by Kristina “KK” Kersey, Sr. Youth Defense Counsel

This is not a drill. May 15 is Gault Day! Mark your calendars.

Passover brings matzah, the Eid new clothes, Christmas brings my father commiserating with Ebenezer Scrooge while watching A Christmas Carol. Each holiday has a tradition! The Gaultiversary deserves no less.

But how does one celebrate the seminal case that contained such bangers as: “So wide a gulf between the State’s treatment of the adult and of the child requires a bridge sturdier than mere verbiage, and reasons more persuasive than cliché can provide.”¹

Much like wedding anniversaries, each year fighting for youth rights means a traditional gift for the defender. Twenty years in youth defense, like myself, means you buy yourself china. Side note: Can you microwave Kraft Easy Mac on china? Asking for a friend.

I am firmly in the “pro” column for any excuse to celebrate, so let’s party like it’s 1967. (I mean, not really. There was no Kraft Easy Mac in 1967).

1. Take a boxing class!

You need to stay fit to lug those files up to court. Plus, you never know when you’ll have to defend yourself in a kangaroo court.

“Under our Constitution, the condition of being a boy does not justify a kangaroo court.”²

2. Change the batteries in your flashlights.

You never know when the guiding hand of counsel might need guidance.

“The child ‘requires the guiding hand of counsel at every step in the proceedings against him.’”³

3. Buy yourself an ice cream sundae . . . with the “ripest cherries”! Or the “biggest bombers.”

This is why you need confrontation of witnesses . . . and Lost to the annals of time are the contents of that lewd phone call.

4. Rock your swag.

Organizations, nonprofits, and government agencies deserve funding increases and salary increases expressly for youth defense. We are a movement of our own and not a subset of adult defense. And people need to be reminded. Kiddie court? Please see Number One, sir/madame. I just boxed a kangaroo.

5. Prank call a prosecutor.

Ask them if their fridge is running and tell them to go get it. I’m kiddddding. But you just considered it. SMH

6. Get proximate with your clients.

Plan a Know Your Rights seminar, speak at a career day, offer to volunteer at the detention center. I’ve met defenders who taught yoga, led dance classes, ran a woodshop class, and coached moot court teams. Don’t just drive through the community to get to your office.

7. Pay it forward, and pay it back, and pay it sideways.

Reach out to your local law school or undergrad, particularly HBCUs, and affinity bar groups. Mentor upcoming defenders. Reach out to the person who inspires you to be a more zealous defender and take them to lunch.

8. Remember why you became a youth defender.

Because you wanted to light your hair on fire and burn down the patriarchy? Yes! Because you answered a job posting advertised in the Sixth Amendment of the United States Constitution? Yes! Because your report card in elementary school always said, “KK should talk less and stop distracting others during class”? Yes!

As defenders, we represent people and not policies, but while we are here, no reason why we can’t just go ahead and try to disrupt the whole inequitable, rigged system. Our new publication, Cause of Action, will give you a blueprint on how to do it. After reading the draft, my fabulous coworker HyeJi Kim had me convinced I could change the world.

9. Don’t stop learning (and believing and thinking about tomorrow and get it, get it).

Sign up for the Racial Justice Toolkit, schedule a training, join your local Gault Regional Center. And encourage others to do the same. I sincerely hope that counsel in Gault showed up at the Arizona courthouse with the SCOTUS opinion in hand and channeled their inner Good Will Hunting and asked how the Arizona court liked them apples. (Which would have been confusing because Good Will Hunting hadn’t been released in 1967.)

10.  Really, just take a bike ride or head to brunch or get your nails done. Or bring bagels to the office. (But only if they are from New Jersey. Other bagels are trash.)

Because you can’t defend from an empty (coffee) cup.

And share a photo of you celebrating your Gaultiversary with #defendyouth @GaultCenter on your social media platforms of choice.

¹ 387 U.S. 1 at 29-30.

² 387 U.S. 1 at 28.

