Justice, Mercy, and Youthful Indiscretion

   

  I come from a larger than average extended family – which includes more than twenty cousins. We all grew up either in poverty or close to it. More than half of those cousins have criminal records. Some learned from their mistakes, but some did not. All of them, however, did their time. Many of them have problems finding meaningful employment because of the mistakes they committed when they were young – before they ever reached adulthood.

      When I taught my high school students criminal law through the Street Law program (overseen by Professor Marrus – the Director of the Center for Children, Law, and Policy), I showed them the above Ted Talk. I emphasized to them that while law and order is important, justice along with mercy is essential. Most of the kids were receptive to the idea, especially because either they or their parents had a criminal record, and that record adversely affected their lives. Some of my students had to work to supplement the family income.

      When I enrolled in the Juvenile Record Sealing Clinic at the University of Houston Law Center, I had the privilege of advocating for two clients. Both committed offenses when they were young – one was fourteen at the time of the offense. Both are now in their twenties. Both learned their lessons, did their time, learned from their mistakes, and are now good, contributing members of society. Both were told that if they completed their community supervision, their records would “go away.” Unfortunately, that wasn’t true. Both had trouble finding meaningful employment because their record still stuck with them – even though they committed no serious infractions since their probation. When I went to court, the District Attorney’s office opposed one of my cases, which meant that I had to give an oral argument in front of the judge rebutting the assistant district attorney. Thankfully, with the help of my professors, both records were sealed.

      It still boggles my mind on why the District Attorney’s office opposed my cases. I understand the need to punish individuals guilty of crimes, and I understand retribution to an extent. However, what’s more important is the rehabilitation of juveniles who commit offenses. In the land of the free, we have 2.3 million people in confinement, making the United States the most incarcerated nation on the planet. We need creative solutions to decrease recidivism, decrease the jail population, and increase the number of productive members of society. Criminal records may affect financial aid for college, child custody, citizenship, employment, rights to own a firearm, and subsequent criminal cases. Youthful indiscretion should not define a person for the rest of their life.

      The cost of sealing a juvenile record, at least in the Houston area, can cost around $800 because of the time involved.  There is no possible way that the clients I worked with could have afforded that price. The Juvenile Record Sealing Clinic, which is operated by the Juvenile and Capital Advocacy Project, seals records free of charge for clients. I’m thankful that both of my clients were fortunate enough to be selected for the program. At the end of the process, and after hours of paperwork, I couldn’t help but wonder why the advice they previously received wasn’t true: why don’t their records just go away? 

      I propose that we make that false statement mentioned earlier – that “the records would just go away” – become reality by codifying the following into law:

Every juvenile offender whose offense does not result in serious bodily harm or death shall be placed on deferred adjudication for no more than two years. The court shall issue an order of nondisclosure within 36 hours of the completion of the deferred adjudication. The offender’s record shall be expunged no more than 7 years after the deferred adjudication is completed.

Now, let me explain what that means.

Deferred Adjudication” is a special form of judge-ordered community supervision (commonly known as “probation”) that permits a defendant to accept responsibility for a crime without an actual conviction being placed on the record. An “Order of Nondisclosure” is a court order prohibiting public entities such as courts and police departments from disclosing certain criminal records. It also legally frees an individual who is granted an order of nondisclosure from disclosing information about their criminal history (subject to the order of nondisclosure) in response to questions on job applications. The criminal record may be disclosed to other criminal justice agencies for criminal justice or regulatory licensing purposes, as well as several non-criminal justice agencies and entities (e.g. Texas Medical Board, Texas Board of Law Examiners, Texas Education Agency). “Expunctions” completely erase the offense from the criminal record. 

