Investigation of the
Shelby County Juvenile Court
United States Department of Justice
Civil Rights Division
Apri
l 26, 2012
Ta
ble of Contents
Summary of Findings ...............................................................................................................1
Investigation ..............................................................................................................................5
I. BACKGROUND ........................................................................................................7
A. History of Juvenile Courts .....................................................................................8
B. Modern Challenges Facing Juvenile Courts .........................................................9
II. DUE PROCESS VIOLATIONS ..............................................................................11
A. Constitutionally Inadequate Notice of Charges .................................................11
B. Violation of Right to be Free from Self-Incrimination ......................................15
C. Failure to Provide Timely Probable Cause Hearings ........................................17
D. Failure to Conduct Constitutionally Required Transfer Hearings ..................18
III. EQUAL PROTECTION AND TITLE VI FINDINGS ........................................22
A. Legal Standards .....................................................................................................22
B. Methodology to Assess Disproportionate Minority Contact .............................23
C. Findings of DMC in JCMSC ................................................................................30
IV. PRACTICES THAT CONTRIBUTE TO DUE PROCESS AND EQUAL
PROTECTION VIOLATIONS ..............................................................................46
A. Fundamental Misunderstandings About JCMSC’s Purpose and Players .......46
B. Juvenile Defenders ................................................................................................48
C. Other Recommendations ......................................................................................51
V. DETENTION FINDINGS .......................................................................................56
A. Legal Standards .....................................................................................................56
B. Findings of Protection from Harm Violations .....................................................56
VI. REMEDIAL MEASURES .......................................................................................60
A. Due Process ............................................................................................................60
B. Equal Protection ....................................................................................................63
C. Protection from Harm ..........................................................................................65
1
Summary of Findings
More than 40 years ago, the Supreme Court established the parameters of
due process for children facing delinquency proceedings and thereby subject to the
“awesome prospect of incarceration.” In re Gault, 387 U.S. 1, 36 (1967). The Court
held that children must be afforded the right to counsel, the right to notice of the
charges, the right to be free from self-incrimination, and the right to confront
witnesses. Gault, 387 U.S. 1. The year before Gault, the Supreme Court held that a
child facing the possibility of a transfer to adult criminal court must be accorded the
protections of due process, including a hearing, the right to representation by
counsel, access to the evidence considered in determining the waiver, and, where
the court waives its jurisdiction, a statement of the reasons for transfer on the
record. Kent v. United States, 383 U.S. 541, 561-62 (1966). In Shelby County, it is
JCMSC’s obligation to ensure that due process principles are met. JCMSC must
also administer justice in a non-discriminatory manner that comports with equal
protection and does not result in discriminatory impacts that violate Title VI.
We find that JCMSC fails to provide constitutionally required due process to
children of all races. In addition, we find that JCMSC’s administration of justice
discriminates against Black
1
We have reasonable cause to believe that JCMSC fails to ensure due process
for all children appearing for delinquency proceedings.
children. Further, we find that JCMSC violates the
substantive due process rights of detained youth by not providing them with
reasonably safe conditions of confinement.
• JCMSC fails to provide timely and adequate notice of charges to children
appearing on delinquency matters by not providing petitions of their
charges prior to their detention hearings or even, in many cases, before
the adjudicatory hearing (the juvenile equivalent of a trial). This violates
the requirement that notice be provided “sufficiently in advance of
scheduled court proceedings so that reasonable opportunity to prepare will
be afforded.” Gault, 387 U.S. at 33.
• JCMSC fails to protect children from self-incrimination during probation
conferences by (1) failing to advise juveniles of their Miranda rights prior
to questioning them about the facts underlying their charges; (2) not
obtaining informed waivers of those rights before asking the children to
1
We use the terms Black and White instead of African-American and Caucasian because
they more accurately describe the children we examined in JCMSC. The term Black
includes a broader range of children, including those who may not have been born in the
United States. The term White does not include those identified as Latino or Hispanic.
Black and White children comprise 97.8% of the juveniles referred to JCMSC. As such, we
focused on the outcomes for children in these groups.
2
divulge potentially incriminating statements about their charges; and (3)
eliciting self-incriminating statements in the absence of Miranda
warnings and informed waivers. This is contrary to Gault’s holding that
“the constitutional privilege against self-incrimination is applicable in the
case of juveniles as it is with respect to adults.” Id. at 55.
• JCMSC fails to hold timely probable cause hearings for children arrested
without a warrant by failing to hold detention hearings on weekends and
holidays. When a person has been arrested without a warrant, the Fourth
Amendment requires that a judicial officer must determine that probable
cause exists to believe the person has committed a crime in order for the
state to continue the person’s detention. Gerstein v. Pugh, 420 U.S. 103
(1974). In County of Riverside v. McLaughlin, 500 U.S. 44, 57 (1991), the
Court held that probable cause determinations must be made within 48
hours of a warrantless arrest. Children at JCMSC experience extended
detentions because the court has no procedure in place to hold detention
hearings on weekends, extended holiday weekends, and holidays. For
example, JCMSC detained 815 children over a five-year period for three
days or more before their probable cause hearings.
• JCMSC fails to provide adequate due process protections for children
before transferring them to the adult criminal court. We observed
hearings and reviewed transcripts in which Magistrates made transfer
decisions after making cursory inquiries (and in some cases no inquiries)
into the child’s background, after failing to hold a waiver hearing, or after
asking the child to self-incriminate. This violates the minimal
requirement that transfer proceedings “must measure up to the essentials
of due process and fair treatment.” Kent
, 383 U.S. at 562.
We also have reason to believe that JCMSC engages in conduct that violates
the constitutional guarantee of Equal Protection and federal laws prohibiting racial
discrimination, including Title VI. We retained a leading, nationally recognized,
expert on measuring disparities in the juvenile justice system through statistical
analysis. Statisticians in the Department of Justice’s (“DOJ”) Office of Justice
Program’s Bureau of Justice Statistics and National Institute of Justice peer
reviewed the expert’s work. The expert used two methodologies to make this
determination. First, he reviewed JCMSC’s Relative Rate Index (“RRI”), the
reporting mechanism required by DOJ’s Office of Juvenile Justice and Delinquency
Prevention (“OJJDP”).
2
2
Our consultant was one of the developers of the RRI mechanism.
The RRI compares Disproportionate Minority Contact in
Shelby County with other counties throughout the nation. Our consultant also
examined JCMSC’s case data – more than 66,000 files – over a five-year period to
assess the outcomes throughout the different phases of a case, using odds ratio and
logistic regression techniques. These techniques track the odds that a child’s case
3
will be handled in a specific way at different decision points in the juvenile court
process. The cases range from misdemeanor offenses, such as trespassing, to
serious felony offenses, such as murder. Both methods show that Black children are
disproportionately represented in almost every phase of the Shelby County juvenile
justice system, including pre-trial detention and transfers to criminal court.
Moreover, the data shows that in certain phases of the County’s juvenile justice
system, race is – in and of itself – a significant contributing factor, even after
factoring in legal variables (such as the nature of the charge and prior record of
delinquency) and social variables (such as age, gender, and school attendance).
• The statistical analysis shows that Black children in Shelby County are
less likely to receive the benefits of more lenient judicial and non-judicial
options. While we found that the impact of some legal and social factors
reduced the impact of race, race was still a statistically significant factor
in determining whether a child would receive lenient treatment (such as a
warning) as opposed to more serious sanctions. Specifically, Black
children were one third less likely to receive a warning than White
children, even after accounting for other factors such as prior contacts
with the court, the severity of the charges, gender, and education.
• We also found a disparity in the initial detention of Black children as
compared to White children. The case data showed that a Black child was
more than twice as likely to be detained as a White child. This number
remained unchanged after accounting for other legal and social factors.
• We also found a substantial disparity in the rates of transfers to adult
court. The RRI shows that JCMSC transfers Black children to adult
criminal court more than two times as often than White children.
Analysis of the case files shows that Black children in JCMSC have a
greater odds ratio (2.07) of being considered for transfer to the criminal
court and have a substantially higher chance of having their case actually
transferred to the criminal court. Even after accounting for other
variables including the types of offenses, prior offenses, age, and gender,
the odds ratio associated with race was only slightly reduced to 2.02. This
disproportionate impact cannot be explained by factors other than race.
Our investigation also included a review of JCMSC’s detention facility.
There we found several violations to the children’s substantive due process rights to
reasonably safe conditions of confinement and freedom from undue bodily
restraints. Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). In particular,
JCMSC subjects children at the detention center to unnecessary and excessive
restraint, including use of restraint chairs and pressure point control tactics. These
restraints endanger the safety of the children detained in the facility. JCMSC has
recently informed us that it is taking steps to resolve these excessive restraint
issues.
4
JCMSC’s failures interfere with the proper administration of juvenile justice,
erode public confidence in the system, and fail to promote public safety. Due
process and equal protection guarantees are critical elements of a functioning
justice system, especially where the court’s obligation is to provide for the “care,
protection, and wholesome moral, mental and physical development of children”
while ensuring the protection of the community. Tenn. Code Ann. § 37-1-101 (a)(1)
(West 2011). Unfair and unequal treatment undermines the rehabilitation of young
people who encounter the justice system.
Such failures often lead to a loss of liberty and may contribute to a child’s
continued contact with the juvenile justice system and subsequent contact with the
adult criminal justice system. Studies show that children involved in the
delinquency system are better served by treatment rather than confinement.
3
Studies also show that a child’s initial interaction with the juvenile justice system
may impact how the child progresses through the system at later junctures. For
example, the initial pretrial detention proceeding has far-reaching implications for
a child as demonstrated in a 2003 Florida study finding that children detained at
pretrial proceedings were three times more likely to be confined at adjudication
than children who were not detained.
4
Similarly, decisions to transfer children to adult court based on race, while
obviously violative of equal protection, also have serious criminal justice
consequences. Studies have found that children who are transferred have a higher
likelihood of re-offending and continuing anti-social behaviors. For this reason, a
review of studies commissioned by the Centers for Disease Control and Prevention
(“CDC”), assessing the effects of transfer laws on juveniles, concluded that “transfer
policies have generally resulted in increased arrest for subsequent crimes, including
violent crime, among juveniles who were transferred compared with those retained
in the juvenile justice system.”
Juvenile court proceedings that lack
adequate due process protections and are applied disproportionately to one group of
children based on their race cause real harm to the children appearing before the
court.
5
3
See e.g. Chassin et al., Substance Use Treatment Outcomes in a Sample of Male Serious
Juvenile Offenders, 36 J. Substance Abuse Treatment, 36 (2009) (concluding that drug
treatment led to reduction in re-offending).
The review also noted, “To the extent that transfer
4
Office of State Courts Administrator, Florida’s Juvenile Delinquency Court Assessment,
24 (April 2003).
5
Department of Health and Human Services, Centers for Disease Control and Prevention,
56 Morbidity and Mortality Weekly Report, No. 9, Recommendations and Reports, Effects
on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the
Adult System: A Report on the Recommendations of the Task Force on Community
Preventive Services 9 (2007).
5
policies are implemented to reduce violent or other criminal behavior, available
evidence indicates that they do more harm than good.”
6
Investigation
In essence, the impact of
deficiencies in the administration of juvenile justice is concrete, not theoretical,
contributing to a child’s unnecessary confinement and deeper involvement in the
system.
We began our investigation on August 11, 2009. In January 2010 and 2011,
we visited with consultants in the fields of juvenile representation, statistical
analysis, and juvenile protection from harm. We interviewed court personnel,
including Magistrates, probation counselors, and attorneys; children appearing
before the court on delinquency matters; and administrators. We reviewed
documents, including policies and procedures, recordings of hearings, court
documents, case files, detention material, and statistical data. Consistent with our
commitment to conduct our investigations in a transparent manner and to provide
technical assistance where appropriate, we conducted exit conferences with JCMSC
officials, during which our consultants conveyed their preliminary observations and
concerns.
The cooperation and assistance of Judge Curtis S. Person was tremendously
valuable to our review. We would like to express our appreciation for this
cooperation. Judge Person met with us on several occasions and encouraged court
personnel to provide us with full access to the information necessary for our review.
The Magistrates, staff, and administrators of JCMSC were consistently
accommodating, courteous, and professional throughout our investigation. The
commitment of court personnel to the children’s well-being was evident. Judge
Person and court personnel have demonstrated a desire to continue in a
collaborative manner to remedy the deficiencies within JCMSC. We welcome this
opportunity to continue working with Judge Person and the other stakeholders to
improve the court’s services to the children appearing before it on delinquency
matters.
Our investigation was conducted against the backdrop of, and informed by,
the concerns expressed by Shelby County residents about the due process accorded
children by JCMSC and the disproportionate impact on Black children appearing
before the court. In particular, on January 15, 2007, members of the Commission’s
Juvenile Court Ad Hoc Committee submitted a Complaint and Request for
Investigation (“CRI”) to the Civil Rights Division. The CRI outlined problems with
the availability of an independent attorney for children accused of criminal offenses,
the disparate treatment of Black children with respect to alternatives to secure
6
Id.
6
detention and diversion programs, and excessive restraints used against children in
the detention center.
On May 23, 2007, the Commission’s Juvenile Court Ad Hoc Committee issued
a preliminary report and recommendations to address a number of concerns they
had with the court, including concerns about the disproportionate rate at which
Black children were transferred to the criminal court, limitations placed on the
children’s right to confront witnesses against them, inadequacy of the notice of the
charges against them, and limited opportunity to consult with an attorney.
In June 2007, a report by the National Center for State Courts (“NCSC”)
commissioned by the Shelby County Board of Commissioners also noted problems
with JCMSC’s approach to due process and equal protection issues. The NCSC
study, however, did not focus on those issues and made only preliminary
assessments. Among the observations cited in the NCSC study were delays in
holding detention hearings, delays in appointment of counsel to children in
delinquency proceedings, and concerns about disproportionate minority contacts.
On June 28, 2007, the Memphis Bar Association (“MBA”) adopted a number
of recommendations to improve the due process and other systems in JCMSC and
requested that Judge Person implement the recommendations. While not entirely
focused on due process and equal protection issues, the MBA recommended that
juvenile defense attorneys be allowed more time to prepare for transfer and
adjudication hearings, that probation officers refrain from interviewing children in
delinquency matters before notifying their attorneys, that the court ensure proper
preservation of its records for the purpose of appeals, and that the court increase
awareness of disproportionate minority contact issues.
Our review commenced more than two years after these reports. Our
findings here, in large measure, are consistent with the reports’ conclusions about
deficiencies and weaknesses in the administration of juvenile justice by JCMSC.
Since our investigation commenced, JCMSC has made progress in addressing some
of our concerns and the concerns expressed by local residents.
First, in a cooperative venture with the Memphis City Schools and Memphis
Police Department, JCMSC supported a summons in lieu of transport program for
certain offenses. Under the summons program, started in July 2010, the police will
not necessarily arrest and transport children to the JCMSC’s detention center for
certain minor offenses such as disorderly conduct and trespassing.
7
7
The offenses include disorderly conduct, theft of property under $500, criminal trespass,
vandalism under $500, assault, gambling, and simple possession of marijuana.
Instead, the
program encourages police to exercise their discretion to give the suspected child a
summons to appear before the court at a later date. This change has significantly
reduced the population of children held in the detention center. According to the
7
court’s internal reports, the number of children held in the detention center
between 2009 and 2010 was reduced by 1,292 children.
Second, the detention center now employs a new detention assessment tool
which, while still needing improvement,
8
Fourth, beginning in 2009, the Court appointed counsel for children prior to
the initial detention hearing. In addition, JCMSC restructured the appointment
process so that defense attorneys pick up fewer new cases at one time. With more
time to devote to each new client, defense attorneys can provide a higher quality
representation at detention hearings. JCMSC also sponsored several trainings in
2010.
has led to an increased number of children
being sent home instead of being held at the detention center following an arrest.
Third, JCMSC has been designated as a Juvenile Detention Alternatives Initiative
(“JDAI”) site through the Anne E. Casey Foundation. JDAI sites work to increase
alternatives to secure confinement of children and to reduce racial disparities in the
administration of juvenile justice.
9
Finally, JCMSC has worked with Memphis City Schools to start a school
program in the detention center.
While these efforts are commendable, systemic failures that violate the
constitutional rights of the children appearing before JCMSC continue. Even with
these positive developments, deficient practices in JCMSC undermine JCMSC’s
efforts to provide due process and equal protection to children. By much further
addressing these problematic practices, JCMSC has the potential to provide
services in conformity with best practices.
I. BACKGROUND
JCMSC processes more than 11,000 delinquency matters each year, including
a range of offenses from misdemeanors (such as disorderly conduct) to felony
offenses (such as homicide-related offenses). These matters arise in the city of
Memphis and other communities in Shelby County including Arlington,
Germantown, and Lakeland. A large number of these matters are diverted from
formal charges through the court’s probation services and non-judicial agreements.
The Shelby County District Attorney General’s Office (“DA”) formally charges
approximately 4,100 juvenile matters a year. On average, 190 of these matters are
8
JCMSC’s detention assessment tool is heavily geared towards detention and does not
provide enough credit for positive attributes.
