image_pdfimage_print

Navigating the Path to a Successful Career: The Vitality of Vital Records

Juvenile Law Center

In today’s world, having access to your vital records (birth certificate, Social Security card, state ID card) is, in fact, vital. These records are essential in our day to day lives in a variety of ways including:

  • Securing housing
  • Applying for health insurance
  • Furthering one’s education and getting financial aid
  • Interacting with law enforcement
  • Procuring public benefits
  • Obtaining employment
Essie Lazarus

There is, however, an undocumented population of U.S. citizens among us: system-involved youth. What we mean by this is large numbers of youth leave the child welfare and juvenile justice systems without their vital documents or they are not able to maintain them due to housing instability. Not having these records makes smoothly transitioning to adulthood difficult, if not impossible.

The consequences system-involved youth experience by not having these essential records include potential housing instability, the inability to pursue certain educational opportunities and financial aid, and lack of access to public benefits. Not having identification can also be a barrier to employment. This is the situation Bruce Morgan, Juvenile Law Center’s youth advocate alum, faced.

Bruce, who recently aged out of foster care, struggled to obtain the identification documents necessary to pursue employment. Bruce aged out of foster care before federal law — the Preventing Sex Trafficking and Strengthening Families Act — required that all youth aging out of the foster care system be provided their vital documents. Bruce was persistent and sought the assistance of the Achieving Independence Center in Philadelphia, which provides aftercare services to foster youth. He obtained his identification documents, but lost them when he became homeless.

Two years ago, Bruce applied for a job with AmeriCorps and realized during the application process that he did have his identification documents. He did not know how to navigate the system and did not have funds to pay any of the fees required to obtain vital documents. Luckily for Bruce, AmeriCorps was willing to work with him and held the position until he could locate his identification. However, for other youth, including many of Bruce’s friends, this flexibility is not always available and job and training opportunities can be lost as youth try to obtain their identification.

While the state of Pennsylvania does require foster youth to receive their vital documents upon discharge, there are many system-involved youth who do not receive these documents or are not able to maintain them when they leave care.

Recently, there have been policies enacted to address securing identification documents for youth in the child welfare system. In Philadelphia, the child welfare agency requires that a caseworker for the private provider agency contracted to serve a youth request a youth’s vital documents at the very moment they enter the system. The agency also requires that youth are provided their identification documents before they leave care at age 18 or older.

According to Bruce, vital records are a lifeline because “everywhere you go you need proof of identity … any job, school or just walking on the street in certain neighborhoods You need a way to identify yourself.” He suggests the following reforms:

  • Require that youth be educated about the importance of obtaining vital records before discharge and maintaining records after discharge.
  • Provide youth training in how to advocate for themselves in court and case planning so that they can report on the status of their identification and whether they have obtained it.

Identity verification has become a necessary and common part of our daily lives. To participate fully in society, and for youth to have a fair shot at making a life for themselves in the adult world, they must have access to their vital documents. To make this possible, our laws, policies, and most importantly practices, must make this a certainty for young people.

This is one in a series of blog posts from the Juvenile Law Center on career pathways and barriers for system-involved youth. It is reposted with permission. See the original and full series here.

Some State Laws Slow Resentencings Despite Miller v. Alabama Decision

While the man behind the landmark decision that ended mandatory life-without-parole sentences for juveniles waits for a new sentence, other inmates given the same term are getting a shot at eventual freedom.

Evan Miller went back before a judge in his hometown of Moulton, Alabama, for a three-day resentencing hearing March 13. Lawrence County Circuit Judge Mark Craig’s decision is still pending.

But the Supreme Court ruling that bears Miller’s name is already bearing fruit for other Alabama inmates serving life without parole for crimes they committed before they were 18. For them, the process can be difficult, slow and vary county by county. And thanks to a 2016 state law, they may have a long wait for a parole hearing even if they succeed.

For example, the July 31 decision declaring juvenile lifer Richard Kinder eligible for parole came nine months after a hearing before a judge in Birmingham, attorney Richard Jaffe said.

“The judge wanted to be thorough and know every inch of it — every document, every record, and there were thousands and thousands of pages,” said Jaffe, who defended Kinder in his 1984 trial and served as co-counsel in his resentencing.

Joy Patterson, a spokeswoman for the Alabama attorney general’s office, said about 70 other state inmates are eligible for new sentencing hearings under the 2012 Miller v. Alabama decision and its 2016 follow-up, Montgomery v. Louisiana, which declared the Miller ruling retroactive.

So far, 20 of them have been resentenced to life with a chance at parole, said Eddie Cook, a spokesman for the Alabama Board of Pardons and Paroles.

State Rep. Jim Hill, a former judge who pushed to bring Alabama’s capital sentencing law into line with the Miller decision, said he has urged his old colleagues to get on with the task at hand.

“I have certainly had judges call me and ask, ‘Do I need to have rehearings?’ And my answer to them is, ‘Sure. You must. Go ahead and schedule it and get it done,’” said Hill, a Republican who chairs the state House Judiciary Committee.

Alabama’s new capital sentencing law, passed in 2016, also requires that teens convicted of capital murder serve 30 years before becoming eligible for release. Since Kinder has been imprisoned more than 30 years, he now has the right to a parole hearing, Jaffe said.

But other juvenile lifers will face more years behind bars even if they succeed in getting their chance at parole. That would include Miller himself, who was convicted in 2006.

That 30-year requirement isn’t the most stringent, according to The Sentencing Project, a Washington-based research and advocacy organization. At least two states — Texas and Nebraska — require a 40-year minimum. But it’s tougher than others: West Virginia allows inmates to get a hearing after 15 years; Nevada, 20; and South Dakota leaves the issue entirely up to a judge.

And the Miller decision barred only the automatic imposition of a life-without-parole sentence for a teen killer. Judges can still hand down that term after weighing the evidence. But the justices required them to consider a teen’s "diminished culpability and heightened capacity for change," and the follow-up Montgomery decision limits the punishment to teens whose crimes show “permanent incorrigibility.”

