Why Did the National Prison Strike Float Under the Nation’s Radar?

Although inmates in just 16 states reportedly participated in the prison strike that began last month, their complaints deserve a better national hearing than they received, prison reformers tell The Crime Report.

The national prison strike that ended Sunday appears to have escaped the attention of most of the country’s lawmakers. Members of Congress responsible for national prison policy admitted to not knowing anything about the 19-day strike that began last month.

And the topic didn’t appear to have come up in the much-publicized White House meeting last week between President Donald Trump and public figures such as Kim Kardashian, which was ostensibly called to discuss prison reform as well as clemency policy.

Past prisoner actions, most notably the 1971 Attica Prison riot in upstate New York, whose 47th anniversary was marked on Sunday, have garnered major headlines. So why did this one float beneath the nation’s radar?

“That’s because it was a peaceful strike,” said Dr. Breea Willingham, a criminal justice professor at State University of New York at Plattsburgh.

“If people were getting killed inside those prisons, people would have been all over it.”

The relative lack of attention to the strike underlined the continued indifference to widespread claims of abuse and inhumane conditions inside the nation’s prison system, observers and prison activists told The Crime Report.

Last month’s protests mostly took the form of inmates refusing to eat, spend money at commissaries and work—but of there had been violence, similar to the Sept. 9, 1971 Attica Prison uprising, which took the lives of 43 people (including 33 inmates and 10 guards and civilian prison employees), it would probably have further harmed the inmates’ case, said Willingham, whose expertise includes the impact of incarceration on families, and race and crime in the media helped.

“(People) would have said ‘see, this is exactly why those prisoners need to be locked up,’” he said.

Perhaps another reason why the strike didn’t garner increased coverage is because it wasn’t widespread enough. Reported protests occurred in only 16 states and even those did not involve the entire inmate populations.

Strikers in Alabama, for example, were among the strike’s major organizers in the beginning, but they appeared to back down—for reasons that are still unclear.

Paul Wright, executive director of the Human Rights Defense Center and editor of Prison Legal News suggested inmates there may have felt intimidated by the authorities.

“The reality is the prison officials that run these systems, they run their system by violence,” Wright told The Crime Report. “They’re petty, they’re vindictive, there’s no oversight.

“They can and do retaliate against people, usually for the pettiest and most trivial of reasons, and it’s not like anyone’s going to stop them.”

It’s not clear how many states participated in the strike, and even reported events are being questioned. Vicky Waters, California Department of Corrections and Rehabilitation’s press secretary, rejected reported claims that a 26-year-old inmate named Heriberto Garcia went on a hunger strike in Folsom State Prison.

“There were no protests or inmates on strike,” Waters said. “Some misinformation has been reported, but we did not have any hunger strikes, work stoppages, or any participation from inmates across our state prisons.”

Reports, however, suggests that inmates in San Quentin protested with the support of family and allies who stood on the outside, marching and chanting.

Willingham says the attention the strike received shouldn’t have been predicated on the size of the strike, or how many incarcerated people were involved.

“The people who were striking are enough for people to pay attention,” she said. “These are human beings, and they’re fed up.”

The national prison strike was sparked by a deadly riot that killed seven inmates in Lee Correctional Institution in April, and wounded over a dozen more. With the help of the Incarcerated Workers Organizing Committee—a part of the Industrial Workers of the World—strikers published a lists of demands that included the right to vote and immediate improved prison conditions and policies.

“It’s not like what they’re asking for is unreasonable,” Willingham said. “These are basic human rights.”

The U.S. has the world’s largest prison population with 2.3 million people behind bars.

J.Gabriel Ware is a TCR news intern. Readers’ comments are welcome.

from https://thecrimereport.org

Sex Trafficking: Can Private Investigators Fill Gaps Left By Police?

In Part Two of our investigation of America’s sex trafficking crisis, TCR finds a burgeoning “niche” industry of private nonprofit groups—many comprised of ex-cops or military operatives—who operate outside law enforcement. One former FBI agent maintains that if such groups didn’t exist, the picture would be a lot grimmer.

“Hey baby, where are you at?”

John Rode, a 62-year-old private investigator, answers the phone while driving down the Florida coast with the breezy response he perfected working as a Miami Vice officer for 24 years.

private investigators

On the road: Former lawmen John Rode (L) and Justin Payton use their car as the nerve center for their sex-trafficking investigations in Florida. Photo by Megan Hadley.

But he doesn’t answer as “John.” He gives his name as “Rick”—one of the pseudonyms he uses when he responds to an ad for sex. A prostitute is on the other end of the line, and Rode is pretending to be a potential client.

It’s one of the tried-and-true techniques that Rode and his partner, Justin Payton, 38, a former U.S. Marshal, use in their search for sex trafficking victims, who can be mistaken for consenting prostitutes, in Florida.

The two find the women on sex-for-sale websites that opened up when Backpage.com was shut down by the federal government last Spring. Their casual approach usually produces an address from the prostitute, and they spring into action. When Rode hangs up the phone, he and Payton head to the location.

Rode, wearing a small, hidden bluetooth camera, goes inside while Payton waits outside the door. Payton confided that his presence provides needed backup just in case a pimp is nearby and getting suspicious—but the two investigators have not encountered a violent situation in the year they have been operating.

private investigator

Justin Payton (in foreground) watches as his partner checks out a motel room which was advertised in a sex site. Photo from Jack Hadley video.

Inside, after talking with the woman, Rode has to make a quick judgment about whether or not she is being held against her will (which would make her a victim, rather than a prostitute, under Florida law.) He credits this quick judgment to a “gut feeling” that he developed working in law enforcement.

After the conversation is over, he tells her he forgot to bring cash, walks out, and if he thinks she’s in danger he makes a call on his cell phone to police so they can further investigate.

If the woman is recovered by authorities, Rode and Payton can chalk up a small victory in their battle against the seamy underworld players who have driven south Florida’s growing sex trafficking crisis.

This is a typical afternoon for Rode and Payton, who work from their cars rather than behind a desk— in fact, the two don’t have an office, and work from their phones. We drove down I-95, a popular highway for transporting sex trafficking victims, in an undercover operation in pursuit of pimps and underage girls.

private investigators

John Rode (L) worked as a Miami Vice Squad detective. His partner Justin Payton is a former U.S. Marshal. Photo courtesy Global Children’s Rescue.

Rode uses a fake phone number on an app called “burner” to hide his identity. And, they switch rental cars frequently to avoid being followed.

When Rode and Payton aren’t patrolling the internet for underage or exploited women, they’re working individual missing-children cases. According to Rode, the two go hand-in-hand, because missing children often become victims of sex trafficking within the first 48 hours that they disappear.

However, most of the “missing” children are actually runaway cases, rather than actual kidnappings.

The two private investigators are co-founders of Global Children’s Rescue (GCR), a small non-profit based in Fort Lauderdale whose clients are usually the families of runaway girls. They are fully funded by fundraisers, private donors and businesses.

They use their law enforcement training and street experience to look for clues to the girls’ whereabouts—in bars, runaway shelters, hotels or brothels—often stepping in when desperate families say that local police have given up, or never took the case seriously in the first place.

But they are not the only ones.

In Part Two of an investigation of human trafficking, The Crime Report found what amounts to a niche industry of non-profit organizations comprised of former law enforcement operatives which have sprung up in Florida and across the county in response to the sex trafficking crisis that many say has outpaced the ability of local police to cope.

EDITOR’S NOTE: In Part One of our three-part investigation, The Crime Report spoke to the mothers of three young girls who were trafficking victims in Florida, and one victim herself, all of whom claimed they received little or no help from local law enforcement.

Roots of the Trafficking Crisis

According to Payton, Florida’s sex-trafficking trade has flourished in part because of the lack of sufficient police personnel to address it, and in part because of the lack of appropriate policies or guidelines in local police agencies that could help law enforcement identify and assist trafficking victims.

“To be honest, every department can’t run around looking at every case and put up helicopters looking for missing kids,” Payton told TCR. “It’s not (for lack of interest) by the officers, or even by the chief of police. It’s the way the system is set up.”

GCR’s Rode and Payton believe they fill a critical gap in the battle against traffickers.

Since they began operating last year, the investigators devote a large portion of their time to finding children whose parents or caregivers report as missing or runaways—situations which often lead them to sex-trafficking operations. Of the 30 missing-children cases they have worked to date, they claim to have found about 25 kids. Some cases are closed when a runaway returns home on her own, but others have led Rode and Payton to young girls who have been recruited by traffickers.

John Rode

John Rode credits GCR’s success in finding trafficking victims to its “quick response” to reports of missing kids. Photo from Hadley Videos.

They credit their success to their ability to step in quickly as soon as they hear a child is missing—pointing out that such a quick response is crucial before the victim is swept up in the shadowy sex-for-sale underground, and disappears.

One of the techniques that works for them is their ability to “saturate” an area, which can scare the runaway child into coming forward.

“We’re effective just by being out there,” said Payton. “We’re dealing with family. Talking to business owners. Talking to Uber drivers. Bartenders. You name it. We put the pressure on, and that gives us hope that this system could work.”

Non-Profit Rescuers

As it turns out, they aren’t alone. In a month-long investigation, TCR found at least five anti-trafficking organizations in Florida and elsewhere in the country (including Global Children’s Rescue), similarly staffed by former law enforcement or military personnel—and it is by no means an exhaustive list. Our sources suggest others are moving into the field.

They include the following:

  • Global Children’s Rescue (Fort Lauderdale, Fl.)
  • Phantom Rescue (Hollywood, Fl.)
  • Saved in America (Southern California)
  • Operation Underground Railroad (Anaheim, Ca.)
  • Human Trafficking Investigations and Training Institute (Washington, D.C.)

Phantom Rescue, a non-profit based in Hollywood, Fl., staffed by former special operations military officers, helps local authorities rescue children who have been bought, sold and traded for sex.

This group specializes in patrolling the “Dark Web”—an area of cyberspace that has flourished as the home for illicit dealers in everything from drugs and guns to sex. Increasingly, it has become an underground place where children can be bought and sold.

And the tools used to find them are just as secretive.

“We do not disclose any information on the information on the recovery of a missing child,” Tony Sparks, the founder and director, told TCR.

“Your readers could potentially be anyone, even human traffickers.”

Sparks, a former military special operations officer, claims that trained ex-law enforcement professionals are among the most effective operatives in the world of human trafficking.

phantom rescue

Phantom Rescue’s website–one of five nonprofit groups claiming to rescue trafficking vicitims.

Free to operate outside the restrains of police bureaucracy, Phantom Rescue (like GCR) claims its operatives can often spend time and resources that financially strapped police agencies do not have.

Operation Underground Railroad (O.U.R.) is even more explicit, claiming on its website that its worldwide activities “enhance” law enforcement when budget shortfalls otherwise prevent authorities from aggressively pursuing “child pornography, child exploitation or human trafficking operation.”

In its four years of operation, O.U.R. claims to have rescued 1,500 children and assisted in the arrest of 570 traffickers.

Other organizations claim similar success.

For example, Saved in America, a non-profit located in California which numbers ex-law enforcement agents as well as former Navy Seals among its operatives, claims to have rescued 82 children since 2014.

According to its website, Saved in America deploys four teams of special ops, five retired police investigators, 16 retired special operators, two social networking investigators, and two state firearms instructors.

But are they really necessary?

According to former FBI agent Greg Bristol, they are. Bristol maintains that if the groups now operating outside law enforcement didn’t exist, the picture would be a lot grimmer.

Bristol recalled that when he left the FBI in Washington, D.C, he was the only one working human trafficking cases.

“Police departments have resources,” said Bristol, who now runs the Human Trafficking & Investigations Training Institute. “They’re just choosing not to use them.”

Bristol’s organization develops human trafficking awareness and investigative training programs for former law enforcement agencies across the country. His courses focus on helping officers detect the telltale signs of human trafficking through skillful interviews of victims—much like the techniques Rode and Payton use.

But he argues police have always been a step behind traffickers.

Most police departments, he contended, seem too often more interested in training their officers about radar guns then educating them on sex trafficking.

“If they need to get an officer certified on a radar gun, they’ll spend five days to do it,” he said in an interview. “But certifying them to be human trafficking investigators… they aren’t doing it.”

Some states are more progressive than others in addressing the problem, Bristol said, adding that Florida is not one of them.

Payton and Rode would agree.

Butting Heads

The two private investigators say they regularly butt heads with law enforcement agencies in their area (they cite Fort Lauderdale as one example), claiming that local cops are often reluctant to follow up on leads they provide about underage or endangered young women.

The Crime Report contacted the Fort Lauderdale police department and invited them to comment on Rode and Payton’s claims.

In an email statement prepared for TCR, detective Tracy Figone responded that the department is “open” to working with outside organizations “to enhance our resources for Missing Children / Human Trafficking investigations.”

“Fort Lauderdale Detectives investigating this type of incident will accept any information provided by an individual or outside organization, but will not provide specific details on an active investigation to non-law enforcement entities, [since] this may interfere with their investigation.”

They did not, however, respond to TCR’s questions about the specific allegations by Rode and Payton about how police handle such investigations.

Global Children’s Rescue and other groups argue that trafficking investigations led by law-enforcement could benefit from the street knowledge and fast-response strategy employed by experienced private investigators and other former law enforcement operatives.

Private investigators also don’t face the same red tape that police officers do.

Jessica Vera, founder of ELITE Foundation, a non-profit combating human trafficking in Fort Lauderdale, explained that if a PI wants to bust down the door, he can.

“They don’t have the same constraints as law enforcement,” she said. “They don’t have judicial process and so forth, so they can find out a lot more and pass information to law enforcement.”

miami beach

Observers predict that south Florida will become the country’s number-one hot spot for sex trafficking in2020 when Miami hosts the Super Bowl. Photo from Hadley Videos.

Vera, predicting that Florida will be the number-one sex trafficking hotspot in 2020, when Miami hosts the Super Bowl, said Florida needs a lot more trained personnel like Rode and Payton to fight the crisis.

“I was impressed Rode and Payton have taken on this uphill battle,” she said, adding that law enforcement could benefit from their help. “They need an army.”

Rode’s persistence and instincts, honed during his years as a veteran cop, have been critical to his success in rescuing young girls from traffickers.

backpage

Backpage.com was shut down by the Feds last Spring. Photo by edkohler via Flickr

In the summer of 2016, a man posted a sex-for-sale advertisement on Backpage.com offering the services of a 19-year-old girl (who was actually 17 at the time), and advertising her availability at a major hotel in Plantation, Fl.

Young, and Frightened

Rode found the ad online and, in accordance with his technique, showed up at the hotel room he was given, wearing his hidden Bluetooth camera, and posing as a paying customer. It didn’t take him long to register how young the girl was, along with the scared look on her face.

