Guest Host: Indira Lakshmanan

A prison cell is seen through the door window following a tour of the cell block by President Obama at the El Reno Federal Correctional Institution in El Reno, Oklahoma, in July.

A prison cell is seen through the door window following a tour of the cell block by President Obama at the El Reno Federal Correctional Institution in El Reno, Oklahoma, in July.

In an opinion piece in yesterday’s Washington Post, President Obama said America must rethink solitary confinement. The president wrote about a 16-year-old who spent nearly two years in solitary and – after being released – committed suicide. The president announced he’s banning solitary confinement for juvenile offenders in the federal prison system, saying it’s used too often and the consequences can be devastating. Also this week, the Supreme Court ruled that teenagers who were given life sentences under mandatory minimums must be allowed to have their cases reviewed. We talk about new rules that affect juveniles in the criminal justice system.

Guests

  • Marsha Levick deputy director, chief counsel and co-founder of Juvenile Law Center
  • Paul Butler professor, Georgetown Law School
  • Carrie Johnson justice correspondent, NPR
  • Dan May district attorney of Colorado's El Paso and Teller Counties; former district attorney, Colorado Springs, Colo.

Transcript

  • 10:06:54

    MS. INDIRA LAKSHMANANThanks for joining us. I'm Indira Lakshmanan sitting in for Diane Rehm. President Obama banned solitary confinement for juveniles in federal prisons. The Supreme Court gives inmates sentenced to mandatory life in prison without parole when they were minors the chance to have their cases reviewed. Joining me in the studio today to talk about new rules in juvenile justice, what works for youthful offenders and what doesn't, Paul Butler of Georgetown Law School and Carrie Johnson of NPR.

  • 10:07:22

    MS. INDIRA LAKSHMANANAnd by phone from Colorado, District Attorney Dan May. Welcome to all of you.

  • 10:07:27

    MR. PAUL BUTLERIt's great to be here.

  • 10:07:28

    MS. CARRIE JOHNSONGood morning.

  • 10:07:29

    LAKSHMANANSo as always, you, the listeners, are also most welcome to join our conversation. Just give us a call at 1-800-433-8850. You can send us an email at drshow@wamu.org or you can join us on Facebook or send us a tweet. But first, joining us by telephone from Philadelphia is Marsha Levick. She's deputy director, chief council and cofounder of the Juvenile Law Center, a public interest law group advocating fairness for minors accused of crimes. Marsha, welcome.

  • 10:08:00

    MS. MARSHA LEVICKThank you. Good morning, Indira.

  • 10:08:02

    LAKSHMANANGood morning. So you were a co-counsel in the Supreme Court case decided this week that gives inmates who were juveniles when sentenced to mandatory life without parole the change now to have their cases reviewed. Why did you take on the case and what did your victory mean?

  • 10:08:19

    LEVICKWe took on the case because it's really right now the most recent in a series of cases that the United State Supreme Court has decided in the last 10 years that has literally changed the landscape for children in the justice system. The court has repeatedly now recognized that kids are different, that they are different in ways that matter under the Constitution and that we have to think about sentencing them in very different ways.

  • 10:08:44

    LEVICKThe Montgomery decision that the court released on Monday essentially said that we can't have justice by the calendar in this country. So in 2012, the Supreme Court struck mandatory life without parole sentences for juveniles in homicide cases, but it left open the question as to whether or not that ruling would apply to thousands of individuals who have been serving that unconstitutional sentence going as far back as the 1950s across about 30 states in this country.

  • 10:09:17

    LEVICKAnd on Monday, the court said, yes, they get the benefit of that ruling as well.

  • 10:09:20

    LAKSHMANANSo how many people does this week's ruling actually affect and how likely are they to have their sentences overturned?

  • 10:09:28

    LEVICKIt probably affects, our best understanding, is as many as 2,000 individuals at a minimum. And I said, those are individuals who are spread out over more than two dozen states. The bulk of them are actually in Pennsylvania, Louisiana and Michigan. You know, the decision requires that they all get a second look. They will all either have to have resentencing hearings or they will have to have an opportunity for parole.

  • 10:09:57

    LEVICKThe court, in an opinion by Justice Kennedy, was quite forceful in declaring yet again, as they did in 2012, that these sentences should be rare and uncommon, only imposed on those who really represent -- the term Justice Kennedy used was permanent incorrigibility. Will that play out in individual cases? I think we'll have to see.

  • 10:10:19

    LAKSHMANANWell, you know, I actually -- you've kind of alluded to it twice now and I want to ask you a philosophical question that I think underpins this entire discussion this hour, which is, you know, first a legal question. Does our legal system consider young people less culpable for their actions and more able to change than adults and then, philosophically, what is the point of juvenile justice? Is it to reform youngsters or it is to punish them?

  • 10:10:44

    LEVICKThose are both great and important questions. To your first question, yes, since 2005, the Supreme Court, as I said, in a series of cases has now repeatedly affirmed and adopted research that does demonstrate that children are less culpable, less blameworthy for their criminal conduct than adults and that's why the court has set a different standard for punishment.

  • 10:11:08

    LEVICKThe purpose of the juvenile justice system is reform. It is rehabilitation. It's no punishment. And I think that the struggle that we face in this country right now is that, as we continue to try children as adults in the criminal justice system, we need to really come up with a way to sanction them, to hold them accountable for their conduct, but to hold them accountable in developmentally appropriate ways.

