This is Part 2 in a series describing the issues and problems using plea bargaining in the juvenile justice system. It has been a while since I published Part 2 so to refresh my readers' minds, the idea to write on the problems with plea bargaining in juvenile courts was inspired by an incident that received national attention when a 10 year old child was arrested for urinating in public and the prosecutor threatened harsher penalties if the child did not accept the prosecutor's plea offer of probation. If you are coming to my blog for the first time and have not read the previous blog that goes into more detail about this incident, I urge you to go back and read it before reading Parts 2 and 3.
Here is Part 3.
Negotiating dispositions have no place in our juvenile courtrooms.
Let’s examine this assertion using Johnny as a case study. He is 15 years old and before the juvenile court for battery on a teacher, affray, disrupting public school, disorderly conduct and criminal damage to government property. The battery and damage to government property offenses are felonies, which make Johnny eligible in most states for probation or commitment to the state’s department of juvenile justice for placement in out-of-home care.
This care could be a residential facility that is anything from a group home to a facility that specializes in areas of treatment such as substance abuse, mental health or sex offending. Or it could also mean a secure facility, or in layperson’s terms, a prison.
The negotiations between Johnny’s attorney and the prosecutor will go down like this with some variation:
Prosecutor: I won’t recommend commitment if your client admits to all the offenses.
Defender: My client maintains his innocence. The other student is a grade above Johnny and has been bullying him since the start of the school year. This kid was dating Johnny’s sister over the summer and my client’s sister broke off the relationship. This kid is getting back at his former girlfriend by going after her little brother, my client.
Prosecutor: Dating the sister story and the victim antagonizing your client to get back at her may be true, but it’s not relevant to striking the teacher and giving him a black eye.
Defender: But it is relevant because Johnny didn’t start the fight, the bully did. Johnny was defending himself when the bully came at him and took a swing. The bully kept swinging at Johnny, and that’s also why the affray, disorderly conduct and disrupting school aren’t appropriate charges. The teacher got struck by accident when he jumped into the middle of it to break it up.
Prosecutor: Your client is guilty based on the doctrine of transfer intent. He may have intended to hit the other kid, but he hit the teacher instead.
Defender: Transfer intent doesn’t apply to my client because he was defending himself.
Prosecutor: Who started the fight depends on who you want to believe. The kid you are calling a “bully” was also charged with affray, disorderly conduct and disrupting public school. All I know is that I have a teacher with a black eye, and someone must be held accountable, and the teacher says it was your client’s fist that hit him in the eye. Look, I’ll drop all the charges except the battery on a teacher and recommend probation. Battery on a teacher is a committable offense that can land him in secure confinement [prison].
Defender: Will you at least consider recommending holding the petition in abeyance and diverting this to some program or classes like conflict resolution, mediation and community service?
Prosecutor: Nope. Not on a battery on a teacher. Take the offer to your client. If he wants a trial, that’s his right, but it’s my right to ask that he be committed to the state.
The law requires the attorney to inform the client of an offer made by the prosecutor. Most likely Johnny will succumb to the prosecutor’s threat and admit to the battery on a teacher, despite the fact that the other kid is a bully and physically attacked Johnny. People, especially kids, will do about anything to avoid going to jail or prison. Even though there is no guarantee that the judge will follow the prosecutor’s recommendation, who really wants to roll the dice to find out?
Don’t forget what I said in my previous column about us judges. These conversations are taking place outside our hearing in the courthouse hallways. We’re on the bench sitting there “fat, dumb and happy,” waiting for the next admission to enter the courtroom.
Now, I seriously doubt that I would commit Johnny to the state even if the prosecutor recommended it, but here is the rub: Johnny doesn’t know that because I am in the courtroom looking fat, dumb and happy and have no clue what’s transpiring in the so-called “halls of justice.”
Johnny will be scared into admitting to a crime he is innocent of based on the legal defense of justification. By the time he walks into my courtroom, all I know is that he will be admitting to a felony battery on a teacher, which sounds pretty awful, and the recommendation is probation, which seems understandable given the nature of the offense. The prosecutor during the plea colloquy will give a factual basis to support the battery charge, but he or she isn’t going to include the bullying drama leading up to the school fight.
And so, we can add another soul to the 11,000 wrongfully convicted each year.
There is too much at stake when gambling with your freedom, and especially when it comes to kids. The idea of being taken away from family and friends takes a toll on the adolescent psyche.
