Anti-Shackling Webinar — Unchain the Children

Unchain the Children: Policy Opportunities to End the Shackling of Youth in Court is a webinar presented on October 1, 2014 at 1pm EST to discuss practical, policy, and constitutional reasons to end indiscriminate shackling of youth in juvenile courts.  Presenters include David Shapiro of the Campaign Against Indiscriminate Juvenile Shackling and George Yeannakis of the Washington State Office of Public Defense and Team Child.  The event is co-sponsored by the National Juvenile Justice Network and the Coalition for Juvenile Justice.

To register, go here.

In Indiana, shackling policies vary from juvenile court to juvenile court.  Some children are unshackled before appearing before the judge.  In others, every detained child appears with handcuffs, belly chains or belts, and leg irons.  As of September 2014, there is no statewide law, rule, or policy that gives guidance concerning the shackling of Indiana youth in the courtroom.

To be clear, the indiscriminate shackling discussion has no bearing on whether a detained child will be transported from the detention center to the courthouse in shackles — they will.  The issue focuses solely on whether each child should be shackled in the courtroom.

For additional resources, see:

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How Young is Too Young for Delinquency Court?

On September 22, 2014, public defenders spoke at the meeting of the Interim Study Committee on Corrections and Criminal Code about the need for new statutes setting the minimum age for juvenile delinquency court jurisdiction.  There are three specific scenarios that are involved.  First, for any general juvenile delinquency case, there is no minimum age specified.  The result is that younger and younger children are being arrested — some as young as six or seven years old — with some detained at detention centers.  Most of these children are likely incompetent to stand trial because of a lack of understanding of the court system and inability to assist with their defense simply because they are so young and unsophisticated.

Second, if the child is accused of murder and is at least ten years old, the child may be waived or transferred to criminal court to face the charges in the same was as if they were an adult (I.C. 31-30-3-4).  That is what happened with the case of Paul Henry Gingerich when he was twelve years old.

Third, if the child is at least fourteen years old and accused of committing heinous or repetitive acts, the child may be waived or transferred to criminal court (I.C. 31-30-3-2).  The concepts of what qualifies as heinous and how many acts are enough to qualify as repetitive is not well defined in the law.  There is a group in Indiana examining this particular statute also to see whether it is being applied in disproportionate numbers to minority youth.

Age proposals include that the minimum age of juvenile court jurisdiction be twelve years old, as that is the youngest age that a child may be sent to the Indiana Department of Correction Division of Youth Services (I.C. 31-37-19-7), one of the many disposition options available to juvenile court judges.  For waiver cases, the proposal is to make the minimum age sixteen years old, which would align the two waiver statutes mentioned above with all of the other waiver statutes in the juvenile code.

For a horrifying story about the impact of moving children to criminal court, see As Another Young Boy Commits Suicide in Adult Prison, We Must Rethink the Prosecution of Children as Adults by Marsha Levick of the Juvenile Law Center.

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Shakespeare and Juvenile Delinquents

Shakespeare Behind Bars sponsors a wide variety of creative programs aimed at youth in the juvenile delinquency system and adults in the criminal court system around the country.  For instance, the Incarcerated Youth at Play program uses the themes in Shakespeare’s plays to teach children how to “speak and respond in relationship to other people and to the world around them.”  It includes children 12-17 years old who are placed at the Division of Youth Services (Department of Correction), and there is a companion training program for teachers in those facilities.

Shakespeare in the Courts has juvenile delinquents work with actors through classes, rehearsals and performances of scenes of Shakespeare’s plays.  The program lasts 10-14 weeks and is a specific term of probation for the children.

Changing Lives Through Literature (CLTL) pairs judges, probation officers, and a professors/facilitators in an alternative sentencing program “to offer great literature to prisoners in a democratic book group format.  Over 4,500 probationers around the country have graduated from CLTL…”

There are many more options on the main website, including a documentary about the adult-aimed program that premiered at the Sundance Film Festival in 2005.

The key is that there are very creative programs that are helping to expose our children to other experiences, mentors, leaders, and options.  These types of artistic programs should be another piece of the puzzle as we try to address the needs and issues facing our children.  There are a number of these Shakespeare-based programs in neighboring states — Kentucky and Michigan — that could be explored to determine what could be brought to Indiana.

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Education for ALL Children!

Article VIII, Section 1 of the Indiana Constitution states: “Knowledge and learning, generally diffused throughout a community being essential to the preservation of a free government; it should be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual scientific, and agricultural improvement; and provide, by law, for a general and uniform system of Common Schools, wherein tuition shall without charge, and equally open to all.”

I am not sure how we ended up coming to this moment in 2014 where many in the schools think that they do not have an obligation to educate ALL children.  The statutes and Indiana Constitution do not say that public schools, paid for by public tax dollars, are only required to educate the smart kids, the easy kids, the athletes, the rich kids, the socioeconomically stable kids, the kids who do not move around a lot, etc.  No, our idea of public schools has been that EVERY child will have access to an education from kindergarten through twelfth grade.

I am more than aware that many kids are challenging.  Many of them are raising themselves, shuffled between family members and others in the community willing to take them in, and moving in and out of  delinquency and CHINS cases.  Many of them have incarcerated parents, who model the drug lifestyle when they are briefly back in the community.  Many of them have lives that we cannot imagine and hope to never experience.

Many of our delinquent kids will tell you that being teased is part of their daily life that makes going to school almost unbearable.  The kids are sent home from school repeatedly for dress code violations and told that they cannot return without the correct clothing, but they are wearing the only clothes that they own.  They do not want to go to the school clothing closet for donated goods because they know that other kids will make fun of them.  They do not want to take advantage of the requirements of their Individual Education Plan because they are teased for needing help reading or having to leave the class for individualized attention.  So, they become angrier and angrier.  And, they lash out at the authority figures who are supposed to be professionals and leaders who guide the children, instead of putting all of their school’s resources behind removing the children from school permanently.