³ 387 U.S. 1 at 36.

by Kristina “KK” Kersey, Sr. Youth Defense Counsel

How excited am I that we have our first Black female Supreme Court Justice who is a public defender? (Once a public defender, always a public defender; it’s blood in, blood out.) Very!

But not more than Senator Cory Booker. No one was more excited than Senator Booker.

However, when Justice Brown Jackson wasn’t receiving cartoon heart-shaped googly eyes from Sen. Booker, she was being peppered with, “How can you represent those (::swallows::) people?” (Read: protect a constitutionally mandated right to counsel.) I felt like she was “smizing” right at me, personally, through the camera, as we shared a collective “Pffffft” with the defense community around the nation.

Ted Cruz noted that “public defenders often have a natural inclination in the direction of the criminal.” That our hearts are with the criminals. And, criminal lovers, it’s time that we recognize this.

So, as the Delilah or Casey Kasem for defenders everywhere, I’m sending these top 10 love songs out . . . *dramatic pause* . . . to the “criminals.”

1. Take My Breath Away, Berlin. This beautiful tribute to the moment when a judge, fully prepared to rule against you, begins to embrace your race equity and adolescent development arguments. It’s hotter than the volleyball scene in Top Gun.

2. Sweet Child O’ Mine, Guns N’ Roses. Reminds us that eyewitness IDs are frequently unreliable, and we should test them whenever prudent. Can you describe the person, Axl? She’s got eyes of the bluest skies, and her hair reminds me of a warm safe place. Thank you. No further questions.

3. Our Lips Are Sealed, The Go-Go’s extol their adoration of 5th Amendment rights in this pop classic.

4. Is It a Crime? Sade’s ode to motions to dismiss in the interest of justice is often mistakenly thought to be about love.

5. I’ll Be Loving You (Forever), New Kids On The Block urges us all to commit to post-dispo representation. How long am I your attorney? Just as long as you want me to be. ::swoon::

6. Got To Get You Into My Life, The Beatles. Paul wrote this love song to marijuana. It’s true. Google it.

7. Let’s Stay Together, Al Green. I don’t know how Al knew back in 1972 about the harms of virtual hearings where youth are separated from their attorneys, but he couldn’t be more right.

8. Ain’t No Mountain High Enough, Marvin Gaye & Tammi Terrell. If you need me, call me, but also can we normalize public defenders taking vacations and recharging and not burning out? Okay? Great. Thanks, bye.

9. (Everything I Do) I Do It for You, Bryan Adams. This slow jam is about the dance youth defenders do, engaging parents and guardians while remaining fierce, expressed-interest, zealous, client-driven advocates. That takes way more skill than when Robin Hood splits the arrow of his opponent to win the tournament.

10. Dreaming of You, Selena. Late at night when all the world is sleeping, I stay up and think of you. Selena really captures that truly blissful, deep REM slumber that you get the night before a big case.

And this last one goes out to all my youth defenders out there. From me, to you:

Crazy Little Thing Called Love, Queen. For you who remain ready (Ready, Freddy!) to do every crazy little thing in defense of children.

by Kristina “KK” Kersey, Sr. Youth Defense Counsel

Christmas songs are weird. Between people demanding figgy pudding and refusing to leave until they get some, to the wildly problematic Baby, It’s Cold Outside. (This maiden aunt’s mind is, indeed, vicious, but it’s because of your inability to understand consent.)

Is it the public defender in me that doesn’t like to throw around the image of conspiring by a fire? (Sherika was today years old when she learned it was “conspire” and not “perspire.”) And I feel for the mom in I Saw Mommy Kissing Santa Claus, caught between being accused of infidelity and announcing Santa isn’t real. Like, let this mom live.

However, nothing is as confusing as the poor recipient of a foul number of fowl in The Twelve Days of Christmas. Your true love brought you seven swans, six geese, four calling birds, three French hens, two turtle doves and a partridge? Weird flex, but ok. Well, our dear defenders, just in time for the holidays, NJDC The Gault Center is delivering The Twelve Days of Yuletide Youth-Tide.

