by Hon. Jay Blitzman
Voice of the Judiciary
The Supreme Court has abolished the juvenile death penalty, mandatory juvenile life without parole, and in acknowledging the reality of adolescent brain development, has outlined a regime of proportional accountability. Children are constitutionally different than adults. Research has demonstrated that reducing detention also reduces recidivism by promoting the socially connective tissue of family, school, and community that is vital to positive youth development. We can protect public safety at less cost. Youth who do not graduate from high school are eight times more likely to later be arrested and it costs three to five times more to incarcerate than to pay for public education.
The message of proportional accountability has implications in all contexts, including zero tolerance in schools, mandatory transfer and collateral consequences. However, in an era of dramatically declining juvenile arrest rates, this promising landscape has been complicated by a counterintuitive narrative – the recriminalization of status offense conduct that was decriminalized in the aftermath of In Re Gault, 387 U.S. 1 (1967). This has manifested itself in various forms, including treating status offenders as probation violators in some states and imposing conditions of supervision which are status offense-like in nature (e.g. attending school without incident), and commitments for probation violations not related to re-offending. This article focuses on another aspect of this process- the surge of school referrals to juvenile justice which, as discussed in Arrested Futures, a collaboration between the ACLU of Massachusetts and the Massachusetts Citizens for Juvenile Justice, has unfortunately involved many arrests for essentially non-violent normative adolescent behavior.
Nationally about 84% of youth in the juvenile justice system are there for non-violent conduct and over two-thirds of this number are youth of color. Although detention and commitment rates have declined, racial and ethnic disparities have increased. In 2017, the Sentencing Project reported that African-American youth are five times more likely to be held than whites, Latino youth are 65% more likely to be held, and Native American youth were three times more likely to be detained. LGBTQ- gender non-conforming youth comprise 5% of the nation’s youth population, but 20% of those are detained and 85% of that number are youth of color. Over 75% of children who appear in juvenile sessions have mental health or clinical issues as courts have become default service providers.
Issues affecting children should be considered in the context of the larger systems that affect them. The multi-faceted factors that contribute to the school-to-prison pipeline implicate fundamental questions of race and class. As Marian Wright-Edelman has observed, the school-to-prison pipeline runs through economically depressed neighborhoods and failing schools. Over sixty years after Brown v. Board of Education held that separate in public education is per se unequal, our schools remain segregated. The issue is national in scope. New York City, for example, has perhaps the most segregated school system in the country. In a real sense we live in a world that is still separate and unequal. Access to adequate public education remains an access to juvenile justice issue. Professor Charles Ogletree has concluded that as regards Brown’s legacy, there is little left to celebrate. In The Color of Law, Richard Rosenstein attacks the premise of de facto segregation, arguing that geographical segregation is the result of race conscious de jure actions which have included zoning, housing, school siting, and urban renewal polices.
Where people live matters. The Boston Globe recently reported that the Brockton school system was only able to spend $1.28 per student on classroom supplies during the 2016-2017 school year, while Weston allotted $275.00 per student. The adverse impact of geographic segregation is reflected in the reality that we see the same children and families in the child welfare system as we do in the juvenile system, with the same rates of racial and ethnic disproportionality. Between 2010 and 2012, 72% of the children committed to the Massachusetts’ Department of Youth Services had been involved with the Department of Children and Families (DCF.) and over half of that number’s families had been involved with DCF before they were five. Every time a child’s placement in foster care is changed it is estimated they lose six months of educational progress which compromises their ability to graduate. Marian Wright-Edelman and others now use the phrase cradle-to-prison pipeline.