9
These trainings included: Judicial Response to Alcohol and Other Drugs (sponsored by
the National Council of Juvenile and Family Court Judges) in June 2010; Basic Ethics in
Juvenile Court in October 2010, and Effective Representation of Juvenile Justice
Defendants in October 2010.
8
transferred annually to the adult criminal court. As Juvenile Court Judge, Curtis
Person presides over the Juvenile Court, including its delinquency, administrative,
dependency and neglect, and detention center components. A full-time staff of more
than 250 and six appointed Magistrates, who preside over cases and recommend
final orders, assist Judge Person. Our review focused on the Juvenile Court’s
delinquency and detention components.
A. History of Juvenile Courts
To understand the mission and challenges facing modern juvenile courts such
as JCMSC, it is helpful to understand the ideological shifts that courts have gone
through in their treatment of children. Before 1899, the law made no distinction
between children over seven and adults. States prosecuted children in the same
manner as adults and sentenced them to lengthy periods of incarceration in adult
prisons.
After a reform movement in the late 19
th
century, states began establishing
separate courts for juveniles. These new courts recognized that children were not
as culpable as adults for their actions, and that children could be rehabilitated into
productive citizens more easily than adults. The courts were based on a doctrine of
“parens patriae” where the court stood in place of the parents and decided what was
best for a child. With this mission to reform, not punish, children, the juvenile
courts functioned in a manner that did not prioritize due process. In fact, bedrock
due process protections afforded adults were considered restrictive for juvenile court
judges, who sought to work informally to treat, guide, and rehabilitate young
people.
In the 1950s and 1960s, juvenile courts shifted focus again amid claims that
the relaxed nature of juvenile courts harmed children more than it helped. While
juvenile courts offered less formal court proceedings, they still had the power to
subject children to the significant consequences of a delinquency adjudication,
which could include long-term confinement in an institution. The Supreme Court
described the quandary facing most juveniles in its first opinion specifically
addressing juvenile courts: “There may be grounds for concern that the child
receives the worst of both worlds: that he gets neither the protections accorded to
adults nor the solicitous care and regenerative treatment postulated for children.”
Kent v. U.S., 383 U.S. at 556. One year later, the Supreme Court decided In re
Gault, its seminal opinion requiring due process protections for juveniles in
delinquency proceedings. Gault expounded upon the deficiencies in juvenile courts,
noting that “[d]epartures from established principles of due process have frequently
resulted not in enlightened procedure, but in arbitrariness.” Gault, 387 U.S. at 18.
Gault focused not on creating a system of rigid formality, but on ensuring
that juveniles were afforded the protections of due process. In essence, the Court
outlined important constitutional protections afforded to juveniles in the
delinquency process — the right to counsel, the right to notice of the charges, the
9
right to confront witnesses, and the right to be free from compulsory self-
incrimination.
B. Modern Challenges Facing Juvenile Courts
Given this historical context and constitutional mandate, juvenile courts,
including JCMSC, must perform a balancing act. On the one hand, they have a
mission (which benefits from flexibility and informality) to rehabilitate troubled
young people. On the other hand, they must satisfy due process, which requires
formal rules and procedures. To achieve this difficult balance, courts must be
vigilant about eliminating lingering paternalistic attitudes that infringe upon the
due process rights of juveniles. This means that for children accused of delinquent
acts, juvenile courts must engage in the evidentiary testing required by due process
to make a delinquency finding before engaging in the rehabilitative process. Gault,
387 U.S. at 27 (noting that the decision applies to “proceedings to determine
delinquency,” not to disposition).
In Gault, the Supreme Court envisioned a juvenile court capable of balancing
these competing demands, where an adversarial testing of facts could coincide with
a system attuned to the unique needs of young people:
Of course, it is not suggested that juvenile court judges should fail
appropriately to take account, in their demeanor and conduct, of the
emotional and psychological attitude of the juveniles with whom they are
confronted. While due process requirements will, in some instances,
introduce a degree of order and regularity to Juvenile Court proceedings to
determine delinquency, and in contested cases will introduce some elements
of the adversary system, nothing will require that the conception of the
kindly juvenile judge will be replaced by its opposite.
Id. at 26-27.
The Tennessee Legislature has incorporated some of Gault’s vision into the
state statute. Under Tennessee law, juvenile courts and proceedings have the
following public purposes, among others:
(1) Provide for the care, protection, and wholesome moral, mental and
physical development of children coming within its provisions;
(2) Consistent with the protection of the public interest, remove from children
committing delinquent acts the taint of criminality and the consequences
of criminal behavior and substitute therefore a program of treatment,
training and rehabilitation;
(3) Achieve the foregoing purposes in a family environment whenever
possible, separating the child from such child’s parents only when
necessary for such child’s welfare or in the interest of public safety; and
10
(4) Provide a simple judicial procedure through which this [statute] is
executed and enforced and in which the parties are assured a fair hearing
and their constitutional and other legal rights recognized and enforced.
Tenn. Code Ann. § 37-1-101 (a)(1)–(a)(4) (West 2011).
During our investigation, we found pre-Gault era practices in JCMSC that
violate the due process rights of children facing delinquency proceedings. These
practices violate the children’s civil rights.
11
II. DUE PROCESS VIOLATIONS
A. Constitutionally Inadequate Notice of Charges
1. Legal Standards
The Due Process Clause of the Fourteenth Amendment requires that notice
“be given sufficiently in advance of scheduled court proceedings so that reasonable
opportunity to prepare will be afforded.” Gault, 387 U.S. at 33. Notice first
provided to a child at a “hearing on the merits,” which is equivalent to trial for
adults, is not timely. Id. Further, notice must be in writing to comport with due
process requirements, and it must contain “the specific charge or factual allegations
to be considered at the hearing [on the merits].” Id.
In short, due process requires that children receive “notice which would be
deemed constitutionally adequate in a civil or [adult] criminal proceeding.” Id. In
Tennessee, this means that courts must inform children of the charges facing them
immediately upon their presentment before a Magistrate, because immediate notice
is required for adult criminal defendants. Tenn. Code Ann. § 40-10-101 (West 2011)
(“When the defendant is brought before a magistrate upon arrest, either with or
without a warrant, on a charge of having committed a public offense, the magistrate
shall immediately inform the defendant of the offense with which the defendant is
charged.”) See
also Tenn. Const. art. 1, § 9 (“That in all criminal prosecutions, the
accused hath the right …to demand the nature and cause of the accusation against
him, and to have a copy thereof…”). Tennessee Rules of Criminal Procedure state
that notice in the form of an affidavit of complaint “shall be filed promptly, when a
person, arrested without a warrant, is brought before a Magistrate.” Tenn. R. Crim.
P. 5(a)(2). The affidavit of complaint must be in writing, made on oath before a
Magistrate or neutral and detached clerk, and allege the essential facts constituting
the offense charged. Tenn. R. Crim. P. 3.
Children tried at JCMSC typically have two court hearings that implicate the
notice requirement.
10
10
Children in JCMSC may have additional hearings, including disposition or rehearings.
As those hearings do not implicate the notice requirement in Gault
, we omit them from the
discussion above.
The first hearing is the detention hearing, and the second is
the adjudicatory hearing. At the detention hearing, court rules require Magistrates
to address several issues before ordering that a child be detained. First, the court
must arraign the child by informing the child of the “nature of the complaint”
against him or her. Tenn. R. Juv. P. 15(a). Second, the court must inform the child
of the legal rights afforded him or her during the delinquency proceeding. Id.
Third, if a party seeks to detain the child, the court must determine that probable
12
cause that the child committed the alleged offense exists.
11
The second court hearing is the adjudicatory hearing, which is the equivalent
of a trial in adult court. The adjudicatory hearing in JMCSC is the “hearing on the
merits” discussed in Gault. The adjudicatory hearing must occur within 30 to 90
days of the detention hearing. Tenn. R. Juv. P. 17. JCMSC prepares a petition
after the detention hearing but before the adjudicatory hearing. The petition is the
formal charging document containing the specific charges the DA alleges the child
committed. At the adjudicatory hearing, the Magistrate considers the DA’s
evidence in support of the petition and any evidence presented by the child, and
decides whether the child is adjudicated delinquent of the charges.
Tenn. R. Juv. P. 15(b).
Prior to entering the detention order, the court must also find that detention is in
the best interest of the child and the public, and determine that detention is
warranted under Tenn. Code Ann. § 37-1-114 (West 2011). Id. Finally, if the
Magistrate does not find probable cause to detain a child, she can release the child
to appear for further court proceedings. Tenn. R. Juv. P. 15(b).
2. Findings
We find that JCMSC engages in a pattern or practice of violating children’s
due process rights by not giving petitions to children at detention hearings.
Further, JCMSC’s policy of distributing petitions does not provide notice to children
“sufficiently in advance of the [adjudicatory] hearing to permit preparation.” Gault,
U.S. 387 at 33.
Children appearing before JCMSC are entitled to receive the same notice
accorded adult criminal defendants in Tennessee. Adult criminal defendants
receive notice in the form of the affidavit of complaint the first time they are
brought before a Magistrate. The affidavit of complaint is required to be in writing,
to be made on oath, and to contain allegations of “the essential facts constituting
the offense charged.” Tenn. R. Crim. P. 3. However, according to our observations
and review of case files, children in JCMSC do not receive equivalent notice at their
initial hearing before Magistrates – they only get a verbal summary of charges.
This disparity violates due process.
JCMSC has the capacity to prepare petitions that satisfy constitutional
requirements. The content of petitions we reviewed was similar to the content
required in affidavits of complaint for adults in criminal cases. Specifically, all of
the JCMSC petitions we reviewed contained the specific charge against the child,
including the date of the alleged offense and, when applicable, the name of
11
For the purposes of this report, we refer to this third stage of the detention hearing as the
probable cause hearing, or the probable cause determination.
13
complaining witnesses. The petitions also included a sworn statement
12
affirming
that the allegations contained were true to the best of petitioner’s knowledge,
ability, and belief. However, where adults receive the affidavit of complaint at the
initial hearing before a Magistrate, JCMSC provides petitions to children after the
detention hearing. Of the 14 petitions we reviewed, all were time-stamped several
days or weeks after the detention hearing.
13
In order to comply with the due process requirements of Gault, JCMSC must
provide petitions to children at the detention hearing. Under JCMSC’s current
procedure, the only notice provided to children at the detention hearing is a reading
of the detention summary. This is not sufficient to meet due process requirements.
The detention summary is a document that court staff adapt from the arresting
officer’s description of the incident leading to the child’s arrest. The detention
summary differs from the petition in several ways. It is not provided in writing to
the child, nor is it made under oath. Moreover, Assistant District Attorneys
(“ADAs”) do not always review detention summaries prior to detention hearings. As
a result, the offenses alleged in the detention summary do not necessarily reflect
the final charges against the child. Stakeholders confirmed that, although it does
not happen frequently, court staff or prosecutors have changed charges after the
detention hearing and before the adjudicatory hearing. Because JCMSC does not
provide petitions to children at the detention hearing, the notice children receive at
detention hearings violates due process.
The Juvenile Court also violates due process because it does not provide
notice sufficiently in advance of the adjudicatory hearing so that children have time
to prepare. In 2010, several stakeholders informed us that JCMSC never provides a
petition to the child or defense attorneys prior to the adjudicatory hearing. The fact
that JCMSC generates petitions shortly after detention hearings, places them into a
child’s file, but fails to provide them to defense attorneys in advance of the
adjudicatory hearing constitutes a clear violation of due process.
During our follow-up inspection in 2011, we learned that JCMSC responded
to the feedback we gave in 2010 and began providing petitions to defense attorneys
before adjudicatory hearings. However, JCMSC’s official policy is to forward
petitions “to parties no later than five days prior to the court hearing.”
14
12
The petitions we reviewed appeared to be sworn by a probation officer. Tennessee statute
allows the petition to be made by any person “who has knowledge of the facts alleged or is
informed and believes that they are true.” Tenn. Code Ann. § 37-1-119 (West 2011).
A child,
13
JCMSC’s docketing practices do not indicate whether the time-stamp reflects when a
child actually receives the petition.
14
JCMSC, Children’s Bureau Desktop Manual, Policy III-1 (18), effective January 1, 2009.
We interpret the phrase “court hearing” in this policy to refer to the adjudicatory hearing,
not the detention hearing.
14
like an adult criminal defendant, needs time to meaningfully respond to the state’s
charges. Five days is an insufficient amount of time for a child and his or her
defense attorney to prepare an adequate defense. Even if JCMSC followed its policy
regarding the delivery of petitions to defense counsel, they would violate children’s
due process rights. The five-day policy, in short, fails to meet due process
requirements.
JCMSC’s failure to provide timely notice to children creates problematic
instances in hearings where prosecutors, defense counsel, and even the Magistrates
appear to be unclear about the charges facing the child, as in the following
transcripts:
In a detention hearing for juvenile C.C.,
15
Prosecutor: This is a felony. I don’t know what the underlying
felony is…We would ask to [detain].
the prosecutor and juvenile
defender each made detention arguments to the judge that acknowledged
the uncertainty of the exact charges facing the juvenile.
Juvenile Defender: To detain him, I think, maybe is a little
unreasonable, maybe an appearance bond. I agree with the state. I
don’t know what the underlying facilitation of the felony is, but he’s
in the 10
th
grade.
In a detention hearing for juvenile D.D., the prosecutor and defense
attorney based some of their arguments for detention and release,
respectively, on an assault that was not charged.
Prosecutor: Also I would add here is that it’s alleged the defendant
pushed the victim against the wall.... I would ask that he be
detained until a hearing is set, Your Honor.
Juvenile Defender: Well, Your Honor, the state didn’t allege this
assault, so, I mean, they didn’t plead assault.
Prosecutor: In and of itself, what I’m saying is that it could be an
allegation of pushing into the wall. What we’re asking, Your
Honor, is that he be detained.
Therefore, because JCMSC does not ensure that children receive “notice
which would be deemed constitutionally adequate in a civil or [adult] criminal
proceeding,” it violates children’s due process rights.
15
We use fictional initials throughout to protect children’s privacy.
15
B. Violation of Right to be Free from Self-Incrimination
1. Legal Standards
The Fifth Amendment to the United States Constitution provides, in relevant
part: “No person…shall be compelled in any criminal case to be a witness against
himself.” The Supreme Court concluded in Gault that “the constitutional privilege
against self-incrimination is applicable in the case of juveniles as it is with respect
to adults.” Id. at 55. The scope of the Fifth Amendment privilege is
“comprehensive.” Id. at 47. The Gault court also stated that “[i]t has long been
recognized that the eliciting and use of confessions or admissions require careful
scrutiny.” Id. at 45. This scrutiny is even more important with “children from an
early age through adolescence.” Id. at 48.
2. Findings
JCMSC violates children’s right to be free from self-incrimination during
probation conferences by: (1) eliciting self-incriminating statements; (2) failing to
advise children of their rights prior to questioning them about charges; and (3) not
obtaining informed waivers from juveniles. At JCMSC, children come to probation
conferences in one of two ways – by release or by detention. Released children are
sent home directly from the detention center or by the court after a detention
hearing. Released children receive a letter from a probation officer directing them
to come in for a conference. Children who are detained have their probation
conference in the detention center. Based on our observations, probation officers
typically begin conferences by gathering basic information about the child and the
child’s family. The probation officer then asks for the child’s version of the alleged
delinquent act at issue. The probation officer notes whether the child admits or
denies the allegations and summarizes the child’s version of the incident on a “Visit
and Contact” form. Magistrates and ADAs have access to the Visit and Contact
form prior to adjudication. In fact, a copy of the form is placed on the Magistrate’s
bench prior to the adjudicatory hearing.
Though the Visit and Contact form is not formally used as evidence during
the child’s adjudicatory hearing, this practice of having probation officers question
children raises serious Fifth Amendment concerns, especially for children who are
detained during the probation conference. When children in detention are
interviewed by the state, via an employee such as a probation officer, the children
are not free to leave. Thus, this amounts to a custodial interrogation. See Miranda
v. Arizona, 384 U.S. 436 (1966). Because the children are not free to leave,
probation officers must provide them with an adequate advisement of Miranda
rights. Id. To do anything less is a clear violation of the children’s Fifth
Amendment right to be free from self-incrimination.
In the probation conferences we observed, probation officers failed to advise
children of their rights under Miranda. For example, in one interview of a detained
16
child, the probation officer stated to the child, “You can talk to me if you want or
you can talk to your lawyer.” The probation officer gave no information about the
purpose of a lawyer, how one would be appointed, when one would be appointed, or
that the lawyer could be appointed at no cost to the child. The probation officer also
failed to indicate that any statements the child made would be included in the
probation report, and did not describe how and if the Magistrate or the prosecutor
could use the statement. Rather, the probation officer simply read the arrest ticket
to the juvenile and asked “So what happened?” followed by a series of probing
questions about the incident.