“It’s going to apply to the rarest of the rare cases,” Jaffe said.

Kinder has served nearly 33 years of a life-without-parole sentence for a killing committed when he was 17.

Kinder, then 17, was convicted of capital murder in the 1983 killing of 16-year-old Kathleen Bedsole during a robbery and kidnapping. As an accomplice, Kinder was spared the death penalty, but got life without parole. The 21-year-old gunman, David Duren, went to the electric chair in 2000, having dropped his appeals after a religious conversion.

Jaffe called Kinder’s resentencing “excruciating” and “heart-wrenching.” It featured testimony from Bedsole’s boyfriend, who survived his wounds that night. But guards and teachers at the prison where Kinder has been locked up testified that he has been a model prisoner. His disciplinary record includes only one infraction, and he earned a high school equivalency diploma, an associate’s degree from a community college and a trade school diploma in furniture refinishing.

In addition, Duren’s attorney signed an affidavit recounting that his client had said he made the decision to shoot Bledsoe and her boyfriend without telling Kinder, and that Kinder had told him there “was no need to shoot.” Jaffe said Circuit Judge Teresa Pulliam found Kinder “was not only rehabilitatable, but had been rehabilitated.”

Pulliam has scheduled several other hearings for inmates convicted in Jefferson County, the state’s largest, said Michael Hanle, president of the Alabama Criminal Defense Lawyers Association. But for convicts in other counties, there’s little movement, he said.

“We’re not quick to the table,” said Hanle, who is also Jaffe’s law partner. Rural counties especially “are not moving as quickly as in some other jurisdictions, and they’re having a little more difficult time.”

Many judges aren’t eager to reduce sentences, and defense lawyers are often court-appointed and lack the resources to assemble their case. But the biggest obstacle is time, he said.

“Some of these guys have been in prison 20, 25, 30, 35 years, and a lot has happened during that time,” Hanle said. Finding witnesses becomes harder, and it’s more difficult to present testimony that would point toward a lighter term.

“And of course, a defendant has a lifetime literally in the Department of Corrections, which comes with its ups and downs,” he said. “Some of them have gone on to do great things as far as their education, training and rehabilitation. Others have had problems, and all those things are going to be brought back up during the resentencing.”

Hill said the judges he knows “all want to follow the law, whether they like it or don’t like it.”

“I think it’s a necessity that we do it,” he added. “It’s one of those things that when you see what the situation is, you need to address it. It took us a couple of years to address it, but we did, and I’m very glad that we did.”

Miller is represented by the Montgomery-based Equal Justice Initiative, which took his case to the U.S. Supreme Court. Bryan Stevenson, EJI’s executive director, did not respond to a request for comment.

Nationwide, about 2,500 inmates are eligible for new hearings under the Miller and Montgomery decisions. It’s not clear how many of them have had those hearings, but states well beyond Alabama have been slow to schedule them, said Josh Rovner, a juvenile justice advocacy associate at The Sentencing Project.  

“While there are certainly states that have sharp declines — sometimes because state supreme courts required it — in many cases, the states barely budged in the number of people serving life without parole for things they did as a juvenile,” Rovner said.

For example, Iowa has moved quickly to resentence inmates eligible for new hearings under Miller, and it has eliminated mandatory minimum sentences for crimes committed by juveniles altogether, Rovner said. But in Arkansas, a judge recently struck down the state’s new sentencing law because it failed to provide for individualized hearings. And the three states with the most juvenile life-without-parole sentences — Michigan, Louisiana and Pennsylvania — “really dragged their feet on this,” he said.

“The facts are rarely in question,” Rovner said. “The question is what is the juvenile’s maturity, involvement in the offense, what was his family life like — these are questions that are able to be answered.” Caseloads and procedures might move at different paces in some places, but he said waiting five years since the Miller decision “is preposterous.”  


Hello. We have a small favor to ask. Advertising revenues across the media are falling fast. You can see why we need to ask for your help. Our independent journalism on the juvenile justice system takes a lot of time, money and hard work to produce. But we believe it’s crucial — and we think you agree.

If everyone who reads our reporting helps to pay for it, our future would be much more secure. Every bit helps.

Thanks for listening.

Contribute Now

Appeal Likely in Juvenile Lifer Ruling

Five of seven judges seats in the Supreme Court chamber in the Pennsylvania State Capitol in Harrisburg, Pa.
Five of seven judges seats in the Supreme Court chamber in the Pennsylvania State Capitol in Harrisburg, Pa.

From The Citizens' Voice, Wilkes-Barre, Pa. (MCT)

Joseph Aulisio killed two children. Christian Kenyon helped murder a rival gang member.

Both of the Lackawanna County men were juveniles when they committed their crimes and were sentenced to life without the possibility of parole.

Now two recent rulings by the state Supreme Court have given Kenyon hope he could someday receive a lesser sentence, while Aulisio is destined to die in prison.

Their cases illustrate what advocates for juvenile justice say is the blatant unfairness of a state Supreme Court ruling issued Wednesday that will preclude hundreds of juvenile lifers from seeking new sentencing hearings.

Calling the ruling "appallingly unjust," attorneys with the Juvenile Law Center and Defender Association of Philadelphia say they will likely appeal the decision, issued in the case of Ian Cunningham of Philadelphia, to the U.S. Supreme Court.

The ruling relates to the landmark 2012 U.S. Supreme Court decision in Miller vs. Alabama that declared mandatory sentences of life without parole for juveniles unconstitutional. The court found such sentences violate the Eighth Amendment's prohibition against cruel and unusual punishment.

In a 4-3 decision, the Pennsylvania Supreme Court said the U.S. Supreme Court ruling cannot be applied retroactively to cases in which a juvenile had exhausted all their appeals before the high court decision was issued. The ruling is at odds with a separate ruling the state Supreme court issued in the case of Qu'eed Batts, which said the Miller case is applicable to cases where a juvenile's appeals are still pending.