Source: Texas Office of Court Administration

      By mandating deferred adjudication, juvenile offenders will be able to stay out of confinement so long as they successfully complete their community supervision. The deferred adjudication may have certain conditions attached by the judge, like anger management. Hopefully, if judges are creative enough, they can address problems, prescribe solutions that will help the offender, and prevent a downward spiral toward recidivism. The order of nondisclosure prevents employers from discriminating against the offender, which will increase the offender’s likelihood of finding meaningful employment. The offense, however, will still be available to police agencies and district attorney’s offices in case the juvenile reoffends. This will allow agencies, law enforcement, and courts to see recidivism and respond accordingly. If the offender successfully completes deferred adjudication and does not reoffend, and the offender demonstrates that they learned from their mistake and won’t repeat it, their mistakes of their youth will permanently be taken off their record.

      Our justice system has created a country that has the second highest incarceration rate per capita and the largest prison population in the world. Juveniles who are incarcerated for a crime are 67% more likely to receive an additional jail sentence by age 25. A juvenile who receives a jail sentence is 39% less likely to graduate high school. Our justice system needs reformed. Old, outdated policies are only hurting us as a society. We must reform the justice system to decrease the jail population and increase the number of productive members of society. We cannot let the mistakes of youth damn an individual for the rest of their lives. Rehabilitation – with both justice and mercy – must be the focal point of juvenile criminal proceedings for that to happen.

      I believe that every person is better than their worst day. For many juvenile offenders, their worst day was committing the offense that they were charged with. I believe that mercy is a required component of justice, and our criminal justice system must reflect that. In closing, I would like to present a quote from Just Mercy by Bryan Stevenson, 

“I’ve come to believe that the true measure of our commitment to justice, the character of our society, our commitment to the rule of law, fairness, and equality cannot be measured by how we treat the rich, the powerful, the privileged, and the respected among us. The true measure of our character is how we treat the poor, the disfavored, the accused, the incarcerated, and the condemned.

We are all implicated when we allow other people to be mistreated. An absence of compassion can corrupt the decency of a community, a state, a nation. Fear and anger can make us vindictive and abusive, unjust and unfair, until we all suffer from the absence of mercy and we condemn ourselves as much as we victimize others. The closer we get to mass incarceration and extreme levels of punishment, the more I believe it’s necessary to recognize that we all need mercy, we all need justice, and – perhaps – we all need some measure of unmerited grace.”

      If you would like to learn more about the Juvenile Record Sealing clinic, the process involved, or the Juvenile and Capital Advocacy Project, here is a radio interview with Professor Katya Dow and students Tressa Surratt and Lizzie Lawrie.

Weekly Roundup

Abbott signs House Bill 3859 into law

Governor Abbott recently signed a House bill that allows religious adoption agencies to reject applications from same-sex couples. Proponents of the bill argue that it will help to keep adoption agencies from leaving the state, but opponents believe this will make the foster care crisis even worse by excluding not only same-sex couples but also members of certain non-Christian religions. Sarah Kate Ellis, the president of GLAAD, said, “As a mother, it saddens me that a child can now be denied the chance to live with a loving family in Texas.” This law means that children in Texas now have fewer options for getting adopted, and these organizations have more opportunities to discriminate against the LGBTQIA community. Read more here.

Michelle Carter found guilty in texting assisted-suicide case

Michelle Carter was found guilty of involuntary manslaughter on June 16, 2017 after sending numerous text messages to her boyfriend encouraging his death by suicide back in 2014. Massachusetts, the state where Carter lives, does not have a law on the books against assisted suicide. Yet, Carter now faces up to 20 years in prison. This verdict potentially sets a dangerous precedent for words alone constituting murder charges. “This is a killing in which the murder weapon was words, and that is an incredibly broad view of causation and an incredibly broad view of the manslaughter laws in Massachusetts and creates serious concerns about expanding criminal law without doing so through the legislature,” ACLU Massachusetts’ legal director Matthew Segal told Newsweek Friday. This could have dangerous implications for children and teens, as they primarily use text messaging for communication. Read more here.

