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VOL. 6 | NO. 5 | Saturday, January 26, 2013

Due Process

Specifics of sweeping reform at local Juvenile Court become clearer

By Bill Dries

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One at a time. That is the most noticeable change so far at Memphis-Shelby County Juvenile Court as a result of a landmark settlement in November with the U.S. Justice Department. The children before the court come before the court magistrates one at a time. No more groups of juvenile defendants waiting for their case to come up as other cases are being heard.

Magistrate Sheldon McCall hears a case in Juvenile Court, where offenders now come before the court magistrates one at a time instead of as groups of juvenile defendants who must wait for their case to come up while other cases are being heard.

(Photo: Lance Murphey)

And at two recent hearings to determine if a juvenile should be transferred for trial as an adult, magistrates denied the request by the Shelby County District Attorney General’s office after victims of the juveniles said they did not believe they should be tried as adults.

Juvenile Court chief administrative officer Larry Scroggs believes the results of the two hearings are more about the particulars of the cases than the coming sea change at the court, “although I do think obviously there has been increased attention to procedures for transfer,” he said.

The transfers that send a child into the adult criminal justice system were a particular focus of a four-year Justice Department study. Attorneys for the federal government found black juveniles were disproportionately transferred for trial as adults and disproportionately given harsher punishment than white juveniles charged with the same offenses.

They also questioned whether some magistrates and court officials knew basic legal principles of due process.

The 42-page agreement, signed a month later, to remedy the numerous problems centered on the due process rights of juveniles is unprecedented.

The agreement signed by Shelby County Mayor Mark Luttrell and Juvenile Court Judge Curtis Person Jr. avoids a federal court lawsuit by the Justice Department.

“This is the first time the DOJ has exercised federal authority to protect the constitutional rights of children, but it surely won’t be the last,” said Shelby County public defender Stephen Bush. “The legal action here is just the latest step in a sweeping reform effort that is bringing significant, important reform to juvenile justice systems across the nation. The entire country will be watching how we do this.”

This is the first time the Department of Justice has exercised federal authority to protect the constitutional rights of children, but it surely won’t be the last.”

– Stephen Bush 
Shelby County public defender

In the first month, the court must specifically bar, as a matter of policy, the “adverse use of information obtained from a child during his or her probation conference.” Prosecutors cannot call a child as a witness during that child’s hearing, including transfer hearings. The Juvenile Court magistrates must also tell any child who wants to testify at those hearings that they cannot be forced to testify.

Within 90 days Juvenile Court must specifically write into its rules a requirement that any child arrested without a warrant gets a probable cause hearing within 48 hours of being arrested. No child can be held for longer than 48 hours without such a hearing. Attorneys representing the children must get an affidavit of complaint from arresting officers before detention hearings.

Within six months, Juvenile Court magistrates will get a “bench card,” or a checklist of “substantive issues they need to cover during hearings” that comply with due process guarantees. There will be bench cards for six possible juvenile proceedings.

All three of the positions that involve ensuring the agreement is met, two monitors and a facility consultant, are to be paid for by Shelby County government and include separate monitors for due process procedures and equal protection standards.

The first visits by the monitors will be in April and they cost $25,000 to $30,000, each coming with five days of work and evaluation. The expenses for the rest of the current fiscal year, which ends June 30, can be handled within the current Juvenile Court budget of roughly $15 million, Scroggs said.

The total cost of the reforms will be across the court’s budget and the total county government budget as well as state funding. The court’s budget includes public and private grant money as well as state funding but also county government funding as well.

Shelby County Commission chairman Mike Ritz said his discussions with all of those involved puts the additional hit to the county budget at several millions of dollars a year.

“We were told $4.5 million to $6.5 million a year for the rest of our lives. That’s a lot of money on the tax rate,” Ritz said in December.

Scroggs is now taking the first dollar figures beyond this fiscal year for the effort to Shelby County Mayor Mark Luttrell, county chief administrative officer Harvey Kennedy and county finance director Mike Swift.

The court’s budget in the new fiscal year that begins July 1 will bear the cost of 24/7 medical and mental health care for juveniles even if it is part of a consolidated contract that includes the County Corrections Center and the Criminal Justice Center jail.

Vendors bidding on the total package or parts of it visited the court earlier this month. In the next year, another critical piece of the settlement is being built “starting from scratch and building from the ground up,” according to Bush.