Police have been in schools since the civil rights era, but after the 1999 school shooting in Columbine, police presence in schools accelerated exponentially as did the expanded use of “zero tolerance” formerly reserved for guns and drugs. Police were placed in schools without first considering their relationship with educators and the scope of their authority. Police officers were largely placed in schools serving students of color, schools which had never had a Columbine type of incident. New York City, for example, has over 5,400 school police officers. The unregulated deployment of police in schools, coupled with zero tolerance, has fueled the pipeline and adversely affected schools of color. While these practices may be rationalized as logical responses to protect children, National Center for Education data shows that reported incidents of school violence had peaked in 1994, well before Columbine, and that national juvenile arrest rates had reached their high point in 1994, and by 2016 had declined by 70%. The effects of these policies were apparent. In 2000, over three million students were suspended and over ninety-seven thousand arrested. African-American students have been three-to-five times more likely to be suspended than white students for comparable behavior, underlining the mythology of race-neutral zero tolerance.
The reality of the “pipeline” was demonstrated in 2012, when the Department of Justice accused the city of Meridian, Mississippi of operating a school-to-prison pipeline. Named defendants included the schools, police, judges, probation officers, and the state’s Department of Human Services and Division of Youth Services. While the circumstances are rarely as overt. The pipeline exists and deconstructing it requires a multi-faceted response. The Juvenile Detention Alternative Initiative JDAI), and the MacArthur Foundation’s Models for Change are examples of data based initiatives that encourage cross-system dialogue and examine evidence based practices to better protect public safety while promoting positive youth development. Massachusetts features a robust partnership with JDAI by partnering with court professionals and practitioners in an effort to decrease unnecessary detention and address racial and ethnic disparities. Adopting more proportional and strength based models in engaging youth in lieu of zero tolerance regimes, as recommended by the American Psychological Association and the American Bar Association (ABA), coincides with the Supreme Court’s message of proportional accountability. Restorative justice, especially as applied in schools and communities in lieu of court referral, is an example of a public health oriented approach. Massachusetts juvenile justice reform, enacted this year, expanded diversion opportunities and allowed for the expungement of records for the first time, in certain circumstances. Of particular importance is the legislation’s call for school districts to develop memoranda of understanding to inform the relationship of school resource officers and educators. This would provide a framework for conversation and exploration of alternative action. Given the school shooting in Parkland, FL, the need to capitalize on this legislative opportunity cannot be over-emphasized, unless we wish to revisit the unintended consequences that followed Columbine. Promulgation of memoranda of understanding is consistent with JDAI initiatives and resolutions adopted by the ABA.
We have made progress through systemic dialogue, use of data, and the development of memoranda of understanding. However, to truly deconstruct the pipeline we must tackle the underlying structural realities which fuel implicit bias and the school/cradle-to-prison pipeline. Equal Justice Initiative’s Bryan Stevenson has stressed that in order to have truth and reconciliation we must address the realities of our history. Hopefully, the Boston Bar Association’s focus on this important subject will prove to be a step in the right direction.
Judge Jay Blitzman is the First Justice of the Middlesex Division of the Massachusetts Juvenile Court. Prior to his appointment he was a co-founder and the first director of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender’s office, which was template for the creation of the statewide Youth Advocacy Division of C.PC.S. Jay is also a co-founder of the Massachusetts Citizens for Juvenile Justice and Our RJ, diversionary restorative justice program. Jay writes and presents regularly at a variety of forums. His most recent publications are, Gault’s Promise Revisited: The Search for Due Process (Juvenile and Family Law Journal, NCJFCJ June 2018), The State of Juvenile Justice (ABA Criminal Justice Section, June 2018), Realizing Gault’s Promise ( Arizona Attorney, May 2017) and Are We Criminalizing Adolescence? (ABA Criminal Justice, May 2015). Jay has held a variety of teaching positions. He currently teaches juvenile law at Northeastern University School of Law, and is a team leader at Harvard Law School’s Trial Advocacy Workshop program. Judge Blitzman is a member of the S,J.C. Standing Committee on Eyewitness Identification and the S.J.C. Jury Advisory Committee.
