Judge Steve Teske: The Road to Jericho

I met him after only a few weeks on the bench.  His name was Johnny and he was thirteen. He had been detained for disorderly conduct and disruption of school charges.  He mouthed off at a teacher using what we call in the legal arena “abusive, profane, and opprobrious” words. In other words, he said “F--- you.”

Johnny was of average stature for his age. He didn’t smile, but then again who does while shackled sitting in a courtroom? I was new at this and still trying to get a grasp on this judging thing. After eleven years in a robe, I look back and can confidently say that no one is truly prepared to take the bench-especially the juvenile bench. In fact, I still struggle. I am still scared! I am scared I may do more harm than good sometimes.

Johnny’s mom was upset and crying.  “I don’t know what to do with him, she said.  “Johnny is so quiet at home.”  She described him as a good son who does his chores, stays at home, and obeys her rules. “I just don’t understand why he is so bad at school,” she cried out in frustration, tears streaming down her face.

She broke down and with a painful and broken voice she explained how she asked the school to test her son; that she thought he may have a learning disability, and “they just tell me Johnny is a bad kid and making poor choices.”  The bailiff handed her several tissues. She ended her testimony with a plea for help saying “I just want help for my son . . . I love him and want him to be happy.”

Not knowing what I know today, I did the only thing I knew to do - the only option available for me - I found him delinquent and placed him on probation.  That didn’t stop Johnny from returning to court, in shackles once again, with mom crying and asking for more help.  I was frustrated with Johnny at first. Every time it was for Johnny mouthing off, threatening someone, or refusing to follow instructions from a teacher, principal, or the school police officer.  The charges were the same - disrupting public school, disorderly conduct, simple assault, or obstruction.

This went on for over a year until one day, during another one of his detention hearings, a seasoned intake officer, Cathy Slay (now the supervisor of intake and for obvious reasons) made an observation - one that embarrasses me when I look back and ask myself “How could I be so stupid?”  Cathy said, “Judge, does it bother you at all that Johnny is on case 14 and they are all school related?”

I thought for a moment, and I could tell from Cathy’s smile that she saw the light go on in my head. Her observation begged the question - if Johnny is truly delinquent, why is he not acting out in the community? He is not breaking into cars and homes or terrorizing the neighborhood and getting into street fights. The problem was in the school, nowhere else.

By this time Johnny was 14 and about to turn 15.  It was time to take a stand - against the school system. This mother needed help - serious help. Cathy referred the mom to an advocacy organization for parents with special needs children called Parents Educating Parents and Partners (PEPP).  It’s a group of parents and others trained in the special education laws to assist parents on how to advocate for their special needs child.

The school personnel bucked up - like Johnny would buck up to them in the classroom.  They resisted at first, but when Cathy refused to certify the next school complaint that came in, they were confused.

The principal called me. He wanted to know why the court refused to “handle” the complaint. I politely informed him that the juvenile code authorizes the judge or designee to determine if a petition should be filed in the “best interest of the child and community.” I explained that Johnny has not been a trouble-maker at home or in the community -only in school.  “Why?” I asked the principal.

“Because he’s bad,” he replied.

“Why?” I again asked the principal.

“I don’t know,” he answered with a “How should I know” indignant attitude.

“Maybe it’s about time we try to determine why Johnny is chronically disruptive and has failing grades,” I pointed out.

I told him that I wasn’t going to certify any more misdemeanor disruptive non-violent complaints until he was tested - until we, the courts and the schools, got more information about this young man.  I also suggested that he discuss this with his school attorney, along with the case of Morgan v. Chris L., 927 F. Supp. 267 (E.D. Tenn. 1994), aff’d, 106 F.3d 401 (6th Cir. 1997), cert. denied, 520 U.S. 1271 (1997) upholding the decision of an administrative law judge directing the school system to withdraw a juvenile complaint filed against a student with a disability for conduct similar to Johnny’s.

I explained to him that the goal of PEPP is to help parents to partner with schools in the development of an Individual Education Plan (IEP), a goal that embodies the spirit of the Individuals with Disabilities Education Act (IDEA). I also explained that the U.S. Supreme Court in Honig v. Doe, 484 U.S. 305 (1988), “made it clear that the removal of disabled students could be accomplished only with the permission of the parents or, as a last resort, the courts.” I stressed to him that the juvenile court was not “the last resort” for Johnny, especially given the nature of his infractions and the lack of testing.

The principal, as a courtesy, conceded. It wasn’t that the principal didn’t care, he was frustrated, too. Principals have a tremendous burden keeping schools safe, and their burden grew exponentially with the requirements of the “No Child Left Behind” law.  Notwithstanding the requirements of federal laws for students with disabilities, schools have limited resources for treatment and thus respond to disruptive behavior with punitive measures such as out-of-school suspension and expulsion.