It was also clear that she wasn’t “working” for herself. An older man waited outside the elevator, watching the room.

After leaving with his standard apologies of having no cash, he called detectives whom he knew at the Plantation police department. At first, they were reluctant to come out, Rode said—but when they did, detectives discovered the girl had been raped by eight different men who had paid the older man for her “services.” The man was arrested.

The City of Plantation Police Department did not respond to The Crime Report’s request for a comment.

According to a subsequent police report of the case, reported by the local ABC news affiliate, the girl screamed for help at one point and said she was prepared to jump out of the fourth-floor window in an attempt to escape.

The man, who was charged with human trafficking and sexual battery of a minor, is currently in jail awaiting trial—scheduled in September.

Rode claims that if he had not insisted that detectives come to the scene, the young girl might not have been rescued.

Not everyone, however, buys their argument.

Tony Sparks of Phantom Rescue said he was “shocked” at the claim by Rode and Payton that they received a cold shoulder from local law enforcement.

“They probably just haven’t established themselves yet,” he said. “Law enforcement wants our help.”

Opinions remain divided however about how law enforcement responds to outside help.

Jumorrow Terra Johnson, president of the non-profit Broward (County) Human Trafficking Coalition, said that while her organization has great relations with the Fort Lauderdale police department, officers’ mentality about human trafficking needs to change.

She told TCR she believes the Fort Lauderdale police are “making strides” in this area, but she added law enforcement often views trafficking victims through a narrow lens, noting that police often have misleading preconceptions of what a trafficking victim “looks like.”

“You can’t distinguish between good victims and bad victims,” she said, noting that the trauma experienced by trafficked girls sometimes leads them to conceal what they have gone through—and thus lead officers to think they have been willing participants.

“When you don’t know what it is and you’re not interested in learning what a victim might look like, you can punish a victim for being trafficked.”

Johnson’s organization is one of many human trafficking coalitions established in Florida. Now, there is one for almost every county in the state.

Florida also developed the Statewide Council on Human Trafficking, created by state Attorney General Pam Bondi in 2014, which comprises law enforcement officers, prosecutors, legislators, as well as experts in the fields of health, education and social services.

The council, whose responsibilities range from recommending enhanced coordination between prosecutors and law enforcement in apprehending traffickers, to developing safe houses and safe foster homes for victims, is one of many state-sponsored organizations in Florida that have emerged to cope with Florida’s trafficking crisis.

But according to Rode, these official responses still fall short of what’s needed.

The different coalitions and task forces “don’t get involved in cases unless it’s a high profile actual abduction or kidnapping,” he claimed. “They don’t go out and deal with the families. They don’t deal with every runaway girl who has the potential of being a human trafficking victim.”

“I wish they would.”

Sex Workers are Skeptical

The methods of private investigators have also come under fire from the sex-worker community.

Turning over sex trafficking victims to the police can often do more harm than good, according to Terra Burns, researcher and founding member of the Community United for Safety and Protection (CUSP), a group of former and current Alaska sex workers allied with sex trafficking victims.

Burns argued that when Payton and Rode alert law enforcement to trafficking victims, many end up facing criminal charges for prostitution.

She explained that sex trafficking laws are often used against victims, who can be charged with something like “aiding or facilitating their own prostitution” or “conspiracy to traffic themselves.”

“Generally, it would not be helpful for them (Rode and Payton) to turn victims over to the police,” said Burns.

Christa Daring, Executive Director of  SWOP USA , a sex-worker advocacy group, agreed.

“These young girls can be trafficking victims and still charged with illegal prostitution. In most situations, police are trying to get their arrest stats up, and picking people up for prostitution is an easy way to do that,” she said.

Especially trans people and people of color, she added.

According to Kimberly Mehlman-Orozco, author of Hidden in Plain Sight: America’s Slaves of the New Millennium, the emergence of private investigators in the sex trafficking industry only underlines the failure of law enforcement and other authorities to take the problem seriously enough to develop ways to prevent trafficking in the first place.

GCR and similar organizations shouldn’t be necessary, she told TCR.

“My preference is for law enforcement to be trained and given resources on how to effectively rescue victims and follow them through to conviction,” she said.

“If they are receiving information and not acting on it, I would rather find ways to hold law enforcement accountable.”

Payton and Rode don’t necessarily disagree, but they argue that in the absence of systematic approaches to the problem, organizations like theirs are needed to provide 24/7 assistance to victims and their families.

Megan Hadley

Megan Hadley

But in a perfect world, this crime wouldn’t exist, and nobody would become a victim, Rode said.

“Unfortunately we live in a very dangerous society where people become victims. And it’s not going to stop. And we’re not going to stop either.”

“We never stop searching.”

Megan Hadley is a senior staff reporter for The Crime Report. She welcomes comments from readers.

from https://thecrimereport.org

Hot Car Deaths: Why Do Parents Still Face Prison for a ‘Normal’ Memory Lapse?

Since 1990, at least 146 parents and caretakers have been convicted in hyperthermia deaths after unintentionally leaving their child in a vehicle. Neuroscientists and child safety advocates say these tragedies are the result of a phenomenon known as a “prospective memory” failure—not criminal negligence—and might have been prevented by public education campaigns.

In late June, 38-year-old Nicole Engler unintentionally left her only child to die of hyperthermia in a hot car. Hours later, tearing her hair out and begging police to let her commit suicide, she was in the county jail, facing second-degree manslaughter charges.

Her attorney picked up the phone and called neuroscientist David Diamond in Florida to ask for his help—and for the 19th time in his career, Diamond agreed to tell a court why parents and caretakers lose awareness of children in the back seat of a car.

Of the average 37 cases of child hyperthermia deaths each year, the majority result from what are called “prospective memory” failures, rather than willful neglect or negligence, according to Diamond.

Other scientists and child safety advocates say that widespread ignorance of how our memory system works has thwarted prevention efforts, and kept avoidable tragedies under the sole purview of criminal courts.

Diamond claims the explanation he’s developed amounts to “textbook science.” He once called it “forgotten baby syndrome,” but now says this is a misnomer.

“It’s no more a syndrome than ‘forgotten cell phone’ is a syndrome,” he said in an interview with The Crime Report. “It is a normal but tragic form of forgetting.”

The phenomenon attracted national attention in 2009, when Gene Weingarten of the Washington Post detailed the brutal aftermath of similar cases of children who died in hot cars in a story called Fatal Distraction: Forgetting a Child in the Backseat of a Car is a Horrifying Mistake. Is it a Crime? 

Weingarten won a Pulitzer for his story, which he had hoped would save babies. My goal,” he explained later, “was to convince people that these cases are accidents, terrible accidents, to let it be known that these parents aren’t monsters, and to raise awareness so it happens less often.”

But in the nine years since Fatal Distraction appeared, another 204 children have died under similar circumstances, raising the total number of these accidental deaths since 1990 to over 460, according to data shared with TCR by the Kansas-based nonprofit Kids and Cars.

Ironically, the phenomenon emerged following recommendations aimed at protecting children in cars. In the early 1990s, the introduction of passenger side airbags made it unsafe to put small children in the front seat, and several states passed laws requiring children to ride in the back.

air bags

Table courtesy kidsandcars.org

Since that time, far more children have died of heatstroke in cars than were ever killed or injured due to overpowered airbags.

Twenty-one states have passed legislation making it illegal to leave children unattended in a car, but these laws haven’t made a dent in accidental fatality rates. It has, however, made it easier to convict someone who left their child behind accidentally.

Since 1990, at least 146 parents and caretakers have been convicted on charges ranging from murder to negligence in heat stroke fatalities after apparently forgetting their child was in the vehicle, according to Kids and Cars. In the nine cases where he’s provided testimony, Diamond’s arguments have been persuasive: only two trials have resulted in a guilty verdict, and neither parent wound up serving time in prison.

Yet there has been little meaningful response from policymakers, according to Janette Fennell, founder of Kids and Cars, an organization that tracks how often children are injured, abducted, disabled, and killed because they were left unattended in or around a vehicle.

Although child hyperthermia deaths are relatively rare, Fennell argues one reason they are treated far more severely under the law than other, more common, accidental injuries may be due to the moral outrage and public cries for justice in response to the perception of the “visceral” suffering of a child trapped inside a hot car.

“If you look at drownings compared to some of these cases, they’re not prosecuted at the same rate,” she said in an interview “And it’s the same thing. In one instant you can forget to take [your child] out of a car, and if you turn your back one instant they can end up in the pool.”

Fennell also believes that parents are demonized as a kind of defense mechanism.

“You’re so repulsed by what’s happened that if you make a monster out of that person, then you know you’re not like that. They’re a monster because they forgot their child— ‘I’m a good parent, I’m not a monster, so it can’t happen to me,’ ” she told TCR.

TCR interviewed six neuroscientists and cognitive psychologists who say widespread misconceptions about memory prevent parents from taking appropriate precautions. They say most parents are not aware of the real risk that they might forget to drop their child off at daycare on the way to work, and suggested simple measures parents can take to help prevent these tragic memory lapses.

“My sense is that many simply don’t think that taking your child to daycare is vulnerable to forgetting,” said Gil Einstein, a psychologist at Furman University who has dedicated his career to studying how we remember—and forget—things we intend to do in the future.

“The importance of it lulls them into not engaging in behaviors that will ensure remembering.”

“You can’t expect people to know this unless they’re educated,” adds Mark McDaniel, professor of Psychological and Brain Sciences at Washington University. McDaniel and Einstein are credited as being two of the most influential researchers in the field of prospective memory studies, which focuses on our ability to carry out things we intend to do in the future.

“Most people would think— no, I would never forget that. But in fact, memory theory says yes, you could forget that.”

In the meantime, criminal law appears to hold people to a standard of care that could be possible, given the right public health and policy response—but that currently doesn’t exist.

The Study of Forgetting

Fourteen years ago, a reporter called Diamond out of the blue asking him to explain how parents can forget their children in the back seat. He remembers saying: “You can forget a lot of things in life; you just don’t forget a baby in a car.”

At the time, Diamond was a highly regarded neuroscientist at the University of South Florida, who had spent much of the previous two decades engaged in government-supported research into the effects of Post-Traumatic Stress Disorder (PTSD) on the brain and memory. One of his areas of expertise was forgetting, he said; but he was nonplussed by the reporter’s question, and “reacted more as a parent than as a scientist.”

Nevertheless, he found the question intriguing enough to investigate further, eventually dedicating a large part of his research efforts to studying this phenomenon. One of the biggest obstacles to preventing such tragedies, he believes, is the reluctance of many parents to believe it could happen to them.

“Because we are in denial that we would ever forget a child, we don’t take any measures to remind ourselves,” Diamond said. “We almost feel like we would be negligent to have to remind ourselves.”

It comes down to the fragility of our prospective memory system, he explained—that part of our memory responsible for the things we intend to do in the future, as opposed to retrospective memory (recall of past events). According to Diamond, prospective memory is processed by two brain structures: the hippocampus, which stores all new information; and the prefrontal cortex, which is “essential to making plans for the future.”

David Diamond

David Diamond/ University of South Florida

Cognitive psychologists Mark McDaniel and Gil Einstein agree that this type of memory is both misunderstood and highly susceptible to failure; and that it can happen to the most loving and attentive parents.

An overview of fatal incidents shows that fathers and mothers are equally prone to this kind of lapse. While the facts of each case are different, Diamond, who has interviewed parents and studied police reports, says he’s noticed two circumstances that always exist in cases where parents forget their children.

First, there is some interruption in the parent’s usual routine—some deviation, however slight, that overlaps with his or her habitual driving route.

“Kids are never, and I mean never, in my experience, forgotten when the driver follows a route that always includes taking the child to daycare,” he said.

Even the act of switching from one lane to another can be enough to activate the “habit brain system,” Diamond explains, centered around the basal ganglia, which then “shuts down the conscious awareness of the child” and automatically takes the driver to work instead.

A ‘Classic’ Case

The case of Nicole Engler, said Diamond, is “absolutely classic.”

Nicole’s husband Peter usually brought his daughter to the Cobb Street Children’s Learning Center in Roseburg, Ore., each morning. But one morning this June, Nicole saw her husband asleep after his night shift as an Emergency Medical Technician, and wanted to give him a break. She gathered Remi, put her into her car seat, and headed out to drop her at daycare on her way to work.

Nicole drove across town following the same route she took six days a week, and automatically began thinking about her job as a pediatric nurse, according to her attorney.

“She normally didn’t bring her child to daycare, her habit system took over, she lost awareness of the child, she exited the car, went to work. I mean, there’s no complication to her case. It’s absolutely straightforward,” said Diamond, who interviewed her at length.

“It’s that quick that the habit memory system takes over and imposes its will to take the person on a well-traveled (childless) route.”

At 4:30 pm, after a full day of treating patients, Nicole walked out to her car and found Remi, lifeless.

Over the years, Diamond also discovered that people who forgot their children—including those who had near-misses—felt sure they had brought their child to daycare.

“I’ve talked to so many parents,” he told The Crime Report. “They say, ‘Well I’m sure I must have taken my child to daycare. Because where else can my child be?’ The brain takes that logic statement, and then creates a certainty.TCR found over half a dozen fatal cases in which the same parent who forgot their child in the back seat went to pick them from daycare at the end of the day. The same devastating scene unfolds in each story: In Mississippi, a mother went to the Little Footprints Learning Center to pick up her two-year-old girl, only to be told she had never been dropped off. The mother found her child strapped into her car seat, dead of heatstroke.

In Texas, a mother went to pick up her one-year-old son from the Kreative Kids Learning Center, but the daycare workers said she had never dropped him off. She ran back to the car, and found the boy dead in his rear-facing car seat.

Similar incidents have occurred in North Dakota, Virginia, Missouri, Montreal, and Negev, Israel.

“This is actually studied in a laboratory,” Diamond said, referring to what’s known as the Deese-Roediger-McDermott (DRM) paradigm, a method of experimentation developed by cognitive psychologists in 1995 that allows researchers to create false short-term memories in test subjects.

These are not the artificially created “repressed memories” of childhood sexual abuse that have a checkered history in the courts, he clarifies. “What we’re talking about here [is] when someone makes an assumption that something happened, that assumption becomes a memory.”

Like other parents—some of whom were charged with a crime, others not—Nicole was sure that Remi was exactly where she was supposed to be. At lunch time, stopping at a drive-through coffee shack, she chatted with baristas who asked about her daughter. Nicole told them Remi was at daycare.

Two hours after discovering her tragic mistake, Nicole was in the Douglas County jail, begging to take her own life. Her attorney, David Terry, was unable to discuss the charges against her at their first meeting.

“She was alternating between quiet sobbing, hysterical weeping, and putting both hands deep into her hair and violently ripping hair out of her scalp,” He told TCR.

