Less than 24 hours before the U.S. Justice Department and Memphis-Shelby County Juvenile Court leaders announced a detailed set of reforms and safeguards to guarantee changes in the court, Shelby County Commissioners met behind closed doors with those involved in the local side of the deal.
The parameters of the agreement had been hinted at pretty specifically in the months since the Civil Rights Division of the Justice Department released a scathing report on due process practices at the court.
Justice Department attorneys investigating the court since 2009 also emphasized their finding in April of disproportionately harsher treatment, punishment and transfers to be tried as adults for African-American juveniles.
But when the settlement terms were announced the next day, County Commission chairman Mike Ritz was surprised.
“They didn’t tell us the agreement was signed when they briefed us. I’m a little disappointed,” he said. “The other commissioners didn’t hear them say it was signed either.”
The 42-page agreement signed Dec. 17 sets up a structure of two monitors and a facility consultant to oversee very specific terms and timelines for meeting standards over several years.
All three of the positions are to be paid for by Shelby County government and include separate monitors for due process procedures and another for equal protection standards.
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 juvenile proceedings.
Within a year, the structure for the appointment of defense attorneys independent of the court must be in place.
That includes a separate juvenile defenders section within the Shelby County Public Defenders office as well as a panel system for the selection of other attorneys when there is a conflict for the defenders office or where the workload requirements set for the public defenders office unit are at capacity.
Through either system, the goal within a year is to have defense counsel appointed for children who cannot afford to hire an attorney as soon as they are booked into the juvenile system. And unless otherwise stated, the court is to assume that juvenile defendants cannot afford to hire their own attorneys.
Juvenile court officials have said the bulk of the children before the court cannot afford legal counsel and must have appointed counsel.
The court has used a panel to appoint attorneys that the Justice Department specifically criticized for being tied to the court. And the April report cited instances where those appointed attorneys weren’t as zealous in advocating for clients as they should have been because of the connection to the court.
Ritz said changing how defense attorneys are appointed will be costly and that is where the commission’s support will be needed.
“We’re going to have to pay for it. If the commissioners don’t support it and can’t embrace it, I don’t think they are going to want to fund it,” he said. “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.”
Shelby County Mayor Mark Luttrell, who signed the agreement, as well as Ritz have been talking about securing more state funding for the change. Ritz is not very optimistic and said one solution might be for county government to stop funding the defenders office, which could make the office and its funding a state responsibility.
“I raised the issue as to why we wouldn’t just go like most of the other counties in this state and let the state take over the public defenders office. … They don’t even come close to fully paying for it,” Ritz said. “The (defenders) are going to have to be specially trained and separately hired. This may just be a good time to just forget about the public defender and let the state take it over.”
Within the next 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.”
And prosecutors cannot call a child as a witness during the child’s hearing including transfer hearings.
The Juvenile Court magistrates would hold those hearings 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.