JCMSC’s practice of asking children to admit, deny, or describe the alleged
offense infringes on the child’s rights in other ways. First, there is no way to
monitor how the Magistrate uses the Visit and Contact form. For example, at least
one person we interviewed reported seeing a Magistrate reading a Visit and Contact
form before adjudication. Second, even if Magistrates refrain from reading the Visit
and Contact forms before the adjudicatory hearing, this practice creates an
appearance of impropriety because there is no assurance to the child or counsel that
the Magistrate did not review the form. Third, even if the Magistrate waits until
the disposition to read a child’s statements in the Visit and Contact form, the
Magistrate would be privy to any contradictions between the child’s initial
statements to the probation officer and the subsequent statements during trial or
plea. There is a real risk that the Magistrate could draw a negative inference from
any such contradictions. We did not see or receive any evidence that probation
officers advise children that their admission or denial at the probation conference
can be used by the Magistrate at disposition.
In 2010, probation officers held probation conferences without the child’s
defense attorney present. By our 2011 inspection, we learned that our 2010
feedback resulted in probation officers inviting attorneys to some conferences. We
do not have confirmation that this practice is being consistently enforced.
Moreover, we were told that some defense attorneys do not attend the conferences
even when they are invited.
We have also witnessed violations of a child’s right against self-incrimination
in other contexts. In one particularly egregious example, a prosecutor called E.E. as
a witness in his own adjudicatory hearing. Neither the juvenile defender nor the
Magistrate opposed this move, and the prosecutor proceeded to cross-examine E.E.
as part of the state’s case-in-chief. The prosecutor asked E.E. direct questions about
involvement in the alleged offense, such as “it’s your testimony to this Judge, under
oath that despite what has been said before, that you never went and stole a
phone?” The juvenile’s defense attorney followed the prosecutor, asking three
questions in total.
17
C. Failure to Provide Timely Probable Cause Hearings
1. Legal Standards
Under the Fourth Amendment, in order for a state to detain a person
arrested without a warrant, a judicial officer must determine that probable cause
exists to believe the person has committed a crime. Gerstein v. Pugh, 420 U.S. 103
(1974). The judicial officer must make this determination “either before or promptly
after arrest.” Id. at 124. Seventeen years later, the Court further refined its
Gerstein decision, holding that probable cause determinations must be made within
48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44,
57 (1991) ( “A jurisdiction that chooses to offer combined [probable cause and
arraignment] proceedings must do so as soon as is reasonably feasible, but in no
event later than 48 hours after arrest.”) Although the Supreme Court has not
addressed whether Gerstein hearings are required for juveniles, the Sixth Circuit
has answered this question affirmatively. Cox v. Turley, 506 F.2d 1347, 1353 (6th
Cir. 1974) (“Both the Fourth Amendment and the Fifth Amendment were violated
because there was no prompt determination of probable cause – a constitutional
mandate that protects juveniles as well as adults.”).
2. Findings
JCMSC violates children’s right to a timely probable cause determination by
failing to hold detention hearings on weekends and holidays. As discussed above,
court rules require that JCMSC accomplish several things at the detention hearing,
including: arraigning the child, informing the child of his or her rights, and – most
crucial for the purposes of Gerstein and County of Riverside – making a
determination of probable cause. Stakeholders emphasized to us that JCMSC
makes a concerted effort to hold detention hearings within 24 hours of a child’s
arrest. Indeed, a child who is arrested during the work week will have a detention
hearing the next weekday. In some cases of arrest early on a weekday, it is even
possible for a child to have a detention hearing the same day as the arrest.
Despite its efforts to hold prompt detention hearings and probable cause
determinations on weekdays, JCMSC violates children’s due process rights by not
having any provisions for holding these hearings on weekends or holidays. Children
arrested on a Friday, for example, have a constitutional right to a probable cause
determination by Sunday at the latest. Under JCMSC’s current procedure, the
earliest that a child arrested after 10:30 am on a Friday could be presented for a
detention hearing (and have a probable cause determination) would be Monday
afternoon. If Monday was a holiday, that child’s probable cause determination
would not be made until Tuesday afternoon, approximately 96 hours after arrest.
Significantly, JCMSC has no policy in place to provide detained children held over
extended holiday weekends with a timely probable cause hearing.
18
Our investigation revealed that it is not uncommon for children in Shelby
County to experience extended unlawful detentions prior to any hearing before a
Magistrate. The data JCMSC provided indicated that in the five year period from
2005 to 2009, the court detained approximately 815 children for three days or more
before holding a detention hearing and making a probable cause determination.
16
We recognize that a Tennessee statute allows a child to be detained for three
days, or even longer, before requiring a detention hearing and probable cause
determination. Tenn. Code Ann. § 37-1-117 (b) (1) (West 2011) (“In the case of a
child alleged to be delinquent, a detention hearing shall be held no later than three
days after the child is placed in detention…”); see also State v. Carroll, 36 S.W.3d
854 (Tenn. Crim. App. 1999). The Tennessee statute excludes non-judicial days,
which it defines as Saturdays, Sundays, or holidays, from the three-day
computation but mandates that “a detention hearing shall be held no later than
eighty-four hours after a child is placed in detention…” Tenn. Code Ann. § 37-1-117
(b) (1). However, to meet requirements of the Fourth Amendment, JCMSC must
follow the 48-hour timeline under Riverside, not the state statute. We found no
evidence that the constitutionality of this statute has been challenged. However, on
its face, it appears to violate the Constitution.
Therefore, on average, JCMSC denies a timely probable cause determination to over
160 children each year. Three hundred and one, or 37%, of the 815 children were
detained for seven days or longer before having their probable cause hearing.
We note that the court has expressed a willingness to make arrangements for
Saturday detention hearings, which would enable children to have probable cause
determinations that satisfy constitutional requirements. To be constitutionally
adequate, at minimum, one defender, ADA, Magistrate, and probation officer should
be present during each hearing.
D. Failure to Conduct Constitutionally Required Transfer
Hearings
1. Legal Standards
Children must be given an opportunity for a hearing prior to the entry of an
order transferring the youth to face charges in adult court. Kent, 382 U.S. 541.
This hearing does not have to meet all of the formal requirements of an adult
criminal trial, but at minimum it “must measure up to the essentials of due process
and fair treatment.” Id. at 562.
Tennessee law requires juvenile courts to hold a hearing prior to transferring
jurisdiction to criminal court. Tenn. Code Ann. § 37-1-134 (West 2011). At the
16
JCMSC provided information about the days, not the hours, that elapsed between the
child’s intake into the detention center and the detention or probable cause hearing. The
basis for the delay was not provided.
19
hearing, an attorney representing the government is responsible for presenting
evidence in support of the petition. Id. § 37-1-124 (b). In addition, the statute
enumerates rights and protections afforded to children at waiver hearings, which
include rights to an attorney, to introduce evidence, to cross-examine witnesses, and
to be protected from self-incrimination. Id. §§ 37-1-126 to -127.
A child in Tennessee under the jurisdiction of a juvenile court cannot be
transferred to adult court, where they may face conviction as an adult and
sentencing to an adult prison, unless a court finds that there are “reasonable
grounds to believe that: (A) The child committed the delinquent act as alleged; (B)
The child is not committable to an institution…; and (C) The interests of the
community require that the child be put under legal restraint or discipline.” Id. §
37-1-134 (a) (4). In order to make this finding, the court must consider social factors
such as the child’s prior delinquency records; the child’s response to past treatment
efforts; the manner and type of the current offense; and the child’s potential for
rehabilitation with current services. Id. § 37-1-134 (b).
2. Findings
Transfer hearings held in JCMSC fail to meet the requirements of due
process and the requirements of Tennessee law. The Tennessee statute
contemplates that juvenile courts will engage in a thorough inquiry prior to
transferring a child to adult court. However, we found that JCMSC ignores the
statutory requirements during waiver hearings. We observed hearings and read
transcripts in which Magistrates made transfer decisions, without any hearing,
after making cursory or no inquiries into the child’s background, or after asking the
child to self-incriminate, as in the following examples:
At a transfer hearing for O.O., the Magistrate declined to hear testimony
from witnesses, who were present and ready to testify, before transferring
O.O.’s case to the Shelby County Sheriff for trial as an adult. O.O. was
charged with murdering a 10-month-old infant left in her care. The
defender sought to present evidence that the infant’s mother had a history
of child abuse and caused some of the injuries on the infant’s body, not
O.O. The defense attorney informed the court that several witnesses were
present to testify on behalf of O.O, including the medical examiner,
another doctor who examined the infant’s body and two police officers who
investigated the case. The defense attorney also argued that O.O.’s social
factors, including her history of exposure to domestic violence, previous
sexual abuse, and her remorse made her suitable for the rehabilitation
available in the juvenile court. This case presented a clear violation of
O.O.’s due process rights. The prosecution offered no evidence or
witnesses to support transfer as required by statute, only oral
representations. Therefore, O.O. did not have a right guaranteed by
statute to cross-examine any government witnesses, nor did O.O. have an
opportunity to present any of the witnesses prepared to testify on her
20
behalf. By not allowing the defense witnesses to take the stand, the
Magistrate failed to make a meaningful inquiry into whether reasonable
grounds existed to believe that O.O. caused the death of the infant.
Additionally, the Magistrate violated O.O.’s due process rights by not
considering any of the social factors required under Tenn. Code Ann. § 37-
1-134 (b) (West 2011) prior to transferring her case to criminal court.
In a transfer hearing for P.P., the Magistrate found probable cause
without hearing from witnesses after P.P.’s attorney waived live
testimony. The Magistrate transferred P.P. to criminal court without
making required findings about the interests of the community or whether
P.P. was committable to an institution. The Magistrate also failed to
consider the social factors required under Tenn. Code Ann. § 37-1-134 (b)
before transferring P.P.
In a hearing for juveniles A.A. and B.B. the Magistrate began by hearing
the prosecutor’s argument for transfer, and then elicited that both defense
attorneys opposed transfer. After hearing attorney representations, but
without conducting a hearing or taking any evidence, the Magistrate
asked defense attorneys if their clients admitted guilt to the charges. The
Magistrate announced his decision to keep their cases in juvenile court
only after both children pled guilty. Even though A.A. and B.B.
ultimately remained in juvenile court, the procedure followed here
violated the children’s due process rights and their rights under
Tennessee law. Not only did the prosecutor fail to present evidence in
support of waiver, but the Magistrate did not hold a hearing at all. Most
problematically, the Magistrate solicited admissions of guilt from A.A. and
B.B. before announcing his decision on their transfer. Procedurally, this
violated A.A.’s and B.B.’s protection against self-incrimination.
Overall, JCMSC’s approach to transfer hearings revealed that important
stakeholders, including Magistrates, doubt the juvenile court’s ability to handle
matters involving allegations of serious violent crimes. It also belies the purpose of
juvenile courts set out in Tenn. Code Ann. § 37-1-101 (a) (2), which is to replace “the
taint of criminality and the consequences of criminal behavior” for children with “a
program of treatment, training, and rehabilitation” when doing so will protect the
interest of the public. Magistrates who make cursory decisions on transfers fail to
fulfill the purpose of this section of the statute. In addition, Magistrates who
respond to allegations of serious crimes by children with an automatic transfer to
adult court ignore their obligation under Tenn. Code Ann. § 37-1-134 (b), which
mandates that they consider specific social factors before transferring jurisdiction.
We recognize that Magistrates have discretion in making the decision to transfer.
However, it is mandatory for a Magistrate to consider the factors under § 37-1-134
(b). State v. Sexton No. E2000-01779-CCA-R3-CD, 2002 WL 1787946, at *7 (Tenn.
Crim. App. Aug. 2, 2002). Moreover, the Magistrate is not required to list each
21
individual factor in the findings, but must include sufficient evidence in the record
to support the court’s transfer ruling. Id. at *8.
We observed numerous examples of this mindset in the cursory waiver
proceedings described above. For example, the Magistrate made statements during
O.O.’s waiver hearing indicating his belief that because the alleged crime was so
serious, it had no place in juvenile court. Further, the Magistrate made comments
evincing his belief that O.O. would not be held accountable in the juvenile system.
This is an inaccurate view of the juvenile court’s purpose and capability. Because
the Magistrate declined to hear any evidence in O.O.’s case and did not make the
findings required by Tennessee statute, he potentially missed an opportunity to
craft a disposition that was more tailored to O.O.’s needs
17
Additionally, the Magistrate in O.O.’s transfer hearing appeared to discount
the substantial differences between disposition in juvenile court and sentencing in
adult court. Specifically, he claimed that the treatment in adult court is the same
as what O.O. could be offered in juvenile court. When O.O.’s defense attorney
argued that O.O. “should be held accountable…in the rehabilitative manner in the
Juvenile system,” the Magistrate responded that O.O. “could receive the same kind
of counseling services in the adult system.” However, this assertion is not
supported by Tennessee law, as there is no provision in Tennessee criminal statutes
requiring treatment, training, or rehabilitation for adults charged with crimes.
When O.O.’s defense attorney argued that children convicted in the adult system
are not given help, but are just incarcerated, the Magistrate responded only by
stating that O.O. was charged with “a serious crime.” He did not provide a
description of the treatment options that would be available to O.O. in adult court.
and may have been more
effective at rehabilitating O.O. without the taint of the adult system. While the
Magistrate may have arrived at the same decision after considering the requisite
evidence, his fundamental misunderstanding of the role of juvenile court
contributed to the child’s case being transferred to criminal court, which may not
have been the most appropriate forum for her accountability and rehabilitation.
The failure to hold transfer hearings that protect the child’s rights, or in some
cases the failure to hold hearings at all does not measure up to the requirements of
due process and fairness that Gault demands and that Tennessee law requires.
17
O.O.’s defense attorney described the significant problems O.O. had experienced,
including sexual abuse and domestic violence.
22
III. EQUAL PROTECTION AND TITLE VI FINDINGS
Our investigation found that Black children are disproportionately
represented in almost every phase of the Shelby County juvenile justice system.
Unlike our findings regarding due process, which affect all children regardless of
race, the violations discussed in this section disproportionately affect Black children
appearing before JCMSC. We evaluated the relative treatment of Black and White
youth following arrest through adjudication. We focused on Black children as
compared to White children because Black and White children comprise 97.8% of
the juveniles referred to JCMSC. The small percentages of other racial or ethnic
groups did not provide a sufficient basis for analysis. While many factors contribute
to racial disparities in any juvenile justice system, we concluded that race is – in
and of itself – a significant contributing factor to this disparity in Shelby County.
As such, we find that the disparity in Shelby County violates the Equal Protection
Clause of the Fourteenth Amendment and Title VI.
A. Legal Standards
The Equal Protection Clause prohibits a state from conduct that would “deny
any person within its jurisdiction equal protection of the laws.” U.S. Const. amend.
XIV § 1. The Constitution’s guarantee of equal protection prohibits a jurisdiction
from treating similarly situated children within the juvenile justice system
differently based upon a child’s race. This is not to say that a jurisdiction’s action
will violate the Constitution “solely because it results in a racially disproportionate
impact” within the juvenile justice system. Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (citing Washington v. Davis, 426 U.S.
229, 242 (1976)). “Proof of racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” Arlington Heights, 429 U.S. at
265. There are, however, instances when “a clear pattern, unexplainable on
grounds other than race,” can demonstrate a discriminatory intent or purpose. Id.
at 266; see
also Washington v. Davis, 426 U.S. at 242 (“Necessarily, an invidious
discriminatory purpose may often be inferred from the totality of the relevant facts,
including the fact, if it is true, that the law bears more heavily on one race than
another.”); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523,
534 (6th Cir. 2002)(noting that discriminatory purpose may be inferred from impact
of the disputed practice on one racial group). Moreover, a jurisdiction’s action need
not be based solely, primarily, or even dominantly on a discriminatory intent or
purpose, but instead, it is sufficient to demonstrate that a discriminatory intent was
“a motivating factor” in the decision-making within the system. Arlington Heights,
429 U.S. at 265-66.
Other federal laws similarly protect against discrimination on the basis of
race. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of
23
race, color, or national origin in any program or activity receiving federal financial
assistance. 42 U.S.C. § 2000d. The Department of Justice, like other federal
agencies, has adopted regulations implementing Title VI that prohibit practices
that have the effect of discrimination on the basis of race, color, or national origin.
See, e.g., 28 C.F.R. § 42.104(b)(2) (prohibiting “methods of administration which
have the effect of subjecting individuals to discrimination because of their race,
color, or national origin”). The DOJ regulations implementing Title VI require that
sub-recipients follow the same statutory prohibitions as the primary recipients of
funding. See 28 C.F.R. § 42.102(f). We have identified qualifying funds received by
Shelby County and disbursed to JCMSC from DOJ’s Office of Justice Programs.
Similar to the Equal Protection Clause, Title VI prohibits intentional
discrimination. See Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (noting that
violations of Equal Protection clause are violations of Title VI). A jurisdiction
receiving federal financial assistance can be found in violation of Title VI when its
procedures or practices have a disparate impact on individuals of a particular race,
color, or national origin, and such practice lacks a “substantial legitimate
justification.” New York Urban League v. New York
, 71 F.3d 1031, 1036 (2d Cir.
1995). Federal courts have analyzed Title VI disparate impact claims using
analogous Title VII principles. Id.
; Elston v. Talladega County Bd. of Educ., 997
F.2d 1394, 1407, n.14 (11th Cir. 1993).
