WASHINGTON — James Bell, founder and president of the W. Haywood Burns Institute, told a gathering of juvenile justice reformers earlier this month that it was time to begin “an uncomfortable” conversation about racial disparities in the youth justice system.
He made the comments to Models for Change stakeholders gathered here to discuss the John D. and Catherine T. MacArthur Foundation’s final evaluations of the $121 million juvenile justice reform initiative, which began in 2004. It ended as MacArthur changed its emphasis from reforming youth justice to jail reform.
The daylong meeting centered around the many success Models for Change helped bring about, from reducing incarceration sentences to influencing states to stop shackling youth in courts to raising the age at which teens are treated as adults in court.
Bobbe Bridge, founder and president of Center for Children & Youth Justice in Washington state, said, “Models for Change was certainly the catalyst in accelerating reform. We have certainly changed the conversation.”
Yet, thanks in part to Models for Change support for data collection, it is apparent that racial disparities in the youth justice system, if anything, have gotten worse, not better.
A MacArthur-commissioned evaluation of Models for Change by Mathematica Policy Research found that disparity “persists, mostly at pre-Models for Change levels.” The Sentencing Project recently reported that in 2015 black male youth were five times more likely to be locked up than white youth.
Speaking of the reforms, Bell said, “What we now know after 10 years of informed analysis is that all of those things have benefitted white kids and the racial disparities persist.”
In the past, he said, the reformers wanted “to get something rather than nothing” so the discussions that might have made decision-makers uncomfortable didn’t happen. Now, he says, “As we go into 2.0 of reform policy we are going to make people very uncomfortable to examine why the disparities still persist.”
Laurie Garduque, who led the Models for Change initiative at the MacArthur Foundation, said although the disparities rate has not improved, the harm done to youth in the system has been reduced for kids of color. “Fewer of them are being swept up in the system, more of them are being diverted and remain in the community, fewer are incarcerated; the incarceration rate has dropped dramatically, somewhere between 40 and 60 percent depending on the state,” she said.
She added, “You are dealing with a host of economic, structural and political issues … you can’t expect the justice system to overcome. So there has to be an acknowledgement that we can make the system fairer and more just, but the deck is stacked against certain groups in such a way that it is very hard to make it equitable.”
The Mathematica evaluation reports that in states where Models for Change concentrated its effort:
“Significant paradigm shifts not only continued during Models for Change, they were propelled by it ...
“State and local stakeholders became more aware of the harms of detaining youth, particularly low risk youth, in out-of-home placements.
“The poor conditions that characterized confinement drew attention and litigation.
“Evidence mounted about the ill effects of formal involvement in the justice system.
“As these perspectives took shape, so did intentions to divert youth from pretrial detention and secure confinement and from the justice system entirely.
“As interest in diversion and serving youth in the community grew, evidence-based programs emerged as desirable alternatives to secure confinement and formal processing.“
Donald K. Ross of Malkin & Ross said his public policy firm, which worked for Models for Change, hired 56 different lobbying firms to work with states to help bring about reforms. For example, at the beginning of Models for Change in 2004 only 10 states forbade shackling of youth in courtrooms. Today there are 31 such states.
Marsha Levick, deputy director and chief counsel of the Juvenile Law Center, said that when the U.S. Supreme Court ruled that kids are different, it gave everyone the freedom to use the youth developmental language. Yet, “what we haven’t eliminated is a persistently punitive response to offending in this country that still infiltrates and drives our criminal justice system.”
Garduque said the research the MacArthur Foundation helped underwrite established the legally relevant ways that kids are different from adults, which was made concrete by Supreme Court decisions. Now there is a reluctance to think of young people as the worst thing they have done and focus instead on the individual young person.
The field was forced to ask, she said, “How can we hold young people accountable for their transgressions in ways that recognize that they are not adults and doesn’t jeopardize their future life chances and gives them the skills and competencies to become successful adults?”
