Justice Department Reaches Agreement with St. Louis County Family Court

On December 14, the Department of Justice released a brief timeline of its efforts at reforming the juvenile justice system from 2012 – present. During this time, the Department of Justice concentrated its efforts in some of the most problematic jurisdictions in the nation.

As the DOJ explains it: “The Justice Department’s Civil Rights Division works to address the disparities in America’s juvenile justice system by addressing the early interactions of youth with the criminal justice system; examining fairness and equity in juvenile arrests, court processes and probation; and eliminating detention practices harm youth the most. The department has opened or released findings in four juvenile justice administration cases.”1

The following summary, drawn verbatim from the DOJ’s document, outlines the Department’s actions in the St. Louis County, Missouri, Family Court, which resulted in a comprehensive corrective Agreement between the DOJ and the St. Louis County Family Court. This Agreement went into effect on December 14.

  • On July 31, 2015, the department released findings that the St. Louis County Family Court violates the 14th Amendment of the by failing to ensure that juveniles facing delinquency charges receive adequate due process protections and failing to provide African-American youth in the juvenile justice system with equal protection under the law.
  • On Dec. 14, 2016, the department announced an agreement with the St. Louis Family Court that will reform the court’s handling of juvenile delinquency matters. The agreement includes several measures to address the court’s due process and equal protection deficiencies.
  • The agreement will protect the constitutional rights of juveniles in St. Louis County by requiring additional juvenile defense counsel; appointing qualified defense counsel; protecting juveniles’ privilege against self- incrimination; incorporating probable cause determinations into detention hearings and adopting a standardized format for acceptance of a juvenile’s plea to charges of delinquency to ensure that pleas are knowing and voluntary.
  • The agreement will also address the constitutional guarantee of equal protection under the law. Reforms will address the disproportionate number of black children subjected to harsher treatment because of their race.

A Closer Look

The Civil Rights Division of the U.S. Department of Justice opened its investigation of the St. Louis County Family Court on November 18, 2013. On July 31, 2015, DOJ released the results of its investigation in a comprehensive report entitled “Investigation of the St. Louis County Family Court: St. Louis, Missouri.”

The DOJ opened its report by explaining the Department’s rationale for having conducted its investigation in St. Louis County, writing, “We have reason to believe that the St. Louis County Family Court fails to ensure that children appearing for juvenile justice proceedings receive adequate due process, as required under the Fourteenth Amendment of the Constitution. We also have reason to believe that the St. Louis County Family Court engages in conduct that violates the constitutional guarantee of Equal Protection under the law.”

That is indeed disconcerting, particularly in view of the fact that over six thousand children were referred to the St. Louis County Family Court for law and status violations in 2014. The report continues on by providing a brief – yet deeply troubling – laundry list of problematic details concerning the day-to-day operations of the St. Louis County Juvenile Court system.

  • St. Louis County Family Court fails to provide adequate representation for children in delinquency proceedings, in violation of the Due Process Clause of the Fourteenth Amendment. In re Gault, 387 U.S. 1, 34-43 (1967). Several factors contribute to this denial of constitutionally-adequate representation by counsel, including the staggering caseload of the sole public defender assigned to handle all indigent juvenile delinquency cases in St. Louis County, an arbitrary system of determining eligibility for public defender representation and appointing private attorneys for children who do not qualify for public defender services, the flawed structure of the St. Louis County Family Court, and significant gaps in representation between detention hearings and subsequent court appearances.
  • St. Louis County Family Court fails to adequately protect children’s privilege against self-incrimination. For example, the Family Court’s requirement that a child admit to the allegations to be eligible for an informal processing of his case is coercive, and potentially forces a child to be a witness against himself in subsequent proceedings. Gault, 387 U.S. at 55 (“[T]he constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults.”).
  • St. Louis County Family Court fails to provide adequate probable cause determinations to children facing delinquency charges. Schall v. Martin, 467 U.S. 256 (1984); Gerstein v. Pugh, 420 U.S. 103, 114 (1974); R.W.T. v. Dalton, 712 F.2d. 1225, 1227 (8th Cir. 1983). Probable cause determinations are made on an in camera, ex parte basis, and children have no opportunity at any stage of the proceedings to challenge probable cause.
  • St. Louis County Family Court fails to provide children facing certification to be criminally tried in adult criminal court with adequate due process. In particular, the Family Court’s failure to consider, and permit adversarial testing of, the prosecutive merit of the underlying allegations against the child at the certification hearing fails to “measure up to the essentials of due process and fair treatment,” in violation of the Fourteenth Amendment. See Kent v. United States, 383 U.S. 541, 562, 567 (1966).
  • St. Louis County Family Court also fails to ensure that children’s guilty pleas are entered knowingly and voluntarily, in violation of children’s rights under the Fifth, Sixth and Fourteenth Amendments. See Boykin v. Alabama, 395 U.S. 238 (1969). Judges and commissioners do not adequately examine whether children understand the rights they give up when pleading guilty to an offense, nor the potential collateral consequences of doing so.
  • The organizational structure of the Family Court, wherein both prosecutor and probation officer are employees of the court, the prosecutor is counsel for the probation officer, and the probation officer acts as both an arm of the prosecution as well as a child advocate, causes inherent conflicts of interest. These conflicts of interest are contrary to separation of powers principles and deprive children of adequate due process. U.S. Const., art. I, art. II, § 2, cl. 5; art. III, § 2.