On the first day of winter solstice, the Gault Center gave to me, a virtual Summit that was COVID and variant free!

On the second day of Feliz Navidad, the Gault Center gave to me, two Ambassadors for Racial Justice cohorts and a virtual Summit that was COVID and variant free!  

On the third day of Happy New Year, the Gault Center gave to me, three state indiscriminate shackling reforms,[i] two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!  

On the fourth day of Christmas, the Gault Center gave to me, four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the fifth day of Festivus, the Gault Center gave to me, fiiiiiiiiiiive new listservvvvsss[ii] . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the sixth day of Kwanzaa, the Gault Center gave to me, six JTIP Train the Trainer certifications,[iii] fiiiiiiiiiiive new listservvvvsss . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the seventh day of Happy BDay Jesus, the Gault Center gave to me, seven new publications,[iv] six JTIP Train the Trainer certifications, fiiiiiiiiiiive new listservvvvsss . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the eighth day of Hanukkah, the Gault Center gave to me, eight judges for our inaugural Judicial Racial Justice Network, seven new publications, six JTIP Train the Trainer certifications, fiiiiiiiiiiive new listservvvvsss . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the ninth day of Happy Holidays, the Gault Center gave to me, nine badass regional centers, eight judges for our inaugural Judicial Racial Justice Network, seven new publications, six JTIP Train the Trainer certifications, fiiiiiiiiiiive new listservvvvsss . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the tenth day of Season’s Greetings, the Gault Center gave to me, ten things I kinda maybe don’t hate about Jones, nine badass regional centers, eight judges for our inaugural Judicial Racial Justice Network, seven new publications, six JTIP Train the Trainer certifications, fiiiiiiiiiiive new listservvvvsss . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the eleventh day of Mele Kalikimaka, the Gault Center gave to me, eleven Amicus Curiae, ten things I kinda maybe don’t hate about Jones, nine badass regional centers, eight judges for our inaugural Judicial Racial Justice Network, seven new publications, six JTIP Train the Trainer certifications, fiiiiiiiiiiive new listservvvvsss. . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual Summit that was COVID and variant free!

On the twelfth day of OhPleaseNotAnotherVariantIn2022, the Gault Center gave to me, twelve rescue animals,[v] eleven Amicus Curiae, ten things I kinda maybe don’t hate about Jones, nine badass regional centers, eight judges for our inaugural Judicial Racial Justice Network, seven new publications, six JTIP Train the Trainer certifications, fiiiiiiiiiiive new listservvvvsss . . . four new Gault team members, three state indiscriminate shackling reforms, two Ambassadors for Racial Justice cohorts, and a virtual summit that was COVID and variant free!

Phew! It’s been quite a year, faithful friends who are dear to us, [who will] gather near to us once more. Someday soon, we all will be together, if the Fates allow. (Seriously, who says that?) Until then, we’ll have to muddle through somehow. So, have yourself a merry little new year and whatever else you are celebrating now.

[i] Jodi S. Cohen, Michigan Supreme Court Limits Use of Restraints on Juveniles, ProPublica, (Jul. 29, 2021, 9:08 AM), https://www.metrotimes.com/news-hits/archives/2021/07/29/michigan-supreme-court-limits-use-of-restraints-on-juveniles; Liz Sawyer, Minnesota Lawmakers Could End Routine Shackling of Children in Court, StarTribune, (Jun. 20, 2021, 5:16 PM), https://www.startribune.com/minnesota-lawmakers-could-end-routine-shackling-of-children-in-court/600070297/; Gretchen Schuldt, Judges Ask High Court to Limit Judicial Shackling, Urban Milwaukee, (Sept. 20, 2021, 8:20 PM), https://urbanmilwaukee.com/2021/09/20/court-watch-judges-ask-high-court-to-limit-judicial-shackling/.

[ii] Arj2021, Arj, Njjuvdefend, JRJN, and YouthDefenseSocialWorkers.

[iii] Texas, Wisconsin, Maryland, South Carolina, Multi-Region, and ARJ.