  • 10:11:35

    LAKSHMANANHum. Well, your Supreme Court win, of course, came the same week that President Obama announced he's eliminating solitary confinement for minors in federal prisons. How significant is this? How many juveniles are actually in federal prisons who are going to be affect by this order or is this really a symbolic step?

  • 10:11:52

    LEVICKThere's a little bit of symbolism to it, but I also think that it's critically important. In terms of the real numbers, very small in the federal system. Probably less than two dozen juveniles who could face solitary confinement in the federal system. But the point is that, with President Obama issuing this executive order Monday evening, he has demonstrated federal leadership, national leadership on an issue that, like many of our sentencing practices, we are behind much civilized world.

  • 10:12:25

    LEVICKOur colleagues and friends in the international community think of solitary confinement as torture. Locking a child up in what is effectively a closet for days, weeks, months on end is state-sanctioned or government-sanctioned child abuse. So I think it's extraordinary. I applaud the president for doing this and I hope that it sends an important message to states and to administrators of juvenile justice systems that this is a standard they need to meet.

  • 10:12:54

    LAKSHMANANYou mentioned torture and I'm thinking of a column a couple years ago by no less than the conservative columnist George Will who branded solitary confinement torture and he wasn't even referring to American juveniles. He was referring to foreign terror suspects. So what exactly is it that is wrong with solitary and why is it inappropriate for young people?

  • 10:13:15

    LEVICKWell, I mean, we can talk about the research. It's traumatizing to the greatest extent. President Obama in his op-ed talked about the tragic case of Kalief Browder who was in solitary on Riker's Island for a couple of years, came out and ultimately and tragically committed suicide. It exacerbates all of the difficulties that children experience. If they have mental illness, it will make it worse. It may cause them to engage in self harm. It alienates them. It inhibits their ability to engage with individuals when they come out.

  • 10:13:50

    LEVICKBut more importantly, I think, if we just stop a moment and imagine that if any one of us had a neighbor who was locking their child in a closet without access to outdoor recreation, putting their food through a slot in the door, depriving them of any kind of stimulation through radio, television, computer, reading materials, educational programming, interaction with their peers, we wouldn't hesitate to call some state authority and say there's something very wrong here.

  • 10:14:20

    LEVICKAnd yet, we tolerate it within our justice system. It is torture. It is something that is really inexplicable, I think, as a society to think that we would lock people up like this. I think that the directive, the guidance that the justice department has issued is very long overdue and, as I said, I hope that this message gets down to the states.

  • 10:14:41

    LAKSHMANANYour group, the Juvenile Law Center, sued the state of New Jersey over solitary confinement. What was the case and what's the status of it now?

  • 10:14:50

    LEVICKWe represented two young teenagers, 16 and 17 years old, one of whom was placed in solitary in and out over a period of about seven weeks. The other individual was actually in solitary almost nonstop for a period of seven months, a seven by seven foot cell. He was placed in solitary because he had mental health issues. The facility found him difficult to manage and literally placed him in solitary in their view to allow him to kind of get his act together in terms of a behavior and the mental difficulties that he was confronting.

  • 10:15:29

    LEVICKNeedless to say, he got worse. He engaged in significant self harm. He was denied any mental health counseling because he could not control himself in solitary. We did sue the state of New Jersey. We ultimately settled that case on his behalf. Since then, New Jersey has modified their solitary confinement policies, but I think that what's so important about what the president did in his -- in issuing this guidance through the justice department is that for juveniles, he banned solitary.

  • 10:16:01

    LEVICKThis should not be an issue where we're saying, well, I think three days might be okay. Maybe five days is all right. Maybe just 24 hours. He banned solitary and I think that's the standard that we want to be meeting.

  • 10:16:11

    LAKSHMANANAll right. Well, quickly, what about state prisons, like New Jersey and other systems? Are they now obliged to follow the president's executive action and how many juveniles are kept in solitary confinement in state institutions?

  • 10:16:24

    LEVICKTo the first question, no, they are not obliged to follow it. That is the limitation of what President Obama did. It is something that only strictly mandates a particular set of policies and procedures in the federal prison system.

  • 10:16:38

    LAKSHMANANIs that because he could not do it from the states, he could not decide what that states were going to do, he could only do it for the federal system?

  • 10:16:45

    LEVICKYes. Through an executive order. Certainly, Congress has ways of imposing standards and regulations on the states through various kinds of funding mechanisms, but through the executive order, he could only impact directly the federal system. There are hundreds of individuals who are in solitary in the state system. It's complicated because, of course, we also have juveniles in the adult criminal justice system in state prisons in addition to juveniles who are in juvenile justice facilities.

  • 10:17:14

    LEVICKSo we know that the practice exists across the country. There is a lot of conversation going on right now, even before the president's op-ed about the need to change the practice. And I would say that I'm cautiously optimistic that we will begin to see changes at the state level.

  • 10:17:31

    LAKSHMANANNow, are we talking about hundreds or thousands of juveniles who annually are placed in solitary confinement in state prisons and is that something that state legislatures would have to make a ruling on?

  • 10:17:42

    LEVICKI think in some years, it has definitely been thousands so the numbers can be quite high. How it gets dealt with at the state level can vary. Certainly state legislatures can pass laws that prohibit it. In many instances, these juvenile correctional systems, state corrections departments, these are executive agencies that can also pass regulations separate and apart from the legislative process. Individual administrators can make choices about how to run their facilities.

  • 10:18:09

    LAKSHMANANAll right.