It is a juvenile public defender office within Bush’s office. Separating appointed counsel for juveniles from the court is one of the biggest changes to come from the settlement.

At two recent hearings to determine if a juvenile should be transferred for trial as an adult, magistrates denied the request by the Shelby County District Attorney General’s office after victims of the juveniles said they did not believe they should be tried as adults. Juvenile Court chief administrative officer Larry Scroggs believes the results of the two hearings are more about the cases than the coming change at the court, “although I do think obviously there has been increased attention to procedures for transfer,” he said.

(Photo: Lance Murphey)

It also goes to one of the biggest due process problems cited by the Justice Department, whose attorneys repeatedly complained that attorneys for juveniles were not the zealous advocates for their clients that they should have been. Too often they cooperated with the court even when it wasn’t in the best interest of the children they represented, the report found.

Bush has been adamant that juvenile defense law is not simply adult criminal defense law for much younger defendants. It requires different training and professional development and deals with different issues. New national juvenile defense practice standards are also on the way.

“This is really the cutting edge of juvenile defender practice and there is considerable enthusiasm for the challenge within the defender community,” Bush said.

It has been 40 years since defenders worked in Juvenile Court.

“The logistics involved are unprecedented in both the scope of services required by the remedial agreement and the speed with which they must be implemented,” he added. “The remedial agreement makes it clear that the excessive caseloads and limited resources that plague most public defender systems just won’t cut it when it comes to the representation of children in Shelby County. Drive-by, bargain justice just won’t do.”

The panel used now to select attorneys for indigent juveniles isn’t going away either. It will be overhauled but will still be necessary because there will be instances including multiple juvenile defendants in a single case when the defenders office can only represent one client.

The fiscal note for the defender office expansion will be in the county government budget. The public defender is appointed by the county mayor.

“That’s the mystery right now in determining what that cost will be,” Scroggs said of the overall cost across several local government budgets.

Scroggs, Luttrell and Bush are still talking to the Haslam administration about more state funding for the defender piece. Bush said there is a “significant disparity” already in how adult defender services in Shelby and Davidson counties are funded by the state.

The funding is based on a state formula from 1993 that is a percentage based on how much of the caseload an office has related to the defender caseload across the state. In 1993, the percentage for Shelby County was 15 percent. Shelby County currently has 18 percent of the state volume. But the percentage of state funding for Bush’s office has dropped to 8 percent.

“Without this funding fix, the situation for Shelby County is dire,” Bush said. “The present system is unsustainable, even before the challenge of juvenile defense is considered.”

Meanwhile, the shift in the mechanics of juvenile justice begins as a larger philosophical shift is under way nationally.

“We want kids to avoid the juvenile justice system,” said Mark Soler, executive director of the Center for Children’s Law and Policy. Soler is working on the Juvenile Detention Alternatives Initiatives (JDAI), part of the Casey Foundation effort that is separate from and predates the U.S. Justice Department settlement.

Before the Justice Department findings, which also involved detention, the court had dramatically reduced the number of children in detention on a given day to 45-60.

The first JDAI meeting in Memphis is Jan. 24 and Soler said the standard in the effort is detention only for children who are clearly a danger to themselves and others and children who are a flight risk.

“There clearly are kids who need to be in the juvenile justice system and need to be in secure detention,” Soler added. “But the more deeply a child penetrates into the juvenile justice system, the more likely they are going to penetrate it again.”

The Casey Foundation initiative is also looking at how long children stay in juvenile detention. And Soler said a short stay raises questions about whether the child needed to go to detention in the first place. He also said programs that send juveniles in detention to alternative schools raise the same question. To him, the least disruptive and damaging path is to minimize the time in detention.

The alternatives being explored include more “shelter beds” at Porter Leath as well as an “evening reporting center” that is a structured and more heavily supervised version of after-school care.

Soler said data from across the country suggest there is no such thing as a “scared straight” benefit from even a brief stay in juvenile detention.

“If a child is arrested and locked up, they begin to think of themselves as somebody who is a convict, as somebody who is a criminal who is locked up in the jail for kids,” he said. “They may not try so hard to stay out of that because they can say it. They can say, ‘Well I can handle this. It’s not the worst thing in the world. I don’t like it but I can live through it.’ We don’t want kids to make that decision.”

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