Sunday, October 2, 2016

The Age of the Child

The Age of the Child

Tamar Birckhead

(Yale Law School)




Image1Recently I had the opportunity to spend time with a group of wonderful clinical law professors who were visiting New Haven, Connecticut from Israel.  I took several of them to the local juvenile delinquency court for the morning session, and they had the opportunity to observe a few hearings, talk with two of the court’s judges, and ask lots of questions (in addition to seeing how quickly the landscape changes just half a mile from Yale’s campus). 

Having moved here for the academic year from North Carolina, I consider Connecticut’s juvenile court system to be extremely enlightened in comparison.  In North Carolina the upper age cutoff for original juvenile court jurisdiction is 16, while in Connecticut it is 18, with Governor Dannel Malloy advocating for including 19 and 20 year-olds.  In North Carolina the decision to transfer a child from juvenile to adult criminal court for prosecution hinges primarily on the protection of the public, while in Connecticut the judge must consider the best interests of the child as well as the public.  In North Carolina placement in detention is a regular occurrence, while the presumption in Connecticut is to keep adolescents at home or in the community and to provide comprehensive support and services.   Likewise, in North Carolina youths receive no credit for pretrial detention when subsequently placed on probation, but in Connecticut they earn a reduction of the probation period equal to the number of days spent in detention or lockup. 

Yet, whether it is North Carolina, Connecticut, or any other jurisdiction in the United States, none can compare to Israel’s enlightened approach to juvenile justice.  There, only children who are at least 12 years-old can be found to be criminally responsible and, thus, prosecuted in the juvenile court system, while in North Carolina it is as young as 6, and in Connecticut it is 7.  In the United States, youths may be committed to juvenile detention or long-term incarceration facilities as preadolescents (in North Carolina as young as 10, and in Connecticut at 7), while in Israel, children must be at least 15 before they can be imprisoned.  Furthermore, Israeli juveniles cannot be transferred to the adult court under any circumstances.

Needless to say, the visiting Israeli clinical law professors were shocked to learn about the comparatively harsh procedures and practices of the U.S. juvenile justice system, yet they also pointed out a striking similarity.  Just as there is a disproportionate number of low-income children of color in American juvenile courts, in Israel there is a disproportionate number of children who are Arabs or immigrants from Ethiopia or Russia.   Likewise, in both countries a significant proportion of children in juvenile court is low-income, struggles academically, and has experienced trauma.  In other words, just as the U.S. system serves as a method of social control over youths living on the socioeconomic and racial/ethnic margins, the same trend exists in a comparatively enlightened system on the other side of the globe.  And so it goes….

October 2, 2016 in Juveniles, Tamar Birckhead | Permalink | Comments (0)

Thursday, March 24, 2016

Time to End State-Sanctioned Assaults on Our School Children

 by Tamar Birckhead 


When I arrived in North Carolina over a decade ago to teach and practice law, it was a bit of a culture shock for someone who had rarely been south of the Mason-Dixon line. In juvenile delinquency court, judges would tell tales from their own childhoods that sounded almost too clichéd to be true: mamas beating their misbehaving children with a switch that the child had to cut himself, schools located miles from home when the only option was to walk and teachers paddling students as a regular component of classroom discipline.

Because I practice in counties where the local school boards do not allow corporal punishment, I have not encountered it firsthand, but a recent report by NC Child, a nonprofit advocacy group, reminded me that there are about 15 districts (out of the state’s 115) where teachers and administrators are permitted to hit students.

The state’s laws on corporal punishment allow “reasonable force” to be used, which is defined as that which does not cause an injury requiring medical attention beyond simple first aid. This means that schools are the only place in North Carolina where an adult can strike an unrelated child and not be criminally prosecuted for assault.

Parents may opt out of the use of physical discipline on their child only by completing a form at the beginning of the school year. Otherwise, it is assumed they agree. When parents have opted out, the student may instead be suspended for offenses that would otherwise not require suspension if corporal punishment could be used.

Read more here.

According to an annual report issued this month by the N.C. Department of Public Instruction, in 2014-15 there were 147 uses of corporal punishment, a 20.5 percent increase from the 122 reported in 2013-14; 108 students received it once, while 16 received it two or more times. The majority were boys, over 60 percent were in kindergarten through fourth grade and 25 percent in grades 10-12.

Particularly troubling is that more than half were Native American, even though these children make up less than 1 percent of the state’s 1.4 million public school students. All the instances occurred in four counties, with 60 percent taking place in Robeson County, the home of the Lumbee Tribe, and 32 percent in Graham County near the Cherokee Indian reservation; 10 percent of the students were identified as disabled.

Equally concerning are the reasons cited by schools for paddling children. More than 50 percent were for “disruptive behavior,” a catch-all category that can mean almost anything; 10 percent were for leaving school grounds, and nearly 8 percent for cell phone use. Other reasons include “insubordination” and “inappropriate language.”

NC Child reports that there is no evidence that the use of corporal punishment in schools is associated with improved academic outcomes. This is backed up by decades of social science theory and research suggesting that the deliberate infliction of pain upon the body of a student is associated with increased aggressive and delinquent behavior, broken relationships between students and schools, and increased psychological and emotional problems, both in the short- and the long-term.