In Lackawanna County, Kenyon, a Scranton street gang member who at age 17 was convicted of helping two other men kill Allen Fernandez in 2009, was recently granted a new sentencing hearing based on the Batts ruling. No hearing has been set yet as he has an appeal pending of his conviction before the state Supreme Court, said his attorney, Robert Buttner.

Aulisio of Old Forge, who was 15 at the time of his crime, will not get that chance, however. He was convicted of killing 8-year-old Cheryl Ziemba and her 4-year-old brother, Christopher, in 1981 and exhausted his appeals long before the U.S. Supreme Court decision in the Miller case.

Bradley Bridge, an attorney with the Defender's Association, said the court's latest ruling in the Cunningham case is "exceedingly unfair," as it violates a basic tenant of justice that calls for equal treatment of all defendants.

Buttner said he's also troubled by the court's ruling in the Cunningham case, even though it does not affect his client. The U.S. Supreme Court ruling was based on the premise that juvenile's mind is not fully developed, therefore a judge must be given latitude to consider each juvenile's situation, including background, upbringing and likelihood of being rehabilitated, in deciding whether to sentence a juvenile to life.

"Are we saying children's immaturity and development is less now than it was in the 1980s and 1990s?" Buttner asked.

Richard Long, executive director of the Pennsylvania District Attorney's Association, said the focus should be on the question of fairness to victims and their families, who deserve to have some finality to their cases.

"There is always a balancing that goes on with the criminal justice system," Long said. "The survivors of murder victims have had to deal with the loss of a loved one taken from them by a juvenile murderer. Would it be fair to have those cases reopened for another sentencing?"

The ruling affects nearly 500 inmates statewide, according to Marsha Levick of the Juvenile Law Center.

tbesecker@timesshamrock.com

———

©2013 The Citizens' Voice (Wilkes-Barre, Pa.)

Visit The Citizens' Voice (Wilkes-Barre, Pa.) at citizensvoice.com

Distributed by MCT Information Services

 

Juvenile Offenders in Limbo under Outdated State Laws

More than two years after U.S. Supreme Court decisions started throwing out mandatory death and life sentences for minors, judges in Washington, Illinois and dozens of other states still lack guidance on what to do with juveniles past and present convicted of murder and some other serious felonies.

“Courts are uncomfortable in trying to figure out what ‘life’ means in terms of years,” said Kimberly Ambrose, senior law lecturer at the University of Washington School of Law. She represented Guadalupe Solis-Diaz at the state’s Court of Appeals, arguing against a 92-year sentence he’s serving for six counts of first-degree assault and other charges for his role in a drive-by shooting. The then 16-year-old Solis-Diaz fired into a crowd in Centralia, Wash., in 2007, though did not injure his target or anyone else.

It’s not clear in Washington if those 92 years are equivalent to what the U.S. Supreme Court calls “life” sentences. The federal high court has definitively thrown out state sentencing laws that mandate life without parole for juveniles. Beginning with the 2005 Roper v. Simmons case and more recently with Graham v. Florida in 2010 and Miller v. Alabama in 2012, the court says that juveniles are not yet fully mentally developed, are less culpable and more capable of reform. Therefore, lower court judges must consider those and other mitigating factors when sentencing juveniles for both homicide and non-homicide offenses.

Solis-Diaz’ counsel at his original sentencing failed to mention that U.S. Supreme Court trend. That omission, said the state appeals court, was one of several mistakes that contributed to their decision this month to throw out Solis-Diaz’ 92 years, on grounds of ineffective counsel.

“This is the first life-equivalent case to come before a Washington appellate court,” said Ambrose, speaking of non-homicide offenses.

But the court also noted it would not opine on any other sentence for Solis-Diaz.

“The legislature is the appropriate body to define crimes and fix punishments. To the extent that Graham suggests that an opportunity for parole must be available for juvenile offenders convicted of non-homicide offenses, only the Legislature has the authority to amend the SRA [Sentencing Reform Act] to allow for such remedy,” the opinion reads.

They remanded the case for resentencing.

Many judges are grappling with how to amend their current laws to comply with the U.S. Supreme Court rulings on juvenile sentences. Some state legislatures have yet to update laws to comply with the two-year-old Graham case. And most state legislatures have been closed since the June, 2012 Miller decision, so have had no chance to start thinking about it. Thus judges dealing with juveniles convicted of murder must figure out if it would apply to juvenile offenders sentenced before it, and how to handle appeals, all without legislative guidelines.

“There’s lot of people trying to figure out what to do and how to proceed, and if it [Miller] would apply retroactively,” said Randolph Stone, a law professor at the University of Chicago.

The answers so far vary by state.

More than 100 people have been sentenced to life without chance of parole in Illinois for crimes committed as minors, according to a 2010 report by the National Conference of State Legislatures. Nationally, there are more than 2,500 juvenile offenders who have received this sentence in the states that did or do allow it, according to The Campaign for Fair Sentencing of Youth, an advocacy group.

“Does each of those people get a new hearing? If so, what sort of sentence will they be facing?” Stone asked.

He argued that because the Miller decision was bundled with one out of Arkansas, which relieved a defendant convicted for a crime he committed in 1999, juvenile offenders nationwide who had already been sentenced before the decision should have a chance for a new trial and sentencing.

“It’s a question of whether it will be decided on a case-by-case basis or a broad remedy that can be fashioned to deal with them all at the same time” he said.” I think it’s pretty clear that it does [apply retroactively], although the prosecutors are saying that it doesn’t.”

Michigan’s Supreme Court declined to settle retroactivity in its state this month. Attorney General Bill Schuette asked the Court to rule out retroactivity on the life sentence of a man convicted of participating in an armed robbery as a 16-year-old. Instead, the court remanded the case for resentencing.

