Kids jailed for Cash on 20/20

20/20 aired a special on Friday night about the Judges who jailed young people in exchange for money from a private detention facility.  The show can be viewed here.  This show, and an article that appeared in the New York Times this week, highlight young people’s voices and experiences about this controversy.  They offer a starkly different perspective than we are used to in the public forum about young people charged with crimes, one which suggests that there should limits set on the way that we punish young people who violate norms.

Resource

The Campaign for Youth Justice, an advocacy organization based in Washington, DC, has published an excellent report called ‘The Consequences Aren’t Minor: The Impact of Trying Youth as Adults and Strategies for Reform,” which includes an excellent analysis of the harms caused to young people tried in the adult court system, as well as some in-depth profiles of particular state laws.

See the report here.

The importance of participation

I just read an important report by New York City’s Youth Justice Board, which is a group of young people who are charged with researching and assessing key issues of importance to young people in contact with the legal system.  This group of young people assessed the permanency planning process in New York City’s Family Court, and made some key recommendations for improving the system for the young people whose lives are being planned.  Their recommendations are concrete and useful, but more importantly, they reflect a real deficit in the system, which is the role of young people in the process.  These young people rightly point out that they are rarely present — physically, emotionally, or intellectually –in the planning process that actually impacts their lives in such a critical way.  What is striking to me about this report is that these young people point out the kind of chasm that exists between what the system feels is important for young people and what young people think, and the complete lack of input on the part of young people, whose very lives are being determined by this system!  You can access the report on the Youth Justice board’s website.

Resource

The Justice Policy Institute has issued an excellent report about the conditions of confinement in juvenile detention.  This report draws from social science research that addresses some of the harms of confinement for young people.  The report is well-researched, thorough and concise.

The report can be seen here: Dangers of Detention

New Legislation in New York

The New York State legislature has just passed a ‘bill of rights’ for incarcerated youth which, at least in spirit, offers a real opportunity to hear youth input on the conditions of confinement. The text of the bill is below

A09070 Memo:

BILL NUMBER:A9070B TITLE OF BILL: An act to amend the social services law, in relation to residential programs for children PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to outline specific rights afforded to youth in OCFS residential facilities; and establish a youth advisory board within these facilities. SUMMARY OF SPECIFIC PROVISIONS: *outline a bill of rights for youth in secure and non-secure residential care *require the publication of such rights and distribution to residents upon orientation at the facilities *require the creation of “youth advisory board(s)” within OCFS residen- tial facilities EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER: S462-b of the Social Service Law is renumbered section 462-d. Two new sections are added 462-b and 462-c. JUSTIFICATION: In December 2006, staff members of the New York State Assembly conducted site visits to three Office of Children and Families( OCFS) residential facilities which included: The Tryon boys, Tryon girls residential facility and the Lansing residential facility. Staff met with youth and members of the staff at each of these facilities to hear their concerns about living conditions, educational opportunities, and the residents overall interaction with Youth Developmental Aides (YDA). After listening to issues raised by residents, The staff recommended that legislation be drafted to require the Office of Children and Family Services to inform residents upon orientation, their rights under exist- ing law. In addition, one of the concerns that youth raised during the meetings with Assembly staff was the inability to offer input to manage- ment staff at OCFS facilities as it relates to their care. This bill will require that OCFS establish a youth advisory board that will give youth in care an opportunity to convey concerns and suggestions to to management staff within OCFS facilities. PRIOR LEGISLATIVE HISTORY: New bill. FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS: None. EFFECTIVE DATE: Immediately.

Immediately.