North Carolina is one of 19 states in which corporal punishment in schools is legal, a list that includes all of the Southern states plus several in the West. According to the U.S. Department of Education, nearly 167,000 students received physical punishment in the 2011-12 academic year, with the majority of paddling occurring in Mississippi, Texas, Alabama, Arkansas and Georgia. The data reflect that a disproportionate number of the students receiving corporal punishment across the U.S. are African-American.

As for reform, 31 states and the District of Columbia have banned corporal punishment in schools, along with many large urban school districts in states where paddling is still condoned, including Atlanta, Houston and Memphis. While Ohio and New Mexico abolished the practice several years ago, legislative attempts in Texas and Louisiana have failed.

A variety of professional groups have advocated against the use of paddling in schools. On the national level, they include the American Academy of Pediatrics, the American Psychological Association and the American Medical Association. In my state of North Carolina, the State Board of Education, the North Carolina Association of Educators, the North Carolina PTA and virtually all other child advocacy groups and professional organizations are formally opposed to the practice.

It is time for North Carolina--and the remaining 18 states where corporal punishment in schools remains legal--to prohibit teachers and administrators from hitting students. It is a degrading practice that violates students’ physical integrity and human dignity.

A version of this essay was originally published by the News & Observer (Raleigh, N.C.)


March 24, 2016 in Children, Native American, Tamar Birckhead | Permalink | Comments (1)

Sunday, March 20, 2016

What Advocates Can Do For Youth in Solitary Confinement

by Tamar Birckhead Image1  

Sometimes it takes a tragic and heartrending story of a single human being to move broad public policy. In the instance of the solitary confinement of youth, the catalyst was the case of Kalief Browder. An African-American 16-year-old, Browder was wrongly charged with theft of a backpack in May 2010 and held for three years at Rikers Island after a judge set his bail at $3,000, an amount the teenager’s family could not post.

Browder was then confined with hundreds of other 16- to 18-year-olds in a section of Rikers where brutal attacks by guards and fights among inmates were common. He was targeted by gangs, beaten by officers and told that if he reported the incidents to medical staff he would be sent to solitary confinement.

Meanwhile, Browder’s criminal charges were caught up in the extreme backlog of the Bronx court system. Because he repeatedly refused to plead guilty, his case was set for trial. Yet, delays caused by court congestion kept pushing back the trial date.

Not long after arriving at Rikers, Browder was placed in solitary for two weeks following a scuffle with an inmate. Six months later, another fight led to his second trip to solitary, where he remained for about 10 months. Even in isolation the threat of violence is a reality, however, and a tense exchange of words triggered an attack on Browder by a guard.

As the months turned into years, Browder became depressed and lost weight. After he tried to hang himself with a bed sheet, he was returned to solitary.

Browder’s case was ultimately dismissed in May 2013 after 31 court dates and three years at Rikers, the majority of which he spent in isolation. The alleged victim had left the U.S. and the prosecutor acknowledged that they were “unable to meet our burden of proof at trial.”

Although Browder made some strides after his release, including earning his GED, finding a part-time job and starting classes at Bronx Community College, the damage of incarceration and isolation had already been done. His mental health rapidly deteriorated, and on June 6, 2015, he committed suicide at his parents’ home in the Bronx. He was 22 years old.

In January, President Barack Obama invoked Kalief Browder, his time in isolation and his suicide in an op-ed in the Washington Post announcing a ban on the solitary confinement of juveniles in the federal prison system, among other critical reforms that would affect the 10,000 adult inmates serving time in isolation.

After relating the facts of Browder’s life, the president wrote, “How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.”

Although the Federal Bureau of Prisons is responsible for fewer than 100 juvenile inmates, with only a handful placed in “restrictive housing,” the president’s executive action reflects a broader recognition of the need to treat adolescents and young adults differently than adults based on their cognitive and psychological capacities. It also is likely to trigger reforms on the state level of solitary confinement policies for both youth and adult inmates, including those with mental illnesses. The U.S. Department of Justice has estimated that more than 57,000 juvenile offenders are incarcerated in jails and prisons across the U.S., with many held in solitary confinement.

At the vast majority of juvenile detention centers, often the only hope for young people held in prolonged isolation lies with lawyers or youth workers willing to expose the practice, report it to the appropriate parties and advocate for its ban.

Advocates working with incarcerated young people should regularly ask them about the conditions of confinement and specifically question them about isolation practices: whether solitary confinement is used, under what circumstances, its duration, whether there is any debriefing following its use and whether alternative strategies are ever utilized.

Unfortunately, Kalief Browder, like many low-income youth, did not receive rigorous legal representation. He was appointed a lawyer who never made the trip to Rikers to visit him and rarely, if ever, spoke with him between court dates.

Advocates working with incarcerated youth who suspect the excessive use of isolation should immediately bring the situation to a judge’s attention at a hearing reviewing the conditions of confinement. If these types of hearing are not mandated in the client’s jurisdiction, they should speak to a lawyer about filing a motion for review of the conditions of confinement. They should also speak with the administrator or the licensing or regulatory agency for the facility holding the juvenile.

