The "civil rights of children" was a hot topic last week, mostly because the Justice Department and the Department of Education decreed it so. Just as students around the nation were returning from their holiday breaks, the feds issued what they called "discipline guidance" designed to rein in excessive school policies and practices that have inexorably pushed children from our schools into our criminal justice systems. On Wednesday, at Frederick Douglass High School in Baltimore, Attorney General Eric Holder himself explained the concept:
As it stands, far too many students across the country are diverted from the path to success by unnecessarily harsh discipline policies and practices that exclude them from school for minor infractions. During critical years that are proven to impact a student’s later chances for success, alarming numbers of young people are suspended, expelled, or even arrested for relatively minor transgressions like school uniform violations, schoolyard fights, or showing “disrespect” by laughing in class.
Too often, so-called “zero-tolerance” policies – however well-intentioned – make students feel unwelcome in their own schools. They disrupt the learning process. And they can have significant and lasting negative effects on the long-term well-being of our young people – increasing their likelihood of future contact with juvenile and criminal justice systems.
And not just all kids, of course, but predominantly children of color and those who can least afford to have run-ins with state or local criminal justice systems. From a letter published Wednesday in connection with the Administration's new initiative, addressed "Dear Colleague":
Students of certain racial or ethnic groups tend to be disciplined more than their peers. For example, African-American students without disabilities are more than three times as likely as their white peers without disabilities to be expelled or suspended. Although African-American students represent 15% of students in the [survey], they make up 35% of students suspended once, 44% of those suspended more than once, and 36% of students expelled. Further, over 50% of students who were involved in school-related arrests or referred to law enforcement are Hispanic or African-American.
We don't need to look far for examples of what these statistics mean in real life— and how significant the problem of these referrals can turn out to be for the children involved. Last Tuesday, the day before the feds made their big push, an important new civil rights lawsuit was filed in state court in Fulton County, Georgia, on behalf of the children of the state. In excruciating detail, the complaint by The Southern Center for Human Rights and the Arnold & Porter law firm chronicled the ways in which the constitutional rights of young people (mostly young people of color) are being compromised in the Cordele Judicial Circuit. Here's the first paragraph:
The right to counsel—essential for fair trials, equal justice, reliable verdicts, and just sentences—is routinely violated or reduced to a hollow formality in the Cordele Judicial Circuit (the “Circuit”). Children who cannot afford a lawyer often find there is no public defender available to represent them, but they are processed through the courts nonetheless.
Adults who cannot afford a lawyer may languish in jail for months after arrest without seeing a public defender. All but a few convictions are obtained through guilty pleas by people who do not receive the most basic elements of legal representation such as substantive attorney-client interviews, investigations, motions practice, and informed, professional advice about whether to plead guilty and other decisions.
Now, some this litigation addresses some offenses that are far more serious than the "relatively minor transgressions" to which the Attorney General referred. And no one claims that all of these children are innocent of the charges they face. But that doesn't excuse state court officials—judges, prosecutors and defense attorneys—from ensuring that the rights of these young suspects are respected. With their young lives hanging in the balance, they are receiving terrible advice, or no advice at all, even though they have a constitutional right to counsel that has been recognized by lawmakers in Georgia itself.
It's about lack of funding and too little judicial backbone. "Children routinely appear in a juvenile court without counsel because all of the public defenders are attending proceedings in one of the Superior Courts in the Circuit," the complaint alleges. "As a result, some children ... are tried and sentenced without counsel despite their desire to be represented by counsel. In 2012, the juvenile courts of the Cordele Circuit handled 681 juvenile delinquency and unruly cases. The public defender reported handling only 52 of those cases."
Here's a representative case about a black girl, age 13, identified only as "A.J." in the complaint. This grim chronology—children of color being processed through a system civil rights lawyers rightly call an "assembly line justice"—occurs over and over again, before the same judge in this county, without that judge or anyone else in power or authority there doing anything to halt the cycle. From the complaint:
On October 24, 2013, Plaintiff A.J. appeared in the Ben Hill County Juvenile Court to be arraigned on the following charges from four separate cases that all stemmed from incidents at school: affray, simple battery, disorderly conduct, and four counts of disrupting a school. On that day, she requested a lawyer to represent her and spoke with an assistant public defender present in court.
Plaintiff A.J. denied all of the allegations against her. She was told she would be notified of a future court date in which she could present any testimony from witnesses on her behalf. Less than a week before the scheduled hearing, Plaintiff A.J. was served a notice to return to court on December 5, 2013 for an adjudication hearing.
Between October 24, 2013 and December 5, 2013, no one from the public defender’s office got in touch with Plaintiff A.J. to discuss the charges, the state’s evidence, possible witnesses for the defense, possible defenses, or mitigating factors.
