To Defend a Terrorist: Reflections on Reid, Tsarnaev & How I Got from There to Here

Posted on May 3, 2013 by tbirckhe

reid and birckheadSince my last post, I’ve been occupied with putting myself out there (via print, radio & cable news) to share the message that even those charged with the most heinous offenses are still human beings, that we are each more than the very worst thing we have done, and that execution is morally wrong.

In my last life, I worked as a federal public defender in Boston and had the occasion to represent Richard Reid, the failed or would-be shoe-bomber.  This wasn’t a role I sought out, and in fact, when the case was initially assigned to me, I felt apprehensive about taking it on.  It so happened, however, that I was “on call” during the last week of December 2001, meaning that any new cases appointed to the office were mine; so, when Reid’s American Airlines flight from Miami to Paris was diverted to Boston’s Logan Airport and he was arrested and charged with acts of terrorism, I knew that this 28 year old bin Laden adherent of British/Jamaican descent would become my client.

The timing was not at all ideal — as though there are ever ideal conditions under which to take on a case/client like this one.  My husband was in graduate school, we had an 18 month old daughter, and I was five months pregnant with our second child.  In other words, not much “work-life balance” or “leaning in” was happening for me right then.  We lived on the top floor of a Dorchester triple decker (ask someone from Boston to explain), with a wanna-be white rapper from the suburbs, his cranky girlfriend and three snarling pit bulls below us.  Needless to say, I was regularly giving people on the T (Boston’s subway) the evil eye when they wouldn’t make room for me on the bench, as my belly was rapidly expanding and my patience was wearing thin.

Much of my representation of Reid remains somewhat of a blur, coming back in sharp flashes of memories — incessant calls from the press, countless boxes of discovery from the US Attorney’s Office, special security clearances, and long trips to MCI-Plymouth to see Richard.  Also, it was winter in Boston and it was cold.  Very cold.

I recall fraught meetings with Richard’s mother, Leslie Hughes, a polite, soft-spoken English woman who worked as a librarian, then remarried and had a second son with a local town planner; she suggested that Richard had first become estranged and angry at age 11 after his parents’ divorce and her remarriage, as he never fit in with the “new” family configuration — he withdrew from his step-father and didn’t bond with his half-brother.

At 16, Richard dropped out of school and drifted about in search of another community; he ended up in jail — as had his father — and converted to Islam, eventually finding the London mosque led by an anti-American cleric known for his extremist views and purported ties to al Qaeda.  Trips followed to Afghanistan and Pakistan.

As we geared up for a trial, learning about plastic explosives, litigating various pretrial motions, strategizing and working with experts, it became clear that Richard did not want to engage in any meaningful way with the American criminal justice system, which he considered to be illegitimate and a sham.  He wanted merely to go to court and “admit what [he] had done.”  And so, on January 31, 2003, he did just that.

Richard Reid is now serving a life sentence at the notorious “supermax” prison in Florence, Colorado.  As I am no longer a federal public defender, I have had no contact with him since 2004.  I do think of Richard and the case,  however, whenever I go through airport security and remove my shoes — which may be his only concrete legacy.

Fast forward 12 years and I’m the mother of two middle schoolers, living in balmy North Carolina and teaching eager law students the nuts and bolts of representing poor people charged with crimes.  There are explosions set off during the Boston Marathon, and I watch in horror as three spectators are killed and 261 are grievously maimed.  I lived in the Boston area for 15 years (everywhere from Somerville and Cambridge to Jamaica Plain and Newton) and still have close friends and former colleagues there; I frantically send out texts and emails, hoping that they are safe.

Then a reporter Googles “lawyers for terrorists” and my name comes up.  He calls, and I happen to answer the phone in my office at the law school.  He wants to know what it was like to represent Reid and to work with Dzhokhar Tsarnaev’s Boston federal defender, Miriam Conrad, and he poses the oft-asked question, how can you defend those people…?

I talk and I listen, as I patiently try to explain what motivates me — and perhaps others — to do this work.  I think of 19 year old Dzhokhar, a college sophomore and Russian immigrant, who likely helped his older brother bring about the destruction and loss of life resulting from the bombings in Boston.  He is young, with a still-developing brain.  He has friends, a roommate, a Twitter account, and many of the other trappings of ordinary kids in America.  His brother is dead, his parents remain in Russia, and he is held at the federal medical center at Ft. Devens, recovering from gunshot wounds to his throat.  If Dzhokhar escapes execution, he will likely spend the remainder of his life — 70+ years — in federal prison.  Perhaps he will be housed with Reid at the supermax.

I think of the victims — particularly 8 year old Richard Martin and his bright, wide-eyed expression that represents nothing short of pure innocence.  I think of his parents and the devastation from which they will never, ever recover.

In the weeks and months (and perhaps years) to follow, we will search for answers — why did the Tsarnaevs do it?  What did they hope to accomplish?  What is a just penalty for a 19 year old who has committed such atrocities?  Attorneys Miriam Conrad, Judy Clarke and their colleagues will do yeoman’s service to save Dzhokhar’s life.  They will review discovery, file motions, interview witnesses, negotiate with the government and appear in court.  They will try to make a connection with their client, form a bond, and help him achieve the best possible resolution of the case.

It is a grueling, seemingly thankless task, but it is also a privilege to serve the role of defender — particularly that of public defender.  For some of us it is a calling, a mission.  We see the humanity in our clients, regardless of what they have done, and we do all we can to reveal that humanity to everyone else.

