Pleading the Sixth: Having reached an agreement with Shelby County, Tennessee to usher in major reforms of the county’s juvenile court system and the method for representing children in delinquency proceedings, the US Department of Justice announced in mid-November that it is now turning its attention to St. Louis, Missouri. Given the statewide structure of indigent defense services in Missouri, will the DOJ impact be even greater in St. Louis than in Tennessee? The Sixth Amendment Center explores the possibilities.
“Protecting the constitutional rights of all children appearing in court is critical to achieving our goals of improving juvenile courts, increasing the public’s confidence in the juvenile justice system and maintaining public safety,” stated Acting Assistant Attorney General for the U.S. Department of Justice (DOJ) Civil Rights Division, Jocelyn Samuels, in a press release on November 18, 2013. There, DOJ announced the launch of a new investigation into claims that the family court in St. Louis, Missouri fails to provide “constitutionally required due process to all children appearing for delinquency proceedings” and fails to provide “equal protection to all children regardless of race.”
Though DOJ will only say at this time that it is launching an investigation without detailing specific allegations, we know from several recent studies that Missouri’s on-going caseload crisis and unique family court structure combine to result in an astonishingly high number of kids going unrepresented in St. Louis and across the state. Additionally, this failure to provide constitutionally adequate defense services disproportionately impacts people of color, primarily young African American males. Given the statewide structure of indigent defense services in Missouri, the potential ramifications from DOJ action in that state could be even greater than those obtained in its 2012 agreement with Shelby County, Tennessee (Memphis), as explained below.
Missouri’s on-going caseload crisis
The Missouri State Public Defender (MSPD) is an entirely state funded agency, operating under a seven-member independent commission, authorized to establish such local and regional offices as it deems necessary to properly carry out its charges. MSPD has 33 trial-level public defender offices providing services to adult and juvenile clients in 45 judicial circuits covering the state’s 115 counties. The city of St. Louis is an independent entity that operates in the equivalent governmental capacity as a county, separate and apart from St. Louis County itself. As such, MSPD has separate public defender offices for St. Louis County (District 21) and St. Louis City (District 22). The DOJ is investigating St. Louis County.
MSPD violates Principle 2 of the American Bar Association, Ten Principles of a Public Defense Delivery System, calling for the “active participation of the private bar” to serve as a safety outlet whenever the primary indigent defense system has too many cases. MSPD uses assigned counsel or contract defenders in less than 2% of all cases assigned to the indigent defense system (generally under flat-fee compensation contracts violating ABA Principle 8). Instead of involving the private bar, the MSPD assigns neighboring public defender offices to provide representation in multiple defendant and other conflict cases.
Frequent readers of this blog know that underfunding has plagued the MSPD for more than two decades. (Click here, here, here, here, and here.) For example, in 1995, MSPD created offices of juvenile defense specialists (“Youth Advocacy Units”) in both St. Louis County and City, but both were forced to close down for lack of funding in the 2007 budget crisis. Today, the public defender offices in St. Louis County and St. Louis City operate with just a single public defender in each dedicated to the representation of children in delinquency proceedings (and that, for the most part, share conflicts between the two separate offices).
Although the Missouri Supreme Court ruled that the MSPD has the authority to declare unavailability due to case overload, a state auditor report put in question the method by which MSPD determines which district offices have excessive caseloads. That report led the legislature to adopt a statutory change last session that nullified the MSPD caseload protocol, specifically preventing them from unilaterally turning away cases without judicial consent. The ABA is creating a new objective methodology for MSPD that resolves the auditor’s issues. In the interim, defendants of insufficient means – like juveniles facing delinquency charges in St. Louis County – continue to suffer the consequences of attorneys handling far too many cases than they can competently manage.
Justice Rationed: The National Juvenile Defender Center report
In the Spring of 2013, the National Juvenile Defender Center (NJDC) released a seminal report on the problems in delinquency representation in Missouri, Justice Rationed: An Assessment of Access to Counsel and Quality of Juvenile Defense Representation, that details the myriad of systemic deficiencies, including case overload, that negatively impacts a child’s constitutional right to counsel in that state. (Click here to obtain similar NJDC assessments from other states.) Astonishingly, NJDC makes a strong case that upwards of 60% of all kids facing delinquency charges do so without the aid of a lawyer despite their right to one under In re Gault.
The lack of a regular involvement by the private bar in the indigent defense system is the first prong in understanding why so many kids go uncounselled. Beginning in those few counties that were certified as having too many cases (before MSPD was stripped of the authority to do so by the legislature), judges in such jurisdictions are precluded from making new appointments to the primary public defender offices. However, if judges are barred from appointing the public defender offices, and there are few (or no) private bar attorneys willing to become skilled at juvenile representation because of the limited number of appointments annually, a judge is given the Hobson’s choice of either appointing an unqualified attorney (in violation of ABA Principle 6) or appointing no attorney at all. Too often, NJDC found that judges “push kids into waiving a lawyer.”
