Memo in Opposition of S. 254, the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999

3-10-99: ACLU Opposes S. 254, the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act of 1999 TO: Interested Persons FROM: Rachel King, Legislative Counsel RE: Opposition to Hatch/Sessions S.254 Introduction

The ACLU opposes S. 254, which would radically alter the current juvenile justice system. Several provisions of federal law which protect juveniles would be weakened if this bill passes, most notably the provision that requires states (in order to receive block grant funding) to address problems of disproportionate minority confinement (DMC) within their juvenile justice systems.

At the same time that the bill weakens the requirement that states address the problems of race discrimination in their juvenile detention centers, there are other portions of the bill which may disproportionately increase the number of minority children in the juvenile justice system. For example, the bill would reduce, and in some cases eliminate, judicial oversight of prosecutorial discretion in the decision to prosecute children as adults. Although there is no empirical evidence to establish that eliminating judicial review would lead to a disproportionate number of minority children being prosecuted as adults, there are other examples within the criminal justice system where eliminating judicial participation has led to racially disproportionate results. For example, the passage of mandatory minimum sentencing laws that eliminated judicial discretion, resulted in a disproportionate number of minority people sentenced under the new laws. Also, the bill would pass harsh gang provisions which would most likely disproportionately impact minority children. It is likely that the impact of all these changes will disproportionately increase the number of minority children in both the state and federal systems.

Besides these concerns, the bill also weakens privacy protections for children and violates the First Amendment by requiring government funding to go to religious organizations.

According to the most recent statistics released by the OJJDP, 68% of children in detention centers are children of color, even though they are only 32% of the overall population of children. These figures reflect significant increases over 1983, when minority youth represented 53% of the detention population and 56% of the secure juvenile corrections population. 1 In fact, in every state studied, minority males had a higher probability rate of incarceration before age 18 than their white peers. 2 Clearly, the need for federal oversight to ensure racial equality within the juvenile justice system is still very necessary. Rather than decreasing, the need for federal oversight is increasing.

Lastly, it is worth noting, that contrary to the findings of S.254, juvenile crime is not on the increase. Between 1995 and 1997, there was a 21.3% decrease in the number of arrests of persons under the age of 18. 3 In 1996-1997, murder by children under the age of 13 was at its second lowest level since statistics were first gathered 33 years ago. 4

The ACLU takes the position that current law is better than the changes proposed by S.254 – better at protecting the rights of children and better at federal oversight on the important issue of racial discrimination.

I. The Bill Eliminates Protections for Children in the Federal Juvenile Justice System.(1.) The Bill Would Increase the Number of Juvenile Cases Handled in the Federal Court System at a Time When the Federal Courts are Already Overburdened. (Title I, sec. 5032).

Current law presumes that children who come in contact with the federal juvenile system will be prosecuted in state courts, unless there is a compelling reason not to – such as the state prosecutor does not have the ability or willingness to proceed. 18 U.S.C. sec. 5001. S. 254 would eliminate this statutory presumption. According to the sponsors of the bill, this section repeals the provision establishing the general practice of surrendering to State authorities juveniles arrested for the commission of Federal offenses. 5 Instead of being required to refer a juvenile case to state court unless there is a compelling reason not to, the decision of where to prosecute the case would lie with the U.S. Attorney.

Traditionally, crime is handled on a local, rather than national level. State courts are the better forum for handling criminal cases. Local courts, especially juvenile courts, are better equipped to make appropriate referrals to social service agencies. In fact, there is no federal juvenile justice system. If a child is prosecuted in federal court, the government must send the child to a state detention facility.