The Rubber Room

In a recent episode of ‘This American Life,’ the Chicago-based National Public Radio program, I heard a truly astonishing story about a New York City Department of Education policy of keeping teachers under investigation in what is euphemistically called a ‘Reassignment Center,’ but what is referred to by teachers as the ‘Rubber Room.’ As far as I can tell, teachers are sent to these centers if they are perceived to be a threat to the administration or the children.  The ‘crimes’ of these teachers run the gamut from insubordination to inappropriate touching. These teachers are not facing criminal charges, nor do they appear to receive formal administrative charges. They are simply sent to a reassignment center where they sit, and wait, sometimes for years. They receive their salaries, yes, but they are, as some teachers say, living in a kind of purgatory. As I listened to this story on my way back from a prison in England, I could not help but hear the resonance with the stories I hear daily of people’s experiences while incarcerated: boredom, depression, helplessness, and ultimately, the erosion of self. Teachers often have literally no idea about what is happening to them, when they may return to the jobs they love, or whether they will even continue to have a job. They simply go, sit, and wait. And while they wait, the prison and schoolroom culture that have become so well known to us in American culture are reproduced in these spaces–racial segregation and fighting over property and power become prevalent here.

My interest in writing about this issue here is twofold. First, I wonder whether then these tensions and prejudices are then re-exported to the classroom if and when these teachers are reassigned. Their bitterness, their lack of continuing engagement in the education process, their boredom–all could have the opportunity to sink in for months or years, and then once a teacher returns to the classroom, they bring those things with them, embedding in the young people under their care these feelings of bitterness and injustice. Of course this may not happen with all of the teachers, but it is much the same theory operating in the research on prisons–how much does the experience of incarcerate impact the making and shaping of individual consciousness, and one’s ability to function in the outside world?

My other interest in this phenomenon is that it is the first sign I have seen that an American policy is turning toward what we have in England, which is a kind of system of ‘pre-punishment,’ in which individuals are placed under the control of the state without being formally charged with any crime. The examples in England include Anti-Social Behavior Orders, issued to people who are perceived to be engaging in anti-social behavior, and control orders, issued to people suspected of knowledge about terrorist activities. Certain restrictions are placed on their movement and their ability to operate as free citizens, but they are not formally charged with crimes, though their violation of these orders could lead to a criminal charge. The New York City ‘rubber rooms,’ to me, inhabit this kind of liminal zone, wherein individuals have no ability to actively resist a policy because they aren’t actually under a formal system of censure. Young people are most subject to this in England….is a system like this to come soon to America?

For information about a documentary on the rubber room, as well as some fantastic facts about the issue, see here.

Important letter from human rights groups about Omar Khadr

February 1, 2008

Robert M. Gates
Secretary of Defense
Department of Defense
1000 Defense Pentagon
Washington, DC 20301

Related MaterialThe Omar Khadr Case: A Teenager Imprisoned at Guantanamo Background Briefing, June 1, 2007 More of Human Rights Watch’s work on Military Commissions Thematic Page US: Guantanamo Judge Allows Military Commissions to Proceed in Khadr Case Press Release, November 8, 2007 US: Stop Unfair Trial of Guantanamo Youth Press Release, February 1, 2008 Free Email Newsletter

Via Facsimile

Dear Secretary Gates:

We write regarding Omar Khadr, a Canadian citizen whom the United States government has detained at Guantanamo Bay, Cuba, for more than five years, since he was 15 years old. On February 4, 2008, a military commission at Guantanamo will consider whether the United States may proceed in prosecuting Khadr for war crimes and other offenses before the commission. If the proceedings go forward, Khadr will become the first person in recent years to be tried by any western nation for alleged war crimes committed as a child.

Throughout Khadr’s lengthy detention, the United States has flouted international juvenile justice standards that provide for children to be treated consistent with their unique vulnerability, capacity for rehabilitation, and lower degree of culpability. The United States should not compound these violations by prosecuting Khadr before a military tribunal that is not equipped to meet juvenile justice standards as well as other fair trial requirements, and in a manner inconsistent with its legal obligations to assist in rehabilitating former child soldiers within its jurisdiction.

Accordingly, if the United States is not prepared to prosecute Khadr in a judicial system that incorporates fundamental standards of juvenile justice and other fair trial rights, it should promptly release Khadr and repatriate him to Canada for appropriate rehabilitation.

Background

According to allegations made by the United States, Omar Khadr’s father introduced him to al-Qaeda leaders when Khadr was just 10 years old, then sent him to receive military training from al-Qaeda members at age 15 and out to the battlefield shortly afterwards.

