Author Archive for

02
Mar
15

from the back of the bus

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On June 5, 1968, I awoke in a pool of blood when Robert Kennedy’s assassination the night before was breaking news. I had just had my wisdom teeth removed, and I bled into my pillow all night. At 1:44 am the next day, Robert Kennedy died from his wounds at age 42. He had hung onto life for 26 hours.

Yet his lingering death has faded from memory. What I remember most is the coincidence of the assassination and the bloody pillow. That, and the sight of Kennedy’s flag-draped casket being transported to Arlington Cemetery the evening of June 8. I had returned to Washington DC, where I was living at the time, and was one of the thousands of people who lined the streets to witness his nighttime cortege.

I had just turned 20 at the time, and ever since that event, I lost faith in government to initiate positive change. I concluded at that time that the best leaders in America are more likely to take a bullet in the head than to receive government support for their attempts to innovate. For almost two decades, I was a drop-out from any involvement in the public sphere until 1986, when I decided to create a nature park on the site of former railroad yards adjacent to my neighborhood in Minneapolis. My approach was to do it as an entirely private affair, to do it without government.

The effort began modestly enough with the accumulation of trash into several piles which grew to such a size that no one assumed they were the result of a single person working alone. I had fostered this impression by disappearing from view whenever the rare hiker happened along. I believed it would be more effective if the trash piles just appeared and people’s imaginations took over.

I was correct. As my mother used to say, people are more prone to supporting an idea if they think it is their brainchild, not ours.

On April 20, 1989, sixty-five neighbors held a public meeting which led to the founding of “Save Cedar Lake Park” (my name), and I sat at the back of the room with a friend and collaborator who was one of the few people who’d known about the extent of my involvement with the project. We sat there like a couple secret conspirators, watching what our unknown efforts had started.

By the time I left Minneapolis and moved to West Texas in 2002, we had established the park of our dreams, created the first of several “commuting” pedestrian and bike trails that had mushroomed into a region-wide network of trails, raised millions of dollars, and involved thousands of people in the realization of the vision. All the while I helped establish the direction from the back of the bus.

I still remember the look on the park superintendent’s face after he’d just told me there could be no public money for the project. “That’s okay,” I said immediately, “we’ll do it ourselves.” We raised the money and public support first, and then government followed our lead.

The few times over those years that I flirted with taking a more traditional leadership role, the experiments always ended badly and I concluded that I was more effective in getting my way if I sublimated my ego and let others appear to call the shots. This way, too, I was not a target for my views.

In 2005 I began to see a need, through my involvement in The King Brothers Trust, for someone to advocate for kids from screwed-up family backgrounds who had killed a parent. I resolved to do whatever a single individual could do to make things better by giving these kids a second chance at life.

From the time of the ancient Romans when children were considered the property of their parents (no matter how abusive or ill-suited they were to the task), parricide was considered the most reprehensible of crimes. The Roman punishment for juvenile parricides was to sew the youth into a bag with a snake, a dog, and a rooster, to beat it, and to throw the bag into a river where it was washed out to sea. Though the parents are usually responsible for a child defying nature and killing one or both of them, we have not moved much beyond the brutality of the ancient Romans.

I know that this is an unpopular cause. I know that most of these kids are severely damaged, sometimes irreversibly so. Our prisons only make it worse. Decades of prison is the modern-day equivalent of throwing a bag into a river. We have to figure out a better way.

It took me seven years to find Estrella Vista, and it will have taken me seven more years to pay for it and add sixty acres to the original twenty. We are only about $13,000 from that goal. Once completed, this property will provide a permanent refuge for young people that society has consigned to a canvas bag.

Even when I have been able to do nothing else, I have been able to write… and since January 2010 (and a year before that by email), I have been publishing the Wandervogel Diary almost every day. We are nearing a million visitors and have supporters from all over the world. Using this blog as a platform, we have also raised the money necessary to mount several legal appeals, send books, tuition and commissary deposits to kids who are imprisoned, and provide transportation and living support for the two kids who have been released from prison.

Some might say our efforts are insufficient in comparison to the true dimensions of the problem. But what we can accomplish is what we can do, and we have never flagged from our commitment. Government will never lead the way. It needs us to do that.

Thank you for your faithful commitment. We have already made a difference and will continue to do so.

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“There are those who look at things the way they are, and ask why… I dream of things that never were, and ask why not?
— Robert Kennedy

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Groove of the Day

Listen to Pete Seeger performing “If You Miss Me at the Back of the Bus”

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01
Mar
15

bad to the bone

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Judicial hypocrisy on juvenile justice?

