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VOL. 132 | NO. 122 | Tuesday, June 20, 2017

County Seeks End to DOJ Memorandum

By Bill Dries

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Shelby County Mayor Mark Luttrell said the move by him and Shelby County Sheriff Bill Oldham and Juvenile Court Judge Dan Michael to end a 5-year-old memorandum of understanding with the U.S. Justice Department over conditions at Juvenile Court indicated “significant progress,” but not that all of the problems at Juvenile Court are resolved.

Mark Luttrell

Luttrell spoke Monday, June 19, for the first time since the June 9 letter to U.S. Attorney General Jeff Sessions was sent by the trio of elected officials.

“We have made some progress – we’ve made significant progress. Have we got 100 percent compliance? No we haven’t,” Luttrell said. “We’ve never said we were 100 percent in compliance. We’ve said we are moving in that direction. The memorandum of agreement does not require 100 percent compliance.”

Luttrell said if Sessions were to grant the request, there would still be Justice Department review but not with the specific milestones enforced by the memorandum agreed to by all sides in 2012. The goal is “a reasonable understanding,” he said.

Luttrell expects there will be discussion of the request by Shelby County commissioners during Wednesday committee sessions.

The call comes two months after the Justice Department agreed to drop 17 areas in the agreement, leaving only three – due process problems, equal protection claims specifically around disproportionate contact with black children by the juvenile court system and protecting children from harm while they are in juvenile custody. Those three areas have been where court monitors and critics of Juvenile Court on the Shelby County Commission have continued to express the most concern.

The call for an end to the remaining three points of the memorandum follows a lengthy review over several years of Juvenile Court procedures and methods. The agreement came up in private discussions after Sessions’ May 25 visit to Memphis, according to the letter.

Sessions made no mention of it in his public remarks to a group of federal prosecutors.

Neither did Michael in a June 13 Juvenile Justice Summit in Hickory Hill.

Luttrell acknowledged there will be criticism of the move and debate. But he also said his experience as sheriff running a Shelby County Jail that was governed by a federal court consent decree for six of the eight years he was sheriff suggests there will still be some kind of federal oversight.

Letter to U.S. Attorney General Jeff Sessions

“Having been through these events before … it’s not unusual in the course of these events to ask the Department of Justice where we are and to consider whether or not we can be released from the formalities of the agreement,” he said. “So that’s what we did in this case. We felt that with a fresh set of eyes in the attorney general’s office, with what we’ve accomplished, where we thought we were – we decided to make the appeal.”

Luttrell said Sessions did not react to the request in the May meeting and he has no idea when a decision from Washington might come on the request.

“Incredible and solid reform has been achieved thanks to the efforts of all parties to the MOA (memorandum of agreement),” the letter concludes. “Thousands of hours and millions of dollars have been spent with the DOJ’s attorneys and monitors in working through all aspects of the

MOA. This work has created a roadmap for all other juvenile courts in the United States.”

On the three remaining issues that Luttrell, Michael and Oldham are seeking to declare resolved:

The letter from county officials says 60 percent of the children who come to Juvenile Court are represented by the Shelby County Public Defender – a unit of the office specifically for juvenile cases that was among the first of the reforms to emerge from the memorandum.

And the county is moving to appoint “part-time assistant public defenders” from the ranks of private attorneys.

“Given these circumstances, the county and the court have done what they can do to alleviate this matter,” the June 9 letter to Sessions says.

There is also a conflict between Tennessee Supreme Court decisions and the monitors on discovery issues at preliminary hearings, as well as hearings where the District Attorney General’s office seeks to try juvenile as adults.

The county leaders claim “significant improvements” in protection from harm in juvenile detention, “especially in the past six months.” That includes a “dramatic increase in the use of non-physical alternatives to force” and a drop in youth-on-youth assaults.

The monitors and county leaders disagree on a call by the monitors to “scale back” the reaction to threats of suicide.

On disproportionate minority contact with the juvenile justice system, the county leaders wrote that there is an overall drop in delinquency complaints – from 11,641 in 2010 to 4,948 in 2016. And the number of youth detained has gone from 6,238 in 2010 to 899 in 2016.

“It is important to note that the court does not make the decision to initiate delinquency matters or prosecute cases,” the letter adds. “Every case is brought to the court by law enforcement. Memphis is a city with a 66 percent African-American majority.”

The request comes a year after a compliance report from the Justice Department and several monitors appointed to gauge what progress has been made and what still needs to be done to meet the terms of the memorandum.

A report by Dr. Michael Leiber of the University of South Florida found progress in dropping the number of juveniles in detention and in the juvenile justice system beyond an initial contact.

But his findings were critical of decisions made at the court level.

“Being black increases the chances of being detained compared to similar whites,” Leiber found in the report last year. “Being black decreases the chances of receiving a non-judicial outcome compared to similar whites. … Race continues to explain case outcomes even after taking into consideration relevant legal factors such as crime severity, crime type, etc.”

At an April 2016 forum at the National Civil Rights Museum, Leiber said there is a “serious lack of movement” in addressing disproportionate minority contact.

And Justice Department attorney Winsome Gayle said at the same gathering that while the court is collecting data, it isn’t doing enough to address the problems shown in that data.

A report by another monitor specifically on juvenile detention in June 2016 found incomplete observation logs for juveniles in detention.

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