On July 27, 2002, Khadr was captured by US forces after a firefight in Afghanistan that resulted in the death of US Army Sergeant First Class Christopher Speer, as well as injuries to other soldiers. Khadr, who was seriously wounded, was initially detained at Bagram Air Base in Afghanistan and transferred to Guantanamo Bay in November 2002, where he remains today.

Khadr was not provided an attorney until he had been detained for over two years. In the third year of his detention, Khadr was charged with crimes under the initial military commissions authorized by President George W. Bush. Those charges were dismissed when the Supreme Court ruled the commissions unlawful in the 2006 case of Hamdan v. Rumsfeld. In 2007 the United States charged him under the commissions authorized by the Military Commissions Act with murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, providing material support for terrorism, and spying.

Khadr has reported to his lawyers that he has been subjected to abusive interrogations, as well as prolonged periods in solitary confinement while incarcerated at Guantanamo.

Failure to Comply with International Standards for Juvenile Detention

First detained at age 15, Khadr now has been held by the United States at Guantanamo Bay for more than a quarter of his life. The US government’s failure to properly treat Khadr as a child in detention violated US legal obligations under the laws of war, the International Covenant on Civil and Political Rights, and international juvenile justice standards. International standards allow for detention of juveniles only as a last resort and require prompt determination of juvenile cases; however, Khadr was detained for more than two years before being provided access to an attorney, and for more than three years before being charged before the first military commission.

Further, despite international legal requirements that juveniles in custody be treated in accordance with their age, and that juveniles and adults be segregated from each other, Khadr has been incarcerated with adult detainees, even when other child detainees his age were being housed together in Guantanamo’s Camp Iguana.

In Guantanamo, Khadr has been held in prolonged detention in solitary confinement. He has told his lawyers that he was also subjected to abusive interrogation. He said his interrogators shackled him in painful positions, threatened him with rape, and used him as a “human mop” after he urinated on the floor during one interrogation session. Such treatment of a detainee, particularly one who was a child, violates Article 7 of the International Covenant on Civil and Political Rights, which prohibits torture and other cruel, inhuman, or degrading treatment or punishment, and analogous provisions of other treaties to which the United States is a party. These abuses during detention, coupled with the lack of fundamental safeguards required for the treatment of juveniles in custody, raise serious concerns about the voluntariness of any statements that Khadr may have made and which may be used against him at his trial.

Failure to Comply with the Optional Protocol on Children in Armed Conflict

International law recognizes the special situation of children who have been recruited or used in armed conflict. The Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (“Optional Protocol”), which the United States ratified in 2002, requires that all states parties provide for the rehabilitation of former child soldiers within their jurisdiction, including “all appropriate assistance for their physical and psychological recovery and their social reintegration.”

In its 2007 Initial Report to the United Nations pursuant to the Optional Protocol, the United States declared that it is “committed to continue to develop rehabilitation approaches that are effective in addressing” the problem of child soldiers and that it “espouses the principle that family reunification and community reintegration are both goals and processes of recovery for former child combatants.”

During the time that Khadr was detained at Guantanamo without charges and otherwise in violation of basic juvenile justice protections, the United States funded millions of dollars to programs dedicated to the rehabilitation of child soldiers, including $4.5 million to a major initiative launched by UNICEF in 2003 to rehabilitate and reintegrate former child soldiers in Afghanistan.

Yet in its handling of Khadr, an alleged child combatant in its custody, the United States has ignored its professed commitments and its legal obligations under the Optional Protocol. It has failed to provide him with access to education, vocational training, counseling, a family or community environment, or other assistance that is essential to successful rehabilitation and social reintegration.

Failure to Incorporate Juvenile Justice Standards in Military Commission Proceedings

The military commissions created by the United States to try unlawful enemy combatants for war crimes and related offenses do not meet international standards for fair trials. Of particular concern, the commissions allow the use of evidence obtained through abusive interrogations so long as a judge finds the evidence “reliable.” Moreover, the Military Commissions Act (MCA) permits prosecutors to shield interrogation methods from the defendant and his lawyer, making it virtually impossible for a defendant to demonstrate that testimony was obtained through such abusive techniques. This lack of adequate due process safeguards are particularly harmful to child offenders, given the increased risk that they will be unduly influenced by coercive methods.