by Judge Dana Gershengorn
Voice of the Judiciary
Until recently, 8,000 Massachusetts families with children who were not attending school, who were not responding to parental guidance, or who were struggling with mental health issues, domestic violence or other problems, were routed through the court system each year through the filing of a Child in Need Of Services (CHINS) petition. That system, established in 1973, has now been changed to incorporate what we have since learned about how to help troubled children and families, and how best to achieve the original CHINS goal of preventing children from ever becoming involved in the juvenile justice system. On November 1, 2012, St. 2012, c. 240, titled “An Act Regarding Families and Children Engaged in Services” took effect. This statute amended G.L. c. 119 section 39E-J, (the CHINS statute). The new statute, referred to as the “Child Requiring Assistance” statute (“CRA”), made significant changes to the CHINS law, and is a legislative effort to address some of the most difficult cases handled by the Juvenile Court.
The Juvenile Court typically handles three types of cases: Care and Protection, Delinquency/Criminal, and CRA. Of those, it may be surprising to some that CRA cases can be the most difficult and complex to address. Certainly Care and Protection cases, which focus on the abuse and neglect of very young children, can be horrific. And delinquency cases, which range from the relatively minor (shoplifting) to the extremely dangerous (rape and manslaughter), pose all the legal challenges commonly associated with adult misdemeanor or felony cases. But CRA cases – where a parent comes before the court pleading for help with a high risk, potentially dangerous child, or a school seeks help getting a child to attend or to stop disrupting the school in a way that prevents other students from learning, are truly unique in their confluence of complex mental health issues, substance abuse concerns, and family dynamics.
The CRA legislation contains several changes to the prior CHINS procedure that are intended to limit the exposure of CRA youth to the court system. For example, section 39E provides that when a parent files for assistance with the court, the clerk’s office must give the parent a list of service providers in the area – compiled by the Massachusetts Department of Health and Human Services – who can offer direct services (individual counseling, family counseling, substance abuse, mentoring) to the family without court involvement. Unfortunately this section, arguably the most important in the statute, is presently unfunded, with an effective date three years hence; an advisory board will make recommendations on how to fund this mandate.
The importance of the community-based service programs cannot be overstated. The Juvenile Court does not provide direct services to families, other than supervision by probation staff. In a CRA case, the Juvenile Court’s authority is largely limited to (1) probation monitoring and support (including providing contact information for community service providers) or (2) transferring custody of a child from a parent to the Department of Children and Families (“DCF”) if necessary to get services or placement. Beyond that authority, the Juvenile Court can play little direct role in resolving the underlying issues presented in a CRA case.
Other changes within the CRA also evidence the intent to limit the exposure of CRA youth to the courts. For example, CRA cases can be open with the court for only 390 days post adjudication, whereas in prior CHINS cases there was no time limit and cases would routinely last several years. The CRA statute removes CRA records from a child’s CORI, and it also prohibits the restraint or temporary detention of CRA youth who are taken into protective custody either with or without a warrant. No doubt some of these changes, while well-intentioned, pose challenges for the court. For example, when a run-away child is brought into court on a warrant, there is now no mechanism to keep that child at the court until the child’s parent arrives. An unintended result of removing any form of temporary hold is that run-away adolescents can, and do, simply run back out the door of the courthouse before the parent arrives, leaving the Juvenile Court with no statutory authority to prevent this dangerous behavior. Other concerns include the elimination of “diversion panels” which some courts formerly used to screen CHINS cases away from court before a child ever appeared before a judge. This change now allows a petitioner/parent in a CRA case immediate access to a hearing before a judge, after which the court can refer the case to the Probation Department for “informal assistance.” The change provides a parent with access to a judge within 15 days, but it also removes some effective diversion services that existed under the CHINS statute.
Whatever its unintended flaws, the CRA is a laudable attempt to destigmatize CRA youth by removing them from traditional court procedures, and to place the emphasis in these cases on the people most important to resolving the problem: direct service providers.