PHOTO CREDIT: Richard C. Reid is shown, left, in this December 2001 handout photo from the Plymouth County Jail, while Public Defender Tamar Birckhead is shown in this 2001 file photo.
AP Photo/Reuters

 

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Posted in Criminal /Juvenile Defense, Death Penalty, Sentencing, Terrorism cases, Uncategorized | 1 Comment

Telling the Whole Truth about Juvenile Incarceration Rates

Posted on March 26, 2013 by tbirckhe

While a new report finds that juvenile incarceration rates are declining in the United States, there is more to the story than just the numbers.  In this guest post, Jason Langberg, staff attorney with Legal Aid of North Carolina, examines critical questions that the media has thus far ignored.

Telling the Whole Truth about Juvenile Incarceration Rates  

By Jason Langberg

Elijah was a 11-year-old black middle school student at an alternative school. He lived in grinding poverty and was the victim of domestic violence. He had an emotional disability but his Individualized Education Program (IEP) was generic and provided him with no mental health services. Elijah became involved in the juvenile system after stealing some bicycles. He spent time in and out of therapeutic group homes; however, he was sent back to his mother’s house after state budget cuts caused a dramatic reduction in group home placements. Elijah continued getting in trouble. Eventually a juvenile court judge ordered Elijah to cooperate with a placement by his mental health treatment team, which decided to send him to a locked psychiatric residential treatment facility (PRTF).

Elijah spent three months in a detention center awaiting placement in a PRTF. He was eventually shipped off to a private PRTF located three hours from his family. At the PRTF, he didn’t have an IEP in place and received the same generic curriculum as all of the other middle school students, regardless of age or ability level. Elijah was discharged 10 months after being admitted because the corporation that ran the PRTF shut down. He’s now 14-years-old, living in a group home, and still on probation.

*******

Jamal was a 16-year-old black high school student who lived in grinding poverty. He was an incredibly smart kid, played football and had dreams of going into the Air Force. He first became involved in the juvenile system as a 15-year-old tenth grader. After spilling a drink in class, he was excused to get paper towels from the restroom. While in the hallway on the way back to class, the school went into lockdown. The assistant principal encountered Jamal and accused him of skipping class. As Jamal tried to explain the situation, the two began arguing. The situation escalated when a school resource officer (SRO) got involved, slamming Jamal’s head into a window in order to subdue him. A delinquency complaint was filed against Jamal and he was placed on probation for six months. Jamal successfully completed his probation at the beginning of eleventh grade and had a great start to his year. He was earning good grades, staying out of trouble and meeting with military recruiters to initiate the process of enlisting in the Air Force.

One afternoon, he borrowed a friend’s telephone to call his father. While on the phone with his dad, another student grabbed the phone out of Jamal’s hand and kept it. Though the phone was soon returned to its rightful owner and Jamal played absolutely no role in its theft, a school administrator suspended Jamal out-of-school for three days and the SRO filed a complaint against Jamal, alleging that he was an accessory to theft. Since Jamal was 16-years-old in North Carolina, he was automatically prosecuted in the adult criminal system. Acknowledging that he didn’t believe Jamal to be involved in phone thefts, the SRO told Jamal’s father that he would recommend to the District Attorney that Jamal be granted a deferred prosecution. When his father asked the SRO why he filed the complaint against Jamal, the officer said that there had been several phones stolen recently and the school wanted to send a message to the thieves by executing swift and harsh punishments. Thanks to the zealous advocacy of Jamal, his father and a pro bono attorney, the case was referred to teen court and ultimately dismissed. However, because the school wanted to send a message, Jamal now has a record in the adult criminal system that could come back to haunt him, and he came incredibly close to seeing his dreams of going into the Air Force destroyed.

 *******

A new report by the Annie E. Casey Foundation shows that juvenile incarceration rates in the United States, although still highest among industrialized nations, are declining nationally and in most states. Bart Lubow, Director of the Casey Foundation’s Juvenile Justice Strategy Group, attributes the national decline to three factors: 1) declining juvenile crime rates; 2) state budget cuts; and 3) a shift in thinking about the best ways to handle young people who break the law.

A declining juvenile incarceration rate is unquestionably a positive development because correctional institutions are, generally speaking, dangerous, ineffective (i.e., don’t reduce recidivism or increase public safety) and expensive. However, the juvenile incarceration rate is only one data point, which presented in isolation fails to take into account other related realities, including the real experiences of young people like Elijah and Jamal.

Although the Casey Foundation report provides good context for the declining incarceration rate, media coverage of the report and discussion of the report by policymakers have not. In order to situate the state data provided in the Casey Foundation report, media, policymakers and juvenile justice advocates should ask the following questions about their state’s policies and practices:

  • What are the actual conditions in facilities for juveniles who remain incarcerated?
  • Why are juveniles still being incarcerated?
  • Who is still being incarcerated?
  • How much is the state still spending to incarcerate juveniles?
  • How many juveniles are confined in adult facilities and mental health institutions, and therefore, not included in the Casey Foundation’s data?
  • How many juveniles are still involved in the juvenile system, which increases their likelihood of involvement in the adult criminal system and future incarceration?

Unfortunately, once policymakers and advocates answer these questions, they will likely discover that, despite recent progress, youth incarceration is still too frequent and expensive, and disproportionately affects children of color.

A focus on North Carolina reveals that by asking these questions, we can shed some light on other important realities needing reform.

