Pratt works for the Legal Aid Society, an organization which contracts with New York City to serve as the de facto public defender. He typically takes over juvenile cases for his colleagues after they have represented the client in the initial arraignment, but Daryl was too flustered to retain that information. He didn’t trust Pratt. He seemed too calm in a situation where Daryl was racked with panic.

“The rest of my life is over,” he thought. “I’m going to die in jail.”

Although Daryl was only 15 years old at the time of his arrest, he was charged and tried as an adult. New York is one of two states in the nation that tries 16- and 17-year-olds as adults, but there are some crimes for which even younger teens become ineligible to go through family court.

[module align="right" width="half" type="aside"]Why do youth need defense attorneys who specialize in juvenile law?[/module]For 13-year-olds, these must be extremely serious offenses—murder, kidnapping or arson—but for 14- and 15-year-olds, like Daryl, other offenses like robbery, burglary and assault, are included. For the teenager, this meant that all the options he would have access to in family court were inaccessible; in adult court he and Pratt were automatically left with two possibilities.

“We have probation, and we have jail,” Pratt said.

At the court, Pratt discussed the situation with Daryl and his grandmother, with whom he lives, explaining that he would likely be able to avoid jail time. But Daryl could barely focus. His thoughts, he said, kept coming back to the plea bargain, to his grandfather who had bounced in and out of jail throughout his mother’s life, and to a future that was beginning to look hopeless.

“So many thoughts were flying through my head,” he said. “I thought I might end up like my grandfather.”

Daryl was charged with robbery in the second degree. The details of the incident are etched in his mind, especially since he wrote and rewrote them at the request of the police.

He recalls walking with his friend in mid-September 2012, through the Sheepshead Bay neighborhood of Brooklyn, New York, when he tapped a woman on the shoulder to ask her for the time. He says she swung at him with her umbrella, and startled, he grabbed it to stop her. In handing the umbrella back to her, she backed up and fell, and his friend began to attack her, hitting her in the face repeatedly.

As Daryl protested, he said, his friend hit the woman harder. When his friend grabbed her bag, pushing it into Daryl’s chest and telling him to run, he did. He tossed it almost immediately, he said, but it didn’t take long for the police to find him.

“I just knew I was going to jail,” he said. “This is going to be like on TV. I’m going to jail.”

hub_promo_4_01In addition to his fear of stepping away from the arts scene he’d been fighting to be a part of, there were other, more daunting reasons he was terrified of jail time. By the time Daryl met Pratt, his visible wounds had healed, but he was emotionally scarred from his alleged beating by the police.

The first time the police officer tried to stop him, he didn’t resist. Although he was scared, he said he remained still, even when another officer arrived and started to threaten him verbally, cracking his knuckles as he approached the teenager. Daryl said he pleaded with the officer not to hurt him, but as the violent threats escalated and the officer got closer, he panicked and ran.

He said he recalls later drifting in and out of consciousness in the back of a police van and then in the precinct. A cold, dripping sensation trickled in his lower back. His face bled from where he said the officer had repeatedly kicked him, and his shoulder throbbed from two gashes. He said he held his body as still as he could, afraid of the pain motion might bring.

The experience shattered his faith in the police, who he says he had never before distrusted.

“I felt broken,” he said. “I felt like I was crumbling.”

The NYPD declined to comment on this story.

Daryl Mensah-Bonsu and his girlfriend, Sheray Goday, both attend Gotham Professional Arts Academy in Brooklyn, and spend much of the weekend together.
Daryl Daryl and his girlfriend, Sheray Goday, both attend Gotham Professional Arts Academy in Brooklyn, and spend much of the weekend together.

As is typical of the situation, the case travelled slowly through the system with monthly appointments in court, and Pratt successfully helped Daryl avoid incarceration. He was also fortunate to avoid a felony on his record, as some in his position do, instead receiving the alternative “Youthful Offender” or “YO” status. He was required to enroll in a local program called Center for Community Alternatives, where he adhered to a strict curfew and regular drug tests, and will remain on probation.

For Daryl, the program has been successful. He doesn’t find the drug tests a problem, because he doesn’t use drugs, but the curfew has been a challenge. He spends his spare time rapping and dancing—a talent which has earned him the artist name “Young Michael,” from his Michael Jackson impersonations—and at times has had to ask for special permission to stay out late to perform.

He has been so successful in the program that he was granted a permanent curfew extension, and Pratt has requested that he stop having court appointments since he must miss school to do so. They hope that the probation will be shortened from the minimum sentence of five years to two or three.

Daryl believes this was not just a good option for him, but that programs like this need to be further developed because avoiding incarceration is in most cases the best option.

“I feel like if jail is supposed to rehab someone, why keep them isolated from the world,” he said. “Jail really isn’t helping anyone.”

resource_hub_front-01In 2012, a new initiative called “Close to Home” began in New York City to bring upstate facilities back into the city, thereby keeping children in their communities. By the time Daryl was arrested in September 2012, there were 30 small, non-secure facilities downstate. But because his crime is classified as an adult crime, he would not have been eligible for one of these. This is one of the reasons that Pratt is also a supporter of raising the age at which people are tried as adults. For his clients, there are two options: They will receive probation or be sent to jail.

resource_hub_front-01“In family court the focus is on the best interest of the child,” he said, “whereas in adult court the focus is largely punitive.”

Although Ronald Richter, commissioner of NYC’s Administration for Children's Services, sees the benefit of family court, especially for helping children to stay in their communities and continue their education, he also believes there are advantages in certain cases for minors who are tried as adults. For 16- and 17-year-olds who are charged with petty crimes, such as graffiti or possession of a small amount of marijuana, the repercussions are less serious than they would be for a 15-year-old being tried in a family court.

“The adult system is designed to work for adults,” he said. “A lot of crimes get sort of flushed out of the adult system. They’re sort of little fish in a big pond."

For Pratt, one of the biggest concerns is that even for those who receive sentences aimed at rehabilitation and successfully complete their programs, the issues that led them to trouble haven’t changed.

In other words, Daryl’s success story is the exception, he says, not the rule.

“You have to think about the bigger picture, what’s going to happen to the kid in life, what are the prospects for the kid,” he said. “I have great hopes that he’s going to do great things, but his is really an exceptional case.”

 

>> Click here to learn more about the latest juvenile court reforms 

 

Produced by the New York Bureau. 

Expungement App Tries to Help Erase Minors’ Records

Screenshot from www.expunge.io
Screenshot from www.expunge.io

CHICAGO — The Mikva Challenge Foundation released an app aiming to encourage more juveniles to seek assistance expunging their arrest and court records.

In 2012, only 70 of the 25,000 youths who were arrested in Chicago got their records expunged, according to a report by the Juvenile Justice Council issued last summer. Those who sought to have their records expunged were successful.

The report noted common obstacles to expungement that juveniles face and ways to improve them, recommending the creation of a workshop for juveniles on how to clear their records. A free mobile app was the result.