Many of the disruptive students have underlying causes grounded in a disability, mental health disorder, or are suffering from abuse, neglect or other problems from home.  We have to consider that schools are not equipped to be social service or mental health agencies.  Most of our communities already have separate agencies charged with providing those services.  We need to link these agencies with schools to help them with these disruptive students.  Overuse of suspension, expulsion, and arrests increases drop-out rates.  This leads to an increase in juvenile crime and later, adult crime. This cannot be good for communities, but that is another discussion for another day.  Suffice it to say, the principal was not my problem.  I understood his dilemma.  The system was my problem.

Johnny was tested. He was in the 8^th grade and reading on the first grade level.  Johnny had a learning disability. He had this disability for years. How does a student make it through several years of school, when he cannot read and not a single teacher notices?  An IEP was in the works for Johnny. We were in a celebratory moment. It took us nearly three years, but Johnny is finally going to get the education he needs - a smaller class, less stress and anxiety, and an opportunity not to be embarrassed and act out.

You see, in talking with Johnny, and after looking back and figuring this out, we discovered that Johnny was embarrassed that he could not read.  When called out in class, he would get scared.  When he got scared, he lashed out.  He did the only thing he knew to do to avoid the embarrassment. He would threaten someone, yell at the teacher, disobey an instruction, and even raise his hand, or strike the student next to him.  Johnny did not want his peers to know he was “stupid.” In those moments of fear, Johnny wanted to get out of the classroom.  No matter what it took - no matter where he ended up - he just wanted to escape. The system accommodated him.  I unwittingly accommodated him.

Remember the pre-frontal lobe I mentioned in an earlier column? Kids don’t process emotion into logic so well.  Johnny, at fifteen, did the only thing he knew to do to solve his problem.  Not the best solution, but a solution nonetheless.

Not too long after our celebration, Cathy called me.  In Cathy’s typical no-nonsense voice, she said, “Hey Judge, I have bad news.  Johnny was arrested for murder.”

My heart fell. Cathy told me that Johnny was with an adult, a former juvenile delinquent.  Someone whose personality had sociopathic traits, who required detention for the safety of the community - someone Johnny had met in the RYDC during one of his stays there.  A stay I allowed to happen - and for what?  The only thing Johnny ever did wrong was try to defend himself from emotional harm. He never committed a burglary, a car theft, or any crime in the community.  He was scared, but didn’t want his peers to know his fear.  So he responded the best way he knew how, he created distractions to escape that fear.  I couldn’t figure it out, and my best response was to sanction his repeated arrests in school.  It was in lock up that he met the person who put the gun in his hand - the gun that killed a man who surprised him during a burglary.

Johnny is serving a life sentence. He was 15, shackled in an adult courtroom, with a serious learning disability, a first grade reader, being told he will spend the rest of his life in prison. It has been difficult to let this go. It will haunt me forever. Those close to me have attempted comfort on those occasions I recall this and other mistakes in my current 20/20 hindsight.  “Johnny made that decision to associate with that adult,” they said. “He didn’t have to take that gun and pull the trigger.”  They are right.  He did make these decisions.  He is responsible for the death of an innocent man. He must be held accountable.

But should these truisms become an impediment to exploring why Johnny did what he did?  If the adults who raised him, taught him, and judged him don’t ask why, do we risk another Johnny killing another innocent person?

We cannot deny the fact that Johnny’s teachers should have recognized his learning disability early on.  I cannot deny the fact that Johnny should have never been in detention in the first place - a place where he met new friends - a place that assisted his path to murder. I should have known better, and I didn’t. I never felt more ill equipped to do my job than in that moment. Worse yet, I felt I was part of a system that had blood on its hands. Some may say I am taking this too seriously, or maybe I’m overdramatic.  A man is dead, his family and friends hurting to this day. A kid’s life destroyed.  This is serious.  This is dramatic.  They are right.  I am taking it seriously and I am being dramatic - and it’s time we all give serious and dramatic attention to the systems that teach, treat, and touch our kids.  I wish I could go back in time and handle Johnny’s case differently, but I can’t.

It was then that I looked around for help. What can I do to prevent other kids from falling prey to poor adult decision-making in school and in the court?  How can we do a better job in the schools of assessing chronically disruptive youth and addressing the reasons for such behavior? How can we do a better job of distinguishing the kids who make us mad from those who scare us - those cases where detention is more appropriate for community safety?  We had to find alternatives for those kids who make us mad, who made a stupid decision, who should not be placed in jail - a place that makes them worse.

I came across the Annie E. Casey Foundation (AECF) and the Juvenile Detention Alternative Initiative (JDAI). I had visited their Portland model court and was impressed. I thought to myself - if I had this in place, Johnny wouldn’t be in prison today. It was at a Coalition for Juvenile Justice meeting in Charleston, West Virginia that I met the director of JDAI, Bart Lubow.  He was gracious to sit down with me and hear my plea to let me in the door.  All I wanted was to network, to learn from others how to do a better job. He let me in.