Unfortunately, prisoners’ legal services have become increasingly limited as legal aid budgets are cut and offices are forced to discontinue these programs. Because of this gap, every correctional facility should have an inmate-grievance system with counselors who address both routine and emergency complaints. Every facility should also have the equivalent of an institutional ombudsperson available for adolescent inmates to raise claims or express concerns related to their conditions of confinement.

Kalief Browder’s short life continues to have meaning. As President Obama wrote in his Washington Post op-ed, “Today, [solitary confinement] is increasingly overused on people such as Kalief, with heartbreaking results — which is why my administration is taking steps to address this problem.”

Editors' Note: This essay was originally published by Youth Today.

March 20, 2016 in Advocacy, Children, Prisons, Tamar Birckhead | Permalink | Comments (0)

Wednesday, January 27, 2016

The Death Knell of Life Without Parole?

by Tamar Birckhead

Tamar Birckhead (@tamarbirckhead) | Twitter

If I had to name a single U.S. Supreme Court case that effectively highlights the entrenched problems of the American criminal justice system, it would be Montgomery v. Louisiana: from the 1963 murder of Charles Hurt Jr., a white deputy sheriff in East Baton Rouge, to the conviction of Henry Montgomery, a developmentally disabled African-American teenager, to the ensuing half-century during which Montgomery has been warehoused at the Louisiana State Penitentiary in Angola.

In other words, when Montgomery v. Louisiana is viewed through almost any critical lens, the deep fissures in our broken system are clearly apparent: the legacy of Jim Crow as reflected in the disproportionate representation of people of color in today’s courtrooms, jails, and prisons; the nation’s continued reliance on mass incarceration to solve intractable societal ills; and the refusal of many prosecutors, judges, and juries to consider criminal offenders — even those who are children or are intellectually compromised — as worth more than the worst thing they have ever done.

In November 1963, Deputy Hurt was shot and killed in a park in Scotlandville, a town in the segregated South that has since been annexed by Baton Rouge but which at the time was the largest majority African-American town in Louisiana.

At the time of his death, Deputy Hurt was on patrol, looking for kids who were truant from school. One of his daughters has described her late father as someone who “saw beyond race at a time when such vision was uncommon at best” and even initiated a “Junior Deputy” program for boys from Scotlandville.

Immediately after the shooting, there was a wide-ranging search for Hurt’s killer, with hundreds of deputies and police from neighboring parishes setting up roadblocks and making mass arrests in Scotlandville. Dozens, if not scores, of African-American men from 12 to 59 years old were arrested, held and questioned about the murder.

Among those arrested was Henry Montgomery, a mild-mannered 10th-grader with intellectual limitations who had turned 17 only two weeks earlier. Unfortunately nicknamed the Wolf Man due to his oversized teeth (an “alias” that was publicized prior to the trial), Henry lived with his grandparents, as his mother was autistic and had her own challenges.

Detectives brought Henry to his grandparents’ house, where he pointed out a .22 caliber pistol in the rafters and then accompanied them to the park where he re-enacted the crime. The detectives audiotaped Henry’s confession, during which he stated that he had left school to take a nap in the park and had run into Deputy Hurt behind the recreation center. When Hunt was patting him down, Henry panicked and shot him with the pistol he had placed in his jacket pocket.

In February 1964, a jury of 12 white men deliberated for a day and half before returning a guilty verdict and a death sentence for Henry Montgomery. The Louisiana Supreme Court reversed his conviction two years later and ordered a new trial due to the trial court’s denial of both a motion to continue and a motion for a change in venue, which had been based on threats of cross burnings by the Ku Klux Klan before the trial and East Baton Rouge Parish’s adoption of a resolution proclaiming the first day of the trial to be “Charles Hurt Day.”

Five years later, although the mood of the community was calmer, it took another all white and male jury a mere 90 minutes to convict Henry of first degree murder, after which he was sentenced for an offense committed as a juvenile to mandatory life without parole (JLWOP) and sent to Angola.Fast-forward 50 years. Henry Montgomery is 69 years old and the U.S. Supreme Court has held in a 6-3 vote, written by Justice Anthony Kennedy and including Chief Justice John Roberts along with the liberal contingent of the court, that its June 25, 2012 decision in Miller v. Alabama declaring that life without parole should be reserved for only the “rarest of children” whose crimes reflect “irreparable corruption” applies retroactively.

This means that Montgomery, along with the approximately 1,000 or more inmates whose sentences were imposed before Miller (in states that had subsequently found Miller not to apply retroactively or had not yet addressed the question), will now have an opportunity for release.

In fact, the court in Montgomery has gone a step further than many anticipated by suggesting that, rather than conduct resentencing hearings in which the parties must opine whether the inmate was “permanently incorrigible” at the time of the original sentence, states may instead consider whether the inmate should be considered for parole, i.e., release from prison under specified conditions.

The court even referenced (although it did not confirm) Henry Montgomery’s good behavior at Angola, including the fact that he established an inmate boxing team and served as a role model to other inmates, as “relevant” examples of “one kind of evidence that prisoners might use to demonstrate rehabilitation.”

