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April 23-29, 2009

Until proven guilty
House Bill 1321 would prevent the state from
locking teens in adult jails before they’ve had
their day in court 
by Pamela White

Scott Peterson, convicted of the 2002 murder of his pregnant wife, Laci Peterson, spends 19 hours a day in a 4-by-9 cell on San Quentin State Prison’s death row. For five hours of the day, he shoots hoops, plays cards with other inmates and works out. The remaining 19 hours are spent locked down in his cell.

Compared to some juvenile offenders in Colorado, Peterson has it easy.

Juveniles who are facing prosecution as adults are often kept in total isolation for 23 hours out of every day in adult facilities, released from their cells late at night when other inmates are locked down for a quick shower and a bit of exercise. And that’s before they’ve been convicted.

It’s not the jail wardens’ fault that these kids are kept in 23-hour lockdown. State law requires that juveniles whose cases haven’t yet been adjudicated be kept in sight and sound isolation away from adult inmates. Often that means enduring a kind of seclusion normally reserved as a punishment for noncompliant or extremely dangerous adult inmates.

Typically, these kids are denied contact visits with their parents, who can’t hug or comfort them and are limited to speaking to them via telephone through an impenetrable pane of glass or via a television link.

As evidence mounts regarding the negative impact that months of isolation have on teenagers awaiting trial, Rep. Claire Levy, D-Boulder, is carrying a bill that would require law enforcement to keep juveniles in appropriate juvenile facilities until they’ve been convicted.

The bill — House Bill 1321 — may face an uphill battle not only in the House Appropriations Committee, which often squelches bills that would have a fiscal impact on the state budget, but also with Gov. Bill Ritter, once Denver’s chief prosecutor, who has a history of vetoing bills that his former DA colleagues dislike. He killed a similar bill last year, one that would also have required a court hearing before a juvenile could be tried as an adult.

But supporters of the bill say that passing the measure is not only the compassionate thing to do, taking into account the special needs of juvenile offenders, but that HB 1321 might even save young lives.

‘Heartbreaking situation’
It was the summer of 1993. Stray bullets had struck a 10-month-old boy who was visiting the Denver Zoo with his family and a young child who was playing on his aunt’s front porch. A young man was murdered and his wife abducted and assaulted on their way to the grocery store.

Colorado’s mainstream media jumped on these and other incidents, carrying sensationalized accounts of kids with guns and reports of gang-related violence. And the term “summer of violence” was coined.

“The crime rate was not significantly different,” says Maureen Cain, policy director for the Colorado Criminal Defense Bar. “Just the attention paid to it in the media was different.”

In response to mounting public fear, Gov. Roy Romer, a Democrat, called a special legislative session in September, promising to get tough on crime and kicking off what became a three-year-long process of changing the state’s juvenile-justice system with the goal of protecting public safety.

By coincidence, the state’s increased focus on addressing youth crime came at a time when the public mindset nationwide was shifting from the notion of rehabilitating criminals to “incapacitating” them — i.e., getting them off the streets and locking them up. Colorado was one of many states that toughened its juvenile-justice code during those years.

In 1996, the state legislature passed H.R. 96-1005, making it easier to prosecute and sentence children as adults and transferring the power to make that decision from judges to district attorneys.

“Now we were looking at children — 14-, 15-, 16-, 17-year-olds — who… were serving life in prison with no opportunity for parole,” Cain says. “That never existed [in Colorado] before.”

The new law seemed to be based on the notion that some kids are sociopaths and psychopaths — the worst of the worst — who can’t be saved and that we as a society would be safer if we locked the door on them and threw away the key. But another law seems to have come into effect as a result of H.R. 96-1005: the law of unintended consequences.

Now it’s not just the most dangerous among youth offenders who are being prosecuted and sentenced as adults, but also kids whose crimes might have been grave but who clearly had a shot at a normal life. Not only are they being prosecuted as adults, they’re being held in isolation in adult facilities before they’ve had their day in court.