PrintChristopher Rudd, director of the Juvenile Justice Council, said the app allows users to connect to lawyers or a legal team that would guide them through the expungement process.

The main purpose of the app is to give those seeking expungement of their juvenile records more accessibility to the legal resources. The app itself contains information on where kids can find their RAP sheets, along with the cost of expungement and the length of time the process takes.

The expungement process takes approximately three and a half months and it costs $124 to expunge a single record. Although this process could be expensive for many, the fees could be waived, Rudd said.

Other Juvenile Justice Council recommendations are in development. These include a plan to turn foreclosed homes into safe housing for young people fresh out of prison and a welcoming circle program that will connect incarcerated juveniles with community groups via Skype to form positive adult relationships.

This story produced by The Chicago Bureau

Giving Kids a Choice: Interview with Adam Foss at 2013 Models for Change Conference

“One of my proudest stories out of the Choice program is a kid, we’ll call him Joe, a very, very involved gang kid… The first thing I noticed is his desire not to be on the other side of the glass, he was a kid who wanted to make a change.” 

JJIE interviewed Adam Foss, a prosecutor with the Suffolk county district attorney’s office in Boston, a member of the juvenile prosecution unit, at the MacArthur Models for Change conference in early December.

Watch it below:

 

Facing Bittersweet Moments and Hard Truths as NYC Juvenile Public Defender

JJJIEYouthArrested

NEW YORK -- On a wooden bench in the back of a small courtroom in downtown Manhattan, public defender Donna Henken is deep in conversation. She speaks in hushed tones to the district attorney on one of her cases, then turns to a middle-aged African-American woman sitting one row back.

“When he gets out of jail, will you let him back into the home,” Henken asks.

new york logo 01“I’m concerned because they keep talking about supervision for him and I have to work,” the woman says.

The D.A. watches the exchange closely. Henken tries again.

“He will probably still do some time, but in two or three years, will he be able to live with you?”

This time the woman doesn’t hesitate.

“Yes,” she says. “I’m the only Grandma he knows.”

The conversation ends with a victory. The district attorney agrees to recommend Henken’s client for Youthful Offender status. As a Youthful Offender, he can still be punished for his crime. However, his records will be sealed so that crime won’t hurt his future educational or employment prospects.

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Learn more about juvenile indigent defense at the Juvenile Justice Resource HubLearn more about juvenile indigent defense at the Juvenile Justice Resource Hub.

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Henken is pleased, if somewhat surprised, by this turn of events. The district attorney’s office is not always keen to compromise on her cases.

“My personality is to have a conversation and not a fight. Sometimes you can back the D.A. down with that, but I think the D.A. often comes in as the great punisher and I don’t really understand that,” Henken says later. “They should be able to see that these are young people who often come from very disadvantaged backgrounds.”

Henken works for the Legal Aid Society’s Adolescent Intervention and Diversion Project. Lawyers in this specialized unit handle cases in which 13- to 15-year-olds are charged with felony crimes. These adolescents are known as juvenile offenders and they are tried in adult criminal court rather than family court.

Henken’s clients struggle with the same issues as juveniles in the family court system. According to the Legal Aid Society, about 20 percent of these youth have experience with the foster care system. Almost two-thirds have special-education needs and about 25 percent of them have significant mental health issues that require ongoing care.

The lawyers in Henken’s unit work closely with a team of social workers to ensure that their clients get the same type of rehabilitative services they’d be eligible for in family court. With a range of 75 to 100 clients, Henken’s caseload is also much smaller than that of many public defenders. It allows her to really spend time forming relationships with her clients.

Juveniles In Adult Court

New York’s juvenile offender law was created in 1978 in response to public outrage over the case of 15-year-old Willie Boskett. Boskett, a self-described monster created by the prison system, shot and killed two men on the subway. Although he had a history of violent criminal behavior, Boskett was sentenced to a five-year placement in a juvenile facility, the maximum possible juvenile sentence at the time.

By July 1978, the state assembly had signed a new law that said that 14- and 15-year-olds could be held criminally responsible for certain crimes, including second-degree murder, arson and first-degree assault. In addition, judges were prohibited from using non-jail sentencing alternatives such as probation in these cases. The law also prevented juveniles from receiving Youthful Offender status.

[module align="right" width="half" type="aside"]“Because it’s an adult court, the paradigm really is, what’s the crime and what’s the fitting punishment? Whereas in Family Court, it’s about what’s best for the child.” [/module]In the 35 years since it was first enacted, the law has been stripped of some its more draconian aspects, experts said. The judges who preside over juvenile offender cases in the “Youth Parts” of New York’s criminal court now rely heavily on alternative-to-incarceration programs.

They also frequently grant Youthful Offender status to juveniles who successfully complete the court’s requirements. However, the stakes are still much higher for juveniles tried in criminal court than for those tried in family court.

This distinction is not lost on Judge Eduardo Padro, who presides over Manhattan’s Youth Part.

“In some ways, because I don’t have the same volume of cases as Family Court, I can spend more time with the youth. In other ways, I’m more limited,” Padro said. “Because it’s an adult court, the paradigm really is, what’s the crime and what’s the fitting punishment? Whereas in Family Court, it’s about what’s best for the child.”

Part of Henken's motivation for her work comes from a belief that adolescents should not receive criminal convictions, as some juvenile offenders do.

"A conviction is like a scar on their lives," she said. "You're talking about the poorest people in the city and then you're saying, we're going to make it harder for you to get a job, education, housing."

Yet, in some ways, she's happy to bring her cases before the Youth Part rather than Family Court, which is over-burdened with cases.

"When I was a lawyer in Family Court, people were really quick to remand kids and put them in detention," she said. "I feel that Judge Padro is much more thoughtful about his decisions to do that."

Melissa’s Story

JJJIEYouthEnter

Boskett’s case sparked major changes to the juvenile justice system, but the truth is that extreme violence in juvenile cases is rare. In New York City in 2010, only about 3 percent of juvenile cases involved weapons and fewer than 2 percent involved sexual offenses. Arson and homicide each made up about 1 percent of juvenile crime.

Henken says that the crime she deals with most often by far is robbery. Her next case is no exception.

It started two years ago when her client, a 15-year-old girl named Melissa, was charged with second-degree robbery. Melissa, whose name was changed for this story, and another girl punched a woman and stole her phone.

[module align="right" width="half" type="aside"]Her case has become less about her initial crime and more about the kind of violations normally handled in Family Court. [/module]Because Melissa had never been in trouble before, Padro gave her a second chance. He placed her in a yearlong program with the Center for Community Alternatives. Melissa successfully completed the program and seemed to thrive at CCA.

Then things started to go downhill.

Melissa’s mother suffers from bipolar disorder and her home situation is unstable. In the past year, she has run away from home several times, violating the court’s conditions. Each time she runs away, Padro places her in a detention facility for a few days, most recently two days ago.