Besides the fact that the federal court system is unequipped to handle juvenile cases, the federal courts are asking Congress not to increase the number of federal criminal cases. Chief Justice Rehnquist recently spoke out against the federalization of crime stating that, “The trend to federalize crimes that have traditionally been handled in state courts not only is taxing the judiciary’s resources and affecting its budget needs, but it also threatens to change entirely the nature of our federal system. ? Federal courts were not created to adjudicate local crimes, no matter how sensational or heinous the crimes may be.” 6

The American Bar Association recently released a report criticizing the increasing federalization of crime. The report stated that “Inappropriate federalization strains the fabric of the federal-state system. There are powerful reasons for the fundamental limitations on federal criminal law, reasons that are rooted in the constitutional makeup of the nation and in practical experience.” 7 The report cites concerns such as the impact on states and their courts, concentration of police power, and disparate results for the same conduct. 8

Lastly, if the federal courts are clogged by handling criminal cases, they are unable to effectively adjudicate such matters as civil rights cases, habeas corpus petitions and employment discrimination cases – the types of cases that the federal court system is properly meant to adjudicate. Handling criminal cases at the local level will usually result in better administration of justice and will protect the due process rights of the accused. In general, juvenile cases should be handled by state courts rather than federal courts.

(2). Prosecutors Would Have Unreviewable Discretion to Prosecute Children as Adults (Title I, Sec. 5032).

S. 254 would allow prosecutors to charge children as young as 14 years old and prosecute them criminally in federal district court. Under current law, it is federal judges, not federal prosecutors, who decide whether a child will be prosecuted as an adult. If the prosecutor believes that a child should be charged as an adult, the prosecutor goes to court and puts on evidence to establish why the child would not benefit from the juvenile system and why the child should be punished as an adult. This hearing is sometimes referred to as a “waiver” hearing. The judge “waives” the child into adult court. Within the juvenile justice system, judicial oversight is a crucial safety check to protect against prosecutorial discrimination. For example, Florida is a state that has eliminated judicial allowing prosecutors the decision to charge children as adults. A recent case illustrates what can happen when a prosecutor’s charging decision is not reviewed.

Fifteen year old Tony Laster from Boynton Beach, who has an IQ of 58 and is considered mentally retarded, was charged with strong-arm robbery after threatening a 14 year old classmate in his special education art class and taking two $1 bills from him. The school called the police and Tony was taken into custody. State Attorney Barry Krischer has a “zero Tolerance” policy for school crime so he charged Tony as an adult. Tony was arrested and spent three weeks at a juvenile detention center and four weeks in adult jail. He is now out of jail on $5,000 bail and if convicted faces 15 years in jail. Prosecutor Krischer supported his decision to prosecute Tony as an adult claiming that in making his decision to prosecute, he would not consider Tony’s mental status or the fact that he has not had a consistent guardian because both his grandfather and mother died within the last year. 9

It is unlikely that Tony would be prosecuted as an adult if the prosecutor had been required to prove in a hearing that Tony’s case warranted prosecution as an adult. What happens without judicial review is that a prosecutor makes an initial charging decision, usually based on information he or she gets from a police report. After making an initial charging decision, it may be difficult for the prosecutor to change it. If, however, the prosecutor is required to go into court, put on his evidence, and explain why a child should be prosecuted as an adult, cooler heads would prevail. Children who commit serious offenses, like murder or rape, will be prosecuted as adults. Kids who commit trivial crimes like Tony, will not be.

S. 254 eliminates the requirement that prosecutors go to court and show why a child should be prosecuted as an adult. Under S. 254 prosecutors would be able to charge children as young as 14 as adults if they have allegedly committed a felony. For “serious violent felonies” 10 and “serious drug felonies” 11 (as defined in sec. 3559 ( c )(3)), the US Attorney has the authority to make the charging decision, sec. 5032 (a)(1)(A), for all other felonies, permission of the AG or Deputy AG is necessary. Sec. 5032 (a)(1)(B). The effect of these changes would be that instead of a judge making the decision that a child should be prosecuted as an adult after a full hearing on the issue, the decision would be made by the prosecutor.