James Stewart, 17, had no criminal history. Like many high school students, he had some truancy problems, but he’d never been in serious trouble — until the night he took his father’s car keys, got drunk at a party and drove. He crashed into another vehicle on Colfax Avenue, killing a young man.

Stewart, who was also injured in the crash, was reportedly devastated when he learned he’d killed someone. Rather than denying responsibility, he cooperated fully with police, even writing a long letter to the widow of the man he’d killed, admitting that what he’d done was wrong and apologizing. He wept at every court appearance, expressing his remorse repeatedly. He was so distressed by what he’d done, in fact, that he became suicidal and was placed on suicide watch in juvenile detention.

Still, Denver district attorneys decided to prosecute him as an adult under the 1996 law, in part because he was almost 18. He was transferred to Denver County Jail, where staff failed to place him on suicide watch but did put him in 23-hour lockdown. Isolated and despondent, he took his bed sheet and hanged himself.

“It really brought home and was a very real example of what bad things happen in the jail,” says Cain, who has spent her entire career working with juvenile offenders.

Cain says one of the teachers who worked with Stewart in juvenile detention described him as “the sweetest boy” and was crushed to hear he’d been allowed to kill himself.

“He was fine where he was,” Cain says.  “He wasn’t hurting anyone. So why did he need to be in jail?”

Stewart wasn’t much different from most teens, Cain says.

“You don’t want to believe it happens, but they do drink,” she says. “Sometimes they don’t understand how the alcohol affects them.

They’re just stupid. The woman whose husband was killed — she’s devastated at the loss of her husband.”

Just as Stewart’s family was devastated to learn that he was dead. Jail staff waited 15 hours after his death to notify them.

“This is a heartbreaking situation all the way around,” Cain says.

The ‘tough guy’
It’s in part because of James Stewart that Levy decided to carry this bill.

“I became very concerned about the mental health of some juveniles in jail,” Levy says. “If they’re kept in custody pre-trial, they’re often in 23-hour lockdown for six to seven months prior to being convicted.”

That’s six to seven months of being completely alone for all but one hour of each day during what is one of the most difficult and vulnerable times of their lives. Unable to contact their parents, unable to receive the kind of supervision and treatment they’d receive at a juvenile detention center, and uncertain what’s going to become of them, they face a kind of stress that would be hard for even healthy adults to manage.

“Kids are at a much greater risk of suicide once they’re moved from detention to an adult facility,” Levy says.

The statistics are grave. Kids who are transferred to adult jails are 36 percent more likely to commit suicide than kids in a juvenile detention center. Those who don’t commit suicide often face increased incidence of post-traumatic stress disorder and other emotional problems as a result of isolation and stress. And this is all before they’re convicted.

Take the case of Thomas English, a young teen from Grand Junction.

Thomas was 14 the night he pointed a gun at Martin Martinez, then a high school senior, and shot him point-blank in the face.

English had been told earlier that Martinez had sexually assaulted his 14-year-old girlfriend. His reaction nearly cost Martinez his life and left Martinez with disfiguring scars on his face.

“He’d always been a very, very good kid through all of his life,” says Sue Powers, Thomas’ maternal grandmother. “We were all shocked by it.”

After confessing the crime to his family, Thomas turned himself in to police.

Mesa County prosecutors decided that, based on the seriousness of the crime, Thomas would be prosecuted as an adult. They charged him with attempted first-degree murder, first-degree assault, felony menacing and tampering with evidence and detained him in an adult jail under 23-hour lockdown.

“Because he was in an adult facility, it was worse for him,” Powers says. “It was inhumane.”

Though Powers’ daughter — Thomas’ mother —  went to visit Thomas once a week during the long months before he was sentenced, there was little she could do to guide her son, who spent every visit sobbing into the telephone that enabled them to speak with each other.