Her case has become less about her initial crime and more about the kind of violations normally handled in Family Court.

“She has a lot of people who really care about her and see her as a loving person with a lot of drive,” Henken says of her client. “But she’s not attending school regularly and she’s leaving home. I think that the judge feels like he’s not asking her for much.”

JJJIEYouthPartHigh

Henken is concerned that Padro intends to keep Melissa in detention for much longer than a few days this time, so she has rallied the troops. Melissa’s case manager, her family counselor and her court advocate have all come to speak on her behalf.

The court officer brings Melissa to a small hallway just off of the courtroom. Henken tries to talk to her about what might happen during the hearing, but Melissa just sobs and repeats, “I want to go home; I want to go home.”

Eventually, a stoic Melissa makes her way into the courtroom, hands cuffed behind her.

Now it’s Henken who appears less than composed.

“Do you know that she was sent to Riker’s?” she asks the judge, unable to keep the edge from her voice.

Padro is surprised by this news. Adolescents are usually sent to juvenile facilities, not the 10,000-person prison known for its brutality and violence.

Henken requests a conference with the judge.

In a chamber just off of the courtroom, Padro, Henken and the advocates sit around a table and try to hash out Melissa’s fate, while she sits in the courtroom waiting for their decision.

The judge’s main concern is that Melissa will disappear again.

Melissa’s advocates have a plan. When her home situation becomes untenable, she will call one of her contacts at CCA to let them know where she is going. This way, she won’t violate the court’s conditions by going AWOL.

“Are you sure that home is the place for her to go?” the judge asks. “Because I came in here ready to keep her through the holidays at least.”

“She wants to be out and I think this is workable and we have a plan,” Henken says. “But if you do put her in, I think she should just do the time and that should be it and done.”

Eventually, they come to a compromise.

JJJIECriminalCourtThree

Melissa will spend 30 days in a juvenile detention facility. When she is discharged, Padro will grant her Youthful Offender status and her case in the Youth Part will finally be closed after two stressful years.

Back in the courtroom, when Melissa hears the news, her whole body relaxes in one great sigh of relief. She is prepared to spend 30 days locked away if it means bringing an end to this. As she is led out in handcuffs, she looks at Henken and the advocates who have fought so hard on her behalf for two years.

“Thank you,” Melissa says. “Thank you guys so, so much.”

For Henken, the moment is bitter sweet. She thinks the end of Melissa’s case was long overdue, but it also represents a hard truth about her work.

“In some ways, the hardest part is reviewing people’s lives and realizing that you can help in a small part,” Henken says later. “But there’s also a lot of despair that you just can’t fix.”

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A Day in New York Juvenile Court

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NEW YORK -- The mother stood outside of the courtroom, bewildered and distraught.

“Is this legal?” Lawanda Hoover asked, voice raised, as her lawyer followed her out of the courtroom to explain to her what had just happened.

A few minutes earlier, Hoover’s son, Deonte Holley, a small boy for his 13 years, had sat in the courtroom, with Hoover sitting behind him. A judge had perused a file, and issued an order of protection against Deonte, without so much as a word from the boy’s public defender.

new york logo 01Hoover had raised her hand, obviously confused, a futile gesture to get some explanation.

The judge told her, “You should speak with the lawyer; you can’t speak directly to me.” And her son’s public defender, who was scrolling through his phone, waved at her without looking back, saying, “I’ll talk to you outside.”

The whole thing took less than ten minutes, and the boy hadn’t said a peep beyond mumbling his name and age shyly at the start of the hearing.

Hoover said the issue before the court stemmed from a playground fight her son was involved in over the summer. She said it was two weeks before police officers picked her son up and questioned him for hours at the precinct. They told her they wouldn’t prosecute; then recently, she came home to find a notice to appear in court taped to her front door. Hoover got a chance to meet with the public defender only after the hearing.

“I don’t know how to do this stuff,” Hoover said after meeting with her son’s lawyer. “He just told [Deonte] to stay away from the boy. Of course he’s gonna stay away from him -- he doesn’t even know him. They play in the same park. That was July; this is November. What does he need an order of protection for?”

But for all the hustle and bustle on the 10th floor, the cases are processed slowly, and many times a family will appear in front of a judge just to get their trial date rescheduled. Trials get pushed when defendants or witnesses don’t show, like in one case on Friday, where a teenage defendant didn’t show up for her hearing.

The girl’s mother had told the prosecutor she was “AWOL” and could possibly be out of state. The girl’s Legal Aid attorney asked the judge not to issue the warrant, because her mother had been uncooperative (she wasn’t in court that day, either). She said she couldn’t even be sure the girl got the message from her mother that she was supposed to be in court.

“She knew,” the judge said. “She knew because she was given the court date. She may have forgotten, but she knew.”

The judge issued a warrant for the girl, and the public defender looked resigned as she stacked her thick file folders and shuffled out to her next case.

Oftentimes, trials get pushed when the defendants are present in court, because public defenders get overbooked. One defendant and his mother turned to each other and sighed audibly when they heard their trial was pushed to another date.

“It’s a lot of hurry up and wait,” one court officer said.

When a case finally gets to trial, which at the juvenile court is called a “fact-finding” hearing, the prosecutors present their case, including putting witnesses on the stand, but there is no jury -- the judge decides whether the young person committed the crimes and hands down a sentence.

little_1-01On this Friday, a particularly sensitive fact-finding hearing was taking place. A 12-year-old girl took the stand and testified against a young man, no more than 13, who was accused of sexual assault. She said he touched her breasts and genitals in the hallways of their middle school.

The defendant was being held in custody as the trial unfolded, and the girl was calm as she answered the attorneys’ questions.

“How’d you feel?” the prosecutor asked her.

“Uncomfortable,” she said, “because I didn’t give him permission.”

“To what?”

“To touch me.”

After she was cross-examined, the judge concluded the hearing for the day. The young man would have to wait in custody for a different day to hear his fate, but the girl was free to go.

Visit the Juvenile Justice Resource Hub

A Juvenile Public Defender and the ‘Untreated’ Disease of Poverty

The Clayton County Youth Development and Justice Center in Jonesboro, Ga. is home to one of the nation's more progressive juvenile court systems.
The Clayton County Youth Development and Justice Center in Jonesboro, Ga. is home to one of the nation's more progressive juvenile court systems.

This story is part of an ongoing series about juvenile indigent defense.

JONESBORO, Ga. -- Jerry Drayton’s office contrasts sharply with the rest of the Youth Development and Justice Center here in Clayton County, Ga. Although the facility is comprised mostly of light white, silver and yellow tones, the 66-year-old public defender’s chambers resemble a college dorm room. Posters of Elvis, Barack Obama memorabilia and even several Thunderbird model cars adorn his workspace.

juvenile_indig-01“I’m a product of the ‘60s,” Drayton said. “We felt like the best way to change things was through the law.” After three decades as a Morehouse College professor, he said he wants to finish his career by working with disadvantaged children.

