Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the 10th Annual Models for Change National Working Conference
Washington, DC United States ~ Tuesday, December 15, 2015
Good afternoon. Thank you, Laurie [Garduque], for your kind introduction and for your dedicated leadership on juvenile justice reform. I also want to thank the MacArthur Foundation and the Coalition for Juvenile Justice for hosting and supporting this important convening. It’s a pleasure to join so many distinguished researchers, outstanding public servants and engaged advocates committed to reforming our juvenile justice system.
Partly driven by tragedy and partly by broad community mobilization, in recent months, issues surrounding the interactions of young people with police and with our criminal justice system have emerged at the center of our most pressing national debates. I see the fragmented trust, the systemic inequality and the palpable frustration that have taken shape in too many communities across the country. But as someone who has spent nearly her entire adult life advancing protections of our civil rights and promoting reforms in our criminal justice system, I also see the unique promise of this moment to achieve real and sustainable change.
Across a range of political perspectives, public officials and private citizens alike have come together to bridge divides and support meaningful criminal justice reform. This administration – and this Department of Justice – continue to help lead the way, advancing our agenda in support of a criminal justice system that more effectively protects our communities, more fairly treats our citizens and more prudently spends our resources.
To confront these complex challenges with the candor they demand, we must address the troubling trends that drive too many youth into our juvenile justice system without the rights our constitution guarantees and the opportunities our children deserve. And we must acknowledge the collateral consequences that too often result when children who merely misbehave or act out in class suddenly find themselves receiving a sentence of incarceration rather than a diploma from school.
Through your efforts at Models for Change, you continue to address these challenges by forging critical partnerships at the state and local levels; by investing in data-driven research to build evidence-based solutions; and by advancing a new outcome-oriented approach to juvenile justice. And you’ve achieved real results. But I don’t need to remind any of you about the urgent and pressing work that remains in too many communities, courts and schools around the country.
At every stage – from school-based arrests, to detention hearings, to confinement conditions – the Civil Rights Division has continued its steadfast efforts to protect the civil and constitutional rights of all children – particularly the most vulnerable among us: children of color, poor children and children with disabilities – who come into contact with our juvenile justice system. In many ways, our work highlights both the national challenges we face and the local solutions we need to provide a blueprint for reform.
I’m pleased to announce that just last week, we agreed to terminate our consent decree with the state of Ohio after it successfully implemented transformative reforms in its juvenile correctional facilities. These reforms spanned an array of areas and included eliminating the use of solitary confinement for punishment, ensuring individualized mental health care and dramatically reducing the population of incarcerated children.
In 2007, a Justice Department investigation uncovered juvenile correctional institutions in Ohio falling painfully short of their legal responsibilities to support the safety, health and educational needs of detained children. A youth correctional facility in Delaware, Ohio, held youth in seclusion for actions as mundane as refusing breakfast, cursing and talking in class. In one instance, a youth endured 14 hours in seclusion for arguing and using a racial slur. Another correctional facility located in Marion, Ohio, denied its own physician’s request to order an echocardiogram, with corrections officials classifying the boy as “asymptomatic” despite the fact that a doctor diagnosed him with a significant heart murmur.
In Marion, we also found that nearly one third of youth inmates in the correctional facility had incomplete immunizations. These findings marked substantial departures from widely accepted medical and professional standards. State experts also concluded that the facility’s mental health care failed to meet minimally acceptable constitutional requirements. These alarming, ineffective – and frequently unconstitutional – practices demanded reform. And over the past decade, we responded with a comprehensive approach.
After years of thorough investigation, effective litigation and independent monitoring, Ohio has achieved noteworthy changes in its juvenile corrections system and policies: changes from using solitary confinement as a first response to a last resort; changes from a culture facilitating violence to an approach rewarding positive behavior; changes from facilities with nearly non-existent mental health care to agencies staffed by integrated behavioral health teams; and changes from a system that once incarcerated more than 2,000 children to one that holds fewer than 500 today.