The MCA lacks any explicit juvenile justice safeguards. It has no provisions requiring that judges have expertise in juvenile justice to preside over the trials of children. This is particularly important given the likelihood that the judge will be asked to decide the reliability of statements Khadr gave while he was still just a child. Similarly, there is no indication that the military commissions will appropriately consider Khadr’s age at the time of the alleged offenses in making its sentencing determination. The United States’ failure to comply with international juvenile justice standards or provide any rehabilitation assistance to Khadr throughout his detention provides little assurance that his special circumstances will be taken into account in the future.

In short, because the military commissions fail to provide key due process protections and are not equipped to take into account Khadr’s juvenile status, they are not an appropriate forum for proceedings against Khadr.

Ensure Khadr’s Basic Rights Are Protected

Unless the US government will prosecute Khadr in accordance with international juvenile justice and fair trial standards, the United States should promptly release Khadr and repatriate him to Canada for rehabilitation. A fair and appropriate prosecution would require that Khadr be charged within a judicial system suited to address juvenile justice standards and therefore able to assess Khadr’s culpability relative to his need for rehabilitation. At all times the United States must treat child soldiers in its custody in accordance with the Optional Protocol. None of these requirements can be met by the current US proceedings against Khadr before the military commissions at Guantanamo Bay.

Sincerely,
Human Rights Watch
Human Rights First
Coalition to Stop the Use of Child Soldiers
Amnesty International

Proceeding with Justice for Young People in ‘The Wire’

The representation of young people in trouble with the law in films and on television often highlights the dangerous and violent subcultures they operate in, rather than the political, social and economic violence that they are subjected to. In other words, we often see kids shooting kids, selling drugs, and standing on the corner, rather than the neoliberal political machinery that has eliminated social spending and has instead emphasized the ‘individual responsibility’ of the poor to come out of poverty. It is rare that we get a chance to see the way that political and neighborhood violence are linked. The Wire, the HBO drama created by David Simon, a former reporter at The Baltimore Sun, is a magnificent genealogy of the city of Baltimore that is sometimes able to make these links.

The show’s writers and producers skillfully reveal the city’s socio-political landscape through their layered portraits of the individuals who live within it. The Wire does what a good sociologist strives to do—it develops an understanding of human experience that is deeply emphatic, layered and, in the best way it can be, real.

The experiences of individuals, especially young people, at the hands of police, and in particular their experiences of procedural justice, has been a thin undercurrent of the show’s myriad plots and themes. The Wire brilliantly—and perhaps even inadvertently—captures what many social scientists have shown empirically—that fairness matters to people in their treatment by legal authorities.

In the third season of The Wire, the head of the Western division, Major Bunny Colvin, provides some words of wisdom about police work to Carver, a detective under his command. He tells him that he “ain’t shit when it comes to policin’,” and that he needs to get to know the people on the streets in order to do his job well. Carver heeds Colvin’s advice, building relationships in particular with the young people in his district, learning about the fragility and complexity of their lives by trying to understand who they are and where they come from. Though the kids seem wary of Carver’s motives, they overwhelmingly respect him, a key but subtle difference. This respect allows their distrust of Carver to erode slightly. At least one of the kids, Randy, turns to Carver for help; sadly, this trust is broken when one of Carver’s colleagues, Herc, fails to follow up on Carver’s request for help in this kid’s case.

In one of the latest episodes of the show, Carver demonstrates his understanding for the young people in his district by recognizing their need for fairness. In this episode, Carver arrives at the scene of the arrest of several teenagers charged with selling drugs. The arresting officer, Collichio, frustrated that the boys have put dog feces in the bag that held their stash, is growing increasingly agitated as he realizes he may not have enough evidence to arrest them. In the meantime, Collichio’s car and the other officers’ cars have blocked the street, and drivers nearby are getting agitated that they cannot move past. One driver in particular honks his horn at the cops. Collichio overreacts to this and lunges at the driver, grabbing him by his shirt. Carver and some of the kids witness this and try to pull Collichio off the driver, yelling at him to stop.