So, for the last six years, Drayton has worked as a juvenile public defender.

His case today is centered around a teen who allegedly attacked a hotel worker. “She identified my client as the one who hit her,” Drayton said. “Really, we don’t have a defense, because his biggest problem is, he was out at 12 o’clock at night and he’s 13-years-old.”

It’s the boy’s first case, Drayton said. He’s eyeing one-year suspended probation, with a court officer monitoring the youth in school and at home. “Our goal is to keep kids from graduating into the adult system,” he said. “So we want to keep an eye on this kid, because we’ve already seen at-risk behavior.”

Public Defender Jerry Drayton, 66, said local delinquency is symptomatic of a much larger issue in the community -- the effects of living in poverty.
Public Defender Jerry Drayton, 66, said local delinquency is symptomatic of a much larger issue in the community -- the effects of living in poverty.

Drayton, whose salary is paid by the state, is in juvenile court every day of the week. He deals with uncooperative parents, a backbreaking caseload and, perhaps most troubling, a general lack of juvenile indigent defense (JID) funding.

“Right now, I’ve probably got 200 cases,” he said.

Drayton’s struggles are typical among those who work with indigent children. However, he refuses to view his clients as “the problem” -- rather, he believes their actions are symptomatic of a much larger issue within many U.S. communities.

Pre-Trial

Drayton makes his way through the winding halls of the facility. There’s a sweet aroma throughout the building. Outside the courtroom, several individuals -- almost all of them African-American -- wait, with dour expressions on their faces.

The pre-hearing camaraderie in Judge Steven Teske’s courtroom is amiable. Court appointed advocates in the back of the court update their Facebook statuses on their smartphones, while officers stoically flank the sidelines. Drayton and the court prosecutor have a friendly chit-chat, while one of Drayton’s colleagues thumbs through a large book that has the words “public defenders” scrawled across it in black marker.

Teske enters the chambers, wearing a brown suit with a yellow tie and handkerchief. A new advocate is sworn in before the hearings. The first item of the morning is an update on a deprivation case -- three children in the county foster care system are in need of a new placement. The next is an update on a recent disposition; new case plans for a child with bipolar disorder are discussed.

A small, thin, African-American girl in a denim jacket enters the court. A third party petition for her custody has been dropped. She leaves the court almost as quickly as she enters it.

Next, a young African-American boy enters with his parents. He’s wearing a windbreaker and khakis. Earlier this year, a school resource officer allegedly overheard the boy tell another student that he was going to do a “1-8-7” on him. The prosecutor explains that “1-8-7” is a street term for a homicide.

little_1-01Teske spends several minutes explaining the court process to the young boy. He then discusses the duties of the public defender. “He doesn’t have to please me,” Teske tells the young boy. “He doesn’t work for me … [Drayton] knows I cannot fire him.”

The young boy, Teske said, has gotten into trouble with a local gang. In a prior meeting, Teske said, the youngster informed him he was afraid of entering a “mainstream school.” That fear forces the young man to act “tougher” than he wants to be. The young man and his mother and father are ordered to receive Functional Family Therapy (FFT) services, and the juvenile is appointed a probation officer.

“Pray, be patient, keep working at it,” Teske tells them. They exit the courtroom, and Drayton’s other client enters.

Trial Time

The Clayton County Youth Development and Justice Center in Jonesboro, Ga. is home to one of the nation's more progressive juvenile court systems.
The Clayton County Youth Development and Justice Center in Jonesboro, Ga. is home to one of the nation's more progressive juvenile court systems.

The African-American boy is thin and short, and wears a black dress shirt and black dress pants. His father, a very large man, is wearing similar clothing.

The defendant is on trial for battery, loitering and prowling. An officer takes the stand. He recalls talking to the victim after the incident; her eye was swollen, as if she had just been punched.

The defendant places his hand under his chin. He begins to slump ever so slightly in his seat.

Drayton asks a few questions of the officer. The prosecutor objects to one of his inquiries, on the grounds that his question involves hearsay. The objection is sustained.

The victim then takes the stand. “I was hit in the head,” she recalls. She said she was about to enter her place of employment, when she felt a brick-like object connect with the right side of her face. She turned around, and saw three young people backpedaling.

Teske asks her if she sees her attacker in the courtroom. She points at the defendant. She’s “100 percent” confident that’s the boy who hit her.

Drayton huddles with his client for a minute. Then Teske renders his verdict: the boy is “guilty” on all three charges.

Teske tells the boy that if the victim had lost consciousness for even one second, he could have been found guilty of aggravated battery. That charge, Teske said, carries a maximum juvenile sentence of five years.

    “This is your first case,” Teske tells the boy. “I hope it’s your last.”

(Days later, the boy was placed on an “informal contract” -- in exchange for having his charge dismissed, the boy agrees to abide by certain stipulations, which often include not being suspended in school and not hanging around kids who are on probation. If the boy violates any of the contract’s requirements he can be re-sentenced.)

Post-Trial

The Clayton County Youth Development and Justice Center in Jonesboro, Ga. is home to one of the nation's more progressive juvenile court systems.
The Clayton County Youth Development and Justice Center in Jonesboro, Ga. is home to one of the nation's more progressive juvenile court systems.

Drayton is a man who doesn’t like to stay stationary. Even while sitting, he likes to periodically hop up and down in his seat.

“Judge Teske’s really a progressive judge,” he said. “He tries not to lock kids up, he tries not to beat them up because we’ve found all those things don’t work.”

He believes that many of the less-punitive policies implemented by Teske will become more commonplace throughout Georgia following the recent passage of a statewide juvenile code rewrite. But in the face of a strained budget, Drayton says he would like to see more juvenile indigent defense funding across the state.

“I’d like to see the money that the D.A.’s get for hiring experts … I’d like to see some of that come our way,” Drayton said. “Now that we don’t have the money for those psychologists, we’ve got one hand tied behind our back.”

School-related cases are becoming rarer in Clayton County, Drayton said, since most of those cases are now handled outside of court. Residential burglaries and family violence incidents, however, appear to be on the upswing.

Many of the young people Drayton represents, he said, are latchkey children. Their mothers work erratic hours and struggle to support their kids, and many times, the fathers are either in jail or out of the picture altogether. Many families he represents lack automobiles. Some don’t even have telephones.

He reflects on his case from earlier.

“I talked to the victim, and she was adamant about the fact … that he was the one who hit her,” Drayton said. “I’m kind of concerned that you’ve got a 13-year-old who, seemingly, can’t empathize with a victim.”

The “calculated meanness” of the incident, Drayton said, truly disturbs him. Young people living in poverty often find themselves adopting value systems that are less critical of antisocial behaviors, he said.

Then, the usually animated public defender suddenly becomes still.

