Tales from the Gault: 10 of the Scariest Things about the Juvenile Legal System
by Kristina “KK” Kersey, Sr. Youth Defense Counsel
When I was in high school a group of friends and I went to track down “Hookerman” on some abandoned train tracks in Northwest New Jersey. The story was that a train conductor lost his hand taking mail bags off hooks at the train depot and his ghost walked the abandoned tracks looking for his lost hand.
I learned a few things that day: 1. Hookerman is real. 2. Despite what I tell my trainer, I am, in fact, very capable of sprinting. 3. Your friends are not ride or die, they are at best ride or “until we see an unexplainable green orb and are convinced you will die.”
Well, gather nigh, youth defense advocates and let me tell you some other truly terrifying tales from the vault, er, Tales from the Gault that will haunt you.
- Some states allow children to appear in court without an attorney. 1
That’s right. We have laws that prevent kids from gambling, vaping, smoking, working full time, driving cars, owning a gun, marrying, purchasing alcohol, and seeing a woman’s nipples, but to appear in an incredibly complicated court hearing requiring legal knowledge outside the keen of the average intelligent adult? Sure. The defense table is right up there, buddy.
- Courts saddle children with fines and fees even though they aren’t even old enough to get jobs. 2
Prior to reform in New Hampshire, for example, families were billed for every contact with the system, from diversion ($100-200 a case) to appeal ($2,000 a case) and everything in between, including interpreters ($40.07 per hour), counseling ($21.12-85.60 an hour), residential placement ($201.93-788.59 a day), inpatient psychiatric care ($27.20 a day), and incarceration ($27.20 a day).3
States charge families to incarcerate their children. What in the systemic racist capitalist hell is that?
- Children are regularly shackled, often indiscriminately.
As a youth defender, I once interviewed a client while he was sitting on his mom’s lap. The ridiculousness of the moment did not escape me. Most states do not have a minimum age of prosecution, which means that children of any age might be arrested and handcuffed. Even scarier is that in 2019-2020 we saw a 24 percent increase in police intervention with children in crisis who were being brought to a hospital for evaluation.
“Around 10 percent of these students in crisis were handcuffed, including numerous instances where children under the age of 13, including five, six, and seven-year-olds, were handcuffed before they were forcibly removed from a classroom for evaluation.”4
It isn’t only very young children or developmentally, emotionally, or cognitively different children who shouldn’t be handcuffed. Children who pose no risk to their safety or the safety of others are also indiscriminately shackled.5 And when I say shackled, I’m not talking just about handcuffs, there are leg irons, belly chains, leather waist belts to loop the manacles together and, in an image that harkens back to slavery, young Black children shackled to each other in a line during transport to and from court.
- Every state prosecutes children in adult court.
Every state has a mechanism by which youth may be tried as adults, yet no state has a provision that an adult can be tried as a youth. Well, of course not. That would be silly, you might say, because even if adults act very childish, they are still adults, and we can’t try and parse out which adults are acting so childish such that they would qualify to be tried as children! Right. Exactly. Soooooo how are we cool with trying youth “as adults”?
- In many courts across the country, there’s no specialization of or required training for youth defenders.
Ya know when someone calls you to ask your opinion because you are a lawyer . . . but it’s on tax law or employment or nuclear (which is a thing, my friend specializes in Nuclear Law) and you have no clue how to give them advice, so you tell them to call a tax lawyer, employment lawyer, or Jodi, my friend who does Nuclear Law? Like that, because if you aren’t trained and you don’t know what you’re doing, a child could go to jail.6
- The superpredator myth persists.
America still sees Black youth as more violent, more dangerous, and less deserving of an adolescence.
[E]ven as youth arrests and juvenile detention have gone down all across the country, disparities in the way we treat Black and White youth have held fast or continue to grow. Black youth were arrested at a rate 1.6 times that of White youth in 1980, 2.1 times that of White youth in 2008, and 2.6 times that of White youth in 2018 After arrest, Black youth are more likely to be detained, prosecuted, and punished more harshly—even when they are charged with similar offenses and have similar prior histories. Even when White youth do exceptionally violent things, we still treat them like children.