Nicole was on placed on suicide watch until her arraignment. A grand jury hearing has been scheduled for October.

In some cases, after interviewing a defendant, Diamond has presented his theory directly to prosecutors, he told TCR, adding that “there are quite a few cases in which the DA has dropped charges as a result of my involvement.”

Douglas County prosecutors declined to comment on Nicole’s case; but according to her attorney, second-degree manslaughter charges still stand. Diamond will testify before the grand jury after her next court date in October.

As memory researchers, McDaniel and Einstein have a similar explanation as to how responsible, caring people forget children in cars. The problem is not bad parenting, they say.

“I think it’s a matter of education. It’s a matter of understanding that the prospective memories are fallible, and that there are certain things that can be done to avoid these [failures], McDaniel told TCR. “I wouldn’t say that the general public knows these things.”

“So I don’t see how anyone’s culpable,” he added. “They’re only culpable in that they have a fallible metamemory, which we all do.”

Unlike Diamond, Einstein and McDaniel have not presented their findings in court cases. Rather, they’ve tried to use the media to raise public awareness.

“What we’ve advocated is you try to put your briefcase in the back seat so you’ve got to open the back seat and then you’ll see the kid,” said McDaniel. “Or, you try to put the diaper bag in the front seat, because then that will be a cue to remind you— ‘oh yeah, the baby’s back there.’”

According to Uri Maoz, who also studies the interface of law and neuroscience, “attention, as far as we know it, doesn’t split. You can pay attention to one thing at a time.”

“When you’re driving you’re supposed to be aware of the child in the back,” Maoz continued. “You’re supposed to be aware of the traffic around you, you’re supposed to be aware of the passenger next to you—you cannot be aware of everything.

“I think that’s just a false expectation of parents of themselves, and potentially of society from parents.”

The Public Policy Dilemma

Considering the amount of public attention to the phenomenon, why has so little of the research into prospective memory been brought to bear on these cases?

One reason, scientists told TCR, is a reluctance to testify.

Einstein said if he were asked, “I’d probably say no, because of how brutal lawyers can be with the cross-examination.”

Diamond said another issue is the lack of funding for further research.

“I once presented the science of children forgotten in cars at a major neuroscience meeting, with over 40,000 scientists in attendance,” he told The Crime Report. “Almost no one showed up.”

“Children forgotten in cars is not a ‘hot topic’ in funded research. It didn’t surprise them, and it didn’t raise new issues in the study of brain and memory.”

Moreover, public opinion can make such cases difficult to defend.

Nicole Engler’s family and colleagues turned out to support her after Remi’s death. They came to the courthouse, and also hung ribbons around town in remembrance of the little girl. But there were also those who immediately called for punitive justice. As ribbons went up, some people went around taking them down.

Such reactions have made it difficult to develop the kind of comprehensive public awareness campaigns or legislative measures that advocates believe are necessary.

Intuitively, it seems that we would be less likely to lose awareness of a beloved child than to forget our keys, or drive off with a cup of coffee on the roof of the car. “The problem is the brain at times doesn’t distinguish between a child and other things in life,” Diamond explained.

This misperception could be the very reason children still die in hot cars at the same rate they did a decade ago.

Multiple county-level campaigns remind the public of the danger, with messages such as “don’t leave me behind; don’t forget, double check.” But these don’t teach parents appropriate measures to prevent memory lapse, according to experts.

“The campaigns should focus on doing things that will force you to look in the backseat,” Washington University memory researcher Harry Roediger (one of the creators of the DRM paradigm) told The Crime Report, “(Things) like put your keys under the child seat. Or your cell phone. Or your briefcase… or all three.”

The National Highway Transportation Safety Authority does have an annual heatstroke awareness campaign called Where’s Baby? Look Before You Lock. The full promotional materials include some prompts recommended above, but don’t communicate how and why every parent is at risk of forgetting.

Having worked closely with Diamond, Kids and Cars has distributed over one million fliers over the past few years to hospital birthing centers, parent education classes, obstetricians’ offices, and even car seat technicians, said Amber Rollins, the organization’s director and volunteer manager.

Recently, they’ve begun contacting local public health departments one by one. As a small nonprofit, she told TCR, they are just “scratching the surface.”

“It needs to be an effort like Safe to Sleep,” Rollins added, referring to the multi-agency public information campaign about Sudden Infant Death Syndrome (SIDS) that launched in the mid-1990s.

“They won’t let you leave the hospital without being educated about how your baby needs to be sleeping in a safe environment—on their backs, not on their tummies.”

Since the start of the campaign, SIDS deaths have decreased by 50 percent, according to the National Institutes of Health.

“We need to reach parents at the very beginning of their child’s life, or even in the pregnancy stage because that’s when their most receptive to safety information,” said Rollins. “After they’re born, you’re in the chaotic stage where you’re not sleeping—everything is so focused on taking care of the baby and trying to keep up.”

The auto industry knows we are human—and therefore prone to forgetting, Fennell said, pointing out that our cars are filled with reminders to turn off the lights or take the keys out of the ignition. The moment laws were passed requiring children to ride in the back, new technology should have been added to vehicles, she told TCR.

“I almost cried the other day,” she added. “I got gas, I’m ready to pull off, and I got a reminder that the fuel door was left open.”

The Hot Cars Act, first introduced by Rep. Tim Ryan (D-Ohio) in 2016, would require all new vehicles to come with a child safety alert system similar to seat belt reminders, “with flashing symbols and warning sounds in the driver’s line of sight by the speedometer.”

But the bill was never brought to a vote, following objections from the Alliance of Automobile Manufacturers, which claimed that it would be a costly measure, and argued that only 13 percent of new car buyers have children under six. The bill was reintroduced in 2017, but wound up tied to another bill on driverless cars (the Self Drive Act).

Kids and Cars isn’t pushing the combined bill, citing widespread safety concerns over the driverless car legislation. While the stand-alone bill still exists, said Rollins, no one wants to sign onto it when it could be moving through the Self Drive Act.

Recently, Nissan announced it will have a new rear door alarm in all of its vehicles by 2022; and GM introduced a similar feature in a majority of its 2018 models. If the back door was opened during a trip, but not reopened when the car is parked and ignition turned off, the horn will go off. Hyundai redesigned its 2019 Santa Fe SUV with technology that goes one step further, with rear seat motion detectors in addition to a door alarm.

But in the absence of widespread public understanding that anyone can experience a catastrophic memory failure, there is every reason to expect these deaths to continue at the same rate. Why buy an expensive new car, or any other technology, if only criminally negligent parents can forget a child?

As a scientist, Diamond acknowledges being ill-prepared for the courts. In order to develop a legal theory as to why each person forgot a child, he needs to interview each parent and caretakers, “and have them relive the events of the day in which the child died.”

“Each interview is a gut-wrenching experience for me,” he told TCR. “[It’s] something for which I have no training. The interviews are often interrupted by long periods in which the parents hysterically cry, with such a deep, painful, agonizing suffering, that I can’t help but cry along with them.”

Victoria Mckenzie

Victoria Mckenzie

He wants them to know how normal, loving and attentive parents and caretakers can forget their children in a car. And, he wants to keep them from being incarcerated.

“My feeling is they will live in their own personal prison for the rest of their lives.”

Victoria Mckenzie is Deputy Editor-Content of The Crime Report. She welcomes comments from readers.

from https://thecrimereport.org

Can Cognitive Behavioral Therapy Help Juvenile Offenders?

When youths are preconditioned to violence and crime, disregard for the law becomes automatic. Cognitive behavioral therapy (CBT) targets this “criminal thinking” to reduce crime and recidivism— and give juveniles the opportunity of a productive future.

Looking back on childhood, a scene of handcuffs and reporting to probation officers does not usually come to mind. Unfortunately, this is the reality for many juveniles in the United States.

On any given day, nearly 53,000 youths sit in U.S. juvenile or criminal facilities due to involvement with the justice system, according to a 2018 report by the Prison Policy Institute (PPI).

The report also notes that “two out of every three confined youths are held in the most restrictive facilities,” with almost one in ten confined juveniles incarcerated in adult facilities.

Though there is no national average recidivism rate for juveniles, reports from individual states remain stubbornly high, with many re-arrest rates at more than 50 percent over a one- to three-year period, according to a paper prepared by The Council of State Governments Justice Center.

So, the question becomes, even with specialized courts and detention facilities responding to juvenile offending, why are so many children caught in the cycle of crime?

The answer to this behavior lies, in part, within the biology of the adolescent brain.

Neurobiology points to key differences between the brain composition of a juvenile compared to an adult. A study from the National Research Council (NRC) notes that juveniles’ lack of mature self-discipline in emotional situations, have increased susceptibility to peer pressure and instant-gratification incentives, and use less judgement based on future goals, fostering poor decisions that negatively impact themselves and others.

More specifically, according to the American Academy of Child and Adolescent Psychiatry, the prefrontal cortex, the area responsible for reasoning and decision-making is not fully developed in children and adolescences.

Depending heavily on the already-matured brain structure of the amygdala, the region responsible for emotional and impulse responses, juveniles rely less on logic and more on reaction to guide their behavior.

The Adolescent Brain

Despite adolescents’ predisposition to unpredictability and explosiveness, having a developing brain allows for the shaping of thought and actions, maximizing the effectiveness of treatment and diversion programs for those connected with the justice system—in effect, letting kids be kids and not kids behind bars.

A major player in treatment that utilizes this ability to mold and reform thoughts and behaviors is cognitive behavioral therapy (CBT).

CBT works under the premise that the way we think about a circumstance explicitly shapes our decisions and behavior; adverse thoughts lead to adverse behavior, while a positive mentality leads to positive behavior.

For example, enduring negative thoughts before giving a presentation such as “I know I’m going to mess up,” causes anxiety and fear which then dictates our behavior, making it more likely that these fears will come true. On the other hand, experiencing helpful thoughts such as “I am confident in my work and abilities,” will lead to a positive presentation outcome.

Though traditionally used in psychology to treat various disorders, the goal of CBT in the context of the justice system is to present a counterbalance to these automatic negative thoughts by helping participants understand the thinking processes and choices that precede criminal behavior.

For those youth who have a family member in jail or just grow up around maladaptive behavior, such as violence, abuse, and disrespect to authority, these actions are engrained into their minds as normal and automatic, simply “part of life.”

Many of these hardened criminals pass down the cycle of negative thought (wanting to be the most feared inmate in the state or swearing to never snitch on a fellow criminal, for example) to younger followers or family members.

Although this creates challenges in reforming these individuals solely through traditional punishment, CBT provides an escape from the “criminal mentality,” targeting offenders’ thinking through impulse management, critical and moral reasoning, means-ends problem solving, and social skill improvement, according to the National Institute of Justice.

Dr. Jack Bush, an Oregon-based cognitive therapist, has taken these foundational treatments and created his own version of cognitive behavioral therapy, called cognitive self-change.

Highlighting the need for reform, Dr. Bush argues in a recent article posted on the National Public Radio website, that “incarceration is a basic tool of criminal justice, but when the sole purpose is punishment and confinement, offenders respond, in the privacy of their own minds, with resentment and defiance.

“The thinking that led them to offend is not extinguished by punishment; it is reinforced.”

Dr. Bush focuses on minimizing the chance of recidivism by reforming dysfunctional thinking through four central steps:

  • Becoming more aware of thoughts and feelings;
  • recognizing how these thoughts and feelings are directly connected to harmful or unlawful behavior;
  • Brainstorming new ways of thinking that allow offenders to still feel good about themselves but which do not led to acts of crime; and finally
  • Applying this thinking to real-life situations.

Cognitive Self-Change (CSC), another way to describe the approach, stresses the skills offenders need in order to change themselves, rather than forcing an individual to change.

Participants in this program are given a pivotal message:

“When you learn how to steer your thinking away from crime and violence…you have a real choice to make. If you don’t learn these skills your important decisions will have already been made. Your decisions will be made in advance by the attitudes and habits of thinking you perform in your mind automatically, ‘without thinking.’”

Asked to assess CSC’s significance, Dr. Bush quoted one participant as saying, “I realized that the story of my past doesn’t need to be the story of my future.”

Dr. Bush commented: “I think that captures the heart of what CSC offers. It doesn’t cure a disease. It opens possibilities for new forms of life.”

He added that the approach can “change criminal justice attitudes.”

“CSC demands an attitude supportive of change by the criminal justice system,” he said. “This is contrary to punitive and condemnatory and exclusionary attitudes.”

The introspective treatment program of CBT has been found to be 79.2 percent in reducing crime among juveniles through a meta-analysis of 50 cognitive behavioral therapy programs conducted by the National Institute of Justice.

Additionally, CBT led to a 44 percent reduction in recidivism in a study of disadvantaged male youth (grades 7-10) from high-crime Chicago neighborhoods, by the National Bureau of Economic Research.

Encouraged by these successful statistics, more and more programs utilizing CBT have been implemented in prisons and jails across the country.

In 2016, the Sheriff’s Office of Thomas Dart in Cook County, Illinois started the ongoing initiative of Sheriff’s Anti-Violence Effort (SAVE), a program working to curb violence by changing the way high-risk offenders think. The program has also been adapted by the Davidson County Sheriff’s Office in Nashville, TN.

A Therapy Curriculum

With a focus on reducing gun violence, SAVE provides inmates with therapy curriculum including conflict resolution and anger management, according to the Cook County Sheriff’s Department.

Of the program participants, a study found that only 17 percent were readmitted to the jail within a year and a half, in contrast to the 75 percent readmission for those inmates who did not go through the program.

Not limited to inside correctional facilities, cognitive behavioral therapy also has an important role in schools, with the goal of providing youths with cognitive skills needed to keep them out of contact with the justice system in the first place.

Education has a close relationship with crime. If a juvenile is incarcerated, he or she is 13 percentage points less likely to graduate high school and 22 percentage points more likely to be incarcerated when they are an adult.

Without a high school degree, juveniles are susceptible not only to engaging in crime, but also face increased chances of unemployment and poverty, which are also major contributors to the factors behind committing a crime.

Striving to avoid these outcomes, The Center for Court Innovation, a nonprofit organization seeking to reform the justice system, has implemented a “restorative justice” program in five high schools in Brooklyn, NY.

“What restorative justice allows us to do is to look beyond the behavior and look at some of the root causes and see how we can prevent this from turning into something much bigger,” program coordinator, Mischael Cetout, said during a recent PBS News Hour special.

According to the Center for Court Innovation, its restorative justice approach works to “promote individual responsibility and participation, repair harm, and build relationships.”

Student participants develop empathy and communication skills through “harm circles,” a space where conversation is mediated by a program coordinator to resolve conflicts between peers and give time for the students to reflect.

Employing CBT practices, this program drills down to find the root cause of an issue and allows students to understand why they acted in a certain way and what they can do better in a similar situation in the future.

