GEORGIA: INVOLUNTARY INCARCERATION OF MENTALLY ILL CHILDREN? by Sherri Jefferson
The unfortunate and untimely death of 50-year old Anthony Brooks outside a gas station in southwest Atlanta last month has prompted community leaders and police to engage in a call-to-action. Leaders are making recommendations to target alleged violent juvenile crime in Fulton County. But, are politicians using this incident to target juveniles throughout the State of Georgia and particularly Fulton County based on misleading information?
Attorney Sherri Jefferson, the founder of the African American Juvenile Justice Project (AAJJP) is asking this serious question. The AAJJP mission is working for juvenile justice and reform with a focus upon community accountability and responsibility. To this end, she applauds concerted efforts to provide programs and services to juveniles. Therefore, she attended the town hall meeting held at Cascade United Methodist in Southwest Atlanta. The program was entitled “Our Children: Juvenile Crime and Our Community.”
The Silence of the Community and the Role of the Ps
Fulton County D.A. Paul Howard and State Representative Bruce Rogers and Wendell Willard expressed their concerns about the arrest of children who are mentally incompetent to stand trial in juvenile court. They expressed their concerns about the lack of services and inaction by the Georgia Department of Behavioral Health. Prior to the meeting, Paul Howard told NBC affiliate WXIA 11 Alive that “We’re hoping that they can get this mental incompetency law changed. There’s got to be a facility someplace where these kids are placed,” Howard said. “If a child is in trouble, why isn’t our community – why isn’t our system forcing some kind of intervention?”
Attorney Jefferson suggest that “Forcing” is the operative word because throughout the meeting the recommendations imply that children will be subjected to detention based solely upon multiple arrest and not adjudication. The meeting had a pro-prosecutorial approach and not a mental health initiative. In fact, no one representing the Department of Behavioral Health attended.
Also present was the incoming APD Police Chief Sheila Ross, Chief Judge Boyd of Fulton County Juvenile Court and other politicians. During the meeting, Mr. Howard’s office presented a Power Point presentation, which included 5 recommendations to address “an increase in juvenile crime and to discuss incompetency” of juveniles’ incapable of understanding or comprehending their wrong or unlawful deeds.
Attorney Sherri Jefferson suggest that, failure to involve the community during the recommendation stage is problematic. AAJJP advocates under their Project “P” approach the importance of collaboration and partnerships between the parents, pastors, principals, physicians, psychologist/psychiatrists, pharmaceutical and the police, prosecutors, prisons and politicians. The mental health track and the criminal justice track often converge. Georgia criminalizes people with mental health disorders.
During the presentation, the citizens were inundated with data and case studies to support the recommendations of Mr. Howard’s office, which included civil commitment of children and the implementation of a review panel that does not include the local PTA, Private Defense Bar, or local organizations who work directly with youth. Furthermore, no citizens served on the panel to help make recommendations and no recommendations were made for the implementation of jury review panels that include members of the Project Ps.
The presentation never defined “Civil Commitment” and it did not seek input from the citizens of Fulton County. Rather, the question and answer session authorized people to ask about the recommendations, but not offer any recommendations for consideration. There exists a difference in that approach. Furthermore, the panel had more than two hours for their presentation of recommendations, but the wall-to-wall crowd was provided only one-hour to ask questions that were limited in scope. Although a survey was passed out to the participants, the questions were open-ended and did not permit recommendations. One of the questions asked: How many times should a person be arrested before being denied release?
Again, the emphasis is placed upon the number of arrest of youthful offenders and not the number of times they are adjudged delinquent/convicted of a wrongful act. This is critical to preventing capricious, arbitrary and discriminatory enforcement of law and unconstitutional violations. A child should only be subject to the system where he/she is declared delinquent. No child should be punished or subject to civil commitment based upon the number of arrest. Here, the state is shifting its burden. The use of the term “civil” is also a play of words because there exists nothing ‘civil’ about the forced detainment and commitment of children in restrictive environments who are also forced medicated.
The Truth About Juvenile Crime in Fulton County
During the meeting, there exist a lot of misinformation about juvenile crime in Fulton County. Contrary to recent reports, juvenile violent crimes have decreased. Juvenile “violent crimes” are not on the rise in Georgia or in Fulton County. In fact, based upon data released by the Georgia Department of Juvenile Justice, over the last two years there exists a significant drop in juvenile violent offenses involving weapons and sex crimes.
In 2012 there existed 25 sex crimes and 46 weapon charges. The youth were subject to “In-Take” by DJJ under their “unique youth served” heading. The data from 2013 shows a decrease and decline of only 12 sex crimes and 37 weapon cases, respectively. Again, these do not represent the number of those cases that were dismissed after investigation and trial. Nevertheless, contrary to the statements made during the town hall meeting, youth in Fulton County are not being released without careful review. Furthermore, no one can guarantee that upon release that people will not re-offend. We do know that the number of arrest should not be the litmus test to detain children or subject them to civil commitment.