[iv] Have a Juvenile Record? Plan for your Future! A Guide to Consequences of a Juvenile Record in Massachusetts, Nat’l Juv. Def. Ctr., (2021); Have a Juvenile Record? Plan for your Future! A Guide to Consequences of a Juvenile Record in Texas, Nat’l Juv. Def. Ctr., (2021); Due Process in the Time of COVID-19 Nat’l Juv. Def. Ctr., (2021); Futures in the Balance Nat’l Juv. Def. Ctr. et al., (2021); Joint Statement on the Importance of Specialization of Judges, Prosecutors, and Defenders in Juvenile Delinquency Proceedings Fair & Just Prosecution, Nat’l Council of Juv. & Fam. Ct. Judges & Nat’l Juv. Def. Ctr. (2021); Seeing What’s Underneath: A Resource for Understanding Behavior & Using Language in Juvenile Court Fair & Just Prosecution, Geo. L. Juv. Just. Initiative, Nat’l Juv. Def. Ctr. & Nat’l Council of Juv. & Fam. Ct. Judges, (2021); Juvenile Defender Resource Guide, Nat’l Juv. Def. Ctr, (2021).

[v] Cosmo Scali, Biggie Smalls Kersey, Weaver Gilbert, Twist Shnider, and Chili, Titus, Mika, Mookie, Kipper, Mullowney, Franklin, and Pepper Borror.

by Kristina “KK” Kersey, Sr. Youth Defense Counsel

Several Thanksgivings ago, perhaps fueled by too many Hallmark movies, I suggested we go around the table and say what we were thankful for. I was feeling misty-eyed, Norman Rockwell, The Best Man Thanksgiving vibes until we got to my four-year-old nephew, who asked if I was thankful my dog had died. Now first, my dog had not, in fact, died and second, I’m sorry, what?!

Regardless of Thanksgiving’s violent and complicated history and your family’s earnest attempts at continuing that trend, I will still use this opportunity to talk about what I am grateful for as a youth defender.

1. My new dog is very much alive. The silver lining of lockdown was that many of us added four-legged friends to our families. Mine was a chihuahua/min pin mix with a broken back. He now rules the dog park and jumps onto my chair to appear on Zoom. In the immortal words of Mike “The Situation” Sorrentino from Jersey Shore, the comeback is always greater than the setback, and having Biggie as co-counsel is pretty sweet.

2. Defenders are essential and creative. No one banged pots for us in appreciation, but defenders showed up during this pandemic, pushing for youth to be released from detention centers, residential placements, and prisons. We demanded that liberation keep happening, with many of us risking our own mental and physical health to ensure that it did.

3. That one supervisor that says, “go for it.” File that motion, retain that expert, try that theory, start that practice. State budgets and public defense budgets aren’t always flush, but it’s great when you have a leader who leads.

4. A truly outstanding trial partner. Mine went into labor and we rode by ambulance to the hospital when her water broke right before the judge came out to call the list. Also, the one who came to pick me up from the hospital when I realized I had left my keys and wallet in the courtroom.

5. That place you grab lunch or coffee that knows your order. Over the years, our local haunts in Newark changed, but it’s comforting that with the chaos of a court day, someone remembers that you like your sandwich roll scooped or saves you the last oatmeal chocolate chip cookie or warns you if the tuna isn’t fresh.

6. Our clients. The one who gives you attitude but then grows to respect you. The one who teaches you new slang, a new perspective, or a lesson. The one who lets you know, although they don’t owe you access to their personal life, at some future date, how well they are doing. It is humbling to be a youth defender.

7. That one outlandish attorney for whom you have a nickname. My one regret is that I left the front lines before becoming older and more eccentric. There was one attorney who wore a bolo tie, which would have been cool if he were in the Southwest or Bruce Springsteen in the mid-80s, but alas, he was neither. Honorable mention to counsel who appeared in a velour tracksuit.