By giving youths these skills to handle an explosive or enraging situation, this design essentially works as a diversion program; lowering the number of disciplinary incidents which subsequently allows students to redirect from a path of delinquency and harm to one of respect and success.

Policy Loopholes Add Complications

Though CBT programs have successfully been implemented in and out of the justice system, issues still remain for juveniles in receiving the benefits of this therapy due to policy loopholes.

Recognizing that culpability of a crime may lay more on the composition of a growing brain (as opposed to an individual being purposefully defiant), the federal courts put in place specialized juvenile programs and standards, including the most recent authorization of the Juvenile Justice Delinquency Prevention Act (JJDPA) in 2002.

Setting forth safety and treatment standards for youth, the act establishes four core requirements: deinstitutionalization of status offenders, adult jail and lock-up removal, “sight and sound” separation of juveniles from adults, and disproportionate minority contact.

However, JJDPA was amended to “create an exception to the DSO [deinstitutionalization of status offenders] core requirement that allows judges to securely confine youth adjudicated for a status offense if the child violated a “valid” order of the court,” according to the Coalition for Juvenile Justice.

This exception converts a minor status offense such as skipping school or running away from home, into a criminal act. It does so by providing judges with a loophole; although truancy is not a detainable offense, youth can be punished for violating a court order to attend school every day.

The Vera Institute reports that “as of 2011 [the last year of available data], 27 states used the so-called VCO exception, and thousands of kids are still removed from their homes to be put in detention and out-of-home placements each year.”

Not only does this exception disrupt a child’s daily life, it can also put their safety at risk and limit their access to treatment.

The Campaign for Youth Justice estimates that 200,000 youth are tried, sentenced, or incarcerated as adults each year in the United States, while juveniles within the adult criminal system are between 34 percent and 77 percent more likely to be re-arrested for a crime.

The protection from adult offenders under the JJDPA do not apply to those youth who are prosecuted in the adult criminal justice, subjecting them to mandatory minimums, increased exposure to abuse, and use of solitary confinement to segregate.

When juveniles are exposed to hardened criminals, the destructive “criminal thinking” becomes more deep-seated, complicating reform and rehabilitation through cognitive behavioral therapy.

Additionally, due to the vulnerability of juveniles to abuse from older inmates, many officers tend to protect youths by confining them to a segregation unit. This limits the access to treatment and therapy for juveniles by isolating them, unable to ‘talk things out’ within a group of individuals.

Luckily, NRC researchers commenting on the legal effects of brain chemistry, note that “much adolescent involvement in illegal activity is an extension of the kind of risk-taking that is part of the developmental process of identity formation, and most adolescents mature out of these tendencies.”

Laura Binczewski

Laura Binczewski

So, by implementing CBT programs in and out of the justice system, juveniles armed with beneficial cognitive skills will be able to avoid or restrain their criminal behavior as they grow older.

Though CBT has been found to be successful for offenders as well as in reducing taxpayer money on incarceration, Dr. Bush notes that we should not “replace incarceration with treatment or let people out of prison early just because they have taken treatment.

“But,” he continued, “adding treatment to incarceration provides hope to offenders now, and benefits to society in the future.”

Laura Binczweski is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Restoring Mental Competency: Who Really Benefits?

Today, states spend hundreds of millions on evaluating and restoring the “mental competency” of individuals to stand trial. But such restoration is a far cry from the comprehensive mental health treatment needed by defendants who many experts say should never have been incarcerated in the first place.

When Morgan learned that her son Tyler had been taken to the hospital after being accused of stealing someone else’s hamburger in a buffet line in January 2017, she had no idea that the incident would spark a 17-month-long entanglement with the local justice system.

The police officers who responded to calls about the buffet disturbance had found Tyler, who has a history of mental health issues and has been diagnosed with bipolar disorder with psychotic features, “acting strange and irrational,” and had called an ambulance to take him to a hospital. Though Tyler had gone voluntarily, he had struggled with an Emergency Medical Technician (EMT) on the ride over who he claimed had tried to give him a shot of antipsychotic medication.

He remained at the hospital emergency room less than 24 hours and was discharged early the next morning.

In March, Tyler received a felony summons for assaulting the EMT officer. He was ordered to appear in court but was never detained, “so he obviously was not a public safety risk,” Morgan said.

At some point late that summer, over eight months after the original incident, a request came that Tyler be evaluated for competency, and Morgan and Tyler (whose real names and geographical location have been withheld to protect their anonymity) heard the words “competency restoration” for the first time.

The Fifth Amendment right to due process has been interpreted to mean that in order for cases to progress, defendants must be competent to stand trial. That is, they must be capable of understanding the nature and the consequences of the charges brought against them and must be able to assist in their defenses.

As the number of mentally ill individuals enmeshed in the criminal justice system grows, more and more defendants are being found incompetent. (Note that competency is different from pleading innocent by reason of insanity, as the former refers to a defendant’s mental state at trial, while the latter refers to a defendant’s mental state when the crime was committed.)

In such cases, the court is required to “restore” the defendant to competency before the trial can proceed.

Competency concerns can be raised by any court actor, judge, prosecutor, or defense attorney, at any stage of a hearing. Though a state-appointed physician assesses the defendant and provides a recommendation, a judge makes the ultimate determination of whether someone is competent to stand trial or not.

Once a court orders that a defendant be evaluated for competency or that an incompetent person go through restoration, that individual typically remains in jail until those services are provided.

Competency is a legal term, not a medical one, and competency restoration is not the same as mental health treatment. Restoration’s primary goal is to coach defendants to get through a trial, teaching them about the roles of different court actors, the meaning of various charges, and the potential penalties they will face if convicted.

“Unless they’re from a foreign country, once they’re stable [defendants] can pretty much figure it out,” said Judge Steve Leifman, an associate administrative judge for the Eleventh Judicial Circuit Court of Florida and the creator of the Criminal Mental Health Project, a program that diverts people with mental illnesses who have committed low-level offenses from incarceration to community-based care.

Competency and Not-So-Speedy Trials

Though the Sixth Amendment guarantees defendants’ right to a speedy trial, that right often exists in name only in competency cases.

The speedy trial statute is meant to prevent the prosecution from engaging in careless or intentional delay that prejudices the defense. But because postponements due to competency issues are outside the prosecutor’s control, they do not count as speedy trial delays.

Mentally ill defendants, therefore, can sometimes languish indefinitely while they wait to be deemed competent.

In the past, competency was rarely an issue in courtrooms. For much of the 20th century, mentally ill people were isolated from society, siloed in the kinds of psychiatric institutions that inspired works such as One Flew Over the Cuckoo’s Nest and Shutter Island.

At their height, public psychiatric hospitals housed over 558,000 people, 0.3 percent of the nation’s population at the time. This proportion would translate to over 1.1 million individuals in today’s population, a far cry from the approximately 35,000 individuals with serious mental illness remaining in state hospitals, according to the Treatment Advocacy Center.

In the 1950s and 1960s, several abuse scandals and a movement that advocated treating individuals in their home communities set in motion a wave of de-institutionalization. Hospitals around the country rapidly emptied of patients and shuttered their doors.

But while many people lauded the closing of asylums and other psychiatric institutions, no real alternative sprang up to cater to the populations they had served.

Today, there are very few inpatient and long-term care beds available, even for those who could benefit from more intensive care. Mental health professionals put the ideal number of state hospital beds at about 50 per 100,000 people. In most of the states where data is available, there are roughly 10 to 12 beds per 100,000, Dominic Sisti, director of the Scattergood Program for Applied Ethics of Behavioral Health Care at the University of Pennsylvania, told NPR’s Jeremy Hobson.

“They’ve basically evaporated over the past 50 years in their capacity to take care of people on an inpatient basis for more than 72 hours,” Sisti said. “The community care movement has been successful in many contexts, but there is a population that still requires significant structured inpatient care. And this population doesn’t often get it.”

As hospitals closed without a concurrent investment in other forms of mental health treatment, mentally ill individuals began ending up on the streets and in trouble with the law.

“Many times, individuals who require intense psychiatric care find themselves homeless or in prison,” said Sisti.

“Much of our mental health care for individuals with serious mental illness has been shifted to correctional facilities.”

Released from Hospital Over Parent’s Objections

Tyler experienced for himself the lack of appropriate care available in the years leading up to his arrest. Morgan and her husband had Tyler involuntarily committed in 2010 and again in 2017 after he exhibited psychotic behavior and threatened to harm himself. Within days of his second commitment, hospital staff announced that his condition had stabilized and released him, despite Morgan’s pleas for longer treatment.

“He was physically shaking,” she said. “The drugs [Tyler had been medicated while hospitalized] were not agreeing with him.”

“I was frantic and got him in to a therapist, and the therapist on my request got him in to a psychiatrist right away, and he was hospitalized again within days.”

It was shortly after this third commitment that Tyler received the felony summons, which Morgan said “totally destabilized him.”

Approximately 20 percent of inmates in jails and 15 percent of inmates in state prisons have a serious mental illness, the Treatment Advocacy Center estimates. Based on the total number of inmates in this country, this means that there are roughly 356,000 inmates with serious mental illness in jails and state prisons nationwide.

Each of these inmates is held at an average annual cost of $33,274, according to the Vera Institute for Justice, if not more: the average cost of incarcerating a mentally ill individual is often much higher than the cost of housing a typical inmate.

Today, states collectively spend hundreds of millions on restoration for individuals that many experts say should never have been incarcerated in the first place. In Florida, for instance, the Tampa Bay Times found that the state government spends at least $50 million annually restoring the competency of defendants whose nonviolent crimes are so minor they never spend a day in prison.

Part of the issue is backlog. With the dearth of hospital beds, defendants who have been judged incompetent can wait months or even years for restoration, despite their being relatively few in number.

In 2014, the National Association of State Mental Health Program Directors (NASMHPD) conducted a survey on the forensic mental health services provided around the country.

Asked for an average daily census of inpatients who are incompetent to stand trial (IST), the 32 states that answered responded as followed: eight states reported a daily average of zero to 25 IST inpatients; seven states reported 26 to 75; nine states reported 76 to 150; three states reported 151 to 250; three states reported 251 to 400; and two states reported having a daily average of more than 1,000 IST inpatients.

To extrapolate to the whole country, this would mean that, on average, between 4,500 and 9,400 people are waiting for restoration at any one time.

NASMHPD also asked states to provide the average length of stay for defendants committed for being incompetent. Of the 30 states that responded, five said defendants wait an average of zero to 60 days; 13 states said 60 to 120; seven states said 120 to 180 days; three states said 180 to 360 days; and two states reported an average length of stay of over a year.

Every state surveyed reported that courts sometimes found defendants unrestorable to competency.

In 1972, the Supreme Court ruled in Jackson v. Indiana that defendants found unrestorable must be civilly committed or released, and that continued commitment for purposes of restoration would violate the Constitution.

Many states (69 percent, the survey found) do set a cap on length of stay, ranging from as little as 90 days in a few states to the maximum sentence specified by law for the most serious offense charged in others. But several studies suggest that courts in some places routinely ignore Jackson requirements and keep defendants hospitalized long after it is apparent that their prospects for restoration are dim.

Even when restoration is possible, certain states frequently flout their own legal parameters for how long incompetent defendants can be held. An investigation in December by the Denver Post found that people with mental illness who are accused of crimes in Colorado were waiting up to four times as long as legally permitted for evaluations and treatment because the system is so overwhelmed.

Similar reports have come out of California.

In 2015, the American Civil Liberties Union led a class action lawsuit charging that Washington State was taking too long to provide competency evaluations and restorations. In Trueblood v. DSHS, a federal court ordered the state to provide competency evaluations within 14 days of a court order, and competency restoration services within seven days of the evaluation.

In Tyler’s case, he was not originally held in jail, because the judge who ordered that he undergo competency restoration specified that restoration would be administered in his community. But although his state (Colorado) has a statutory requirement that counties provide outpatient competency restoration, Tyler’s hometown did not have such a program in place.

‘We Have a Delay Problem’

In February, 13 months after the original incident that brought him to court, the judge on Tyler’s case ordered him into custody and mandated that he be taken to the state hospital for competency restoration. The hospital, however, did not have any beds available. Instead, Tyler was placed on the restoration wait list and moved to a county jail.

Morgan described herself during that period as frantic.

“I called everybody,” she said. “I called the governor’s office, I called the state legislator, my representatives, my senator, the office of behavioral health, the state psychiatric hospitals, local providers, community mental health providers, I was in constant contact with the jail; no one would do anything other than say to me, ‘We have a delay problem.’

“I was appalled…they did nothing for him except hold him in a county jail. They were more than aware of the problem and simply failed to do anything for him.”

Finally, after 55 days on the waitlist, Tyler was placed in a jail-based competency restoration program that Morgan called “abominable.” Though she reached out to county officials multiple times, she was never able to get any information on what services or treatment Tyler was being provided, and he has been reticent to talk about his time there since.

After ten days in the restoration program, Tyler was told he was being referred for an early evaluation. The physician who evaluated him suggested that he was competent to stand trial.

“Coincidentally,” Morgan said, he had a status court hearing scheduled for later that week. The judge deemed Tyler competent, he pled to a misdemeanor, was placed on probation with a mental health component, and was released from custody on that day⸺more than 17 months after his initial arrest.

The delays in providing restoration would perhaps seem less egregious if ultimately defendants were given access to the services they need to get better. But in most places, restoration is a far cry from comprehensive mental health treatment.

“The court’s first response when somebody with a serious mental illness is arrested is not to treat them but to restore them, because that’s what all the rules and the law requires them to do,” Leifman said.

“Competency restoration is not treatment…it’s not about recovery, it’s not about getting well so that you can get out. It’s about restoring you so that you can be tried.”

This can mean anything from watching reruns of Law & Order to playing parts in scripted mock trials to becoming contestants in a courtroom version of Wheel of Fortune.

The Tampa Bay Times was able to obtain access to a state training video used in restoration in Florida that depicts “defendants” participating in a game show called “Trial and Error.” In the video, the contestant spins a wheel, which lands on first degree felony. She is asked what the maximum sentence is for a first-degree felony, and when she answers correctly, the host congratulates her: “You are now considered competent to return to court and face your charges. And we’ll see you next time right here on Trial and Error!”

Each time a patient watches the video, it costs roughly $8, the Times reports. Leifman and others think that money would be better spent on mental health treatment and social services.

“Most people who are ‘restored’ either have the charges dropped because the witnesses disappeared while they were in the hospital, they get credit for time served while they’re in there, which they’re entitled to, or they get probation,” Leifman said.

“Under all three scenarios, most people leave the courthouse without access to treatment.”

