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October 1, 2000

Children's panel turns to the experts

By Jan Pudlow
Associate Editor

Because of a zero tolerance policy against bringing weapons to school, a
young child was tossed out for bringing an ax to class.

Never mind that it was made of plastic and was part of his fireman uniform
when he dressed up for Halloween.

"I'm not making this up," Robert Schwartz, executive director of The
Juvenile Law Center in Philadelphia, told members of The Florida Bar's
Commission on the Legal Needs of Children, who let out a collective
groan.

"The school officials ended up apologizing," Schwartz added. Not to the
child or his parents, he said, but to the firefighters' union that had
protested the ax was a tool, not a weapon.

Such zero tolerance policies popular in schools nationwide, he said, are
bringing younger and younger kids into court, harming children and putting
a tremendous strain on the juvenile justice system. He's working on an
American Bar Association resolution against them.

Schwartz was one of 10 experts — including a law professor, a
researcher, a public defender, a state attorney, a lawyer devoted to special
education issues, and a teenager charged with armed robbery — who
converged in Tampa on September 15-16 to enlighten the commission on
issues affecting juvenile justice.

The special commission, chaired by 11th Circuit Judge Sandy Karlan, is
embarking on its second year, with a goal of working to solve the unmet
legal needs of children who appear in Florida's courtrooms — whether as
victims, witnesses or defendants in civil, dependency or criminal court.
After making a progress report to the Board of Governors, also meeting in
Tampa in conjunction with the Bar's General Meeting, Judge Karlan
received its blessing to carry on.

"We're grateful to the Board of Governors and The Florida Bar for allowing
us to have this commission and to do the work we're doing," Judge Karlan
said, adding the commission's goal is to have a report of
recommendations to give to the Board of Governors by May.

Bar President Herman Russomanno paid a personal visit, assuring
commission members that the Bar is fully committed to their mission.

"We thank this commission for the hard work you've done in the past year
and for what you'll be doing this coming year for the legal needs of
children," Russomanno said.

"The Bar has made it its policy that our children are our greatest resource.
With your work, if you can give some of these children back their
childhood, we will accomplish great things together."

No matter how many advanced degrees a speaker possessed, how
thorough their research, how impressive their resumes, or how many years
they spent on the front-lines of juvenile justice, their recommendations
often came down to good old common sense on how to fix a system that
often seems to ignore common sense:

"If you educate people, you reduce recidivism. It's common sense,"
said Joseph Tulman, professor at the University of District of
Columbia, David A. Clark School of Law, who is also on the faculty
of the National Judicial College teaching judges how to deal with
children in adult court.

"Duh! If we help people become productive, it will help the kid and
the community and save money," Tulman said of activities all
children need to define themselves as individuals — whether it's
music, art or sports — the very things that are cut out first in
programs for kids.

"We all know that if we get someone sober and educated, and give
them vocational skills and a job, we're not going to see him in the
juvenile justice system again. Those are the odds," said Sixth
Judicial Circuit Public Defender Bob Dillinger, describing his
circuit's comprehensive "one-stop shopping" of services at the
Juvenile Assessment Center.

"I don't care what side you come down on, put money in children
ages zero to 18. If you're the toughest prosecutor in the world, it
makes sense. Most state attorneys agree, but then they go back
home and talk about quicker death penalties to get re-elected,"
said Fourth Judicial Circuit State Attorney Harry Shorstein.

"It's crazy that kids from Miami are doing their time in the
Panhandle," said Francisco Alarcon, deputy secretary of the
Florida Department of Juvenile Justice. He shared his frustration
that while he has funds to build more therapeutic foster homes
where they're most needed in South Florida, he is unable to use
sites the state already owns because of the NIMBY (Not in My
Back Yard) factor.

"You can't help kids without helping their families. We love poor
kids, but we tend to hate their families. . . It sounds mushy and not
professional, but it comes down to: What do we need for this kid?
What will work? Piece together a plan that's best for the kid and
watch it. If it's not working, try something else," said Ira Burnim,
legal director of the Judge David L. Bazelon Center for Mental
Health Law in Washington, D.C.

He stressed that what works best are intensive services to kids and
their families in their homes, not confining kids in residential
treatment facilities and then sending them back to the environment
from which they came with no support. The adults who best know
the child, including teachers and family members, need to be at the
table with social workers and lawyers to create the best plan for the
child.