S. 254 does provide for some limited judicial review. S. 254 provides what is called a “reverse waiver hearing.” In this case, the child would ask for a hearing to prove to the judge that he or she should be prosecuted in juvenile court rather than adult court. Children who are 14 and 15 years old can petition the court to return their case to juvenile court and, children 16 and older can petition the court in cases not involving serious felonies. There is no reverse waiver proceeding for children 16 or 17 charged with serious crimes, or for children who were previously tried as adults. Although this hearing does provide at least some review, it is difficult to get the case moved back to juvenile court. The child has the difficult burden of establishing by “clear and convincing evidence” that it is in the best interests of justice to return their case to juvenile court. Sec. 5032(d)(4). The child must petition the court within 20 days of being appointed counsel, or lose the right to petition. Sec. 5032(d)(3). Children who have previously been tried as an adult would be tried as an adult in any subsequent case no matter how minor the charge was. Sec. 5032 (C ). Given that the child will have fewer resources than the government, placing the burden of proof on the child to prove why he or she should be prosecuted in juvenile court is very difficult. This is especially true if the child is not adequately represented by counsel, which sometimes happens, especially to poor children.

These changes are significant and ill advised. The decision to prosecute a child as an adult is a serious one that will profoundly impact that child’s life. It is better not to leave that decision solely to the prosecutor.

The ACLU opposes prosecuting children in adult court in most cases. Any transfer or waiver hearing should be a judicial determination after a full hearing which affords all due process rights to the child. Every time the prosecution wants to try a child as an adult, no matter how serious the offense, there should be a transfer hearing. The prosecution, not the child, should bear the burden of establishing the need for a transfer by “clear and convincing” evidence.

(3). Judicial Discretion in Sentencing Children Will Be Reduced.

Under S. 254, judges would lose the discretion that they currently have in sentencing children prosecuted in the juvenile justice system. Currently, judges are given broad discretion in sentencing children and are not required to use the Federal Sentencing Guidelines. Under S. 254, the guidelines would be expanded to include juvenile cases. Title I, sec. 5032 (f)(1). Many federal judges dislike using the federal guidelines because they believe that the strict rules sometimes lead to unfair results. It is particularly important to give as much discretion as possible to judges who are sentencing children. This is because children’s behavior is very often affected by their home situation which they are not able to control. Using a rote method of calculation without being able to take into account the individual circumstances of a child’s life is a bad idea and could, at times, lead to unfair results.

The ACLU opposes further expansion of the Federal Sentencing Guidelines for use in juvenile cases. Sentencing should be an individualized procedure, especially when children are the ones being sentenced.

II. The Bill Would Weaken Federal Provisions Which Protect Children in State Juvenile Justice Systems(1). States Will Not Be Required to Address Racial Inequalities in Juvenile Detention. (Title II, sec. 222 (a)(7)(A)).

Under current law, states are required to address the issue of disproportionate minority confinement within their juvenile detention centers in order to receive federal funds under the JJDPA Formula Grants Program. 42 U.S.C. sec. 5665 (8). This requirement has been in effect since 1992 and states are just now beginning to recognize and identify ways of addressing the problem of disproportionate minority confinement. Unfortunately, this is a problem of significant proportions. Currently 2/3 of the children in the juvenile justice system are children of color even though they only account for 1/3 of all children. The DMC requirement was a wise move by the federal government to encourage states to begin to address the problem of racial discrimination in juvenile detention facilities.

There is no indication that states find this requirement burdensome and are asking for it to be changed. Because of the multiple factors that are unique to each state, OJJDP does not specify a process or strategy that states must use to address the problem of DMC. Each state is entrusted with the responsibility of examining race and ethnicity as factors influencing decisions at various points within the juvenile justice system, and to take steps to address these problems.

S. 254 would seriously weaken the requirement that states take affirmative steps to address the problem of disproportionate minority confinement by eliminating entirely the word “race” from the statutory requirement and by weakening the measures which states are asked to take to address the problem. Title II, Sec. 222 (a)(6).

Current law is very straightforward. 42 U.S.C. sec. 5633 (23) requires states to “address efforts to reduce the proportion of juveniles detained or confined in secure detention facilities . . . who are members of a minority group if such proportion exceeds the proportion such groups represent in the general population.”

The language in S. 254 is not as direct or exacting. S. 254 eliminates any specific reference to race and instead asks states to examine “segments of the juvenile population” detained to a greater extent than the general population. Instead of requiring states to “address efforts” S. 254 asks states to “address prevention efforts” but without allowing the release or the failure to detain any individual.