  • 10:18:10

    LEVICKSo there are many players in the system, all of whom can contribute to changing it.

  • 10:18:14

    LAKSHMANANWe're gonna have to leave it there for the moment. Thank you so much, Martha Levick, deputy director, chief council and cofounder of the Juvenile Law Center. Stay with us. Short break. We'll be back.

  • 10:20:01

    LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. This hour we're having a discussion about juvenile justice, changes to the system, what's right and what is wrong for juvenile justice. Joining me here in the studio, Paul Butler, professor at Georgetown Law School, Carrie Johnson, the justice correspondent for NPR, and on the phone, Dan May, district attorney of Colorado's El Paso and Teller Counties and former district attorney in Colorado Springs, Colorado.

  • 10:20:29

    LAKSHMANANDan May, I want to ask you the same question that I asked Marsha Levick in the first segment, which is you're a district attorney, you've worked in the juvenile justice system. What do you see as the main reason for incarcerating youths? What is in society's interest? What is in the interest of the young offenders, philosophically? What's the point of juvenile justice?

  • 10:20:51

    MR. DAN MAYSure, good morning. I hadn't had a chance to say that before. On a lighter note, I will note this morning as I got up, the sky was orange and blue, and we here in Colorado definitely note those colors anymore. Okay, the -- I agree with her position that the main purpose of juvenile justice is reform. Colorado is based on the best interest of the child for juvenile justice. But you do get a very small percentage of kids who can be -- can do very evil things, very high-profile things, they can plan out gruesome murders and robberies and carry those out.

  • 10:21:32

    MR. DAN MAYAnd so there are times that punishment becomes a key role, but it's in that rare occasion. Our system is built on reforming children, getting them back into society, rehabilitating them and making them good citizens. That doesn't mean there isn't a certain child that you cannot work with.

  • 10:21:50

    LAKSHMANANAll right, so they are in one sense less culpable for their actions, more able to change than adults and therefore should be treated differently, but there is some small group that is -- I think incorrigible was the word that Justice Kennedy used.

  • 10:22:06

    MAYThat's the word he used. You know, I've got to say, you know, we deal with individuals. When we look at cases, I don't look at a child and say I'm going to broad-brush this is you because we have to deal with individual kids, with individual cases, individual defendants, individual crimes. And some of the broad-brushing that you're doing, keep in mind the group that you're looking at now is already a very small percentage of the defendants that come through our juvenile system. And that's why most of them we're able to reform.

  • 10:22:35

    MAYI'll tell you, I do take issue, I'll throw this out there for the group, when we talk about who's incorrigible or not, the ability to predict who's going to be future dangers -- has a future danger to society is extremely hard to do. Studies have shown psychiatrists, when asked to do that, are wrong more times than they're right, that actually flipping a coin is more accurate than what a psychiatrist's prediction is. So it's interesting that we're now going to base a system on I'm trying to guess what you're going to be doing later.

  • 10:23:09

    MAYCertainly we look at their background. Certainly we look at the crime. Certainly we look at rehabilitation first. But sometimes certain crimes are just so gruesome, so terrible and at the same time so planned out that you're saying this was not a case that was spontaneous. This was planned, this was carried out, and it was extremely gruesome, and there's punishment that's deserved.

  • 10:23:31

    LAKSHMANANSo you're speaking now to this question, it sounds like, of life without parole and how some cases will be reviewed, but not necessarily all of them will be reviewed in a positive way to, you know, let off those people who were juveniles when they got life without parole. Is that what your instinct is?

  • 10:23:49

    MAYWell that's -- now you're getting down to what will the effect of this be. I'll tell you first of all, the first effect is we are currently contacting all the victims' families. You know, the criminal justice system, our lawmakers, our judges made promises to these families some time ago and said this case will be resolved in the following way based on our justice. We're now going back to them and saying you know that promise we gave you, it's not true anymore.

  • 10:24:17

    MAYNumber two, we're going back to those victims, and it's going to reopen all those feelings they had before, all the terror they had before, all the loss they had before. So I know we're going to be giving those victims mental health counseling themselves in many cases because they're going to have to relive this. And that's why they're -- they get the life sentence, or they get some lesser sentence or not.

  • 10:24:38

    MAYI will say in my jurisdiction, I've got six defendants that fit into this category that will be reviewed. Two of them were multiple murderers. So even though they may get a reduction if the court so chooses, it's still, under Colorado laws, mandatory consecutive sentencing, and in ours it's a 40-minimum life, so they'll be 80 years to life even if they get the reforms the Supreme Court has done. But that doesn't mean we're not going back to court, and we don't have to contact the victims.

  • 10:25:07

    MAYSo yes, some of them may not get it at all. There are many who had multiple crimes. That's why they were being treated that way, or multiple victims, to where the stacking that they have already really isn't affected by this decision. And then you'll get down to some that may have some effect.

  • 10:25:24

    LAKSHMANANPaul Butler, what are your thoughts on the Supreme Court's decision this week, as well as President Obama's actions on solitary confinement, banning it for juveniles?

  • 10:25:34

    BUTLERSo the Supreme Court action and the president's executive order are both very important symbolically. I think it's also crucial to understand that they are limited. So what the Supreme Court said is not that life without parole for children is unconstitutional, it's just that it's better for a judge in the courtroom to decide that based on the facts of the individual case, as opposed to some state lawmaker or often the Capitol.