One prosecutor who’s agreed to applying Miller to one existing conviction is New Hampshire’s Senior Assistant Attorney General Jeffery Strelzin.  Steven Spader was 17 when he hacked to death a woman in her home. In 2010, he was given his state’s mandatory sentence: life in prison. The court also added 76 years on other charges.

“Spader is the only defendant who has filed anything in court. We have agreed that he will be resentenced in light of the Miller decision,” said Strelzin.

“Four other defendants have indicated they may contest the applicability of Miller to their cases. However, none have filed any motions in court yet asking for a new sentencing hearing,” he said.

Spader’s case was still on appeal when Miller was published. Pennsylvania’s Supreme Court is hearing a similar case.

If the definition of “life” sentences varies by state, so does the definition of “juvenile.”  In Illinois, 17-year-olds facing felony charges are tried as adults, and children ages 15 and older charged with first- degree murder and other felonies, such as robbery at gun-point, are automatically transferred to adult court.

And an accountability statue in Illinois often leads courts to treat accomplices with the same degree of culpability as the shooter.

Illinois has to wrangle with a decade-old ruling by its state Supreme Court that foretold the later U.S. ruling, but may also preclude it being retroactive.

The court shot down a mandatory life sentence for a 15-year-old who had served as a lookout for two people convicted of homicide. The court wrote that under the state’s automatic transfer, accountability, and sentencing statutes, “a court never considers the actual facts of the crime, including the defendant's age at the time of the crime or his or her individual level of culpability.”

Matt Jones, of the state’s Attorneys Appellate Prosecutor’s office, said that mandatory sentencing for juveniles was already shot down in Illinois with this decision, and that courts had abstained from the practice since then, except in the case of 17-year-olds, who were still tried as adults.

But he also said the ruling made it clear that it shouldn’t be applied retroactively, and that he doesn’t think the Supreme Court’s decision in June will be applied retroactively either.

Stone argues the opposite, that the Illinois Supreme Court’s decision only applied to that specific case, and that courts throughout Illinois still maintained mandatory sentencing for minors convicted of homicide. He said that a new bill or amendment to the Illinois Code of Corrections must be made to comply with the Supreme Court’s ruling.

The U.S. Supreme Court rulings do not talk about such details. But juvenile rights advocates hail the principle.

“These [mandatory sentencing] laws make it difficult for judges,” said Shobha Mahadev, a Northwestern University law professor. “The decision is taken out of the judge’s hand.  We have to change the way we treat children and change these laws.”

The Illinois Legislature may take the question up when it reconvenes in November. Ambrose expects it to be an issue in Washington as well. Pennsylvania legislators have already held hearings on a rewrite.

Pennsylvania High Court to Make Make Key Call on Juvenile Life Sentences

The Pennsylvania Supreme Court is hearing oral arguments today that may lead to a chance at parole for more than 400 inmates convicted of murder as minors.

The Court is deciding if a June 2012 U.S. Supreme Court decision is retroactive, and if so, what sentence should be given to two convicts in today’s cases. The federal court, in Miller v. Alabama, said that minors convicted of murder have a right to present mitigating factors — such as the immaturity of youth — to sentencing judges. That invalidates one-size-fits-all mandatory life without parole sentences listed in federal and 28 states’ statutes.

“It’s about retroactivity and also resentencing,” said Marsha Levick, deputy director of the Juvenile Law Center in Pennsylvania, who is arguing for retroactivity before the court. The decision for the two defendants could set a precedent for the hundreds more like them in Pennsylvania.

She argues the U.S. Supreme Court intended for Miller to be retroactive. The federal court itself granted relief to a minor in a case tied to Miller who was already sentenced to life without parole. She said the court would not have done that unless they meant it to apply to all people similarly situated.

As for the sentence, “once you declare mandatory life without parole sentences for juveniles unconstitutional, we have no other sentence for first- and second- degree murder,” said Levick.

So the defense will argue for a reversion to the sentence for third-degree murder and the next most severe sentence available after first- and second- degree murder. In Pennsylvania, that’s a maximum of 40 years.

Sentencing laws vary by state, what’s on Pennsylvania’s books doesn’t match other states, but the principle may apply across borders. Said Levick, “the analysis that gets us there [to the next most severe sentence] may likely be relevant to jurisdictions across the country where there is no sentencing option on the books.”

Douglas Berman thinks prospects for retroactivity are good. “It’s in no one’s interest to litigate this,” said the law professor at Ohio State University and author of the award-winning Sentencing Law and Policy blog.

He explained that retroactivity historically deals with the possibility of overturning convictions. So prosecutors fight hard to protect convictions they have won in the past. But Miller only talks about sentences. All convictions will stand. And judges can still hand out sentences of life without the chance of parole or even decades-long sentences.

Indeed, Berman predicts some judges will do just that. He points out that under an earlier U.S. Supreme Court ruling granting resentencing to certain juvenile lifers, some Florida judges have laid out sentences of 100 years.

Levick is more cautious about retroactivity in other states. “I think the response from prosecutors is uneven. They’re challenging it in Pennsylvania,” she said, but “I don’t know that we should assume they will be challenging it in the 28 other states in which these cases are at issue.”

Pennsylvania’s is the first state Supreme Court test of Miller retroactivity. The state holds more juvenile lifers for murder than any other. In Florida, which counts more than 250 similar inmates, state law already considers Miller retroactive. In Iowa, the governor has by executive order converted the state’s 38 juvenile life without parole sentences to 60-year minimum sentences. However, that order may be challenged in court.

The Pennsylvania high court has no deadline to make its decision.

A bill is expected to be filed in the next session of the state Legislature that would lay out new sentencing guidelines for first- and second-degree murders committed by minors, to replace the laws invalidated by Miller.

Non-profits in Pennsylvania Could Lose Tax-Exempt Status

Jewish summer camp Last month, the Pennsylvania Supreme Court decided that a Pike County Jewish summer camp was no longer eligible for tax-exempt status in a ruling that could affect non-profit organizations throughout the state.

