The pandemic has made it more difficult for justice-involved youth to receive fair treatment in the justice system, according to a report by the National Juvenile Defender Center (NJDC).
“What has passed as due process in this time of COVID threatens to unravel the fabric of the Constitutional protections that stand between young people and injustice,” wrote the authors of the report, entitled “Due Process in the Time of COVID.”
They warned that the pandemic has “magnified” communication, access and racial bias issues in the already-troubled youth justice system, and threatens to cause permanent damage.
“Our findings raise serious concerns about the future operations of juvenile courts once the pandemic subsides,” the report said.
Researchers for the NJDC interviewed 51 juvenile defenders from 38 states between June and August, 2020.
The attorneys were asked to evaluate the health and safety risk to themselves as well as to their youth clients. They were also ask to assess how the pandemic had impacted their ability to provide effective legal representation.
“The role of defenders in protecting their clients’ rights and liberty interests has never been more apparent or more essential to the health and well-being of young people in conflict with the law,” the report said.
The NJDC researchers noted that attorneys are not typically seen as “first responders or an emergency service,” but they nevertheless were crucial to helping their clients navigate a complicated and often incomprehensible process.
Only seven of the 51 interviewed said they were worried about themselves; the remainder worried more about an immune-compromised partner, their own children, or their own clients, the researchers found.
“Defenders have demonstrated enormous self-sacrifice to advocate for and protect the rights, health, and wellbeing of some of our nation’s most vulnerable children, reaffirming the role of juvenile defenders as first responders,” the report outlines.
In many states, juvenile defense attorneys told NJDC that they would have to actively defy stay-at-home orders and put themselves at risk to work with their clients — because their job saddles them with “overwhelming and unmanageable caseloads.”
One defender put it succinctly: “I am putting my clients above my own health and safety, but it’s my job.”
Another added: “We have the concerns, but public defenders perceive ourselves as first responders. Morally, we should be there for our clients. We take these risks. I’m sacrificing and putting myself at risk for a worthy cause. No one wants to NOT come in.”
When asked about what concerns they had, several other juvenile defenders acknowledged that their possible exposure to COVID-19 didn’t just come from being in the field during an investigation or a socially distanced client visit.
Instead, they were concerned about contracting the virus in their own courthouses and detention facilities.
One defender told NJDC that they were concerned that their co-workers would be “picked off one by one” because of other court staff not wearing personal protective equipment (PPE), the report details.
Youth clients also felt increasing anxiety about the virus, the respondents said in interviews.
One defender shared that one juvenile client with asthma called him multiple times a day, worried that his life was in danger.
Beyond fear of catching the virus, the digital safeguards put in place to offer a new way of communication created a deeper gap between clients and counsel, the report explains.
‘The Digital Divide’
As the pandemic has been in full swing, many court appearances and attorney meetings have moved to an online platform so that the cases can continue to progress.
However, juvenile defenders said this only widened the digital divide between who does and who doesn’t have access to the Internet or communications technology, the NJDC report adds.
A majority of the defenders interviewed expressed concern about holding court appearances on Zoom, noting that many clients don’t have laptops or tablets, and often don’t have phones.
This also created a major obstacle for attorney-client communication, especially confidential communication, the researchers found.
Another defender said that since there was no accountability, “some kids have just fallen off the face of the planet,” and that there was no way to get in touch with them — or find ways to help them complete probation requirements or get access to alternatives like telehealth counseling.
“The realities of the digital divide infringe upon youth access to the courts, services, and justice,” the report concludes.
“When youth in underserved communities experience justice delayed or denied because they lack sufficient access to technology, there is no equal protection under the law.”
Beyond the pandemic, communication issues highlighted many of the discussions with the defense attorneys, as a lot of them worry that if the courts see these online meetings as a proof of concept, that the digital divide will grow following the pandemic when clients will continue to be obligated to access technology, the report detailed.
Disparities for Youth of Color
The pandemic exacerbated the racial disparities that were already present in the youth justice system, defenders told the NJDC.
Some defenders interviewed noted that COVID-19 seemed to become a new excuse for differential treatment of youth clients of color.
One defender mentioned that in her jurisdiction, it appeared Black children were being detained for longer periods of time during the pandemic, presumably for “their own safety.” Another defender expressed concern that children of color were being treated differently and detained more often during the pandemic because judges “don’t trust families to care for kids,” the report said.
To that end, the key theme expressed among the defenders interviewed on this topic recognized that any differential treatment of youth of color because of the pandemic was “neither special nor unique”; it simply amplified the disparate treatment that already existed before, the report outlines.
As one attorney stated, “It has made me feel more strongly that the courts, the state, and the [state juvenile corrections system] do not care about our clients.”
“They fail to recognize the risk our clients are in,” the attorney concluded. “They fail to recognize our clients as human beings.”
One telling fact about the unequal treatment was the lack of any rise in recidivism as a result of the early release of youth detainees in some facilities because of COVID, researchers wrote.
“The safe release of youth from detention and correctional facilities during the pandemic has revealed how implicit racial bias, masquerading as public safety and paternalism, is woven into the very fabric of the nation’s juvenile court system,” the report said.
National Juvenile Defender Center (NJDC) provides national leadership on juvenile indigent defense and due process deprivations that young people face in the delinquency system by providing training, technical assistance, policy development, community-building, leadership opportunities, legislative advocacy, litigation support, and research.
The full report can be downloaded here.
Andrea Cipriano is a staff writer for TCR.