But despite legislative intent to divert CRA cases from the judicial system, more and more such cases are filed every month. Why? In part, because juvenile counsel in delinquency cases may see a CRA case as a way to avoid having their clients committed to the Department of Youth Services (“DYS”). A juvenile delinquent client headed to DYS on a delinquency charge might be able to avoid such a fate if counsel can get the court to “commit” the child to DCF custody with an out-of-home placement (a DCF group home bed or a foster home) on a quickly brought CRA petition instead. The desire to use the CRA statute this way is understandable – ample evidence exists of the negative impact of DYS commitment on a youth. However, using the CRA to circumvent DYS commitment can be problematic. In some cases the structure of DYS and its accompanying services can be a positive – and necessary – influence on a troubled youth. DYS services include education, counseling, employment services and continued support to a juvenile and his/her family from release until the juvenile turns eighteen. Using the CRA to avoid DYS commitment also begs the question of how best to allocate DCF’s limited placement resources, and who should be making those allocation decisions. The appellate courts have noted that agencies are in the best position to properly allocate their resources. Every time a court places a child into DCF custody and orders an out-of-home placement, the court is impacting the agency’s discretion to allocate its limited resources; such decisions should not be taken lightly.
Another reason for the increase in filings is the increase in children with significant mental health trauma who are not receiving necessary services from the Department of Mental Health (“DMH”). Until mentally ill children have greater access to necessary services from DMH – an agency that has seen millions of dollars stripped from its child and adolescent mental health services due to the economy – CRA filings will continue to rise, as parents struggle to find the necessary services for those children.
Appearing before a Juvenile Court judge should be the last resort to obtain services for children. While the Juvenile Court is experienced in working with youth and adolescents, judges are not themselves service providers. Bringing a child before a judge for any type of adversarial proceeding should be undertaken cautiously, and only when absolutely necessary for the child’s and family’s safety. An ideal system is one in which families are first guided to effective community-based services and other appropriate providers, and appear before a judge only when parents have been forced to conclude that a change of custody is needed. If the full potential of the CRA is realized, it could be an important step in that direction.
Dana Gershengorn is an Associate Justice of the Massachusetts Juvenile Court. She presides over criminal and civil cases involving juvenile delinquency, Children Requiring Assistance, and child abuse and neglect. Judge Gershengorn is a graduate of the University of Pennsylvania Law School and the University of Michigan.
by Naoka Carey
Every year, Massachusetts sends thousands of high-school-aged kids into our adult criminal justice system. In contrast to most other laws about children in the Commonwealth, Massachusetts automatically treats all 17 year-olds accused of a crime as “adults.” Our outdated law – a relic of the Victorian era – is the subject of multiple bills before the Massachusetts legislature this session, each of which raises the upper age limit of juvenile court jurisdiction from 17 to 18 to allow the vast majority of cases involving 17 year-olds to be addressed in our juvenile system. In May, the House unanimously voted in favor of H.1432 (now joined with H.3229); the Senate is expected to vote on the bill soon. The proposal has broad support, including the Juvenile Courts, the Massachusetts Sheriffs’ Association, the Massachusetts Bar Association, and many other organizations and individuals; indeed, there has been no formal opposition to the reform to date.
For practitioners, the proposed changes are straightforward. The bills amend sections of Chapter 119 pertaining to delinquency and youthful offender cases to give the juvenile court jurisdiction over youth who commit their offenses before their 18th birthdays. Other than raising the upper age limit, the bills do not alter existing provisions for more serious “youthful offender” cases, meaning that judges will still have discretion in those cases to impose an adult sentence. The bills also leave intact provisions requiring murder cases involving persons 14 and over to be heard in adult court (other bills this session address this issue in response to the U.S. Supreme Court’s decision in Miller v. Alabama (567 U.S. (2012), which held that statutes that mandate life without parole sentences for youth under 18, such as the current law in Massachusetts, violate the 8th Amendment). The bills make minor changes to other provisions of the General Laws consistent with the changes to Chapter 119 by, for example, amending adult criminal history reporting provisions to reflect the fact that 17 year-olds will no longer be treated as adults in most cases.