According to the Casey Foundation report, in 2010 there were 849 youth in confinement in North Carolina and the rate of youth confinement in the state declined by 43% from 1997 to 2010. The declining juvenile incarceration rate in North Carolina is primarily due to budget cuts and declining juvenile crime rates; there was a 28% decline in the delinquency rate from 2006 to 2011. The state may also very well be making productive efforts when it comes to prevention and intervention, as it claims. The report has received attention in North Carolina, but the data has not been presented with necessary context.

What are the actual conditions in facilities for juveniles who remain incarcerated?

Currently, North Carolina has four juvenile prisons – called Youth Development Centers (YDCs) – located in Butner, Siler City, Kinston, and Concord. Three years ago, there were seven YDCs, but in 2011, the state closed the Samarkand and Swannanoa YDCs, and in 2012, it closed the Edgecombe YDC. In 2011, juveniles ranging from age 12 to age 20 were incarcerated in YDCs. Commitments to YDCs last indefinitely and for at least six months.

North Carolina has a long history of problems with YDCs. In 2002, the Asheville Citizen-Times published a series of articles revealing sex abuse allegations at the Swannanoa YDC, as well as claims that youth were “hog-tied” to their beds and “left alone for hours and not allowed to go to the bathroom.” In 2003, North Carolina’s State Auditor released a report finding “unsafe conditions” throughout the state’s youth corrections facilities. The Auditor’s report documented a high volume of abuse complaints, many of them substantiated, along with a failure in most facilities to properly document and investigate abuse claims. In 2010, the U.S. Department of Justice revealed in a survey that youth in North Carolina’s YDCs reported sexual victimization while incarcerated in the state’s juvenile facilities. Abuse and unsafe conditions in North Carolina’s YDC may very well be an on-going problem.

Why are juveniles still being incarcerated?

Too many youth are locked up for minor offenses, including status offenses. A status offense is an act, such as truancy and running away, that would not, under the law, be a crime if committed by an adult. Status offenses are more effectively handled with community-based services, such as family therapy and mentoring, and do not warrant confinement. According to a March 2012 presentation by the North Carolina Department of Juvenile Justice and Delinquency Prevention (now called the Division of Juvenile Justice): a) “NC averages more than 5 days in detention for status offenses”; b) “NC detains as many low-risk youth as it does high-risk youth”; c) “More medium risk youth are detained than high risk youth”. North Carolina had been out of compliance with the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), which requires that youth charged with status offenses not be placed in secure detention or correctional facilities. This violation costs the state $320,000 per year in federal funding. Fortunately, North Carolina’s Juvenile Code was revised in 2012 to preclude detention for status offenders (“undisciplined juveniles”).

Who is still being incarcerated?

Black youth are disproportionately locked up in North Carolina. In 2011, black youth were approximately 26% of the total juvenile population but were 61% of youth admitted to detention centers and 72% of youth committed to YDCs.

How much is the state still spending to incarcerate juveniles?

North Carolina still spends too much money on locking up youth. During the 2010-11 fiscal year, the Division of Juvenile Justice spent $11,327,783 on detention and $39,884,674 on YDCs. Millions more is spent on throwing 16- and 17-year-olds in jails, prisons and mental health institutions. Taxpayer money could be better spent on prevention, early intervention and community-based alternatives to confinement.

How many juveniles are confined in adult facilities and mental health institutions, and therefore, not included in the Casey Foundation’s data?

North Carolina is the only state that treats all 16- and 17-year-olds as adults when they are charged with criminal offenses and then denies them the ability to appeal for return to the juvenile system. The decline in juvenile incarceration rates doesn’t include the unknown number of 16- and 17-year-olds in North Carolina’s adult jails and prisons. It also doesn’t include youth ages 13, 14, and 15 who are in adult facilities after being transferred to and convicted in adult criminal court.

For years, North Carolina has been out of compliance with the JJDPA, which requires “sight and sound separation” (i.e., that juveniles not be detained or confined in any institution in which they have sight or sound contact with adult inmates) and “adult jail and lockup removal” (i.e., that juveniles not be detained or confined in an adult jail or lockup). The violations cost the state $640,000 per year in federal funding.

Moreover, juveniles who may otherwise be incarcerated could instead be ending up in psychiatric residential treatment facilities (PRTFs), which are locked, in-patient facilities for children and youth with mental illness and/or substance abuse issues. Some parents and/or juveniles, like Elijah and his mother, are being forced to choose between going to a PRTF or some other seemingly worse fate (e.g., charges being filed, being committed to a YDC, etc.). When they choose placement in a PRTF, Medicaid, the juvenile’s health insurance provider, or the parent is responsible for payment; consequently, the juvenile system is off the hook for footing the bill to incarcerate. Youth in PRTFs are often denied quality services and aftercare supports.

Moreover, juveniles are often held in detention for long periods of time while waiting for a PRTF bed to become available, despite the fact that detention centers are intended to be short-term facilities and are ill-equipped for long-term treatment and education services. Juveniles in PRTFs aren’t accounted for in juvenile incarceration rates. There are now 486 in-state PRTF beds, with many more kids being sent to out-of-state facilities. The number of PRTF beds in North Carolina has quadrupled since 2005.

How many juveniles are still involved in the juvenile system, which increases their likelihood of involvement in the adult criminal system and future incarceration?

Too many young people age 15 and younger are still involved the juvenile system, which lacks the resources necessary to adequately supervise, treat and rehabilitate all of the youth it serves. Public records show that during 2010, there were over 10,000 juveniles on probation, nearly 3,500 youth on some type of supervision, 744 youth committed, and over 7,700 youth on a diversion plan or contract for one day or more. In 2011, there were 6,380 admissions into juvenile jails – called detention centers.