8. When something really ridiculous happens in court and you just can’t hold it in. My favorite SNL skits are the ones where the cast breaks character and laughs. Court is important, serious, life-changing stuff; however, once in a while, humanity creeps in. Like when I inadvertently opened Spotify while putting my hand in my pocket. It took a few seconds longer than I’d like to admit to realize I was the one blasting Jody Watley. I’m looking for a new love, baby, yeah yeah yeah.

9. When you feel seen. I joked that 2020 was a good year for youth defenders, from all the Netflix docs to Kim Kardashian, Paris Hilton, and everyone on my social media feed realizing how badass youth defenders are.

10. When you realize that it takes a village . . . and you found your village. I joined the all-star, badass, all-woman powerhouse that is NJDC. Like the Wizardesses of Oz. Pay no attention to that woman behind the curtain, we are the great and powerful soon-to-be Gault Center.

Please @njdc for what you are thankful for as a youth defender.

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.

1. 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.

2. 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?

3. 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.

4. 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”?

5. 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

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)

7. 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

8. 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

9. 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.

10. 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), https://www.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), https://www.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), https://www.defendyouthrights.org/wp-content/

uploads/2016/03/CAIJS_Shackling-and-Courtroom-Safety-3.4.16.pdf.

⁶ Bernard Snell, Statement of Interest of the United States: N.P. et al v. State of Ga., et al, (2015), https://www.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).

⁸ https://www.ojjdp.gov/ojstatbb/corrections/qa08502.asp?qaDate=2018

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.

by Kristina “KK” Kersey, Sr. Youth Defense Counsel

Some people collect shot glasses or magnets from their travels. Me, I collect enviable local youth defense jurisprudence.

*Due to Covid restrictions, these states were visited via Zoom.

1. Washington

Despite what my research—reading Twilight (Team Jacob)—led me to expect, my trip to Washington was devoid of both vampires and werewolves. It was, however, rich in beauty: the giant evergreen trees, the fog over Puget Sound, the caffeine. But nothing as gorgeous as the state’s deposition rule.[1] While talking trial prep with seasoned Washington youth defenders, they casually mentioned depositions in youth trials. Suffice to say, I was jealous.

2. *Alaska

Geographically the largest and the most sparsely populated, Alaska could easily raise opposition to the right to physical presence of youth in court. I mean, they are taking planes to court. Is that Russia I see in the distance? No, it’s the Northern Lights of Justice, highlighting the Alaska Court Rule that requires the right to physical presence.[2] As we emerge from the pandemic, I do not want to hear some tiny state preaching judicial economy. If Alaska can do it, so can you, Rhode Island.

3. Vermont

Well, call Bernie, knit me a pair of gloves, and seat me at the Inauguration, because I. am.here.for.it. You’ve read the research: brains are mushy until at least age 25. Vermont expanded their juvenile court jurisdiction up to age 19 in 2020 and will raise it to age 20 effective July 1, 2022.[3] Of course, this comes with some ifs and buts attached, but still a good sign states are starting to listen to what research has been screaming at us. Green Mountain State, I am green with envy.

4. *Kansas

Kansas has the right to jury trials for youth. The Sixth Amendment promises a jury of your peers;[4] J.D.B. established the reasonable child standard.[5] Could Kansas establish trials for youth by youth? If sophomore-year English class with Lord of the Flies taught me anything, it’s that: 1. Conch shells are incredibly important and 2. Perhaps autonomous decision-making by children isn’t a laudable goal. However, I also saw The Breakfast Club, and I would hope that after an afternoon in youth jury deliberation, we would all learn that each of us is a princess, a jock, an outcast . . . . until then, I will be pumping one fist in the air for Kansas for jury trials in juvenile court.

5. Maryland

Maryland defenders are developing and piloting a specialized certification program for youth defenders,[6] and just like Old Bay Seasoning, it’s unique, spicy, and distinctly Maryland. However, unlike Old Bay Seasoning, I love it. Love the idea. Love the concept. Love specialized youth defenders.