The Rage of Innocence: How America Criminalizes Black Youth, by Kristin Henning7 (a.k.a. required reading for every youth defense advocate)
- Children are sent to for-profit detention centers.
As of 2018, 40 percent of residential detention facilities in the U.S. were private, housing 27 percent of youth.8
Which makes it even harder to find out about all the nefarious things that are going on there. Like the murder of 16-year-old Cornelius Frederick during a restraint in the cafeteria at Lakeside Academy in Michigan for throwing a sandwich.9
- We don’t give a fig about a child’s education needs if they are accused of a crime.
At least one in three youth in the juvenile legal system has a disability qualifying them for special education services under the Individuals with Disabilities Education Act (IDEA)—nearly four times the rate of youth in public schools. Less than half receive special education services while in custody.10
- Miller himself, like many children in Miller resentencing hearings, was resentenced to die in prison. 11
That’s right, Evan Miller, who at 14 was the youngest person sentenced to life in prison without the possibility of parole in Alabama, and the one whose case we cite to in our pleas to free our own clients, was resentenced to LWOP.
- We still don’t know what we don’t know.
Data is unavailable and stale and not collected and fudged. What’s worse is when it is ignored.
We have a lot of work to do, family. So dress up like a sexy or a scary youth defense advocate for Halloween and egg the patriarchy.
1 Nat’l. Juv. Def. Ctr. Defend Children (2016), http://defendyouthrights.org/wp-content/uploads/2016/11/Defend-Children-A-Blueprint-for- Effective-Juvenile-Defender-Services.pdf.
2 Our friends at Juvenile Law Center started a national campaign on this very topic: https://debtfreejustice.org/.
3 Nat’l Juv. Def. Ctr., Undervalued: An Assessment of Access to and Quality of Counsel in New Hampshire 58-59 (2020), http://defendyouthrights.org/wp-content/uploads/NewHampshire-Assessment-Web.pdf.
4 Zac Ntim, Children as Young as 5 Years Old are Being Handcuffed and Removed from New York’s Schools by Police, Insider, June 5, 2021, https://www.businessinsider.com/children-young-as-five-handcuffed-and-removed-from-nyc-schools-2021-6.
5 Nat’l Juv. Def. Ctr., Campaign Against Indiscriminate Juvenile Shackling fact sheet (2016), http://defendyouthrights.org/wp-content/
6 Bernard Snell, Statement of Interest of the United States: N.P. et al v. State of Ga., et al, (2015), http://defendyouthrights.org/wp- content/uploads/2015/03/DOJ-Statement-of-Interest-in-NP-v-State-of-Georgia-Filed-Copy.pdf.
7 The Rage of Innocence: How America Criminalizes Black Youth, available at: https://www.penguinrandomhouse.com/ books/623467/the-rage-of-innocence-by-kristin-henning/, xvi (internal citations omitted).
9 Franco LaTona & Jos Fox, ‘I Can’t Breathe’: Hidden Abuse in Some Private Detention Centers, News 21: Kids Imprisoned, August 21, 2020, https://kidsimprisoned.news21.com/for-profit-juvenile-detention-centers/.
10 Children’s Def. Fund, The State of America’s Children 2021 (2021), https://www.childrensdefense.org/wp-content/ uploads/2021/04/The-State-of-Americas-Children-2021.pdf.
11 Jones v. Mississippi, 593 U.S. (2021) ; Kent Faulk, Evan Miller, Youngest Person Ever Sentenced to Life Without Parole in Alabama, Must Remain in Prison, Al.com, Apr. 27, 2021, https://www.al.com/news/2021/04/evan-miller-youngest-child-ever- sentenced-to-life-without-parole-in-alabama-must-remain-in-prison.html.