Because the mental illness that drove criminal behavior in the first place remains untreated, many defendants reoffend. Studies have found that individuals with serious mental illness tend to recidivate more quickly and at higher rates than similarly situated adults who are not mentally ill.

This means that the majority of people who go through competency restoration end up right back in jail.

Competency Restoration and the Mental Health Crisis

At the heart of the debate over competency restoration is the use of the criminal justice system to address a mental health problem. Competency restoration is not a solution to the mental health crisis, and often serves to exacerbate the issue further: because restoration is a right and health care is not, states often allocate money from the community health system to fund restoration programs.

“Ironically, you’re not entitled to treatment, but you are entitled to restoration if you’re charged with a crime,” said Leifman. “That’s the absurdity of our system.”

He added: “The states are making the problem worse by reducing community treatment by taking money away for the criminal mental health system and making it harder for more people to get services, and making it more likely that people get pushed into criminal justice.

“It’s created this terrible revolving-door problem, and the costs, both financial and human, are extraordinary.”

Morgan is still not sure what the costs have been for Tyler.

“He’s trying to do everything right,” she said. “But he’s so quiet. It’s too soon to tell.”

Since his release, Tyler has been seeing a therapist once a month per court order, as well as periodically checking in with his probation officer. He moved into a new apartment in the mountains near his family, signed up for exercise classes, and got a job with a local company where he works four days a week.

“Since he’s been out, I’ve tried to keep him focused on positive practical kind of stuff,” Morgan said.

“But he has been extraordinarily quiet. I think he has been traumatized. I don’t know yet. I really don’t know.”

Elena Schwartz is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Access Denied: The Digital Crisis in Prisons

As prison law libraries go digital, many inmates are encountering significant barriers to getting the materials they need to pursue their cases. TCR investigates a barrier to justice that has received little attention.

In 2006, jailhouse lawyer Thomas C. O’Bryant sent a handwritten article to the Harvard Civil Rights-Civil Liberties Law Review detailing across 40 pages the never-ending obstacles prisoners face in accessing legal materials.

The editors were so impressed they published the piece, and O’Bryant — who taught himself the law while serving a life sentence in Florida — even lectured at Harvard later that year via telephone.

His message was damning:

 “…the entire system seems to prevent indigent prisoners from obtaining meaningful review of constitutional violations: undereducated prisoners, prisoners with mental disorders, unreliable memories of trial court proceedings, under-trained and under-educated law clerks, ‘psych inmates’ working as law clerks, law libraries with meager resources, restricted access to these law libraries, law clerks, and jailhouse lawyers—the list goes on.”

Twelve years later, he says it’s even worse now.

Thomas O'Bryant

Thomas C. O’Bryant. Photo courtesy Florida Department of Corrections.

“Unfortunately, I believe the problems have gotten worse,” O’Bryant wrote to The Crime Report in an interview conducted by snail mail.

One big reason is Florida’s prison system — and a majority of state prisons systems — have dumped print materials for computer kiosks with subscriptions to legal databases.

“There’s a difference between access and meaningful access,” he wrote. “Some inmates can’t navigate the digital material at all. They were better off with print materials.”

O’Bryant says he typically gets two-and-a-half hours at the library in a week and there’s a high demand for computers: “Twenty to 25 inmates trying to use five computers over a two-and-a-half-hour period. Not much time for each inmate, assuming the inmate even knows how to utilize the software.”

Print is dying in the digital age — and it’s having a significant impact on how prisoners access court.

Prison law libraries are going digital to cut costs. Large text collections, libraries and legal assistants are being replaced by computer kiosks with custom-tailored subscriptions to LexisNexis or Westlaw. Currently, 45 state prison systems and the federal Bureau of Prisons contract with an electronic legal database company, up from nine states a decade ago, according to an investigation by The Crime Report.

While there are some obvious benefits to digital materials — case law is updated easily and inmates can’t rip out pages from of a computer — dumping print materials and human legal aid for a digital subscription has added a barrier to access and weakened prisoners’ ability to pursue their cases. The switch to digital has created a logjam for information and made it easy for prison systems to provide a bare minimum of resources to inmates.

“It’s certainly not a level playing field,” said David Shapiro, director of the MacArthur Justice Center at Northwestern University. “The principal problem is that the creation of digital access is used to undermine print access and what’s available digitally doesn’t necessarily mean everything that was available in print.

“Often it’s a real narrowing of what’s available and it’s pretty narrow already.”

Through interviews with prisoners, attorneys, scholars, librarians and other stakeholders — as well as a review of policies in every state and information provided to this reporter from every state DOC — TCR’s investigation reveals a system where inmates are desperate for legal materials and assistance, but regularly hit roadblocks and have little legal recourse to fight back.

Donna Leone Hamm

Better access to legal materials would have a significant impact on correcting sentencing errors, revealing wrongful convictions and serving as a check into dysfunction and abuse in the nation’s prisons, inmates and advocates told TCR.

“An awful lot of legitimate grievances go unresolved because of the difficulty in accessing the courts and that’s really a tragedy for our society,” said Donna Leone Hamm, a retired lower court judge in Arizona who now runs the criminal justice reform non-profit Middle Ground Prison Reform.

Free-For-All

 1996 was a big year for prison law libraries.

That year, the Supreme Court decided in Lewis v. Casey that “prisoners did not have a “freestanding right to a law library or legal assistance.” The decision limited a previous Supreme Court ruling from 1977, Bounds v. Smith, which said prisoners’ constitutional right to access courts required prisons to assist inmates in filing legal papers through libraries or trained legal professionals.

Since Lewis, it’s been a free-for-all.

Idaho sold its legal collection on eBay for $100 and Iowa tossed its books into the prison courtyard to rot. In the 22 years since that decision, there’s been a mishmash of methods of providing inmates access to courts from behind bars, with most states jumping to cheaper options as they become available.

A year after the decision, South Dakota eliminated its prison law libraries and contracted an attorney and paralegal to assist inmates with legal matters. According to state corrections authorities, it was cheaper than maintaining those heavy (and pricey) law books.

Jump ahead 20 years and it’s now cheaper to buy a customized subscription to an electronic legal database, so the South Dakota Department of Corrections in September ended its contract with the attorney, and contracted LexisNexis for one-year at a cost of $54,720 (far less than its $135,400 legal aid contract).

Newspaper editorials and prisoners’ rights advocates immediately questioned the move. Can tablets or touch-screen kiosks with LexisNexis replace human legal assistance and still fulfill prisoners’ constitutional right to access courts?

The law says it’s OK.

Because of Lewis v. Casey, it’s nearly impossible for prisoners to prove a prison’s lack of resources hindered their access to court, which is why similar lawsuits are routinely tossed. Essentially, the ruling meant prisoners must prove in court that inadequate legal resources hindered their access to court — which prisoners and scholars have criticized as a paradox.

Inmates in South Dakota are indeed suing, with complaints about faulty equipment and the need for human legal aid hindering their access to court. Lawsuits like this are filed regularly in courts across the country alleging similar problems: time restrictions, limited materials, inadequate library staff and retaliation from prison officials for filing lawsuits. But because of Lewis, they are routinely tossed.

Digital Problems

While the switch from physical books to digital databases might seem to make it easier to get more legal materials to prisoners, in many states it’s had the opposite effect.

Unlike typical LexisNexis or Westlaw subscriptions at state law libraries or in legal offices, terminals with electronic legal databases in prisons are not connected to the Internet. Instead they are computer terminals or touch-screen kiosks with DVDs or hard drives loaded with a customized list of resources and case law that is updated every month or so.

LexisNexis still provides physical books to some prison systems, but such printed materials are slowly disappearing. LexisNexis formed a corrections division in 2008 dedicated to prison sales.

“When we started this division it was 90 percent print,” said Kevin Taylor, LexisNexis’ account manager for Eastern and Central United States. “Now it has completely flipped, 90 percent of our customers are using something electronic.”

As prisons go digital, they typically stop updating their print books or discard them. While it’s more reliable to get updated case law or statutes through one of these databases, inmates complain it’s created a logjam for information.

In the past if a dozen inmates needed different books, they could all work at the same time by ordering them individually from the prison librarian. But now there are lines to get on one of the computer terminals or kiosks.

One state, Oklahoma, actually decided to keep its old books because it helps free up lines at their Westlaw terminals. LexisNexis’ Taylor said they recommend one terminal for every 100 or 125 inmates, but “there are no regulations that we are aware of” and depends entirely on what a state wants to spend.

To make matters worse, the number of texts available to prisoners is shrinking as prisons go digital.

Prisons ask the legal database companies to tailor their digital collection to include only materials they are required to have (required materials vary by state and often created by law or court opinion). Decades ago, some prison libraries had collections that rivaled law firms and included books donated from schools, lawyers or non-profits.

That’s largely gone now.

“We have this conversation with administrators all the time,” said LexisNexis’ Taylor. “There really is a bright line in the sand in what you have to have and what would be nice to have.”

For example, a common suit filed by prisoners is a habeas corpus petition based on ineffective assistance of counsel. To pursue this claim, a pro se litigant might need to understand police procedure, jury selection or scientific evidence like DNA. Whereas articles or books on these topics are readily available online or at public law libraries, it’s rare to find them in the custom-tailored legal database subscriptions.

“…the prosecution has experts available to help prepare their cases, medical doctors, biomechanical engineers, psychologists, etc. The pro se litigant? He gets a boilerplate form to fill out and copies of case law. Good luck,” the Florida jailhouse lawyer O’Bryant wrote to The Crime Report.

 O’Bryant argued the Antiterrorism and Effective Death Penalty Act (AEDPA) — which created a one-year time limit for prisoners filing federal habeas corpus petitions — causes inmates to race against a ticking clock and it’s nearly impossible to file meaningful suits with a never-ending series of obstacles in accessing the legal information they need.

He’s not alone.

“You never get enough time,” Lorenzo Johnson wrote to The Crime Report from a Pennsylvania prison before eventually getting released after fighting his conviction for 22 years. “You have to submit a prison request slip two weeks in advance for sessions. If you’re lucky, you might receive three sessions tops a week for two to two-and-a-half hours a session.”

While most legal research from behind bars has gone digital, the actual filing of lawsuits is still very much in the paper world.

Nevada is currently conducting a pilot program that allows inmates to file conditions of confinement cases electronically, but typically inmates get paper, a pen, an envelope and postage. They fill out forms by hand — or copy the forms by hand from a computer before filling them out — and send them to court through the mail.

Getting to that point can be challenge.

prisoner

Illustration by Adam Wisnieski

Regulations vary state to state. For example, Hawaii’s prison policy only guarantees inmates at least three hours per week at the law library, with “the possibility” of three additional hours if an inmate has a verified lawsuit in court. Nevada allows inmates one pen per month. Pennsylvania charges $1.50 for a copy of a government form. Few state prison systems employ actual librarians to assist inmates.

The Crime Report found only eight state prison systems that employ librarians with Master’s degrees in library science to assist inmates.

For the most part, legal assistance is provided by fellow inmates who take a class and work as “inmate law clerks.” Vermont even trains inmates to serve as ILLs, or “Inmate Law Librarians.” If you’re lucky to know a jailhouse lawyer, that can help. But states like Florida or Utah have bans on inmates possessing another’s legal materials, making it difficult for inmates to assist others.

Aside from lawsuits, prisoners have fought back in other ways. In 2013, 29,000 California inmates went on hunger strike. They were protesting solitary confinement, but included “more access to the law library” in their list of demands.

New Jersey inmates won a small victory in 2015 when they successfully petitioned the state prison system to lower the cost of photocopying legal materials from 10 cents per page to 5 cents per page.

Courts are supposed to give additional leeway to handwritten pro se lawsuits. But it’s not always that nice.

“The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” former 7th Circuit Court of Appeals Judge Richard Posner told The New York Times last year after announcing he was retiring so he could dedicate his life to helping pro se litigants.

 Librarians to the Rescue?

“Before I came along our letters from inmates would go in the trash,” says Elizabeth Johnson, a reference librarian and professor at Wake Forest University.

In 2013, Johnson started the Prison Letters Project, a pro bono program where law students field requests for legal assistance from North Carolina prisoners. Students send copies of case law, articles or chapters of books. Everything they send to prisoners is freely available online, like Google Scholar or the North Carolina state website that has a copy of state law and statutes.

“I see it as a librarian’s civil duty,” she says of the project. “I, personally, felt a strong conviction to help assist inmates in their information needs as a part of access to justice, bringing legal information and access to courts to those who are under-served and unable to access these materials.”

In recent years, other librarians have started similar programs to assist inmates and the American Association of Law Libraries (AALL) maintains a list of every program in the country.

A few years ago, Sara Gras, then a law librarian at Georgetown Law, saw a demand for legal materials from prisoners and overhauled their program to allow requests from every state. Over five months in early 2015, they received 610 requests from prisoners across the country and continue to field requests.

“People ask me if I’m ever concerned [that] I’m helping guilty people get out of prison and the answer is no,” she said at a conference sponsored by the AALL on how librarians can support requests from prisoners.

“What we are doing through these types of programs is providing an opportunity for those who cannot afford good legal representation to stand up for themselves and make a case for their rights, according to the same policies and procedures that those who are more economically advantaged have access to.”

Adam Wisnieski

Adam Wisnieski

“This really matters to me as a lawyer, as a librarian, as a person.”

 This story was made possible through the generous support of a Freelance Fellowship grant from Investigative Reporters & Editors (https://www.ire.org/). Adam Wisnieski is a freelance reporter based in Connecticut and a contributor to TCR. You can follow him on Twitter @adamthewiz. He welcomes comments from readers.

from https://thecrimereport.org

Sex Trafficking: South Florida’s Youngest Victims

The trafficking of young girls for sex in the U.S. is often overshadowed by the attention paid to the $150 billion international trade. A Crime Report investigation looks at victims and their families in south Florida, now one of the nation’s major human trafficking centers.

To this day, the man who raped 13-year-old Lucia Marie Skelly and forced her into trading sexual favors for money has not been arrested or charged.

That infuriates—but doesn’t surprise—her mother. When Lucia ran away last year from their Fort Lauderdale, Fl., home, the local police didn’t respond to Mary Skelly’s initial plea for help.

“The Fort Lauderdale police never showed up at my house the day I first reported my missing child,” she recalled. “I don’t know why.”

Lucia finally turned up on her mother’s doorstep ten days later, branded with a lotus flower tattoo (the international sign for human trafficking), bruised, beaten and raped (they would later find out she had chlamydia, a disease transmitted by sexual contact, but the hospital did not do a rape kit test).

But getting her daughter back was only the beginning of her mother’s ordeal. Although Skelly provided the Fort Lauderdale police department with the name, date of birth, address, and even the Instagram account of the 22-year-old man who trafficked her daughter—details she obtained from her daughter and her own investigation—no one appeared to follow up on the information.