The scenario above is no different than what happens in adult court in those cases where the defendant is truly innocent. Whether you’re a kid or an adult, a system that allows for threats and coercion to force an innocent person to plead guilty is a dysfunctional system to some extent.
Treating juveniles differently is fair
But it’s at this juncture that the adult and juvenile courts diverge slightly because negotiating sentencing options within the juvenile justice context takes on a more sinister role. What makes juvenile courts unique from adult courts is the nature of the adolescent brain. Despite the highly intelligent and creative functioning of the teenage brain, there are valid reasons why we don’t allow teens to drink until they reach 21 and restrict their access to other “adult”-type enjoyments.
The U.S. Supreme Court in Miller v. Alabama acknowledged the uniqueness of teens, stating that adolescence is marked by “transient rashness, proclivity for risk, and inability to assess consequences,” and concluded that these are factors that should mitigate the punishment received by juvenile defendants.
Teenagers are highly intelligent humans, but neurologically wired to do stupid things. I don’t mean any disrespect to teens when I say this about them, because doing stupid things is a far cry from being stupid. The teenage brain is a paradox because research shows that our brains possess the most fluid intelligence during our teens, while the prefrontal cortex, which translates emotion into logic, is not developed, leading to a proneness for risk-taking behaviors and making poor choices.
Examples of this paradox includes Mark Zuckerberg, who created Facebook by age 20; Albert Einstein, whose first contemplations of the law of relativity began at 16; and then there is Taylor Swift for the country music fans. She left home at 14 and headed to Nashville to begin her music career. Despite the brilliance and creativity of these teenagers, they still were not allowed to buy an adult beverage (except maybe Einstein) until their 21st birthday.
Their teenage brilliance has improved our quality of life in different ways, but their prefrontal lobe cortex is why they couldn’t enjoy certain adult allowances.
Similar to why laws exist that limit teens from enjoying adult gratifications, our legislatures have created a separate juvenile justice system to accommodate this neurological paradox that allows for two things to occur: 1) mitigation in sentencing that is age appropriate by taking into consideration that teens are still under neurological construction; and 2) treatment is emphasized over punishment to take advantage of the teenager’s neurological maturation process.
In other words, if the teen brain is under construction, it also means it’s more amenable to redirection, provided we do so using what works.
This requires juvenile justice systems to know what works to prevent and treat delinquency. And for courts that wish to implement what works with fidelity, the rub is that plea bargaining becomes an obstacle because it occurs before the information that is needed about the kid can be gathered to determine what will work for him.
Like the proverbial cart without a horse, the system will not be able to move the restorative needle in a positive direction if it depends on two lawyers negotiating how to respond to a kid’s delinquent conduct without first assessing whether the kid requires court intervention in the first place. And assuming the kid does require court intervention, the lawyers have no clue what that intervention should look like other than their instinct.
In an evidence-based juvenile justice system, objective risk and needs assessment instruments are essential to informing the court on the best response to address a kid’s delinquent conduct. Does the kid need to be diverted from the formal process and if not, does the kid require supervision in the community or out-of-home placement?
The nightmare for any judge is to place an innocent kid on probation, or worse, remove him from his family and friends, but it’s also harmful to place kids who are guilty on probation who don’t need it. And it’s also harmful to place kids on probation who do need it, but don’t get the appropriate services to address the underlying causes of their conduct. There is great risk in negotiating dispositions as part of a process to secure a guilty plea because it’s the blind leading the blind when there are no tools to guide the decision-making process.
The remainder of this column is dedicated to understanding evidence-based systems, or what is dubbed the “What Works” literature. But ironically, the path to “What Works” began with an article dubbed “Nothing Works.”
From nothing works to what works
When American sociologist Robert Martinson published an article in 1974 titled “What Works?” it caused a cacophony of dissidence among criminologists, sociologists, political scientists and especially among practitioners in the field of community corrections. I know because 10 years later I became one of those dissident practitioners in community corrections, working as a parole officer in inner-city Atlanta.
The content of his article would later be dubbed the “Nothing Works” doctrine because Martinson concluded exactly that — prisons, parole, probation and you name it, whatever system, program or practice that seeks to rehabilitate simply doesn’t work.
Practitioners like myself took it personally. When someone says that your job is worthless and a waste of taxpayer money, it tends to cause one to become a bit scared and contemplate if the job will be eliminated, and that’s personal.
And when it gets personal, it can get ugly.