“He pretty much was going crazy,” Powers says. “We were so worried about him. It got to the point where he said he was hearing voices. We asked for him to at least be able to talk to a psychiatrist or psychologist. We were denied that. They said they had people at the jail who handle that. He was never able to see them.”

While Thomas’ mother felt helpless on the outside, prosecutors were speaking to Thomas about the sentence he’d face if he didn’t plead guilty and took his chances with a jury trial. Powers says she and her daughter learned that Thomas had agreed to a plea deal in exchange for a 21-year sentence — seven years of which were to be served in an adult prison — when they heard it in the courtroom.

“We actually were thinking he shouldn’t have pleaded guilty,” Powers says.

Powers doesn’t condone her grandson’s actions, but she believes the court ought to have considered the mitigating circumstances under which Thomas acted.

“You have to understand this kid was 14,” Powers says. “He was in love with this girl. When he found out this guy raped her, he wasn’t thinking. He was thinking like a kid because that’s what he is. They threw him in jail and kept him isolated all that time.”

Powers says prosecutors didn’t seem interested in the allegation of rape, even when Thomas’ girlfriend produced e-mails from Martinez that allegedly discussed and joked about the assault.

Martinez, now 20, is currently facing sexual assault charges in the alleged rape of a 13-year-old he met on MySpace. Since Martinez was arrested, prosecutors have found a new interest in those e-mails, Powers says.

But for Thomas it is too late. He turned first 15, and then 16, in prison while his family held a birthday party for him in the nearby park where he used to play with his friends.

“Thomas isn’t even the same kid,” says Powers, in tears. “It just destroyed him. The bad thing about it is that the sheriff wouldn’t listen to us when we told him why he’d done it. They would never listen to us.”

Powers says she’s spoken to Thomas once since he was incarcerated.

“I didn’t even recognize his voice,” she says. “He’s got a gangster accent. He talks like a gangster. My daughter was real upset about it and asked him why he was doing that. Well, he’s locked in a facility with all these men, and he said, ‘You do what you have to do.

You have to be a tough guy to survive.’ So he’s being the tough guy.”

Creating hardcore criminals
Stories like Thomas’ tend to elicit little in the way of sympathy. At first glance, the tale about a teen who shot a man at point-blank range in the face is exactly the kind of news story that drove public reaction during the “summer of violence.”

But when making public policy, lawmakers are best perhaps advised to ignore emotions one way or another and instead answer one simple question before voting on a bill: will this work?

The evidence that has surfaced in the past few years indicates that sentencing most juveniles as adults and locking them in prison is, in fact, the worst thing society can do. Locking them in adult facilities pre-trial only exacerbates the situation, particularly as some of these kids are found innocent.

“Except for the most serious violent offenders — which is a category of offender that is only a small percentage of offenders who get transferred [to adult facilities] — the probability is that by transferring offenders who are not in that category, we will end up with offenders who re-offend more quickly and for more serious offences and more often,” says Dr. Shay Bilchik, director of the Center for Juvenile Justice Reform at Georgetown University Public Policy Institute.

Bilchik is more familiar with juvenile-justice issues than most, having worked as a chief assistant district attorney overseeing all prosecutions of juvenile cases in Miami, Fla. It was Bilchik’s job to decide if and when a juvenile offender would be charged as an adult.

“If I had known then what I know now, I would have transferred a lot fewer kids than was happening at the time,” he says. “We just didn’t have the research that showed that for that repeat property offender we actually were accelerating his criminality, as opposed to reducing it.”

Any benefit gained from “incapacitating” juvenile offenders by locking them away is lost when the juvenile emerges from prison, more prepared to commit serious crime than before.

Bilchik believes law enforcement, prosecutors, judges and the state legislature need to review their state’s system, review the research and determine whether their system is “flying in the face” of what is now known about rehabilitating juvenile offenders.