What’s most gratifying for her is that “Those principles have been adopted and now seem to be secure and are the basis for another generation of law and policy reform where we are rolling back those harsh and punitive sanctions.”
Leonard Witt is executive director of the Center for Sustainable Journalism, the publisher of the JJIE. The JJIE was a MacArthur Foundation Models for Change grantee.
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At 7 a.m., teenagers are scurrying to dress and head to class. There are no parents or older siblings nearby to push them out of bed and out the door. And the commute isn’t long — just a short walk from prison bed to classroom.
But these young men at the MacLaren Juvenile Detention Facility in Woodburn, Oregon, are going someplace — and that’s a start, state educators and justice officials say.
The students meander from four different buildings, depending on their status — some as young as 15 and others who were sentenced as adults but placed in juvenile facilities — down long corridors to a central school.
“MacLaren is a regular school, and if you were to walk in you’d think you’re in a high school hallway,” said Deborah Martin, senior policy advisor for community services at the Oregon Youth Authority.
The students get the usual array of math, English and science. But MacLaren and most of Oregon’s other youth detention facilities also offer the chance to learn a vocation. An advanced auto mechanics class ties to a partnership with a local community college. Classes teach latticework and woodworking. Some students learn wildlife preservation and take advanced classes in fighting wildfires common to the Pacific Northwest.
The most advanced students, usually in their late teens or early 20s who have spent years in the facility and are ready to transition into the public sector, are allowed to work with local firefighters out in the fields.
“As a state, we’ve made a conscious decision that we can’t just give them a high school education, but give them a vocation and a chance to succeed in the work world,” Martin said. “For most of these kids, something wasn’t quite right about their life — that’s why they came to us. We want to help them get back on track.”
Oregon is considered at the forefront of efforts to improve the transition from juvenile detention back to public schools or into the workforce, according to education and juvenile justice experts.
In addition to schoolwork, the state has set up a system in which each teenager entering the juvenile justice system is assigned a parole officer who will stick with them until they exit the system.
The officers serve as case managers, arranging counseling, mental and substance abuse treatment if needed and, working with the teens, teachers and their families, devise an education and support plan as soon as they enter the system.
Additionally, Oregon provides some juveniles with transitional parole officers whose job is helping the teens and young adults in their first reentry months. What began as a pilot program four years ago with a single officer has developed into a statewide assistance program that has put about 100 teens into the workforce and helped many more return to the classroom.
Jim Kramer, chief of parole and probation for the Oregon Youth Authority, said transition officers stay in specific regions so they know about job opportunities and can build contacts in local school systems. They mostly support youth 17 and older.
All students leaving detention facilities in the state must be admitted into local schools. But “let’s face it, in some of these schools our students are going back to places in class with some of their victims, so there is some pushback,” Kramer said. “Our transition POs work to soften that landing and work with the school and student to come up with a transition plan.”
National trend to reduce recidivism
Oregon’s attempt to ease the transition from lockdown to society is part of a larger national trend that experts say is tied to a steep drop in juvenile crime and recidivism.
In the past two decades, the population of young people held in juvenile facilities or other forms of detention has been cut in half nationwide, according to a study by Child Trends, a nonprofit research organization focusing solely on youth and their families.
The figures are encouraging, juvenile justice experts say, and show that more states are using data and lessons learned from comprehensive studies (such as one from the National Center for Mental Health and Juvenile Justice in 2016) as blueprints for diversion and treatment programs that keep teens in school and ultimately make them far less likely to reoffend.
But the success of diversion programs has created a new reality for educators and justice professionals: Those who are locked up now are sometimes more hardened, more difficult to reach and present a challenge to educate and treat before and after they reenter society.
“What the data shows is that as incarceration rates have gone down, the population still incarcerated are higher risk and higher need, and recidivism rates still tend to be pretty high because it’s a challenging group to work with,” said Josh Weber, program director for the Council of State Governments Justice Center in New York City.