Using the JDAI core strategies, the community stakeholders came together to improve our systems for kids.  In the eight years with JDAI, we have experienced a 70 percent decrease in kids detained, an 80 percent decrease in kids arrested on school campus, a 70 percent decrease in felony weapons on campus, a 50 percent decrease in juvenile felonies, and a 21 percent increase in kids graduating high school.  No system is perfect.  Not every kid is saved.  We still have many problems to solve.  But our community culture has changed.

From the school superintendant to the chief of police and sheriff to the judges, we have learned from evidence-based research and networking with other JDAI sites more effective ways to treat kids, and it’s not rocket science.  It’s very simple.  It begins with loading the front-end with validated risk and assessment tools to help us distinguish the kids who make us mad from those who scare us.  Who should be in detention and who should go home? Of course there is much more, and that will come later - in parts.  Although simple in concept, it’s not easy in practice.  Just as my mom often said in my childhood,” Steve, if it’s easy, it’s probably not the right way.”

None of us - teachers, principals, school police, probation officers, and judges - are immune to making mistakes with the kids within our authority and control.  Sometimes, maybe many times, our decisions are fashioned by a system - one not grounded in evidence-based practices, or instead our decisions are grounded in tradition, culture, and anecdotal philosophy.

To a great extent, the latter is what led to the emotional, moral, and legal mistreatment of kids in Luzerne County, PA- what has been dubbed the “Kids-for-Cash” scandal.   With one judge convicted and the other awaiting his criminal trial, many kids on minor school offenses were removed from their homes and placed in private facilities.  The judges received kickbacks for their placement of kids in those facilities.  The owners of the detention facilities were also convicted.  This happened from 2003 until discovered in 2008 by the Juvenile Law Center - a child advocacy group led by Robert Schwartz, an attorney and great advocate for children.  We are talking about thousands of kids.  We are talking about $2.6 million in kickbacks.

The ensuing investigations revealed a culture and tradition in Luzerne County that allowed such decisions.  Contrary to best practices, prosecutors and defense attorneys didn’t object when the judges would send kids away for months for a school fight and no prior history.  Over 50 percent of the kids did not have an attorney.  The culture and tradition allowed for assistance and deals to be made involving cash across political, legal, socio, and ethnic boundaries in Luzerne County.  It was so imbedded in the system that one judge during his plea colloquy commented that he really didn’t believe he was doing anything wrong.  This lack of responsibility, coupled with the egregious acts of the judges, were the reasons the federal judge rejected the original plea agreements that would have placed them in prison for 87 months. They are facing up to 20 years.

I testified before the Pennsylvania House Children and Youth Committee this past June on juvenile justice reform.  I was in Harrisburg, PA last week to give a keynote address to over 600 judges and juvenile justice practitioners.  I met with their judges.  They are still reeling from Luzerne County.    Serious changes have already taken place in Luzerne, and many other changes are taking place to prevent this from happening elsewhere in their state.  I spoke with the Special Master, Judge Arthur Grimm, and the chair of the Inter-Branch Commission on Juvenile Justice, Judge John Cleland, as well as other commission members, Judges Woodruff and Uhler, and I was impressed with their commitment to bring reform and ensure this will never happen again.  I have no doubt that Pennsylvania, which has been a leader in juvenile justice, will come out of this stronger.  I shared these impressions with the judges, and added that they “will not be measured by how they stumbled, but how they will get up!”

We all stumble in this work, but do we know it when it happens?  Luzerne County stumbled, but they didn’t see it.  Their system was not grounded in good practices.  They were running blind, and kids were getting hurt.  Once we do realize we’re on the ground, do we try to get up?  Do we get up and brush off the dirt - the dirt of our mistakes - the mistakes that can break a kid for the rest of his life?

Dr. Martin Luther King, Jr. once referenced the familiar biblical story of the “Good Samaritan” to make a point.  I think it’s appropriate here. He stated how he admired the Good Samaritan.  How the Samaritan rescued people beaten and hurt along the road to Jericho.  But surprisingly, Dr. King didn’t want to be like the Good Samaritan. He wanted to be the person that “fixed” the road to Jericho so no one will get hurt!

Johnny was beaten and hurt on our road to Jericho many years ago.  It is too late for me or anyone else for that matter to be a Good Samaritan and rescue Johnny.  But Johnny’s hurt did not go unnoticed.  The man he killed still has a voice.  Our Road to Jericho was broken.  It needed fixing.  Our community has been repaving our Road to Jericho so there will be no more Johnny's - no more innocent victims.  Pennsylvania is doing the same.

What is your Road to Jericho? What more can you do to keep kids from getting beat up?

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The Hon. Steven Teske has been a judge at the Clayton County Juvenile Court for more than 10 years. He represents Georgia on the Federal Advisory Committee on Juvenile Justice. Judge Teske also chairs the Board of the Governor’s Office for Children and Families, and serves on the Judicial Advisory Council to the Board of the State Department of Juvenile Justice.  He's a leader in the Annie E. Casey Foundation Detention Reform Initiative and a nationally recognized speaker on juvenile justice issues.