On December 5, 2013, Plaintiff A.J. and her mother walked about a mile to reach the court because the family does not have a car and public transportation is not available. When they reached the court, Plaintiff A.J. learned that her case was continued for another week because all of the public defenders were in Crisp County Superior Court handling cases. No one from the Cordele Circuit Public Defender’s Office notified Plaintiff A.J. or her mother in advance to inform them of the Public Defender’s planned absence or of the continuance.
On December 13, 2013, Plaintiff A.J. appeared in Ben Hill County Juvenile Court again; this time, a public defender was present. This was Plaintiff A.J.’s first time seeing a public defender since her arraignment on October 24, 2013. Minutes before court began, the public defender informed Plaintiff A.J. that the prosecutor was seeking detention time. Plaintiff A.J. planned to deny all of the charges against her, but decided to admit to all of the charges because she had not talked to her public defender before that day in court and she did not believe he was prepared to mount a defense.
Defendant Judge Pack accepted Plaintiff A.J.’s admissions and ordered Plaintiff A.J. to serve fourteen days in detention and twelve months on probation. Defendant Pack also imposed $50 in court fees and $50 in public defender application fees in each of her four cases.
Plaintiff A.J. was told she could begin her sentence after the Christmas holiday, but she did not want to miss school, so she said she was willing to be taken into custody immediately. A.J. was taken into custody that day and sent over seventy miles away to the Waycross Regional Youth Development Campus, where she was detained through Christmas until December 27, 2013.
A.J. is now under probation supervision and is required to pay court costs and public defender application fees. She remains under the court’s jurisdiction and is subject to future reprimand and probation revocation proceedings because, under Georgia law, probation can be revoked based on a failure to pay fines, and Plaintiff A.J. is unable to pay her court-ordered fees.
You could use this example in a law school exam: identify the ways in which this young defendant's due process rights were violated. Start with the judge—a former prosecutor named Kristen Pack who just five years ago was quoted as saying this in a local puff piece: "Sometimes I want to come off the bench, give a kid a hug and tell him, 'It's going to be all right.'" Based upon the allegations of the complaint, Judge Pack would be better off if she stayed on the bench, stopped acting like a prosecutor's surrogate, and rejected some of these "deals" she's been so quick to endorse. If she won't stand up for the rights of these young defendants (euphemistically called "Respondents" by the state) who will?
Go from the judge to the prosecutors who, with enormous practical advantages— there are twice as many attorneys in the Cordele Circuit District Attorney's office as there are public defenders in the Circuit—press relentlessly for guilty pleas (in adult cases and juvenile ones) even when they know the defendant has not received adequate representation by counsel. Nowhere is a prosecutor's plea bargaining power over a person more unequal than it is in these cases . "The Judges also tell defendants that if they so choose, they can speak directly to the prosecutors about their cases without warning them of the dangers of doing so," the complaint alleges. Then:
The judges return to the bench after the recess and accept guilty pleas and impose sentences – often accepting pleas from groups of defendants at a time.
Now focus upon the defenders themselves. There are simply too few lawyers being called upon to do too much for too many juvenile defendants. From the complaint:
The public defenders usually know nothing about the people they meet for the first time during the recess or the charges against them.
As a result, the public defenders have no ability to assess the validity of the charges; conduct necessary investigations; determine the presence of legal issues and conduct research; learn anything about the records and backgrounds of the defendants; or determine possible collateral consequences of a conviction, such as restrictions on housing, revocation or suspension of driver licenses, eligibility for military service, job training, employment, and immigration consequences.
They simply convey the District Attorney’s plea offer and its expiration date, leaving it to the defendants to make an uninformed decision about whether to take the offer that day. People who are represented by the public defender are under pressure to make decisions without sufficient time or information to make informed decisions.
This is not justice. This is not remotely close to justice. This is instead a system that perpetuates and enshrines injustice. And the worst part is that the very people who have contrived to ensure that these young people are not getting the due process they deserve are among the first to complain of the growing financial burdens of mass incarceration. Of course a system that sucks young people into it like a vortex is going to keep those people there longer than it should, at great societal cost. And of course we pay in the long run for the ease with which these young people become part of the nation's penal colony.
The government's smart initiative, and this vital lawsuit, come at a time in our history when most of us are open again to meaningful reform within the nation's justice systems. Want to ease mass incarceration? Want to start emptying prisons of people who shouldn't be there? Want to finally shut down the schools-to-prison pipeline? Start with this one county in Georgia. Invest today in more public defenders and better judges. Stop rushing to suck kids into our justice systems. It may take a generation or more for the benefits to emerge. But we can see already in these sad stories the terrible costs of inaction.