  • 10:26:04

    BUTLERSo again, it's letting judges do their job. The president did ban solitary confinement for children. What he didn't use his authority to do is to ban it for adults, which he could have in the federal prisons. And a lot of the same analysis applies. If it's torture for children, it's also torture for adults. So if one of my neighbors had an adult locked in a closet for 23 hours a day with no access to human contact, with his food being slid through a slot through the door, I would call 911. I would say that there is a crime going on here.

  • 10:26:49

    BUTLERAnd so what we're starting to understand, you know, people have had stories for a long time, but now there's science to back all of this up. And so what the science tells us is that we humans are social animals. We have to have contact with other human beings, and it's not just about being nice or coddling criminals, it's also about public safety. That's what the president talked about in his op-ed in the Washington Post. He said that states that have reduced their reliance on solitary confinement have made their prisons safer for the staff and also for other inmates.

  • 10:27:23

    BUTLERSo, you know, there's just so many reasons to say this is an important first step, these reforms with regard to children, but now we have to start looking at adults because this with the kids, thankfully there are only 13 kids in federal prison who are going to be affected by this order. That's 13 people too many who are locked up in these inhumane conditions, but there are 10,000, 10,000 adults who we also have to now think about ways to make them safer, make us more humane as a society.

  • 10:27:54

    LAKSHMANANWell, you know...

  • 10:27:56

    MAYIndira, can I respond to that, Indira?

  • 10:27:58

    LAKSHMANANYes, sure, Dan.

  • 10:27:59

    MAYThis is Dan May again, sorry about that.

  • 10:28:00

    LAKSHMANANYeah, and in fact, go ahead.

  • 10:28:01

    MAYThere's two points I want to make here. One is how do you get into solitary. And then second is I know that President Obama cited the Colorado experience out here in our solitary.

  • 10:28:13

    LAKSHMANANThat's right.

  • 10:28:14

    MAYAnd I want to talk about that. First, how do you get to solitary confinement? It isn't that we randomly go down and say, you know, I don't like you, you're going into solitary. This is someone who's murdered someone, another prisoner. This is somebody who stabbed another person. This is somebody who is raping other inmates. This is someone that they're isolating because they're doing crimes against other prisoners or crimes against other prison officials.

  • 10:28:36

    MAYWhen Colorado opened up their solitary unit, oh, probably a decade ago, overnight, the next year, crime in prison dropped 75, 80 percent. So the question is when you say about how it affects crime, don't those other prisoners deserve to live in an environment where they are crime-free? What are you going to do if you don't have solitary? Are you going to say okay, we'll just put you in with these people here, so you can only victimize them?

  • 10:29:02

    MAYI've seen prison guards and juvenile guards leave their jobs because they're terrorized by certain individuals. And we get down to small percentages here. And again, they do have rules and regulations about who can go in there, how long you can keep them, they do get out every single day, out of that -- I mean, there are other rules and regulations. So it isn't this you never leave the room, and you get fed through a slot. But at some point you've got to say there's something that has to happen.

  • 10:29:28

    MAYI've got to tell you, in my juvenile facility here, last year our legislature did a reform that children that had been charged as adults had to be housed with other children. Since then, I've had three riots in my juvenile facility. I've got kids who are being terrorized, and I've got the people who are running the facility now terrorized. Now second, it's based on one of the things President Obama cited was the reforms done in Colorado.

  • 10:29:56

    MAYIf you look at our Denver Post, January 20, just a few days ago, there was a woman who just got a $280,000 whistleblower settlement because she was the statistician for our Department of Corrections here, and she came out and said actually those numbers are correct. They've been phonying up the numbers to make it look like the reforms have actually accomplished something when in fact they have not. So that's what's -- you know, people have to be careful how this is being done.

  • 10:30:23

    MAYShe pointed out that all they did was change labels. All they did was change numbers and hide the fact of what's going on in our solitary system. One of the things she noted is that instead of calling it solitary, they're now calling it residential treatment programs. So there are still people in solitary here, but they're hiding the fact to make it look like it's something else.

  • 10:30:48

    LAKSHMANANInteresting because President Obama in his op-ed in the Washington Post cited, as you say, Colorado.

  • 10:30:54

    MAYOh absolutely.

  • 10:30:54

    LAKSHMANANAnd what he specifically said was that the reduction in solitary had led to a reduction in assaults against prison staff in Colorado. You're saying that's not necessarily true or that they are still doing solitary, they're just labeling it by another name.

  • 10:31:07

    MAYAnd they're doing a shell game in moving prisoners around. They're labeling it under another game. And quite frankly you just change your definitions in some cases of what you call new criminal acts or what you call as assaults. Actually we've seen a shell game of how prisoners are being moved around. So the reforms that are being cited in Colorado have to absolutely be put into question after this whistleblower came forward.

  • 10:31:32

    LAKSHMANANAll right, I'm Indira Lakshmanan, sitting in for Diane Rehm. Carrie Johnson, I want to ask you whether you think it is ever useful or appropriate to put juveniles in solitary confinement and also about the impact of President Obama's decision, as well as the Supreme Court decision. Is this going to sort of ripple down to the state level. How do you think this is going to work?

  • 10:31:59

    JOHNSONIn talking to senior Justice Department officials here in Washington and juvenile justice corrections officials around the country, just as Dan May said, they do want to hold out the possibility of some kind of segregation or restrictive housing for some kinds of offenders, the most dangerous, most violent offenders, people who have harmed other corrections officials or other inmates behind bars. That said, the concern within -- for Attorney General Loretta Lynch, her team for the president, is that far too often, both in the federal system and in state and local facilities, restricted housing, solitary confinement is being used as a punishment for inmates who simply get on the nerves of corrections guards or who annoy them in some fashion or other.