Children dying in hot cars and not all states have laws to protect them

An average of 37 kids die in the United States each year from vehicular heat stroke. According to NoHeatStroke.org, Texas had the most such deaths from 1998 to 2015, with 100. Florida had 72 deaths, California had 44, Arizona had 30 and North Carolina had 24. 12 children have died so far this year alone, including a 5-year-old boy in Arkansas who passed away after being left in a day-care van (Read about it here). Only 19 states have active laws that make it illegal to leave a child alone in a vehicle. Given that children are especially at risk to vehicular heat stroke due to their biology, it is puzzling that not every state has laws protecting them in place. Read more here. An especially bright 10-year-old boy has an invention on GoFundMe to protect children from car related deaths, click here to read about his product and donate.

Weekly Roundup

Photo Exhibit, film, speaker to address juvenile justice issues, Eric Jome, Illinois State University, March 1, 2016.

A photo exhibition focused on juvenile detention centers, the screening of a documentary on the lives of troubled young women, and a presentation on a prison art program will draw attention to issues surrounding the American juvenile justice system. The events, held in March, are presented in collaboration with Illinois State University’s 2016 Social Work Day Conference, which focuses on ways to keep youth out of the justice system.

ADHD in Juvenile Offenders: Treatment Issues Nurses Need to Know, Deborah Shelton, PhD, RN, BC; Gerald Pearson, PhD, APRN, March 5, 2016

It is estimated that 45% to 75% of the young people in the juvenile justice system have one or more disabilities (National Center on Education, Disability and Juvenile Justice, 2001; Shelton, 2001), including emotional and behavioral disorders, learning disabilities, and developmental disabilities. The most common diagnoses are ADHD, learning disabilities, depression, developmental disabilities, conduct disorder, anxiety disorders, and posttraumatic stress disorder (PTSD). In many cases, young people are dually diagnosed and experience co-occurring emotional and substance abuse problems; more than half also have a diagnosis of chemical dependence (Center for Mental Health Services, Substance Abuse and Mental Health Services Administration, 2003). Among juvenile offenders, it is estimated that more than 30% may have ADHD (Shelton, in press,), and 40% of boys with untreated ADHD will be arrested for a felony by the time they reach their 16th birthdays (Wasserman, Miller, & Cothern, 2000).

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China’s Two-Child Policy: What’s Next? By Emily Feng, March 4, 2016.

Policies to promote gender equality and support non-marital births have had better luck achieving tangible results in the Scandinavian and European countries, but these policies are unlikely to be adopted by China. “I suspect there will be a bit of a backlash against the gains made by women, similar to the backlash in U.S. post world war when men returned from war and there was pushback for women to resume maternal, homemaker roles,” says Mei Fong, a journalist whose forthcoming book One Child draws from her extensive reporting on the policy. In China, couples who give birth out of wedlock are still fined and their children denied hukou,making them ineligible to access basic social services such as public education.

However, the greatest obstacle to creating programs and provincial laws to implement the two-child policy is economic inequality. The brunt of the demographic imbalance has been dealt unequally among China’s provinces. Cities like Shanghai and Beijing attract millions of transplants and migrant workers each year and have been cushioned from the effects of the labor shortage. Higher living costs and better social welfare systems (for those who have urban hukou, at least) have caused many of China’s urban middle class to voluntarily forgohaving more than one child. Meanwhile, couples in areas like Anhui or Shandong who supply much of the labor that powers China’s labor-intensive industries are more likely to have more than one child – but gauging exactly how much material support and through what channels that support should be offered is unclear. The cost of having a second child can be so prohibitive that some couples who would otherwise want to raise two childrenmay not be able to afford to.

House votes 117-0 to approve Juvenile Detention Cost Sharing Bill, By Jenna Buzzacco-Foerster, March 9, 2016.

A bill intended to end the fight over juvenile detention costs is headed to the governor.The Florida House voted 117-0 to approve the measure (SB 1322). The approval came just days after the Florida Senate voted 38-0 to approve the bill. The proposal requires counties that aren’t considered fiscally constrained, usually more affluent, urban areas, to pay $42.5 million for all detention costs in fiscal 2016-17. The state would pay the remaining costs. In the years that follow, the state would spit detention costs 50-50. The state would continue to cover the costs for detention facilities in fiscally constrained counties, usually poorer or rural areas. The state would also cover the cost of detaining juveniles who are out of state.