Juvienation

An editorial in today’s Times offers strong support for the “comprehensive approach” to juvenile justice reform that informs the Senate’s JJDPA reauthorization bill (background here). “This bill represents an important step toward rational and compassionate justice for troubled children,” the editorial states. But it’s not perfect. As Congress considers reforming the juv justice system, legislators “ought to bar the states from housing children in adult jails, except for the most heinous crimes. Sadly, the updated version of the law…falls short of that goal.”

Juvienation is now registered in the blawg.com directory, in the “Family Law” subsection of the “Legal Subjects and Areas” section. Lots of good company in there–check it out.

Last Sunday George Will, the bowtie-wearing dean of conservative punditry, published an op-ed in the Washington Post called “More Prisons, Less Crime.” In the piece Will gave prominent attention to his colleagues and fellow travelers Heather Macdonald and James Q. Wilson, citing at length their contention that the record-high level of incarceration in the United States has been beneficial. “For many reasons, including better policing and more incarceration, Americans feel, and are, safer,” he wrote. It was a scattered argument without much substance, but what was most disturbing was the mendacious cherry-picking of data to support the ideological thrust of his argument–which rationalizes increased incarceration and totally dismisses the strong taint of racism in current sentencing policy. Now the Sentencing Project has responded with a welcome corrective, “Do More Prisoners Equal Less Crime?” which dismantles Will’s column point by point to advance a more reality-based take on the relationship between incarceration and crime rates, and on the racist underpinnings of the bloated American prison system.

Why did Barack Obama disagree with the Supreme Court’s decision in Kennedy v. Louisiana? “I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama said at a news conference yesterday in response to the Justices’ 5-4 decision to ban the death penalty for child rapists. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable that that does not violate our Constitution.” The Court could have left room for exceptions in egregious cases, he explained, “but it basically had a blanket prohibition, and I disagree with the decision.”

This from a guy who wrote in his memoir that the death penalty “does little to deter crime,” who as a State Senator helped tighten up Illinois’s approach to capital punishment in an attempt to prevent the state from sending innocent people to die (he served as a legislator under Governor Jim Ryan, who eventually imposed a moratorium when he learned that innocent people in fact were dying), and who opposed a bill that would have permitted the death penalty for gang-related murders.

Obama is no abolitionist; he has long held that the death penalty is appropriate in a small number of extraordinary cases. So, fair enough, he’s staying true to his principles. But surely as a candidate he could have seized the opportunity to validate his Democratic base by commending the Court for its prudent judgment. It wouldn’t have been a stretch for him to agree with Justice Anthony Kennedy, who wrote for the majority that there is “a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons,” and that the latter, albeit devastating and horrid, does not pass the “egregious” test.

So what’s going on here? My best guess: Obama is brandishing his credentials as a “tough guy” Democrat and protecting himself from Swiftboat-style attacks against him as a “soft on crime,” criminal-coddling, Weatherman-hobnobbing radical. Already Floyd Brown, the nasty creator of the Willie Horton smears, has run ads assaulting Obama for his vote on gang-related murders. The threat from these guys is real, and Obama is right to steel himself for a below-the-belt fight. Again, fair enough… to a point. My concern, though, is that we’re seeing some strong and unmistakable–and, in my opinion, unmistakably troubling–early signals of a major Obama pivot heading into the general-election campaign.

There are two Obamas: Primary Obama and General-election Obama. And, unfortunately, there seems to be increasing distance between their stances on critical issues. Primary Obama was the progressive alternative to Hillary’s same-old insiderdom, the change we can believe in, a new way forward. General-election Obama is shaping up to be cut from a similar cloth as the past few (losing) Democratic presidential contenders: centrist on trade, regulation and taxes; weak-kneed and/or unprincipled on key legislation; in bed with big money and special interests; overly consulted on messaging (witness his botched apology to the Muslim women who were not allowed to stand behind him at a recent rally); insecure about toughness and thereby dangerously muscular on foreign policy and criminal justice.

A few warning signs from the past few weeks: General-election Obama broke Primary Obama’s pledge to accept public financing as a presidential candidate. General-election Obama is deploying Primary Obama’s rhetoric opposing the Patriot Act but nevertheless supporting a Senate bill that would extend Bush-era surveillance tactics and grant immunity to telecoms that enable warrantless wiretaps. Contrary to antiwar Primary Obama’s preference for diplomacy, General-election Obama wants to drop the Iraq surge in favor of unilateral intervention in Pakistan, and in one of his first appearances after defeating Clinton in the primaries, he promised AIPAC that he would do “everything in my power” to curb Iran’s nuclear ambitions.

And now, following the Kennedy v. Louisiana ruling, General-election Obama has sided with the conservative Justices on the Supreme Court who dissented on a decision to narrow the use of the death penalty.