In a narrow 4-3 decision, the state's Supreme Court ruled the summer camp, operated by Mesivtah Eitz Chaim of Bobov, Inc., did not meet the HUP Test, a series of qualifications, established in the court's previous ruling in Hospital Utilization Project v. Commonwealth 1985, used to determine if an organization is a “purely public charity.” Only organizations meeting the standard are given tax-exempt status by the state.

The state's Supreme Court ruled the summer camp did not meet one part of the HUP Test, “relieving the government of some of its burden.”

The camp’s organizers, however, argued Act 55, a 1997 state law that includes a broader definition of a public charity, took precedence over the earlier HUP Test. But the Court dismissed this, ruling the state’s General Assembly could not interpret the Constitution and redefine the meaning of a “purely public charity.”

Stuart L. Knade, chief counsel for the Pennsylvania School Boards Association, told the Pittsburgh Post-Gazette he supported the court’s decision.

“People who are students of this area of the law are going to continue to enforce a higher bar to tax exemption,” he said. “If people aren’t looking at it carefully, Act 55 may continue to be an easy door for people to slip through.”

Photo by andydr

Across the Nation, State Legislatures Focused on Children in 2012

State legislatures across the United States have been busy this year with youth and juvenile justice-related legislation. While there have been some failures, such as the last-minute death in the Georgia General Assembly of a comprehensive juvenile code rewrite — a bill that many feared county governments couldn’t afford — other states are working on or have managed to pass significant measures.

A few of them are noted below.

Perhaps one of the biggest efforts is in California where Gov. Jerry Brown has announced plans to close all of his state’s remaining juvenile detention centers, transferring responsibility for the youth detained there to county parole departments and effectively eliminating the state’s Department of Juvenile Justice (DJJ). Consequently, most juveniles in the system would be referred to rehabilitation programs in their home communities. If the plan is implemented California would be the first state to eliminate its juvenile justice system entirely, according to San Francisco’s Bay Citizen,

In other states, new measures were aimed at strengthening juvenile justice and child welfare systems.

Last week, Pennsylvania Gov. Tom Corbett signed two major juvenile justice reform bills on the heels of the 2008 “Cash for Kids” scandal involving two judges who received millions in kickbacks for wrongfully incarcerating many juveniles in for-profit detention centers.

“Four years ago, Pennsylvanians witnessed a scandal that shocked the conscience,” Corbett said at the bill signing. “Now, we are taking action to prevent future injustice against our children.”

The new laws bring Pennsylvania into compliance with a state Supreme Court ruling requiring all juveniles under 14 to have legal representation at all delinquency hearings. Additionally, judges will be required to state on the record their reasons for the disposition of each juvenile case along with the intended goals of the incarceration.

While Pennsylvania worked to protect the interests of youth in contact with the juvenile justice system, Wisconsin’s Legislature passed a measure giving authorities greater access to juvenile records usually kept secret to allow young people a chance to move beyond the indiscretions of their past. Last week, Gov. Scott Walker signed the new bill. According to WUWM, Milwaukee Public Radio, the measure will give police greater access to information supporters of the law say will keep the public safe from young, violent offenders. In the past, a juvenile record would only show a referral to juvenile authorities and not the outcome of the case. The law is a response to the case of Markus Evans of Milwaukee whose crimes escalated from stabbing a teacher with a pencil when he was 7 to murdering a teenage girl walking home from school when he was 16.

“When we looked at the arrest histories, all we could see was that the kids were referred to juvenile authorities, so we didn’t know what the outcome was,” Mallory O’Brien, director of the Milwaukee Homicide Review Commission told WUWM. “It could have been that they were issued a citation. It could have been nothing happened. It could have been that they were sent to the delinquency center. So that really was information that the officers on the street needed to have access to.”

Not all of the new legislation concerning youth was directly juvenile justice-related. In Nebraska, Gov. Dave Heineman signed five bills into law, all aimed at fixing a child welfare system that has lost the public’s confidence after an experiment with privatization. According to a report by the Associated Press, two of the new measures would lower caseloads for child service providers and require the state Department of Health and Human Services (HHS) to develop plans to serve children more effectively, a move reinforced by the appointment of Thomas Pristow as director of the children and family services division of HHS. The remaining three bills provide for the creation of a state children’s commission, increased payments for foster care providers and the establishment of a web-based information system.

"Over the next six months, you will see action happen that looks at what the issues are and then resolves them," Pristow told The Omaha World-Herald. "We will be at a much different place a year from now than we are today."

Missouri lawmakers are still contemplating adding a new category to the state’s Amber Alert system created to notify the public of a child’s abduction and enlist their help in finding the missing child. Under the new measure, the Alert would also be activated if there were a fugitive at large, a change that some Missouri State Highway Patrol officers worry will cut into the alert’s effectiveness in child abduction cases, acccording to Kansas City’s KCTV 5.

Highway Patrol Sgt. Bill Lowe told KCTV the goal is to "have as many eyes out there as possible to locate that individual." But increasing the scope of the alert and increasing its use could lead to some people tuning it out.

"We don't want to dilute that,” Lowe said. “We want the public to know that when that Amber Alert goes off that information is vitally important.”

No Remorse? One Law Professor Studies the Impact of Emotion in the Juvenile Justice System

Martha Grace Duncan in her office at the Emory University School of Law in Atlanta
Martha Grace Duncan in her office at the Emory University School of Law in Atlanta

Sitting behind her strikingly barren desk, with the bright, mid-winter sunlight breaking through the trees and streaming through her office windows, Martha Grace Duncan, a professor at the Emory University School of Law, in Atlanta recounts the case of nine-year-old Cameron Kocher. As she speaks her small, compact frame remains nearly motionless, betraying no emotion. But her eyes tell the story, portraying the internal mix-up of sadness, passion and nerdy intensity that she feels about the topic. Duncan may not wear her heart on her sleeve, but if you pay attention it’s not hard to find.