What happens to children when they break the law

As Wisconsin prepares to try two children as adults in an attempted murder case allegedly inspired by the mythical Slenderman, the prosecution of two preteens in adult court challenges our faith in the juvenile justice system.

The entire juvenile justice system is premised upon one bedrock principle. It’s an immutable fact that our parents and forebears have known for millennia, and it’s something that science is increasingly backing up: Juveniles are different.

They are irresponsible. They say the darndest things. I believe children are our future; teach them well and let them see the way. Show them all the beauty—well, everything Whitney Houston said in that song, you get the point.

The point is, this is why we have a juvenile justice system in the first place. Not only are children developmentally different, but even the Supreme Court has long recognized that they are also constitutionally different. As recognized by Justice Anthony Kennedy in a recent court opinion, a child’s immaturity leads to recklessness, impulsiveness, and risky behavior. Children are more vulnerable to negative influences and outside pressures both from lousy family members and from ne’er-do-well peers. They have limited control over their environment and lack the capacity to extricate themselves from bad situations.

The flipside to all this is that because a child’s character is not as fixed as an adult’s, bad behavior is not necessarily indicative of irretrievable depravity. Children are redeemable because they may simply “grow out” of their bad behavior.

The bottom line, according to the court, is that these differences diminish the traditional penological justifications for harsh punishment of juveniles—even when they commit the most horrific crimes. The juvenile justice system is different because kids are different.

Modern science agrees, providing biological explanations for juvenile delinquency:

“The most noteworthy features of adolescent brain development relate to changes occurring within the brain’s frontal lobes—in particular the prefrontal cortex—and in the connections between the prefrontal cortex and other brain structures. These areas and interconnections are critical to ‘executive’ functions such as planning, motivation, judgment, and decisionmaking, including the evaluation of future consequences, the weighing of risk and reward, the perception and control of emotions, and the processing and inhibition of impulses,” the American Psychological Association, the American Psychiatric Association and the National Association of Social Workers wrote in a friend-of-the-court brief filed with the Supreme Court in 2012.

This research—plus our firmly entrenched notions about juvenile responsibility—have informed the operation of our juvenile justice system since its inception. Instead of punishment and incarceration, the juvenile system focuses on treatment and rehabilitation.

At least that’s the theory. But how is it executed? Typically, a juvenile court can send a child to a secure educational facility instead of prison, and juvenile courts generally lose jurisdiction over children at a statutory age—usually anywhere from 21 to 25. Their juvenile records are customarily sealed and not public like adult criminal records. The idea is this: Once you are an adult, you get a fresh start. After all, your childish behavior is now behind you.

Unless—well, unless what you did was really, really, really bad. In that case? You’re going to prison at Shawshank with the rest of the adults.

Although all states differ, the general rule is this: Juvenile court has jurisdiction over a child unless he or she is alleged to have committed something awful, like murder or attempted murder, and then the case is automatically (or at the discretion of the court or prosecutor) placed in adult court, where the child is subject to adult penalties.

But what happened to all that “prefrontal cortex” talk and the Supreme Court, and “children are fundamentally different”?

Apparently, children are different—but if they really make us angry, they can go be different in prison.

It’s a paradox. We treat children according to their developmental culpability, with a colossal exception: If the consequences of their behavior are really serious, we instead deal with them according to the outcome—even though the biological genesis of that behavior remains exactly the same. If a child punches an adult, the child may land in juvenile court. If a child punches an adult, and that adult falls and dies, then the child might be in adult court. Same root causes of bad behavior, different judicial outcome. The neurology remains the same in all cases, but we inconsistently demand disparate treatment.

Why the judicial hypocrisy? It’s as if society is saying it acknowledges all the science about adolescent brain development and is fine with it as long as we’re talking about crimes like spray-painting cars, smoking pot, or a fistfight at school. But for those most egregious crimes like murder, the scientific mumbo jumbo goes out the window. When kids kill, society wants retribution. Adult-style retribution.

Maybe it’s just legislative recognition of what we ultimately believe: Sure, child development has as a general rule that kids are redeemable, but there are exceptions to every rule. Some kids are just bad to the bone—they are trouble, and they will always be trouble. And if your mind just wandered to a specific kid in your neighborhood, maybe you agree with that concept. But there’s probably one notable exception: your own kid. Your little snowflake is really a good kid and would never do anything wrong.