The process by which the court decides that a decision is retroactive was established in its 1989 ruling in Teague v. Lane, which requires retroactive application when the court declares a new rule of “substantive” law but not one of “procedural” law.

With Montgomery, the court ruled that Miller’s prohibition of mandatory life without parole for juvenile offenders was more than a procedural rule merely requiring the judge or jury to consider the defendant’s “youth” before the sentence. Instead, the court ruled that Miller more profoundly “rendered life without parole an unconstitutional penalty” for juveniles whose crimes “reflect the transient immaturity of youth,” and, thus, was the announcement of a new substantive rule.

In classic form, Justice Antonin Scalia’s dissent, joined by Justices Clarence Thomas and Samuel Alito, contends not only that the court lacks jurisdiction to decide the case (meaning that the rule of Miller was procedural and not substantive), but that “the decision it arrives at is wrong.” He asserts that the court’s resolution of the jurisdictional issue is ends-oriented, driven by the majority’s desire to reach the merits rather than a commitment to follow precedent, which he calls “nothing short of astonishing.” He argues that rather than apply Miller to the facts at hand, the majority rewrites it: “This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders.”

It remains to be seen whether Montgomery v. Louisiana will be the death knell for JLWOP. As it stands, judges maintain the discretion to conclude that particular juvenile offenders convicted of homicide are, in fact, intrinsically incapable of redemption and will never be fit to re-enter society. There may be resentencing hearings and reviews by parole boards, but there are no guarantees of release, as we have already seen in states that have found Miller to be retroactive.

Yet, it cannot be denied that Justice Kennedy has continued to chip away at what he considers to be “disproportionate” and thus unconstitutional punishment for juveniles: with Roper v. Simmons, it was the death penalty; with Graham v. Florida, it was JLWOP for nonhomicide offenses; and with Miller v. Alabama, it was mandatory JLWOP for homicides.

With Montgomery, the court’s most consistent swing voter has authored an opinion that leaves little room for the state to justify sentencing a juvenile to die in prison. As Justice Kennedy wrote over a decade ago in Roper, “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”

Editor's Note: This post first appeared on the Juvenile Justice Information Exchange

January 27, 2016 in Criminal Justice, Juveniles, Tamar Birckhead | Permalink | Comments (0)

Sunday, January 3, 2016

Ending Modern Day Debtor's Prison

by Tamar Birckhead Tamar R. Birckhead

Recently, the U.S. Department of Justice (DOJ) launched an effort to combat practices of local criminal justice systems in which public officials, law enforcement officers, and judges collude to incarcerate people for minor offenses in order to generate revenue.

On December 2, 2015, DOJ lawyers convened a meeting of academics, state officials, and civil rights advocates to explore how the federal government can assist them in preventing these types of constitutional violations in state and local courts.

This follows the March, 2015, release of an extensive investigative report by DOJ’s Civil Rights Division, revealing that Ferguson, Missouri, officials has engaged in such practices.  Yet, despite the recent scrutiny of Ferguson’s municipal court system, change in Ferguson and elsewhere has been incremental.

From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.

But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.

Across the United States, including here in North Carolina where I teach and practice law, people convicted of even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, face an array of fees, court costs, and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment—and ultimately incarceration.

As I’ve written here before, these modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.

In North Carolina, these court fees have been steadily rising—far outpacing the rate of inflation—over the past two decades.  All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court.  If these fees continue to increase at the same rate, they will exceed $500 by the year 2025.  Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee, and a $25 criminal record check fee.

People of color and those with low-income are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.

In 1970, the U.S. Supreme Court concluded in Williams v. Illinois that extending a prison term for an inability to pay criminal-justice debt violated the Fourteenth Amendment’s Equal Protection Clause, and in 1983 in Bearden v. Georgia, it barred a court’s revocation of probation for failure to pay a fine without first inquiring into a defendant’s ability to pay. Yet, jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful.  Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.

With millions of low-level offenders filling U.S. jails and prisons due (both directly and indirectly) to unpaid LFOs, private probation companies and the state and federal corrections agencies to which they supply goods and services have all thrived while the inmate population has expanded. Likewise, private corporations such as Honda, Microsoft, Starbucks, and Target have increasingly relied on prison labor, as it is cheap and virtually liability-free for the employer. Even the privatization of youth confinement facilities is now widespread in the United States, with almost half of them privately operated, creating a built-in incentive for companies to increase the number of juveniles confined and lengthen the terms of their incarceration.  In short, everyone wins—except the impoverished person unable to pay off her criminal justice debt.

The proliferation of court fees, and the costs incurred by the state to collect them, has prompted some judges, politicians, and lawmakers across the U.S. to question whether the practice has gone too far.

For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions.  Other states have implemented similar programs.

In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the state legislature has mandated that many fees, such as the application fee for a public defender, are not waivable.

It is encouraging that DOJ is making this issue a priority, although one hopes that they approach the issue aggressively and with purpose. Courts and lawmakers across the U.S. must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons. 


January 3, 2016 in justice systems, Poor, Prisons, Tamar Birckhead | Permalink | Comments (2)

Thursday, November 5, 2015

Why are Armed Police Officers Still in Our Schools?

