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How Skipping School Could Land Kids in Jail

A controversial interpretation of a law intended to protect troubled teens has opened a new branch of the school-to-prison pipeline.
May 9, 2014· 16 MIN READ
Susan Ferriss is a reporter for the Center for Public Integrity and co-author of The Fight in the Fields, a history of Cesar Chavez and the farmworker movement.

She was barely 15 and scared at the prospect of being in court. She agreed to plead guilty to truancy. But when Judge Tim Irwin announced what he planned to do with her, the girl known as A.G. screamed in disbelief.

Guards forced the sobbing teen out of the Knox County Juvenile Court in Knoxville, Tenn., and clapped shackles on her legs. She had been struggling with crippling anxiety and what she said was relentless bullying at school. Now she was being led through a juvenile detention center to a cell with a sliver of a window and a concrete slab with a mattress. For skipping school.

“I cried all night long,” A.G. said. “It seemed like everyone was against us in court.”

Like tens of thousands of kids every year, A.G. was in court to answer for a non-criminal infraction that only a minor can commit called a “status offense.” These include skipping school, running away, underage drinking or smoking, and violating curfews. But because status offenses aren’t technically crimes, indigent kids don’t benefit from the constitutional right to the appointment of an attorney before they plead guilty.

That meant A.G., whose family couldn’t afford to hire a lawyer, was left with no trained defense counsel to argue that there might be justifiable reasons why she was having so much trouble going to school.

It also meant the girl had no counsel to object to her abrupt jailing in April 2008—a jailing that lawyers who reviewed A.G.’s file argue exceeded the court’s statutory power during the teen’s first appearance in court.

“A.G.’s incarceration immediately following her guilty plea for truancy, a status offense, was illegal under state and federal law,” asserted Dean Rivkin, a law professor at the University of Tennessee who later represented A.G. and oversees the Knoxville campus’ Education Law Practicum.

Owing to ongoing litigation, Irwin declined repeated requests for comment on A.G.’s case or those of other prosecuted truants, some of whom were also jailed.

A.G.’s lockup has never been investigated or reviewed on appeal. But it’s the type of allegation that has put Tennessee at the center of a national debate over whether status offenders should be guaranteed immediate legal counsel once in court—to ensure minors’ basic rights are respected—and under what conditions they can be incarcerated.

In late February, the nation’s top juvenile justice official quietly asked the Justice Department’s civil rights division to investigate whether Tennessee status offenders were wrongly deprived of legal counsel.

A .G., who was already in counseling, was so shattered by her shackling and detention that when she was released at 7 a.m. the next day her parents took her to a doctor rather than straight to school, as they said they were ordered to do. Their daughter had become suicidal, and she spent the next week in a psychiatric hospital.

Knox County, Tenn., Juvenile Court Judge Tim Irwin is admired for gestures such as handing out toys to small children in court. But U.S. Department of Justice officials are interested in allegations that truants Irwin has jailed should have benefited from appointed legal counsel. (Photo: J. Miles Cary/Knoxville News Sentinel)

Unraveling the Rules

Forty years ago, the federal Juvenile Justice and Delinquency Prevention Act barred states that receive federal juvenile justice funds from sending status offenders into detention, reflecting the widespread belief that incarcerating these minors exposes them to danger and bad influences. In 1980, though, Congress amended the 1974 federal act to allow judges a significant federal exception to the lockup ban. It’s called the “valid court order” exception.

The exception permits jailing as a last resort to try to control status offenders once they’ve pleaded guilty and gone on to violate instructions from the court: the valid court order. But lockup as a punitive response is only supposed to occur after courts hold multiple formal proceedings, give children time to comply with instructions, consider alternatives to jail—and take great care to ensure kids benefit from full due process rights, including the right to appointment of defense counsel for poor children.

This chance to obtain defense counsel must be afforded before status offenders face formal accusations that they’ve disobeyed valid court orders and could face jailing or removal from parents’ custody.

This act allows the detention before trial of some status offenders for less than 24 hours or over a weekend, but only under limited circumstances—such as credible concern that minors might not appear at a scheduled hearing or because police have found kids wandering on streets and no non-jail shelter space is available, or because parents are not immediately available to pick them up.

If states don’t ensure courts follow these requirements to provide legal counsel and limits on detention, they can get their federal delinquency-prevention grants pulled.

Nationwide in 2010, approximately 137,000 status offenders like A.G. were sent to courts, more than a third for truancy, according to statistics cited by the Vera Institute of Justice.

Whether all kids in courts, including status offenders, should automatically benefit from defense counsel is part of a broader national debate over just what legal rights children have, and whether the country’s confusing patchwork of state and local regulations is enough to ensure children are treated fairly.