6. *Illinois

When I was little, my mom frequently made meatloaf. It was the 80s, and I’m sure I’m not the only one with this childhood memory. However, I hate hate hate meatloaf. So on days when my mom made meatloaf for the rest of my family, she would make me a separate dinner of Kersey Burgers. Now, Kersey Burgers were delish. And I was embarrassingly old when it was revealed to me that Kersey Burgers were just patties of meatloaf.

Readers, sometimes it’s okay to lie to children. Oftentimes it is not. Like when you have them in custody and want to put them in jail. Youth lie to police, it’s potential obstruction or false swearing charges. Police lie to youth, it’s sound police investigation using the Reid technique.[7] But Illinois is serving something different, and it ain’t meatloaf. Illinois has become the first state to prohibit police from lying to children during interrogation.[8] Kersey Burgers for everyone!

7. *Massachusetts

The UN has called for nations to adopt a minimum age of prosecution of at least 14, and North Carolina is currently set at six. So there may be no Santa Claus in North Carolina, but Massachusetts is on my nice list for setting the minimum age of prosecution at 12.[9] Better yet, they are at the top of the list for setting this standard without any loopholes or exceptions!

8. *California

Defenders at interrogation for all children under 18.[10] Boom. That is a game changer. Like Sandy-at-the-end-of-Grease-in-shiny-black-pants game changer. “Tell me about it, stud.” Actually, don’t. Because you have the right to remain silent.

9. New Jersey

I’m feeling the high of marijuana decriminalization for youth, and I have a hankering for Taylor ham, egg, and cheese. (South Jerseyans, do not start with the whole it’s called pork roll. This is a professional piece, not an Eagles game, and I don’t want to fight with you.)

New Jersey goes further than any other state to protect youth from MJ juvenile court involvement, even adding a provision to forbid police from telling parents about the first time a kid is caught smoking weed. That lasted for 31 whole days before every parent in the state called Trenton and demanded it be removed.[11] HOWEVER, the new New Jersey laws are clear that the smell of MJ by itself does not establish reasonable suspicion to stop or probable cause to conduct a search for possession, including low-level intent to distribute.[12] Say goodbye to the “odor of raw and burnt green vegetative substance” police reports!

10. *Wisconsin

Ever since T-Pain rhymed mansion with Wisconsin, I’ve wanted to visit America’s Dairyland. And Madison and La Crosse are cream of the crop (see what I did there?) when it comes to defunding police in schools and re-funding restorative justice and social work. These conversations aren’t easy, but conducting a district evaluation of the SRO program and recognizing that “markers of the school-to-prison pipeline” existed in their schools and that it was disproportionately impacting students of color[13] is a pretty amazing start.

Disclaimer: I know there are other states with similar provisions that were not mentioned. This list is limited to states I’ve visited. Hopefully, NJDC will be coming to your state soon.

[1] Wash. CRR. 4.6.

[2] Alaska Delinquency R. 3(b), (e). See also Alaska Stat. Ann. § 47.12.110 (West).

[3] Vt. Stat. Ann. tit §33 5201(d). See also Act 201 (S.234) https://legislature.vermont.gov/Documents/2018/Docs/ACTS/ACT201/ACT201%20As%20Enacted.pdf.

[4] Kan. Stat. Ann. § 38-2357(a)(1) (West).

[5] J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).

[6] Award # 2018-ZE-FX-0001, Department of Justice Appropriations Act (2018) Pub. L. No. 115Â141, 132 Stat. 348, 423, https://ojjdp.ojp.gov/funding/awards/2018-ze-fx-0001.

[7] John E. Reid & Assoc., https://reid.com/about.

[8] 2021 Bill Text IL S.B. 2122.

[9] Mass. Gen. Laws Ann. ch. 119, § 52 (West). See also Minimum Age for Delinquency Adjudication—Multi-Jurisdiction Survey, Nat’l Juvenile Def. Ctr. (2021), https://www.defendyouthrights.org/practice-policy-resources/state-profiles/multi-jurisdiction-data/minimum-age-for-delinquency-adjudication-multi-jurisdiction-survey/.