In today’s episode of TPM TV, Josh Marshall (who won the prestigious Polk award for exposing the US Attorneys scandal) explains why yesterday’s report on illegal hiring practices at the Justice Department, though focusing narrowly on a small part of a wider investigation, should be read as an “ominous sign” for those who were involved in the firing of the US Attorneys.

From the Baltimore Sun, news that the Justice Department filed motions yesterday to end federal oversight of two dysfunctional juvenile justice facilities in Maryland.

From the Atlanta Journal-Constitution, an op-ed by Sara Totonchi, public policy director at the Southern Center for Human Rights in Atlanta, on why “Kids Don’t Belong in Adult Court System.”

From the Oregonian, an op-ed by Ken Chapman, juvenile justice policy adviser for Crime Victims United of Oregon, on struggles to deal with (and report accurately on) violent youth in detention in the Portland area.

Youth Today’s Patrick Boyle, who broke the story on the scandalous OJJDP grantmaking process, has an update following last week’s oversight committee hearings. OJJDP chief of staff Michele DeKonty, who took the Fifth rather than submit testimony at the hearings (and who apparently didn’t alert her higher-ups about that decision), has been dismissed. In a brief email to his staff–leaked, I assume, to Boyle–OJJDP administrator J. Robert Flores wrote, “Over the past 2 years I have had the benefit of working with a talented and professional Chief of Staff in Michele DeKonty…. I want to recognize her for her service to America’s children and our Office.” Yeah, I’m all teary-eyed about it, too, Flores. Lace ‘em up, pal. You’re next.

The Justice Department’s inspector general and the Office of Professional Responsibility released a joint report yesterday investigating allegations of politicized hiring at the DOJ. The report, according to the introduction (a PDF of the whole document is available here), looked into whether “political or ideological affiliations of applicants were improperly considered in the selection of candidates” in two prestigious Justice Department programs: the Attorney General’s Honors Program, for entry-level attorneys, and the Summer Law Intern Program (SLIP), a paid internship. The answer, after extensive research into thousands of applications, email correspondence and other relevant material: yes, indeed. Liberals need not apply.

In 2002, after senior DOJ officials reviewed the honors program, the hiring process was changed dramatically to counteract a perceived over-representation of liberals. Political appointees yanked the recruitment process from the (nonpartisan) career attorneys, who had overseen it for many years, and candidates with liberal organizations on their resumes began to be “deselected” from consideration. In 2002, for example, all members of the liberal American Constitution Society were rejected, while members of the conservative Federalist Society received a 93 percent approval rating. That same year, 43 of 61 applicants affiliated with the Democratic Party were bounced, while 41 of 46 Republican applicants were let in. (You can get a quick overview of the data in this helpful graph from the New York Times.)

The trend continued until 2006, when it accelerated under then-AG Alberto Gonzales. That year, the report notes, “many complaints surfaced after the Screening Committee took weeks, rather than the normal 2 days, to conduct its review, and deselected an unusually large number of seemingly qualified Honors Program and SLIP candidates.” That was also the year that Michael Elston, the Deputy Attorney General’s Chief of Staff–who may also have had a hand in the highly politicized dismissal of US Attorneys–was placed in charge of the Screening Committee. Under Elston’s watch Honors Program candidates whose applications reflected liberal affiliations were deselected at more than three times the rate (55 percent) of those with conservative ties (18 percent) and more than twice the rate of those without any political affiliations (23 percent). The bottom line, according to the audit: “Elston violated federal law and Department policy by deselecting candidates based on their liberal affiliations.” (Elston has since resigned from the Justice Department, along with his colleague and partner in crime Esther Slater McDonald.)

In April 2007, responding to criticisms from within the department–the investigation was prompted by an anonymous letter from DOJ staffers to Congress–the selection process for the honors program and SLIP was revamped, reverting essentially to oversight by career DOJ employees rather than political appointees. Attorney General Michael Mukasey said in a statement yesterday, “The Department overhauled its honors program and summer law intern program hiring processes last year, and I am pleased that the report remarked positively on these institutional changes. I have also made clear, and will continue to make clear, that the consideration of political affiliations in the hiring of career department employees is impermissible and unacceptable.”

That’s promising, I guess. But it’s worth noting that this investigation was only the first in a series of reports on the Bush-era repurposing of the Justice Department as a White House weapon. This report looked at the damage done to upstart and aspiring attorneys at the beginning of their careers; next up, and starring a similar cast of seedy characters, a related investigation into the politicized removal of US Attorneys at the peak of their careers. Most of these guys, remember, were let go because they refused to launch specious investigations into voter fraud that would have damaged Democratic candidates in the 2006 midterm elections, or because they successfully prosecuted Republican Congressmen for corruption. That’s not justice; that’s partisan warfare.