The school-to-prison pipeline contributes to the huge flow of young people, like Jamal, into the juvenile and criminal systems. For example, during 2011-12, North Carolina public school students missed 791,442 school days as a result of suspension, and thus, were more likely to engage in delinquent and criminal activity. In 2011, 43% of all delinquency complaints were school-based. Additionally, probation orders often contain boilerplate language requiring juveniles to attend school regularly; therefore, juveniles on probation who are suspended are found to have violated suspension and may be sent to detention.

North Carolina would be well-served to raise the age of juvenile court jurisdiction and limit transfers of juveniles to adult criminal court. For all of the juvenile systems flaws, it is still far better for young people than the adult criminal system, as well as better for public safety and more cost effective in the long-term.

Additionally, all states would benefit from adopting some of the Casey Foundation’s recommended best practices for reforming juvenile corrections:

  • Limit eligibility for correctional placements to youth who have committed serious offenses and posed a clear and demonstrable risk to public safety;
  • Invest in a broad continuum of high-quality services, supervision programs and dispositional options to supervise and treat youthful offenders in their home communities;
  • Adopt policies, practices and procedures to limit unnecessary commitments and reduce confinement populations (e.g., implement detention reform, reform school discipline policies, make better use of diversion, enhance legal representation and advocacy, reduce correctional placements resulting from violations of probation, and limit lengths of stay in correctional facilities and other residential placements); and
  • Improve data collection and publication, including data on recidivism, success after release and conditions of confinement.

Jason Langberg is a Staff Attorney and Director of the Push Out Prevention Project at Advocates for Children’s Services, a statewide project of Legal Aid of North Carolina. He can be contacted at JasonL@LegalAidNC.org.

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Posted in Conditions of Confinement, Delinquency, Juveniles, North Carolina, Race, Class, Ethnicity, Reports, School to Prison Pipeline, State Laws | Leave a comment

Steubenville: The Names Change, but the Story Stays the Same

Posted on March 23, 2013 by tbirckhe

“My life is over. No one is going to want me now.”

These were the words of 16-year-old Ma’lik Richmond after a judge adjudicated him delinquent of rape earlier this week in juvenile court in Steubenville, Ohio.

Hyperbole? Perhaps. But it’s also an age-appropriate response to a well-worn scenario that’s continuing to play out in the media as well as in the homes of this Rust Belt city of 18,000.

The facts are familiar. A teenage girl—vulnerable and the object of ridicule—drinks too much. A group of boys, including one she believed would protect her, instead take advantage of her. She wakes up unclothed and has little memory of what occurred. The rumor mill kicks in. She is humiliated and blamed. There is evidence of a cover-up, talk of conspiracies and conflicts of interest. The young men, celebrated high school athletes with promising futures, are publicly tried, convicted and ultimately jailed. Months later, after the media circus ends, the teenagers and their families are left behind—far behind—to try to pick up the pieces.

We have been here before. Consider the nearly identical cases that befell the towns of Glen Ridge, New Jersey; Richmond, California; and Cleveland, Texas.

The story has been updated to fit the times. Now there are text messages, social media, online video, and the sex offender registry. Technology has indeed advanced—almost beyond our powers of comprehension—but the narrative never changes. Why is it that our system of justice perpetually chews up and spits out rape victims, while our sons continue to be empowered through the abuse and defilement of their female peers?

As a society we chip away at the edges of these problems, but the pathology remains. We criminalize underage drinking. We demonize adolescent sexuality. We label defendants and assess culpability. Yet, who is served by such responses?

A girl is left profoundly damaged, not only by the crime itself but by the harsh scrutiny and ostracism of her community. As prosecutor Marianna Hemmeter said, “[The juveniles] treated her like a toy.” In a culture permeated by images that objectify women’s bodies and characterized by the commodification of sex, this is hardly surprising. We are a society that is still struggling to define the act of rape and to draw a clear line between sex and violence in ways that are commonly accepted and understood. Recent research from the Centers for Disease Control reveals that nearly twelve percent of high school girls have been sexually assaulted; over forty percent of female sexual assault victims were raped before age 18.

Meanwhile, boys are punished, put in cages and stigmatized, but what lessons do they learn? Spending a year or two warehoused in a juvenile prison is unlikely to help. Data out of Ohio shows that low-risk sex offenders who received community-based treatment, designed to provide more effective rehabilitation and save money, were less likely to recidivate than those who were incarcerated with a general population of high risk young offenders.

The narrative, however, remains the same. The victim’s mother contends that Ma’lik Richmond and Trent Mays, his 17-year-old codefendant, lack a moral code. Judge Thomas Lipps asserts that they will learn from this experience and change for the better. Ohio Attorney General Mike DeWine vows to continue the investigation, convene a grand jury, and hold others responsible—parents, coaches, and those who stood by and did nothing. It is likely that the victim must testify again, reliving the fear that she felt upon waking up naked in a strange house, not knowing what to think or what had happened.

It is, despite our best intentions, a tragedy. The lives of these young people may not be over, but their innocence has been forever extinguished. Today it is in Steubenville. Tomorrow is it in my town … or in yours.

This op-ed also appeared at The Good Men Project and the Juvenile Justice Information Exchange.  