 By Tamar Birckhead

Recently I sat in the main office of a racially-diverse middle school in Chapel Hill, North Carolina, waiting to speak with a guidance counselor.  I arrived early in the morning, and the school resource office (SRO) assigned to the school from the local police department was one of the few people already there.  He amiably interacted with staff, teachers, and students, and he gave me a big smile when he walked past.  By all accounts, he couldn’t be a nicer guy.  Yet, he is a white man in a uniform, armed with a gun, in a school populated by eleven, twelve and thirteen-year-olds.  He can make arrests, and he can refer students for criminal prosecution in juvenile delinquency court.  In fact, there are armed police officers who work as SROs in all the public middle and high schools in the district in which I live.

Last week I read about the assault of a 16-year-old African-American student named Shakara by SRO Ben Fields, a white man, at Spring Valley High School in Richland County, South Carolina.   I read that Shakara was allegedly being “disruptive” by failing to put away her cell phone during math class and then refusing to leave the classroom because she felt the punishment was unfair.  I read that SRO Fields is known as “Officer Slam” because of his brutal treatment of Spring Valley High students.  I read that Shakara was charged criminally with the misdemeanor charge of “disturbing schools,” which carries a maximum of ninety days in jail and a $1000 fine.  And I read that an 18-year-old classmate, Niya Kenny, was charged as an adult with the same offense for speaking up in support of Shakara during the assault. 

There are at least seven other states with “disturbing schools” laws on the books.  In North Carolina, for instance, the analogous criminal offense to the one facing Shakara and Niya Kenny is disorderly conduct by disrupting students (NCGS 14-288.4(a)(6)).  Yet, the statutory language in North Carolina differs from that of its southern neighbor.  Under the NC statute, the state must prove beyond a reasonable doubt that a person intentionally causes a public disturbance by disrupting, disturbing, or interfering with the teaching of students at an educational institution or by engaging in conduct that disturbs the peace, order, or discipline at an educational institution or on the adjacent grounds. 

North Carolina cases in which the evidence was found to be insufficient to support an adjudication of juvenile delinquency for the offense include In re S.M., 190 NC App. 579 (2008), in which a female high school student laughed and ran away with a friend after an administrator asked her to stop in the school hallway; she was then chased by an SRO for 10-15 seconds before he arrested her. The NC Appeals Court found that this was an instance of “ordinary misbehavior or rule-breaking,” which did not rise to the level of criminal activity.  In challenging these offenses in North Carolina courts, the defense typically focuses on the element that requires proof of intentional behavior that caused an actual public disturbance, which distinguishes ordinary misbehavior like that of Shakara’s from true instances of disturbing the peace within a school. 

In contrast, the South Carolina “disturbing schools” statute is very broad, as it not only criminalizes the willful or unnecessary interference or disturbance of students or teachers but also criminalizes mere loitering on school premises and/or “act[ing] in an obnoxious manner thereon.”  Candidly, I can think of dozens of examples of typical adolescent behavior on school grounds that could be deemed “obnoxious” and conceivably fall within the language of this statute.  Yet, in 2006 when the statute was challenged as overbroad and vague in violation of the First Amendment, the South Carolina Supreme Court affirmedthe lower court’s decision that it was not unconstitutionally overbroad.  The decision, however, was quite fact-intensive, involving a boy who had been yelling and cursing in a classroom for over two hours and then took a swing at his teacher as he was escorted down the hall, so there is likely room to bring another appeal based on different facts.

As for the cell phone video of the incident at Spring Valley High, I’ve seen similar videos in the course of representing hundreds of children charged with criminal offenses resulting from school-based “incidents” during my years teaching in the Youth Justice Clinic at UNC Law School.  Even so, I wasn’t prepared for this one.  The violent and vicious way in which SRO Fields slammed Shakara, still sitting in her desk, onto the classroom floor and then pulled her across the room before restraining her on the ground was horrifying. I’d be outraged to see an animal treated that way, let alone a teenager. 

Yet, the SRO’s attack on Shakara is a quintessential example of the school-to-prison pipeline in action, as it illustrates perfectly what the statistics already tell us – that black students are suspended and expelled from schools three times more often than their white peers, and that for black girls, the rate is twice that amount.  In fact, in South Carolina black students comprise 60% of those who are suspended from school but only 36% of the state’s student population.  A federal civil rights investigation into the incident has been initiated by the Columbia FBI Field Office, the Civil Rights Division, and the U.S. Attorney’s Office for the District of South Carolina.

After more than a decade of juvenile justice advocacy, I’ve concluded that police officers have no legitimate role in our schools.  The reality is that SROs are not found in most private, charter, or parochial schools, yet these educational settings manage to maintain safe learning environments for their students.  SROs are not typically trained in adolescent development, in diffusing tense situations, in building rapport with students, in advising students, or in mediation, and if these are in fact the skills and qualities that are needed in a particular school setting, qualified school counselors should be hired rather than uniformed and armed police officers.  Of course, if an urgent situation requires law enforcement, school administrators—like all citizens—can dial 911 or request assistance from the local police department.