  • 10:32:47

    JOHNSONSometimes, Indira, that is people who are severely mentally ill, people who are not aware enough to be able to follow the commands of prison guards to leave their cells, to do something or other, to come out, to follow simple commands, and these people simply cannot do it because they have severe psychological trouble.

  • 10:33:07

    LAKSHMANANSo we're talking about minor infractions in this case that are being punished with solitary confinement, rather than what Dan May was referring to, about stabbing a fellow inmate or murdering or raping a fellow inmate or prison guard.

  • 10:33:20

    JOHNSONIndeed.

  • 10:33:21

    LAKSHMANANIn some cases, it's minor offenses.

  • 10:33:22

    JOHNSONIndeed, and what President Obama said and what he's directed federal wardens to do is to stop using solitary for that purpose. The Justice Department, U.S. Justice Department, says that could impact as many as 6,000 people in the federal system, not juveniles, adult offenders, but still that's something.

  • 10:33:39

    JOHNSONAnother thing that's going on here, though, Indira, is entire rethink of the juvenile justice system across the U.S., aside from the federal system, which houses relatively few juvenile offenders. It was only in 2012 that the U.S. Congress held the first ever hearing on solitary confinement, a couple of hearings held by Illinois Senator Richard Durbin and the Judiciary Committee. And that came in the middle of a rethink, started by the Supreme Court and brain science, about how to treat young people.

  • 10:34:10

    JOHNSONIt's an amazing time if you talk to juvenile justice advocates because the level of juveniles being locked up in the U.S. is on a steady decline over the last 20 years. There's less and less of these offenses, and this is a remarkable achievement, and it's not chronicled enough in society. There's one caveat to that. The proportion of girls in the justice system, juvenile justice system, has been going up, and reformers are very troubled about that, in part because they're locked up for less serious offenses than boys, generally speaking, and for longer periods of time.

  • 10:34:47

    LAKSHMANANPaul, what would you say has prompted President Obama and the Supreme Court to make both of these decisions this week? Are there changing attitudes and awareness about how to treat juvenile offenders? Carrie sort of alluded to that, but what about within the law community? You know, what is the prevailing view now?

  • 10:35:06

    BUTLERThere are a couple of factors. First, crime, including violent crime, is at a historic low. We're safer in the United States than we have been in the last 30 years. So that creates this space for people to be more thoughtful about how we deal with people who've made mistakes.

  • 10:35:24

    LAKSHMANANSo violent crime has been on a downward trend since the early '90s.

  • 10:35:26

    BUTLERYes, so every now and then there are upticks, but overall there's been this steady downward trend, which is very encouraging. At the same time, the Black Lives Matters social movement has focused attention on police and especially police violence and these extraordinary race disparities. The United States remains the world's leading jailor. We've got almost 2.5 million people locked up, five percent of the world's population, 25 percent of the world's inmates, about 12 million people are arrested every year.

  • 10:36:00

    BUTLERSo again, we're -- when it comes to criminal justice, we don't live up to our ideals of transparency and democratic accountability. So I think, you know, starting in this space, looking at how we deal with children who've made mistakes, and understanding based on the brain science that their brains, even if we're talking about 18-, 19-, 20-year-olds, they're just not at the level of mature adults when it comes to things like impulse control, judgment, mental development.

  • 10:36:29

    BUTLERAgain, we can tell lots of stories about incorrigible kids, but at the end of the day, the science teaches us something different, and what the president said also was this important moral message, that in the United States, we believe in redemption. We believe in giving people second chances, especially children.

  • 10:36:46

    LAKSHMANANAnd the whole idea of how these kinds of treatments, like solitary, actually undercut their ability to take that second chance, to get reintegrated into society I think was the president's point there. Okay, briefly in the few moments we have before we go to the break, Carrie, just fill us in on some of the impediments that state prisons will face in ending solitary confinement for juveniles.

  • 10:37:08

    JOHNSONWell, one major impediment is corrections officials and their perceptions of safety and their desire to use this punishment for people. In fact, the New York system on Riker's Island had previously announced that it was going to end solitary for 17-year-olds and younger. It's put the brakes on that right now.

  • 10:37:29

    LAKSHMANANAll right, we're going to take a short break. When we come back, we'll go to your calls and your questions. Let us know what you think about the juvenile justice system. Stay with us.

  • LAKSHMANANWelcome back. I'm Indira Lakshmanan, sitting in for Diane Rehm. Joining me here in the studio to talk about juvenile justice and the changes this week at the Supreme Court and by President Obama. Paul Butler, Professor at Georgetown Law School. Carrie Johnson, Justice Correspondent for NPR and on the phone, Dan May, District Attorney of Colorado's El Paso and Teller Counties. And former District Attorney of Colorado Springs, Colorado. So, I want to go to the phones. We have so many callers and folks who've been writing in. Let me go to Christopher from Boonsboro, Maryland. You're on the air, Christopher.

  • 10:40:37

    CHRISTOPHERHi, how are you doing? I just wanted to...

  • 10:40:39

    LAKSHMANANGood.