Patricia Puritz, executive director of the National Juvenile Defender Center in Washington, D.C., said that across the country there is a disturbing shortage of timely legal representation to ensure kids’ rights are respected when they’re pulled into courts for crimes and for status offenses.

Elizabeth Diaz spent 18 days in an adult jail when a judge issued warrants to arrest minors and force them to pay truancy fines or get thrown in jail. Elizabeth’s $1,600 in fines had been imposed in a court where she had no lawyer. She missed her high school exit exam.

“Little people, little justice,” Puritz said.

The nonprofit is leading an ongoing project that dispatches observers to juvenile courts, so they can recommend, state by state, measures to improve proceedings that are supposed to be primarily rehabilitative.

Puritz said observers have witnessed kids facing serious repercussions with no lawyers to advise them, either because they were not afforded counsel or because they waived rights with a casual shrug that belied their lack of understanding of what was at stake. In 2006, observers reported that half the kids they saw in Indiana courts waived counsel even though they were accused of crimes.

Agitated parents, Puritz added, sometimes hope a rough court experience will scare a kid straight. But parents often fail to grasp, Puritz said, how pleading guilty even to a status offense can lead to penalties that could bedevil minors for years. She is concerned that minors, who are being processed through crowded courts, too frequently waive rights even in states with expansive rights to counsel on paper.

Knox County isn’t the only region where truancy has galvanized community crackdowns.

Communities want to increase graduation rates, boost collection of attendance-based funding schools lose when kids are absent, and keep kids off the streets. But aggressive campaigns involving prosecution are attracting scrutiny, especially when minors are not afforded counsel.

In Texas, teen Elizabeth Diaz spent 18 days in an adult county jail when a judge in Hidalgo County began a campaign in 2009 to collect old truancy fines. The judge issued warrants to arrest minors once they turned 17 and force them to pay—or get thrown in jail.

Elizabeth’s $1,600 in fines had been imposed in a court where she had no counsel. She missed her high school exit exam while jailed, the American Civil Liberties Union said, and was traumatized by harassment there. A federal court in 2012 ruled that her detention for failing to pay fines she couldn’t afford was an unconstitutional violation of due process.

A Continuing Controversy in Tennessee

Since late last year, The Center for Public Integrity has been reviewing previously sealed documents that suggest a vigorous pattern of locking up status offenders in Knox County. Families and attorneys there have also alleged that accused truants with diagnosed mental-health and other difficulties were shackled and jailed straight from court.

Children whose only infraction was struggling with a loathing for school were pulled into the criminal justice system, branded with permanent delinquency records and jailed alongside kids who had committed crimes, parents complained. All this happened without their kids having lawyers, some parents said, and some children dropped out of school.

T.W. was a 13-year-old middle school student. According to court documents, he was jailed twice without the benefit of legal counsel. Back in court in February 2009 after pleading guilty, T.W. was jailed overnight directly because his school reported he had accumulated more unexcused absences. In January 2010, T.W. tested positive for marijuana and, in court again, was immediately taken into juvenile detention again for several days.

But Rivkin argued in a case he brought in Tennessee that there was nothing in T.W.’s or the other plaintiffs’ files proving in writing, as required by state regulation, that they’d agreed to waive the right to defense. Debbie Jones, T.W.’s mom and a day care worker, said she feels the court’s treatment of her son made his problems worse.

Jones said T.W. loved school as a young boy. “I couldn’t pay him to stay home when he was sick,” she said. But at 13, he became reclusive and struggled with classroom learning. He pretended to board his school bus and hid out instead.

“He said he felt smothered at school,” Jones said.

For all the punitive treatment he received, T.W. never graduated.

University of Tennessee law professor Dean Rivkin has argued that incarceration of a minor immediately following a guilty plea for truancy violates federal law. (Photo: Lincoln Memorial University/Flickr CC)

The Education Law Practicum Rivkin supervises offers pro bono help to Knoxville-area families seeking special-education services. Irwin, the county’s elected and sole juvenile court judge, has refused to allow volunteer lawyers to set up a project at the courthouse to offer free counsel to accused truants as they arrive with their parents for hearings, according to Harry Ogden, a Knoxville business attorney who wants to participate in such pro bono representation. The idea to offer pro bono counsel to accused truants in Knox County is modeled after a similar project in Atlanta.

“This project can be a ‘win-win’ for the court, the school system, the D.A.’s office…and—most of all—at-risk children and youth,” wrote Rivkin in a December 2012 letter to Irwin.