[10] Cal. Welf. & Inst. Code § 625.6 (West).

[11] 2020 Bill Text NJ S.B. 3565. See also N.J. Stat. § 2C:33-15 (1)(a).

[12] N.J. Stat. § 2C:33-15 (2)-(3).

[13] Sarah Schwartz, Stephen Sawchuk, Eesha Pendharkar, & Ileana Najarro, These Districts Defunded Their School Police. What Happened Next?, EducationWeek: School Climate & Safety (June 4, 2021), https://www.edweek.org/leadership/these-districts-defunded-their-school-police-what-happened-next/2021/06.

by Kristina “KK” Kersey, Sr. Youth Defense Counsel

When I first read Jones,² I said a bad word. Now, this isn’t what we in the biz would call aberrant behavior, as I am from New Jersey. However, really, Kavanaugh?!

It is hard to accept any perceived step back when we still have so much more to accomplish in the sphere of youth defense. To make myself feel better, I compiled a list of ten reasons why Jones isn’t so bad.

Read: It is so bad and sometimes I read it backwards to pretend that Justice Kween Sotomayor’s dissent is the opinion.

1.  It doesn’t disturb Miller or Montgomery.

So, there is that. We still have that rock solid foundation to build on. And such delicious language from these cases and their progeny to cite from:

First, children have a “lack of maturity and an underdeveloped sense of responsibility,” leading to recklessness, impulsivity, and heedless risk-taking. Second, children “are more vulnerable to negative influences and outside pressures,” including from their family and peers; they have limited “control over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievable depravity.”³

I feel like someone else said that? Oh, right, defenders did. Every day. In juvenile delinquency court.

2.  It allows states to provide additional limits.

I know, know, but as a proud New Jerseyan (Bruuuuuuuce), I implore you to read Zuber,⁴ which expands Miller into functional LWOP sentences, and from Washington, In the Matter of the Personal Restraint of Monschke,⁵ which applies the state constitution to expand Miller’s prohibition of mandatory LWOP sentences from age 18 to age 21.

And these cases aren’t outliers. In addition to the Garden State and the Evergreen State, 23 other aptly nicknamed states and the District of Columbia (which should be a state, but more on that later) have eliminated JLWOP.⁶

3. “Permanently incorrigible” stinks and is a red herring.

Permanent?! At 15? At 15, I wore Hammer’s baggy pants, which made me look like I had a soggy diaper.

All this to say, people are capable of change. Just like you rolled your eyes at number 2, I posit whether our path forward in youth justice should be reliant on a judge who heard all the gory details of a trial to not find a youth permanently incorrigible. Especially given what we know about implicit (and explicit) racial bias and structural racism.

The harm from these sentences will not fall equally. The racial disparities in juvenile LWOP sentencing are stark: 70 percent of all youths sentenced to LWOP are children of color. The trend has worsened since Miller v. Alabama: 72 percent of children sentenced to LWOP after Miller were Black, compared to 61 percent of children sentenced before Miller.

Justice Sotomayor, dissenting.⁷

Preach, Kween.

To poke at the herring even further, incorrigible?! We chose a standard that is inconsistent with the science that brought us here. Graham emphasizes this exact point when citing from Workman V. Commonwealth: “Incorrigibility is inconsistent with youth.”

How can we label a youth as “incapable of being corrected,” “not manageable,” or, if you really want to scream, “bad beyond correction or reform?” The standard says more about our incapability—better said, our unwillingness—to help those deemed “incorrigible” than it says about any youth facing this standard.

4. Making youth a mitigating factor as opposed to a criteria requiring a finding of fact regarding incorrigibility leaves the door open for more aggressive and creative arguments, including developmental age as opposed to chronological age.⁸

In fact, we might argue permanent incorrigibility is inconsistent with the concept of adolescent brain development. Period.