“The delinquency we are seeing,” he says, “is really a symptom of a disease we’re not treating.”

 

An Overwhelmed System: A Day in the Life of a Juvenile Public Defender

Alameda County Juvenile Court in San Leandro, Calif.
Alameda County Juvenile Court in San Leandro, Calif.juvenile-in-justice.com

This story is part of an ongoing series about juvenile indigent defense.

SAN LEANDRO, CALIF. — It’s mid-morning and the courts are crawling with clients, defenders, attorneys and families. There are no available interview rooms so juvenile public defender Dominique Pinkney and his teen client stand near a recycling bin. Pinkney uses it as a table.

“You may end up going in today,” Pinkney tells the client.

These are strange words to hear. In that moment, looking at this nice-looking, clean-cut kid and his mom, the idea of his spending two weeks in detention for not completing his community service seems more of an administrative detail than the reality of a kid spending two weeks in lock-up.

The 16-year-old client’s mother doesn’t speak English. She stands close to him, occasionally whispering hushed Spanish in his ear.

Pinkney shook his head. “This is a bad report,” he said.

juvenile_indig-01The main job of juvenile public defenders is to act as the voice of children in the juvenile justice system. Public defenders for juveniles are required to understand not just the law — but the circumstances of their young clients and how to connect them with the most appropriate services. To the general public, even those involved in the juvenile court system in some way, the area of juvenile defense can seem shadowy and hidden. To provide insight into this world JJIE spent a day trailing juvenile public defender Pinkney at the Alameda County Juvenile Justice Center, atop a hill in this city in the East Bay, just south of Oakland.

Assistant public defender Dominique Pinkney arrives in the hallway outside the courtrooms every morning at 8:30 a.m. sharp, to meet with any clients who happen to come in early. At this hour the hallway is usually silent and empty. Benches line the walls, soon to be filled with anxious families waiting to be called into court. Coming in early allows Pinkney a little more time than permitted in the rushed moments between court sessions, when he convenes with a client for a few moments before going into the court with them.

Assistant Public Defender Dominique Pinkney in his office at the Alameda County Juvenile Justice Center in San Leandro, Calif.
Assistant Public Defender Dominique Pinkney in his office at the Alameda County Juvenile Justice Center in San Leandro, Calif.

Pinkney has been a juvenile public defender for a little over a year, but spent almost three decades as a defender in the adult system before transitioning.

On this day, no one is around early. So Pinkney has a few moments to review his cases for the day. Sitting quietly at a table in a sparse interview room adjoining the court, he opens the red and green files of his clients and nods to himself as he pores over drug test results, completed community service reports and school records. Over the course of the morning, he and nine young clients will go in front of the judge.

The whirlwind starts promptly at 9 a.m. The halls, very recently devoid of anyone, are now swarming with parents, grandparents, melancholy teenagers and babies. Everything is a bustle.

The first client of the morning is sitting on the bench with his mom, dressed in a crisp green button-down shirt.

This is the first time the teen has been in trouble and he has unpaid restitution fees.

“It can be really hard for these poorer families to pay,” explains Pinkney.

In the legal system, restitution is when a judge orders the offender to give money or in-kind services for the harm or damage resulting from the offence.

Pinkney glances over his list of charges and intake report. Apparently, the teen was at a demonstration in downtown Oakland, when he and a group of other kids broke off from the group and started vandalizing cars.

Pinkney is hoping he will get informal supervision for six months, a more casual version of probation. Afterwards, his case would be dismissed. That is, however, if he pays restitution. If, after six months, he hasn’t paid, his supervision will be extended for another six months.

After the second extension, if he still hasn’t paid, the kid will go on standard probation.

In the 1967 ruling In re Gault, the United States Supreme Court ruled that youth had a constitutional right to counsel in delinquency proceedings -- essentially guaranteeing them many of the same due process rights as adults in criminal trials.

However, for this right to be relevant, young people need access to skilled representation.

According to the National Juvenile Defender Center (NJDC) in its National Juvenile Defense Standards that means creating, “an environment in which defenders have access to sufficient resources, including investigative and expert assistance, as well as specialized training, adequate and equitable compensation, and manageable caseloads.”

The reality for many juvenile indigent defense practitioners is that this is easier said than done.

Many young accused are not getting timely access to attorneys -- and when they do, the level of counsel they receive is frequently inadequate. A report by the NJDC raised serious concerns that “the interests of many young people in juvenile court are significantly compromised, and that many children are literally left defenseless.”

Pinkney, who spends many weekends in the office, is highly qualified and dedicated to the young people he represents. Multiple parents spoke highly of Pinkney. Several people called him “the best.” One mother stated that “he really fights for his clients.”

This is, however, not always the case with public defenders.

In many instances this is because of impossible workloads. The NJDC report found high caseloads to be “the single most important barrier to effective representation.” And that the ultimate impact of this on youth involved in the court was “devastating.”

“Children represented by overworked attorneys receive the clear impression that their attorneys do not care about them and are not going to make any effort on their behalf,” the report wrote.

little_1-01Many of the same problems plague the system at a statewide level as well. Released in 2008, the Juvenile Delinquency Court Assessment (JDCA) took an in depth look at the California delinquency court system. Through surveys and focus groups conducted with delinquency court professionals and court users the report revealed significant issues within the system.

The study cited a dearth of resources in many facets of the process -- from staffing to information regarding rehabilitation options. “Additional resources,” the authors wrote, “are needed to maintain caseloads at a reasonable level for  judicial officers, attorneys, and probation officers.”

Furthermore, the study found that judicial officers, attorneys and probation officers who were surveyed expressed, “a general dissatisfaction with the sufficiency of information about, and the availability of, services for youth, most notably drug rehabilitation, mental health services, gender-specific services, and services for transitional-age youth.”

The Alameda County Juvenile Justice Center in San Leandro, Calif., which houses the detention center and youth courts.
The Alameda County Juvenile Justice Center in San Leandro, Calif., which houses the detention center and youth courts.juvenile-in-justice.com

Defender Pinkney states that on average he processes approximately 200 different clients per month. He is currently representing 194 teens.

To put that into perspective, The Connecticut Public Defender has set a soft cap of 300-400 juvenile cases per attorney, per year. In New York, the Legal Aid Society's Juvenile Rights Practice has a workload cap of up to 150 clients per attorney at any given time pursuant to a New York State Family Court Rule. For children charged with delinquency, the office averages between 35 and 40 clients per attorney at any given time.

Massachusetts caps the cases a public defender can take at 250 per year. Based on its weighting system, however, that translates to 165 delinquency cases, as each delinquency case is weighted at 1.5 times the amount of a “typical” court case. This is because, as the NJDC points out, caseloads describe only one thing — the number of “cases” being taken on. They suggest it might be more effective to look at “workload” standards, which incorporate the complexities of cases. In Oregon for example, the state bar standard’s state that “a full caseload for an attorney would be 6 felony level 11 cases in one year or at the other end of the spectrum, 600 drug diversion cases in one year.”