  • 10:40:40

    CHRISTOPHER...make a couple comments. I actually did some time in Virginia and I understand how a lot of people think that solitary confinement might be considered torture in a juvenile situation. But, I mean, really, as long as it's not for like months and years on end in an adult situation, I mean, I don't see anything wrong with it, or anything, you know, close to torture. I actually did at least two weeks in there myself and for reasons that were far beyond, you know, hurting other inmates. I mean...

  • 10:41:09

    LAKSHMANANCan you tell us what the reasons were, why you were put in solitary for two weeks?

  • 10:41:13

    CHRISTOPHEROh yeah. I mean, it could be something as simple as you got transferred to another jail and because you haven't been classified to go into their population, they automatically put you in solitary.

  • 10:41:22

    LAKSHMANANAnd did you think that was fair?

  • 10:41:23

    CHRISTOPHEROr -- excuse me?

  • 10:41:26

    LAKSHMANANDid you feel that it was fair that you were put into solitary for being transferred?

  • 10:41:31

    CHRISTOPHERNo, not at the time, but that's just kind of the way it is. But I mean, the point of solitary confinement is not -- I didn't look at it as a bad thing when I went through it I guess is what I'm trying to say. The jail and a prison is a very loud place and if you get into solitary, as long as it's not for too long, you get plenty of books to read or whatever, you can kind of relax, you know?

  • 10:41:51

    LAKSHMANANOkay, that's a very interesting, different view of solitary. How long were you in prison for overall and for what crime?

  • 10:41:57

    CHRISTOPHERThree years for possession of a schedule one narcotics.

  • 10:42:01

    LAKSHMANANOkay.

  • 10:42:02

    CHRISTOPHERJust a simple possession. They're kind of hard on that thing in Virginia.

  • 10:42:05

    LAKSHMANANA drug possession. All right, well, Christopher brings up an interesting point. I don't know if his case is the kind that has brought this issue to the headlines. Carrie.

  • 10:42:15

    JOHNSONWell, in fact, in California last year, the Center for Constitutional Rights struck a major settlement with the California Prison System, which had been keeping people, some people in solitary confinement for 20, 30 or more years. There's also a famous instance of an inmate in Angola Prison in Louisiana who's been in solitary confinement for over 40 years. In fact, for many people inside US jails and prisons, solitary confinement is a long terms confinement.

  • 10:42:44

    LAKSHMANANAnd so, what sort of studies have been done that show the effect it has on prisoners. It sounds like Christopher was not scarred in the long term from what happened, but, you know, is he the norm, or is he an exception? He was only in prison for a total of three years for a relatively minor crime.

  • 10:43:01

    JOHNSONThere is some science to indicate that people held in solitary for longer periods of time have a greater instance of suicide behind bars or after. And of course, that's what happened to Kalief Browder in New York in the Rikers system.

  • 10:43:17

    LAKSHMANANPaul, you wanted to talk about the Kalief Browder case. It was the case that President Obama raised in his op-ed in the Washington Post yesterday.

  • 10:43:23

    BUTLERAnd a very compelling example of what the science tells us, which is that solitary leads to depression, alienation, withdrawal. You can't interact as well with others. So Kalief Browder was a 17-year-old kid who was arrested for a petty crime that he didn't even commit. Stealing...

  • 10:43:40

    LAKSHMANANIt was the stealing of the backpack?

  • 10:43:40

    BUTLER...stealing a backpack. And he sat in prison for two years and because he wanted to go to trial. The prosecutor said if you plead guilty, you can go home today. He said, I'm not pleading guilty to a crime I didn't commit. Rikers Island is a cruel place, even without solitary. Kalief got into fights with the other inmates, other children, where he was beaten up. And then he got into a fight where a guard attacked him and so he was placed in solitary confinement almost two years.

  • 10:44:13

    BUTLERA child, and again, what the science tells us is that this puts people, especially children, at risk for suicide. So ultimately, the government dropped charges, they never even took him to trial for this silly petty offense. And he came home, just wasn't able to cope. And again, this happens not infrequently with children and tragically, Kalief took his own life. Again, a 17-year-old boy. It's just such a tragic story. But I, you know, want to applaud the President for bringing this to the attention of the American people.

  • 10:44:46

    BUTLERThis is a moment in politics where there is a lot of attention on the police and also on mass incarceration. But President Obama has brought prison conditions to the forefront. He was the first President, first sitting President to visit a prison in July. And now, in talking about what happens to people once they're actually locked up, once those prison doors are shut. And he's really shining an important light. And again, he's doing this not just out of sympathy for people who are faced with these inhumane conditions, but he's also concerned about victims.

  • 10:45:21

    BUTLERBecause if you're mentally ill, as about half of our prisons are, and you're placed in these, again, I call it torturous conditions. When you get out, and most prison inmates do eventually get out, you're not going to be prepared to be a contributing member of society. So at the end of the day, this is about rehabilitation and rehabilitation is about public safety.

  • 10:45:41

    LAKSHMANANWell, I think rehabilitation is really at the core of all this. The question of, again, what is the goal of our juvenile justice system? Is it about rehabilitation, or is it about being punitive? Let's take another call from Bill in Vienna, Virginia. Bill, you're on the air.

  • 10:45:57

    BILLWell, the real elephant in the room and what's never been considered in this whole debate spanning back, you know, a couple hundred years, is just the visceral feelings of vengeance and quote, unquote achieving justice that victims' rights and victims have. And the crux of the issue here is how do you -- is there a need to balance that between juvenile offenders and adult offenders? Our politicians -- our politics always respond most quickly and most extremely to visceral emotional feelings of the electorate. And that's why we've gotten all the laws we've gotten.