This doesn’t surprise John Rode, a former law enforcement officer in Miami who now works as a private investigator who searches for missing and runaway children in south Florida, with an organization called Global Children’s Rescue, which he started with his partner, Justin Payton.

John Rode, former law enforcement officer for Miami Vice. Photo courtesy of Mr. Rode

“I think the problem is education within police departments,” he said.

“What’s missing within police departments is an understanding of what human trafficking really is. Human trafficking is not only on the border of Mexico. It’s not only in Arizona and Texas, with young girls coming out of containers.

“Human trafficking starts out as a simple runaway case. Girl runs away from home. A few days later someone takes her in, gets her on drugs, and she’s held against her will. Now she’s a victim of human trafficking. It’s a local community problem.

“The public doesn’t realize that, and the average police officer on the street doesn’t realize that.”

Few Americans, in fact, are aware of the scope of the problem.

Most U.S. media attention has focused on overseas sex trafficking—an estimated $150 billion global criminal endeavor that surpasses the illegal sale of firearms and is expected to soon outpace revenues from the illegal drug trade.

But it has become a growing concern in the U.S. itself. A month-long investigation by The Crime Report in south Florida, a state that now ranks number three in the nation for sex trafficking, according to the Florida Department of Health, found that the region’s mushrooming business of sex trafficking has largely outpaced local law enforcement’s understanding of the issue and ability to cope with it.

More disturbing still: Florida authorities say more than half the victims are under 18.

And for some of the youngest of them, victimization begins a few miles from home—within shouting distance of their families and beneath the radar of local authorities.

“Traffickers aren’t shipping these young girls to France,” said Justin Payton, Rode’s partner at Global Children’s Rescue. “They are (often) just going up the road.”

The Crime Report’s interviews with victims and their families in south Florida made clear that the common perceptions of human trafficking as an organized criminal activity—while accurate as a description of the clandestine movement of labor—do not necessarily reflect the reality of sex trafficking in the U.S.

The victims are almost exclusively runaway youth, whose vulnerability and desperation are exploited by older men. In 2017, an estimated one out of seven runaways reported to the National Center for Missing and Exploited Children were likely child sex trafficking victims.

“I see it all the time,” said Jane Biglesen, director of the Anti-Human Trafficking Initiatives at New York’s Covenant House, a homeless shelter for runaway and trafficked youth.

“A teenager on the street alone, scared and hungry, is a huge target for a pimp. Victims generally are not locked up. Instead, that person feels traumatically bonded to their perpetrator. So they might be allowed to walk around freely but the pimp says ‘if you ever leave I’ll kill you.”

Adds Payton: “It’s happening under our noses every day. A person may appear willing and happy, but feel like they have nowhere else to go.”

That, in turn, is a reason why the special plight of these youngest trafficking victims often escapes the attention of law enforcement. Few police officers have been trained to identify them, and if the girls are picked up in a sweep by law enforcement of sex workers, they may even find themselves subject to criminal prosecution.

Federal law specifically prohibits the sexual exploitation of minors, and most states reinforce this with statutory rape laws. So, in theory, prosecuting a case of child sex trafficking could be as simple as pursuing a statutory rape charge. But The Crime Report’s investigation found that many police authorities were reluctant to prosecute traffickers for fear the case would not hold up in court.

Interviews with families of human trafficking victims, the victims themselves, private detectives, and the Miami-Dade State Attorney, made clear that local law enforcement needs educated, human trafficking personnel on the ground, trained to recognize the signs of human trafficking.

Our investigation focused on south Florida, specifically Miami Beach, Fort Lauderdale and Palm Beach— large destination cities that attract human traffickers.

The difference that a pro-active, organized approach can make in getting these girls to safety became obvious when we met Miami State Attorney Katherine Fernandez Rundle.

Katherine Fernandez Rundle

Miami State Attorney Katherine Fernandez Rundle. Photo courtesy Miami State Attorney’s Office.

In 2012, Fernandez Rundle established a multi-agency task force in Miami, considered the state’s principal target city for sex trafficking. The task force included a special police unit that focuses solely on sex trafficking.

All 35 police departments in Miami-Dade County know to call the trafficking unit when they have a case, Rundle told The Crime Report, adding that the effort to raise officers’ awareness begins with the training of all 5,000 police officers on the ground.

“We teach them to recognize the signs of human trafficking,” she said. “Where (to) send victims; how to find them shelter.”

The task force also targets licensed doctors and nurses in the county, who are now required to attend a mandatory training course, and it works closely with THRIVE, a medical clinic established by the University of Miami Miller School of Medicine, that helps victims speak freely, away from their traffickers.

The clinic, the first of its kind in Florida, has special accommodations for victims, including increased privacy measures, minimized wait times, a trauma- informed trained healthcare team, and patient-sensitive procedures to reduce re-traumatization.

And, finally, the task force offers training to judges about the unique difficulties of prosecuting human trafficking cases. For instance, victims often do not want to take the stand for fear of retaliation, but that doesn’t mean you can’t still prosecute,” said Fernandez Rundle, noting that as minors, young victims are unable to give consent under Florida law.

“Judges have to be creative with their cases because these are not your typical victims,” she said.

The effort has begun to show success. According to the task force website, as of 2017, police intervened with 582 human trafficking victims and filed 436 cases.

But less than an hour’s drive away, in Fort Lauderdale, the picture is very different.

While Fort Lauderdale (and Palm Beach as well) do have their own human trafficking police units, they do not address the scope of the problem, both Rode and Payton claim.

While establishing a unit is a critical first step, they argued the lack of an organized approach similar to Miami-Dade’s means that trafficking victims and their families are badly served, they said.

The Crime Report contacted the Fort Lauderdale police department several times for comment on the department’s policies and practices, with no response.

But interviews with three mothers in the Fort Lauderdale-Palm Beach area who were willing to talk about what happened to their daughters suggest how much remains to be done.

Mary Skelly

Mary Skelly. Photo courtesy Mary Skelly

Mary Skelly: Heartache Turns to Rage

 When Mary Skelly found out her daughter Lucia was sitting in juvenile detention with chlamydia (after being arrested a second time for stealing her car), she became enraged.

One of the many missteps in her daughter’s case, the hospital forgot, or simply neglected, to do a rape test after Lucia had been raped, branded with a tattoo and trafficked for ten days. The evidence was lost, and a case that was difficult to prosecute from the start, seemed impossible.

Lucia was branded with a lotus flower tattoo, which she told her mother “was put on her in Miami.” Her mother believes she was marked by her traffickers, as it is a crime to tattoo a 13 year old. The lotus flower is the national symbol for human trafficking because it grows in the mud into a beautiful flower, representing the adversity and hardship many human trafficking victims face.

Skelly has an eerie feeling Lucia’s traffickers knew this, and branded her.

Lucia’s involvement with a sex trafficker arguably was fueled by her own rebellious streak.

By the age of 13, she was taking her mother’s car out for joy rides down the Interstate. Her joyrides landed her into the juvenile justice system. After a first 21-day detention in juvenile facility, her mother began sleeping with her car keys and purse at night to ensure her daughter’s joy rides would stop. But on the morning of March 27th, 2017, she woke up to discover her purse, car keys, credit card, gun and social security card were missing.

The car was gone, and so was her daughter.

She called the Fort Lauderdale police on the way to work to report her missing daughter and stolen items. Then she checked her email and noticed a money-wire transfer to a 22-year-old man who she later learned threatened to kill Lucia and her mother if Lucia did not steal her mother’s belongings.

Skelly alerted her oldest daughter, Katie, about the odd money transfer. That enabled Katie to obtain the man’s address, date of birth and criminal history.  Skelly forwarded the information to the Fort Lauderdale police.

The police promised to meet her at work that day (Broward Health Imperial Point, a medical facility where Skelly worked as a nurse). They never showed up.

The next day, she got a call from a different police department, the Broward County Sheriff’s office, saying that her car was at the man’s house and she needed to come pick it up. When she got there, her daughter was nowhere to be found.

At this point Lucia had been missing for over 24 hours, with little to no effort from the police to find her. She was missing a total of ten days, during which time Skelly does not believe the police were looking for Lucia.

Katie Skelly obtained the Fort Lauderdale police report and found out the police had mis-identified Lucia. The report said Lucia had blonde hair and green eyes. Lucia has brown hair and blue eyes.

“Is anyone even looking for my sister?” Katie asked her mother. “If so, they’re looking for the wrong person.”

“They didn’t even want to get the description right” added her mother. “I don’t know if they changed that information yet. It’s unbelievable.”

When Lucia came home ten days later, on April 5, she showed up with a lotus flower tattoo on her neck, a large bruise on her leg, and fingerprint marks on her neck. She was wearing a green camo sweatshirt and sweatpants and thong underwear, underwear her mother had never seen before.

“The girl smelled so bad.” Her mother said. “She looked awful. She couldn’t even walk and she was holding her hip. She hadn’t showered in ten days.”

The first thing Lucia said to her mother was that she was hungry, and that she wouldn’t leave again. But Skelly convinced her to go to the hospital, Broward Health Medical Center, where she used to work in the ER.

In the Emergency Room, Skelly had a few minutes alone with the doctor, where she told him her daughter was kidnapped, raped, returned home, and had not showered yet. Skelly wanted her daughter to be tested by the rape crisis center. As a former employee, she knew the hospital had protocol for situations like this— or so she thought.

In the meantime, Katie Skelly called the police to let them know Lucia had returned. The police showed up at the hospital and put Lucia under custody. There, Lucia became so upset that she had to be sedated.

The next day, two detectives from the Fort Lauderdale police department showed up at the hospital to investigate the case.

One of them interviewed Lucia that day and deemed her “uncooperative,” her mother told The Crime Report.

Lucia

A younger Lucia in happier days. Photo courtesy Mary Skelly

Lucia was discharged from the hospital five days later, without a rape test conducted. She was sent to a juvenile detention center, with chlamydia.

“This is where I am infuriated” Skelly said. “There was a mishandling from day one, but at the hospital, she was in a position to get evidence taken, and they did no testing. I don’t know why. I don’t think they take human trafficking seriously.

“Fort Lauderdale doesn’t view human trafficking as what it is.”

Lucia is still very hesitant to talk about her story, but she has shared some details.

The teen said she was taken to Club Space in Miami, which experts have said is known for child trafficking (her mother emailed one of the detectives, asking for video surveillance at Club Space, but did not get a response.)

Lucia also said she was hit by a sledge hammer on the leg and was strangled because “somebody thought she stole something.”

She admitted that the trafficker told her he would kill her and her family if she didn’t do what he wanted.

Lucia also gave Fort Lauderdale police the name of another man who raped her, but according to Skelly, a detective interviewed the man, who said he had nothing to do with it, and the police department took his word for it.

Currently, Skelly lives in Long Island, New York, because she could not stand to live in Florida anymore. Lucia waits at a mental health treatment facility in Gainesville, Fl., and will be moving to New York with her mother shortly.

She hopes to start eighth grade next year.

 Editors Note: After speaking with The Crime Report, State Attorney Fernandez has decided to take on Lucia’s case and provide a lawyer and a human trafficking specialist to interview and investigate Lucia’s claim she was taken to Club Space in Miami.

Nicole Twist

Nicole Twist. Photo by Megan Hadley

Nicole Twist: A Rescue Opportunity Missed

Sophie Reader, 15, was last seen on video walking down the street, alone, at 3 am in Fort Lauderdale on May 19th, 2017. According to Sophie’s mother, Nicole Twist, a police car drove by her, but did not stop. She has been missing ever since.

Twist said she saw the original video footage, but claimed it was since edited to remove the cop car driving past.

“They drove right by her. They could have saved her.”

According to Twist, Sophie started acting out after she turned 11. She suffered from bipolar disorder and had sudden outbursts, but her mother noted she was also very naive and impressionable.

“More so, naive,” Twist recalled.

Twist believes that Sophie, wherever she is in the world, is being trafficked, and that her traffickers found her on social media.

About a year before she went missing, Twist found Sophie on a “sugar daddy” website, an online website for selling sex. Apparently, Sophie had been on several similar websites. Notably, in one of her final diary entries, Sophie wrote that “she finally found a grown-ass man that loves her.”

She also had $400 in cash under her bed.

Sophie was living with her father at the time, and Twist believed she was going down a dangerous road. Her mother remembered shopping with her, and Sophie wanted to buy thigh-high stockings. Twist refused.

“I told her I don’t know what you’re doing but it’s not going to be good,” she recalled. “I told her she was going down the wrong path.”

Then, in their last conversation over the phone (on Sunday May 14th, six days before Sophie went missing), Sophie told her mother she was going to California to be a model. The conversation, according to Twist, was “over the top” and “bizarre.”

“She kept saying how beautiful she was. It was so bizarre. I had never heard her talk like that before.”

Twist didn’t realize it at the time, but Sophie was likely being fed that by her traffickers. They were giving her a sense of “fake confidence” that Twist advises all mothers to look out for.

When Sophie ran away from home on Friday, May 19, her father went down to the Fort Lauderdale police station and filed a missing persons report.

But, according to Rode, a missing persons report can take between three and five days before it reaches a detective.

The long waiting time can be detrimental to a missing persons case, because the first 48 hours are critical to finding a runaway or missing person.

“It takes several days for a missing person report to get to a particular sergeant,” the ex-Miami Vice cop explained.

“The sergeant then assigns it to a detective. That’s a delay of three to five days before a detective can investigate. In Sophie’s case it was even worse because she had a prior runaway report. The police assumed she would come back again. But two days turned into two weeks. And she’s been missing for over a year now.”

Payton agreed.

“The first 48 hours of a missing child is a crucial time,” he said. “Police underutilized this time by assuming the young girl will just come back.”

Two weeks after Sophie went missing, Payton and Rode had taken on the case. The two private detectives were sitting at lunch with Mrs. Twist, calling Sophie’s phone over and over again (which had been turned off), and finally the phone started to ring. Once the phone rang, it could then be tracked. Peyton and Rode handed this information over to the Fort Lauderdale police right away, but law enforcement did not follow up on it until a few days later.

By then, it was too late.

Nicole Twist

Baby photos of Sophie Reader. Courtesy Nicole Twist

“That was our last chance to get her back safely,” said Payton. “That phone could have been tracked on a Sunday. That phone needed to be tracked immediately. They waited too long. That could literally be the difference between life and death for her.”

For Sophie, it might have been. She has been missing for over a year now, and the police have no active leads, her mother said.

The detective from Fort Lauderdale told Twist she thinks about Sophie’s case all the time, but she is not sure she believes it.

“I don’t think police department cared about me as a mom,” she said. “When your child goes missing it’s the worst thing in the world and to be insensitive to that… to not have the time to return a phone call… they need training.”