“It requires a more nuanced reading of data and a more sophisticated understanding of risk placement and how to tailor education programs to the individual,” Weber said. “The juvenile field has done a good job, much better than the adult system, of keeping kids from coming back into the system. But I think we’re still struggling with developing enough programs for mental health and substance abuse.”
Recidivism and dropping out of school
Educating teens held in facilities is crucial to helping them return to the classroom when they are released, experts said. But that’s not always easy, in large part because of circumstances students can’t control. Some teens are in locked facilities for only a few days or weeks, making it difficult for teachers to learn the best ways to help them learn. Nearly all students can be pulled from classes for court appearances or other reasons related to their legal issues.
In all, two-thirds of teens released from juvenile facilities never return to school and “find themselves far behind their peers,” according to a study by The Sentencing Project, a nonprofit focusing on disparities in the justice system — adult and juvenile.
“A huge problem, and I’m not sure it’s talked about enough, is the lack of transfer of academic credits when students go from a facility back into a local school system,” said Kate Burdick, a staff attorney for the nonprofit Juvenile Law Center in Philadelphia. “When they are going to school in a facility, they think they are getting credit, and they should be. But when they go back to their old school — or sometimes it’s even worse because they are forced to a new school away from where they live — they come to realize the school districts won’t accept those credits.”
That leads to frustration for the students and increases dropout rates, Burdick said.
National guidelines and action plans
Several states and local jurisdictions have implemented new rules to increase the chances that students graduate when leaving detention facilities. For example, New York — pushed into action by a lawsuit and consent decree — has created “credit equivalency charts” that provide uniform standards for integrating students back into the classroom. That includes efforts to make sure students are enrolled in schools in the same district in which they and their family live, increasing the odds they stay in school.
Virginia and Washington state have introduced legislation that speeds up the time between students leaving detention and being enrolled in a local school system.
The federal government has also created guidelines in recent years, aimed at smoothing the transition from detention to graduation. In 2014, the U.S. Department of Education released guidelines for disciplining students, part of an effort to keep teens in school and out of the justice system.
The guidelines stressed the need for strong partnerships among mental health agencies, counseling, law enforcement and school systems — designed to help divert students who might be sent to the juvenile justice system into counseling or specialized school programs. But the guidelines also focus on helping schools and students adapt as they leave lockdown facilities and return to public schools.
In 2016, the Department of Education released a “reentry toolkit” that provided tips and resources for local jurisdictions to provide services for students returning to the classroom.
Another program designed to help both adults and juveniles reenter society, the 2015 federal Second Chance Act, overcame efforts by the Trump administration to slash its budget by 30 percent as of press time. On July 14, the House Appropriations Committee agreed to provide full funding for the project at $68 million with support from both parties, according to committee member Scott Taylor, a Republican representing Virginia. The vote is seen as a key step in the budgeting process.
There is still much work ahead, said Weber of the Council of State Governments. States must do a better job gathering and analyzing case data that will help them craft more effective education programs to help teens graduate high school when they leave detention, he said.
“The good news is that the field is more aware of the need for having a more robust reentry program, and the planning starts much earlier,” Weber said. “It used to be that 30 days before release planning programs would begin. Now, from the moment they are placed in facilities, we see families involved, treatment planning with staff, making sure kids get re-enrolled in school as soon as they are released.”
Despite the difficulties, Weber and others said there are several concrete steps jurisdictions can take to improve the chances teens graduate after incarceration. First and foremost is having mental health and substance abuse treatment programs inside the facilities and in the school systems.
“We’re struck by how few states have a dedicated mental health or substance abuse system,” he said. “The default in many instances is to handle those problems as criminal justice issues, and that’s not where they belong.”
Still, the success of any program depends on states dedicating money and time to ensure students have the best chance of graduating once they leave detention facilities, said Marsha Levick, deputy director and chief counsel of the Juvenile Law Center.
“There are software programs available, lots of innovative ways to engage students and tailor programs to individual needs,” Levick said. “But there has to be the will to do that.