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Posted in Delinquency, Education, Gender, Juvenile Court, Juveniles, Media, Sentencing | 1 Comment

From Prison to Juvenile Justice Lawyer

Posted on March 11, 2013 by tbirckhe

I am a sucker for a feel-good story, and this is the best one I’ve come across in a long time.  It’s from the San Francisco Chronicle, written by Meredith May, and here’s how it opens:

A group of incarcerated teenage boys at the O.H.  Close Youth Correctional Facility in Stockton slouch in plastic orange  chairs, arms crossed, scowling at their tie-clad visitor, whose lecture will eat  into their TV time.

Francis  “Frankie” Guzman, a 32-year-old lawyer and recipient of a prestigious Soros  Justice Fellowship to advocate for juvenile justice, gets right to  the point.

“How many of you read ‘Lord of the Flies’? It’s like that in here, right? But  which one of you is leading? Do you really want to follow that guy?”

Guzman speaks like he knows what he’s talking about, and the boys, ages 14 to  17, take notice. There’s a perceptible shift as they sit up a  little straighter.

Guzman knows exactly what it’s like to wear khaki pants every day and sleep  in a cell. When he was 15, he and a friend stole a car and robbed a liquor store  at gunpoint in Southern California, resulting in six years behind bars inside  the California  Youth Authority.

It was the culmination of a childhood defined by tragedy in East Oxnard, an  enclave of farmworkers and day laborers where gangs, family and community had  blended together over the generations, blurring the lines between loyalty to the  street and to the self.

“Kids don’t make smart decisions,” Guzman said. “But ultimately, you are not  the worst thing you have done. The weakest thing I did made me the strongest  person I am today.”

Read the rest of the story here.

Photo: Francis “Frankie” Guzman (right) talks with inmate Chad Scott at the O.H. Close  Youth Correctional Facility in Stockton. Guzman, who was sentenced to 15 years  at age 15, has become an advocate for juvenile justice. Photo: Max  Whittaker/Prime, Special To The Chronicle

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Posted in Juveniles, Law Schools, Law Students, Legal Profession, Rehabilitation, Sentencing, Training | 1 Comment

School Policing Reform: Much Needed and Long Overdue

Posted on March 10, 2013 by tbirckhe

Law enforcement officers have become commonplace in public schools throughout the United States over the last two decades. However, law enforcement officers who are permanently assigned to schools – called school resource officers (SROs) – can have negative impacts on students and the educational environment. Using North Carolina as a model, Jason Langberg, an education and juvenile justice advocate, makes the case in this guest post that school districts lack adequate information, regulations, and accountability for SROs. Langberg highlights school districts around the country that are beginning to reform their school policing policies and practices and can serve as models for districts in North Carolina and beyond.

School Policing Reform

By Jason Langberg

Following the “tough on crime” movement that started during the 1980s and a series of high profile school shootings during the 1990s, North Carolina joined most other states around the country in passing zero tolerance policies and deploying more law enforcement officers to patrol public schools on a full-time basis – called school resource officers (SROs). From 1996-97 to 2008-09, the number of SROs in North Carolina increased by over 249% – from 243 to 849. Many school districts also began employing their own security staff and contracting to have private security guards.

However, there’s little evidence to support the notion that SROs make schools safer. In fact, research suggests that an SRO presence can only increase arrests and court referrals for minor misconduct (i.e., normal adolescent misbehavior), and consequently the collateral consequences of court-involvement for youth (e.g., deportation, ineligibility for financial aid, prohibition from participation in high school athletics, eviction, and reduced employment opportunities). During 2011, 43% of all delinquency complaints in North Carolina were school-based. Thousands of students became court-involved for minor misbehavior that should’ve been treated at “teachable moments.” During the 2010-11 state fiscal year, there were over 2,000 school-based delinquency complaints filed against students age 15 and younger for disorderly conduct, and over 1,000 for truancy. Moreover, Black students were disproportionately referred to court. They represented 26.8% of North Carolina public school students, but were subjected to 46.2% of school-based delinquency complaints.

To make matters worse, North Carolina is the only state that treats all 16- and 17-year-olds as adults when they are charged with criminal offenses and then denies them the possibility of return to the juvenile system. Thus, students age 16 and older who are arrested or referred to court by SROs directly enter into the adult criminal system.

Additionally, nearly all SROs carry pepper spray and/or a TASER, which can seriously injure students. Last year, the Town of Cary, North Carolina, and the Wake County (N.C.) Board of Education settled a lawsuit for $12,000 involving a student with disabilities whose lung collapsed after he was shot with a TASER in the school nurse’s office. In 2010, after a Raleigh, North Carolina, police officer used pepper spray in a crowded cafeteria, 16 students were treated for injuries; four of them were taken to the hospital.

SROs also divert valuable resources. For example, each of the approximately 60 SROs in the Wake County Public School System (WCPSS) costs taxpayers over $80,000 per year. Funding for SROs could be used for more effective violence prevention efforts that support the social, emotional, and behavioral needs of students.

Finally, SROs can damage the learning environment by contributing to an atmosphere of intimidation, hostility, suspicion, and control, and by undermining the authority of teachers and administrators.

Despite their obsession with “accountability” for students, teachers, and schools, state and local policymakers in North Carolina have taken an “ignorance is bliss” approach to school policing. No data about SROs has been published since 2009. Currently, the only school policing data that’s regularly maintained is data on school-based delinquency complaints, which is collected by the North Carolina Division of Juvenile Justice. Neither the state nor most school districts maintain data on school-based arrests, school-based adult court referrals (i.e., complaints against students age 16 and older), or the use of force by SROs. Moreover, there has never been a study of the impact of SROs in North Carolina.