The Disparities

In conducting its Equal Protection analysis, DOJ first determined the rate at which Black children are overrepresented at key stages within the system. DOJ examined St. Louis County’s case data, taking stock of over sixty variables for nearly 33,000 cases, including all juvenile delinquency and status offenses resolved between 2010 and 2013 in the St. Louis County Family Court, using the advanced mathematics of odds ratios and logistic regression techniques. “These techniques track the odds that a child’s case will be handled in a specific way at different stages in the juvenile court process,” the report explains.

There is nothing counterintuitive about the results to advocates familiar with the Juvenile Courts – whether they are handing child welfare, or juvenile justice cases, status offenses, truancy, or other legal matters involving children.2 While children of all races, colors and creeds may find themselves impacted by these systems, there is no denying that the system disproportionality.impacts minority children, whether they be Native American in some states, Alaskan aboriginal in Alaska, or Black or Latino in other jurisdictions. Due to the ethnic makeup in St. Louis County, it should come as no surprise that it is primarily Black children that bear the greatest impact.3 The report leaves little room for doubt concerning this particular issue, as it quite clearly explains,

The data shows that in certain phases of the County’s juvenile justice system, race is – in and of itself – a significant contributing factor, even after factoring in legal variables (e.g., nature of the charge) and social variables (e.g., age). In short, Black children are subjected to harsher treatment because of their race.

By the Numbers

The report continues on to break down the statistics:

  • Black children are almost one-and-a-half times (1.46) more likely than White children to have their cases handled formally, even after introducing control variables such as gender, age, risk factors, and severity of the allegation. This ratio means that Black children have a lower opportunity for diversion when compared with White children.
  • Race has a significant and substantial impact on pretrial detention. Even after controlling for the severity of the offense, the risks presented by the youth and the age of the youth, Black youth have two-and-a-half times (2.50) the odds of being detained (held in custody) pretrial than do White children.
  • When Black children are under the supervision of the Court and violate the conditions equivalent to probation or parole, the Court commits Black children almost three times (2.86) more to the Missouri Division of Youth Services than White children who are under similar Court supervision. This disparity exists even when we control for past referrals and treatment. Children committed to Division of Youth Services custody are placed in restrictive out-of-home settings.
  • After controlling for severity of the offense and other variables, the odds of the Court placing Black youth in Division of Youth Services custody after adjudication (the juvenile equivalent of an adult conviction) are more than two-and-a-half times (2.74) the odds of White youth placement. White youth are significantly more likely to be placed in a less restrictive setting — such as on probation with in-home services or in a residential treatment facility that is not operated by the state — rather than in Division of Youth Services custody.

The report continues on to note that: “Based on these data, and the fact that the disparities are unexplainable on grounds other than race, we find Equal Protection violations at each of these decision points.”