  • 10:46:43

    BILLThat are being looked at in a lot of cases. It's just legislators responding to victims who feel that really, they're not concerned necessarily about rehabilitation. They're not concerned about anything. They're simply being driven by their own -- and again, it's not something, I'm not saying it pejoratively, but they're being driven by their own need to see justice...

  • 10:47:07

    LAKSHMANANAll right, and Bill, you're saying that you think that that is right or wrong. Do you think that juveniles should get an exception from that?

  • 10:47:11

    BILLI'm saying that it needs to certainly be part of the discussion and I will tell you as a father of a disabled youngster, that with the epidemic of autism and whatnot, you're going to have more people that are going to be committing quote unquote crimes that don't necessarily have these as the man in Denver talked about, evil intentions. But may still have results that lead victims to want to see quote unquote justice done.

  • 10:47:46

    LAKSHMANANAll right. Thank you. Thank you, Bill. So, Dan May, Bill brings up an interesting point. He's saying we have to have compassion for people who may have mental or other disabilities that cause them to commit quote unquote crimes. But aren't necessarily fit for the regular criminal justice system. You've dealt with adults. You've dealt with children. What is your take on what Bill has to say?

  • 10:48:10

    MAYI think everybody would agree generally with what Bill is saying. Paul would, Marianne would, you would also. The juvenile system is built on rehabilitation and second chances, which is what the President talked about. I can tell you, you know, I'm more familiar with my Colorado experience and certainly my office. We, the police in my jurisdiction, which the primary city is Colorado Springs, charge anywhere from 1500 to 3,000 juveniles a year. About one out of four to one out of three of those, we actually dismiss their case on their first day put them into our diversion program.

  • 10:48:44

    LAKSHMANANAnd what's the diversion program? Tell us what that is.

  • 10:48:47

    MAYOh, you betcha. We meet the kid, literally at the door of the courthouse and we say, you can go in and have the judge decide this, or we'll dismiss your case today. You'll sign a contract where you may have meet with the victim, if the victim wants to, and do a restorative justice. We'll have them pay back restitution. We actually make them get a job. We have some jobs that help out with that. Don't let their parents do it. Actually, just meeting the victim, saying I'm sorry has a huge deterrent effect on them doing future crimes.

  • 10:49:15

    MAYAnd we'll 500 to 1,000 kids through that each year, and 85 percent, we never see back in the criminal justice system. I mean, it's fabulous.

  • 10:49:24

    LAKSHMANANSo these are, of course, for more minor crimes. We're not talking about murder or assault. We're talking about stealing or something like that, or vandalism.

  • 10:49:32

    MAYRight. Shoplifting, vandalism, things like that. The rest will walk into the courtroom, and by far, most will be handled in the juvenile system which, primary, when they give deferred sentences. Or probation. We certainly have a lot of resources to look at their mental health issues, rehabilitation issues. Getting, maybe getting a GED, finishing high school, those sorts of things. And doing something to pay back the community where they get some self-worth. That's the next sort of level of kids.

  • 10:49:58

    MAYWhen I get down to the kids that we actually file on as adults, it's a handful, literally a handful or less each year. So you really are getting down to that less than one percent that now we've got some issue that isn't explained. Well, it may be, you know, they refer to me as the evil intent, but you know, we have a very, very small percentage that you do have sociopaths that are coming into our system at that point also. And at some point, you gotta say, is this someone I can reform or not?

  • 10:50:29

    MAYBut again, our juvenile system really is built on reform and as a D.A., it's one of the areas that we're very proud of, because there are so many levels that we can handle people. So many ways that we can affect their lives and change lives. But unfortunately, there are a very small percentage that you can't change their life. And there are certain people that every day, they are locked up. I don't have another victim today, and we have to recognize that at the same time.

  • 10:50:54

    LAKSHMANANWell, we're getting a wide variety of comments from our listeners. One from our website, solitary confinement for juveniles can help them in some cases. Prison isn't a safe environment for kids, especially an adult prison. I am, however, supportive of ending solitary confinement, which is inhumane and counterproductive, especially in cases where the inmate is scheduled to leave prison someday. We have someone else who's tweeted to us, children should never be tried as adults. They're children. Putting kids in solitary is torture. And then an email from Rob who says, people who are in solitary have one, committed a crime, and B, been unable to follow the rules once incarcerated.

  • 10:51:33

    LAKSHMANANCommitting another crime inside. When are we going to stop coddling the worst actors among us? Paul.

  • 10:51:39

    BUTLERWell, you know, in some jurisdictions, people in the LGBT community are placed in solitary, not because they've done anything wrong, but to protect them from other inmates. So, we really do have to look at this as a state by state issue and question, you know, whether, if we're going to have anybody at all locked up in solitary confinement. You know, whether we're using the right measures. But, you know, there's also the Constitution. So, Justice Kennedy, not one of the liberals on the Court, last year in a case that had nothing to do with solitary confinement, wrote a separate opinion, just to question whether this practice for children or adults in Constitutional.

  • 10:52:17

    BUTLERWhen you look at the science, at all of these really wretched outcomes for people who are locked up with no human contact, Justice Kennedy said, we have to consider whether this comports with the Eighth Amendment Prohibition against cruel and unusual punishment.