In addition to failing to collect and publish data, most school districts also lack adequate cooperative agreements or memorandums of understanding (MOU) with the law enforcement agencies providing SRO coverage. Specifically, the agreements and MOU lack the following:

  • detailed training requirements (e.g., training in adolescent development and psychology, working with students who have disabilities, cultural competency, safe restraint techniques, de-escalation, students’ rights, and utilizing community resources and alternatives to court referrals);
  • limitations on arrests and court referrals (e.g., no arrests or referrals for minor offenses or manifestations of students’ disabilities);
  • limitations on the use of force (e.g., no use of handcuffs, pepper spray, and TASERs unless there’s an imminent threat of seriously bodily injury); and
  • complaint procedures for students, parents, and staff to use when SROs violate the agreements or MOU, or otherwise act inappropriately.

Models for Reform

School districts around the country that faced similar problems are establishing models for North Carolina and other states to follow.

In 2004, in Clayton County, Georgia, a cooperative agreement was developed that ensures misdemeanor delinquent acts (e.g., fighting, disrupting school, disorderly conduct, most obstruction of police, and most criminal trespass) do not result in the filing of a complaint, unless the student commits a third or subsequent similar offense during the school year, and the principal conducts a review of the student’s behavior plan. Pursuant to the agreement, youth first receive warnings and after a second offense, they’re referred to mediation or school conflict training programs. Elementary school students can’t be referred to law enforcement for “misdemeanor delinquent acts” at all.

The protocol was implemented after Judge Steven Teske, a juvenile court judge in the county, recognized that referrals to law enforcement skyrocketed as soon as SROs were stationed at local schools. Judge Teske spearheaded a team of people from the juvenile justice system, law enforcement, the local school system, and social services groups to create the agreement. The team reviewed data, solicited input, and educated stakeholders on best practices. The team also created a multidisciplinary panel to assess the needs of students at risk for referral to law enforcement, and to refer the students to services outside of the school, such as family therapy, cognitive behavioral therapy, and wrap-around services. After the implementation of the agreement, rates of misbehavior, dangerous weapons on campus, and school-based court referrals decreased, and graduation rates increased. In 2010, Judge Brian Huff led efforts to implement a similar protocol in Jefferson County, Alabama.

Last year, in response to pressure from the Black Organizing Project, the ACLU of Northern California, and Public Counsel, the Oakland School Police Department passed a complaints process and reports policy. There are multiple ways for citizens to file complaints, including online, via mail, and in-person. Anonymous complaints are permitted. Investigations must be conducted and written reports to complaints generally must be made within 45 days. Complainants can appeal reports to the superintendent, who must investigate the appeal and issue written findings. Complainants may then appeal to the Board of Education, which must also issue written findings. Forms were created in six languages for the community to report officers behaving inappropriately, to report officers who handled situations exceptionally well, and to make general recommendations. Forms and flyers explaining the process must be available in every school in the district. Finally, the Office of the Chief of Police must prepare a detailed, semi-annual complaint statistical summary.

Last month, the Denver Public Schools and the Denver Police Department entered into a new agreement about SROs. The new agreement arose out of concerns that police were being used to handle minor disciplinary matters and pressure from Padres y Jóvenes Unidos, a people of color-led grassroots organization working for educational excellence, racial justice for youth, immigration rights, and healthcare for all. The agreement makes a distinction between disciplinary issues and crimes, and requires SROs to treat them differently. Specifically, SROs are supposed to arrest or issue citations only in cases when it is absolutely necessary; otherwise, disciplinary problems should be left to educators. The agreement also accomplished the following:

  • provides guidelines for reporting ticketing and arrests to principals and parents;
  • requires SROs to meet with community stakeholders at least once per semester;
  • advises officers on how to deal with students who have disabilities;
  • sets annual training requirements for officers working in schools (e.g., training in adolescent development, cultural competency, practices proven to improve school climate, and the creation of safe spaces for LGBTQ students); and
  • emphasizes restorative justice approaches.

Initiating Reforms in North Carolina

There are signs that similar reforms may be on the horizon for North Carolina. In November 2010, Judge Huff spoke in Raleigh, and Judge Teske has spoken in North Carolina on multiple occasions. In August 2012, Strategies for Youth (SFY) provided training for SROs in Charlotte. SFY is a national organization that seeks to improve police/youth interactions, to advance the cause of training public safety officers in the science of child and youth development and mental health, and to support communities partnering to promote strong police/youth relationships.

According to Lisa Thurau, the Founder and Executive Director of SFY:

SFY was invited to provide the Charlotte Mecklenburg Police Department (CMPD) SROs a two-day intensive Policing the Teen Brain in School as part of a five-day training of SROs. SFY first conducted interviews with SROs and command staff to understand the challenges SROs perceive and the skills they seek to interact effectively with youth. SFY reviewed data on the reasons for arrests and spoke with youth advocates who represent youth in school-based arrests…SFY customized the training it offered based on this assessment. Charlotte-Mecklenburg Schools’ SROs were also invited, and together 65 officers were trained.

The first day of the training focused on the nature of teen brains and was presented by Dr. Stacy Drury, a child and adolescent psychiatrist, who used lecture, slides, and films to describe normative adolescent development, how to recognize and respond effectively to compromised youth, youth who are chronically exposed to trauma, and youth who have receptive and expressive disabilities. Officers learned that youth perceive, process, and respond differently. They also learned to watch their BLT, SFY’s mnemonic device to help officers understand both youth and their own behavior, language, and timing, and how it affects interactions. At the end of the first day, a group of youth participated in skits and was “interviewed” by the psychiatrist as to why they will or won’t cooperate with a police officer.