Organization Structure
The Chief Juvenile Officer

The role of the lead or presiding judge in any juvenile court is not to be underestimated. While the St. Louis County juvenile court system is unique in some respects, in many others it mirrors, to one extent or another, the operational arrangements of many juvenile courts throughout the nation. As for St. Louis County specifically, it is the Chief Juvenile Officer – also known as the Family Court Administrator – who is vested with wide and expansive powers over day-to-day operations. As the report explains:

The responsibilities of the Chief Juvenile Officer of the Family Court of the Twenty-First Judicial Circuit of the State of Missouri (also referred to as the St. Louis County Family Court Administrator) are vast. He is the “chief liaison” between the family court judges and the court administrators. He handles all employment-related matters, including hiring, contracting for services, promoting employees, hearing and arbitrating grievances, and disciplining and/or firing all non-judicial Family Court employees. The Juvenile Officer also oversees all social service, legal, and operational matters within the Family Court as well as all budgetary and funding matters.4

To fulfill all of these duties, the Chief Juvenile Officer directs the Juvenile Office, which is organized into a number of departments, including delinquency and clinical services, detention services, court programs, legal services, child protective human resources, and operations units. Each of these departments is staffed by Deputy Juvenile Officers, commonly referred to as DJOs, who are overseen by a director.

The Deputy Juvenile Officers

It is the Deputy Juvenile Officers who are the front-level bureaucrats that directly interface with the court’s clientèle on a day-to-day basis. As such, they are the decision-makers of first resort, and they play an incredibly diverse – and often conflicting – role as gatekeepers into the court, and to wherever its judgment may eventually lead a juvenile.

It is the Deputy Juvenile Officers, commonly referred to as DJOs, who are “responsible for virtually every aspect of Family Court operations,” the Justice Department’s report explains.

Their duties include administering Miranda warnings to children during police interrogations, reviewing referrals to the court, and the staffing and operation of the detention facility.

The Deputy Juvenile Officers also decide whether to offer informal supervision to a child or whether to send a youth’s case to the legal department to determine whether to “petition” the Court to hear the case formally. These DJOs also supervise children being handled informally and determine whether to file petitions when children violate conditions of informal supervision.

They also act as victim advocates. They conduct investigations, write reports and make recommendations regarding whether to waive the Family Court’s jurisdiction so that a child can be prosecuted in adult criminal court. The DJOs also supervise children who have been placed on formal supervision, and staff the alternatives to detention and community-based educational and treatment programs operated by the Family Court.

There is more. The Deputy Juvenile Officers also have the authority to make arrests, but are likewise charged with protecting the interests of the children with whom they work. They are considered as “parties” to all proceedings before the Family Court.

The Legal Department

St. Louis County has quite the bureaucratic pryamid in its juvenile court system – one that would appear to have all of the proverbial bases covered with regard to the disposition of juvenile cases on an in-house basis. As the Justice Department’s report explains:

The Juvenile Office’s legal department includes attorneys, or legal officers, who provide representation to DJOs in Family Court proceedings. Significantly, legal officers in Missouri do not function like traditional prosecutors. That is, they do not represent the interests of the State (as embodied by the executive branch). Rather, they represent the DJO. . . [I]n St. Louis County, legal officers maintain a confidential, attorney-client relationship with the DJOs they represent. Thus, there are no traditional prosecutors involved in St. Louis County Family Court proceedings.

The Administrative Judge

In any bureaucracy, the proverbial buck needs a place to stop. That is to say that whether described as the CEO, the Commissioner, the Departmental Head, or as is often the case in the courthouse setting, the Presiding Judge, someone is ultimately designated as being “in charge” of the entirety of the day-to-day operations of the organizational structure.

In St. Louis County, according to the DOJ report: “All of the individuals in the Juvenile Office ultimately work for the same Administrative Judge, to whom they submit recommendations about children and appear before in court. The Chief Juvenile Officer reports directly to the Administrative Judge. The director of each department in the Juvenile Office answers to the Chief Juvenile Officer and, through him, the Administrative Judge. This organizational structure extends to the Juvenile Office’s legal department, which is overseen by a Legal Director who answers to the Chief Juvenile Officer and, through him, to the Administrative Judge.”

Lack of Legal Representation

The Missouri State Public Defender provides representation to indigent adults and children in criminal and juvenile delinquency proceedings. “The indigent public defense system in Missouri has faced extraordinary challenges for a number of years due to extremely limited resources and a chronic budgetary crisis,” the report explains, adding that an assessment of Missouri’s public defender system found that it had the second lowest per-capita expenditures of all states in the country and was on “the brink of collapse.”