In March 1989, on a cold, snowy day in the Pocono Mountains of northeastern Pennsylvania, Kocher fatally shot a seven-year-old playmate with a high-powered hunting rifle. He had been playing video games with the girl at her house when she told him that she was better at the game than he. Soon, the girl went outside to ride snowmobiles with other friends and Kocher, angry that his parents wouldn’t let him join them, retrieved the rifle from his father’s gun cabinet, loaded it and pointed it out the window of his home. Then, as the girl rode with a friend on a snowmobile, Kocher shot her in the back.

Minutes later, as the girl lay dying in her living room, Kocher returned to the girl’s house telling another playmate, “If you don’t think about it, you won’t be sad.”

As Kocher’s case progressed through the courts, many took the quote, coupled with the shooting, as evidence of a cold, remorseless child. Uttering that sentence would have severe repercussions for Kocher, beginning with the question of whether he would be treated as an adult by the courts.

In 2002, Duncan published a lengthy article for the Columbia Law Review that explored how expectations of displays of remorse affect how children are treated in the juvenile justice system, particularly in adjudication and sentencing. Duncan, who also holds a doctorate in political science, applied elements of psychology, sociology and literature to several case studies in the article.

As she explains in the article, “’So Young and So Untender’: Remorselessness and the Expectations of the Law,” in Pennsylvania, the State Criminal Court is responsible for all murder cases, even those involving children. However, if the suspect is a juvenile they may petition to have their case sent to juvenile court.

Kocher’s petition to be transferred to juvenile court was denied, in part, because of his quote after the murder. After Kocher’s appeal was denied, the Pennsylvania Supreme Court reviewed the case. In its opinion, the state’s high court declared, “He appeared to show no remorse for the crime.” (Cameron Kocher eventually pleaded no contest to felony criminal homicide and, as part of a plea agreement with the local district attorney, was convicted of misdemeanor involuntary manslaughter. He was placed on probation until he turned 21.)

Duncan said, when she read about Kocher’s case in The New York Times, she was startled that a child’s apparent lack of remorse would be used against him.

But in juvenile law, Duncan writes, remorse often figures prominently at a critical junction in the process called transfer—the decision whether to treat the child as an adult and send them to adult criminal court or keep them in the juvenile justice system.

Webster’s dictionary defines remorse as “a gnawing distress arising from a sense of guilt for past wrongs.” Contrition, similarly, is defined as “feeling or showing sorrow and remorse for a sin or shortcoming.”

Most adults can relate to that meaning—nobody’s perfect, after all—but at what age are we first capable of feeling remorse?

According to forensic psychiatrist Louis Kraus of the Rush Medical Center in Chicago, children do not develop a sense of remorse until they are five or six.

“Many kids have difficulty expressing a sense of remorse,” he said. “And many times that is because of trauma they have experienced.”

Kraus says the key is to understand brain development. The part of our brain that controls emotions does not finish growing until our early 20s. As a result, he says, teenagers may have a very difficult time understanding or expressing feelings of remorse.

“It is extremely important that a mental health professional examines any child that enters the court system,” Kraus said, particularly those who do not show remorse.

“Many kids would realize, if remorse plays a big role in their sentencing, to simply say how sorry they are and try to appear remorseful,” he said. “You have to ask yourself, when they don’t say that, what is going on with this kid? A comprehensive mental health assessment would help us understand.”

Kraus adds, “The reality is, a lot of these kids have difficulty with what they say and how they say it.”

Still, displays of contrition or remorse, Duncan writes, are a “legitimate argument” for leaving the child in the juvenile justice system. Children who appear to show remorse or guilt continue to be viewed as children. But children who show none of those emotions are seen as more sophisticated and mature. They may be transferred to the adult criminal justice system, a decision that could have monumental and long-lasting effects, including the possibility of life in prison without parole.

“Sometimes kids are expected to be innocents because of the romantic archetype of the child,” Duncan said.

She added, “In juvenile cases, and juvenile cases alone, sophistication is considered a bad thing. To the degree you [the child] are sophisticated, they [the juvenile justice system] are more likely to treat you as an adult.”

But Duncan contends children are not necessarily equipped to deal with feelings of guilt and remorse. They are particularly adept at using denial to bury strong feelings. The fact that they show no remorse is, in reality, a strong indicator of their immaturity.

She points to Cameron Kocher’s quote as an example.

“Even without any psychological training, one would think that could be an ambiguous comment,” she said. “For one thing, he seems to be trying to avoid feeling that.” It appeared to her, she said, as if Kocher was trying to bury the negative emotions he was feeling. It was a defense mechanism.

In the late 19th and early 20th centuries, juvenile courts were first created on the principle that children are inherently different than adults. Their brains are not fully developed, they are still learning and they are capable of rehabilitation.

Duncan explains children have a very difficult time showing remorse in cases of murder because of three undeveloped pieces of their development. The first is the “short sadness span,” a concept Martha Wolfenstein, the noted psychoanalyst and author, first put forth in the book, “Death of a Parent and Death of a President.” Wolfenstein said children are only able to endure painful emotions for very short periods of time.

“Just as their attention span is shorter than most adults,” Duncan said, “so their ability to remain in the painful affect of sadness or sorrow is not very long. When you start thinking about it, it’s kind of common sense.”

Once children cannot bear the feelings anymore, they use defense mechanisms to bury them. One of those defenses, and the second developmental piece Duncan discusses, is the tendency to use denial. Children are far more likely to use denial than adults, Duncan says. They push the painful feelings down and block them out because they are too much to bear, as Cameron Kocher seemingly did after fatally shooting his friend. His quote, “If you don’t think about it, you won’t be sad,” appears to indicate his use of denial to block whatever feelings he was experiencing, Duncan said.

The final piece of the puzzle is that children are not experienced enough to fully understand death. They may not think of it as permanent or irreversible and do not fully grasp what has happened.