“Until they’re convicted as an adult, I don’t think they have any business being in an adult facility,” he says. “We know that the levels of suicide, the levels of victimization increase for juveniles who are in adult facilities... There are too many kids who we transfer who end up on adult probation or end up not being convicted or who end up having their cases sent back to the juvenile court to think that presumptively these kids belong in an adult facility pending trial. Until that conviction’s in place, until a judge or a jury has said, ‘You’re convicted, and I’m going to sentence you as an adult,’ I think they belong in a juvenile facility.”

Bilchik says there does need to be some kind of loophole for truly dangerous offenders who present a genuine risk to other kids.

“That would be a judicial finding, not a prosecutorial decision or a police decision,” Bilchik says. “Unless the judge decides they’re too dangerous to be kept in a juvenile facility, they need to be kept in those facilities until they’re convicted.”

Once a juvenile has been convicted, Bilchik believes an individualized plan needs to be created, one that takes into account the fact that many kids, even those who commit atrocious crimes, can be rehabilitated.

Bilchik tells the story of a 13-year-old boy whose crime was so terrible that most people clamored for him to be locked away. The boy, who had a bad relationship with his mother, had been sent to boarding school and came up with a plan to solve his family problems by killing her.

The boy snuck out of the school and made his way home, lying in wait for his mom, who usually arrived home first. But on this day, his 9-year-old brother got home first. In a panic, the boy decided that he had no choice but to kill his little brother, too. He killed them both, then tried to sneak back to school but was caught.

Tests showed the boy wasn’t psychotic, but Bilchik decided to prosecute the kid as an adult because he wasn’t convinced the boy, who had lived what Bilchik describes as a “stark” life, could be rehabilitated. But rather than caving to pressure to seek a hardcore prison sentence — the case made headlines daily — Bilchik opted to put the boy in a residential treatment facility for three years.

“The father was never willing to take him back home again, but by the time he was 17 or 18, he was adopted by one of the program workers at the hospital,” Bilchik says. “He went on to college. He went on and had a relationship. I’ve lost track of him now.”

The boy’s successful rehabilitation demonstrates what can happen if prosecutors, lawmakers and the public remain open to the notion that most juvenile offenders are at a developmental stage where they can be treated instead of simply locked away, Bilchick says, adding that he believes the state should do everything it can do to keep kids out of adult correctional facilities.

“Most of the kids who get sentenced as adults are serving shorter sentences — they’re serving three to five,” Bilchik says. “That three- to five-year period in an adult hardcore facility is like a death sentence for whatever normal developmental process they would have otherwise experienced. So we do more harm for those kids by incarcerating them than we do good in terms of the safety of our communities.”

In the end, says Bilchik, you can’t think of a worse public policy than one that increases recidivism, accelerates a person’s criminality and results in that person committing more serious offenses.

Adult bodies, juvenile minds
Bilchik doesn’t comment on individual cases. Still, when he hears the basics of the Thomas English case he offers a few thoughts.

“When I hear stories like this, it makes me kind of think we’re creating a template that says a 14-year-old who would do something like this has to go to jail,” he says. “I think some accountability may be right, so maybe it’s an extended stay in a juvenile facility with some plan of how he’s going to re-enter society, but it’s sad to hear about a seven-year sentence to be served in a facility where you know he’s going to come out and live a much different life than you know he would have otherwise.”

Research done over the past 10 years shows that young people’s brains are still developing and don’t reach adult functionality until sometime in their early 20s. Until then, they lack the maturity to make good long-term decisions, particularly under stress.

“You can sit down and talk to them, and they can make all kind of sense, and then they’ll go out there and do something stupid,” Cain says.

Peers, strong emotions, even noise can impact a young person’s decision making, she says.

When a teenager commits a crime, people see a tall young man walk into a courtroom and want to treat him like an adult.

“He’s six feet tall, and he looks grown up, but his brain isn’t grown up,” Cain says. “They may look big. They may look grown up, but their brains aren’t. This is all biologically based research. It’s not psychological.”