If Congress wants the states to address the problem of racial discrimination within juvenile detention centers, it should use the word “race.” If Congress wants the states to look at “other segments of the population” as well, it can add that on as an additional requirement. However, by eliminating the word “race”, states may be able to wiggle out of addressing racial discrimination by denying that a particular minority group is a “segment of the population.”

If Congress wants the states to address discrimination efforts, it should not use the language “address prevention efforts”. This language gives the states the impression that as long as they make efforts to prevent this type of discrimination in the future, they need not worry about addressing current problems of discrimination. S. 254 also specifically forbids states to remove a particular individual from a detention center, which may be an appropriate way for a state to address the problem of disproportionate minority confinement.

Unfortunately, by weakening the language of this requirement, Congress is sending out the message that it is not so concerned with addressing the serious problem of racial discrimination. This is the wrong message for Congress to be giving the states.

The ACLU strongly supports laws which aim to end and remedy racial discrimination within the criminal justice system. The ACLU supports current law which requires states to take affirmative steps to address problems of racial inequity. If anything, Congress should be doing more to require states to address problems of racial discrimination. The proposed changes in S. 254 unfortunately, would require the states to do less to address this problem.

(2). Children could be exposed to adult inmates while in detention. – (Title II Sec. 5031 (4)-(5)).

For over 20 years, federal law has protected children from adult inmates by preventing any contact between children and adult inmates. 42 U.S.C. sec. 5633 (13). This law is meant to protect children from the negative influence of adult criminals. The law also encourages states to build separate facilities housing children separately from adults.

Again, like the changes to the DMC requirement, S.254 would weaken the separation protections. Under S.254, the no contact prohibition would be changed to “prohibited physical contact” or “sustained oral communication” between the juvenile and adult offender. These new protections should, in theory, prevent actual physical contact with adult offenders. However, the provisions will not prevent oral communication or incidental physical contact. Children could be subjected to harassment by being placed near adults for example, by walking children past adult cells or by permitting children and adults to share the same exercise yard.

However, the more important aspect of these changes is that by weakening the sight and sound separation requirement, states will be able to house children and adults in the same facilities. Instead of encouraging states to have separate juvenile facilities aimed specifically at addressing the needs of children, states may construct “collocated facilities” where children are housed with adults. In other words, states will construct a “children’s wing” to the local adult prison. All of this is of great concern, since research has shown that children commit suicide in adult jails eight times as often as children held in juvenile detention facilities.

S.254 also allows states, under certain circumstances, to house children in adult jails for up to 5 days or longer in instances such as inclement weather which makes transportation difficult a particular concern in rural areas where children are sometimes transported great distances to a juvenile detention center. Sec. 222 (a)(13). S. 254 also allows parents to consent to allowing their children to stay in adult facilities. This provision is meant for situations where children may live in areas far from a juvenile detention facility and decide they would rather stay at the local jail so they can be near their families.

These exceptions to the prohibition of housing children with adults may be necessary under certain circumstances, however, it is crucial that certain protections be written into the law which S. 254 has not done. First of all, the law provides for a review hearing every five days. Sec. (13)( C )(ii). This hearing must be a meaningful hearing where the child is represented by counsel and not just a rubber stamping of an order by a judge every five days. The hearing is necessary to ensure that the child is not in any danger in the adult facility.

Also, to the extent that parents may “consent” to having their children stay in an adult jail, the law must have certain provisions to protect children such as: (1) The court must make a finding that it is in “the best interests of the child” before placing the child in the adult jail. This is to make sure that the decision is really on behalf of the child and not just a convenience for the state. (2) Like the five day review hearing in the above provision, the hearing must be a meaningful one where the child is represented by counsel and the judge is given an opportunity to review the child’s circumstances. (3) The law must provide that the parent(s) can revoke consent at any time and require the state to remove their child from adult jail. Again, this provision is necessary to protect the child in the event that the child was in danger in adult jail.

The ACLU believes that wherever juveniles, whether or not certified as adults, are in custody or found delinquent, they must be completely separated from any contact with adults in custody. Children are particularly vulnerable to violence and abuse by adult inmates and complete separation is necessary to protect the child’s rights while incarcerated.