"Many parents have to give up custody of their kids to get them
services," said Burnim, of the dilemma that Medicaid is the biggest
resource to pay for mental health services and no one has the right
to mental health services.

"Our nation locks up 105,000 children a day," said Richard Mendel,
who served as director of research and public policy for The South
Bronx Overall Economic Development Corp. "Yet only 5,000
children are treated in home-based multisystemic functional family
therapy."

That's the name of intensive family-oriented, home-based
counseling services that research has shown works best to help
juveniles and was endorsed by the U.S. Surgeon General in his
1999 report to the nation on mental health.

"Isn't it odd that criminal court is the only way to get help for kids?
It's an odd notion to have to resort to jail to get help for kids," said
Schwartz, of Philadelphia's The Juvenile Law Center, in response to
Shorstein's program in the Duval County Jail for juveniles he direct
files as adults in order to give them comprehensive counseling and
education services.

Much of the discussion centered on the fact that Florida leads the nation
in direct filing juveniles to adult criminal court.

"Florida direct files more children than the rest of the states combined,"
said Dillinger, the public defender. "Put a 16- or 17-year-old in adult prison
and you've lost him. Might as well write him off."

Dillinger criticized the defense bar — including inexperienced assistant
public defenders — for not giving judges more information to work with
when the child first enters the court system. It's not unusual, he said, for
lawyers to first meet their child clients the morning of the court
appearance.

He also called it a "bothersome fact" that a lot of children going through
the court system are not represented by a lawyer at all.

"Some are not incompetent — they're insane," Dillinger said. "More and
more are waiving their right to counsel."

Go to Jail for Help

Though many agreed it's a sad commentary that the best way to deliver
services to children charged with crimes is to lock them up in the county
jail, Shorstein was warmly received for his innovative program that direct
files juveniles into adult court so that he can help them behind bars.
Shorstein's program — a combination of punishment, constructive
programming and after care — was created in response to Jacksonville's
juvenile crime problem that skyrocketed 27 percent in 1992. It has
received international attention and was featured on "60 Minutes."

"We decided to turn everything upside down and make juvenile crime our
No. 1 issue," Shorstein said. The violent repeat juveniles are sent to adult
prison, but the ones with hope of turning around are sent to a special
section of the Duval County Jail, where they receive everything from
schooling to mentoring to counseling. When their time behind bars is up,
adjudication is withheld, so they're not branded convicted felons, and
after-care counseling and foster care for those with no safe home to return
to is provided.

Despite the accolades Shorstein's program has received and the statistics
that juvenile crime in Jacksonville is down, Delbert Elliott, the director of
The Center for the Study and Prevention of Violence at the Institute of
Behaviorial Science at the University of Colorado in Boulder, said research
has shown that, in general, waivers to adult court do not work. They don't
help children and they don't reduce crime, he said.

Juveniles in adult prisons are at greater risk of becoming victims, they are
less likely to get treatment for their problems, and recidivism is higher
once the young people come out of adult prison, Elliott said. In addition,
research has shown that the practice is rife with racial bias because more
African-American children are direct-filed as adults than whites for the
same crimes, he said.

"We have states who have lowered the age to 10 to direct file," Elliott said.

Mendel, a researcher and consultant who wrote, "Less Hype, More Help:
Reducing Juvenile Crime, What Works — and What Doesn't," stressed:
"Kids are fundamentally different than adults. They break the law for
different reasons than adults. They need a different system of justice."

While 45 states have adopted the get-tough philosophy, "Adult time for
adult crime," Florida is the leader in direct filing juveniles to adult court.
Unlike other states that give the discretion to judges, Mendel said, Florida
puts the decision in the wrong hands by allowing prosecutors to make that
call.

"This headlong rush to throw kids into adult prison is counterproductive,"
Mendel said. "It actually increases criminality."

While Florida was first to seize upon direct filing, Mendel said, Florida is
second in the nation in juvenile crime rates.

To make matters worse, Mendel said, research has shown that direct-file
practices actually punish the wrong kids. It's mostly used against juveniles
who commit property crimes and drug offenses, not violent or chronic
offenders, he said.