Research also shows that teenage brains have “growth spurts,” periods where the right kind of stimulation is key to health development. Touch is important, as are physical activity and social interaction — precisely the stimuli that kids in isolation don’t receive.

“If you’re not getting what you need during those times, you’re setting back the development,” Cain says. “While they’re waiting trial, we’re causing way too much damage.”

The advanced understanding gained through this scientific research is slowly influencing public policy, causing many in the juvenile-justice system to re-think the changes made in the ’90s.

“There’s been a shift back,” Cain says. “People are asking, ‘Did we do the right thing?’ A lot of people are saying, ‘Maybe we went too far.’”

Levy’s bill is a step toward balance, supporters say. It protects kids who haven’t yet been convicted or sentenced from the trauma of isolation in an adult jail, keeping them in a facility that specializes in helping and supervising troubled teens.

But in the current economy, with the state facing budget difficulties, any bill that costs the state money already has one strike against it. Figuring out exactly how much it will cost isn’t easy. It’s complicated by the fact that some kids who occupy beds in juvenile detention centers are supposed to be in community-based programs but are in detention because of lack of space in the community facility.

“This has always been an issue,” Cain says. “There were always kids being locked up because they didn’t have the community beds available. We use the more expensive resource for lack of the cheaper resource.”

In Colorado, an estimated 146 juveniles each year are charged as adults. About 30 percent of those post bond, leaving an average of 102 cases each year in which the defendants would be subject to Levy’s bill. Of those, about 65 are detained in an adult facility and would therefore need to be transferred back to a juvenile detention center. After all the guesswork and math are done, it works out to an estimated additional cost to the state of about $837,442 — money needed to pay for additional beds in juvenile detention centers.

Levy proposes to add a $1.50 charge to all traffic charges and other fines to cover that cost. Whether the House Appropriations Committee will agree with that plan remains to be seen.

If the bill does pass the House Appropriations Committee, it will still have to pass through the House and then the state Senate before it will land on Ritter’s desk. How Ritter will respond to this bill after last year vetoing a similar bill — one that would have kept kids like James Stewart out of adult jails — is anyone’s guess.

“I’m hopeful that this limited issue he’ll be favorable to if we can get it there,” Cain says. “As someone who supported him and voted for him, I am disappointed that he hasn’t provided more vision in the area of criminal justice. He said in his campaign that he was interested in some reform and changes, but basically he has not been willing at this point to do much.”

However, the bill Ritter vetoed was a more ambitious measure that would have required a court hearing before a prosecutor could charge a juvenile as an adult and was seen by prosecutors as a threat to their authority. HB 1321 pertains only to the pre-trial detention of juveniles, not how they’re prosecuted or sentenced.

“It’s not going to affect much in Boulder County, and I don’t have a problem with it,” says Stan Garnett, Boulder district attorney. “I do know that some of my more conservative colleagues do, but I don’t. It may or may not surprise you to know that from time to time, I’m the odd man out in the district attorney’s group.”

Garnett says other DAs oppose the bill because they worry whenever they see something that impinges on their freedom to make decisions.

But Cain says the opposition to the bill is misplaced because it won’t hinder a prosecutor’s ability to charge an offender as an adult. She says she thinks the decision as to whether a particular kid belongs in juvenile detention pre-trial or in a jail ought to rest with a judge.

“Prosecutors are on one side of the case, and the defense lawyers are on the other side, and it’s the court’s job to make decisions based on the circumstances of the case,” she says.

Though opponents of the bill want to argue that juveniles who are charged as adults are the “worst of the worst” and too dangerous to be kept in juvenile detention, even pre-trial, Cain says that’s simply not true. Many of them are vehicular homicides, like James Stewart.

If the bill passes, say its supporters, it will be too late for kids like James Stewart and Thomas English, but it will at least be a step in the right direction.
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