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VOL. 127 | NO. 94 | Monday, May 14, 2012

‘Serious, Systemic Failures’ Mar Juvenile Court System

By Bill Dries

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When U.S. Justice Department attorneys came to Memphis in 2010 and 2011 with a team of juvenile justice experts, they had good news and bad news for leaders of Memphis-Shelby County Juvenile Court.

“What we were told in both meetings … is that this is the first time the Civil Rights Division has ever investigated a juvenile court to this depth,” said Juvenile Court chief administrative officer and chief counsel Larry Scroggs. “They were somewhat drawn to this court by the improvements or the modifications – the reforms – that we had underway. But they felt like they could build on what was going on here to create a model for juvenile justice in the nation.”

The report released this month after a two-and-a-half year investigation did that.

But it was also scathing in its criticism of the court’s procedures, its lack of due process and its understanding of the legal process. The report also said black juveniles were treated more harshly than white teenagers in detention practices and transfers to criminal court to be tried as adults.

“Notwithstanding the progress we observed in a number of areas, we found serious and systemic failures in the juvenile justice system in Memphis and Shelby County that violate the constitutional rights of children appearing before the court,” said Thomas E. Perez, assistant U.S. Attorney General for the Civil Rights Division.

The 66-page report goes broader, concluding that many of those involved with and working in the local juvenile justice system have “a fundamental misunderstanding about the purpose of juvenile court and the roles and responsibilities of its participants.”

Turner was elected Juvenile Court Judge in August 2006 replacing Kenneth Turner who had been Juvenile Court Judge in the early 1960s before the judge was required by state law to be an attorney. It spawned the system of referees or magistrates that heard cases for Turner.

Shortly after Person took office, the Democratic majority on the Shelby County Commission began pushing to appoint at least one more Juvenile Court judge to serve with Person pending county elections in 2008. Person sued the commission and won in state appeals court.

The commission honed in on questions about whether African-American juveniles were treated differently as part of the discussion surrounding the changes some wanted to see in Juvenile Court operation. The questions revealed that some suburban police departments were releasing juveniles before they made their way into the juvenile court system. And the questions prompted Commissioner Henri Brooks to seek the Justice Department probe in 2007.

Person acted quickly to apply the suburban practice on a countywide basis and Memphis Mayor A C Wharton Jr. followed up in 2010 with a broader use of the practice of issuing summons instead of detention for some juvenile offenses. The summons policy was also supported by Person.

Person has denied a racial disparity, even as he stood next to Perez at the press conference this week announcing starkly different conclusions on the specific point.

“We found that African-American children were treated differently and more harshly during key points in the juvenile justice process,” Perez said, noting that a recognized national expert reviewed Juvenile Court data covering a five-year period on the specific point. “In key phases, we found that race was in and of itself a significant contributing factor even after accounting for legal variables such as the nature of the charge, prior record and variables such as the age of the defendant or the gender or school attendant. Race was a statistically significant factor in determining whether a child would receive lenient treatment such as a warning or a more serious sanction.”

When he was District Attorney General, Bill Gibbons moved the Juvenile Court prosecutor’s position from the court to his office. The move addressed half of the most serious problem the Justice Department had with the court.

The Justice Department found resistance “to the idea that (Juvenile Court) would be stronger overall with a more adversarial system.” And it noted “a court culture that frequently discourages an adversarial testing of facts for children and misinterprets the proper role of defense counsel.”

The finding is not a new one. The National Center for State Courts recommended separating defenders from the court and making them part of the Shelby County Public Defenders office five years ago.

The NCSC report was sought by the Shelby County Commission and Person said the report’s findings were not political in nature. But at the time Person and the County Commission were locked in a political struggle. Person’s position was, “As long as I’m here, I don’t intend for a legislative body to run this court.”

But the commission, even Republican commissioners who thought the move by the Democratic majority was political, backed the part of the earlier report by the commission to move the defenders out of the court and into the Shelby County Public Defender’s office.

There are indications that is about to happen nearly five years later with the Justice Department report. Scroggs termed it “the biggest issue to us right now.”

“We are trying now to address that with the county administration and the Shelby County public defender to see what if anything we can do to improve the way we provide the defense lawyers,” he said.

“We’re just in the exploratory stages. But we’re really thinking there’s going to have to be a more permanent solution for the defense of the juveniles. … Obviously when you start getting into that area then you have to have some funding that would allow for that.”

Scroggs estimates 90 percent of the juveniles who show up in court have defenders appointed for them. Those defenders are a group of 50 private attorneys who serve on a panel. They are paid by the state’s Administrative Office of The Courts.

“At some point, there’s going to have to be a more structured way, a more permanent way for that defense to be provided.”

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