The second day of training featured “nurture” facts, including demographic and cultural factors that influence youth interactions with peers and authority, juvenile law for law enforcement, as well as an interactive session in which officers identify what responses work best for youth who offend, including which restorative justice practices and diversion efforts they view most effective.

The officers’ response to the training evaluation was overwhelmingly positive. Today, Sergeant David Schwob, of the Charlotte-Mecklenburg Police Department, reports that their data indicate a 25% reduction in arrests.

Unfortunately, policy reforms like the ones in Clayton County, Oakland, and Denver have not been initiated anywhere in North Carolina. One can only surmise possible reasons for the lack of progress:

  • austerity and resource starvation;
  • misinformation about the frequency of serious acts of school violence;
  • ignorance or indifference to the impacts of SROs;
  • reluctance to create standards that may actually be enforceable and create accountability;
  • fear of appearing “soft on crime”;
  • a view that some children are “bad apples” who need to be removed from the students “who want to learn”; and
  • policymakers who aren’t from low-wealth communities or communities of color that are most impacted by the misconduct of law enforcement officers, and thus, feel unaffected and comfortable with the status quo.

As the reactionary and misguided push for more SROs gains momentum in the wake of the tragedy at Sandy Hook Elementary School, it’s more important than ever that school districts have cooperative agreements or MOU in place to ensure that SROs are well-trained, accountable, and properly limited. Otherwise, the school-to-prison pipeline will grow even larger. School district leaders owe it to students to start paying more attention to the impact of SROs and how to improve school policing. They can start by studying the reforms taking place across the country.

Thoughts, comments?  Please share them here or contact Jason at langberg@gmail.com.

 

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Posted in Education, Guest Blogger, North Carolina, School to Prison Pipeline, Uncategorized | Leave a comment

New Article on the Role of Counsel in the Sentencing Phase of a Juvenile Delinquency Case

Posted on March 8, 2013 by tbirckhe

It’s always struck me as ironic that the criminal defense of adults is considered to be more “advanced” and “complicated” than the defense of young people in juvenile court.  Having practiced in both realms, I have personally found representing children and teens in the delinquency setting to require a wider range of skills and knowledge than defending adults – one must be conversant in such areas as adolescent development, education law and the child welfare system, to name just a few.

I have experienced this divide most dramatically, perhaps, in the area of dispositional (or “sentencing”) advocacy.  A juvenile defender must work closely with her young client to develop a theory of disposition and a plan that is consistent with the juvenile’s desired outcome (rather than what she believes is in client’s “best interest”).  In order to do this, she must be familiar with the full range of available disposition alternatives, the short- and long-term consequences of dispositions, and potential out-of-home placement options, including group homes, foster care, resitdential programs, and treatment facilities.  This can be quite challenging, particularly given that the client’s parent may be at odds with the child’s wishes and may also be a victim or witness in the case.

All of these issues are clearly and insightfully explored in a new article by my colleague, Professor Barbara Fedders, in the Children’s Legal Rights Journal and available for free download via SSRN.  Here is the abstract:

What is the role of counsel in a juvenile delinquency case? This question has vexed and divided scholars and practitioners in the forty-plus years since the Supreme Court first granted the right to counsel to juveniles. The early scholarly view in favor of best-interest representation has now been supplanted by one that supports expressed-interest lawyering. The scholarly near-consensus has not always reached juvenile defenders on the ground, however. While commentators have previously explored the reasons for the gulf between theory and practice in juvenile court with respect to role of counsel, this article is the first to focus on the sentencing phase. Because juvenile sentences have grown more punitive over time, such a focus is necessary and timely. Youth should be able to fully confide in their lawyers and know what to expect from them in return. At the same time, lawyers need clear and consistent guidance on this important ethical issue.

After providing a brief introduction to the features and changed purposes of juvenile sentencing, the Article provides relevant rules, standards, statutes, and appellate cases on the role of counsel, nearly all of which support expressed-interest lawyering at sentencing. After providing a descriptive account of the ways in which lawyers in fact practice at sentencing, the Article argues that lawyers must allow their clients to direct representation throughout the case. The Article concludes with recommendations for policy changes that will enhance the likelihood that attorneys will fulfill the role here described.

What are your thoughts and experiences with the sentencing phase of juvenile delinquency court?  Please share in the comments.

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Posted in Criminal /Juvenile Defense, Delinquency, Juvenile Court, Juveniles, Legal Scholarship, Sentencing | 2 Comments

MacArthur Grant for Northwestern Law’s Children and Family Justice Center

Posted on March 1, 2013 by tbirckhe

Legal education is under attack — and rightly so.  Corporate law firms are downsizing.  State budgets are shrinking.  Non-profits are shutting their doors, and student debt is exploding.  In this climate, those of us who are engaged in training our next generation’s lawyers must rethink our mission — how to prepare our students for a profession that will be leaner (and likely meaner) than ever before?  How to ensure that we are not further glutting an already-bursting pipeline?

Ten years ago, nine percent of all college graduates applied to law school.  Today the figure is a mere three percent.  Law school applications are down — WAY down — across the country — from the Ivies to the top 30 to the fourth tier J.D. mills.