  • 10:52:31

    LAKSHMANANI'm Indira Lakshmanan and you're listening to The Diane Rehm Show. All right, we're gonna take another call from Norman in Palm City, Florida. Norman, we don't have a lot of time left, so very quickly, what's your, what's your question?

  • 10:52:42

    NORMANHello?

  • 10:52:43

    LAKSHMANANYes. Go ahead. What's your question?

  • 10:52:45

    NORMANOh, okay. Okay, what, who decides what -- who is a child and who is an adult? A young man who was 17-years, 11 months and 29 days old is considered a child. But if he commits the same crime two or three days later, he's an adult.

  • 10:53:03

    LAKSHMANANAll right, that's a really interesting question. Thank you for that, Norman. Carrie.

  • 10:53:06

    JOHNSONSo, there's an interesting group of people who've worked in the juvenile justice system for some time, led by a guy named Vincent Schiraldi, who worked in juvenile justice here in D.C. and in New York and is now at Harvard. He talks about this in terms of the age of criminal responsibility. And he points out that our definitions of the age of responsibility date back to 1899. And they're actually arbitrary in the way Norman just mentioned. So, this notion that if you're 17 and something, you're a juvenile in many places. If you're over 18, you're treated as an adult.

  • 10:53:36

    JOHNSONAnd some people, including the Democratic Governor of Connecticut, Dannell Malloy, have now been proposing to raise the age of criminal responsibility from 18 to maybe as old as 25. That's obviously enormously politically controversial for lots of reasons.

  • 10:53:50

    LAKSHMANANAnd how do you decide that? Again, is 25 arbitrary, or is this based on some sort of brain science that says, when you're up to age blank, that your brain is unformed, particularly we've read about, you know, male teenage brains or young adult brains being not fully formed.

  • 10:54:04

    JOHNSONThe last...

  • 10:54:05

    LAKSHMANANIn terms of impulse control.

  • 10:54:06

    JOHNSONAbsolutely. The last dozen years or so, there's been an increasing amount of science. There's a great Professor at the University of California named Elizabeth Kaufman who studies these issues. And says, for as many people, especially young boys, up into their early 20s, their brains are sort of like a car driving when the brakes don't work quite right. And many of us who have known young men of that age would tend to agree. So, the justice system is going to have deliberate carefully.

  • 10:54:34

    JOHNSONLocal prosecutors like Dan about what's in play in these cases and there's going to have to be some kind of resolution of that.

  • 10:54:40

    LAKSHMANANAll right.

  • 10:54:40

    BUTLERAs a former 21-year-old boy, man, I'd have to agree too.

  • 10:54:45

    LAKSHMANANNot quite mature.

  • 10:54:47

    MAYNo. I'll say this. You know, again, I'll have 1500 to 3,000 cases against juveniles this year, and yeah, a huge percentage of those will be exactly what you're talking about now. On the other side, I've got a kid, a defendant named Ivy who he and his friend decided they wanted to see what it was like to kill somebody. So they planned on going out to a home that was isolated from others in the woods, broke into the home and killed both the people who lived there in a rather gruesome, torturous manner.

  • 10:55:17

    MAYJust to see what it felt like to kill somebody and burglarize their home. That is not a spontaneous decision. That's planned out. I think we made national news in Jefferson County last year when we had a kid by the name of Sig who decided, again, he got on the internet. He was looking up how to kidnap people. He kidnapped a young child, took her out and well, I don't want to -- the family could be listening to this. But it was again, a gruesome, gruesome murder. How her body parts were being found.

  • 10:55:47

    MAYAnd it was totally methodical, totally planned out. So when you get down to, who are we prosecuting at this level, these are not the spontaneous decisions that we're talking about. The juvenile system is actually a wonderful way of filtering how can we handle kids for what they are doing? But at some point, you look at certain cases and say, this is a horrendous, gruesome, planned out crime. And you cannot say we're going to give probation or rehabilitation on those.

  • 10:56:16

    LAKSHMANANWell, some of our listeners agree with you. We have Jill from Dallas, Texas, who says, she's a psychologist who's worked with kids in schools for 20 years, and she thinks, you can predict who is going to be dangerous and who actually can have a second chance. We have very little time left. Paul, let me throw it back to you and ask you, what needs to be done to make our criminal justice system for juveniles fairer? I know it was only in 2005 that the Supreme Court outlawed the death penalty for minors. We're apparently the only country in the world that allows life without parole for juveniles. Are we out of sync? What do we need to be doing?

  • 10:56:49

    BUTLERWe're way out of sync with our criminal justice system overall. And especially the way that we treat children. Almost no other country in the world treats children as harshly and dramatically as we, and Draconially, as we do. What we need is not so much stories like Dan tells, these emotional kinds of stories. They've driven criminal justice policy for the last 30 years and again, made us the world's leading jailer. What we need is to be smart on crime in the way that President Obama is now showing this visionary leadership on we need to reduce sentences for everybody.

  • 10:57:24

    BUTLERWe need rehabilitation for children, because they really do deserve second chances. And again, it's about public safety at the end of the day. It's about redemption. It's about saving a lot of money, but it's also about public safety.

  • 10:57:35

    LAKSHMANANPaul Butler, Professor at Georgetown Law School. Also in the studio, Carrie Johnson, Justice Correspondent with NPR, and by phone, Dan May, District Attorney of Colorado's El Paso and Teller counties. Thank you all so much for joining us. Thank you to our listeners. I'm Indira Lakshmanan. This is "The Diane Rehm Show."

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