Yet, even in the majority of counties where the public defender is legislatively precluded from declaring itself unavailable, NJDC still concludes that, “youth are discouraged from and systematically denied counsel throughout the state. This denial of due process is well known, and it is deeply entrenched in the culture of many juvenile courts.” According to NJDC, the principle reason kids are pressured into waiving counsel is because of the unique structure of the Missouri juvenile courts themselves.
Family court is a division of circuit court in Missouri. One family court judge per circuit oversees a juvenile office, which in turn is responsible for the administration all juvenile delinquency cases. The head of the juvenile office in each family court directly supervises the “legal officers” (prosecutors) and “deputy juvenile officers (DJOs)” (probation). When a child is arrested, the DJOs conduct the initial screening, ultimately determining which cases will be formally processed and which can be dealt with in a less formal manner. However, the DJOs are also charged with both “informing the juvenile of his or her rights and protecting the interests of the juvenile.” NJDC notes that this dual role of acting as both prosecution and protector of due process is unique to Missouri. From the child’s point of view, the DJO appears to be helping them by eliciting information that could be used to dispose of the charges informally. However, since the legal officers are also the lawyers for the DJOs, the prosecution gets to use information from those initial interviews in court if the case is not disposed of informally. More likely, the information is used against the juvenile to try to reach a settlement plea. All of this is done before a public defender enters the picture.
Such practices are in direct violation of ABA Principles 1 and 3. Principle 1 requires the independence of the defense function from undue judicial interference. In Missouri, the family court judge – who is supposed to be a neutral arbiter of two equal adversaries – instead oversees the prosecution function and allows the above conflict to interfere with a juvenile’s right to independent counsel. And, since the DJO’s are acting in many ways as an arm of the prosecution, the juvenile has a right to that attorney during the initial screening. The fact that public defenders are not involved runs afoul of ABA Principle 3 requiring the early appointment of counsel.
So how do these two factors – excessive workload and undue prosecutorial interference – factor into the representation of children in St. Louis County? To begin with, the county never was certified as a district with excessive caseloads. But, given information available, it should have been. The Missouri State Public Defender Commission FY 2012 annual report shows that St. Louis County had 346 juvenile cases [218 (non-violent), 127 (violent), and 1 (status offense)]. National standards, meanwhile, suggest that attorneys handling delinquency matters should handle no more than 200 such cases in a given year. Recognizing that some small percentage of cases in the County will be conflicted out (though the office probably receives as many conflicts from neighboring offices as it conflicts out), it is safe to say that the individual public defender responsible for juvenile cases in the St. Louis County carries a caseload up to 185% above nationally recognized caseload standards that ABA Principle 5 states should “in no event be exceeded.” So even if a child manages to evoke his right to an attorney in the face of the court pressure to waive that right, the lawyer he eventually gets does not have sufficient time to zealously defend the child (in violation of ABA Principle 4).
The Missouri Courts website has annual reports that appear to bear this all out. The 2012 annual report shows that St. Louis County had 1,750 juvenile cases filed that year. Subtracting the 346 cases handled by the lone juvenile defender for St. Louis County, that means the remaining 1,404 county cases went somewhere else – most likely children either retained private counsel or had no counsel at all. A recent Missouri Law Weekly article indicates that “less than 1%” of juvenile delinquent defendants in the state secure private counsel. If true, that implies that 74% of kids go unrepresented in St. Louis County. Recognizing that law school clinical programs handle some limited number of those cases, there can be little doubt that in St. Louis County the courts own numbers verify the NJDC conclusion that approximately 60% of kids go uncounselled in delinquency proceedings.
Racial disparity in the process of trying children as adults
The U.S. Supreme Court, in Roper v. Simmons, has detailed the scientific gap that differentiates children from adults:
Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies . . . confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ . . . The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. . . . The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. . . . Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.
As the Simmons Court noted: “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” If trained psychiatrists “with the advantage of clinical testing and observation” refrain from such assessments, then for the courts to make a similar assessment – that the child in question is so irreparably corrupt that the treatment provided through the juvenile justice system is of no option – the process must be of such a degree that the fairness and correctness of the court’s decision is unquestioned.
For this reason, defense counsel performs a critical role in ensuring the child’s due process rights are protected. The defense lawyer is ethically obligated to zealously represent the child’s interests by presenting evidence and arguing in favor of that evidence at the transfer hearing; challenging the state’s arguments and evidence presented in support of that evidence; and to directly challenge the fairness of any procedure or statute that affects the due process concerns that affect children served through the juvenile court. Such independent and vigorous representation of the child improves the court’s ability to properly adjudicate matters involving allegations of serious allegations of violent crime.