The State Public Defender’s office “continues to be stretched beyond reasonable capacity despite its repeated warnings about the dire consequences this poses for indigent defendants,” the report explains, noting that the Public Defender’s office had warned of impending crisis in its 2012 Annual Report, saying:

Whenever imprisonment, for any length of time, is a possible sentence under the law, the constitutional guarantee of a right to the assistance of counsel is triggered and public defenders are likely to be involved. At least, that’s the way it’s supposed to work ‐‐ when there are enough public defenders to go around. Today in Missouri, there are not. The number of people needing defender services has steadily climbed over the years at a much faster rate than public defender staffing. We now face the situation where there are many more cases than there are lawyers to handle them.

Perhaps what I personally found to be among the most reprehensible of the actions taken by the St. Louis Family Court’s Legal Director was an action that seems clearly to be one of retaliation against a law school that was providing some of the children that come before the court with legal representation.

Buried in a footnote on page 10 of the report, DOJ explains that Washington University’s Juvenile Clinic was excluded under “troubling circumstances,” particularly in light of the very limited resources of the public defender’s office and “the serious constitutional deficiencies in children’s access to effective representation in St. Louis County.” It continues on to explain:

On the day that DOJ announced its investigation, the Clinic’s director sent a widely distributed email in which she praised DOJ’s investigation as well as her clinic’s “efforts as zealous advocates and change agents.” Four days later, the Court’s Legal Department notified the University’s director of externship programs that “until further notice, per the instructions of [the Family Court Legal Director], the St. Louis County Family Court will not be accepting any law student interns from Washington University” – even though this same office had been actively recruiting a new Washington University intern just a couple weeks earlier. Significantly, the Court chose to ban only Washington University law students, and not students from other local law schools.

That degree of publically displayed disdain for the due process rights of children is conscience shocking, and clearly it is a matter that ought be of great concern not just to the citizens of St. Louis County, but to legislators statewide.

The Assessment

Missouri Juvenile Court Assessment Report Link

The Department of Justice references a report issued in 2013 by the National Juvenile Defender Center, which examined practices in ten judicial circuit courts covering twenty counties and over half of Missouri’s total population, as well as half of the total number of youth who are processed through the State’s family courts.

The National Juvenile Defender Center found that the DJOs often experienced a level of confusion regarding their role as both an “advocate” for a child, and working to secure convictions. As the Center’s report explains it, “There was a limited understanding by many of the DJOs as to the role that defense counsel played throughout the proceedings, particularly during the investigation and fact-finding phases. As such, there was often little regard, and in some cases actual resistance, to youth representation at early stages in the proceedings or at all.”5

Counties varied considerably in their approach and attitudes toward the youths ostensibly being served by the system, with some County’s being said to embrace a “pre-Gault, best interest” court approach dating back to the early 1960s. As the Center’s report explains it:

In several counties there was a court culture that appeared to exert pressure on defenders to work as a team with the other stakeholders, while most counties did exert both covert and overt pressure for attorneys to minimize zealous advocacy and work with the judge and the DJO to obtain services for youth coming in contact with the court.

In one County, a public defender rather candidly said, “Adversarial posturing does not work – collaboration and social work does. [Public Defenders] have a unique role in this system; it’s more social work than legal work.”

Among the specific recommendations of the Center was the need for addressing “the expansive role of the deputy juvenile officer . . . to ensure that it does not influence, directly or indirectly, the ability of youth to be appointed counsel early in the process, and to prevent statements made to these individuals from being admissible in court.”

The Findings

The Department of Justice determined that “systemic shortcomings stifle zealous advocacy and prevent any adversarial testing of facts in the St. Louis County Family Court, in contravention of children’s right to adequate representation. None of the signposts of zealous advocacy, such as pre-trial motion practice, contested hearings, independent evaluations, and expert witnesses, are present in the St. Louis County Family Court.”