When it comes to the juvenile system, we should address the inconsistency; it borders on hypocrisy. If we agree the juvenile mind is less culpable, we should treat it that way, without exception.

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Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the US Virgin Islands.

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Listen to George Thorogood performing “Bad To The Bone

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28
Feb
15

city of the dead

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cairo.

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Groove of the Day

Listen to Charlatans UK performing “City of the Dead”

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36° and Cloudy

27
Feb
15

tyr

Tiwaz

Today is the first day of the fortnight (February 27 – March 13) governed by the rune Tyr, alternatively known as Tiwaz.

Its arrow-like form represents the quality of steady, reliable, positive, and purposeful regulation. It is associated with the deity Tyr (or Tiw), the sky god, the god of law and justice, and the ruler of the Thing (the ancient German assembly). Tyr is associated with the Northern Star Polaris (around which the fixed stars in the night sky appear to rotate). Ancient seamen used Polaris as their main navigational aid in their long journeys, and the symbol of an arrow pointing upward is perhaps made in reference to this.

ahnenerbestickpin croppedThe rune is also associated with Yggdrasil, an immense ash tree that is central to Nordic cosmology, the mythic axis mundi of the Germans (a world column which terminates at the northern pole star and around which the earth revolves). The gods were believed go to Yggdrasil daily to assemble at their Thing. It is said that Tyr guided the Thing to conform to the law and justice—the world order. The rune Tyr and Yggdrasil were merged in the Irminsul, pictured here as a silver pin from my collection. The T-like “wings” of the Irminsul suggest the vault of the heavens.

The rune teaches one that to achieve the greatest effect, we must concentrate our energies and resources in time and space. This is the essence of strategy and Tyr is thus known as the rune of victory.

To fully understand the rune Tyr, it is important to consider it in relation to its opposite, Rad, on the Runic Compass. Tyr and Rad in combination suggest something akin to Karma (looking backwards) and Dharma (looking forwards). The wisdom of Tyr urges focused purpose and progression through time into the future. (“It is always on its way,” as the Old English Rune Poem says.) I think of Tyr as representing the arrow of time.

Because of the rune’s association with the god Tyr, the concept of self-sacrifice is an important aspect of its lesson and ideal. Tyr is a one-handed god with a long history, and his hand was sacrificed to trick the wolf, Fenris, into being chained.

John_Bauer-Tyr_and_FenrirAs the story is told in the Prose Edda, Fenris was one of Loki’s children by a giantess. From the time Fenris was a pup, the gods kept Fenris with them in Asgard and Tyr was the only god with the courage to feed and care for the wolf. However, as Fenris kept eating and growing, it became clear to the gods that Fenris might become so large and powerful that he would become a mortal threat to them all and might even threaten the stability of the world.

Not wanting to kill the son of one of their own, the gods tried various methods of binding and restraining the wolf, but Fenris broke free from every means of tether attempted.

Finally, the gods got the dwarfs to craft a thread-like binding made from six impossible things including the sound of a cat’s footfall, a mountain’s roots, a fish’s breath. When this binding was completed, they called Fenris to try it on him. The gods assured Fenris that he would be able to break free of this thread as easily as all the other bindings, but this time Fenris suspected their deceit. He refused to be bound unless one of the gods would place his hand in the wolf’s jaws as assurance. The only god who dared to do so was Tyr. When the dwarfs’ binding proved unbreakable and he realized he’d been tricked, Fenris snapped off Tyr’s hand at the wrist.

Tyr allowed Fenris to bite off his right hand in order to bind the wolf’s chaotic force and thus physically and spiritually saved his fellow gods and the world from destruction. Tyr thus proved he was courageous, fearless, the master tactician, and a consummate diplomat.

The story, and the rune itself, teach us that we must be prepared to accept self-sacrifice if we are to succeed in a role of leadership and service.

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Groove of the Day

Listen to Prokofiev’s “Peter And The Wolf March”

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26
Feb
15

blood and roses

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Groove of the Day

Listen to the Smithereens performing “Blood and Roses”

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60° Clear and Windy

25
Feb
15

an initiative

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As you know, we have four young men in Texas who were convicted as adults of parricide while they were still juveniles. In Moon v. Texas, the appellate court vacated a criminal conviction on the basis that the juvenile court improperly waived its jurisdiction.