In his office, Pinkney gestures at a giant stack of client files in the corner, “The system is overwhelmed,” he sighs.

This year, Alameda County switched to a vertical representation system, in which clients are assigned to one public defender to represent them and work with them for the duration of their court involvement.

Prior to this, the Alameda County Courts operated on a horizontal system, where a client would be assigned to a different defender every time they came to court.

In this horizontal system, Pinkney explained, "Attorneys are assigned to a courtroom and handle all the matters that appear on that court room’s calendar with the exception of litigation (trials, suppression motions, restitution hearing, contested other hearings.”

Matters to be litigated tended to be assigned to the attorney who set the hearing.

“Thus that attorney does all the preparation for the hearing and the actual hearing.  But it doesn’t always work out that way,” he told JJIE.

Local experts believe vertical representation is a significant positive change for the kids represented by the county.

“It’s the way it should be,” Sue Burrell, staff attorney at the San Francisco-based Youth Law Center, said. “Because these clients are young and it takes some time to develop a relationship with them, to get to a point where they trust you and for them to have the old system, to have a new person every time they come to court and start all over telling their story.”

However, nationally vertical representation is seen as the standard model.

David Shapiro, Gault Fellow at the National Juvenile Defender Center, states that, “The majority of jurisdictions already have “vertical representation,” but they call it what it is — representation. This sort of representation isn’t special — it’s the norm.”

Pinkney pauses for a moment  considering the question -- why public defense work? -- before asking back, “If I’m going to put in 60 hours a week — who am I serving?”

“The idea of serving the poor – and every once in a while being able to put on a trial, pound a table … to fight for the disenfranchised, the folks everybody else dislikes.”

Pinkney grew up in an all black neighborhood in Vallejo., about 30 minutes north of where he now works in San Leandro. His mother was white; his father was a black American GI. Both of his parents were uneducated.

“All of my siblings are obviously black. I’m the only one of the four who grew up looking like mom. I know I look like an old white man today, but that’s my background,” he said.

Pinkney was born in France, and lived there until he was four when the family moved back to the states. Speaking no English, he struggled through grade school but ended up attending the University of California, Berkeley for his undergraduate degree.

Pinkney went on to be a public school teacher, working with kids in his old neighborhood. During a span of intense negotiations with the teachers union, the colleagues he was representing convinced him that his talent warranted a law school education.

After attending U.C. Hastings College of the Law in San Francisco, while clerking at the U.S Magistrate and planning on going into labor law, Pinkney had an informative experience that would change the course of his career. Most of the time in the Magistrate’s office he encountered nothing but corporate cases, where “the client was a piece of paper in their briefcase,” he remembered. However, for one month the magistrate saw criminal cases, and “the hallway would be full of grandmas, and everything you associate with the drama of people.”

Pinkney decided he wanted his clients to be people -- people he understood, people who needed someone to speak on their behalf.

“I’ve got a big mouth, and with my teaching background, I thought I could find a way to develop a persuasive presentation and liked the idea of representing poor folks, people from my community, fighting the power and making sure poor folks got treated well,” he said.

The second client of the morning arrived alone. She was in a green plaid flannel shirt, wearing orange nail polish. At 17, she was already recently married, wed in Reno, with both of their parents in tow to give consent. Someday, she wants to be a nurse.

“You’re one of the stars,” Pinkney told her. “But you know that.”

The client’s original charge was for battery. Pinkney calls her case a “wobbler” -- which essentially means that it could have gone either way in terms of being a felony or a misdemeanor. Happily, Pinkney says that the probation officer was so impressed with the client’s behavior that they suggested it be reduced from a felony to a misdemeanor.

As a juvenile public defender “there’s a social worker component … as well as a positive rehabilitation component seldom ever focused on in adult work,” said Pinkney.

“It feels good to get a young person back on track.”

resource_hub_front-01In the early 2000s, reports of substandard conditions of confinement in the California Department of Juvenile Justice (formerly the California Youth Authority) began to circulate. In July 2004, in response to the reports and subsequent calls for reform, the San Francisco Public Defender’s Office and the Pacific Juvenile Defender Center (PJDC) convened the first ever statewide Youth Authority roundtable in which they collectively pledged to do their best to keep kids out of the system, or get them out if they were already incarcerated.

“We just began to find our voice — to speak out, not just on behalf of individual lines but in relation to the whole juvenile justice system,” said Sue Burrell.

In a 2006 essay cataloguing California juvenile justice system reform, Burrel wrote, “The forces that have been set into motion have already had a dramatic impact on state level confinement for juveniles and the way we think about juvenile justice. At the peak of the “tough on crime” frenzy in 1996, the Youth Authority system housed 10,122 wards.”

Today, that number has significantly decreased. In 2012, the DJJ held fewer than 800 youths.

On a bench outside of the courtroom, a mother named Percelita struck up a conversation immediately. Bubbly, with a sparkly white flower tucked behind one ear and pearly teeth, Percelita works for a dentist and was missing work to be at court with her son. She only took four hours off this morning, and was hoping that she would be able to get back to work in time.

“What single parents can keep taking this kind of time off?” she said.

She was also disappointed by the attitudes of the public defenders she has encountered thus far.

“When I first met the P.D. assigned to my son’s case, he didn’t smile or even introduce himself … They don’t value our time. It’s very disheartening.”

According to the 2007 Juvenile Delinquency Court Assessment (JDCA) project Percelita’s sentiments are not uncommon. Many of the findings pointed to a need for better communication between professionals and court users.

Focus groups with youth on probation, their parents, victims and community members found that court users singled out wait times for hearings as an important area for court improvement.

“They would like shorter wait times in court, fewer continuances, and more consideration for their schedules and personal time constraints when scheduling cases,” the report said.

The assessment went on to find that court users felt that juvenile court was “complex and challenging to understand, particularly the language that professionals use to communicate with each other in court.”

This was Percelita and her son’s first time being involved in the court system. He got in trouble at school, but they believed everything was fine until they received a letter in the mail with a court date. On the phone with the public defender, she asked if there were any resources available to her to learn more about navigating the system.

“He said no,” she said.

Around 11:30 a.m., the client that met with Pinkney on the recycling bin emerges from the courtroom looking jubilant. He and his mother grin and exchange a few sentences in Spanish. The young man takes his hat off, smooths his hair, and puts his hat back on. They walk quickly down the hallway and out into the world.

The court day, which runs from 9 a.m. to 12 p.m. every day, is nearly over. Pinkney will spend the rest of the afternoon preparing for another set of sessions tomorrow. Another opportunity to keep a teenager at home and out of the system.

By 12 p.m., Pinkney is with his last client in court and the hallway is completely empty. A giant tiled mural depicts dark, ambiguous scenes: a girl crying, a figure running along a gray coast, a gloomy city scape of downtown Oakland.