Today, we know Martinson was wrong, and in fact he would later acknowledge just before his death that there are some programs that work. But in hindsight, what Martinson said was the best thing to happen to those of us who work to rehabilitate adults and kids. Had it not been for Martinson’s claim that nothing works, there never would have been such a clamor for researchers to collect data on rehabilitative programs to study what do work and what do not and why.
Martinson’s article became the impetus that fueled the fire of programmatic research that has propelled us into a new era of rehabilitation that focuses on social science research as opposed to reliance solely on instinct and gut.
Today the body of literature that informs us on what works and what doesn’t is substantial, and it includes what characteristics are necessary to make a rehabilitative program effective.
We can’t negotiate evidence-based programs, practices
A growing number of juvenile courts have introduced evidence-based programs and practices thanks to initiatives to reform juvenile justice systems on a statewide basis. Public policy and research foundations over the past decade were either invited by a governor to render assistance to reform their juvenile justice system or persuaded by them. These statewide reforms introduced evidence-based programs and in so doing necessitated a change in process and procedure.
Like many things that work, they require certain prerequisites before implementation, and what works to reduce reoffending among offenders is no exception.
For example, we know that there are several specific underlying causes of criminal behaviors that are referred to as criminogenic needs. For juveniles they include family function, cognition, peers, substance abuse, weak problem-solving skills and school-connectedness. I predict that — with the growing body of research on adverse childhood experiences — childhood trauma may one day be included, or at least factored into the family function risk factor.
Stated in another way, the “What Works” research has identified protective buffers that minimize the risk of delinquent conduct, which are the criminogenic needs. By knowing what factors reduce the risk of offending, we can identify in each child, using a risk and needs assessment tool, which of these protective buffers are lacking and target them using evidence-based programs designed to enhance and strengthen them.
This preliminary evaluation stage is essential because there is no way to determine what program will work for any given youth without first knowing what caused the behavior. For example, if the assessment shows family function is a risk factor, then we know that certain evidence-based programs like family functional therapy or multi-systemic therapy are appropriate. Applying a program that doesn’t match the kid’s criminogenic needs is a waste of taxpayer monies and is not only ineffective to reduce the delinquent conduct but may also aggravate the circumstances and make the child worse.
What we do to rehabilitate a youth is no different than how epidemiologists study diseases for prevention and eradication. They identify the at-risk population and become familiar with the affected population to determine the underlying causes of the disease. This allows them to identify individual treatment modalities. Although behaviors are not diseases, they behave like them.
Like diseases, delinquent behaviors do not occur by chance and they are not randomly distributed. There are always underlying determinants for delinquent behaviors. Delinquent behaviors are a symptom of something else. Historically the problem with our justice system is that we respond to symptoms and not causes, and so the symptoms (behaviors) persist.
This is where Martinson got it right though he didn’t know it. There are programs that work, but we had not found them yet because we were focused on symptomology and not causality. When kids do bad things and we don’t ask why, our tendency will be to always respond to the conduct and not to the cause, which typically will take the shape of punishment and not treatment.
This explains why recidivism rates are higher in a system that doesn’t employ evidence-based practices and programs, and this gets us back to plea bargaining.
How can a system that employs evidence-based programs do so with fidelity if the disposition has already been negotiated by a prosecutor and defender without knowing the kid’s risks and needs?
It can’t.
And the system can’t deliver to them information that can only be obtained during the disposition stage of delinquency proceedings, which comes after the guilt/innocence stage. Plea bargaining occurs in the guilt/innocence phase. Gathering information on the youth occurs during the disposition phase after which the youth is adjudicated guilty. This is because accused kids are presumed innocent until proven guilty, which means they remain silent and no one can force information from them. If they’re silent, that means evaluative tools like risk and needs, psychological evaluations and other disposition reports are strictly prohibited because it is violative of the kid’s Fifth Amendment right against self-incrimination.
Some may argue that their system isn’t negatively affected by plea negotiations because negotiated recommendations are limited to the type of supervision status, such as probation or commitment to state custody, and the type of treatment is left to the probation agency or facility. But this presupposes that risk and needs instruments don’t recommend probation or commitment, and many do. In Georgia, for example, a kid can’t be committed to state custody without a risk and needs assessment having been performed. Our risk and needs assessments do make recommendations on whether the kid should be placed on community supervision or commitment to state custody, and for how long.
Still, many states prohibit probation authorities, who generally are part of the local or state executive function, to direct a probationer to participate in a program not ordered by the court. Beyond the general conditions of probation that apply to all probationers, such as report times, curfew or refraining from using alcohol and drugs, only a court can add a special condition to participate in a program that targets a criminogenic need.