It seems that many juvenile courts in Texas have been using the same template for orders to waive jurisdiction, which has led appelate courts in Texas to hand down favorable rulings based on arguments similar to Moon v. Texas.

This development was brought to my attention by one of our kids, Austin Eversole, who has been looking into the possibility of mounting an appeal based on the new ruling, arguing that the waiver of jurisdiction from the juvenile court was legally deficient. If Austin’s order used the same template as referred to above, he may have a strong argument.

We have two other kids serving 40-year and 99-years sentences, respectively, and this approach may offer a basis to mount appeals on multiple fronts. (The fourth kid is eligible for parole in about a year.) If successful appeals were mounted, they could have their convictions in the adult courts vacated.

I have shared this possibility with our law firm, Kutmus, Pennington and Hook.

Yesterday I heard from them and they were excited by the prospect. Obviously, each case needs to be researched to determine whether an appeal is warranted. But we are determined to move forward.

Here is a write-up of the new climate for Texas appeals by a source that is far more knowledgeable than me at evaluating its potential: the Juvenile Law Center of Philadelphia PA.

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The State of Texas v. Cameron Moon

by The Juvenile Law Center

In a landmark case, the Texas Criminal Court of Appeals ruled that the juvenile court erred in failing to conduct an individualized assessment of a 16 year-old’s circumstances before ordering that the youth be tried as an adult. In State v. Cameron Moon, the Texas high court affirmed a ruling vacating Cameron’s transfer to adult court, finding the record factually insufficient to justify the decision. The opinion criticized the juvenile court’s order for simply reciting the transfer statute, and held that juvenile courts must do the “the heavy lifting” of demonstrating their reasons for transfer if they expect their decisions to be upheld on appeal.

Cameron Moon was indicted for murder when he was 16 years-old. Prior to this incident, he had only one misdemeanor conviction for keying a car. The state asked the juvenile court to order that Cameron stand trial as an adult. At Cameron’s hearing, the state presented no evidence about the factors the judge was legally required to consider before ordering transfer other than the fact that he was charged with a serious offense. By contrast, Cameron’s team provided uncontradicted testimony that the youth lacked sophistication and maturity and he was highly amenable to rehabilitation in the juvenile system. Nevertheless, the motion was granted. Moon was later found guilty and sentenced to 30 years in prison.

In a well-reasoned opinion, an intermediate appellate court found that the juvenile court’s findings—that Cameron was of sufficient sophistication and maturity and there was little prospect of public protection and rehabilitation in the juvenile system—were unsupported by the evidence. The intermediate court also rejected the state’s argument that the nature of the offense standing alone justified transfer, stating that such an interpretation would render the Texas statute meaningless.

In ruling against the state on appeal, the Texas Criminal Court of Appeals noted that under the state statute, evidence of a sufficiently egregious offense is enough to justify a waiver of jurisdiction under Texas law. By contrast, in Cameron’s case the juvenile court merely pointed to the category of the alleged crime and heard no evidence about the circumstances surrounding it. The court thus concluded that the transfer decision was “too ill formed to constitute anything but an arbitrary decision.”

Citing to the United States Supreme Court decision in Kent v. United States, the Texas court reinforced the “primacy of appellate review in order to assure that the juvenile court’s broad discretion is not abused” in making the transfer decision. The court rejected the state’s argument that a reviewing court should look at the whole record, including statements made from the bench, to determine if there was any valid reason to support the juvenile court’s waiver decision. Instead, the high court held that the juvenile court has to “show its work” and “put its deliberative process on the record” in its transfer orders, as appellate judges should not “speculate” as to the juvenile judge’s reasoning or “rummage through the record” to find facts to support it.

The Court of Criminal Appeals also agreed with the intermediate appellate court’s finding that the record was legally insufficient to support the finding with regard to sophistication and maturity, as the state presented no evidence on this factor. The high court rejected as unsound the juvenile court’s flawed reasoning that Cameron was sophisticated and mature because he previously waived his constitutional rights and could aid in his defense.

While the decision is a victory for youth throughout Texas, it is particularly so in Harris County, where juvenile courts have a practice of “rubberstamping” requests to transfer youth to adult courts. According to the Center for Children, Law & Policy at the University of Houston Law Center, statistics show that in recent years Harris County—the largest county in Texas by population—waived more youth into adult court than the second, third and fourth largest counties combined. Harris County juvenile courts rarely deny transfer motions and in some years granted transfer in 100% of cases.