The mural marches on down the hallway, like a slow but determined progression toward change. While it is not overly cheery or bright, it is honest, and there is something hopeful about it.

When he finally emerges from the courtroom, Pinkney doesn’t seem tired or overworked, just ready to keep fighting for his kids.

“I do feel there is something positive – although there are some negatives,” he said, “For the most part there is this positive energy and effort to move kids in the right direction.”

Pinkney recalled a client who was sent to a wilderness camp after being charged with a robbery. When he came home, he thanked the judge for sending him away.

“He self-corrected — whether it was at home or away or what, ultimately I don’t care, it was just a warm, cuddly experience. I shook his hand, and he and I both know he came a long way,” said Pinkney, “That kind of stuff happens in the juvenile system more often than we want to admit.”

For Juveniles, the Elusive Right to Legal Counsel

[This story is the first in JJIE's series focusing on juvenile indigent defense. Read more from the series here.]

A single phone call made from a trailer home in rural Arizona, where 15-year-old Gerald “Jerry” Gault lived with his family, wound up indelibly altering the landscape of juvenile justice in America.

As Jerry recalled, he grabbed the phone from a visiting friend and told him to get out, after the friend made an obscene phone call to a woman in the neighborhood.

juvenile_indig-01Following a complaint from the woman, Jerry was taken into custody on June 8, 1964. The authorities neither notified his parents nor mentioned any legal rights, including the right to an attorney.

His mother, who had been working when he was whisked away, located him that night at the Gila County Children's Detention Home, but was forbidden to take him home.

A week later, a county judge sentenced Jerry to almost six years in a juvenile detention facility. (By contrast, an adult charged with the same offense – being in the presence of or hearing someone using “vulgar, abusive or obscene language” – would have faced a maximum sentence of two months in jail.)

After further legal twists, including failed writ of habeas corpus petitions by Gault’s parents in Arizona courts, the case made its way to the U.S. Supreme Court.

The high court’s landmark 8-1 decision in May 1967 freed Gault and established that under the U.S. Constitution, juveniles in delinquency proceedings are guaranteed many of the same due process rights as adults in criminal trials. Among these are the right to counsel, the right to timely notification of charges, the right to confront witnesses, the right to appeal, and the right to avoid self-incrimination.

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Check out our Juvenile Justice Resource Hub for even more information about juvenile indigent defense, including:


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The majority opinion, written by Justice Abe Fortas, offered biting commentary on the state of juvenile justice as it existed in Arizona. "Under our Constitution the condition of being a boy does not justify a kangaroo court. …Due process is the primary and indispensable foundation of individual freedom," Fortas wrote.

But today, nearly a half-century after the Gault case began, due process rights remain elusive for thousands of indigent juvenile defendants facing felony charges that could lead to years of incarceration.

“Many, if not most, juvenile courts still operate in the pre-Gault mode, as if the defense attorney is irrelevant and unnecessary. As a result, real lawyering cannot occur, and the fair administration of justice is impeded,” the Washington-based National Juvenile Defender Center says in a list of systemic issues that affect representation of juvenile defendants.

The reasons for the gaps between the ideals of Gault and the realities in American courtrooms vary greatly, juvenile justice experts and advocates say.

They include a lack of resources to provide adequate juvenile indigent defense, a patchwork of disparate juvenile justice systems and local laws throughout the country, and, in many courtrooms, a rushed, assembly-line style of juvenile justice.

Right from the start, many indigent juvenile defendants face a decided disadvantage because counsel are often appointed after the initial detention hearing, in which the court decides whether young offenders will be held.

resource_hub_front-01“The idea that a kid can be in front of a judge and could be locked up with no lawyer there to defend him – I think most people are shocked by that notion,” said Timothy Curry, NJDC’s managing attorney. “The fact that that happens every day in courtrooms around the country is just the reality.”

And research has shown that defendants held pending trial are far more likely to be convicted than those who aren’t held, and, if convicted, those who had been held pending trial are far more likely to be incarcerated than those who were not held.

In some jurisdictions, it’s permissible for a prosecutor, in the absence of a defense attorney, to make a plea offer at the initial hearing, and if the child does not accept the plea, he or she may be detained.

“So you have kids around the country pleading guilty to crimes without ever seeing a lawyer, having no real understanding of the consequences involved with that or whether there was a defense or whether they were actually guilty of what they’re being charged with,” Curry said.

That’s no small matter, as a juvenile adjudication – the term used if a court finds a juvenile committed an act with which he or she is charged -- can have long-term consequences, including losing eligibility for student loans, public housing and military service. An adjudication can also affect immigration status and employment prospects. (If juveniles are tried and convicted in adult court, that can affect voting rights as well.)

“The idea that the worst thing that’s going to happen to a kid is you’re going to put him on probation a few months and everything is going to go away is just false,” Curry said. “Kids lives are severely hampered, particularly in education and employment, by juvenile adjudication.”

Across the country, experts say, many juvenile defendants also quickly waive their right to counsel with little concept of the magnitude of that decision, and before even discussing the ramifications with a lawyer.

That’s a big mistake, says Bart Lubow, director of the Juvenile Justice Strategies Group at the Annie E. Casey Foundation in Baltimore.

“If I were king, I would not allow any juvenile to waive his or her right to counsel on the simple grounds that I’m not sure that they can make a sufficiently informed decision in that regard,” Lubow said.

He says a lot of waivers result not from juveniles concluding they don’t need a lawyer because they plan to plead guilty, but because of adults “manipulating children.”

Such manipulation to coax a child into waiving the right to a lawyer often flows from the belief that juvenile court serves a paternalistic role guided by what it sees as the best interests of the child, Lubow says: “So whether you’re a court clerk, a judge, a prosecutor, an intake officer at probation, whatever, you’re inclined to say, ‘You don’t need to make this adversarial, you know, you’re admitting that you’re guilty, you’ve already told me that. Why do you need a lawyer here? And it’ll go easier on you if we just resolve it now.’”

That sort of sentiment harkens back to the very origins of the juvenile justice system in the late 1800s, with the first juvenile court statute adopted in Illinois in 1899.

Early reformers, as the Supreme Court noted in Gault, were shocked children could essentially be tried as adults and sentenced to long prison terms in which they were housed with adults who were hardened criminals.

“The idea of crime and punishment was to be abandoned. The child was to be ‘treated’ and ‘rehabilitated,’ and the procedures, from apprehension through institutionalization, were to be ‘clinical,’ rather than punitive,” the Supreme Court said in the Gault decision.

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Check out our Juvenile Justice Resource Hub for even more information about juvenile indigent defense, including:


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The early reformers invoked the notion of “parens patriae” – a Latin phrase for a doctrine that grants the state the power and authority to protect people unable to legally act on their own behalf.

But ironically, however well-intentioned, the doctrine resulted in a juvenile justice system that denied children due process rights, including the right to counsel.