Unfortunately, the school-to-prison pipeline is not unique to South Carolina or to North Carolina or to only a handful of states.  There are more than 17,000 police officers assigned to schools across the United States.  Data confirms that the presence of uniformed and armed law enforcement in schools has a criminogenic effect.  In other words, placing armed police in schools actually increases the physical dangers to youth.  Therefore, as long as SROs are in school buildings and classrooms, students—particularly youth of color—are as vulnerable as Shakara, not only to prosecution for typical adolescent misbehavior but to physical assault.    


November 5, 2015 in Children, Police, Tamar Birckhead | Permalink | Comments (0)

Friday, October 2, 2015

When a Clock is Only a Clock: Dismantling the School-to-Prison Pipeline

Fourteen-year-old Ahmed Mohamed captured the attention of the public in September when he was arrested during his first weeks at MacArthur High School in Irving, Texas, for bringing a homemade clock to school to show his engineering teacher.  This simple act qualified as a “hoax or perceived threat” under the school district’s codes of conduct, and even after it was established that the clock was merely a clock (despite the wires and exposed circuits), police removed Ahmed from the classroom, placed him in handcuffs, and suspended him for three days. 
Ahmed is tall and thin with brown skin and glasses.  His family is Muslim and they immigrated from Somali.  Ahmed frequently brought his homemade inventions to Sam Houston Middle School where he was a member of the robotics club.  Apparently, the clock incident was not his first brush with the school disciplinary regime.  In sixth grade, Ahmed reportedly had been suspended for blowing bubbles in the bathroom with another student; on another occasion, he unsuccessfully invoked the First Amendment when faced with detention for speaking out in class; and in a third incident, after being suspended for a hallway fight, a suspension was overturned after he told the principal that he had acted in self-defense when a larger boy had choked him.
In other words, Ahmed appears not only to be a natural advocate but a young man who is comfortable with and adept at speaking up for himself – despite the draconian disciplinary policies found in many public schools in the U.S. 
It is not a coincidence that administrators at the Texas secondary schools that Ahmed attended turned reflexively to punitive measures when confronted by typical adolescent misbehavior.  A recent study by Texas A&M University found that thirty percent of Texas students in grades seven through twelve have received out-of-school suspensions, while fifteen percent were either permanently expelled or suspended more than ten times. 
In fact, schools in the Irving Independent School District share all three of the principal risk factors for the school-to-prison pipeline: they underperform on high stakes testing, providing a built-in incentive to push out low-performing students; they are underfunded, leading to overcrowded classrooms and little or no support staff for struggling students and their families, such as counselors, social workers, psychologists, and nurses; and they adhere to zero tolerance policies in which minor acts of “insubordination” and “defiance” result in long-term suspension and prosecution in juvenile court.  Further, whether the result of explicit or implicit racial and ethnic bias, schools most likely to serve as feeders into the pipeline are those with fifty percent or more students of color and/or high percentages of ESL students, like those attended by Ahmed.  
At the end of September, U.S. Education Secretary Arne Duncan announced plans to reduce incarceration for nonviolent offenses and to reform school discipline policies.  He acknowledged that in the past three decades, U.S. spending on state and local corrections has increased almost twice as fast as spending on elementary and secondary education.  He acknowledged that U.S. schools suspend approximately 3.5 million students each year and refer one quarter of a million to the police.  And he acknowledged that these statistics are even more extreme for children of color and students with disabilities. 
Although Secretary Duncan’s proposals to expand opportunities for quality preschool, increase teacher salaries, and provide Pell “second chance” grants to those who are incarcerated are admirable and worthy of effort, they will do little to bring about fundamental change to the punitive climate that predominates in our public schools.       
The reality is that the social safety net in the U.S. is broken and that the court system – particularly the juvenile court system – now serves as the only viable source of government-funded welfare for children and families living on the economic margins.  When a low-income family with a troubled child needs assistance, they can no longer find it in the community, whether at school or at a neighborhood health clinic; instead, they are referred to law enforcement in the form of school resource officers or juvenile court probation officers.   It is only via these punitive systems that struggling children and their families have any meaningful chance to get the help they so desperately need. 
The short-term solutions must extend beyond increasing teacher pay and acknowledging implicit bias and racism.  Armed security personnel are present in three out of four U.S. high schools and in the vast majority of schools that have over one thousand students; the federal government must provide incentives to dramatically decrease their presence.  There should be incentives for schools to end zero tolerance policies and to prohibit school resource officers from overseeing routine disciplinary issues.  Further, all school employees should receive training in basic adolescent development as well as mediation, conflict resolution, and restorative justice practices, which have been shown to address disciplinary problems more effectively than detention, suspension, or court referral. 
Ahmed’s future looks bright.  His family has withdrawn him from the Irving Independent School District, and he has invitations to visit President Obama and Mark Zuckerberg.  Meanwhile, however, the millions of other students across the U.S. whose typical adolescent behavior is regularly criminalized have few, if any, options.  We must wait no longer to implement policies that meet their needs without pushing them out of schools and into prisons.        