Similar to Title VI regulations, the Juvenile Justice and Delinquency
Prevention Act (“JJDP Act”), 42 U.S.C. § 5601 et seq., sets forth a requirement for
all states receiving grant funding under the JJDP Act to address the
“disproportionate number of juvenile members or minority groups who come into
contact with the juvenile justice system.” 42 U.S.C. § 5633 (a)(2). A state’s failure
to comply with this provision of the JJDP Act jeopardizes the existing funding of the
grant. Id.
at (c)(1)-(2).
The data we examined from Shelby County show a racial impact in a number
of JCMSC’s decision phases. Moreover, such discriminatory impact cannot be
explained by factors other than race, leading us to conclude that discriminatory
intent is, at least, a “motivating factor” in the decision making in Shelby County’s
juvenile justice system. This constitutes a violation of the children’s right to equal
protection and a violation of Title VI and its implementing regulations.
B. Methodology to Assess Disproportionate Minority Contact
We sought to make a statistical determination of whether JCMSC engages in
a pattern or practice of conduct that violates the constitutional guarantee of equal
protection, or other federal laws prohibiting discrimination on the basis of race in
conducting its responsibility for the administration of juvenile justice. We retained
a statistician, who leads the field in evaluating disparities in juvenile justice
24
systems, to assist us in this determination. Our consultant analyzed JCMSC’s case
information on two levels. First, he examined JCMSC’s Relative Rate Index (“RRI”)
to determine the existence and level of Disproportionate Minority Contact (“DMC”)
occurring at each phase of the juvenile court process. DMC is the term used to
describe the overrepresentation of minority youth in the juvenile justice system. As
discussed in greater detail below, the RRI is a federally mandated reporting
mechanism that compares DMC in Shelby County with other counties throughout
the nation. Our consultant examined the most recently available RRI data at the
time of the analysis, 2007 through 2009.
18
Second, our consultant examined data
submitted by JCMSC to Tennessee reflecting case data from 2005 through 2009,
along with special data extracts developed by JCMSC and their data contractors, to
assess the outcomes within JCMSC throughout the different phases of a case and
DMC issues, using odds ratio and logistic regression techniques.
19
These methods
track the odds that a child’s case will be handled in a specific way at different
decision points in the juvenile court process. Where the RRI captures a snapshot of
the treatment of White and Black children at specific points in the juvenile court
process, the odds ratio and logistic regression techniques follow a child’s case
through the system.
1. The Relative Rate Index
a. Using the Relative Rate Index to Measure
Disproportionate Minority Contact
In determining whether there is a racial disparity in JCMSC’s administration
of juvenile justice, we evaluated the level of DMC at various phases of the juvenile
justice process. This term is closely associated with the JJDP Act.
20
18
As of the publication of this report, the RRI data for Tennessee and Shelby County has
not been updated since the 2007-2009 submission in summer 2011.
DOJ’s Office of
Juvenile Justice and Delinquency Prevention (“OJJDP”) provides national
leadership on tracking and reducing DMC levels. To accurately measure DMC
levels, OJJDP utilizes the RRI. All jurisdictions receiving a JJDP grant, including
Shelby County, must periodically report to OJJDP the numbers of children
proceeding through their juvenile justice system and the level of disparity for each
statistically significant minority group at different phases of the juvenile process.
19
Our consultant used the Statistical Packages for the Social Sciences, Version 18.0, for our
analysis.
20
In 1988, Congress amended the JJDP Act to require states to address DMC in their State
Plans. At that time, DMC referred only to disproportionate minority confinement, and
focused only on the overrepresentation of minority youth in detention facilities. In 2002,
Congress expanded the term to include all phases of the juvenile justice system, not just
those phases that involve custodial confinement.
25
For our investigation of JCMSC, our consultant also utilized the RRI to
measure DMC. As noted above, the RRI formula provides a snapshot of the
children in the system during the time period reported and at major stages of the
juvenile court process. The formula compares the rates of each measurable
minority group to that of White youth. Our consultant used the RRI to measure the
level of DMC at each phase for Black children as compared to White children in
JCMSC.
26
b. Stages of Juvenile Justice Measured as Part of the
Relative Rate Index
The RRI includes the rate of occurrence for different racial groups in each
major stage of the juvenile justice process. The stages include the following:
(1)
Juvenile Arrests
This stage consists of all juvenile arrests.
(2)
Referrals to Juvenile
Court
This category includes children who are brought before the
juvenile court on delinquency matters either by a law
enforcement officer, a complainant (including a parent), or
by a school.
(3) Cases Diverted
This category includes children who are referred to juvenile
court, but whose matters are resolved without the filing of
formal charges. The charges against these children may be
dismissed, resolved informally, or resolved formally through
probation, an agreement, community service or various
other options that do not include continuing through the
formalized court process.
(4)
Cases Involving Secure
Detention Prior to
Adjudication
This category includes children who are held in a secure
detention facility before the final disposition of their cases.
Some jurisdictions include children who are awaiting
placement following the disposition of their cases in this
category.
(5)
Cases Petitioned
This category includes children who are formally charged
with a delinquency matter and are required to appear on
the court calendar. When a child is formally petitioned, the
court is requested to adjudicate the matter or transfer the
matter to the criminal court.
(6)
Cases Resulting in
Delinquent Findings
This stage encompasses a court finding that the child has
been found delinquent, a formal finding of responsibility.
The child would then proceed to a dispositional hearing
where he or she may receive various sanctions including
probation or commitment to a secure residential facility.
(7)
Cases Transferred to
Adult Criminal Justice
System
This category consists of cases that have been transferred
to the adult criminal court following a judicial finding that
the matter should be handled outside of the juvenile
system.
(8) Cases Resulting in
Probation
This category includes cases where the child is placed on
probation following a formal adjudication. This does not
include the children whose cases were diverted earlier in
the process.
(9)
Cases Resulting in
Confinement in Secure
Juvenile Correctional
Facility
This category includes cases where the child has been
formally adjudicated and placed in a secure residential
facility or a juvenile correctional facility.
27
Our investigation considered whether court actors were respecting the
constitutional rights of children appearing before the court. As such, we did not
conduct an analysis of the arrest data. Additionally, Tennessee does not submit
arrest data in its OJJDP reports of RRI. We acknowledge and understand that
arrest data may be available from other sources. We also acknowledge and
understand that racial disparities exist in the rates of arrest by law enforcement.
See e.g. OJJDP, Statistical Briefing Book (2008), available at
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05260 (stating that in
2008, the “black rate was more than double the white rate.”); U.S. DOJ, Civil Rights
Division, Investigation of the New Orleans Police Department at 39 (discussing the
Department’s troubling 16 to 1 ratio of arrest rates for African American males to
White males). However, here we focus on decisions made after a child has been
arrested and brought to the JCMSC. The information discussed here focuses on
whether there a racial disparity exists in JCMSC’s approach to the juveniles
appearing on delinquency matters, not on the conduct of the different policing
agencies in Shelby County.
There are multiple decision makers at each stage, including law enforcement
officers; juvenile court personnel, such as intake/probation officers; prosecutors; and
judges, who determine the extent of a child’s involvement with the next stage of the
system. For example, when a child is referred to juvenile court (usually through a
law enforcement officer making a custodial arrest and deciding on the original
charge), juvenile court personnel will make initial decisions regarding diversion,
detention, and the filing of a petition. At later stages, prosecutors and judges
review these decisions, and those decisions will determine how far the child
proceeds through the system. A child’s involvement with the court could end
shortly after the arrest or proceed through adjudication. A delinquency charge
could also result in a criminal proceeding if, following a hearing, the juvenile court
determines that the matter should be transferred to the adult system.
c. Interpreting the Values in the Relative Rate Index for
JCMSC
The RRI formula lists the numerical indicator of the level of disparity or
difference in contact in each stage that a particular racial or ethnic group has in the
reporting system. The formula compares the ratio of Black children to the ratio of
White children for each stage of the process. A numerical value of 1.0 is neutral. A
numerical value exceeding 1.0 means that Black children have a higher rate of
representation at the particular stage being considered. A numerical value below
1.0 means that Black children have a lower, statistically significant, rate of contact
in that stage as compared to the White children in that stage.
The first step in determining RRI is to determine the total number of events,
categorized by race, in each phase of JCMSC’s juvenile court system. Then, for each
28
racial or ethnic category, the RRI formula divides the number of events for each
phase by the number of events in the preceding phase to determine rates for each
phase. In JCMSC, this means that the RRI is calculated by comparing the rates for
Black children to rates for White children by dividing the rate of Black children by
the rate for the White children. For example, if a system incurred 20 juvenile
arrests consisting of 10 White children and 10 Black children, and all 10 of the
Black children were referred to juvenile court, but only 5 of the White children were
referred, then the resulting rate of referral to juvenile court for Black children
would be 1.0, and the rate for white children would be 0.5. The resulting RRI would
equal 2.0, a value twice that of the neutral 1.0. RRI values that differ from the
neutral 1.0 are marked as statistically significant, meaning that the difference in
rates of contact is not likely to be the result of a chance or random process. The RRI
does not control for the differences in the children’s underlying charges. The case
analysis, however, which will be explained below, controls for the underlying
charges and other legal and social factors.
2. Case Analysis: Odds Ratio and Logistic Regression
In addition to utilizing the RRI formula, our consultant also conducted a case
analysis of 2005 through 2009 data provided by the JCMSC. As discussed above,
the RRI provides a means to compare the rates of contact experienced by Black
children and White children in JCMSC. However, we wanted to track the
probability that a child’s case would be handled in a particular way at different
decision points of the juvenile court process. Therefore, our consultant used the
odds ratio to accomplish this. He calculated the probability (odds) of particular
decisions or stages occurring and compared odds for White and Black children by
creating a ratio of the two odds. Further analysis of the case processing data used
the logistic regression technique to extend the odds ratio approach by measuring a
child’s odds of proceeding through the system once the child’s non-racial
characteristics are filtered out. Following the conclusion of this analysis, JCMSC
submitted additional data for 2010 cases. Our consultant conducted a preliminary
odds ratio analysis of this data to determine whether major changes occurred as
compared to the five year review. He found no such changes. Accordingly, we did
not commission a further logistic regression analysis on the 2010 data.
21
In essence, the odds ratio is a comparison of the odds of one group of children
receiving a particular result versus another group of children receiving that same
result. For example, the odds ratio would consider the odds of Black child receiving
a warning (one of many diversion options) as compared to the odds of a White child
receiving a warning. Our consultant determined these odds by reviewing actual
case files provided by JCMSC. While the odds ratio itself presents a picture of the
different outcomes faced by Black children and White children in JCMSC, it does
21
We will refer to the 2010 odds ratios, where relevant, throughout this report.
29
not account for other, non-race based, factors that may have played a role in the
decisions leading to the outcomes.
To isolate the impact of race on the different decision points, the statistician
conducted further analysis of the case data using a logistic regression technique.
This method simultaneously considers the impact of other factors such as age,
gender, education level, offense charged, whether the offense was aggravated,
22
a
prior delinquency finding, drug involvement, and other measurable factors.
23
It
assesses the impact of each of these factors, the significance of the factors, and the
impact, if any, on the race effect. In short, this method introduces other control
variables to determine whether the disproportionate impact on Black children could
be explained by factors other than race.
As with the review of the RRI, the analysis of this data focused on cases
involving Black or White youth. This analysis focused on delinquency matters and
on cases involving children aged 10 to 18 years old. This analysis reviewed to a
greater depth many of the points referenced in the RRI, including differences in the
detention numbers, the diversion options available to each group, and the
possibility of transfer to criminal court.
Both the RRI and the case analysis show that Black children are
disproportionately represented in a number of stages in JCMSC. The RRI data
shows that Black children in Shelby County are disproportionately represented in
almost all phases of the process, including detention, petition, and transfer to
criminal court. The case analysis shows that Black children are more likely to be
detained pre-adjudication, less likely to receive warnings and lesser sanctions, and
more likely to be transferred to criminal court. Moreover, the case analysis shows
that these outcomes cannot be fully explained by factors other than race. These
statistical evidentiary findings indicate a pattern or practice of constitutional and
federal law violations.
22
In Tennessee, a delinquent act constitutes any act designated as a crime in the criminal
code. As such, aggravated delinquency offenses are aggravated criminal offenses defined in
the code. Most such offenses include the use of a weapon or offenses resulting in serious
bodily injury to the victim. For example, aggravated robbery is defined as robbery
involving the use of a deadly weapon or where the victim suffers serious bodily injury.
Tenn. Code Ann. § 39-13-402.
23
We considered the factors made available by JCMSC, with the exception of gang
affiliation because JCMSC noted that its gang affiliation data was unreliable.
30
C. Findings of DMC in JCMSC
1. Black Children Are Disproportionately Represented in
Most Phases of the Shelby County Juvenile Justice
System and in Certain Phases, the Disproportionate
Representation Cannot Be Fully Explained By Factors
Other Than Race
An analysis of Shelby County’s RRI values shows that Black children are
disproportionately represented in almost every phase of the juvenile justice system,
including cases involving secure detention, cases petitioned, and cases transferred
to the criminal court. These values suggest that race was an improper motivating
factor in determining how a child proceeds through the system. Arlington Heights,
429 U.S. at 266. As described above, an RRI value of 1.0 is neutral, meaning there
is no disparity between Black children and White children. However, an RRI above
1.0 indicates that Black children are disproportionately represented in the
particular stage: The higher the number, the greater the disparity.
31
Rates of Juvenile Court Actions by Race, and Relative Rate Index, 2009
Shelby County
Tennessee (w/o
Shelby)
W
National
24
Decision Stage (and base
for rate calculation)
White
Black
RRI
White
Black
RRI
hite
Black
RRI
1. Refer to Juvenile
Court (per 1000
population)
48.4 166.9 3.4 119.1 223.8 1.9 40.9 103.7 2.5
2. Cases Diverted (per
100 referrals)
114.5 104.1 0.9 27.5 24.7 0.9 28.4 20.6 0.7
3. Cases Involving Secure
Detention (per 100
referrals)
27.8 59.5 2.1 11.7 14.1 1.2 18.6 25.4 1.4
4. Cases Petitioned
(Charge Filed per 100
referrals)
29.9 36.4 1.2 116.7 156.7 1.3 53.2 60.7 1.1
5. Cases Resulting in
Delinquent Findings (per
100 cases petitioned)
54.3 72.2 1.3 23.1 27.1 1.2 63.2 57.0 0.9
6. Cases resulting in
Probation Placement
(per 100 found)
delinquent)
22.8 22.5 1.0 82.0 51.9 0.6 59.6 52.9 0.9
7. Cases Resulting in
Confinement in Secure
Juvenile Correctional
Facilities (per 100 found
delinquent)
14.2 23.9 1.7 12.5 20.5 1.6 25.9 31.6 1.3
8. Cases Transferred to
Adult Court (per 100
referrals)
2.3 5.3 2.3 0.2 0.4 2.7 0.9 1.1 1.2
As demonstrated above, Black children are overrepresented in almost every
category. Most strikingly, the RRI for transfers of Black children to the adult
criminal justice system is 2.3, and the RRI for detention prior to adjudication is 2.1.
While some of these rates are similar to Tennessee’s rates, Shelby’s numbers are
significantly higher than the national level at almost all stages.
25
As mentioned above, the RRI determination provides a snapshot of the
children in each stage, which allows us to see the level of representation of Black
children as compared to White children in each stage. The case analysis, however,
provides more concrete information about the impact of other factors on the chances
24
Calculations based on data available from the National Disproportionate Minority
Contact Databook, developed by National Center for Juvenile Justice for OJJDP (2011),
available at http://www.ojjdp.gov/ojstatbb/dmcdb/index.html. The national data are current
through 2008.
25
The national level reflects estimates for the entire country developed by the National
Center for Juvenile Justice.
32
of a Black child’s case being resolved in a certain direction. Below, we present the
results of the logistic regression technique used to determine the extent of race as a
contributing factor to the decision-making processes involved in less frequently
giving lesser sanctions to Black children, and more frequently detaining them pre-
adjudication, and transferring their cases to criminal court.
2. Black Children Have a Lesser Chance of Receiving
Diversion and Lenient Disposition Options than White
Children in Shelby County
The case analysis data show that Black children are less likely to receive
diversion and lenient dispositions than White children in Shelby County. In short,
Black and White children are treated differently. Although the above RRI data on
diversion shows that Black children have a slightly smaller chance of being
diverted, the RRI data present merely a snapshot of the system. A deeper
statistical analysis of the data, using the case analysis methodology explained
above, reveals that the odds of Black children receiving diversion are far less than
the RRI data suggest. After controlling for the impact of other factors, it becomes
clear that race was a factor in the decision to offer a child more lenient options.
This runs afoul of the Equal Protection Clause and Title VI. We explain the results
of the case analysis below.
When a child is arrested or summoned to appear before the Juvenile Court, a
probation officer makes the initial determination as to whether the child’s case can
be addressed in a non-judicial manner or whether the matter should proceed to the
docket for adjudication. Non-judicial resolutions include referral of the child to
another agency for counseling services or for supervision, warning the child in
writing or verbally that his or her conduct was wrong and dismissing the case,
simply dismissing the case, recommending pre-adjudicatory probation services for
the child, requiring that the child perform community service, and other options
that do not involve placing the matter on the docket and proceeding to adjudication.