I am clearly biased, but I am proud of what my own law school — one of the few truly public law schools left standing — has done and continues to do to buck the trend.  Dean Jack Boger, is committed to experiential education.  The University of North Carolina at Chapel Hill has a vibrant clinical legal program (of which I am proud to be a part) that has expanded in recent years.  Clinical faculty specialize in civil litigation, immigration law, domestic violence representation, non-profit and community development law, consumer finance and foreclosures, and juvenile justice. We have an impressive externship program with over 100 placements each year with federal and state judges, lawyers from government agencies, public interest groups and corporate counsel offices.  We have a top-notch writing, research, and advocacy program that begins training our students for practice during their first semester and continues throughout their three years with academic-enrichment, bar-preparation and wellness offerings.  And, our faculty has developed an innovative transition-to-practice curriculum that combines theory with skills to ensure that our graduates are ready to effectively represent their clients with rigor, commitment and compassion.

It is against this background that I was thrilled (and admittedly envious) to learn that the fine folks at Northwestern Law’s Children and Family Justice Center (CFJC) (Director Julie Biehl is pictured with staff and students on left) had received the equivalent of the MacArthur Genius Award for institutions. The $750K award will allow them to establish an endowment and implement a strategic communications and development plan.  In other words, their organization — which trains law students to represent children, adolescents and their families through direct legal representation, policy advocacy and law reform — will now have a measure of security over the coming decade.

Please check out this three minute MacArthur video celebrating CFJC.  It highlights the vitally important work of the faculty and students at Northwestern as well as the power of clinical legal education to effect change – both for individual clients and the broader community.

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Kids, Cops, and Confessions: Inside the Interrogation Room

Posted on February 10, 2013 by tbirckhe

During my ten years practicing in juvenile delinquency court, I’ve been struck by the overwhelming number of cases in which youth readily confess to police — often school resource officers.  Sophisticated interrogation techniques are usually not required.  The officer need only get the kid alone in a hallway, a police cruiser, or school conference room, and the youth complies — giving long answers to questions, trying to rationalize or explain away their behavior but succeeding only in implicating themselves.  The interviews are usually quite brief — thirty minutes or less.  On the rare occasion when a parent is present, it makes no difference — they allow full questioning of their child and rarely intervene.  And once the police have a confession, there’s usually a plea (or “admission”), rather than a trial.  The result is a criminal system that is more inquisitorial than adversarial, which is not what I would call “justice.”

Professor Barry Feld (Minnesota) has a new book out from NYU Press, Kids, Cops, and Confessions: Inside the Interrogation Room, that is a vital resource for anyone who cares about what happens to kids when they are questioned by police.  Professor Feld analyzes quantitative and qualitative data, including tapes, transcripts, police reports, juvenile court files, and dispositional reports from over 300 cases in which 16 and 17-year-olds were charged with felonies in one of four counties in Minnesota.  In each of these cases, the files included either an interrogation tape or transcript or the juvenile had invoked Miranda rights.  Professor Feld also conducted extensive interviews with police, prosecutors, defense lawyers, and juvenile court judges to learn their views about the interrogation of juveniles.

The result is a groundbreaking study that vividly illustrates the particular vulnerability of minors, providing further evidence that the protections we provide adults during interrogation do not begin to suffice for teenagers.  Like all of Professor Feld’s books and articles, this one is an important addition to my juvenile justice library, and I encourage you to check it out.

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Posted in Books, Interrogation, Juvenile Court, Juveniles, Legal Scholarship | 1 Comment

“Children are Different:” Constitutional Values and Justice Policy

Posted on January 23, 2013 by tbirckhe

The title of this post is the title of a notable new law review essay by Professor Elizabeth Scott of Columbia Law School, which is forthcoming in the Ohio State Journal of Criminal Law.  The article is posted and available via SSRN.

Here is the abstract:

This essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles’ non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing that the Court has embraced a developmental model of youth crime regulation and elevated this approach to one that is grounded in constitutional values and principles. This approach represents a forceful repudiation of the punitive law reforms of the late 20th century, when the relevance of adolescents’ developmental immaturity to justice policy was either ignored or rejected. The opinions offer four key lessons for lawmakers. The first is that juvenile offenders are different from and less culpable than adults and should usually be subject to more lenient criminal sanctions. The second lesson is that decisions to subject juveniles to adult prosecution and punishment should be “unusual” and individualized — made by a judge in a transfer hearing and not by categorical legislative waiver. The third lesson is that sanctions should focus on maximizing young offenders’ potential for reform and the fourth is that developmental science can guide and inform juvenile crime regulation in useful ways. These four lessons, formulated by our preeminent legal institution and embodying constitutional values, are likely to have a profound influence on the future direction of youth crime regulation.

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Posted in Adult Court, Analysis, Legal Scholarship, Miller v. Alabama, Sentencing, U.S. Supreme Court | 3 Comments

Public-Private Partnerships: The Power to Make a Difference for Youth, Families and Communities

Posted on January 22, 2013 by tbirckhe

 

 

 

The title of this post is the title of the Florida Juvenile Justice Association’s 2013 Adolescent Conference planned for February 19-20, 2013, in Orlando, Florida.

The conference schedule features two dynamic keynote speakers, a wide choice of among 30 workshops, and post-conference comprehensive trainings on domestic minor sex trafficking and building a movement for women and girls in the juvenile justice system.

Workshops include such topics as the impact of generational poverty; restorative justice; interventions for at-risk female gang members; peer mentorship; and bridging the gap for young male offenders without fathers.

The post-conference one-day training on girls in the system is sponsored by The Children’s Campaign and The Delores Barr Weaver Policy Center, whose President-CEO is Lawanda Ravoira.

It sounds like an amazing conference.  Here are all the details, including schedule, list of attendees, fees and registration.

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