October 2, 2015 in Education, Juveniles, Tamar Birckhead | Permalink | Comments (0)

Wednesday, August 26, 2015

Right to Counsel in Nonpayment Hearings

By Tamar Birkhead

Tamar Birckhead

In my last post, I discussed the phenomenon that I call “the new peonage,” in which criminal justice debt creates a two-tiered system of justice in our juvenile and criminal courtrooms.  One of my proposals for reform is to establish the right to counsel in nonpayment hearings. It is long-settled law that the Sixth Amendment requires that counsel be appointed to indigent criminal defendants who face the risk of the loss of liberty.  Most states hold that this right, which derives from the Due Process Clause of the Fourteenth Amendment, also applies to civil proceedings.  Most states also agree with Supreme Court dicta in Lassiter v. Department of Social Services (1981) that relying on the “civil” or “criminal” label placed on a proceeding when determining whether there is a right to counsel is not particularly helpful in this subset of cases, as the possibility of incarceration is an equally serious restraint on one’s liberty interests whether it results from a civil or criminal matter.  State courts are split, however, on how best to determine whether the right exists when applied to a given set of facts, with some courts holding that a balancing test should be used on a case-by-case basis, and others holding that the right to counsel should be presumptively guaranteed in all matters that could potentially result in incarceration.  Several states have even held that there is no right to counsel in civil fee collection proceedings regardless of whether the defendant could be incarcerated, invoking the civil/criminal distinction to support their holdings, thereby rejecting Lassiter

An argument that is gaining traction is that there should presumptively be a right to counsel for indigent litigants in nonpayment hearings whenever those hearings can result in incarceration or an extension of probation or parole.  In the recent case of Washington v. Stone (2012), James Stone pleaded guilty in 2001 to unlawful possession of a controlled substance (methamphetamine) and second degree theft, and the trial court sentenced him to 105 days in jail and twelve months of community custody with a fine of $2860. Two years later his supervision was transferred from the Washington Department of Corrections to the superior court clerk’s office, as he now owed (adding the interest) $3179. Two months later, without being told of the right to counsel, he signed an order agreeing to minimum monthly payments of twenty-five dollars, and agreeing that if he failed to pay, an arrest warrant would be issued.  For the next twenty-nine months, Stone made the monthly payments, but when he missed a payment and a court appearance, an arrest warrant was issued, and he was sentenced to ten days in jail.  This was followed by a period when he once again made payments.   This scenario continually repeated itself; yet for three years the court did not inquire as to whether Stone wished to have counsel appointed. After the court finally inquired of him and counsel was appointed, a fact-finding hearing was held one week later, which the appellate court described as follows:

Stone testified that he was homeless; that he was left handed and limited to twenty-five percent use of that hand; that the Department of Social and Health Services (DSHS) paid his medical bills; that his only source of income was monthly net payments of $339 from a…”program…due to [his] disability with [his] shoulder”; and that he spent this money on shelter, cigarettes, and “a few other necessities” like food.  He also testified that it cost him approximately $100 to travel to Jefferson County for court appearances.

At the hearing’s conclusion, the judge sentenced Stone to forty-five days in jail, with no inquiry as to his income or ability to pay, and without granting a deduction in his LFO debt for either of his two previous periods of incarceration.  On review, the Court of Appeals of Washington held that a person has an absolute right to counsel at “ability-to-pay” hearings where incarceration may result, and that Stone’s due process rights were violated when he was incarcerated without findings regarding his ability to pay:

Stone’s lack of counsel during these proceedings created an “asymmetry of representation” because a prosecuting attorney represented the State in this adversarial proceeding.  As the United States Supreme Court has observed, “The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.”           

The federal appellate court clearly recognized that if counsel had represented James Stone at the first enforcement proceeding, it would have made the difference between his maintaining and losing his liberty down the road.  Counsel is needed to gather and present evidence regarding the defendant’s ability to pay, to assist her in navigating the often-complex procedures for requesting a reduction or waiver of fees, and to ensure that she understands the ramifications of payment orders or commitments.  For these reasons, it is likely that early appointment of counsel will ultimately save the jurisdiction monies spent in repeated attempts at collection, issuing and serving arrest warrants, and the costs of incarceration. 

Of course it is critical to keep in mind that when counsel is appointed, at least forty-three states and the District of Columbia can require defendants to contribute to its cost.  This fee is often a significant component of the total debt burden imposed by LFOs, and given the disproportionate representation of low-income defendants and civil litigants struggling under the new peonage, it rests squarely on the backs of those least able to afford it.  In Florida and Ohio, individuals must pay defender fees even if they are acquitted or the charges are dismissed.  In states that offer hardship waivers of these fees by statute, some fail to provide them in practice.  And, defender fees often serve to discourage low-income people, including children in juvenile court, from exercising their constitutional right to counsel, resulting in systematic waivers of counsel.    

Yet, if the right to counsel at nonpayment hearings is implemented in combination with several other legislative proposals, such as the exemption of attorney fees for indigence, these costs should cease to be a significant hardship for low-income defendants.


Editor's note: Tamar Birckhead’s research on “The New Peonage” will be published by the Washington & Lee Law Review in December 2015.