“Researchers have not yet reached a definitive answer as to the age when most children comprehend death in these three sentences,” she writes.

When the three parts are combined, we often find a child acting cold or without compassion, maybe making jokes at inappropriate times as in the case of Gina Grant who Duncan also writes about. In 1990, when Grant was 14-years-old, she murdered her mother, a violent alcoholic who had recently threatened to kill her. That morning, Grant repeatedly bashed her mother over the head with a heavy candlestick. Later, as a police officer escorted Grant in handcuffs to the restroom she joked, “Don’t worry, I don’t have any body parts in my pocket.” When the sheriff caught wind of Grant’s joke, he concluded she was a “sociopath with no conscious.”

But for many children, the outward face of their emotion may be very different than what they feel inside. Still, society expects to see certain emotions at certain times. However, people, and children especially, are not always equipped to handle intense feelings of grief or remorse immediately. Funerals are an excellent example, Duncan says.

“I find it hard to believe that, in that hour, everyone is feeling grief,” she said. Some of the mourners may indeed feel sadness and grief at that moment, but many more will experience that at another time, in a more private way, she added.

Duncan says she can identify with the struggle to show the proper emotion. The day after her father’s death, she writes in her article, when she was still a young college student, she went to her classes at Columbia University just as she would any other day. Those who knew her and knew of her father’s death looked at her strangely because she showed no signs of grief.

“Actually, I showed no grief because I felt none, and did not for a long time,” she wrote. It was more than a year before she began to feel any strong emotions about her father’s death, and when she did they came forth like a flood.

But this was not the first time she had difficulty displaying the proper emotion.

“Growing up,” she said, “I was never quite having the right reactions, according to my family. They always wanted me to express more feeling. And at the time I was super-intellectual and super-analytical and so I wasn’t having the right reactions, according to them.”

Her experience rendered her uniquely capable of studying what happens to children caught up in the justice system who, like herself, didn’t show the “right reaction.” But for these kids, the consequences are far more serious than a few strange looks. And Duncan is very aware that had things gone horribly wrong early in her life, a judge or jury might have been taking silent note of her own emotionless countenance.

“Fortunately,” she wrote in her matter-of-fact style, “no legal ramifications flowed from my earlier failure to exhibit sadness.”

So, Duncan asks, is it fair to decide a child should be treated as an adult in the eyes of the court when they show no remorse in the days and hours after a death when they are likely incapable of displaying that emotion?

Reading about Kocher’s case started her thinking, she said. How many times has remorse played a role? With the help of a research assistant, Duncan searched for juvenile cases in which the word “remorse” showed up. The team came across more than 200. And there could be hundreds more, Duncan said, because the search didn’t include similar words such as “contrition” or “sorrow.”

More troubling still, how many times did innocent children, who could not show remorse for a crime they did not commit, have their emotions used against them?

“To what extent does the state have the right to demand that you share your interior space with the state?” Duncan asks. “Remorse is not a term of art like ‘malice aforethought’. We can’t just change the statutes, because there often aren’t any statutes.”

She added, “What’s particularly odd was that [the courts] never define remorse. They rarely explain why they got that impression [of the child].”

There is almost no way to know in how many cases remorse has been a determining factor. The internal rationale of judges and juries, Duncan says, is most often just that: internal. And in reality, it may be only one factor of many that contribute to a young person’s sentence.

Duncan is currently working on a book that will delve deeper into the question of remorse and the law. The new book will expand on what she has already written but will also tackle new areas, including how remorse is used in parole hearings.

Legal Representation Required in Pennsylvania Juvenile Courts, Says State’s High Court

Juveniles appearing in delinquency proceedings in Pennsylvania will be required to have legal representation following an amendment to the commonwealth’s Rules of Juvenile Court Procedure by Pennsylvania’s Supreme Court. The change, effective March 1, follows the “kids for cash” scandal in Luzerne County, Pa. in which juvenile court judge Mark Ciavarella took kickbacks from the builder of two for-profit youth detention centers and routinely denied juveniles in his court their right to an attorney.

The new rules say youth under the age of 14 must have an attorney present at all delinquency proceedings and children 14 years of age or older may only waive their right to counsel in very limited circumstances. Even then, the court must be satisfied the waiver was made knowingly, intelligently and voluntarily.

In 2011, the Rules for Juvenile Court Procedure were amended to classify all juveniles as indigent, automatically qualifying them for court-appointed attorneys.

“The new court rules will provide youth with important protections,” said Robert Schwartz, executive director of the Juvenile Law Center, in a press release applauding the change. “Unfortunately, Pennsylvania remains one of only two states in the nation that does not provide any state funding for indigent juvenile defense. While the new rules properly require that all children be represented, the [Pennsylvania] General Assembly must provide funding to address this problem.”

Judge Mark Ciavarella was convicted in February of 2011 of taking more than $997,000 in kickbacks from Robert Mericle, the developer of the PA Child Care facilities, according to The Patriot-News.

Following the verdict, the Pennsylvania Supreme Court threw out about 4,000 juvenile convictions saying Ciavarella ignored juvenile offenders’ civil rights, including their right to an attorney.

Photo by Flickr | Joe Gratz

Reporting Child Abuse, in Pennsylvania and Around the Nation

Penn State Support Wall for child abuse prevention. Photo credit: pennstatelive/Flickr
The Support Wall, an event hosted by Penn State on Nov 17, 2011, offered students and staff the opportunity to sign child-sized hands in support of child abuse prevention. Photo Credit: pennstatelive/Flickr

With former Pennsylvania State University assistant football coach Jerry Sandusky facing allegations of sexual abuse against eight children spanning a 15-year period, many in the American public are left wondering how such a chronic narrative of seduction and abuse could go on so long.

At least one parent brought allegations of sex abuse to the police as early as 1998. Since then, at least two university employees say they witnessed Sandusky in the commission of a sexual act with young boys, yet according to records from local law enforcement the complaints never reached police.