About a month before Sophie went missing, her and her friend went to a hotel in Fort Lauderdale with two older men, where they were given drugs and Sophie “had sex” with a 27-year-old. However, under Florida state law, it’s defined as rape and punishable by imprisonment for at least 30 years or life, for anyone over the age of 18 to have sex with a minor.

As far as Twist knows, “nothing ever happened to the guy” but the police have his information.

“I don’t know if the police interviewed those guys or not, but the thing is these guys did it to Sophie and they are doing it to other girls as well,” she said.

In her darkest moments, Twist believes it would be better if Sophie were not alive, because the alternative is much worse: life as a sex slave.

But she has a message for her daughter: Just come home.

“I know if she is able to come home, she would come home. She knows how much I love her and no matter what she did, she is always going to be my kid, my baby. Once a mom always a mom. You always love your child.”

Jack Hadley

Colleen Hernandez. Photo by Megan Hadley

Colleen Hernandez: Daughter Chained to a Pole

As Colleen Hernandez was reminded by the Palm Beach police department, her daughter was not the only missing persons case they had. Hundreds of kids went missing each month, they told her. While Hernandez understood that her 15-year-old daughter could not be the center of attention for an entire police department, at the end of the day, she didn’t care.

“I was concerned with my own child,” she said, “and I do not believe police did everything to find her.”

At first, the Palm Beach police department was responsive to Mrs. Hernandez. They sent a detective out to interview her on the first day her daughter, Jane (who asked that her real name remain anonymous) went missing. Hernandez was also given a missing persons coordinator.

But as time went on, Hernandez discovered that it took days, sometimes weeks, for the coordinator to follow up on the leads she had been providing. Notably, leads were only followed up if Hernandez’s detective was working, and if no other cases were being worked on at the time.

Meanwhile, her daughter Jane would go on to live in a tent for 100 days, being pimped out to a 35-year old man named “G” in exchange for crack, which she would smoke with “Eric” her trafficker, who was also sexually abusing her.

One of the first places Jane went when she ran away was ‘tent city,’ a living area for homeless people behind a Home Depot in Palm Beach. It was 1 am and Jane was on her way to her grandmother’s house, but she was hungry so she decided to stop at Dunkin Doughnuts, right next to Home Depot. There, two men stopped her and summoned her over to the tents. They smelled the weed she had on her and wanted to smoke.

Jane ended up staying at ‘tent city’ for a few days, where she was raped by a 20 year-old man named “Edgar.” She described the scene in an interview with The Crime Report:

 He started pulling me into a hug. He started taking off my clothes. I told him to stop. He had sex with me. I thought ok this is not happening again. I didn’t want it to happen. The fourth or fifth day, he asked if we could do it again. He said he would do it anyways. Edgar had sex with me again.

Next, Jane went to see her friend Eric, a 19-year-old who was living in a tent behind his grandma’s house. The two had started talking on Instagram, and Eric said she could stay with him for a little while.

There, Jane was sexually abused every day by Eric, who threatened to kill her if she ever left. Jane did attempt an escape once, but Eric ran after her, and then chained her to a pole. He was also cutting her with razors and slowly starving her.

Then, Eric started selling her to his friends in exchange for drugs.

He traded traded my body for crack to his friend. His friend is G. G is 35 years old and said he liked younger girls. I felt like a noodle because I was so high. I told G ‘stop I don’t want this.’ He told me ‘I don’t care.’ I was smoking crack at this point. I was never addicted to crack until I came here.

tent

The “Tent City” in Fort Lauderdale, where Jane met her trafficker. Photo by Megan Hadley

But when Jane told the Fort Lauderdale police her story, they told her it would be too hard to prosecute, because there were too many “inconsistencies.”

Because Jane had said yes to Eric a few times, the detectives did not think the case would hold up in court.

Jane later explained to The Crime Report that there were a few times she said yes to Eric because he was hitting her and slicing her with razors, and she was scared.

Eventually, Eric’s grandmother found Jane, and sent her off. Jane showed up at her own grandmother’s house 100 days later in the pouring rain.

From there, the police took Jane back to Eric’s house to retrieve her clothes. As far as the Hernandez family knows, Eric has not been investigated by the police, although Jane gave the police all the names and details of the men who sexually assaulted her.

The Palm Beach police department does not consider Jane’s case a human trafficking case, but she does.

“I didn’t ask to be sold for drugs,” she said. “I was not OK with having sex with 35-year-old man so Eric could have crack.”

Megan Hadley

Megan Hadley

When Jane looks in the mirror now, she does not feel beautiful. All she sees is a damaged person.

Parts 2 in this series will take an in-depth look at Global Children’s Rescue, and its efforts to rescue trafficked children. Part 3 will examine the detrimental role social media plays in child sex trafficking, and how technology such as facial recognition, could be used to recover missing and runaway youth.

 Megan Hadley is a staff reporter for The Crime Report. She welcomes readers’ comments.

from https://thecrimereport.org

Criminal Justice and the Supreme Court: What’s Ahead?

As President Trump prepares to announce Monday his nominee to fill retiring Justice Kennedy’s Supreme Court seat, The Crime Report asks legal scholars around the country for their views on the criminal justice challenges the next Court will face.

President Donald Trump is expected to announce his nominee to fill retiring Justice Anthony Kennedy’s seat on the Supreme Court at 9 pm (Eastern) Monday.

The new justice will have the opportunity to influence a host of criminal justice issues that have been at the center of national debate for decades—as well as some emerging ones. The Crime Report spoke with legal experts and scholars around the country to get their assessments.

Gun Rights

The Court has taken up relatively few gun cases, but judging from its rulings so far, a conservative-leaning nominee is likely to shift the majority towards a broad reading of the Second Amendment.

A nominee who is a “a very strong proponent of vigorous gun rights” makes it likelier that the Court will hear more cases that address the scope of permissible gun control, said Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at Georgetown University Law School.

Three current justices—Clarence Thomas, Neil Gorsuch and Samuel Alito—have unsuccessfully sought to rule on more Second Amendment cases in the past. But with an amenable Trump nominee on the bench, the group would satisfy the “rule of four,” which permits four of the nine justices to grant a writ of certiorari, and would be able to add gun control cases to the docket.

One issue that the Court has left open is whether the right to bear arms extends outside the home. Barnett and Adam Winkler, a law professor at UCLA, had little doubt that the nominee would vote against gun control measures in such cases.

“It’s safe to say that whoever is replacing Justice Kennedy is going to be very supportive of the individual right to keep and bear arms,” Barnett said.

Winkler said that the Court will soon be asked to rule on discretionary permits for concealed carry, which limit who may carry a concealed weapon in public, and on the lawfulness of bans on military-style rifles.

He predicted that the Trump nominee would vote against both measures.

If discretionary permitting were struck down, it would have a significant impact on large cities such as New York and Los Angeles, where concealed carry is under stringent restrictions.

“It would mean that a city like Los Angeles would go from about 500 people with permits to carry guns to 300,000 people with permits to carry guns,” Winkler said.

Whether a majority of justices would favor such a ruling is unclear.

“We don’t really know what Chief Justice [John] Roberts thinks about many of these issues,” said Winkler. “But Roberts has been a reliable vote in favor of a broad reading of the Second Amendment that grants an individual right in previous cases.”

The Concealed Carry Reciprocity Act (CCRA), which is currently awaiting a vote in the Senate and would force states to honor the concealed-carry permits, or lack of permitting, of any other state, will lend deeper insight into the Trump nominee’s jurisprudence if it is voted into law and taken to the Court.

“I think the CCRA would put a Trump nominee somewhat in the crosshairs,” said Winkler. “On the one hand, it’s someone who’s probably a strong proponent of gun rights. On the other hand, it’s someone who’s likely to be an opponent of expansive federal power.”

“It’s just not certain how a Supreme Court justice would vote.”

See also: Will a Shifting Supreme Court Change the Consensus on ‘Common Sense’ Gun Laws?

Searches and Seizures

Tracey Maclin, a law professor at Boston University School of Law, expressed concern that the confirmation of Trump’s nominee might put in peril the exclusionary rule, which makes all evidence obtained by searches and seizures that violate the Fourth Amendment inadmissible in court.

Though Kennedy himself was no supporter of Mapp v. Ohio (1961), the case which applied the exclusionary rule to the states, Maclin worried that the political leanings of the new nominee, whom he was confident would oppose the exclusionary rule, might signal to prosecutors that Mapp is prime to be overturned.

“It wouldn’t surprise me if prosecutors start making arguments that Mapp should be reconsidered or Mapp should be overruled,” he said. “This would be a momentous issue. And I think there are already five votes.”

Maclin said that overruling Mapp would give law enforcement officers implicit permission to violate the Constitution in order to collect evidence.

“If you look at prior to Mapp, prior to 1961, sure, the Constitution applied to state police officers, but they were like, ‘Who cares? The evidence is coming in anyway, so we’ll do what we want to do,’” he said.

“Do we want the Court to announce rules that will incentivize police to follow the Constitution, or don’t we care about the Fourth Amendment? That’s something that could be very much on the horizon, and if it does arise, it’s going to be a big deal.”

On questions of surveillance, the new justice’s stance is more difficult to predict, according to Daniel Epps, associate professor of law at Washington University Law School.

“It’s possible that the new justice could look more like the late Justice Antonin Scalia, who was very deferential to government interests in the criminal sphere almost across the board,” he said. “If it’s someone like that, then unquestionably the justice will be more tolerant of government surveillance and things like that than Justice Kennedy was.”

A stauncher originalist in the mold of Justice Gorsuch, however, would be more likely to curtail surveillance in the name of privacy.

Sentencing and the Death Penalty

Trump’s nominee will likely be less receptive to Eighth Amendment challenges to harsh sentencing and the death penalty than Kennedy was.

According to Brandon Garrett, the L. Neil Williams, Jr. Professor of Law at Duke University School of Law, Kennedy’s retirement represents a missed opportunity in terms of limiting acceptable forms of punishment.

During his tenure, Kennedy spoke out in favor of dignitary concerns—specifically, redefining rights to protect the “dignity” of persons or groups— on multiple occasions. He concurred in multiple rulings limiting the scope of the death penalty, as well as a case that granted sentencing reductions after federal sentencing guidelines changed.

“On those issues involving mass incarceration, life without parole, solitary, Kennedy was a really important voice, and there is no comparable voice on the court right now,” Garrett said.

“It’s a safe assumption that no new appointee is going to come before Congress in the confirmation hearing and say, ‘Yes, I agree with Justice Kennedy that the death penalty stands on shaky ground today in this country,’” he said.

“I just can’t imagine a Trump appointee saying that.”

The new justice will have opportunity to rule on an Eighth Amendment question in Timbs v. Indiana, an upcoming case that will resolve whether the clause of the Eighth Amendment banning excessive fines governs the states as well as the federal government.

Prison Reform

According to Washington University’s Daniel Epps, with the appointment of a Trump nominee, the Supreme Court would more frequently strike down court-mandated prison reform.

Garrett, however, had less confidence in the nominee’s potential to help or harm that cause.

“I think most of what is happening in prison reform and happening in criminal justice reform is happening at the state and local levels,” he said. “The Supreme Court has not been that relevant to many of the changes that have occurred in our criminal justice system.”

“The people who are changing the ways that prisons are run are at the local and state level, and if the Supreme Court doesn’t take the lead on some of these important criminal justice issues, then others will, and have.”

Going Forward

A number of upcoming cases will provide greater clarity about the new justice’s legal philosophy.

In Gamble v. United States, the Supreme Court will choose whether to overturn a long-standing doctrine permitting the federal government and state governments to each try a defendant for the same offense without violating the double-jeopardy clause of the Fifth Amendment.

“It could be really interesting to see how the new justice approaches that question,” Epps said.

Epps also expected to see challenges to qualified immunity, which governs when plaintiffs can sue police officers and other officials for violating their constitutional rights, in the near future.

“The Court has been very aggressive in limiting the ability to sue there, and there’s some good arguments that the Court has gone well beyond the original understanding of the Constitution,” he said.

“That could be very interesting and important, and a chance to see if this justice someone who is just voting reflexively in favor of law enforcement interests, or someone who has a more originalist approach that might cut in a different direction.”

All five sources were confident that the nominee would be confirmed in advance of November’s midterm elections, claiming that the perfect unity among Democrats and two Republican defections necessary to stall the confirmation hearing were unlikely.

Still, Barnett cautioned against ascribing undue influence to the likely new justice, noting that the Court’s swing vote has merely shifted from Kennedy to Roberts.

“The Supreme Court isn’t going to go any further right than Justice Roberts would have us go, and we all know that Justice Roberts is not the most conservative member of the Court,” he said.

“The court is not necessarily going to reflect the new justice’s views, because it will reflect John Roberts’ views.”

Elena Schwartz is a news intern with The Crime Report. Readers’ views are welcome.

from https://thecrimereport.org

Thinking Outside the Cell: Software Cuts Recidivism Among Texas’ Mentally Ill

In Dallas County, the main outlet of psychiatric care for those with mental illness is no longer the corrections system. A five-year initiative using predictive technology is helping to divert justice-involved mentally ill individuals into effective treatment programs.

In Dallas County, Texas, the main outlet of psychiatric care for those with mental illness is no longer the corrections system.

A five-year initiative aimed at bridging the gap between the legal and medical communities is successfully diverting justice-involved mentally ill individuals to effective treatment programs.

The key to the program is technology. The initiative uses software created by HarrisLogic, a Missouri-based technology and clinical services company that allows information about mentally ill individuals who fall afoul of the law to be shared among law enforcement, courts and health care providers.

Experts say such a tech-based approach could be critical to reducing overcrowding in U.S. jails.

There are now nearly ten times the number of mentally ill patients behind bars than those residing in the remaining state hospitals, according to a 2014 report by the Treatment Advocacy Center, an Arlington, Va.-based national nonprofit focused on mental illness issues.

A prime example is the Dallas County Jail, whose jurisdiction stretches from the cities of Carrollton to Mesquite, to just outside of Arlington. Dallas County’s major detention center, the Lew Sterrett Justice Center, is the second largest mental health facility in Texas, according to the County Sheriff’s Office.

In 2014, the county received a $7 million grant from the W.W. Caruth, Jr. Foundation for a “Smart Justice Initiative” to provide alternatives to jail for individuals with mental health problems who come into contact with the justice system. The county partnered with the Meadows Mental Health Policy Institute (MMHPI), a research and development organization that helps Texans connect to mental health care.

Now in its fourth year, the jail diversion program has reduced recidivism from 31 percent in 2014 to 26 percent in 2017, according to the National Association of Counties.

It’s “an impressive example of how local jurisdictions can implement data-driven innovations that enhance public safety, reduce jail costs to taxpayers, and provide effective and humane interventions for people with mental illness,” said Marc Levin, vice president of criminal justice at the Texas Public Policy Foundation.