Yesterday’s report, Senate Judiciary Chairman Patrick Leahy said, “confirms our findings and our fears that the same senior department officials involved with the firing of United States attorneys were injecting improper political motives into the process of hiring young attorneys. I suspect further reports from the inspector general will continue to shed light on the extent to which the Bush administration has allowed politics to affect–and infect–the department’s priorities.”

Judging by these two short pieces–one yesterday, one today–the Kansas Supreme Court’s decision last Friday to extend to juvenile defendants the right to a jury trial has prompted some concerns among legal professionals who fear they’ll need to absorb an increased caseload without being given the necessary resources. Wichita ABC affiliate KAKE ran a segment last night on the premise that the decision will “take a toll” on a system that’s already stretched thin. Phil Journey, an attorney in Wichita and a Republican State Senator, was interviewed at length. “This will put more strain on the court system because even though the number of cases won’t change, the amount of court time required for each case will certainly increase,” Journey said. And according to this editorial in today’s Wichita Eagle, “Legislators and locals had better be thinking how to pay for this sweeping new mandate.”

The primary focus of concern, according to both pieces, is the new juvenile justice complex in urban Sedgwick County, which handles many of the state’s young offenders but was not designed to handle jury trials. Judge James Burgess, chief juvenile judge of the Sedgwick County District Court, told the Eagle’s editorial board that “the whole state’s going to pay” in additional jury fees and lawyers’ fees. From the editorial:

The ruling means that Sedgwick County’s new juvenile justice complex is insufficient, because it has no room for jury deliberation. Burgess already was “back to having too many judges and not enough courtrooms,” because juvenile court is scheduled to gain a fifth judge in January to handle its existing cases. Burgess also newly needs access to the jury pool.

Burgess, the editorial adds, may be sensitive not only to the potential cost burden but also to the Court’s description of the Kansas juvenile justice system as one that has drifted so far from a mission based on rehab and toward one aimed at punishment that denying juveniles the right to a jury trial in what is now a de facto adult system would be unconstitutional.

I don’t have any particular insight into whether the concerns raised in these articles are valid–whether, that is, the Kansas juv court system will need an infusion of resources to handle an anticipated uptick. If more money is needed to fulfill the court’s mandate, then more money should be allocated. I would add, though, that the long-term goal should not be to properly equip the Kansas juvenile justice system with the resources and procedures necessary to mirror the Kansas criminal justice system. If the state is directing money toward juvenile justice, I’d prefer to see a good portion of it going toward reform efforts so that ten, twenty years from now, the state system may have two fully functioning, fully staffed, fully resourced systems with distinctly different procedures, carrying out distinctly different missions.

As part of an ongoing series of comments from Human Rights Watch staffers on the dark goings-on at Guantánamo Bay, Jo Becker, advocacy director for the Children’s Rights Division at HRW, has filed an impassioned piece for Salon called “The War on Teen Terror.”

“According to government records obtained by the Associated Press under the Freedom of Information Act, more than 20 detainees under the age of 18 have been brought to the prison camp since 2002,” Becker writes. “Although most of the 20 juvenile detainees have now been released, three remain, having spent more than a quarter of their lives at Guantánamo.” Here’s more, excerpted from Becker’s article:

The Bush administration’s refusal to treat these prisoners as juveniles has had profound consequences for [the three remaining juvenile detainees, Omar] Khadr, [Mohammed] Jawad and [Mohammad] El Gharani. They have had no access to education or recreation facilities and have been housed in the same facilities as adult detainees. After five years of imprisonment, Jawad remains functionally illiterate. None of the three have been allowed to see members of their family.

The effects of prolonged isolation have taken a severe toll. El Gharani has tried to commit suicide at least seven times. He has slit his wrist, run repeatedly into the sides of his cell and tried to hang himself. On several occasions he has been placed on suicide watch in a mental health unit.

Jawad also tried to commit suicide about 11 months after arriving in Guantánamo, by hanging himself by his shirt collar. Prison records also state that he “attempted self-harm by banging his head off of metal structures inside his cell.”

And so it goes, sadly and to our enormous shame. The United States is a signatory to the Optional Protocol to the Convention on the Rights of the Child, which recognizes 18 as the age at which soldiers may be conscripted or volunteer to participate in armed conflict. Anyone on the battlefield younger than 18 is thus classified as a child soldier and entitled to “special protections” adult soldiers are not granted (rehabilitation, namely, but more generally consideration as a victim of the conflict rather than as a participant). And yet in the legal vacuum of Guantanamo, this treaty and all that it stands for has effectively been shredded–along with the fundamental principles on which our legal system is based.

“International law does not preclude the possibility of prosecuting former child soldiers for serious criminal offenses,” Becker writes. “But the standards are very clear: Such cases should be handled as quickly as possible through specialized juvenile justice systems. Rehabilitation must be the primary objective, and conditions of detention must include access to family, education, recreation and other special assistance. On every count, the U.S. has failed at Guantánamo to meet these requirements.”