It is clear in this scene that Collichio has overstepped his boundaries. More importantly, perhaps Carver sees that Collichio has overstepped his boundaries in front of the teenagers he has arrested, further undermining their trust in the law. Carver later decides that he must report Collichio, going against the code of officers to snitch on each other. The following conversation between Carver and his friend Herc after the incident reveals that Carver struggles between the code of the cops and the injustice he feels he must remedy:

Herc: He knows he fucked up…He knows this. He’s proud, you know, he doesn’t want it back.

Carver: It’s not about that.

Herc: C’mon Carv, you cannot do one of your own guys. I mean I know you got rank now, you’re damn near Lieutenant, but still.

Carver: It ain’t about the rank. I never told you, Hurt. Never said a fuckin’ word. But when I gave you that kid to debrief that year, what’s his face, you were supposed to get him to Bunk Moreland, you remember that?

Herc: Yeah, I fucked up, so what?

Carver: So it mattered.

Herc: So what the fuck does this have to do with Collichio?

Carver: It all matters. I know we thought it didn’t, but, it does.

Tom Tyler, a social psychologist at New York University, has done groundbreaking work on people’s trust in the law, finding that in dealing with the police and other legal authorities, people care less about the outcome of their cases and more about how they are treated. Those individuals who feel that they (or others they witness) have been treated fairly, he found, are more likely to obey the law. Tyler has discovered that people tend to value having a voice and being treated politely and respectfully when dealing with legal authorities. People also feel that they should be treated neutrally by authorities and that those authorities’ actions are grounded in an ethic of caring.

In more recent research, Tom Tyler and Jeffrey Fagan (of Columbia University) have found that young people equally value being treated fairly by legal authorities. It should be no surprise that researchers have also found that young Black men and women in particular have a low estimation of legal authorities, especially those who have had contact with the police; racial profiling is one example of a gross violation of procedural fairness. In particular, they found, young people’s estimations of the fairness of their treatment relates to their assessment of the legitimacy of the legal system in general. Those young people who found the legal system less legitimate tended to have higher reported rates of delinquency.

The magic of The Wire is that moral judgment can be expressed through the flicker of an eye, a small frown, a shrug, a turning of the shoulder, or through silence itself. The young people in The Wire constantly resist the power of authorities, but not necessarily because they are oppositional, troublesome or troubled. These kids, like many kids who confront the cops on a daily basis in American cities like Baltimore, may well be expressing a very real—and valid–emotional response to injustice that is rooted in grounded judgment, not pathology.

The usual response to young people in trouble with the law—to diagnose, classify, and incarcerate—leaves little room for developing an understanding of young people’s real needs, and ultimately, on the role that the state may play in preventing them from reaching those needs. Among those needs—we might even call it a right—is the opportunity for young people to be treated fairly at the hands of legal authorities, and, more importantly, the state itself.

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Resource

The following is testimony from the Children’s Rights Alliance for England and the National Society for the Prevention of Cruelty to Children opposing proposed changes to the rules on restraint in Secure Training Centres for young people in England.  The proposed changes would grant staff members a wider berth in using restraints against young people.  This testimony is a provocative indictment against the use of restraint against young people, and includes young people’s testimony about the dangers of restraint.

The Use of Restraint in Secure Training Centres

Do young people care about fairness?

This is the question that I have set out to explore, and to which I believe there is a resoundingly clear answer: yes. In the past couple of weeks, my ideas have been anchored by two opposing phenomenon that I want to explore more fully: the suppression of selfhood that takes place through the use of restraint and the budding of autonomy that takes place through creative programs, like the Music in Prison program that I’m researching right now. These poles create a tension I’m keen to unwind. In particular, I’d like to focus on what autonomy means for adolescents, and what the experience of suppression and expression of selfhood means to them.