A child’s age is far “more than a chronological fact.”⁹ It is a fact that “generates commonsense conclusions about behavior and perception.”¹⁰ Such conclusions “apply broadly to children as a class.”¹¹

5. The need for objective criteria and national consensus in favor of criterion would restrain progressive states from being change agents and shackle us to those resistant to wholly embracing adolescent brain science.

I’m looking at you, Arizona.

6. Youth as a mitigating factor allows for wide discretion as to weight and is given wide latitude of discretion as opposed to factual findings underpinning a decision on criteria.

Miller cited Roper and Graham for a simple proposition: Youth matters in sentencing. Therefore, we can be greedy about how much it matters. And if successful in convincing our judge, the decision is unlikely to be disturbed.

Even when state law requires a sentencer to supply reasons, many States do not impose a formulaic checklist of topics or a magic-words requirement with respect to particular mitigating circumstances. And appellate courts do not necessarily reverse merely because the sentencer could have said more about mitigating circumstances.¹²

7. We can use Jones as a springboard for social workers and mitigation specialists.

Buried in a footnote is the assertion that “in that highly unlikely scenario, the defendant may have a potential ineffective-assistance-of-counsel claim, not a Miller claim—just as defense counsel’s failure to raise relevant mitigating circumstances in a death penalty sentencing proceeding can constitute a potential ineffective-assistance-of-counsel problem, not a Woodson/Lockett/Eddings violation.”¹³

8. It reminds everyone that even the most conservative Justices agreed that you cannot ignore age when sentencing a youth.

Like, allllll the conservative Justices.

9. The Court leaves open the possibility of an “as-applied Eighth Amendment claim of disproportionality.”

(“A State is not required to guarantee eventual freedom,” but must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”) By making youth (and all that accompanies it) irrelevant to imposition of that  harshest  prison  sentence,  such  a  scheme  poses  too  great  a  risk of disproportionate punishment.¹⁴

10.  We are finally starting to talk about ACEs (adverse childhood experiences) and trauma in relation to violent offenses committed by youth.

Even if it appears in a footnote . . . in the dissent. “[E]levated adversity scores are as common among killers as they are rare in the general adolescent population.”¹⁵

If all else fails, scroll to the dissent, pour yourself a glass of McBride Sisters’ Black Girl Magic Rosé, and remind yourself that you are 2Legit 2Quit.

² Jones v. Mississippi, 141 S. Ct. 1307, 1334, 209 L. Ed. 2d 390 (2021).¹ Huge thanks to Dara Giannantonio, NJDC Summer 2021 law clerk, for her help tracking down all the cases cited in this piece.

³ Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2458 (quoting Roper, 543 U.S., at 569, 125 S.Ct. 1183; alterations, citations, and some internal quotation marks omitted).

⁴ State v. Zuber, 227 N.J. 422, 152 A.3d 197 (2017).

⁵ 197 Wash. 2d 305, 482 P.3d 276 (2021).

⁶ Josh Rovner, Juvenile Life Without Parole: An Overview, THE SENTENCING PROJECT (May 24, 2021), https://www.sentencingproject.org/publications/juvenile-life-without-parole/.

⁷ Jones at 1334, internal citations omitted.

⁸ See State in Int. of Z.S., 464 N.J. Super. 507, 237 A.3d 344 (App. Div. 2020).

⁹ Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); accord, Gall v. United States, 552 U.S.

38, 58, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Roper v. Simmons, 543 U.S. 551, 569, 125 S.Ct. 1183, 161 L.Ed.2d 1

(2005); Johnson v. Texas, 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).

¹⁰ Alvarado, 541 U.S., at 674, 124 S.Ct. 2140 (BREYER, J., dissenting).

¹¹ J.D.B. v. North Carolina, 564 U.S. 261, 272, 131 S. Ct. 2394, 2403, 180 L. Ed. 2d 310 (2011).

¹² Jones at 1321.

¹³ Cf. Wiggins v. Smith, 539 U. S. 510, 533–538 (2003) (counsel in capital case was ineffective for failing to investigate and present mitigating evidence at sentencing).

¹⁴ Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 2469.

¹⁵ Jones at 1341.