In 2000, a Penn State janitor says he witnessed what he described as Sandusky performing oral sex on a young boy in a university shower, according to a Pennsylvania state grand jury. He never reported the incident, fearing he would lose his job, according the grand jury.

The most publicized incident occurred in 2002 when then graduate assistant football coach Mike McQueary reportedly saw Sandusky engaged in sexual activity with another young boy in a university shower. McQueary reported the incident to now former head coach Joe Paterno.

Paterno reported the incident to his supervisor, athletic director Tim Curley, who reported it to vice president of business and finance for the college Gary Schultz.

Still, the allegations of sexual abuse never made it to the police.

If it wasn’t for the person court documents refer to as ‘Victim 1,’ the trail of abuse allegations against Sandusky may not have come to the attention of the public. Documents refer to the abused as ‘Victim 1’ not because he was the first to be allegedly assaulted by Sandusky, but because after more than four years of sexual abuse he was the first to step forward.

With at least four colleagues of Sandusky’s aware of sexual abuse claims, many are left wondering why it took so long to identify the problem, launch a criminal investigation and bring it to the public’s attention.

The four years of abuse outlined by ‘Victim 1’ didn’t even start until after the incident McQueary reported.

Like many states around the country, Pennsylvania designates a specific class of “mandatory reporters,” or those required by law to contact authorities when abuse is suspected. Those include teachers and administrators, social workers, health professionals and clergy.

None of the Penn State officials with knowledge of the allegations have been charged for their reporting procedures, an indicator the staffers didn’t meet the “mandatory reporter” threshold based on their respective relationships to the children visiting Penn State as part of the Second Mile program – a non-profit founded by Sandusky in the mid 1970s.

Every state has statutes identifying persons who are obligated to report child maltreatment and abuse cases, according to the Federal Child Welfare Information Gateway, but only 18 states require anyone who witnesses such incidents to report.

In the wake of the Penn State abuse scandal, lawmakers in many states have started talking about tightening mandatory reporting requirements. Pennsylvania Gov. Tom Corbett has told the press he is confident state lawmakers will pass a law broadening the definition of who must report abuse directly to law enforcement.

Similar drives are underway in other states, including Georgia where at least one state representative is advocating a bill to reform the current law that would be introduced in the upcoming session of the Legislature.

A wider breadth of reporting laws, however, may not be the answer. More than 80 percent of abuse reports in Georgia, for example, turn out to be false, estimated Melissa Carter, Director of the Barton Child Law and Policy Center at Emory University in Atlanta.

“You always want to error on the side of child safety and caution,” Carter said. “But increasingly the field is coming to terms with the fact that [an abuse] investigation is traumatic in itself,” especially when the allegations are found to be false.

If the Penn State scenario had played out in Georgia, for instance, or one of the 31 other states without mandatory reporting requirements for the general public, the legal implications would be pretty much the same for Penn State officials involved.

Nationally, the number of sexual abused children decreased by 38 percent from 1993 to 2005-2006, according to a Department of Health and Human Services (HHS) commissioned study. In the 2005-2006 an estimated 135,300 children were sexually abused, down from 217,700 estimated cases in 1993.

FBI Metro Atlanta Child Exploitation Task Force
FBI special Agents Nathan Whiteman (left) and Joe Fonseca present on the work of the Metro Atlanta Child Exploitation Task Force at a recent child abuse prevention conference near Atlanta. Clay Duda/JJIE Staff.

But national statistics offer little insight into those effected the most, the victims.

“There’s a very close correlation between kids that are abused and juvenile delinquency,” said Henry County (Ga.) juvenile prosecutor Tom Williams. “Boys, like those at Penn State, rarely reach out directly,” he said, adding that abused young men are more prone to act out in a delinquent or disruptive manner.

“As prosecutors we see the secondary effects [of abuse]," he said. "We see a higher percentage of juvenile offenders with past trauma in their lives -- whether it be physical, emotional or sexual abuse."

FBI special agent Nathan Whiteman has seen a similar trend through his work with the Metro Atlanta Child Exploitation Task Force (MATCH), a joint initiative between the FBI and local law enforcement specifically targeting sexual exploited and trafficked children. He said many of the kids the task force dealt with came from dysfunctional families, but each case was unique.

With that in mind, Whiteman said early intervention and positive influences in a young person’s life, hopefully as early as elementary and middle school, were the best deterrents.

“Sometimes by high school it’s too late,” he said.

In the Sandusky case, with multiple witnesses and victims coming forward, the decision to investigate the allegations of abuse was pretty straight forward, yet with many cases of suspected child abuse it is not such an easy decision to make.

“Sexual abuse is well hidden, much more so than physical abuse,” said Jeanne Alshouse, Co-Founder of HEROES, Great & Small, Inc. of Rome, Ga. For nearly two decades the organization has helped sexually abused children “rise above” the trauma of abuse through group meetings and social activities.

For Alshouse, identifying instances of abuse is the top priority.

“It’s still ‘hush’ in a lot of communities,” or something people don’t want to talk about, she said. “Children are groomed sometimes to keep a secret. The most we can hope to do is educate children about what’s appropriate.”

Mandatory reporter laws were developed to help ensure fast reporting of potential abuse from those that come in contact with children the most, experts agree. Child abuse cases have the potential to be high-stress, emotionally-charged situations for those involved. In theory, having a designated class of mandatory reporters can help cut down on unsubstantiated claims of abuse and place the burden of legal responsibly on the shoulder of specific professionals.

 


News: Fractured Leg, Fractured Family: A Misdiagnosis Leads to Allegations of Child Abuse

OP ED: The Moral Obligation to Report the Sexual Abuse of Children 

OP ED: The Tough Lessons Learned from the Fall of Joe Paterno

News: Georgia Chosen for Study of Legal Representation of Abused Children 


 

Get the headlines at your doorstep.  Sign-up for weekly e-blasts for the best of JJIE.org.