This prohibition exists because it conforms to the separation of powers doctrine as well as basic due process requirements. Regarding the former, an executive authority cannot add conditions of probation without court approval because it’s an order and that is strictly a judicial function. Regarding the latter, the juvenile defendant has a right to know what is expected of him while serving probation, which mandates the judge to give him notice and an opportunity to be heard.
Should the defendant resist the request to add a special condition, but the judge concludes that the condition is reasonably related to the kid’s rehabilitation, the judge may opt to take another pathway, such as commitment to state custody. Probation is not a right, it’s a privilege that can be denied or later revoked.
No matter how it’s sliced, the best practice supporting a system utilizing evidence-based programs is one that excludes the lawyers from negotiating the disposition. The evidence-based tools used to develop a recommended disposition guides the judge to the ultimate issue, which only the judge can decide — what is the most appropriate response that will rehabilitate the youth?
The state, by and through the prosecutor, and the accused youth, by and through the defender, has the right to challenge the recommendation and controvert its finding by presenting evidence and making arguments, but they don’t have the right to negotiate the disposition before the evidence-informed recommendation has been tendered.
Nowhere in the Constitution is plea bargaining a sanctioned procedure, and just because it has become a custom and practice doesn’t make it an effective practice when it comes to protecting public safety.
How plea-bargaining can harm public safety
I can’t tell you how often probation administrators around the country have expressed to me their frustration over kids placed on probation who have no business under supervision. Many are the result of these negotiated pleas. I recall one administrator complaining, “I don’t know what they [prosecutors, defenders and judges] expect us to do with some of these kids who don’t need our services. It’s a waste of our time and it doesn’t help the kid.”
These well-informed administrators are referring to a phenomena I’ve coined “hyper-recidivism,” which results when a system responds to low-risk juvenile offenders with hyper-responsivity (more treatment than is required) that aggravates the offender’s psyche and induces a greater risk to reoffend that was not present in the beginning. When this occurs, the system is responsible for increasing crime.
The administrator’s reference to “a waste of our time” is the flip side of this coin. The one side influences hyper-recidivism that turns kids into criminals while the other side dilutes the supervision of high-risk youth by flooding probation with low-risk youth who don’t require supervision. Probation officers are not able to deliver the supervision needed for high-risk youth when they are spinning their wheels watching over low-risk youth who are likely not to reoffend, and if they do it’s another minor offense. When the former occurs, the system fails to reduce the risk of reoffending among high-risk youth and when the latter occurs, the system produces higher-risk youth.
It’s a double whammy on public safety.
The “What Works” research has informed many of us who are paying attention that this two-sided coin of plea bargaining prescribes a double dose of medicines that don’t work. It wouldn’t be a problem if the medicines were ineffective, but sadly they work together to act as deadly toxins that adulterate the juvenile justice system and endanger public safety. It makes for more victims, not fewer.
If this were the practice of medicine, doctors would be losing their licenses for committing medical malpractice, which begs this question: Considering the fact that there exists a body of evidence-based studies supporting what works to prevent delinquency and reduce recidivism, is it time to create minimum standards of practice in the field of juvenile justice?
That discussion is for another day, but for now it’s safe to say that we can avoid systemic negligence that endangers public safety by implementing evidence-based programs while simultaneously building an infrastructure that ensures implementation with fidelity. The first step in that direction requires the elimination of plea bargaining.
For example, when I became a judge in Clayton County, Ga., in 1999, juvenile crime was on the climb and recidivist rates among probationers were a staggering 76%. It took me through 2002 to figure out what to do with the help of juvenile justice consultants like former Denver juvenile court Judge Ted Rubin and folks at the Annie E. Casey Foundation leading the Juvenile Detention Alternatives Initiative like Bart Lubow and Gail Mumford, and a number of JDAI leaders including Rick Jensen in Multnomah County, Ore. (Portland); Scott MacDonald of Santa Cruz, Calif.; Michael Rohan and William Siffermann of Cook County, Ill. (Chicago) and others.
My point is that no one owns their own revolution that leads to sweeping changes. Those waging war on harmful traditions (the establishment) are inspired by others who have waged revolutionary changes in their own land. I already had a fire underneath me burning for change, but these folks threw more gas on my fire and by 2003 it was time to call out our system for what it was — a sham!
And it was time to take those flames and torch the old system and rebuild from scratch.