Irwin did not respond to Rivkin’s plea and has also declined to speak to the center about his decision not to endorse the pro bono idea, which remains in limbo. Irwin privately confided to lawyers that he didn’t think accused truants had extensive unmet legal needs, according to Ogden.

On the court’s behalf, Knox County Law Director Richard Armstrong sent a letter to The Center for Public Integrity that said: “Children and their families are welcomed and encouraged to retain counsel in all matters brought before the juvenile courts of this state.”

But in March of last year, “know your rights” brochures that the volunteer lawyers had left in the court lobby for families of accused truants were removed, according to an email that Rivkin wrote to Irwin and sent to him via the judge’s administrative assistant.

“Needless to say,” Rivkin wrote, “we were surprised to learn that the brochures had been removed from the rack shortly after they were placed there.” Irwin did not respond to Rivkin’s email and an offer to meet to talk about the brochures.

Irwin, 55, is a 6’7” former University of Tennessee football hero who went on to a 14-plus-year pro football career. He has plenty of fans in Knoxville who admire his strong support for the local Boys & Girls Club, and gestures like passing out stuffed animals to small kids in court who could be taken from parents because of neglect.

“He’s a great guy,” Ogden said of the judge, “but when you’re 14 years old and standing in front of [him], you are probably about as tongue-tied as I was as a third-year law student in front of a judge.”

A.G. and other truants said that the judge, who’s been on the bench since 2005, was intimidating. “Nobody said anything about an attorney,” said A.G.’s mother, who had no idea what her daughter’s rights were before A.G. pleaded guilty and was taken away and put into detention. A.G. was required to return to court a month after being jailed and hospitalized, but she was still not afforded an attorney. She said that when she returned to court after her stay in a psychiatric hospital, she tried to tell Irwin about a diagnosis she was given of “school phobia” and bipolar disorder.

“He said, ‘I have a phobia too. It’s a phobia of kids not going to school,’ ” according to A.G.

Another five months went by before A.G. was appointed a public defender—on her third court appearance, as was then the practice, for a fee of $100. After several more months, with A.G. continuing to miss school and warned she’d be jailed again, the family was referred to Rivkin.

Rivkin was able to put a hold on the teen’s ongoing prosecution and began representing her in negotiations with her school.

A.G.’s case, her lawyers said, illustrates why they believe timely, trained counsel is in the child’s best interest: In spite of increasing difficulties at school, A.G. was not tested for special needs or offered an alternative education plan before her name was turned over for truancy prosecution. Instead, A.G.’s parents said, school staff advised them to ask police to force A.G. out of the house and into the school building. Reluctantly, they followed that advice, but it only deepened the family’s crisis.

School district staff said privacy rules prohibit them from discussing students’ histories. But Melissa Massie, executive director of student support services for the Knox County School District, said that she had not heard of staff advising parents to call police. She did say, though, that she was critical of some past anti-truancy efforts.

The Knox County District Attorney’s Office, which prosecutes truants, said children’s privacy rights prohibit staff from commenting on specific cases like A.G.’s.

Knox County District Attorney Special Counsel John Gill told The Center for Public Integrity that the D.A.’s office acknowledges that state and federal law do not permit jailing truants except when valid court orders are issued and kids are informed that they have a right to the appointment of an attorney.

Asked about general allegations that kids were put into detention frequently in recent past years perhaps without understanding their rights, Gill said, “There were some practices that hadn’t been scrutinized.”

“I’m not saying it hasn’t happened,” Gill said, referring to truants being jailed.

He said that he doesn’t believe that valid court orders are currently being issued in the court to handle truants or that they are being jailed. The D.A.’s interest, he said, is “getting kids back to school, not convictions and not in locking them up.”

When counselors take the time, they find that most chronic truants are struggling with learning disabilities, emotional distress or mental-health illness, bullying, violence, or financial or other crises.

Like the Vera Institute, Rivkin favors a “counter-narrative” on truancy: When counselors take the time, they find that most chronic truants are struggling with learning disabilities, emotional distress or mental-health illness, bullying, violence, or financial or other crises. In February, Rivkin also requested that the Tennessee Supreme Court review an appeal of one truant’s conviction; for the last two years, as part of a series of appeals, Rivkin has also been trying, so far in vain, to convince a state court to issue an opinion that would guarantee faster appointment of defense for accused truants. Few of these kids or their parents, Rivkin said, can be expected to understand that kids have more options than just pleading guilty in court.

In Tennessee, as in many states, statutes theoretically limit juvenile courts to initially responding to truants who plead guilty by issuing them monetary fines, ordering them to perform community service and putting them on probation, with instructions to follow, and initiating the valid court order process.