“What’s always frustrated me is that these kids in locked facilities should have the same exact opportunities as kids on the outside. Yet we don’t hold facilities accountable for delivering the same quality of education. We have to really change that mindset if we want to see better outcomes.”
“Nationwide, data collected by our Office for Civil Rights show that youths of color and youths with disabilities are disproportionately impacted by suspensions and expulsions. For example, data show that African-American students without disabilities are more than three times as likely as their white peers without disabilities to be expelled or suspended. Although students who receive special education services represent 12 percent of students in the country, they make up 19 percent of students suspended in school, 20 percent of students receiving out-of-school suspension once ... and 23 percent of students receiving a school-related arrest.”
While the guidelines are nonregulatory, and “the extent to which states and school districts implement the suggestions in this resource guide is a matter for state and local school officials to decide,” it does provide 13 specific action steps designed to reduce suspensions and other out-of-school referrals.
“Engage in deliberate efforts to create positive school climates.” This action item names groups of youth who are often disenfranchised — from those with disabilities to LBGTQ youth and young people of color. Specific goals may include reducing numbers of suspensions and expulsions and law enforcement referrals, and “identifying and connecting at-risk youths to tailored supports, or increasing the availability of quality mental health supports available for students.”
“Train all school staff to apply school discipline policies and practices in a fair and equitable manner so as not to disproportionately impact students of color, students with disabilities, or at-risk students.”
“Remove students from the classroom only as a last resort, ensure that alternative settings provide academic instruction, and return students to class as soon as possible.”
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, 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.”
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The jail in Washington, D.C., recently began to allow family members to visit inmates by video conference. The problem is, in-person meetings are no longer permitted. The only way families can see each other now is by sitting in front of a computer screen several blocks apart.
Correctional facilities in more than 20 states currently have or plan to have video technology in place, according to a report released by the research and advocacy organization The Sentencing Project. Video technology’s popularity in facilities is driven by a desire to cut staff costs, to reduce security risks created by in-person visits, and in some cases, to raise revenue.
But as video conferencing becomes more widely available as a way for people who are incarcerated to see their families, the restrictive rules and high fees put in place by prison authorities and private organizations threaten to inhibit the technology’s benefits for family members, especially for the 2.6 million children who have a parent behind bars, according to the report “Video Visits for Children Whose Parents Are Incarcerated: In Whose Best Interest?”
Having a parent in prison can take a real toll on a child’s well being and create symptoms of post-traumatic stress, the report argues. It can hurt their grades, make them withdraw from friends, become disruptive in class and feel less economically secure.
Face-to-face visits that allow parents and children to physically interact strengthen emotional connections, help children feel more secure and reduce recidivism in inmates, the report says. But about half of parents in prison or jail have never received a visit from a child.
That’s because taking children to prison or jail for a visit can be stressful as well. It can require extensive travel, expense and time, especially as the majority of parents in prisons are located more than 100 miles from their families, the report explains. It can also be nerve-wracking trying to anticipate security measures at facilities and making sure that children don’t unintentionally break the rules.
In such instances, visiting by Web or video conference can allow children to see their parents with a lot more frequency. But some facilities may still require families to travel to a special location equipped with the video technology, rather than being able to call from any computer at home. And high fees can make such virtual visits prohibitive as well.
Some for-profit companies that arrange for video conferencing at prisons can charge as much as $15 for a 30-minute video call, while some nonprofits charge a smaller fee to cover their expenses, the report says. Some prison facilities offer a certain amount of video-conferencing time for free, with charges built in for longer visits.
Video conferencing can offer great benefits to children and their incarcerated parents, the report says, if it is used to complement and not substitute for in-person visits, if it doesn’t cost a lot, and if it allows children to visit easily and frequently from home or a nearby location.
“If video visits are an addition [to in-person visits] they will be a help to all and a God-send to many,” the report quotes an editorial by a person currently under incarceration.
“But, if video visits are a replacement for the current visitation, their implementation would be a painful, unwelcomed change that would be impersonal and dehumanizing.”