Such options may also be offered to a child once the matter has proceeded to the
docket and at any point prior to adjudication. Children may also receive sanctions
that do not include confinement if they are adjudicated delinquent. For example, a
child may be placed on probation, be required to perform community service, receive
counseling, receive a fine, or be required to provide restitution for the adjudicated
offense. In other words, there are many non-confinement options tailored to suit
the needs of a child referred to juvenile court before a matter is placed on the
docket, after a matter is placed on the docket, and even following a finding of
delinquency.
Many studies suggest that non-confinement options may be more beneficial
to reducing a child’s chances of re-offending than confinement. One such study is a
long-term multidisciplinary study sponsored by OJJDP in partnership with other
33
organizations, The Pathways to Desistance Study (“Pathways Study”).
26
See
Edward P. Mulvey, Highlights from Pathways to Desistance: A Longitudinal Study
of Serious Adolescent Offenders, OJJDP (2011), available at
http://www.ncjrs.gov/pdffiles1/ojjdp/230971.pdf. The Pathways Study followed 1,354
juvenile offenders in two metropolitan areas (Philadelphia, PA and Maricopa
County, AZ) for seven years after they were found delinquent or guilty of at least
one serious violent crime, a property crime, or a drug offense. A number of reports
have been issued assessing the results of the Pathways Study. One related report
concluded that drug treatment reduced offending levels among juveniles who had
prior offenses. See Chassin et al., Substance Use Treatment Outcomes in a Sample
of Male Serious Juvenile Offenders, 36 J. Substance Abuse Treatment, 36 (2009).
Another report stemming from the Pathways Study concluded that longer
confinement in juvenile facilities did not reduce the offending children’s incidence of
re-offending. See Thomas A. Loughran et al., Estimating a Dose-Response
Relationship Between Length of Stay and Future Recidivism in Serious Juvenile
Offenders, 47 (3) Criminology 699 (2009). Studies have also consistently concluded
that a child’s initial detention increases his or her likelihood to be processed
through the system and to receive harsher sanctions upon adjudication, even after
controlling for the types of offenses and prior offenses. See e.g. Office of State
Courts Administrator, Florida’s Juvenile Delinquency Court Assessment, 24 (April
2003) (“After accounting or controlling for demographic variables, the plea, and the
severity and type of offense, findings show that securely detained cases have odds of
commitment that are three times greater than the odds of a non-securely detained
case.”); Charles E. Frazier & Donna M. Bishop, The Pretrial Detention of Juveniles
and Its Impact on Case Disposition, 76 J. Crim. L. & Criminology 1132, 1151
(1985)(finding that children detained pretrial are “disadvantaged by an increased
likelihood of formal as opposed to informal case disposition.”). Children referred to
the juvenile courts benefit from non-confinement options. If diversion is offered
disproportionately to White children, this will have a disproportionate impact on
Black children.
Our consultant’s analysis of JCMSC’s case files shows that, when compared
to White children, Black children in Shelby County are less likely to receive the
benefits of more lenient judicial and non-judicial options. This is an impermissible
discriminatory impact on the basis of race. See Farm Labor, 308 F.3d at 534
(reasoning that discriminatory effect can be established through use of statistical
evidence showing one class is being treated differently from another class).
Moreover, race was a major contributing factor to this disparity. We have reason to
26
The Pathways to Desistance Study is sponsored by OJJDP, the National Institute of
Justice, the Centers for Disease Control and Prevention, the John D. and Catherine T.
MacArthur Foundation, the William T. Grant Foundation, the Robert Wood Johnson
Foundation, and the William Penn Foundation, among others. Additional Pathway Study
reports are expected in the forthcoming months.
34
believe that this racial impact, which is not explainable on grounds such as legal
and social factors, is a violation of the children’s right to equal protection. Notably,
the sheer number of Black children before the court is higher than the number of
White children. While we acknowledge that this substantial numerical difference is
based on the number of children referred to the court by other agencies,
27
the case
analysis considers how JCMSC personnel address these two groups once they are
within the court’s ambit. With respect to the court personnel’s implementation of
lenient options, two areas are particularly troubling – (1) disparities in the
application of a pre-adjudicative warning or other informal adjustment such as
counseling, and (2) disparities in the application of sanctions not resulting in
confinement, such as a fine, restitution, and community service requirements.
First, our consultant considered the cases between 2005 and 2009 that did
not result in dismissals. This included a total of 54,700 cases, involving 46,911
Black children and 7,789 White children. He analyzed the odds ratio of a Black
child receiving a warning as compared to a White child. While a large number of
children, both Black and White, received the benefit of a warning or other informal
adjustment, Black children were less likely to receive these benefits than White
children. In particular, he found that the ratio of the odds of a Black child receiving
a warning compared to a White child was .45.
28
As with the RRI, 1.0 represents a
race neutral ratio.
29
27
The disparity in the number of children referred to the court is itself cause for concern.
However, we did not investigate this fact and, as such, do not make a finding concerning it.
The base odds ratio of .45 suggests that Black children are less
than fifty percent as likely to receive a warning as compared to White children.
This number does not account for other variables such as age, gender, prior
offenses, school attendance, and other issues that may have impacted the result. As
such, we also considered the impact of these variables, using the logistic regression
analysis method described above. The statistician found that the impact of these
factors reduced the impact of race, but that race was still a statistically significant
factor in determining whether a child will receive a warning as opposed to more
serious sanctions. Specifically, the odds of Black children receiving a warning was
28
This number was determined by calculating the odds for each group. Accordingly, the
odds of a White child receiving a warning are determined by dividing the percentage
receiving a warning by the percentage not receiving a warning. For example, 88.2 percent
of White children received a warning and 11.8 percent did not receive a warning. The
overall odds of a White child receiving a warning is therefore 7.47. 77.3 percent of Black
children received a warning and 23.0 percent did not receive a warning. The overall odds
for a Black child receiving a warning is therefore 3.36. The effect of race is calculated as
the ratio of the odds. In this case, 3.36 divided by 7.47 equals .45. (Note: The 2010 odds
ratio data when added to the five year data, changes the odds ratio to 0.46).
29
Note, the RRI and the odds ratios are different analyses, although neutrality is
represented in both as 1.0.
35
one third less than the odds of White child receiving a warning even after
accounting for other variables.
As previously discussed, this finding is based on a logistic regression analysis
method that simultaneously considered the impact on the result of other variables
such as age, gender, education level, offense charged, or prior delinquency finding.
The following table shows the impact of the other variables on the odds of a child
receiving a warning, including the impact of being Black.
Logistic Regression to Predict Warning, 2005-2009
Variable B S.E. Wald Significance Odds Ratio
Ol
der
-.098
.027
13.628
.000
.907
Male
-.525
.030
312.168
.000
.592
Aggravated
-2.913
.055
2760.068
.000
.054
Special Ed
-.321
.054
35.446
.000
.725
Prior Delinquency
-1.442
.028
2581.971
.000
.236
Prior Alcohol & Drug
(“A&D”) Offenses
.003
.055
.002
.961
1.003
Prior Status Offenses
-.324
.080
16.566
.000
.724
Prior Dependency or Neglect
-.195
.036
29.771
.000
.823
Currently In School
.781
.037
446.352
.000
2.184
Two Parent home
.044
.036
1.499
.221
1.045
Other living arrangements
.079
.040
3.860
.049
1.082
Referral Person crime
.236
.039
36.672
.000
1.266
Referral Property crime
.165
.041
16.432
.000
1.179
Referral Conduct
.562
.037
228.098
.000
1.753
Referral status
2.597
.093
777.258
.000
13.421
30
Number of charges
-.452
.022
423.150
.000
.636
Black
-.408
.044
84.800
.000
.665
Constant
31
2.222
.066
1117.010
.000
9.229
The table includes a number of terms based in statistical analysis. For
clarification, “B” represents the coefficient (i.e. the mathematical value of each
variable in the formula to predict warning); “S.E.” is the standard error rate
associated with B (i.e. the range of confidence in estimating B); “Wald” represents
the mathematical computation of chance connected to the significance testing;
“Significance” represents the probability that the variable’s impact is by chance (a
significance of .000 means that the probability of the variable’s impact being by
chance is less than 1 in 1000); and the “odds ratio” represents the relationship
between the particular variable and the outcome. Each variable was also given a
value of 1 when it is present in the cases analyzed or zero if it is not present. Thus,
30
This number is large because the County does offer a lot of diversion options. However,
disparities in providing those options remain.
31
This is a base value representing situations when the other variables are not present.
36
the odds of an older child receiving a warning are 90.7 percent of the odds of a
younger child receiving a warning, an odds ratio that is statistically significant and
that reflects the impact of age after taking into account all of the other variables
listed in the chart.
As the highlighted text shows, even accounting for the other variables, being
Black still reduces the chance of a child getting the lenient result of a warning as
opposed to being considered for other, more formalized, options by court. When the
other variables are included along with race, the odds ratio for a Black child
receiving a warning was 0.67 (as opposed to 0.45 when race alone was considered).
As a reminder, parity would be a valued as 1.00. This means that a Black child had
odds of receiving a warning that was still substantially lower, by approximately one
third, than the odds of a White child receiving a warning. In other words, the
impact of race on the result is not a chance event.
Second, our consultant considered the remaining cases that did not result in
dismissal or warning, between 2005 and 2009. This amounted to 16,361 cases,
involving 14,817 Black children and 1,449 White children. These cases involve
sanctions that did not result in ultimate confinement. Reviewing these case files
demonstrated that 27.4 percent of the remaining cases involving Black children
resulted in a non-incarceration sanction, while 41.1 percent of cases involving White
children resulted in a non-incarceration sanction. Black children were less likely to
receive the more lenient result.
Impact of race on sanction without a loss of liberty,
among cases not resolved by dismissal or warning.
Race
Total White Black
Sanction without loss of
liberty
No Count 854 10752 11606
% within Race 58.9% 72.6% 71.4%
Yes Count 595 4065 4660
% within Race 41.1% 27.4% 28.6%
Total Count 1449 14817 16266
% within Race 100.0% 100.0% 100.0%
The yearly breakdown of children receiving less than incarceration shows a
reduction in the number of White children receiving the more lenient sanctions, but
not any corresponding increases in the Black children receiving more lenient
results. The disparity is consistent over the entire time period analyzed as
demonstrated in the following table.
37
Percentage receiving fine, restitution or
community service sanction, of cases not
resolved by dismissal or warning
Year
White
Black
2005
42.6
28.6
2006
44.2
31.0
2007
47.6
26.5
2008
28.0
25.7
2009
39.8
24.3
The disparate results demonstrated in the above tables remain evident even
after other variables are included in the analysis. Specifically, the odds of a Black
child receiving a more limited sanction is approximately half of the odds of a White
child receiving that sanction, with an odds ratio of 0.54.
32
32
This disparity increased in 2010 where the odds ratio for these lesser sanctions was 0.38.
Black children were less likely to receive these lesser sanctions.
Again, parity is
represented by 1.00. The disparity is reduced to 0.689, but not eliminated, following
the introduction of other variables, such as the types of offenses, the child’s age, and
the child’s prior offenses, among other variables listed in the following table. Race
still impacts the chances of a child being given a lesser sanction even after
controlling for the impact of an aggravated offense and priors.
38
Logistic regression to predict fine, restitution or public service sanction among cases
that were not dismissed or released with warning, 2005-2009
Variable B S.E. Wald Significance
Odds
Ratio
Old
er
.069
.039
3.124
.077
1.071
Male
-.068
.047
2.089
.148
.935
Aggravated
-.541
.053
104.872
.000
.582
Special Ed
-.271
.081
11.291
.001
.763
Prior Delinquency
-1.151
.043
710.969
.000
.316
Prior A&D Offenses
-.160
.095
2.848
.091
.852
Prior Status Offenses
-.468
.129
13.132
.000
.627
Prior Dependency or Neglect
-.129
.054
5.788
.016
.879
Currently In School
.569
.065
76.948
.000
1.767
Two Parent home
.250
.051
24.385
.000
1.285
Other living arrangements
-.186
.062
8.948
.003
.830
Referral for Person crime
-.041
.060
.477
.490
.960
Referral for Property crime
.781
.059
174.509
.000
2.184
Referral for Conduct
-.330
.057
33.079
.000
.719
Referral for Status Charge
-.080
.094
.727
.394
.923
Number of charges
-.062
.025
6.127
.013
.940
Black
-.372
.065
33.081
.000
.689
Constant
-.465
.109
18.335
.000
.628
JCMSC’s own records show that Black children are treated significantly
worse than White children even after accounting for the other social and legal
factors. This is a violation of their Equal Protection rights. U.S. v. Jones, 159 F.3d
969, 977 (6th Cir. 1998)(noting that an equal protection violation in selective
prosecution case may be established, in part, by showing different treatment of
similarly situated individuals); Farm Labor, 308 F.3d at 533 (reasoning that an
equal protection violation occurs where claimant is “subjected to unequal treatment
based upon their race or ethnicity.”). This also violates Title VI and its
implementing regulations. See Elston, 997 F.2d at 1406 (recognizing that Title VI
provides similar protection to the Equal Protection clause but that the Title VI
regulation requires only a showing of a “disparate impact on groups protected by
the Statute”).
39
3. Black Children have a Greater Chance of Being Detained
Prior to a Detention Hearing than White Children in
Shelby County
The case analysis of files from 2005 through 2009 shows that the initial
detention rate for Black children referred to JCMSC is higher than the detention
rate for White children. Additionally, the introduction of other variables such as
aggravated offenses, priors, age, and gender, do not eliminate the impact of race.
When a police officer, school, or other agency refers a child to the JCMSC, Juvenile
Court personnel must still decide whether that child should be released or detained.
According to its Detention Policy and Procedure Manual, the detention decision in
JCMSC is made by an intake officer and, on some occasions, administrative
personnel in the detention center. The intake officers have the authority to require
the “secure detention for any child who poses a serious risk to the community or is a
risk not to appear at a future court hearing as identified through the use of the
Detention Risk Assessment Tool” (“DAT”).
33
The DAT uses a point system form
intended to aid the intake officer in determining whether a child should be detained
based on factors such as the child’s suspected offense, prior adjudications,
probationary status, and history of failure to appear and to ensure consistency in
the intake decision-making process. JCMSC implemented the DAT in early 2006.
34
If the child receives a high score on the DAT (16 or above), the intake officer
is authorized, but not required, to detain the child until a detention hearing before
the Magistrate.
35
If the child’s score is lower than 16, the child may still be
detained, although the court’s procedures recommend that, if detained, the child
should be held in a less restrictive “non-secure detention alternative.”
36
33
Detention Policy and Procedure Manual, Policy # VIII-I at 241.
While
application of the DAT is important to the intake officer’s determination, the officer
still has discretion in evaluating whether the child should be detained prior to a
hearing. For example, a child may be detained if the intake officer determines that
detention is “required to protect the person or property of others or the child,” the
“child may abscond,” or that there is “no parent, guardian, custodian, or other
person able to provide supervision and care and return the child to the court when
34
Our case analysis time-frame extends from 2005 through 2009, so the DAT applied
throughout most of that time.
35
Id. at 242.
36
Id.
40
required.”
37
The child’s DAT score may also be overridden upon the approval of a
supervisor or higher ranking detention center administrator.
The statistical analysis found a disparity in the initial detention of Black
children as compared to White children throughout the relevant five-year period.
The initial decision to detain has a significant impact on the affected child. Pretrial
detention has been shown to increase the likelihood that a child will be formally
charged and receive more serious sanctions.
38
The Black-to-White odds ratio for
being detained once referred to JCMSC is 2.74.
39
Even after the introduction of
other variables, the odds ratio remains statistically significant with nearly the same
magnitude. As noted above, parity is 1.00. A number below 1.00 represents a lower
odd of receiving the particular result being examined. A number above 1.00
represents a higher odd of receiving the result being examined. As such, a Black
child brought to the JCMSC has a substantially higher chance of being detained
prior to the detention or probable cause hearing – despite his or her offense level,
prior delinquent offenses, or other social conditions – than a White child.
Impact of Race on Initial Detention
Race
Total
White
Black
Initially
Held in
Detention
No
Count
5823
21402
27225
Percent
63.1%
38.4%
41.9%
Yes
Count
3412
34397
37809
Percent
36.9%
61.6%
58.1%
Total
Count
9235
55799
65034
Percent
100.0%
100.0%
100.0%
Odds of being held
0.59
1.61
Odds
Ratio
2.74
Over the five-year period, 61.6 percent of the Black children brought to the court
were initially held in the detention facility, a total of 34,397 children. In the same
period, 36.9 percent of the White children brought to the court were held in the
detention facility, a total of 3,412 children. The numbers trended down for White
37
Id.
38
Office of State Courts Administrator, Florida’s Juvenile Delinquency Court Assessment,
24 (April 2003); Charles E. Frazier & Donna M. Bishop, The Pretrial Detention of Juveniles
and Its Impact on Case Disposition, 76(4) J. Crim. L. & Criminology 1132 (1985).