States are also expected to conduct audits to monitor how well courts are complying with the limits on putting status offenders in detention. Periodically, federal justice authorities review these state audits to look for patterns of violations.

Last November, Rivkin wrote to Robert Listenbee, the head of the Justice Department’s Office of Juvenile Justice and Delinquency Prevention, suggesting a hard look at the lockups of status offenders in Knox County and the rest of Tennessee. He suspected federal officials—while signing off on grants to the state—were not getting the full story.

In a reply to Rivkin dated Feb. 28 of this year, Listenbee explained that he had asked the Justice Department’s Civil Rights Division for an “investigation.”

Failure to provide counsel to kids facing incarceration, Listenbee wrote to Rivkin, “would be of great concern to all of us here,” if true, “and is not in keeping with the best practices outlined by this office.”

How Many Were Handcuffed, Shackled, and Jailed?

Rivkin has been trying to get data on how many of Knox County’s accused truants were locked up in the last several years, but Irwin has refused, arguing they were confidential. An associate of the Center for Public Integrity was told juvenile detention records with names redacted would require an upfront “processing fee” of $17,500. In the meantime, Rivkin was able to obtain, through an unofficial channel, an internal Knox court compilation tracing status offender histories over several years; the document contains no information about whether lawyers were appointed. It is illuminating nonetheless.

The center reviewed the compilation, which was submitted to the 4th Circuit Court. The review found that in 2009 alone more than 50 status offenders identified only by “client” numbers were put into detention. The only charge listed in connection with some lockups was truancy. Most followed a succession of prior appearances and prior detentions for a mix of infractions no greater than truancy, running away, cigarette possession, curfew violation and probation revocation, or valid court order violations.

One minor, the records show, appeared in court twice for truancy in 2006 and 2007, and then had probation revoked in 2008 and was put into detention that same year. The same minor was back in court again for tobacco possession in 2008, followed by revocation of probation again and detention again. In 2009, the minor was in court again for revocation of probation and again put into detention.

A young woman who asked to be identified as K.P. also has a history of cycling through court in Knox County during this time frame.

She said in an interview that she began refusing to go to classes because of sexual harassment she suffered daily on the school bus and because she had developed anxiety and other medical problems at school. She said the school refused to address her complaints, and she was not offered an alternative learning option.

In February 2008, when she was 15, she pleaded guilty to truancy, without the benefit of an attorney. K.P. and her mother today believe that a hostile court environment forced the family into a decision they regret and believe could have been avoided if they’d had legal counsel. She was arrested twice later that year and put into detention both times. She was accused of disobeying truancy probation, but she had no valid court order in her file, lawyers at the practicum who later represented her said.

Day care worker Debbie Jones said her 13-year-old son was jailed

twice without the benefit of legal counsel.

(Photo: Susan Ferriss/The Center for Public Integrity)

In September 2008, K.P. was held for several days in detention. There was nothing in her file to indicate that she was being held to ensure she would appear for a court hearing that had been scheduled. In December 2008, K.P. was arrested by police again, this time in front of classmates, while she was attending classes at the same school she was accused of failing to attend.

“Defendant was picked up at [redacted] High School on an outstanding petition for revocation of probation. She was transported to Knox County Juvenile Center,” an arrest report says.

In an interview, K.P. said that being put in handcuffs, shackles, and prison garb “only made me want to rebel more.”

When K.P. tested positive for marijuana while on truancy probation, her mother feared the court would take her child into state custody and foster care. The mother panicked and scrambled to find space in a secure drug and behavior rehab facility—for nine months—even though she didn’t feel K.P. required such treatment. The move satisfied the court, K.P.’s mother said, but “nearly tore us apart.”

“They walked all over us because we didn’t have a representative,” said K.P.’s mother.

K.P. said, “I lost a year of my life. Being at that rehab center didn’t help at all. It was awful. I felt like I didn’t belong there.”

Efforts at Reform

Rivkin estimates based on his own research that 33 states now ensure a relatively early right to counsel for truants during court proceedings. In Tennessee, a 2012 attempt to pass state legislation establishing an immediate right to appointment of counsel for truants died after it was estimated the state indigent defense fund would require an additional half a million dollars a year. But the figure would have represented a roughly 25 percent increase in funding for juvenile defense. That was too much for some legislators, said the bill’s sponsor, former Sen. Andy Berke, now mayor of Chattanooga.

Because of this failure, Rivkin believes it’s more important than ever to provide pro bono counsel to accused truants.

