Children’s panel turns to the experts “We all know that if we get someone sober and educated, and give them vocational skills and a job, we’re not going to see him in the juvenile justice system again. Those are the odds,” said Sixth Judicial Circuit Public Defender Bob Dillinger, describing his circuit’s comprehensive “one-stop shopping” of services at the Juvenile Assessment Center. Children’s panel turns to the experts Associate Editor Because of a zero tolerance policy against bringing weapons to school, a young child was tossed out for bringing an ax to class. Never mind that it was made of plastic and was part of his fireman uniform when he dressed up for Halloween. “I’m not making this up,” Robert Schwartz, executive director of The Juvenile Law Center in Philadelphia, told members of The Florida Bar’s Commission on the Legal Needs of Children, who let out a collective groan. “The school officials ended up apologizing,” Schwartz added. Not to the child or his parents, he said, but to the firefighters’ union that had protested the ax was a tool, not a weapon. Such zero tolerance policies popular in schools nationwide, he said, are bringing younger and younger kids into court, harming children and putting a tremendous strain on the juvenile justice system. He’s working on an American Bar Association resolution against them. Schwartz was one of 10 experts — including a law professor, a researcher, a public defender, a state attorney, a lawyer devoted to special education issues, and a teenager charged with armed robbery — who converged in Tampa on September 15-16 to enlighten the commission on issues affecting juvenile justice. The special commission, chaired by 11th Circuit Judge Sandy Karlan, is embarking on its second year, with a goal of working to solve the unmet legal needs of children who appear in Florida’s courtrooms — whether as victims, witnesses or defendants in civil, dependency or criminal court. After making a progress report to the Board of Governors, also meeting in Tampa in conjunction with the Bar’s General Meeting, Judge Karlan received its blessing to carry on. “We’re grateful to the Board of Governors and The Florida Bar for allowing us to have this commission and to do the work we’re doing,” Judge Karlan said, adding the commission’s goal is to have a report of recommendations to give to the Board of Governors by May. Bar President Herman Russomanno paid a personal visit, assuring commission members that the Bar is fully committed to their mission. “We thank this commission for the hard work you’ve done in the past year and for what you’ll be doing this coming year for the legal needs of children,” Russomanno said. “The Bar has made it its policy that our children are our greatest resource. With your work, if you can give some of these children back their childhood, we will accomplish great things together.” No matter how many advanced degrees a speaker possessed, how thorough their research, how impressive their resumes, or how many years they spent on the front-lines of juvenile justice, their recommendations often came down to good old common sense on how to fix a system that often seems to ignore common sense: “If you educate people, you reduce recidivism. It’s common sense,” said Joseph Tulman, professor at the University of District of Columbia, David A. Clark School of Law, who is also on the faculty of the National Judicial College teaching judges how to deal with children in adult court. October 1, 2000 Jan Pudlow Associate Editor Regular News Much of the discussion centered on the fact that Florida leads the nation in direct filing juveniles to adult criminal court. “Florida direct files more children than the rest of the states combined,” said Dillinger, the public defender. “Put a 16- or 17-year-old in adult prison and you’ve lost him. Might as well write him off.” Dillinger criticized the defense bar — including inexperienced assistant public defenders — for not giving judges more information to work with when the child first enters the court system. It’s not unusual, he said, for lawyers to first meet their child clients the morning of the court appearance. He also called it a “bothersome fact” that a lot of children going through the court system are not represented by a lawyer at all. “Some are not incompetent — they’re insane,” Dillinger said. “More and more are waiving their right to counsel.” Go to Jail for Help Though many agreed it’s a sad commentary that the best way to deliver services to children charged with crimes is to lock them up in the county jail, Shorstein was warmly received for his innovative program that direct files juveniles into adult court so that he can help them behind bars. Shorstein’s program — a combination of punishment, constructive programming and after care — was created in response to Jacksonville’s juvenile crime problem that skyrocketed 27 percent in 1992. It has received international attention and was featured on “60 Minutes.” “We decided to turn everything upside down and make juvenile crime our No. 1 issue,” Shorstein said. The violent repeat juveniles are sent to adult