In a video interview, one youth explained the impact of these reforms by describing the system’s “drastic change” that helped transform her from one of the worst-behaved kids to one of the best. She described the powerful lesson of self-confidence, commenting, “When I get home I know I’m going to be able to use my new thought process because it feels so much better than doing what I used to do, being in trouble.” Another youth spoke about the passion of staff members to serve kids in need, explaining, “It’s not about the check. It’s just that love they have for the youth.”
These changes – shaped by an approach that prioritizes the outcomes of reentry and reintegration into the community – have produced tangible benefits, including lower recidivism rates for low or moderate-risk youth and significant cost savings for Ohio taxpayers. But these changes did not result by accident. They came about, as the court monitors wrote in a recent report, because state leaders and stakeholders employed research-driven best practices for reform. We believe that the progress in Ohio presents a valuable model to adopt, with instructive lessons to implement, for states around the country.
Beyond our focus on reforming conditions in juvenile detention facilities, in recent years the Civil Rights Division has also prioritized addressing challenges at the front end of the juvenile justice system, striving to prevent children from ending up in the system in the first place. Nearly 50 years ago, the Supreme Court affirmed the due process rights of juveniles, declaring in Gault, that “[u]nder our Constitution, the condition of being a boy [or girl] does not justify a kangaroo court.” But today, the reality remains that too many children in America still face barriers to justice.
Defending the due process rights of juveniles begins with ensuring they have meaningful access to counsel. Earlier this year, in Georgia’s Cordele Circuit, a class of defendants challenged the frequent absence of public defenders in juvenile court, the “meet ’em and plead ’em” processing of adults in superior court and the utter inability of the circuit’s three public defenders to provide adequate representation in their 1,400 cases.
When one of the plaintiffs, a 16-year-old boy charged with stealing Halloween fangs worth $2.97 from Wal-Mart appeared in court, he found no public defender there to assist him. Yet the judge allowed him to admit to the crime. She later sentenced him to nine months of probation, 40 hours of community service and restitution, plus $50 in court fees. The Justice Department filed a statement of interest in the case, emphasizing that due process requires every child facing a loss of liberty to receive legal representation – from their first appearance through, at least, the disposition of their case – by an attorney with the training, resources and time to effectively advocate for him or her. Fortunately, the parties agreed to settle the case in a way that should provide real benefits to kids in the juvenile justice system. The settlement included enhanced resources for defenders and the requirement that an attorney representing children in juvenile court have the appropriate specialization.
Our 2012 investigation into the Juvenile Court of Memphis, Tennessee, and Shelby County, Tennessee, presents another prime example of due process violations tied to inadequate access to counsel. The juvenile court had failed to hold timely probable cause hearings for children arrested without a warrant. It had fallen short of its legal duty to protect children from self-incrimination during probation conferences. And it had often neglected to hold hearings before transferring children to an adult criminal court. Consequently, our agreement with Shelby County required the creation of a specialized Juvenile Defender’s Office, and today the office is staffed with dedicated attorneys, investigators and social workers. We also demanded that the court perform precisely what Gault and Kent require – hold probable cause and transfer hearings.
We recognize the need for additional reforms to ensure the independence of defenders from political and judicial influence. Currently, the Office of the Public Defender reports to the county’s chief executive, and the appointed counsel process faces judicial supervision.
Nonetheless, we continue to make strides that help improve the quality of legal advocacy for the children of Memphis. In 2011, before our report, the detention center held more than 5,200 kids. Since our work began, that figure has declined sharply. And with respect to transfers, the court is holding more hearings and denying more transfers – up from 13 in 2012, to 52 in 2013, to 34 last year. These reforms hold the potential to make Shelby County a model for juvenile courts across the country.
Our investigation into the juvenile justice system in St. Louis County, Missouri, provides another important example. Our report, released in July, highlighted the chronic underfunding of the indigent defense system. It also described systemic shortcomings that stifle zealous advocacy and prevent adversarial testing of facts, in violation of a child’s right to adequate representation. The St. Louis County Family Court had a single public defender covering 400 cases in 2014. We observed significant delays in the appointment of attorneys representing detained youth. We uncovered a court structure rife with conflicts of interest, repeatedly depriving children of St. Louis adequate due process. And we found a disproportionately harmful impact on children of color. The court committed black children to the state youth services agency for probation violations, and held black children in custody before trial, at significantly higher rates than it did for white children.