“The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right ‘not to liberty, but to custody,’" the Supreme Court said in Gault.

Thus, the court said, when the state intervened because a child was delinquent, “it does not deprive the child of any rights, because he has none. It merely provides the ‘custody’ to which the child is entitled.”

The court concluded the parens patriae doctrine “proved to be a great help to those who sought to rationalize the exclusion of juveniles from the constitutional scheme.”

Indeed, for most of the nation’s history, juvenile defendants were not guaranteed due process rights.

Today, juvenile defendants’ access to quality representation is eroded by the scant attention they sometimes receive from defense attorneys before the crucial detention hearing.

NJDC notes that the vast majority of juvenile court cases are resolved by plea agreements, often at an initial hearing that leaves kids feeling bewildered.

“In sites across the country,” NJDC says, “children have been observed entering plea agreements, only to leave the courtroom and ask, ‘What just happened?’”

That’s not the only part of the process that leaves juveniles baffled. Many don’t understand the Miranda warning, not to mention plea agreements that include complicated terms and probation provisions – actually part of a contract between the state and minors (who aren’t even allowed to enter into other legally binding contracts).

Before the initial hearing, overwhelmed public defenders juggling heavy caseloads often get just minutes to speak with juvenile defendants.

Deborah St. Jean, the director of the Juvenile Protection Division in the Maryland Office of the Public Defender, knows the scene all too well.

In courtrooms throughout Maryland, St. Jean says, public defenders often get only 10 or 15 minutes for this meeting, and they have to cover a lot of ground in that time: What’s the defendant charged with? What are the circumstances of the alleged crime? Is the youth a flight risk or a danger to himself or others?  If the defendant is released, will his parents let him stay with them? If not, where can he be placed? What is the child’s educational and family background?

And getting answers, of course, requires building a rapport with the defendants – no small task, when they’re typically feeling immense pressure, and often mistrust adults.

hub_promo_4_01“Because kids are by nature very distrustful, particularly our clients, it takes more than 10 minutes to sort of convey to a kid, ‘Look, I’m here. I gotcha,’” St. Jean said. “It’s a very fast and a very sort of down-and-dirty endeavor. It’s a very stressful time for the kids because they want to go home and get out of jail so they’re interested predominantly in that."

“So, in order to get a clear picture of the child’s circumstances, the defender needs to get information. So it is unfortunate that these hearings are as hurried as they are. But the court always has this pressure to move things along, and that pressure falls squarely on the defender’s shoulders.”

In fact, one lawyer sometimes handles as many as 20 juvenile defendants in a single hearing in Maryland courtrooms and then enters into plea agreements for them, St. Jean said.

And the defenders are often working without necessary resources because of underfunding. NJDC points out many juvenile defenders – who include attorneys from public defender offices as well as contract attorneys appointed by courts – lack basics like computers, office file cabinets and access to online legal research, not to mention paralegals, investigators, social workers and experts deemed essential to effective representation.

The center also says that for “juvenile defenders across the country, meaningful training, supervision and mentoring opportunities are extremely limited” and “in many public defender offices, juvenile defenders are sent to juvenile court as if it were Siberia.”

This, despite the fact that juvenile defense is a specialty requiring a wide range of skills.

“Just because you can defend an adult doesn’t mean you can defend a juvenile,” St. Jean said. “To be an effective juvenile defender, to represent children, you have to be a jack of all trades. You have to understand adolescent development, neurology. You have to know about the brain sciences and the studies that show children aren’t just miniature adults.”

The Supreme Court has said as much in numerous rulings in which it has noted juveniles’ brains are not fully developed, and youths are more susceptible than adults to peer pressure, more impulsive, more likely to take risks, less likely to consider long-term consequences and – notably – more amenable to rehabilitation. All these factors can weigh heavily in a juvenile case, and a good juvenile defense attorney knows when to raise them.

On top of expertise in juvenile law, juvenile defense requires knowledge of social services for children, the school system, the mental health system and out-of-home placement options, including group homes, foster care, residential programs and treatment facilities.

“You’ve got to be in court, you’ve got to talk to clients, you’ve got to prepare cases, but there’s a lot more sort of social work aspects that become involved when you’re working with kids – school, mental health, substance abuse treatment, home issues such as a parent and kid who don’t want to be in a home together, looking for alternative placements,” said Erin Josendale, an assistant public defender in Prince George’s County, Md.

Juvenile defenders are often looked down upon by others in the legal profession and even within public defender offices, suffering from a “kiddie-court mentality where stakeholders do not believe that juvenile court is important,” NJDC says.

“It’s often seen as a training ground or a dumping ground for attorneys because historically juvenile court has not and, in many cases, still is not viewed with respect within defender offices,” said Marc Schindler, executive director of the Justice Policy Institute in Washington and a former juvenile public defender.

Juvenile defenders are often paid less than other defense attorneys, with juvenile defense seen as a steppingstone to a better-paying position.

Nonetheless, many juvenile defenders choose juvenile defense as a career and are renowned for their passionate dedication to defending children against the power of the state.

And quality representation is essential to indigent children facing serious charges.

In the Gault decision, the Supreme Court said: “The child requires the guiding hand of counsel at every step in the proceedings against him."

But today, Casey’s Bart Lubow said, “We fall woefully short of that ideal. ... We are nowhere near where we need to be, certainly nowhere near where we need to be if the standard that’s going to apply is the ‘my-child’ test. And the my-child test would ask: What would you want and have for your kid if it was your kid facing the power of the state?”

Speaking for the Children: A Hard Look at the State of Juvenile Defense Across the U.S.

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“Due process is the primary and indispensable foundation of individual freedom," Supreme Court Justice Abe Fortas wrote in the majority opinion of the Court’s landmark 1967 juvenile justice decision, In re Gault -- a decision that established that under the Constitution, juveniles in delinquency proceedings are guaranteed many of the same due process rights as adults in criminal trials

But today, nearly a half-century after the Gault case began, due process rights remain elusive for thousands of juvenile defendants facing felony charges that could lead to years of incarceration. Attempting to fill the void when possible are the often over-worked juvenile public defenders. But in many jurisdictions, juveniles are not even appointed a defense attorney until after their first hearing -- a hearing in which a judge will decide if the youth will be held in detention or released.
hub_promo_4_01In a continuing series beginning today, JJIE will explore the complicated world of juvenile defense -- from the difficult job of the juvenile public defender to the jumble of juvenile court systems across the country whose processes ensure many kids never receive representation. At the heart of it all are kids whose lives are indelibly altered by the process of navigating the juvenile court system, with or without legal representation.

 

For Juveniles, the Elusive Right to Legal Counsel

6140639_origA single phone call made from a trailer home in rural Arizona, where 15-year-old Gerald “Jerry” Gault lived with his family, wound up indelibly altering the landscape of juvenile justice in America.

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