prison, but the ones with hope of turning around are sent to a special section of the Duval County Jail, where they receive everything from schooling to mentoring to counseling. When their time behind bars is up, adjudication is withheld, so they’re not branded convicted felons, and after-care counseling and foster care for those with no safe home to return to is provided. Despite the accolades Shorstein’s program has received and the statistics that juvenile crime in Jacksonville is down, Delbert Elliott, the director of The Center for the Study and Prevention of Violence at the Institute of Behavioral Science at the University of Colorado in Boulder, said research has shown that, in general, waivers to adult court do not work. They don’t help children and they don’t reduce crime, he said. Juveniles in adult prisons are at greater risk of becoming victims, they are less likely to get treatment for their problems, and recidivism is higher once the young people come out of adult prison, Elliott said. In addition, research has shown that the practice is rife with racial bias because more African-American children are direct-filed as adults than whites for the same crimes, he said. “We have states who have lowered the age to 10 to direct file,” Elliott said. Mendel, a researcher and consultant who wrote, “Less Hype, More Help: Reducing Juvenile Crime, What Works — and What Doesn’t,” stressed: “Kids are fundamentally different than adults. They break the law for different reasons than adults. They need a different system of justice.” While 45 states have adopted the get-tough philosophy, “Adult time for adult crime,” Florida is the leader in direct filing juveniles to adult court. Unlike other states that give the discretion to judges, Mendel said, Florida puts the decision in the wrong hands by allowing prosecutors to make that call. “This headlong rush to throw kids into adult prison is counterproductive,” Mendel said. “It actually increases criminality.” While Florida was first to seize upon direct filing, Mendel said, Florida is second in the nation in juvenile crime rates. To make matters worse, Mendel said, research has shown that direct-file practices actually punish the wrong kids. It’s mostly used against juveniles who commit property crimes and drug offenses, not violent or chronic offenders, he said. Nineteen-year-old Jason Bond brought his been-there, done-that testimony to the commission. As a 16-year-old, he was charged with his first crime: armed robbery. The prosecutor wanted to direct file him to adult court. Thanks to his guardian ad litem, Fran Feinberg, and family support, Bond was spared a trip to adult prison. Instead, he was sent to an out-of-state juvenile facility that was run like a strict prep school. The intense no-nonsense personal attention turned him around, said Bond, who is now attending Broward-Dade Community College and hopes to attend Florida International University on a track scholarship. “Kids being direct-filed, they’re not given a chance, in my opinion,” Bond said, describing himself as falling in with the wrong crowd in a public school system where “no one knew my name. I lost myself there.” How Would Oliver Twist Be Treated Today? Schwartz, of Philadelphia’s The Juvenile Law Center, said the child-versus-adult question is “the most troubling question. That’s a Florida question par excellence, given the direct-file numbers.” The underlying question, Schwartz said, is: What kind of kid are we talking about? Children have traditionally been broken down into the categories of Bad (send to juvenile justice); Sad (let child welfare workers handle); Mad (get the kid to mental-health treatment); and Can’t Add (needs special education services). “The case I love to talk about is Oliver Twist. He was a member of a street gang. But Charles Dickens portrayed him as more sad than bad. How would Oliver be treated today? Direct-filed as an adult?,” Schwartz asked. He called it a “disturbing trend” that the country is “using criminal law to respond to normal adolescent development.” For example, in Florida, it’s an offense for teens to smoke cigarettes. And nationwide, more and more first- and second-graders are making headlines when they’re charged with crimes. One of Schwartz’ biggest recommendations is that the dependency judge, who knows the child and family problems best, retain jurisdiction if that child is also charged with a crime. He gave the example of a child who was seriously emotionally disturbed, whose parents were both dead. When taken to a school for special testing, he snapped and trashed the classroom. Once he was adjudicated guilty of a crime, he couldn’t go back to his residential treatment home. “There ought to be a way the dependency judge can come back and say to the delinquency judge: `That kid is mine, not yours,’” Schwartz said. “I’d love it if the judges in dependency cases could retain jurisdiction if the child is arrested over county lines, so the judge who knows the kid can keep the case.. . . “We’re seeing it left and right, where children hit their foster parents and are charged with a crime. Our child