Nineteen-year-old Jason Bond brought his been-there, done-that testimony
to the commission. As a 16-year-old, he was charged with his first crime:
armed robbery. The prosecutor wanted to direct file him to adult court.
Thanks to his guardian ad litem, Fran Feinberg, and family support, Bond
was spared a trip to adult prison. Instead, he was sent to an out-of-state
juvenile facility that was run like a strict prep school. The intense
no-nonsense personal attention turned him around, said Bond, who is now
attending Broward-Dade Community College and hopes to attend Florida
International University on a track scholarship.

"Kids being direct-filed, they're not given a chance, in my opinion," Bond
said, describing himself as falling in with the wrong crowd in a public
school system where "no one knew my name. I lost myself there."

How Would Oliver Twist Be Treated Today?

Schwartz, of Philadelphia's The Juvenile Law Center, said the
child-versus-adult question is "the most troubling question. That's a Florida
question par excellence, given the direct-file numbers."

The underlying question, Schwartz said, is: What kind of kid are we
talking about? Children have traditionally been broken down into the
categories of Bad (send to juvenile justice); Sad (let child welfare workers
handle); Mad (get the kid to mental-health treatment); and Can't Add
(needs special education services).

"The case I love to talk about is Oliver Twist. He was a member of a street
gang. But Charles Dickens portrayed him as more sad than bad. How
would Oliver be treated today? Direct-filed as an adult?," Schwartz asked.

He called it a "disturbing trend" that the country is "using criminal law to
respond to normal adolescent development." For example, in Florida, it's
an offense for teens to smoke cigarettes. And nationwide, more and more
first- and second-graders are making headlines when they're charged with
crimes.

One of Schwartz' biggest recommendations is that the dependency judge,
who knows the child and family problems best, retain jurisdiction if that
child is also charged with a crime.

He gave the example of a child who was seriously emotionally disturbed,
whose parents were both dead. When taken to a school for special
testing, he snapped and trashed the classroom. Once he was adjudicated
guilty of a crime, he couldn't go back to his residential treatment home.

"There ought to be a way the dependency judge can come back and say
to the delinquency judge: `That kid is mine, not yours,'" Schwartz said. "I'd
love it if the judges in dependency cases could retain jurisdiction if the
child is arrested over county lines, so the judge who knows the kid can
keep the case. . . .

"We're seeing it left and right, where children hit their foster parents and
are charged with a crime. Our child welfare agencies can't wait to close
cases and send it to the Department of Juvenile Justice."

As a member of the American Bar Association's Criminal Justice Section,
Schwartz is working on a resolution to oppose zero tolerance policies in
schools because it operates with the rigidity of a mandatory sentence.

"If The Florida Bar could support it, that'd be great," he said.

Barbara Burch, the education attorney for the Juvenile Advocacy Project of
the Legal Aid Society of Palm Beach County, said, "I have an 11-year-old
client with five felonies for batteries on school board employees (for acting
out in class). If this kid does something at age 15, he'll be direct-filed to
adult court."

Her biggest wish is that Florida provide surrogate parents to children with
special education needs -- who can serve as "the one adult who knows
what's going on and can advocate for children."

She also issued a hue and cry for more attorneys to focus on special
education advocacy, adding that federal law for Individuals with Disabilities
Education Act (IDEA) cases provide for paying attorneys' fees at market
rates.

"We don't have the number of attorneys to do this. We need to get the bar
involved."

Tulman, the Washington law professor, trained 100 lawyers to handle
special-education advocacy cases, including class-action lawsuits.

"Eighty to 90 percent of kids locked up in your facilities qualify as
educationally disabled," Tulman said. "It's a phenomenal number."

Stressing that getting parents involved to help children receive the services
they are entitled to under IDEA (Title II of Americans with Disabilities Act)
is a sure-fire way to help children with education disabilities.

"We can do remarkable stuff to stabilize families by getting special
education services," he said.

And while no state in the nation is in compliance with the IDEA, he said,
special education law is a powerful incentive for schools to provide
services, rather than pay attorneys.

Ideally, Tulman said, there would be a way to better help children by
getting various agencies to sit together and shift funds from multiple pools
of budgets.

Now, too often, he said, agencies would rather shift the kid to become
some other agency's problem.

[Revised: 05-30-2013]