August 26, 2015 in Economic Justice, Poor, Prisons, Tamar Birckhead | Permalink | Comments (0)

Monday, July 27, 2015

The New Peonage

by Tamar Birckhead

 Tamar Birckhead

On November 24, 2004, a thirteen-year-old boy named Taylor M. and several other boys in Ventura County, California, threw rocks at construction equipment owned by to J&S Excavating [J&S]. After another boy threw a firecracker into a bulldozer, Taylor shut its door, and the bulldozer ignited. Damages were estimated at over $170,000, including repair costs, rental expenses, and lost labor, although the estimate failed to account for the amount that J&S ultimately recovered from its insurance company. The state charged Taylor with arson and felony vandalism in juvenile court, he admitted the allegations, and the judge declared a maximum confinement period of three years, eight months.

At the time of the offense, Taylor was struggling both academically and behaviorally in the sixth grade.  He was failing several courses and repeatedly disciplined for misbehavior.  He was diagnosed with a learning disability and Attention Deficit Hyperactivity Disorder, and his peers ridiculed him for attending special education classes.

On April 25, 2006, upon the prosecutor’s recommendation, the court placed Taylor in a deferred entry of judgment (DEJ) program with multiple conditions, including monthly restitution payments of $100. Soon after, Taylor’s parents, who were already struggling to pay their bills, experienced a series of health setbacks.  His mother was diagnosed with cancer and then suffered two strokes, and his father became disabled. His parents separated, and his father became homeless, as did his older brother. Because of his mother’s illnesses, Taylor had to assist her with basic tasks of cooking and cleaning, while at the same time he made numerous attempts—all ultimately unsuccessful—to find work to pay his restitution.

Despite these hurdles, Taylor made some strides.  His grades improved as did his school attendance and behavior, and he managed to complete all eighty hours of court-ordered community service as well as a counseling program. Ultimately, however, Taylor’s family was able to pay a total of only $175 toward restitution between 2006 and 2009, at which time Ventura County Probation Officer Monica Gomez recommended revocation of his DEJ placement because “no effort [was] being made…at all.”

The juvenile court judge agreed with the probation officer’s recommendation and revoked Taylor’s DEJ placement, putting him on formal probation that left him vulnerable to the three years, eight months, term of incarceration.  In 2010, the Court of Appeal of California affirmed the judge’s decision, stating that the probation department would not have recommended the revocation of his DEJ placement “if he had met with his probation officer on a regular basis and made small payments ($10, $5, or $1).  Appellant failed to establish that he tried to do those things.”

Across the U.S., even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, trigger an array of fees, court costs, and assessments in both juvenile and criminal courts that can create insurmountable debt burdens for already-struggling families.  Although the U.S. Supreme Court held in Williams v. Illinois (1970) that extending a prison term for an inability to pay criminal justice debt violates the Fourteenth Amendment’s Equal Protection Clause, and in Bearden v Georgia (1983) barred the revocation of probation for failure to pay a fine without first inquiring into a person’s ability to pay, jurisdictions continue to ignore these requirements and consider almost every failure to be “willful.”  Some courts impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.

For low-income families, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment.  When parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge.  Failure to do so can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees.  For non-custodial parents, failure to pay child support can also lead to time in jail, and the debt often continues to accrue during incarceration, making it nearly impossible to become current. 

For youth in the juvenile court system, mandatory attorney fees, detention fees, restitution fines, and supervision fees impose a burden that increases the risk of recidivism.  When these circumstances are exacerbated by aggravating factors such as unemployment, substance abuse, or mental illness, families without an extensive support network have little chance of succeeding.  In short, for parents and their children who are caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration is never a thing of the past. 

One of the inherent ironies is that rather than serving as a valuable revenue source for the state, juvenile and criminal justice system fees require an extensive infrastructure to turn court and correctional officials into collection agents.  This burdens the system and actually interferes with the proper administration of justice.  Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.

Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.”  It also explicitly provided for enactment of supplemental legislation to enforce the amendment’s substantive provisions.  Two years later, Congress passed The Peonage Act in an attempt to prohibit the practice of coerced labor for debt, but in the wake of the Civil War, southern states innovated other ways to impose peonage but avoid violations of the federal statute.  Among these were criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with readily manufactured crimes, such as vagrancy, adultery, or use of offensive language, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants.  Several decades later, the U.S. Supreme Court inBailey v. Alabama (1911) and U.S. v. Reynolds (1914) finally invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Peonage Act, but these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II. 

In several instructive ways, the contemporary justice tax faced by Taylor M. and thousands like him ultimately has the same societal impact as the practice of peonage: both function to maintain an economic caste system. There are, however, a number of common sense legislative reforms for what I’ve called “the new peonage” that lawmakers should consider.  They include creating and enforcing court fee exemptions for indigence; eliminating unnecessary interest, late fees, and collateral consequences for defendants; and ending incarceration and extended probationary supervision for non-willful failure to pay.  For youth like Taylor M. and their families, our states must pass legislation that eases the burden on low-income families and ends the phenomenon of the new peonage.


July 27, 2015 in Advocacy, justice systems, Juveniles, Poor, Tamar Birckhead | Permalink | Comments (0)