Cameron is represented by attorneys Jack Carnegie, John Hagan, David Adler, and Christene Wood. Juvenile Law Center authored an amicus brief, arguing that the juvenile court’s practice of waiving jurisdiction without an individualized determination is unconstitutional. The United State Supreme Court has repeatedly held that youth are categorically less mature in their decision-making, less culpable, and more capable of change than adults. For these reasons, Juvenile Law Center believes that youth should rarely if ever be tried in adult court, where they are subject to confinement in punitive prisons without access to treatment and rehabilitation services.

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Groove of the Day

Listen to Michael Jackson performing “One More Chance”

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60° and Clear

24
Feb
15

improving?

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Florida May Limit Prosecuting Children as Adults

by Alba Morales, Human Rights Watch

February 19, 2015

“Sentencing children to the lifetime of consequences that felony convictions carry, including sharply reduced job opportunities, is counterproductive and excessive. Common sense tells us that children are different. By passing this law, Florida legislators would take a sensible step toward creating a justice system that acknowledges those differences.”
— Alba Morales
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Florida legislators should approve Senate Bill (SB) 1082, which would allow judges rather than prosecutors to decide when to prosecute a child as an adult. If enacted, the proposed law would greatly reduce the number of children prosecuted in Florida’s adult courts.

Florida’s current “direct file” statute, which gives prosecutors sole discretion to charge youth ages 14 and older as adults, is one of the most expansive such laws in the United States, as Human Rights Watch documented in 2014. Over 98 percent of children in Florida’s adult court are placed there by a prosecutor with no judicial oversight. Judges cannot review or reverse that decision.

“The decision to prosecute a child in adult court carries severe consequences not only for the young person but for society as well,” said Alba Morales, US researcher at Human Rights Watch. “Florida should ensure that these critical decisions are made only after a full and fair hearing before a judge, who can take into account each child’s individual characteristics and capacity for change.”

Multiple studies have shown that children who are prosecuted in the adult system reoffend more quickly and go on to commit more serious crimes than those who are kept in the juvenile justice system.

“In adult court, they want to lock us up,” one Florida boy told Human Rights Watch. “In juvenile court they want to help us make better choices.”

Children charged as adults are held in Florida’s adult jails pending trial. Once convicted, a child must live with the lifelong consequences of an adult felony conviction instead of the rehabilitation provided in Florida’s juvenile system.

SB 1082, introduced by State Senator Thad Altman, would replace the direct file process with an adversarial hearing in which a judge makes the final decision about whether a child should be tried as an adult, after considering arguments from both the prosecution and the defense. The proposed law would make children younger than 16 ineligible for prosecution in adult court, and limit the crimes for which children 16 and older could be tried as adults for violent felonies. Finally, the law would prohibit holding children in adult jails before trial, keeping them under the supervision of the Florida Department of Juvenile Justice.

Under the proposed law, judges would weigh the seriousness of the crime in addition to other factors. Most youth tried in adult court in Florida are accused of nonviolent crimes. In 2012 and 2013, 60 percent were there for nonviolent offenses, according to data Human Rights Watch analyzed. In one case, for example, a 16-year-old was prosecuted in adult court for stealing two laptops from a classroom. In another, a 17-year-old was charged with burglary as an adult for breaking into the back porch of a home and taking a printer that was stored there.

Children who commit crimes can and should be held accountable, but prosecuting them in adult court harms both the child and society at large. Children are both developmentally less mature than adults and more capable of rehabilitation, which is the primary purpose of the juvenile justice system.

The Convention on the Rights of the Child, to which the US is a signatory, provides that a “variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.”

“Sentencing children to the lifetime of consequences that felony convictions carry, including sharply reduced job opportunities, is counterproductive and excessive,” Morales said. “Common sense tells us that children are different. By passing this law, Florida legislators would take a sensible step toward creating a justice system that acknowledges those differences.”

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Alba Morales is a researcher in the US Program at Human Rights Watch, who investigates abuses in the US criminal justice system. Prior to joining Human Rights Watch, Morales worked as a staff attorney with the Innocence Project, representing criminal defendants seeking to prove their innocence through post-conviction DNA testing. She also represented indigent people accused of crimes as an attorney with the Legal Aid Society’s criminal defense division in Brooklyn, New York. Morales began her legal career clerking for the Honorable Rosemary Barkett on the 11th Circuit Court of Appeals. She graduated from Brown University and New York University School of Law.

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Listen to Modest Mouse performing “Florida”

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