The reasons to change the law now are plentiful:
Keep Kids Safe and Save Money: Although the vast majority of 17 year-olds are charged with minor, non-violent offenses, they are held with older criminal offenders in adult jails and prisons. According to the Department of Justice, inmates under 18 were eight times more likely to be victims of sexual assault than adult inmates. Research has also found that teens held in adult facilities are 36 times more likely to commit suicide than those held in juvenile facilities.
As a result of these disturbing statistics, the Department of Justice recently issued new regulations under the Prison Rape Elimination Act (PREA) for youth under 18 held in adult facilities. Under these requirements, “youthful inmates” in prisons, jails and Houses of Corrections must be housed separately from adults, and separated by sight and sound or directly supervised by staff when they are mixed with adults in other settings. Facilities are generally prohibited from using isolation, or “protective custody,” to achieve compliance. “Youthful detainees” in court and police lock-ups also need to be separated from adults. Because a separate federal law, the Juvenile Justice and Delinquency Prevention Act (JJDPA), prohibits intermingling individuals who are defined under state law as “adults” with “juveniles,” Massachusetts cannot simply place 17 year-olds in the juvenile system in order to comply with PREA. The only way to comply with both PREA and JJDPA without incurring substantial costs to reconfigure facilities and hire new staff is to raise the age of juvenile court jurisdiction. The PREA regulations become fully operational in August, adding extra urgency to the need to address this issue.
Lower Recidivism and Increase Public Safety: Studies conducted at Northeastern University and elsewhere have shown that when youth are sent to the adult system they are more likely to reoffend, to reoffend more quickly and to escalate into committing serious and violent crimes. This is true even when comparing youth who are the same age, and who have the same offense and offense history.
Ensure that Youth Receive Educational and other Age-Appropriate Services: The juvenile system is designed to rehabilitate and, unlike the adult system, requires children to attend school and ensures that they receive special educational or other needed services, including age-appropriate substance abuse and behavioral health treatment.
Preserve and Support Family Involvement in Kids’ Lives: Because current law treats 17 year-olds as adults, parents need not be notified of their arrest, may not be present at interrogations and have no role in court proceedings, including plea bargains. By contrast, the juvenile system requires that parents be notified when their child is arrested and involved in the investigation and court process and sentencing.
Bring Our Criminal Law into Alignment with Our Other Laws About Children: The age of adult jurisdiction is inconsistent with other Massachusetts laws, laws in other states, international law and recent Supreme Court rulings. The federal government and 39 states use 18 as the age of adult criminal jurisdiction; nearly every other state with a lower age is considering a change to their statute as well (Illinois changed its law in May of this year). The current age of adult criminal jurisdiction is also inconsistent with most of our other laws about children, which set 18 as the minimum age for such matters as voting, entering into a contract and serving on a jury.
For Juvenile Court practitioners, particularly those who handle both delinquency and care and protection cases, these reforms should allow for a more coordinated, rational approach to cases. For example, child welfare clients who are under 18 but commit an offense will no longer be pulled into adult court proceedings and adult jails or prisons which effectively terminate the ability of the child welfare system to serve them.
Given the dramatic reductions in juvenile court caseloads over the last decade (50% in the last five years), the system has the capacity to handle these cases. At the same time, the short- and long-term savings that will be realized by reducing future crime and improving the educational and employment prospects for youth are significant.
Massachusetts established the age of adult criminal jurisdiction at 17 in 1846, back when children could legally toil in mills all day. It is time to bring our law into the 21st century and align it with what most state, federal and other laws and our common sense tell us is true: 17-year-olds are not adults.
Naoka Carey is the Executive Director of Citizens for Juvenile Justice, a statewide non-profit working to improve the juvenile justice system in Massachusetts.