welfare agencies can’t wait to close cases and send it to the Department of Juvenile Justice.” As a member of the American Bar Association’s Criminal Justice Section, Schwartz is working on a resolution to oppose zero tolerance policies in schools because it operates with the rigidity of a mandatory sentence. “If The Florida Bar could support it, that’d be great,” he said. Barbara Burch, the education attorney for the Juvenile Advocacy Project of the Legal Aid Society of Palm Beach County, said, “I have an 11-year-old client with five felonies for batteries on school board employees (for acting out in class). If this kid does something at age 15, he’ll be direct-filed to adult court.” Her biggest wish is that Florida provide surrogate parents to children with special education needs — who can serve as “the one adult who knows what’s going on and can advocate for children.” She also issued a hue and cry for more attorneys to focus on special education advocacy, adding that federal law for Individuals with Disabilities Education Act (IDEA) cases provide for paying attorneys’ fees at market rates. “We don’t have the number of attorneys to do this. We need to get the bar involved.” Tulman, the Washington law professor, trained 100 lawyers to handle special-education advocacy cases, including class-action lawsuits. “Eighty to 90 percent of kids locked up in your facilities qualify as educationally disabled,” Tulman said. “It’s a phenomenal number.” Stressing that getting parents involved to help children receive the services they are entitled to under IDEA (Title II of Americans with Disabilities Act) is a sure-fire way to help children with education disabilities. “We can do remarkable stuff to stabilize families by getting special education services,” he said. And while no state in the nation is in compliance with the IDEA, he said, special education law is a powerful incentive for schools to provide services, rather than pay attorneys. Ideally, Tulman said, there would be a way to better help children by getting various agencies to sit together and shift funds from multiple pools of budgets. Now, too often, he said, agencies would rather shift the kid to become some other agency’s problem. “Duh! If we help people become productive, it will help the kid and the community and save money,” Tulman said of activities all children need to define themselves as individuals — whether it’s music, art or sports — the very things that are cut out first in programs for kids. “I don’t care what side you come down on, put money in children ages zero to 18. If you’re the toughest prosecutor in the world, it makes sense. Most state attorneys agree, but then they go back home and talk about quicker death penalties to get re-elected,” said Fourth Judicial Circuit State Attorney Harry Shorstein. “Many parents have to give up custody of their kids to get them services,” said Burnim, of the dilemma that Medicaid is the biggest resource to pay for mental health services and no one has the right to mental health services. He stressed that what works best are intensive services to kids and their families in their homes, not confining kids in residential treatment facilities and then sending them back to the environment from which they came with no support. The adults who best know the child, including teachers and family members, need to be at the table with social workers and lawyers to create the best plan for the child. “Our nation locks up 105,000 children a day,” said Richard Mendel, who served as director of research and public policy for The South Bronx Overall Economic Development Corp. “Yet only 5,000 children are treated in home-based multisystemic functional family therapy.” That’s the name of intensive family-oriented, home-based counseling services that research has shown works best to help juveniles and was endorsed by the U.S. Surgeon General in his 1999 report to the nation on mental health. “You can’t help kids without helping their families. We love poor kids, but we tend to hate their families.. . It sounds mushy and not professional, but it comes down to: What do we need for this kid? What will work? Piece together a plan that’s best for the kid and watch it. If it’s not working, try something else,” said Ira Burnim, legal director of the Judge David L. Bazelon Center for Mental Health Law in Washington, D.C. “It’s crazy that kids from Miami are doing their time in the Panhandle,” said Francisco Alarcon, deputy secretary of the Florida Department of Juvenile Justice. He shared his frustration that while he has funds to build more therapeutic foster homes where they’re most needed in South Florida, he is unable to use sites the state already owns because of the NIMBY (Not in My Back Yard) factor. “Isn’t it odd that criminal court is the only way to get help for kids? It’s an odd notion to have to resort to jail to get help for kids,” said Schwartz, of Philadelphia’s The Juvenile Law Center, in response to Shorstein’s program in the Duval County Jail for juveniles he direct files as adults in order to give them comprehensive counseling and education services.