  • Approximately 60% of lawyers who represent detained youth in Family Court enter the case at least seven days – and as many as 232 days – after the child’s detention hearing is held.
  • In fiscal year 2014, the public defender’s office closed 277 delinquency cases and four status offense cases in the Family Court; only three of these cases involved a contested adjudication.
  • No defense challenge to the Court’s on-paper probable cause determination was made at any point in any proceeding we reviewed.
  • According to data provided by the Office of State Courts Administrator, only seven motions to suppress evidence were filed in delinquency and status offense cases between June 30, 2012, and June 30, 2014. Furthermore, our review of available records reveals that discovery motions are generic, “boilerplate” motions.
  • The only defense dismissal motions contained in the records we reviewed were several boilerplate motions to dismiss certification cases, which either were denied outright or subsumed by guilty pleas.
  • Based on our review of transcripts, defense counsel raised few objections, even in the face of extensive leading of key prosecution witnesses, damaging hearsay and other excludable testimony, and improper evidentiary foundations
  • In every case, the Court entered the dispositional order without taking testimony from witnesses, and, in all but a handful, on the statement of the DJO report alone.
  • The St. Louis County juvenile public defender hired no expert witnesses in fiscal year 2014.
  • Motions for “mental examinations” were made in just ten delinquency cases between June 30, 2012 and June 30, 2014, and the Family Court granted only one of these motions.
  • Not a single appeal from a St. Louis County Family Court case was filed in fiscal year 2014.6

From all of this, the Department of Justice concluded: “Taken together, these failings reflect a system devoid of adversarial process. When no motions or appeals are filed, when no independent investigation takes place, when the actions of the police go unexamined, when all but a handful of cases result in a guilty plea to all counts and when DJO-recommended dispositions are almost always accepted without challenge, the only possible conclusion is that children in St. Louis County do not receive adequate or effective representation in delinquency proceedings, in violation of the Constitution.”

The Department of Justice further concluded that,

Neither a robust inquiry into the facts nor a robust negotiation process appears to take place in St. Louis County. Instead, many of the cases we reviewed were resolved with a guilty plea at the first adjudication hearing, followed by an immediate dispositional “hearing,” at which the only evidence was the uncontroverted report of the DJO and, very occasionally, a psychological evaluation. Among the cases that involved certification motions, most were resolved with a guilty plea and an immediate placement in a treatment facility operated by the Division of Youth Services, generally on the first adjudication date.

Discussion

The Department of Justice noted that many of the individual players in the St. Louis County juvenile court system felt proud of their accomplishments, in terms of a mutually-held perception that they were doing the good work of “diverting” children from more formal adjudications.

There is much to be said for properly designed and implemented diversion programs that truly serve youths and families by actually diverting them from either the juvenile justice or foster care systems. But the Court – such as it operates in St. Louis County – can hardly be held out as a shining beacon of light in the darkness. Quite to the contrary, as the Department of Justice explains, it deprives children of the due process protections to which they are entitled under the Constitution, shuttling far too many off to a treatment facility operated by the Division of Youth Services. That isn’t how a genuine diversion program functions at all.

Perhaps it is the power of a shared belief system – or the organizational culture – that enables them to carry on with the performance of what they perceive to be a benevolent intervention on a day-to-day basis. Perhaps it is this shared belief that enables them to cast themselves in the role of “advocates” even as they give Miranda rights to children, discouraging them from seeking representation, only to wind up providing the Court with damaging reports that they have constructed by gaining the trust of the children that they are ostensibly serving.

Shared beliefs of this kind can be frustrating to outside observers who are looking in. Indeed, I frequently find myself wondering if it is a shared belief of this kind that enables child protection case workers to remove screaming children from their homes, reasoning that they have performed a “benevolent intervention” rather than an outright abduction that will in all likelihood leave the children scarred for the remainder of their lives.7

My open speculation now set aside, as the Justice Department explains it:

The Court personnel we interviewed were proud of the Court’s efforts to divert youth away from the formal juvenile justice system and the many alternatives to detention that are available in St. Louis County, as well as of the small, long-term state facilities that are the centerpiece of Missouri’s treatment of delinquent children. Each and every person asserted a strong commitment to the children who come before the Court and an equally strong belief in the effectiveness of these programs. However, neither an institutional emphasis on diversion nor the availability of effective intervention programs excuses a constitutionally infirm court structure or the lack of adversarial process it engenders. The desire to help does not obviate the Constitution.

The Agreement

st._louis_family_court_agreement_link

On Wednesday, December 14, 2016, the Justice Department said in a prepared release “that it has entered into a comprehensive agreement with the St. Louis County Family Court to resolve the department’s findings of serious and systemic violations of juvenile due process and equal protection rights.”