The first thing I did was eliminate the negotiation of dispositions and institute an evidence-based disposition process in which our newly validated risk and needs instrument would drive the recommendations for disposition. To this day, the recommendations generated from the assessment tools create a rebuttable presumption, meaning the recommendation becomes the disposition unless rebutted by evidence presented by the state’s attorney or the defender or upon the court’s own motion.
This change coupled with others reduced the number of kids placed on probation by 72% between 2003 and now, which reduced the average caseload size from 125 to 25 probationers. Probation officers target only high-risk youth with intensive services because these are the youth identified by the risk and needs assessment tool. By reducing probation caseload size from 125 to 25, the officers enjoy more time to engage the youth and families one-on-one through family conferencing. Each youth is matched to an evidence-based program according to the risk factors identified through their assessments.
These changes strengthened the supervision of high-risk offenders by ending the flow of lower-risk kids to probation that distracted officers from providing the intensive services required to effect a positive change in high-risk kids. The strength in supervision is evidenced by the reduction in recidivist rates by 36% among probationers in Clayton County between 2003 and now.
There is no doubt that stopping the flow of low-risk offenders to probation by increasing diversion in Clayton County has influenced the reduction in delinquency filings by 82% between 2003 and now. More significant is the reduction of felony filings by 64%.
Consider what these numbers mean within the context of public safety; that a 64% reduction in felonious crimes committed by juveniles means there are 64% fewer victims today than the day before we implemented our reforms, which included the elimination of wholesale plea bargaining.
These reductions are not unique to my county. Other places have experienced astonishing reductions in juvenile crime. The most significant factor is keeping kids from entering the juvenile justice system in the first place. Mike Males, who is senior research fellow for the Center on Juvenile and Criminal Justice in San Francisco, wrote several columns about juvenile crime plummeting in California: “State and local juvenile detention systems that subject youth to abuses and wasted days don’t deserve credit for decreasing crime. Once they enter the system, the recidivism rates of youth remain the same as in the past. Rather, crime fell because hundreds of thousands fewer youth in California are entering the system in the first place, particularly at the youngest ages.”
Juvenile justice systems will never reduce juvenile crime unless they work on both ends of the system. On the front end they must stop allowing so many kids to enter the system; plea bargaining is a contributing factor, among other reasons. On the back end they must target only high-risk youth using appropriate programs that meet the needs of the youth, and again plea bargaining is an obstacle to this occurring.
The white elephant in the room: EBP’s alone can’t save our kids
In my next and last column on plea bargaining, I explain how what works and what doesn’t, which includes plea bargaining, can’t occupy the same space using a systems theory approach. Notwithstanding all my talk about EBP’s, I will share a cautionary note about the role they play and how and why they are not a magic bullet. They are necessary tools to the recidivist reduction algorithm, but we must also acknowledge that most of our delinquent youth and their families are facing serious obstacles daily arising from the social structural conditions in which they live and were created by years of harmful policies beginning with slavery followed by segregation and Jim Crow laws and persisting today as evidenced by the social justice issues made apparent by the murders of George Floyd and Ahmaud Arbery.
Despite the legal advances in civil rights, they are not enough to gain economic mobility overnight. First of all, when Brown v Board of Education held segregation unconstitutional, it didn’t come to an end because too many people didn’t want it to end. It would continue for some time. The same is true with the passage of the Voting Rights Act. The Jim Crow system continued, and Blacks still had to prove they could read and write, and at a level the White man approved.
We need to keep in mind that these things are still recent. They occurred in my lifetime. I recall “Whites Only” and “Negroes Only.” Imagine the traumatic effect of segregation on an entire race, and how it would impede your ability to move forward. These things do not disappear in your head. They are forever, and the cost is passed down to their children and so on.
That cost is poverty.
Speaking of poverty, many people of color are in poverty as a consequence of these past social structural conditions. Just because those past conditions have been eliminated doesn’t erase the conditions of poverty they produced. Once trapped in poverty it is almost impossible to be delivered from it. Changing the law doesn’t remove poverty nor does it create the same economic opportunities that their White counterparts have enjoyed since the beginning.
It will take generations the close the economic gap between Blacks and Whites, unless we are able to reform the social structural conditions by implementing social and economic policies that decreases racial disparities among all facets of society and an increase in economic opportunities for the poor.
The moral of this story is that poor families can’t maximize the benefits of EBP’s so long as they are desperately trying to survive each day. This means that we need to be provide resources and services to help families address their daily insecurities while delivering EBP’s.
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