Lexington Herald-Leader

June 13, 2008

Perils Seen for Juvenile Justice

Lack of Attorneys is Just One Worry

By Brandon Ortiz

bortiz@herald-leader.com

Anti-poverty groups are sounding the alarm on Kentucky's juvenile justice system, just a month before state public defenders plan to stop representing some kids who skip school, smoke or commit other offenses that aren't crimes for adults.

Black and other minority youths in Kentucky were four times more likely than their white peers in 2006 to be placed in a juvenile detention center instead of a diversion or probation program, according to the Annie E. Casey Foundation's 2008 Kids Count Data Book, which measures child well-being in all 50 states. The report was released Thursday.

Nationally, minorities are three times more likely to be placed in custody.

Kentucky has the second-highest percentage of kids in custody for so-called status offenses, which are offenses that are not crimes for adults, said Terry Brooks, executive director of Kentucky Youth Advocates, which helped compile information for the report.

Status offenders include truants, runaways and children beyond the control of their parents.

Locking up kids for status offenses is expensive and counterproductive, Brooks said. It does nothing to help the youths and it makes it more likely that they will commit crimes later in life.

"We know there is a direct pipeline from youth incarceration to adult imprisonment," Brooks said. "We're inventing a prison crisis."

The 2008 Kids Count says the nation's juvenile justice system urgently needs reform. The system has abandoned its original goal of rehabilitating youth in favor of a punitive approach that doesn't work and is costly, the report argues.

The report urged states to create more community-based programs to treat youths.

The report was released just weeks before the state public defender system plans to stop representing kids in juvenile court in 13 of its 29 offices, including Lexington's. That will only make problems worse, Brooks said.

Public defenders will ask judges to order the state to pay for private attorneys. It is unclear whether they can succeed with that demand.

"What I'm worried about is we're going to see status offenders in jail without any attorney at all," said Tim Arnold, the post-trial division director for the Department of Public Advocacy.

County-by-county numbers were not in the report. Brooks said that Kentucky Youth Advocates is collecting those numbers and plans to release a more detailed report on Kentucky this fall.

Of Kentucky juveniles in custody in 2006, 72 percent had been charged with non-violent offenses. That compares with 66 percent nationally.

There was one good sign in the numbers. Kentucky's violent crime rate for juveniles ages 10-17 was significantly lower than the national average. In 2005, the rate of Kentucky youths arrested for violent crimes was 202 per 100,000. The national rate was 283 per 100,000.

But a Fayette County prosecutor called Kentucky's detention rate for status offenders "disturbing."

"That is extremely surprising and equally disconcerting," said First Assistant Fayette County Attorney Brian Mattone.

Mattone said that Kentucky's racial disparity figures might be skewed by rural counties. His boss, Fayette County Attorney Larry Roberts, flatly said that Lexington's system does not have any racial disparities.

Assistant Fayette County Attorney Diane Minnifield, who handles juvenile cases, said diversion is offered for all juvenile misdemeanors. Status offenses are largely in the hands of the judge, she said.

Youths are not jailed per se for status offenses. Rather, they're placed in custody for contempt of court when they violate a court order to attend school or stop drinking, for example.

Minnifield said Fayette County's detention rate for status offenders increased with the advent of family courts in 2002.

Before family courts were created, district court judges heard all juvenile cases, from skipping school to serious offenses such as rape or burglary. Family court judges do not hear the more serious cases.

The result, Minnifield said, is that family court judges don't see the very worst kids and are quicker to jail kids for small offenses.

Judges need to work with the entire family to address juvenile behavior, she said.

"If you have a kid not going to school and his brother is breaking into cars, they need to be in front of the same judge," Minnifield said.

If a child doesn't want to go to school, putting him in detention isn't going to change his mind, Arnold said. Officials should address the root cause of why the child is not going to school, he said.

"I think everyone who has ever dealt with a teenager knows how ineffective it is to say, 'Stop it. Don't do it again or else,'" Arnold said.

Kentucky gives its judges far more power than other states to hold someone in contempt. Legislators have been afraid to regulate that power, he said.

Arnold thinks Kentucky judges frequently misuse their contempt power, and he says that's a major contributing factor for the state's high detention rates. He gave an example of a 500-pound child who was ordered by an Eastern Kentucky judge to lose weight. When the child couldn't lose weight, the judge ordered the child into custody.

Public defenders quickly filed a habeas corpus petition and blocked the judge from enforcing the order.

In another case, a judge ordered a child not to have any more excused absences.

"So if their arm is cut off, they still have to go to school," Arnold said.