The press release explains that the agreement aims to ensure that the family court protects the constitutional rights of children throughout their court proceedings and requires the family court to address racial disparities among youth in different stages of the juvenile justice process.

“The harms and inequities in our juvenile justice system threaten to limit the opportunities and derail the futures of America’s youth,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division. “We applaud the St. Louis County Family Court for taking these important steps to begin implementing critical reforms. We hope that juvenile courts around the country review this agreement and use it as a model to protect the constitutional rights of all children.”

The agreement provides for comprehensive reforms aimed at remedying the due process and equal protection violations the department found during its investigation, including:

  • Court-Appointed Counsel: The agreement requires the court to double the juvenile defense counsel currently available to represent indigent youth and to ensure that defense counsel are timely appointed to all juveniles. The agreement also requires that the court appoint private attorneys in a uniform and transparent fashion and that all juvenile defenders practicing in the court receive training.
  • Privilege Against Self-Incrimination: The agreement prohibits police interrogations at the juvenile detention center unless an attorney is present to represent the youth and requires the court to ensure that juveniles understand their rights before waiving them. The agreement prohibits deputy juvenile officers – the court staff responsible for virtually every aspect of family court operations – from discussing with the young person the substance of the allegations and/or using incriminating statements made by the youth in subsequent delinquency proceedings.
  • Adversarial Probable Cause Hearings: The agreement requires that during detention hearings the court examine whether there is probable cause to believe that the youth has committed the alleged offense and permits the youth to challenge the evidence admitted to support probable cause.
  • Standardized Plea Hearings: The court will adopt a standardized format for hearings to accept juveniles’ pleas to delinquency charges to ensure that pleas are knowing and voluntary.
  • Deputy Juvenile Officer Training: Deputy juvenile officers must receive competency-based training that addresses the role and responsibilities of juvenile defense counsel in delinquency proceedings as well as the due process rights of youth. This includes the youth’s right to counsel, privilege against self-incrimination and the potential consequences (including collateral consequences) for a youth who is found to be delinquent.
  • Collection, Analysis and Response to Court Data Regarding Disproportionate Minority Contact (DMC): The court must collect and analyze data about the gender, race, age and juvenile offense of youth in the system, create bi-annual reports and make changes based on what those reports reveal.
  • Public Meetings: The agreement requires that the court advertise and hold public meetings to review and address the biannual DMC reports.
  • Training: The agreement requires that court personnel who are directly involved in decision-making processes at the court or the juvenile office focused on juvenile delinquency participate in training addressing DMC.

Early Reactions

“It’s an organizational structure that raised serious concerns about conflicts of interest,” said Vanita Gupta in a 2015 conference call that outlined the findings of the Justice Department’s report. “The roles of the judge, prosecutor and probation officer are blurred, and positions that are traditionally held by members of the executive branch are filled by employees who answer to the court’s judges.”8

Mae Quinn, executive director at the MacArthur Justice Center in St. Louis, echoed these concerns, saying the settlement was a good first step, however it did nothing to fix an underlying systemic issue that exists in juvenile courts all across Missouri; that the role of prosecutors, probation officers and judges often gets blurred.9

Quinn noted that doubling the number of public defenders means there are now two instead of one.

“So you have two defenders with no support staff up against four or five prosecutors in four to five courtrooms, with all the [deputy juvenile officers] working for them. So that’s still not a level playing field,” she said.

While there did not appear to be much notice taken of the Agreement by legislators on the whole, in a statement emailed to reporters, U.S. Rep. Lacy Clay, D-University City, called the settlement “a victory for the constitution and for the juveniles who will encounter the justice system and finally enjoy equal protection under the law.”10

Conclusion

It took 16 months of negotiations between the St. Louis County Family Court and the Department of Justice to hammer out the formal agreement to correct the numerous identified defeciencies in the operations of the court.

The county’s circuit and family court judges approved the agreement after holding closed deliberations during an “en banc” meeting in the St. Louis County Courthouse. The meeting was opened to the public only at its end for the formal vote to sign the agreement. Judge Dennis N. Smith was the lone judge voting against the agreement, according to the St. Louis Post-Dispatch.