(3). S. 254 would require states to make juvenile records available to schools and other law enforcement agencies. (Title II, sec. 1802).

Under the law of most states, juvenile records are kept confidential. The rationale behind the confidentiality laws is to protect the privacy of children. Children’s proceedings are held in family court where proceedings are not open. The rationale behind protecting the privacy of children and families is the idea that children, because of cognitive development, are not as responsible as adults for their behavior. It is in society’s interest to allow children the opportunity to rehabilitate themselves and prepare for a future without being hindered by the scar of bad behavior.

Under the “Juvenile Criminal History Record Grants” section, S. 254 mandates that in order to receive money, states would have to open up their records in two ways. First, states would be required to make records available to any school that the child may attend, including colleges. This provision flies in the face of the traditional rationale of allowing children to have a “second chance”. Revealing a child’s records may seriously impact that child’s ability to attend college and improve his or her life. The bill states that schools may not use the records in making an admissions decision, but it is unrealistic to think that this information would not be used to prevent admission of children into some colleges. Given the multitude of factors that schools rely on in admissions decisions, it would be extremely difficult for a child to prove that he or she had been discriminated against based on juvenile records. Furthermore, the bill does not provide any legal remedy to a child who has suffered discrimination.

Next, states would be required to make children’s records available to the same extent as adult records. The records would be on computer databases like NCIC and would be available to anyone doing a criminal record check. Again, the child would lose the “second chance” to rehabilitate and start a new life because the stigma of a juvenile conviction would carry over to adult life. The ACLU strongly opposes requiring states to open juvenile records to schools or making them available to the same extent as adult records.

III. Privacy Rights for Children Will Be Severely Compromised (1). Children’s Court Proceedings Would Be Open to the Public (Title I, Sec. 5032 (g)).

Traditionally, children’s court proceedings have been closed. Juvenile proceedings are considered family court. They are considered to be civil proceedings similar to a divorce or custody case. These types of cases have been kept private to protect the family from exposure to embarrassing information. There is also a desire to protect the juvenile from establishing a reputation that will permanently impact his future.

Making a drastic change from current law, S. 254 would require that all juvenile proceedings be conducted in open court unless good cause is established for a closed proceeding. Sec. 5032(g). The bill does not define “good cause” but does specifically state that a child’s age is not “good cause” to close a proceeding. Opening juvenile court will make the case completely public and grant the media complete access to the case. There is little hope of maintaining any type of privacy once this happens. The ACLU strongly opposes opening juvenile proceedings to the public.

(2). Federal Juvenile Records Will Be Released to Schools and Other Organizations. (Title I, Sec. 5038).

S. 254 loosens the previous restrictions against releasing juvenile records. Sec. 5038 (3) would allow them to be released for the following purposes:

• to the FBI to be maintained and used in the same manner as adult records, thus becoming a permanent piece of the child’s history;
• to be made public in response to an inquiry from a treatment agency;
• in response to an agency considering a person for a national securityclearance;
• to victims or their families to learn about any stage of the proceedings or to prepare their remarks at allocution; and
• to officials of a school including elementary, secondary and post-secondary, with the caveat that this information is not supposed to be used for admissions purposes.

The ACLU has been, and continues to be concerned with, the maintenance of criminal justice records in general. They are often inaccurate, and are sometimes abused, and place a permanent stigma on an individual.

The ACLU opposes this broad release of federal records, especially for non-law enforcement purposes. The privacy rights of a child and the societal interest in affording that child a future free from stigma should enjoy greater protection than release of records.

(3.) S. 254 would require mandatory testing of children without providing counseling or treatment.

Mandatory Drug Testing. (Title II, sec. 1801 (c )(2)). One of the federal requirements to receive block grant funding is that states have or will establish a drug testing program for juvenile offenders upon their arrest for any offense to be decided by the Governor. This requirement is objectionable because a child would be subjected to an invasive procedure even before it was established that he had committed any crime. The Constitution presumes a person innocent until proven guilty and this provision would impose a penalty before conviction. The bill requires testing but does not set aside any money to pay for the testin