Over the last few years, school districts have established “alternative schools,” which in the law is called a “school flex program” (I.C. 20-30-2-2.2).  These school flex programs often offer only three hours of class instruction per day (as allowed by I.C. 20-30-2-2(b)).  This makes it virtually impossible for a child to graduate with a diploma by the time he or she turns eighteen.  The state law requires six hours of education for each student for grades seven though twelve, generally.  See I.C. 20-30-2-2(a).  The school flex programs were specifically targeted at the most challenging students:

  1. failed the ISTEP+ graduation exam at least twice
  2. been determined to be chronically absent
  3. been determined to be habitually truant
  4. been significantly behind in credits for graduation
  5. previously undergone at least a second suspension from school for the school year
  6. previously undergone an expulsion from school
  7. been identified by the principal and parents to benefit from the program.  See I.C. 20-30-2-2.2(a).

Many districts have also encouraged the most challenging kids to enroll in online courses as “home schools” so that they can stop coming to school completely.  I will never understand how a school administrator can look at many of these parents and make a sincere pitch that Johnny or Buffy is a perfect candidate for self-directed online classes.  These parents often cannot keep the electricity on consistently to power the laptop.  The parents often have not graduated from high school or passed an equivalency exam either, so they cannot meaningfully assist the child with the online courses.  Eventually, the child figures out that there will be no consequence for doing nothing because homeschooling laws require very little.  Then we have yet another child who has not achieved a basic high school education and is likely destined to be on public assistance, working in low-wage jobs, etc.

I am used to the outcry from educators that we all do not feel their pain.  Is teaching hard?  Yes.  Being a public defender is not exactly a leisurely walk through a flower garden every day.  If you are going to choose to be a public school teacher, you should teach all of the children assigned to your classroom.  Step up to the plate, learn creative solutions, and help us get these kids through.

The schools are failing so many of our kids every single day.

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Elkhart 4 Court of Appeals Decision

On September 12, 2014, the Indiana Court of Appeals issued an opinion on the appeals of Blake Layman and Levi Sparks.  Both were part of the so-called “Elkhart 4″ who were convicted of felony murder after one of their friends, Danzele Johnson, was killed by the homeowner during a burglary.  For additional information on the Elkhart 4, see this prior post.

Much of the opinion centered on whether Johnson’s death was reasonably foreseeable to Layman and Sparks when they committed the burglary.  The Court found that the “victim of an unlawful entry of or attack on his dwelling fighting back with deadly force is a natural consequence that has been justified by our State’s legislature.  See I.C. [] 35-41-3-2.  In addition our State Constitution gives the people a right to bear arms for the defense of themselves.  Indiana Constitution Article I, [Section] 32.  For these reasons, it was reasonably foreseeable that the victim’s acts of self-defense or defense of his dwelling were likely to create a situation leading to the death of one of the co-perpetrators.”

The Indiana felony murder statute (I.C. 35-42-1-1(2)) states that a “person who…kills another human being while committing or attempting to commit…burglary…commits murder, a felony.”  The State does not have to prove intent to kill the person, but only that there was intent to commit the burglary.  The Court noted that they were bound by the Indiana Supreme Court precedent of two other cases, Palmer and Jenkins, unless or “until it is either changed by that court or by legislative enactment.”

Finally, the Court considered the appropriateness of the sentences.  Originally, Layman was sentenced to fifty-five years of incarceration and Sparks was sentenced to fifty years of incarceration.  The sentences were modified such that Layman was sentenced to fifty-five years of incarceration with ten years suspended to probation, and Sparks was sentenced to fifty years of incarceration with five years suspended to probation.

Judge Bailey wrote the opinion of the Court affirming the trial court and remanding the case for resentencing.  Judge May concurred with a separate opinion, and Judge Kirsch dissented with a separate opinion.

This case may continue through the appellate process to the Indiana Supreme Court, but as of September 21, 2014, no further action has been taken.

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Indiana Criminal Law Ethics CLE

On September 30, 2014, at 10:00 a.m., the Indiana Legislative Services Agency will be presenting a one-hour continuing legal education seminar about Criminal Law Ethics.  The program will be held at the Indiana Government Center South, Conference Room 19.  Presenters include Larry Landis from the Indiana Public Defender Council, Chris Baylor from the Indiana Prosecuting Attorneys Council, and Michael Witte from the Indiana Supreme Court Disciplinary Commission.  The cost is $25.00 for most.

Additional information is available here.

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DCS Caseloads Being Scrutinized After Recent Tragedies

As Virginia Black reported in In Wake of Recent Deaths, DCS Still Trying to Hire More Workers, this summer, there have been a number of children around the state who were seriously harmed at the hands of adults.  This, unfortunately, drew attention once again to the Indiana Department of Child Services caseworkers and their caseloads.  As noted in the article, there are questions about how caseload numbers are tracked and whether the agency is getting any closer to achieving it staffing goals and the staffing ratio caseload goals.  During the September 2014 DCS Oversight Committee, DCS provided staff turnover statistics that reflect a continuing trend of 15-17%.

The DCS Oversight Committee has heard reports on caseloads and staff turnover through out the existence of the committee, which is chaired by Senator Carlin Yoder and staffed by Senator John Broden and Representative Gail Riecken, as well as representatives from a variety of agencies and groups. Links to the minutes since the committee came within the umbrella of the Commission on Improving the Status of Children are available here.  Older minutes and reports from the 2013 Child Services Oversight Committee are available here.  The minutes and reports from the 2012 Department of Child Services Interim Study Committee, referenced in the article, are available here.

Here are links to reports that are referenced in the article:

 

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