39
While the 2010 data shows some progress in the use of detention for all children,
substantial racial disparities remain. Including the raw 2010 odds ratio (2.43) in the five-
year analysis changes the overall odds ratio to 2.78.
41
children after the introduction of the DAT in 2006 and remained constant for the
Black children during the five-year period, causing the odds ratio to expand over the
time period. For example, 2005’s odd ratio was 1.94, while 2009’s odds ratio was
3.30 indicating that an already unconstitutional situation has been getting worse.
The following table shows the odds ratio for each year reviewed.
Percentage Initially Held in Detention
Year White Black
Odds
Ratio
2005
44.3%
60.7%
1.94
2006
40.5%
62.5%
2.45
2007
35.3%
62.5%
3.05
2008
31.9%
62.2%
3.51
2009
31.6%
60.4%
3.30
The race impact in the initial detention decision was significant even after
the introduction of other variables (i.e., age, gender, offense type, prior delinquency,
living arrangement, or school attendance), with Black children having a greater
chance of being held once brought to the court than a White child.
42
Logistic Regression: Initially Held in
Detention
Variables in the
Equation
Significance
Odds
Ratio
Older
0.00
0.87
Male
0.53
1.01
Aggravated
0.00
8.47
Special Ed
0.00
1.46
Prior Delinquency
0.00
1.42
Prior A&D Offenses
0.08
0.92
Prior Status Offenses
0.08
1.12
Prior Dependency or
Neglect
0.00
1.30
Currently In School
0.00
0.91
Two Parent home
0.00
1.28
Other living
arrangements
0.00
1.25
Referral Person crime
0.00
0.59
Referral Property
crime
0.00
0.68
Referral Conduct
0.00
1.21
Referral status
0.00
0.41
Number of charges
0.00
1.89
Black
0.00
2.74
Constant
0.00
0.28
In essence, we found that the effect of race on the detention decision cannot be
explained by other measurable factors and, therefore, the initial detention decision
has a discriminatory impact on Black children.
4. Black Children are More Likely to be Recommended for
Transfer Hearings to Adult Criminal Court than White
Children in Shelby County
The case analysis shows that, of the children whose matters were not
resolved by dismissal or through a warning or counseling, Black children were more
likely to be recommended for a transfer hearing than White children. Moreover, the
higher odds of a Black child being subject to a recommendation for transfer were not
explained by the introduction of other variables. As described more fully in the due
process section, a juvenile transfer proceeding is a proceeding in which the juvenile
court determines whether to waive its jurisdiction and transfer the matter to
criminal court for the child to be tried as an adult. In Kent, 383 U.S. 541, the
Supreme Court mandated the basic due process requirements applicable to transfer
hearings: (1) the right to a hearing; (2) the right to be represented by counsel at the
hearing; (3) the right of counsel to have access to the evidence to be considered by
43
the juvenile court in determining transfer; and (4) the right to have the juvenile
court’s determination on the record accompanied by a statement of reasons for
transfer. The Tennessee statute, Tenn. Code Ann. § 37-1-134, and the JCMSC court
rules, Rule 24, also outline standards for transfer.
In Shelby County, several stakeholders have a role in deciding which cases
are suitable for transfer. Before a matter is formally petitioned, however, a JCMSC
probation counselor decides whether a child’s matter should be addressed in a non-
judicial manner (such as dismissal, referral for social services, or a warning), or
should proceed formally. The probation counselor assesses the child’s eligibility for
diversionary options and services. In many instances, the probation counselor
decides what formal charges should be included in the petition, although the DA
ultimately certifies those charges. Once the matter is formally placed on the docket,
the DA may seek a transfer hearing. The Magistrate makes the ultimate decision
on whether a child’s case should be transferred to the adult court following a
hearing on the legal grounds and the social factors supporting or militating against
transfer. In doing so, the Magistrate determines not only whether reasonable
grounds exist to believe that a child has committed the delinquent act, but also
whether the child may be appropriately treated in the juvenile system. As
discussed in our due process section, we found that Magistrates often failed to
adequately protect the children’s due process rights during the transfer hearings.
Our case analysis shows that Black children are more likely to be considered for
transfer proceedings, regardless of having many of the same case attributes and
social circumstances as White children. Black children with similar legal and social
factors as their White counterparts received different, more harmful, outcomes
based on their race. This is impermissible. Farm Labor, 308 F.3d at 533-34.
We found that Black children in JCMSC have a greater chance of being
considered for transfer to the criminal court than white children and, following the
inadequate transfer hearings discussed in the due process section, they have a
substantially higher chance of having their case actually transferred to the criminal
court. During the period reviewed, 2005 through 2009, 1051 children (1002 Black
children and 49 White children) in the analysis parameters were recommended for a
transfer proceeding and 1041 (99 percent) children were actually transferred to the
adult court following a hearing.
40
40
At the outset of the analysis, there were 66,300 children referred to the court during the
five-year review period. This number includes 56,881 Black children and 9,419 White
children.
Black children accounted for 994, 95.5 percent, of
the 1041 children transferred to adult court. There has been some decrease in the
odds ratio over the five-year period, because there was an increase in the number of
44
White children considered in 2009, not because there was a decrease in the rate of
Black children being considered for transfer.
41
Percentage considered for adult transfer, of cases
not resolved by dismissal or warning
Year White Black
Odds
Ratio
2005
2.7%
5.9%
2.26
2006
1.4%
5.1%
3.78
2007
1.8%
6.1%
3.54
2008
7.0%
8.8%
1.28
2009
5.7%
8.6%
1.56
The large disparity in transfer between Black and White children was not
removed by the introduction of other variables. While the analysis showed that
aggravated offenses, multiple charges, and prior adjudications influenced the
decision to seek transfers, those variables did not remove the impact of race. Before
introducing the legal and social variables, the odds ratio associated with race was
2.07, that is, a Black child was more than twice as likely as a White child to be
recommended for transfer proceedings. After introducing the variables, the odds
ratio associated with race was only slightly reduced to 2.02.
41
This trend appeared to be reversing in 2010, with fewer White children being referred for
transfer. As such, Black children had almost double the odds ratio (1.76) of being
recommended for transfer in 2010.
45
Logistic regression to predict adult transfer consideration among cases that
were not dismissed or released with warning, 2005-2009
Variable
Significance Odds Ratio
Old
er .000 9.118
Male .000 4.186
Aggravated .000 6.384
Special Ed .000 .483
Prior Delinquency .000 1.870
Prior A&D Offenses .507 1.077
Prior Status Offenses .072 1.399
Prior Dependency or Neglect .498 1.072
Currently In School .000 .309
Two Parent home .679 1.046
Other living arrangements .746 1.039
Referral Person crime .000 1.900
Referral Property crime .000 .470
Referral Conduct .104 .843
Referral status .004 .465
Number of charges .000 1.489
Black .000 2.020
Constant .000 .001
The disparity in transfer rates for Black children is especially problematic
because the consequences of transferring a juvenile to the adult court are
significant. Transfer removes the child from the rehabilitative juvenile system and
subjects the child to the adult criminal system. Children who are adjudicated in the
adult system have been shown to reoffend and continue antisocial behavior more
frequently. See Carol A. Schubert et al., Predicting Outcomes for Youth
Transferred to Adult Court, 34 Law & Hum. Behav. 460, 471 (2010)(finding that the
majority (77 percent) of study group, adolescents whose matters had been
transferred to the adult court, were either rearrested or resumed antisocial
behaviors). Moreover, children considered for transfer may be more inclined to
plead guilty in order to avoid the potentially serious consequences of trial in the
46
adult system. See e.g. Robert E. Shepherd, Jr., Plea Bargaining in Juvenile Court,
23 Crim. Jus. 61 (2008) (discussing the importance of plea bargaining to avoid more
serious consequences such as transfer to adult court).
The higher odds ratio of transferring Black children in JCMSC cannot be
explained by factors other than race. Even after accounting for the types of
offenses, prior offenses, age, gender, and a number of other factors that could have
arguably reduced the impact of race, race still shows up as a statistically significant
factor in the decision to recommend a child’s case for transfer and to transfer the
child’s matter to criminal court. Children are being treated differently in JCMSC
based on race. This violates the Equal Protection rights of the children appearing
before the court. U.S. v. Jones, 159 F.3d at 977; Farm Labor, 308 F.3d at 534. For
the same reasons, it also violates Title VI and its implementing regulation
prohibiting “methods of administration which have the effect of subjecting
individuals to discrimination because of their race.” 28 C.F.R. § 42.104 (b)(2).
IV. PRACTICES THAT CONTRIBUTE TO DUE PROCESS AND EQUAL
PROTECTION VIOLATIONS
Many factors contribute to the due process and equal protection violations
discussed in this report. Unless reformed, these factors will further contribute to a
pattern or practice of unconstitutional conduct.
A. Fundamental Misunderstandings About JCMSC’s Purpose and
Players
A number of stakeholders have a fundamental misunderstanding about the
purpose of juvenile court and the roles and responsibilities of its participants.
Misunderstandings about the role of defense counsel seem particularly acute.
Several JCMSC staff also expressed resistance to the idea that JCMSC would be
stronger overall with a more adversarial system. This misunderstanding and
resistance, if allowed to continue, could frustrate JCMSC’s efforts to fully comply
with Gault
. We discuss each one of these problems in turn below.
1. Adversarial Testing of Facts in Juvenile Court
During our 2010 inspection, we suggested that JCMSC could benefit from a
more vigorous adversarial testing of the facts in juvenile delinquency cases. During
our 2011 tour, however, court officials expressed concern that adversarial testing
would result in less civil interactions in the court. Our suggestion was meant to
convey the importance of due process and is fully consistent with JCMSC’s mandate
to “[p]rovide a simple judicial procedure…in which the parties are assured a fair
hearing and their constitutional and other legal rights recognized and enforced.”
Tenn. Code Ann. § 37-1-101 (a)(4). In short, it means that JCMSC should embrace
more of the due process protections the Supreme Court set out in Gault, not that
JCMSC should operate exactly as an adult criminal court.
47
Adversarial testing occurs when there is a sufficiently rigorous challenging of
the state’s evidence to ensure due process at the probable cause hearing and trial.
Adversarial testing of the evidence should not erode cordiality and collegiality in the
courtroom. If it does, then JCMSC should address this problem by training court
staff on the different roles and responsibilities of all players in the juvenile court
process.
2. The Role of Defense Counsel
Defense attorneys play a central role in the proceedings. A Juvenile
Defender (“JD” or “defender”) is the sole participant responsible for advancing the
interest or position the child articulates.
42
Notably, there appears to be some confusion on this point expressed by
several employees of JCMSC, including Magistrates, as evidenced by an exchange
during a detention hearing for R.R., a child arrested for allegedly assaulting her
mother. Because R.R.’s mother did not attend the hearing, the Magistrate made a
referral to the Department of Children’s Services and appointed a guardian for R.R
in addition to a JD. The Magistrate advised R.R. that “if you have any issues you
can talk to your attorney, or you can talk to [guardian] about this matter and they’ll
work together on your best interest, okay?” However, this misstates the JD’s role.
While the attorney appointed as guardian is charged with working in R.R.’s best
interests, the JD’s responsibility is to advocate for R.R.’s express interest, which
could differ from her best interest. Indeed, the defender is the only professional in a
juvenile’s case whose principal duty is to serve as the child’s voice in the
proceedings.
Unlike probation officers, psychiatrists
and others, the defense counsel must protect the youth’s expressed interest and
cannot supplant it with his or her judgment about what is in the youth’s best
interest. Vigorous advocacy by defense counsel ensures that the youth’s voice is
heard in the process and a fair, just and appropriate result is achieved.
43
42
National Council of Juvenile and Family Court Judges, “Juvenile Delinquency
Guidelines: Improving Court Practice in Juvenile Delinquency Cases” (2005),
http://www.ncjfcj.org/content/blogcategory/346/411/. The Guidelines recommend that an
attorney for the child in a juvenile proceeding should “[b]e an advocate, zealously asserting
the client's position under the rules of the adversary system.” See also
, Tennessee Rules of
Professional Conduct R. 1.3: Diligence (2011),
www.tba.org/ethics/2011_TRPC.pdf (stating
that a “lawyer must … act with commitment and dedication to the interests of the client
and with zeal in advocacy upon the client’s behalf.”)
43
See generally, Kris Henning, Loyalty, Paternalism, and Rights: Client Counseling Theory
and the Role of Child’s Counsel in Delinquency Cases, 81 Notre Dame L. Rev. 245 (2005).
48
B. Juvenile Defenders
Against the backdrop of a court culture that frequently discourages an
adversarial testing of facts for children and misinterprets the proper role of defense
counsel, the Juvenile Defenders in JCMSC are challenged to meet ethical and
professional obligations to their clients. Although we observed several defenders
who are experienced and engaged advocates,
44
The following examples from hearings demonstrate problematic practices by
defense counsel:
we also found some instances where
defense attorneys failed in their duties to be competent and zealous advocates.
45
As noted above, in an adjudicatory hearing, the ADA called juvenile E.E.
to testify at his own adjudicatory hearing. E.E.’s defense attorney did not
object to this highly unusual step and was therefore complicit in allowing
E.E.’s privilege against self-incrimination to be violated.
At a transfer hearing for A.A., discussed previously, the Magistrate had
not yet announced a decision about whether to transfer A.A. to adult
criminal court. But during the defense attorney’s argument against
waiver, the Magistrate asked the attorney whether A.A. admitted guilt.
The defense attorney readily acknowledged that A.A. “admitted full
responsibility on these charges.” In this case, A.A. should have had a full
hearing on the transfer issue, where the Magistrate would have been
required to find “reasonable grounds to believe that A.A. committed the
delinquent act as alleged” in order to transfer A.A. See Tenn. Code Ann.
§ 37-1-134 (a)(4)(A). By admitting A.A.’s guilt on this crucial issue, the JD
helped the ADA make the case against his client.
In a transfer hearing for P.P., the defense attorney began the hearing by
stipulating that P.P. “was found with the property, was legally detained
[and] that he gave a statement freely and voluntarily.” Instead of
insisting that the court follow mandatory transfer procedures, the JD
suggested that the court skip live testimony, which would have been
crucial for discovery purposes.
44
We were pleased to learn that JCMSC arranged for the Chief Juvenile Defender to attend
a national training for juvenile defense attorneys in 2010.
45
We recognize that defense attorneys have discretion to make strategic decisions about
their cases, and that defense attorneys may have chosen a course of action based on a
privileged communication with their client. However, the decisions included here were
detrimental to the client’s position and are so far out of the norm for defense practice that
we have presumed that the client did not consent to or request these strategies.
49
In Q.Q.’s transfer hearing, the defense attorney stipulated to the
government’s evidence against Q.Q. The defense attorney did not insist
that the prosecutor present evidence in support of transfer, thereby giving
up the opportunity to cross-examine the government’s witnesses.
The defense provided to juveniles in JCMSC could be enhanced if JDs were
more proactive in asserting their client’s rights throughout the proceedings. During
our observations of detention hearings, we rarely, if ever, saw JDs assert their
client’s rights under the Fifth or Sixth amendments at the detention hearing. The
Fifth Amendment assertion must be explicit and specific. Defenders should
specifically invoke the Fifth Amendment right to counsel “in this and all future
proceedings” at presentment or arraignment in an effort to protect the child against
police contact about any case for which the defendant is in custody. See McNeil v.
Wisconsin, 501 US 171, 184 (1991). Although there is some debate whether this
invocation by counsel at the arraignment will constitute a valid assertion of the
Fifth Amendment right to be free from custodial interrogation with regard to
offenses that are not yet charged, it is still a good practice for JDs to adopt. The
Sixth Amendment right is offense specific. Id. at 175. JDs should, at minimum,
invoke the Sixth Amendment right to counsel for the offenses presently before the
court.
During stakeholder interviews, we learned that JDs do not consistently
request discovery from ADAs. Tennessee’s court rules regarding discovery require
JDs to have access to the same type of discovery that a defense attorney would
receive in adult criminal court. Tenn. R. Juv. P. 25 (providing that “each juvenile
court shall ensure that the parties in delinquent and unruly proceedings in juvenile
court have access to information which would be available in criminal court…”). As
a standard practice, JDs should request discovery in every case, not just in those
cases that they feel have trial potential. Discovery is a crucial part of a case’s
investigative stage as it can inform and/or direct the defense strategy.
46
From court observations and in transcripts, it was clear that the majority of
JDs did not challenge probable cause when the government moved to detain their
clients, even when seemingly viable arguments were available, such as self-defense
or mis-identification. In fact, many JDs made statements indicating that they felt
that the facts of the case — which are crucial to probable cause determinations —
were off limits to them at the probable cause portion of the detention hearing. We
observed an example of a failure to zealously challenge probable cause in a case of a
child charged with gun possession and burglary. Before the arrest, the child was
46
National Council of Juvenile and Family Court Judges, supra note 15, at 31 (stating that
defense attorneys should “[a]ctively pursue discovery from the prosecutor under informal
procedures, court rule, and motions practice as appropriate. Effective representation of the
client’s interests is frustrated when counsel for the youth is ignorant of information
contained in discovery materials.”).