In another concerning trend that continues to play out across the juvenile justice system, we see children with disabilities face unique challenges and discrimination. In March, the Civil Rights Division opened an investigation into the Truancy Court and Juvenile District Courts in Dallas County, Texas, to examine whether students charged with failing to attend school receive the due process rights that our constitution guarantees. And the investigation is breaking new ground, marking our first investigation to examine whether youth with disabilities have meaningful access to the courts, as required by the Americans with Disabilities Act (ADA).
Even after the monumental progress our nation has seen in the decades since Brown v. Board of Education – discriminatory discipline practices have become a new form of segregation. When schools respond to minor, non-violent misbehavior with suspension, expulsion and school-based arrests, these actions can have devastating consequences on whether students succeed, not just academically but throughout their lives. And school-based arrests for minor offenses do not help address the fundamental role and purpose of law enforcement in our communities – the protection of public safety.
As Justice [Abe] Fortas wrote for the Supreme Court in Gault nearly half a century ago, we must seek “to establish precisely what the juvenile did and why he [or she] did it – was it a prank of adolescence or a brutal act threatening serious consequences to himself [or herself] or society unless corrected?” Our settlements and ongoing litigation with state and local jurisdictions in Mississippi highlight the important role of this question. Across a host of due process violations, we found students suspended from school – and some later incarcerated in a juvenile detention facility – for behavior as mundane as dress code violations like wearing the wrong color socks or leaving their shirts untucked. These actions disproportionately impacted children of color and children with disabilities.
In 2013, the Civil Rights Division reached an agreement to address discriminatory school discipline practices – including referrals to law enforcement – by the Meridian, Mississippi, Public School District. And earlier this fall, the court approved agreements with the Meridian Police Department and the state youth probation agency. Together, our agreements in Mississippi seek to obtain a series of outcomes focused on appropriate response and resolution – rather than escalation – of school incidents.
While our case work represents a critical tool to advance reform at the intersection of education and the juvenile justice system, the Civil Rights Division has also worked collaboratively with other federal agencies, providing policy guidance and technical assistance to local authorities. Preparing formerly incarcerated students for reintegration to their communities requires ensuring equal access to education. And often our most vulnerable children – including children with disabilities and children who speak English as a second language – face the greatest risks. Our efforts aim to help students to return to their local schools, graduate and then begin post-secondary education or find a job in the workforce so that they can take responsibility for themselves. Although we do not guarantee equal outcomes, as a nation we must always strive to ensure an equal shot at opportunity.
To advance this mission, last year we joined with our counterparts at the Department of Education and released a guidance package on juvenile correctional education. We included a Dear Colleague Letter that established clear guidelines on how federal civil rights laws apply to the 60,000 youth in our country’s juvenile justice residential facilities. The letter covered a range of areas, including equal opportunities to access academic coursework, administration of discipline and effective communication for students with disabilities, among others.
And through the Federal Interagency Reentry Council, launched under former Attorney General [Eric] Holder in 2011, and the Justice Department’s Office of Juvenile Justice and Delinquency Prevention (OJJDP), we continue to reach out to young Americans denied the education they deserve while involved with the juvenile justice system.
These stories represent just a snapshot of our efforts in juvenile justice reform. As we pursue an aggressive agenda for criminal justice reform, we must ensure that we address the unique challenges facing our young people – to prevent them from entering the system and to provide equal justice when they do; to ensure that we do not allow a young person’s mistake to lead them toward a cycle of collateral consequences; and to guarantee that one’s race, or age or disability status does not dictate the treatment they receive and the opportunity they deserve.
Your guidance and expertise remain vital in these efforts. Because while the Department of Justice has an important role to play, real and lasting change must take shape at the local and state levels, informed by all stakeholders – from public officials to researchers – who understand the challenges and opportunities unique to their communities.
Together, we can work to make our nation’s most promising ideals – fundamental fairness, equal opportunity and equal justice – a tangible reality for all of America’s children. And looking around this room, seeing so many dedicated leaders, I am confident we are up to the task. Thank you, once again, for your outstanding work. I look forward to all we will continue to accomplish together in the days ahead.