In some states, such as Pennsylvania, counsel is automatic and can only be waived after multiple steps to ensure children grasp what they are doing. Pennsylvania was rocked by a scandal a couple of years ago when two juvenile court judges in Wilkes-Barre were found guilty of taking bribes for sending kids who had waived counsel to do time at private detention camps.

In Washington state, the Court of Appeals found that all accused truants had a constitutional right to counsel from the onset of hearings that could lead to penalties. But the Washington Supreme Court overturned that ruling in 2011.

Last December, the board of trustees of the National Council of Juvenile and Family Court Judges took a different approach, urging Congress to eliminate the valid court order exception as part of a long-overdue reauthorization of the 1974 federal juvenile justice act. Back in 1980, this same judges’ group urged Congress to include the valid court order exception.

In 2009, Sen. Patrick Leahy, D-Vt., proposed eliminating this exception in the reauthorization of the act—which Congress has still failed to do. And in March of this year, Rep. Tony Cardenas, a Democrat from California’s San Fernando Valley, also introduced legislation to get rid of the valid court order.

Federal official Listenbee, a former defense attorney, is starting to speak out more in his new role as the nation’s top juvenile justice official.

In a speech he gave last August, he warned that detention should not be taken lightly. “Research has…shown,” Listenbee said, “that the minute a youth sets foot in detention or lockup, he or she has a 50 percent chance of entering the criminal justice system as an adult.”

In March, Listenbee responded to The Center for Public Integrity’s inquiries about when his office believes status offenders’ right to appointment of counsel begins.

Language in the federal regulations does not specifically address whether judges must afford appointment of counsel to kids before they are issued valid court orders, Listenbee acknowledged. He believes that this is the intent. He also said he doesn’t believe states can claim they’re following the rules unless they ensure that courts provide counsel before valid court orders are meted out.

“Attorneys should be appointed in advance so they can have an opportunity to meet with their clients and properly prepare for the hearings,” Listenbee said. “We make this clear in our training [for state officials] and do our best to emphasize this expectation in communicating with states around compliance matters.”

In January, auditors on a visit from Listenbee’s office found that Tennessee must “prioritize training and technical assistance” to ensure respect for due process and the valid court order process. But auditors only examined 2012 data.

Back in Knoxville, John Gill, the county D.A.’s special counsel, said that office has been working more diligently with educators and social workers to address the roots of truancy and avoid putting kids into court.

About 80 percent of initial truancy complaints the D.A. gets are resolved now, he said, after families attend meetings where they are warned to straighten out problems. New petitions—not including ongoing petitions—to prosecute these kids declined to 65 in 2012, compared with 76 in 2011.

Knox County Assistant Public Defender Christina Kleiser said the court’s reaction to truancy seems to have softened. But not long ago, when police were referring to truancy as a “gateway crime,” Kleiser said many truants were getting locked up over weekends to demonstrate the court’s toughness.

Massie, who leads the school district’s student support services, admits to inconsistent intervention in the past to help struggling students who were frequently absent. Educators, she said, are now required to follow an intervention checklist and convene meetings more promptly with parents so specialists can evaluate students and plan targeted support.

“I think the truancy program is much better than it was before,” she said.

But she said that by statute, the district is still required to provide the D.A.’s office with names of students when they reach more than 10 unexcused absences.

Although his pro bono services remain little known, Rivkin said, two parents contacted him this year complaining that children with emotional problems were threatened at school with jailing if they missed more school. Last fall Rivkin also met, by chance, Carla Staley, a mom who received a warning letter from the D.A. accusing her son Lowell, 13, who has cerebral palsy, with excessive absences that could land him in court.

As for A.G. and K.P., they’re both 20 now. It was only last summer, after both young women turned 19, that Rivkin and McGee were legally able to request that Irwin expunge delinquency records the young women said they didn’t even know the judge had given them back when they were minors. The judge granted the requests to expunge the records.

Delinquency records equate status offenders with kids who’ve committed crimes. And they remain on file, if they aren’t expunged. A delinquency record can follow a youth, surfacing to jeopardize job, college, and other applications, lawyers warn.

After the practicum began to represent A.G., more than a year after she was jailed, A.G.’s school finally designed a learning plan that shielded her from crowds of students and bullying and enabled her to graduate in 2011.

Looking back, K.P. said the adults who ultimately helped her finish high school in 2011 were the lawyers at the practicum, who pushed for the school district to evaluate her for special needs and provide her a special-education plan—after she was twice jailed and put into unnecessary rehab for nine months.

With lawyers’ help, she said, “I actually graduated a year early. So much for being the bad kid.”

This story was published by The Center for Public Integrity, a nonprofit, nonpartisan investigative news organization in Washington, D.C. Read the Center for Public Integrity version of this story.