50
riding in a car with three or four adult men. The police discovered the gun in the
child’s purse. There was video of the adult males committing the crime but not of
the child. Available arguments against probable cause included whether the child
knew a gun was in her purse, whether she was actively involved in the alleged
crime, or whether she was under duress from the adult males in the car. The JD
did not assert any potential arguments against probable cause.
We were encouraged to hear during our second visit that probation officers
have begun inviting JDs to probation conferences. It is difficult to determine how
frequently this occurs. JDs can ensure that their clients have representation at
probation conferences by requesting that the probation officers invite them to
meetings. Once informed of the meeting, the JD should make it a priority to attend
in order to advise the child about options presented by the probation officer,
including ensuring that the child understands all the conditions of any diversion
program offered.
It was clear from our inspection and interviews that appeals and written
motions by defense counsel are rare in JCMSC. In our review of court files, we
observed one written motion to suppress evidence. One defender informed us that
oral motions, as a strategic choice, are more common than written ones. During
interviews, stakeholders acknowledged that appeals are practically non-existent at
JCMSC. In a promising sign, it appears that JDs do request rehearings of
detention decisions approximately one to four times per week. Overall, JDs should
be more proactive in pursuing appeals and filing motions to suppress evidence when
there is a basis to do so.
Finally, we are concerned about the structure of Juvenile Defender’s Office
(“JDO”). The JDO is not an independent agency, nor is it affiliated with the county
public defender’s office. Instead, JCMSC operates it entirely, and the Chief
Juvenile Defender is appointed by, and reports directly to, the Juvenile Court
Judge. This organizational structure, while not unconstitutional per se, creates an
apparent conflict of interest, as a juvenile defender must balance the duty of
representing the child client with the inherent duty of loyalty to his or her
employer. National standards for public defender systems strongly encourage
independence from the judiciary to avoid conflicts of interest and judicial
interference.
47
47
American Bar Association, “Criminal Justice Section Standards, Providing Defense
Services”, Standard 5-1.3 (1992) http://www.americanbar.org/publications/
criminal_justice_section_archive/crimjust_standards_defsvcs_blk.html (“The [legal
representation] plan and the lawyers serving under it should be free from political influence
and should be subject to judicial supervision only in the same manner and to the same
extent as are lawyers in private practice.”); See also
James R. Neuhard & Scott Wallace,
“The Ten Commandments of Public Defense Delivery Systems,” National Legal Aid and
51
C. Other Recommendations
In addition to our concerns about misunderstandings about the function and
professional roles within the juvenile court, we had other concerns about practices
within the Juvenile Court. These practices do not directly violate the Constitution,
but if left unaddressed, they could undermine JCMSC’s efforts to provide due
process protections for juveniles in a consistent manner.
1. Increase Time Assistant District Attorneys and Juvenile
Defenders Have to Prepare for Detention and Probable
Cause Hearings
We were encouraged to see, after our 2010 visit, that JCMSC made changes
to the case assignment process. Previously, the JDO appointed one to two attorneys
to cover all of the detention hearings for a particular day. The appointments
occurred just moments before the detention hearings began. JCMSC restructured
the appointment process so that each defender is appointed to represent only one or
two children each day. Defenders also receive the arrest tickets approximately 45
minutes before the detention hearings begin, rather than minutes before the
hearing. These changes show considerable improvement in the JDs’ access to
information and time to prepare for detention hearings. Because defenders have
fewer clients each day, they can follow-up with prosecutors about discovery and
with probation officers about conferences more quickly.
But JCMSC has the opportunity to provide JDs even more time to prepare for
hearings. Under the current court schedule, detention hearings occur each weekday
at 1:00 pm, and JDs receive arrest tickets at approximately 12:15 pm. However, the
intake staff completes paperwork for most of the detention hearings scheduled for a
particular afternoon before 12:15 pm. Children arrested anytime between 10:30 am
on Day 1 and 10:30 am on Day 2 will have their detention hearing the afternoon of
Day 2. This means there is a 24-hour window prior to the detention hearing in
which arrest tickets are being delivered to the detention center. Arrest tickets
generated after 10:30 am on Day 1 should be distributed to the JDO and the DA
early in the morning on Day 2. This would allow defenders and ADAs to get
paperwork the morning of the detention hearing, giving them more time to prepare
for the hearing.
2. Bond for Juveniles
The Eighth Amendment states in relevant part, “Excessive bail shall not be
required, nor excessive fines imposed…” U.S. Const. amend. XIII. The amount of
bail should not be arbitrary or punitive, but rather an amount that will reasonably
ensure the child’s appearance, as is required in Tennessee’s criminal statute. See
Defender Association (2001),
http://www.nlada.org/Defender/Defender_Standards/Standards_Attach6.
52
Tenn. Code. Ann. § 40-11-118(a) (“Bail shall be set as low as the court determines is
necessary to reasonably assure the appearance of the defendant as required.”)
In JCMSC, we observed Magistrates frequently setting bond for children at
detention hearings. In a number of these hearings, the bond amounts appeared to
be excessive, especially for indigent children who qualified for a court-appointed
attorney. The Tennessee Code does not specifically address guidelines or limits for
Magistrates for the setting of bond at juvenile detention hearings. However, § 37-1-
117(e), allows Magistrates the discretion to “release the child on an appearance
bond.” From our observations and conversations with stakeholders, we understand
that, in practice, Magistrates issue three types of bonds for children: (a) an
appearance bond, as mentioned above, where the child is essentially released on his
or her own recognizance; (b) a secured bond, where the child (or parent) may post
10% and collateral with a bond company; or (c) an unsecured bond, where the child
(or parent) is required to pay the bond if the child fails to appear. Of course, the
Magistrate can also detain the child with no bond.
During out 2010 inspection, we were informed that Magistrates typically set
bonds between $250 – $500. However, in our review of hearings and transcripts, we
did not find this to be the case. While some of the bonds did fit into the $250 – $500
range, we noted a significant number of times when the Magistrate set
unnecessarily high and sometimes unconstitutionally excessive bonds. In one
transfer hearing, a child was charged with stealing the rims and tires off of a car.
After finding probable cause and transferring the child to adult court, the
Magistrate set bond at $1,000,000. We also observed Magistrates setting bonds
ranging from $1,000 to $10,000.
We do not suggest here that Magistrates in JCMSC should not be setting
bonds; nor do we attempt to suggest what the bond amounts should be. However, a
starting point for determining bail amounts should be the Eighth Amendment,
which prohibits excessive bail. JCMSC should consider adopting a policy that
prevents excessive bonds for children and reasonably assures the child’s appearance
for court.
3. Plea Colloquy
The court hearings and transcripts we reviewed demonstrate that
Magistrates inconsistently administer plea colloquies for children. Tennessee court
rules require Magistrates to make a thorough inquiry of a child before accepting a
plea of guilty. Tenn. R. Juv. P. 21. The Magistrate must “address the child
personally in open court and inform the child of, and determine that the child
understands” several issues, including the nature of the charges, possible
dispositional consequences of the admission, the right to plead not guilty, and the
right to confront and cross-examine witnesses. Id. The court must also take steps
under the rule to ensure that the plea is voluntary. Id. While some Magistrates
gave a clear explanation of the rights the child was giving up by pleading guilty,
53
others did it cursorily without asking questions to confirm that the child understood
the process. At minimum, the Juvenile Court Judge should ensure that all
Magistrates comply with the requirements of Rule 21.
4. Confidentiality in Detention Hearings
During our court observations, we saw that JCMSC closes off hearings for
each individual child to the general public. When it is time for a child’s case to be
heard, the bailiff retrieves any family from the hallway. However, during all of the
hearings we observed, court staff allowed children to sit in on one another’s
hearings. Nothing in the Tennessee statute or Tennessee rules explicitly prohibits
this practice. Tennessee Code requires that court records and files, not court
proceedings, remain confidential. In particular, Tenn. Code Ann. § 37-1-153 (c)
provides, in relevant part, “if a court file or record contains any documents other
than petitions and orders, including, but not limited to, a medical report,
psychological evaluation or any other document, such document or record shall
remain confidential.” Court rules allow for open hearings, but give the court
discretion to exclude the general public and admit only “those persons having a
direct interest in the case.” Tenn. R. Juv. P. 27.
Our concern with JCMSC’s practice is that allowing non-interested parties to
sit in on the hearings essentially makes § 37-1-153 (c) meaningless. The
Magistrates, attorneys, probation officers, parents, and clinicians involved in a
child’s delinquency hearing frequently discuss sensitive and private information in
open court. For example, in a hearing for siblings V.V. and W.W., both children
pled guilty to sexual battery. The Magistrate held the disposition hearing
immediately after the pleas, where the professionals, including a clinician,
discussed both children’s treatment needs in open court, in the presence of non-
interested parties. In the waiver hearing for O.O., the Magistrate and attorneys
discussed O.O.’s traumatic history in open court, including that O.O. had witnessed
domestic violence and had been a victim of sexual assault. Allowing one child to be
present during another child’s hearing is certainly not the same as providing full
access to the entire file. But given that Tennessee’s statute protects sensitive
information like medical records and psychological evaluations, it does not make
sense to allow other children to hear the sort of information the confidentiality
statute was designed to protect. The best way to prevent the inadvertent release of
confidential information is to bar non-interested parties, including other children.
We also observed hearings in 2011 during which a Magistrate made the
parents confirm, in open court and under oath, their monthly income and number of
dependents. We recognize that this is a necessary step in confirming the child’s
indigency for purposes of determining eligibility for court-appointed counsel.
However, there is no judicially defensible reason to force a parent to share his or her
income with his or her child. Moreover, it is not necessary because the Magistrate
merely read the information from a form the parents had previously completed.
Although this practice does not raise an issue of due process, there is no reason to
54
continue it. A viable alternative could be for the Magistrate to ask the parent to
swear to the information without repeating it out loud. For example, after swearing
the parent, the Magistrate could state the following, “I am holding an eligibility
form for court-appointed counsel. You have completed this form. This is your
signature? Do you agree that everything you say in this form is true and accurate
to the best of your knowledge?”
5. Language Access
During our 2011 inspection, we observed Spanish-speaking children and their
parents participating in JCMSC proceedings. Appropriately, JCMSC had a Spanish
interpreter available to interpret for parents during two detention hearings.
Several stakeholders reported that the interpreter is usually available for afternoon
hearings if she is notified in the morning.
However, we also learned that JCMSC issues summons in English only, not
Spanish or any other language. With this practice, JCMSC is potentially in
violation of Title VI. Recipients of federal financial assistance from DOJ are
required by Title VI to provide meaningful access to persons who are limited
English proficient. Lau v. Nichols, 414 U.S. 563, 569 (1974). Under Executive
Order 13166, each federal agency that extends financial assistance is required to
issue guidance explaining the obligations of their recipients to ensure meaningful
access by LEP persons to their federally assisted programs and activities. See 65
Fed. Reg. 50,121 (Aug. 16, 2000). The DOJ guidance issued pursuant to this
requirement states that recipients of financial assistance from DOJ should
undertake “every effort . . . to ensure competent interpretation for [Limited English
Proficient (“LEP”)] individuals during all hearings, trials, and motions[.]” Guidance
to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against
National Origin Discrimination Affecting Limited English Proficient Persons, 67
Fed. Reg. 41,455, 41,471 (June 18, 2002)(“DOJ Guidance”). The Assistant Attorney
General for the Civil Rights Division issued a guidance letter on August 16, 2010, to
all Chief Justices and State Court Administrators (“Courts Letter”) describing the
obligation of state courts under Title VI to provide LEP individuals with meaningful
access to court proceedings, notwithstanding any conflicting state or local laws or
court rules. The letter also described several practices “that significantly and
unreasonably impede, hinder, or restrict participation in court proceedings and
access to court operations based upon a person’s English language ability,”
including denying LEP parties access to court interpreters in civil proceedings and
charging LEP parties for the cost of interpreter services. Letter from Thomas
Perez, Assistant Attorney General, to Chief Justices and State Court
Administrators at 2 (August 16, 2010).
JCMSC’s failure to provide the summons in Spanish may violate Title VI if
its failure to do so discriminates against Spanish-speaking children and their
parents on the basis of their national origin or if the this failing has a
55
discriminatory effect on them. 28 C.F.R. § 42.104(b)(2); N.Y. Urban League, Inc. v.
New York, 71 F.3d 1031, 1036 (2d Cir. 1995).
48
6. Restitution
As with plea colloquies, we observed inconsistencies in Magistrates’ handling
of restitution amounts. The Tennessee statute is vague on the standard of proof
necessary for requiring a child to pay restitution. The statute merely provides that
after a finding of delinquency, “the court shall determine if any monetary damages
actually resulted from the child’s delinquent conduct.” Tenn. Code Ann. § 37-1-131.
If the court finds in the affirmative, it “shall order the child to make restitution for
such damages unless the court further determines that the specific circumstances of
the individual case render such restitution . . . inappropriate.” Id.
In some cases, Magistrates ordered children to pay restitution based on a
victim’s oral representations and without documentation, as in the following
examples:
U.U. pled guilty to burglary. At the disposition, the victim initially stated
that he did not know the value of the items still missing. The Magistrate,
ADA, and JD then walked through all the items the victim claimed were still
missing, including DVDs, a computer, and a hard drive. At one point in the
hearing, the ADA suggested the value of the DVDs. Later in the hearing, the
Magistrate asked the victim, “from what is still missing, what have you lost?”
The victim replied, “I think one thousand . . . three hundred dollars.” After
additional discussion and without documentation, the Magistrate arrived at a
total restitution amount of $1,590, and ordered U.U. to pay half, or $795, to
the victim.
Other Magistrates clearly required a higher standard of proof before ordering
children to pay restitution as part of disposition. In these cases, Magistrates made
sure that the state and the victim provided written documentation to justify the
amounts sought in restitution. These Magistrates also provided the JDs an
opportunity to meaningfully challenge the restitution amount.
The variety in Magistrates’ approaches to restitution demonstrates that they
could benefit from clear guidance for restitution at disposition. And the
inconsistent approach to restitution for children within JCMSC is even more
problematic when compared to the proof required in adult criminal cases.
Tennessee law requires that a jury determine the value of the property before
48
The court summons may be deemed a “vital document”; that is, a paper or electronic
written document containing information that is critical for accessing a JCMSC program or
activity, or a document that is required by law. See
Dep’t of Justice, Guidance to Federal
Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin
Discrimination Affecting Limited English Proficient Persons, 67 Fed. Reg. 41,455, 41, 463
(June 18, 2002).
56
restitution is ordered for adults convicted of certain property offenses. Tenn. Code
Ann. § 40-20-116.
Even though the statutory provision covering restitution does not include a
specific provision about the proof required, JCMSC should ensure that the
procedure requires documentation and allows children and their defense attorneys
time to review the requested amounts before ordering the child to pay restitution.
7. Recordings of Hearings are of Poor Quality
As part of our investigation, we requested, and JCMSC provided, recordings
of a variety of juvenile hearings. Unfortunately, many of these recordings were of
poor sound quality. This made it difficult to produce transcripts that accurately
captured the events that transpired at the hearings. The ability to obtain a
recording of a hearing implicates a child’s due process rights. A transcript is crucial
to the appeals process because accurate records of proceedings enable attorneys to
shape their appellate arguments. Section 37-1-134(f)(2) of the Tennessee Code
requires juvenile courts to make audio recordings of all transfer hearings. A child
who wants to appeal a transfer decision must arrange to make a transcript from
that recording. And even though other juvenile appeals are first heard de novo by a
criminal court, transcripts are still necessary because the next level of appeal after
criminal court is to the Court of Appeals. See § 37-1-159(a).
V. DETENTION FINDINGS
JCMSC’s decision to detain children for the period prior to their adjudicatory
hearing rather than divert them or release them to a parent or guardian can have
serious consequences. Our investigation revealed that JCMSC subjects children in
its detention facility to dangerous and excessive restraint chair techniques and fails
to protect them from self-harm. These practices violate the Constitution.
A. Legal Standards
Children detained at JCMSC’s detention facility are protected by the
Fourteenth Amendment and have a substantive due process right to reasonably
safe conditions of confinement and freedom from undue bodily restraints.
Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982). Officials violate children’s
constitutional rights if they substantially depart from generally accepted
professional standards. See id. at 314.
B. Findings of Protection from Harm Violations
1. Use of Dangerous and Excessive Restraint Techniques
Detention staff has a duty to protect children in their care from harm.
Youngberg, 457 U.S. at 307. This duty includes efforts to ensure that, when staff
must intervene physically, they do so using means that do not unnecessarily subject
57
children to pain or injury. Youngberg, 457 U.S. at 324. Achieving this objective
requires a facility to have detailed policies and procedures guiding use of force that
are in line with contemporary standards. Conditions of confinement at JCMSC
violate children’s constitutional rights because the use of severe interventions, such
as the restraint chair and pressure point control tactics are often not needed, used
when no threatening behavior is apparent, and used before staff make reasonable
efforts to temper the precipitating behavior.
a. Restraint Chair
Generally accepted professional standards regarding restraint chair use in
juvenile detention facilities require that the chair either be eliminated entirely or,
in the rare cases where a restraint chair is used, that it only be used under the
direct supervision of a medical or mental health care provider. JCMSC has failed to
adopt either practice. Rather, JCMSC’s detention facility has three restraint chairs
which, according to JCMSC’s policies and procedures, are used inside of an isolation
room,
49
Between July 2009 and January 2011, JCMSC used the restraint chair 13
times. This number is especially high given that the Performance-based
Standards
outside of the direct supervision of medical and mental health staff. Indeed,
restraint chairs are used outside of the direct supervision of any facility staff.