In Missouri however, the deficient family court structure and the excessive public defender caseloads result in a high frequency of children being tried as adults, and a disproportionate percentage of them are African American. Each state is required by the US DOJ Office of Juvenile Justice and Delinquency Prevention (OJJDP) to assess disproportionate minority contact within the juvenile justice system. In response, the Missouri Office of State Courts Administrator (OSCA) published a series of research briefs in late 2012 and early 2013. (See them here, here, here, here and here).
In Missouri, a child between the ages of 12 and 17 charged with an offense that would be classified as a felony if committed by an adult can be transferred to adult court – though the Family Court must first hold a hearing as to whether to “certify” the child as an adult. Additionally, the most serious cases (homicide, rape, etc.) require mandatory certification hearings. The OSCA research found that “African American youth were over-represented in terms of felony allegations and being certified,” with African American youth making up only “31 percent of the felonies” but making up “61 percent of the certified population.”
Moreover, three districts – including both St. Louis County and City – had the most youth charged with offenses requiring mandatory certification hearings. These three districts alone, comprised “81 percent of African Americans” charged with such offenses in the entire state. According to the OSCA research, these findings indicate that the level of justice a black youth receives is entirely premised on where in the state he is processed – a concept OJJDP calls “justice by geography.”
The potential statewide impact of the DOJ Investigation
At the very least, all of these factors – excessive caseloads, racial disparity, justice by geography, and ethical conflicts in the work required of DJOs – are ripe for further investigation by the DOJ Civil Rights Division. Should DOJ determine that St. Louis County engages in patterns of practice that result in a deprivation of civil rights for juveniles, DOJ has authority to bring a civil action against any governmental agency (court, prosecution, public defender, etc.) that is involved in juvenile justice to obtain appropriate equitable and declaratory relief to eliminate such practices.
Though Shelby County, Tennessee entered into an agreement with DOJ based solely on the DOJ investigation report – halting for the moment the need for a civil lawsuit – that agreement nevertheless makes clear that DOJ is seeking, in association with the proper representation of children, the institutionalization of the ABA Ten Principles. Specifically in Shelby County, DOJ is enforcing “independence,” “reasonable caseloads,” “attorney performance standards,” and “training” for the juvenile defense function. But, whereas juvenile justice is primarily a county function in Tennessee (and where indigent defense is primarily a county function in Memphis), the same cannot be said of Missouri. Missouri operates a unified court system with state funding. To this author, it seems inconceivable that DOJ would enter into an agreement to terminate or restructure, for example, the practices of the DJOs in St. Louis County alone, when the same practices of the state court results in an inordinate number of uncounselled waivers across the state.
Moreover, since the excessive caseloads of the state-funded Missouri State Public Defender clearly adds to the patterns of inadequate or no representation, it again does not seem possible for DOJ to simply limit the workload of St. Louis County juvenile defense providers without it having further statewide implications. This seems especially true given the recent DOJ Statement of Interest in a Washington State federal lawsuit in which the DOJ declared that “caseload limits alone cannot keep public defenders from being overworked into ineffectiveness; two additional protections are required. First, a public defender must have the authority to decline appointments over the caseload limit. Second, caseload limits are no replacement of a careful analysis of a public defender’s workload, a concept that takes into account all of the factors affecting a public defender’s ability to adequately represent clients, such as the complexity of cases on a defender’s docket, the defender’s skill and experience, the support services available to the defender, and the defender’s other duties.” (Emphasis in original.)
That the DOJ has turned its attention to a juvenile justice system that is state funded and operated should certainly be seen as a warning that our nation’s top law enforcement officials are seeking transformative change in our state justice systems. That we need such action to break through the cultural complacency plaguing our courts is best described in a cover letter by MSPD Executive Director Cat Kelly, accompanying her FY2015 budget proposal. Referencing Amy Bach’s excellent book Ordinary Injustice, that details how justice system actors across the country have become inured to the daily injustices they see everyday, Kelly writes:
The fact that injustice is ‘ordinary’ does NOT mean that we are exempted from a responsibility to fix it. History will not forgive us our failure to step in, nor should it. We all took an oath to support the Constitution when we accepted our positions and we daily pledge our allegiance to ‘liberty and justice for all.’ These are not simply words in a rote exercise, but the very foundation for which our forefathers gave their lives and on which this nation was built. A foundation that today is crumbling around us.
The Sixth Amendment Center applauds the actions of the DOJ Civil Rights Division – from its Statement of Interest in the Wilbur case to its ongoing work to ensure that our family courts protect the rights of children in delinquency proceedings in Tennessee, Mississippi and now Missouri. We will continue to follow this story and keep you updated as the DOJ investigation continues.