Alternatives to Punishment

Relieving jails of the burden of providing mental health services is only a first step towards the goal of developing alternative and non-punitive options for treatment. It doesn’t address the decisions that bring mentally ill individuals into the justice system in the first place, mental health advocates say.

The Dallas County initiative uses technology to assist in the decision-making by police, courts and health providers.

Following a 911 call, if it is determined that jail is an initially appropriate response to a troubled individual, data from the standard mental health and suicide screening tests (as per Texas standards) is automatically integrated with any other data related to the individual’s medical history contained in police or emergency response records as well as hospital data.

Traditionally, such data was kept in separate silos, but the software implemented through the Jail Diversion Platform, created by Harris Logic, integrates all the personal information critical to determining a defendant’s immediate needs and subsequent care.

That includes information such as previous arrests or incarcerations, previous mental health rehabilitation, and current medication, Hudson Harris, chief engagement officer of HarrisLogic, said in an interview with The Crime Report.

This data is entered in the County Adult Information System, a “master index,” which is used to share information in a manner that allows for access by court and jail authorities, clinicians, legal professionals, and pretrial staff.

Privacy Protection

No mental health assessment is conducted without the prior permission of a defendant’s attorney—likely a public defender. Further privacy protections require that each agency using the data can only view what is authorized to them through a data usage agreement.

By involving multiple agencies, the combined knowledge and expertise allows future treatment to be tailored to an individual’s needs─better than simply checking a box during a mandatory evaluation, authorities say.

This step is arguably the most crucial. Without accurate and swift identification, issues stemming from an individual’s illness can make it more difficult for persons to follow jail rules, increasing the likelihood they will face harsh disciplinary measures, or be subjected to violence from other inmates or from guards.

The second intercept in the initiative is through pretrial release, providing an escape from being trapped in the justice system.

“Mental health patients often spend more time in jail waiting for their case to be resolved than that of a mentally healthy convict,” observed Alisa Roth, author of Insane: America’s Criminal Treatment of Mental Illness, in a recent article.

This may be due to the requirement in many states that inmates with serious mental illness undergo additional evaluations or be restored to competency before standing trial.

According to a survey of 40 state hospital officials by the Treatment Advocacy Center, 78 percent of the respondents were wait-listing pretrial inmates for hospital services. Often, mentally ill inmates spend more time behind bars waiting for their case to be heard than they would serve if they were convicted of the offense.

To remedy this delay, the comprehensive technology utilized in the Smart Justice program increases the likelihood of a pretrial release by allowing officials to determine if the person is a flight risk, or a danger to the public.

Using this complete data, a judge is more likely to issue a pretrial release, but with conditions for connection to treatment.

An evaluation of the Smart Justice Initiative from April 2017 to January 2018 showed that of the individuals presented before the magistrate for a release decision, 89 percent were successful in being granted a pretrial release bond. Of those granted bond, 100 percent were “released, connected to treatment, and supervised on bond with monitored treatment for the Court,” reports Dallas County.

Need for Coordinated Care

So why are mentally ill offenders more prone to getting re-arrested and re-booked than the general population, even with increased treatment availability?

The main reason, explains Hudson Harris, is the lack of coordinated care. This refers to the absence of follow-up treatment or supervision of mentally ill persons after they have been released from jail, typically back to the same environment that caused them to get arrested in the first place.

It’s here that the third intercept comes into play.

The software directly assigns an individual to a treatment program based on the data provided. Normally it takes weeks to find a person eligible for mental health care programs, but with this technology it takes an estimated 15 minutes or less.

Inadequate coordination is not only a problem within the jail system, but also in an individual’s contact with hospitals.

When dealing with an individual with a mental health illness, a hospital’s main goal is only to focus on the individuals’ current state of health─stabilize them, get them locked down, and then out the door as quickly as possible—with little to no coordination of care, says Harris.

There is no link between simply going to the hospital and getting better when you have a psychiatric condition.

In fact, a 2018 study from the American Psychological Association found that hospitalization has an iatrogenic effect on mental health, meaning the treatment causes a worsening of the condition.

 Follow-up Care Crucial

Connecting mentally ill persons with the care and follow-up that they require will ensure they are less likely to become involved in the justice system, said Levin.

“The initiative has resulted in rapid screening and diversion to appropriate treatment programs for thousands of individuals arrested for conducted related to a serious mental illness,” he said.

Providing access to treatment and follow-up care can also help authorities save money on their corrections budgets.

When mentally ill inmates do not receive consistent treatment, they frequently cycle in and out of the jails, forcing the facility (and taxpayers) to spend additional money on health professional staff, medication needed for certain mental illnesses, and simply housing them behind bars for longer periods of time.

A 2003 study reports that in Texas prisons, “the average prisoner costs the state about $22,000 a year compared to the cost of prisoners with mental illness, which ranges from $30,000 to $50,000 a year.”

Also at a state level, Texas spends $1.4 billion in emergency room costs and $650 million in local justice system costs annually to address mental illness and substance use disorders that are not otherwise being adequately treated, according to MMHPI.

The operation of increased treatment may seem like a burden to the jail’s budget, but simply by providing individuals with the appropriate care that they need, the cost of doing so declines; breaking the high-utilizer cycle and reducing contact of the mentally ill with the corrections system.

According to HarrisLogic, the Smart Justice Initiative will be able to trim over $30 million in these expenses over the five-year implementation period.

While the initiative has resulted in significant savings to Dallas County on jail costs and indigent defense costs, and helped reduce overcrowding in the courts system, Levin notes the challenge is to replicate it in other jurisdictions.

Laura Binczewski

Laura Binczewski

While Dallas received a large grant, other jurisdictions would have to provide upfront funding or use a pay-for-performance model in order to get similar initiatives off the ground, which may prove difficult for less-fortunate counties, he said.

However, the prospects for similar programs elsewhere have brightened thanks to the increased interest of private funders, and a call to action by the Stepping Up Initiative, a national effort to divert people with mental illness from jails by asking state and local officials to pass mental health legislation.

Noting that 451 counties across the nation have already passed motions calling for reforms to the justice system’s treatment of mentally ill, the initiative organizers said a nationwide consensus for change was crucial.

“Without change, large numbers of people with mental illnesses will continue to cycle through the criminal justice system,” the organization declared on its website, “often resulting in tragic outcomes for these individuals and their families, missed opportunities for connections to treatment, inefficient use of funding, and a failure to improve public safety.”

Laura Binczewski is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org

Thinking Outside the Cell: Software Cuts Recidivism Among Texas’ Mentally Ill

In Dallas County, the main outlet of psychiatric care for those with mental illness is no longer the corrections system. A five-year initiative using predictive technology is helping to divert justice-involved mentally ill individuals into effective treatment programs.

In Dallas County, Texas, the main outlet of psychiatric care for those with mental illness is no longer the corrections system.

A five-year initiative aimed at bridging the gap between the legal and medical communities is successfully diverting justice-involved mentally ill individuals to effective treatment programs.

The key to the program is technology. The initiative uses software created by HarrisLogic, a Missouri-based technology and clinical services company that allows information about mentally ill individuals who fall afoul of the law to be shared among law enforcement, courts and health care providers.

Experts say such a tech-based approach could be critical to reducing overcrowding in U.S. jails.

There are now nearly ten times the number of mentally ill patients behind bars than those residing in the remaining state hospitals, according to a 2014 report by the Treatment Advocacy Center, an Arlington, Va.-based national nonprofit focused on mental illness issues.

A prime example is the Dallas County Jail, whose jurisdiction stretches from the cities of Carrollton to Mesquite, to just outside of Arlington. Dallas County’s major detention center, the Lew Sterrett Justice Center, is the second largest mental health facility in Texas, according to the County Sheriff’s Office.

In 2014, the county received a $7 million grant from the W.W. Caruth, Jr. Foundation for a “Smart Justice Initiative” to provide alternatives to jail for individuals with mental health problems who come into contact with the justice system. The county partnered with the Meadows Mental Health Policy Institute (MMHPI), a research and development organization that helps Texans connect to mental health care.

Now in its fourth year, the jail diversion program has reduced recidivism from 31 percent in 2014 to 26 percent in 2017, according to the National Association of Counties.

It’s “an impressive example of how local jurisdictions can implement data-driven innovations that enhance public safety, reduce jail costs to taxpayers, and provide effective and humane interventions for people with mental illness,” said Marc Levin, vice president of criminal justice at the Texas Public Policy Foundation.

Alternatives to Punishment

Relieving jails of the burden of providing mental health services is only a first step towards the goal of developing alternative and non-punitive options for treatment. It doesn’t address the decisions that bring mentally ill individuals into the justice system in the first place, mental health advocates say.

The Dallas County initiative uses technology to assist in the decision-making by police, courts and health providers.

Following a 911 call, if it is determined that jail is an initially appropriate response to a troubled individual, data from the standard mental health and suicide screening tests (as per Texas standards) is automatically integrated with any other data related to the individual’s medical history contained in police or emergency response records as well as hospital data.

Traditionally, such data was kept in separate silos, but the software implemented through the Jail Diversion Platform, created by Harris Logic, integrates all the personal information critical to determining a defendant’s immediate needs and subsequent care.

That includes information such as previous arrests or incarcerations, previous mental health rehabilitation, and current medication, Hudson Harris, chief engagement officer of HarrisLogic, said in an interview with The Crime Report.

This data is entered in the County Adult Information System, a “master index,” which is used to share information in a manner that allows for access by court and jail authorities, clinicians, legal professionals, and pretrial staff.

Privacy Protection

No mental health assessment is conducted without the prior permission of a defendant’s attorney—likely a public defender. Further privacy protections require that each agency using the data can only view what is authorized to them through a data usage agreement.

By involving multiple agencies, the combined knowledge and expertise allows future treatment to be tailored to an individual’s needs─better than simply checking a box during a mandatory evaluation, authorities say.

This step is arguably the most crucial. Without accurate and swift identification, issues stemming from an individual’s illness can make it more difficult for persons to follow jail rules, increasing the likelihood they will face harsh disciplinary measures, or be subjected to violence from other inmates or from guards.

The second intercept in the initiative is through pretrial release, providing an escape from being trapped in the justice system.

“Mental health patients often spend more time in jail waiting for their case to be resolved than that of a mentally healthy convict,” observed Alisa Roth, author of Insane: America’s Criminal Treatment of Mental Illness, in a recent article.

This may be due to the requirement in many states that inmates with serious mental illness undergo additional evaluations or be restored to competency before standing trial.

According to a survey of 40 state hospital officials by the Treatment Advocacy Center, 78 percent of the respondents were wait-listing pretrial inmates for hospital services. Often, mentally ill inmates spend more time behind bars waiting for their case to be heard than they would serve if they were convicted of the offense.

To remedy this delay, the comprehensive technology utilized in the Smart Justice program increases the likelihood of a pretrial release by allowing officials to determine if the person is a flight risk, or a danger to the public.

Using this complete data, a judge is more likely to issue a pretrial release, but with conditions for connection to treatment.

An evaluation of the Smart Justice Initiative from April 2017 to January 2018 showed that of the individuals presented before the magistrate for a release decision, 89 percent were successful in being granted a pretrial release bond. Of those granted bond, 100 percent were “released, connected to treatment, and supervised on bond with monitored treatment for the Court,” reports Dallas County.

Need for Coordinated Care

So why are mentally ill offenders more prone to getting re-arrested and re-booked than the general population, even with increased treatment availability?

The main reason, explains Hudson Harris, is the lack of coordinated care. This refers to the absence of follow-up treatment or supervision of mentally ill persons after they have been released from jail, typically back to the same environment that caused them to get arrested in the first place.

It’s here that the third intercept comes into play.

The software directly assigns an individual to a treatment program based on the data provided. Normally it takes weeks to find a person eligible for mental health care programs, but with this technology it takes an estimated 15 minutes or less.

Inadequate coordination is not only a problem within the jail system, but also in an individual’s contact with hospitals.

When dealing with an individual with a mental health illness, a hospital’s main goal is only to focus on the individuals’ current state of health─stabilize them, get them locked down, and then out the door as quickly as possible—with little to no coordination of care, says Harris.

There is no link between simply going to the hospital and getting better when you have a psychiatric condition.

In fact, a 2018 study from the American Psychological Association found that hospitalization has an iatrogenic effect on mental health, meaning the treatment causes a worsening of the condition.

 Follow-up Care Crucial

Connecting mentally ill persons with the care and follow-up that they require will ensure they are less likely to become involved in the justice system, said Levin.

“The initiative has resulted in rapid screening and diversion to appropriate treatment programs for thousands of individuals arrested for conducted related to a serious mental illness,” he said.

Providing access to treatment and follow-up care can also help authorities save money on their corrections budgets.

When mentally ill inmates do not receive consistent treatment, they frequently cycle in and out of the jails, forcing the facility (and taxpayers) to spend additional money on health professional staff, medication needed for certain mental illnesses, and simply housing them behind bars for longer periods of time.

A 2003 study reports that in Texas prisons, “the average prisoner costs the state about $22,000 a year compared to the cost of prisoners with mental illness, which ranges from $30,000 to $50,000 a year.”

Also at a state level, Texas spends $1.4 billion in emergency room costs and $650 million in local justice system costs annually to address mental illness and substance use disorders that are not otherwise being adequately treated, according to MMHPI.

The operation of increased treatment may seem like a burden to the jail’s budget, but simply by providing individuals with the appropriate care that they need, the cost of doing so declines; breaking the high-utilizer cycle and reducing contact of the mentally ill with the corrections system.

According to HarrisLogic, the Smart Justice Initiative will be able to trim over $30 million in these expenses over the five-year implementation period.

While the initiative has resulted in significant savings to Dallas County on jail costs and indigent defense costs, and helped reduce overcrowding in the courts system, Levin notes the challenge is to replicate it in other jurisdictions.

Laura Binczewski

Laura Binczewski

While Dallas received a large grant, other jurisdictions would have to provide upfront funding or use a pay-for-performance model in order to get similar initiatives off the ground, which may prove difficult for less-fortunate counties, he said.

However, the prospects for similar programs elsewhere have brightened thanks to the increased interest of private funders, and a call to action by the Stepping Up Initiative, a national effort to divert people with mental illness from jails by asking state and local officials to pass mental health legislation.

Noting that 451 counties across the nation have already passed motions calling for reforms to the justice system’s treatment of mentally ill, the initiative organizers said a nationwide consensus for change was crucial.

“Without change, large numbers of people with mental illnesses will continue to cycle through the criminal justice system,” the organization declared on its website, “often resulting in tragic outcomes for these individuals and their families, missed opportunities for connections to treatment, inefficient use of funding, and a failure to improve public safety.”

Laura Binczewski is a TCR news intern. She welcomes comments from readers.

from https://thecrimereport.org