Throughout the meeting, the presenters failed to explain to the residents and citizens of Georgia the definition of “Civil Commitment” and the difference between a juvenile arrested and accused of an offense versus a juvenile adjudged delinquent and in need of treatment (liable or guilty of an offense). The panel continued to engage in a play on words by suggesting that they were “seeking to help.” However, a civil commitment is the involuntary detention of a child to receive state ordered mental health services – it is “forced” treatment.
Per the Georgia Department of Juvenile Justice, the total number of youth detained during intake or initial arrest by the department between 2011 – 2013 is 1723 in 2011, 1875 in 2012, and 1796 in 2013. None of the youth were immediately released to the community. These youths were detained in secured facilities. The average length of stay in the detention facilities was 15 days and the average number of children detained daily during each year is seventy-five (75) youth. Of the children adjudged delinquent and in need of treatment, the average number of days of imprisonment in the youth prisons aka YDCs is 400 days. These our children who are incarcerated for non-violent offenses who also spend a year detained more than most adults for the same offenses.
Discriminatory Effect on African American Youth
Per the Census Bureau data, as of April 2015, Fulton County population is 1,010,562; African
Americans make up 44.3% of the population. Children under 18 years of age comprise of 23.9 of the population. In Fulton County, African American children make up almost 95% of all youth arrested and detained by the local police, school to prison pipeline and the Georgia Department of Juvenile Justice. In fact, per DJJ’s most recent data, in 2013 1348 males and 375 females were subject to secured detention, which included 1608 African American and only 41 were white. About 80% of these youth range between the ages of 13 to 16 and most of their offenses are non-violent property offenses. Worth noting is that the second largest offense falls under the category of “violent,” which includes school fights and battery without weapons. The next level is status offenses, which includes truancy, runaways, curfew and unruliness violations. Only 11 cases involved sex offenses and only 39 involved use of a weapon. Small number of offenses compared to the misinformation that suggest high incidences of violent crimes by juveniles or to support involuntary confinement based upon “violent arrest.”
Understanding the Unintended Consequences
During the meeting, the presentation failed to define civil commitment and the panel suggested that arrest absent conviction or adjudication of wrongdoing is the means to detain children. Attorney Sherri Jefferson disagrees because the implementation of Statewide Mental Health Courts for juveniles declared incompetent to stand trial is the necessary recourse not detention. If not watchful, Georgia will use its unbridle discretion in juvenile courts to incarcerate and detain children who suffer from mental deficiencies as the answer to multiple arrest – not convictions. Violation of the Eighth Amendment rights of juveniles is foreseeable and unconscionable. Children arrested for alleged offenses is not the same as being adjudicated delinquent and in need of treatment. However, throughout the course of the meeting, both Paul Howard, Sheila Ross and the panel continued to suggest that multiple arrest should subject children to detention and denial of release through civil commitment. In fact, the survey question mentions the same. These recommendations will lead to continued denial of constitutional safeguards of children in Georgia, especially African American children as well as the capricious, arbitrary and discriminatory enforcement of laws.
1. Mental Health Juvenile Courts or alternatively experienced special masters or judges assigned to preside over mental health issues in juvenile court who solely perform this task.
2. Weekends courts to assist parents and guardians with their work schedules.
3. When a child is arrested and there is reason to believe that the child has a mental deficiency (special education in school, medication for mental health, etc.) then, immediately invoke the mental health judge to preside over the 72-hour hearing and make recommendations with a mental health review panel, that includes experts in the field and members of the community and school.
4. Dismantle the old system that authorizes the same judge who presides over the 72-hour hearing (hearsay hearing) to preside over the trial. Children should be permitted to have the same safeguards as adults. Magistrate judges preside over 72-hour hearings and bonds and different judges hear evidence at trials and hearings.
5. Create uniform sentencing guidelines for children, which includes First Offender Treatment programs.
6. Every county must offer a mental health court or have special hearing judges to preside over these cases.
7. Each county must have mental health or psychiatric beds for their youth with a plan of treatment and services for each offender based upon their offense and the sentences must be uniform around the State to avoid indefinite detention.
8. Community based programs should receive funding to provide such services in the field of mental health.
9. The state’s civil commitment laws should only be invoked to provide timely treatment to youthful offenders in need of treatment for symptoms of psychiatric crisis and reduce incarceration.
10. Georgia should enact a Fair Criminal Records Reporting Act, which authorizes children to have their records deleted (just like the credit histories). Expungement and restrictions do not delete arrest and convictions – Georgia continues to treat arrest and conviction the same – recidivism is based on missed opportunities and forcing children into alternative schools based merely upon arrest and not convictions. (FCRRA is especially needed for our victims of sex trafficking).