Moreover, the facility uses the isolation room and restraint chair in instances when
there is no evidence the child is a danger to themselves or others. This is
unconstitutional. Morgan v. Sproat, 432 F. Supp 1130, 1132 (S.D. Miss. 1977).
50
X.X. was handcuffed and placed in a restraint chair in the isolation room
after an argument ensued with a detention officer due to X.X.’s refusal to
return a book from her room. X.X. remained in the chair for 40 minutes,
twice the time permitted by facility policy. There is no evidence that X.X.
was a danger to herself or others.
(“PbS”) national field average for restraint chair usage is zero. While
using the restraint chair, JCMSC failed to follow its own policies and procedures.
JCMSC’s policy stipulates that children shall remain in the isolation room and
restraint chair for no longer than 20 minutes. This is not occurring. Rather, as
detailed below, JCMSC restrains and confines children for excessive periods of time.
49
JCMSC’s isolation room has no sink or toilet, and children housed there are only visible
through a small window that opens into the hallway.
50
Performance-based Standards for Children Correction and Detention Facilities is a self-
improvement and accountability system used in 31 states and the District of Columbia to
improve the quality of life for children in custody. PbS gives agencies the tools to collect
data, analyze the results to design improvements, implement change, and measure
effectiveness with subsequent data collections from within the facility and against other
participating facilities. The PbS formula calculates an incident rate based on its occurrence
per 100-bed days.
58
Y.Y. was placed in a restraint chair in the isolation room after repeatedly
attempting suicide in his cell. The incident report notes that Y.Y. was held in
the restraint chair for 110 minutes; more than five times the facility’s
permissible time.
b. Pressure Point Control Tactics
JCMSC also subjects children to dangerous and unconventional pressure
point control tactics that are neither designed, nor developmentally appropriate, for
use with children and adolescents. Though use of force reports provided to us do
not reflect this tactic, staff members informed us that they used pressure points.
Pressure point control tactics use pain compliance and joint manipulation to force
acquiescence. For example, detention staff will bend a child’s wrist backwards to
induce pain, forcing them to the ground in submission. The duty to protect children
from harm includes efforts to ensure that, when staff must intervene physically,
they do so using means that do not unnecessarily subject children to pain or injury.
Youngberg, 457 U.S. at 324. JCMSC must provide appropriate training to ensure
that when physical restraints are necessary, they are not applied punitively.
Ingraham v. Wright, 430 U.S. 651, 669 n. 37 (1977); C.C. v. State, No. 3:09-0246,
2010 U.S. Dist. LEXIS 100327, at *10 (D. Tenn. 2010). Pain compliance is not
necessary to achieve restraint. Accordingly, JCMSC’s use of pressure point control
tactics violates children’s constitutional rights.
2. JCMSC Does Not Adequately Protect Children from Self-
Harm
JCMSC fails to adequately protect children from self-harm, and therefore
violates their constitutional rights. Youngberg
, 457 U.S. at 307; Silva v. Donley
County Texas, 32 F.3d 566, 1994 WL 442404, *5-7 (5th Cir. 1994) (unpublished). As
a general matter, the Supreme Court has held that corrections officials must take
reasonable steps to guarantee detainees’ safety and provide “humane conditions” of
confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Hare v. City of Corinth,
74 F.3d 633, 639 (5th Cir. 1996) (recognizing a duty to provide detainees with basic
human needs including protection from harm). In addition, an official’s failure to
maintain adequate policies, procedures, and practices for the prevention of suicides
may violate a detainee’s due process rights. Silva, 32 F.3d 566 (holding sheriff’s
failure to establish suicide detection and prevention training for jail personnel,
condoning de facto policy of sporadic cell checks, and absence of a policy for
observing “at-risk” detainees may rise to deliberate indifference to known risk of
suicide in detention settings).
Children confined at JCMSC are three times more likely to engage in self-
injurious behavior than other children in detention facilities. Although the PbS
national field average is 0.119, JCMSC’s rate is 0.366. Despite this, the Division of
Clinical Services (“Clinical Services”), a division of JCMSC that employs in-house
qualified mental health professionals, has no meaningful input into the policies,
59
procedures, or practices surrounding mental health protocols for suicide prevention
or attempts. Although Clinical Services is largely responsible for conducting
psychological testing and evaluation, there is no evidence that children determined
to have suicidal ideation receive a follow-up clinical visit from Clinical Services, or
any other mental health care provider. In fact, JCMSC’s policies and procedures
expressly prohibit any intervention by Clinical Services regarding suicide
interventions:
We take all threats of suicide behavior or verbalization seriously. Mobile
Crisis should be asked to intervene to determine and document which
children are in need of acute care services and which are malingering.
Mobile Crisis is trained in this area and it is the State Contractor to deal
with these situations.
Under no circumstances are we to accept any recommendations from the
Crisis Counselor that requires us to provide any level of supervision above
what we classify as our routine supervision.
51
JCMSC also fails to protect children from self-harm by not appropriately
assessing the physical plant for suicide risks. JCMSC has no policy or procedure
requiring staff to identify these risks and provides no training to staff regarding the
elimination of these dangers. There is no systematic suicide-proofing of the
building, no education to detention staff regarding necessary precautions, and no
plans to correct these risks. Facility staff should be made aware of how the physical
plant’s design creates an increased opportunity for suicidal behavior. For example,
the enclosed location of shower sprinkler heads outside of the line of sight of
detention staff present a specific suicide risk. Many of the rooms have fixtures,
hardware, and construction elements, such as overhead air vent grates, that would
support a suicide attempt.
The high rate of suicidal behavior, the lack of involvement of Clinical
Services, and JCMSC’s failure to appropriately engage in necessary suicide
prevention in the physical plant, violate the constitutional rights of children housed
there and substantially depart from generally accepted professional standards. See
Youngberg, 457 U.S. at 324.
51
JCMSC Detention Policy IX-1: Mobile Crisis Notification (emphasis added). JCMSC
contracts with the Mobile Crisis Unit for its detention center’s emergency mental health
services. The policy language apparently prohibits the Clinical Services personnel from
providing crisis intervention, including for children on suicide watch.
60
VI. REMEDIAL MEASURES
52
A. Due Process
JCMSC should immediately implement the following remedial measures to
correct the due process deficiencies in its delinquency matters. These remedial
measures address JCMSC’s failure to provide timely and adequate notice of the
charges, failure to protect children from engaging in self-incrimination without
advising them of their Miranda rights and obtaining a waiver, failure to hold timely
probable cause hearings following warrantless arrests and failure to provide
adequate due process protections before transferring children to the adult criminal
court.
1. Timely and Adequate Notice of Charges
a. JCMSC must provide children and their counsel with copies of the
petition at the initial detention hearing. The notice should also
include a sworn statement affirming that the allegations are true to
the best of the petitioner’s knowledge, ability, and belief.
b. When it is necessary to make changes to the charges before the
adjudicatory hearing, JCMSC must provide notice of the final
charges well in advance of the adjudicatory hearing, providing JDs
with sufficient time to prepare for the hearing.
c. JCMSC must establish procedures to ensure that all Magistrates
conduct detention hearings that are in compliance with due process.
At minimum, this requires making a determination of probable
cause prior to detaining a child.
2. Safeguards Against Self-Incrimination
a. JCMSC should ensure that probation officers appropriately advise
children of their rights under Miranda prior to eliciting self-
incriminating statements. At minimum, the court should explain
the following to children:
i. The role of a lawyer;
ii. That defense attorneys can be appointed to eligible indigent
children at no cost;
52
This list of remedial measures provides broad guidelines for the type of changes required
to begin addressing the problems identified in this letter. Reform will require a sustained
commitment to institutional change, including a commitment to implement performance
measures to ensure progress.
61
iii. Any statements made by the child regarding the alleged
offense can be included in the probation report; and
iv. That the prosecutor or the Magistrate could use the child’s
statements in further proceedings, including disposition.
b. JCMSC must ensure that any waiver of children’s rights is an
informed waiver. JCMSC should ensure that children are notified
of the rights they are waiving by speaking with the probation
officer. Children must acknowledge their waiver in writing in order
for the probation conference to proceed.
c. When a child has retained or appointed counsel, JCMSC should
invite JDs to attend the probation conferences.
d. JCMSC should cease the practice of providing Visit and Contact
forms to Magistrates prior to adjudicatory hearings.
e. JCMSC should ensure that children are not called by the
government as witnesses in their own adjudicatory or transfer
hearings.
3. Timely Probable Cause Determinations
a. To comply with the Fourth Amendment, JSMSC must ensure that
Magistrates make a probable cause determination – that there is
sufficient probable to believe that any child arrested without a
warrant has committed the alleged delinquent act – within 48
hours of any warrantless arrests.
b. JCMSC must implement a formal system in which at least one
Magistrate, one JD, one ADA, and one probation officer is available
for several hours each weekend, three-day weekend, and holiday to
hold probable cause and detention hearings.
4. Adequate Transfer Hearings
a. JCMSC must require adequate hearings before waiving jurisdiction
and ordering transfer of a child’s case to adult court. In accordance
with due process. JCMSC Magistrates must ensure the following
occurs at transfer hearings:
i. The ADA presents evidence in support of the petition for
transfer;
ii. Children have a right to an attorney;
iii. Children are provided the opportunity to introduce evidence
on their own behalf;
iv. Children are protected from self-incrimination;
62
v. The Magistrate considers and makes findings about the
child’s involvement with the delinquent act alleged, the
child’s eligibility for an institution, the interests of the
community, and the child’s social factors.
b. Waiver should not depend solely upon the perception that the adult
court is the most appropriate place for handling serious allegations
of delinquency.
5. Other Due Process Safeguards
JCMSC should address the pre-Gault elements of its practices and
procedures by ensuring that all stakeholders respect the due process rights of the
children appearing on delinquency matters. JCMSC should also eliminate those
factors that could further contribute to a pattern or practice of unconstitutional
conduct. In particular, JCMSC should:
a. Encourage zealous advocacy by JDs. This may be accomplished by
supporting further training of JDs;
b. Consider reorganizing the court structure so that the Chief Judge
does not directly oversee the Juvenile Defender’s Office;
c. Ensure that participants in the courtrooms show respect for the
rights of the children appearing before the court, including
swearing in all victims and witnesses before they testify and
appropriately sequestering witnesses prior to testimony;
d. Establish a procedure for plea colloquies that is age-appropriate
and clear to the child;
e. Arrange to have hearings properly recorded for rehearing motions
or appeals;
f. Distribute available arrest tickets to JDs (and ADAs) earlier on the
morning of the detention hearing;
g. Consider adopting a policy that prevents excessive bonds for
children and reasonably assures the child’s appearance for court;
h. Make summonses and other crucial court documents available in
other languages for limited English proficient individuals; and,
i. Consider adopting a restitution policy that requires documentation
and allows children time to review the requested amounts before
ordering the child to pay restitution.
63
B. Equal Protection
Addressing issues of DMC in any jurisdiction is a challenging task that
requires the focused commitment of stakeholders at all levels. It involves
questioning the appropriateness and feasibility of long-standing practices, and
raises uncomfortable questions as a jurisdiction tries to figure out how its practices
have led to severely disproportionate results on minority children. JCMSC has
started this process by engaging with the Anne E. Casey Foundation’s JDAI
initiative. JCMSC should continue this work by employing the following strategies
to address its DMC issues.
1. Assess the extent and causes of DMC within JCMSC to inform and
direct JCMSC’s DMC reduction-efforts
a. Continue to collect data and information to determine where DMC
occurs.
b. Assess the impact of JCMSC’s policies, procedures, and programs on
DMC levels at different decision-points
. Involve community and
other non-traditional partners in this process.
c. Engage in strategic planning to develop a strategy to address DMC,
form a committee to execute the plan, and decide up-front how
success will be determined.
2. Consider efforts that focus on direct services for children
a. Develop prevention/early intervention programs that proactively
target youth who are at risk for delinquency but have not yet been
adjudicated delinquent.
i. Examples include family therapy, parent training, cognitive-
behavioral treatment, mentoring, academic skills
enhancement, afterschool recreation, vocational/job training,
and wraparound services.
b. Further develop diversion programs that hold children accountable
for their actions, but are used as an alternative to formal court
processing. Refine race-neutral criteria for eligibility.
i. Examples include community service, informal hearings,
family group conferences, victim impact panels, victim-
offender mediation, mentoring, teen courts, restitution, and
other restorative justice strategies.
64
c. Continue developing pre-and post-adjudication alternatives to
secure detention that allow children to access services in their
community
i. Examples include house arrest, day/evening treatment
centers, intensive probation, shelter care, specialized foster
care, and attendant or holdover care.
d. Encourage advocacy that will enable children to understand their
legal rights and the juvenile court process. Provide materials
explaining the process to children appearing before the court.
3. Consider efforts that provide training and technical assistance for
JCMSC staff
a. Provide cultural competency/sensitivity training to raise staff’s
awareness about the subtle ways racial bias, conscious or
unconscious, affect policy and practice.
b. Make culturally appropriate services and programming available.
c. Institute culturally competent staffing practices.
i. Examples include having a diverse staff and employing
appropriate interpreters and translators.
d. Train JCMSC staff about DMC.
e. Train staff on proper use of neutral decision-making tools.
4. Consider policy and procedural solutions to address DMC
a. Employ empirically-based, race-neutral, objective assessment tools
at different decision points.
i. Improve use of the Detention Risk Assessment Tool, by
providing more credit for positive conduct and ensuring that
staff uses the tool in a neutral manner.
ii. Use a risk assessment instrument to evaluate a child’s
background and current situation in order to estimate the
likelihood that the child will continue to be involved in
delinquent behavior.
5. Evaluate efforts toward reducing DMC at regular intervals
65
C. Protection from Harm
1. Restraint Chair
a. Discontinue use of the restraint chair.
b. Discontinue use of administrative segregation for rules violation.
Administrative segregation should only be used sparingly, as an
emergency measure to control a child whose behavior poses an
immediate risk of harm to himself or others, either at the child’s
request or the facility’s assessment. Children who are placed in
administrative segregation for behavioral reasons should be
removed from segregation as soon as their behavior no longer poses
an immediate risk of harm to themselves or others.
2. Pressure Point Control Tactics
a. Develop and implement written use of force policies and procedures
that establish a graduated set of interventions that avoid the use of
pressure point control tactics. Completely discontinue use of
pressure point control tactics.
b. The use of force policies and procedures must emphasize that
physical force should be used by staff only in exceptional
circumstances when all other pro-active, non-physical behavior
management techniques have been unsuccessful and the child
presents a danger to himself or others. In the limited
circumstances when physical force is appropriate, staff should
employ only the minimum amount necessary to stabilize the
situation and protect the safety of the involved juvenile or others.
c. Detention staff should be trained in non-physical, verbal
interventions to de-escalate potential aggression from children.
d. Children who have been subjected to force or restraint should be
assessed by a medical professional following the incident regardless
of whether there is a visible injury or the child denies any injury.
e. Following all instances of force, supervisors should conduct a formal
review of the incident to determine whether staff acted
appropriately. The post-incident review should also be utilized to
identify any training needs and debrief staff on how to avoid similar
incidents through de-escalation.
66
3. Protection from self-harm
a. Develop a comprehensive suicide prevention program that
incorporates meaningful input from the Division of Clinical
Services.
b. Assess the physical plant to determine and address any potential
suicide risks.
c. Place potentially suicidal children in rooms that are free of suicide
hazards and not isolated. Maintain sufficient staffing levels to
supervise children who require constant observation.
d. Provide regular follow-up assessments for children who are
removed from suicide precautions. Mental health staff should
conduct these assessments and establish individualized treatment
plans for suicidal children that address relapse prevention and
initiate a risk management plan.
e. Establish and maintain an adequate quality assurance program to
measure compliance with the facility’s suicide prevention program.
* * *
The constitutional deficiencies identified above can be remedied with the
long-term commitment and engagement of JCMSC, key community stakeholders,
and outside sources including, for example, DOJ’s Office of Juvenile Justice and
Delinquency Prevention and the Annie E. Casey Foundation. We look forward to
exploring the assistance that sources, such as DOJ’s Access to Justice Initiative, can
offer to develop core competencies to address the problems revealed in our
investigation. Immediately following the release of this Report, we will reach out to
community stakeholders, national experts on juvenile justice reforms, and the
organizations currently working with the Court to forge these solutions. Our aim is
to build on the reforms that JCMSC has already started to put in place. We look
forward to working with Judge Person and the wider Shelby County community, to
reach our mutual goal of ensuring that the youth who appear before JCMSC receive
their constitutionally guaranteed rights to due process, equal protection, and
protection from harm.