None of the judges would comment, including the currently Presiding Family Court Judge Thea Sherry, and all questions were referred to Ben Burkemper, the St. Louis County Family Court administrator.11

It is unfortunate that Judge Dennis Smith was not required to file a written dissent, because it would make for interesting reading to see what his legal reasoning would have been for refusing to sign, under the totality of the circumstances.


1. St. Louis County is the most populated county in Missouri. The County surrounds and is independent of the city of St. Louis. The County has over one million residents, representing approximately one-sixth of Missouri’s total population. The other jurisdictions investigated by the DOJ included the Juvenile Court of Shelby County, Memphis, Tennessee; Meridian, Mississippi (alleging, among other things, that Lauderdale County, Mississippi, and the County Youth Court Judges engaged in a pattern or practice of due process violations in court proceedings); and the Dallas County, Texas, Truancy Court and Juvenile District Courts.

2. The investigation did not specifically review child welfare or custody cases, rather it focused on matters of juvenile justice, including such things as status offenses, truancy, transfer to trial as adults, and other such matters which may lead to incarceration or other criminal or civil penalties.

3. The racial demographics don’t leave much room for Native American, Latino, or other minority children to be disproportionately impacted. The report explains that: “Almost 70% of the County’s residents are White, and less than 25% are Black. Roughly 60% of the County’s youth (aged 17 and under) are White and just over 30% are Black. About 10% of St. Louis County residents live below the poverty level.”

4. In much the same way as that of St. Louis County, social services cases are included on the rosters of judges who also handle juvenile justice cases, whether they are described as “CHIPs” or “CHINs” cases, as they are in some jurisdiction, or simply as “juvenile court” cases in some others.

Given the diverse nature of proceedings, each court has its own unique set of what are perhaps best described as operation efficiencies to handle work flow. For example, I have observed first-hand the same judge presiding over a juvenile court hearing a combination of truancy, show-cause orders, child support cases, probation violations, and child welfare cases in which the placement of a child into foster care may be the primary issue in rapid succession, and in some instances with the same court-appointed attorney representing all of the children and families in the particular succession. In fact, it would appear that cases are clustered together not so much by the type of case being heard, but by the attorney appointed to the cluster of cases, making for greater efficiency for the attorney. Meanwhile, families who have been instructed to appear at a particular time wait their turn in a waiting area, sometimes for hours at a time. This is so notwithstanding that cases are initially triaged by type, and assigned to particular days of the week. Regardless of the structure of the proceedings, any biases – implicit or explicit – on the part of the presiding judge and/or the court’s highest ranking administrator are likely to carry over from one case type to another, and are also likely to filter down through the rank and file of the entire bureaucracy.

5. Mary Ann Scali & Kim Tandy with Jaime Michel & Jordan Pauluhn, Missouri: Justice Rationed, An Assessment of Access to Counsel and Quality of Juvenile Defense Representation in Delinquency Proceedings, National Juvenile Defender Center (Spring 2013).

It is a generally held misconception that public defender services are provided free of charge to indigent clients. While they may be more affordable than hiring a private attorney over the short term, they do come at a cost to clients in many states, and in Missouri these costs may themselves provide a strong disincentive on the part of youths embroiled in the legal system when it comes to asserting their rights to legal representation. As the National Juvenile Defender Center explains it:

As a general principle, public defender services in Missouri are not free. Indigence, or eligibility for public defender services is tied to the federal poverty guidelines. And even after indigence is determined, some of the fees charged for having an attorney in juvenile cases can be substantial. At the end of a case, the public defender fills out a form that is submitted to the court and signed by a judge providing authority for MSPD to “intercept” any state money that would otherwise go to the client to make sure that the fee is paid. The fee may be waived or the judge may decide not to sign the form. A juvenile case that results in a plea costs $125, one that has an “early disposition” costs $65, and a case taken to trial costs $250, with a lien on tax refunds due to the parent. Extra fees for taking depositions, hiring experts, and hiring investigators may also be imposed. There was conflicting information as to whether these fees were ever collected; however, MSPD’s form clearly states, “your income tax refund may be intercepted to satisfy this debt.” The graduated fee system clearly incentivizes juveniles to plea, even where they are not held personally responsible for paying for public defender services, because parents may pressure youth to plea or waive counsel entirely to avoid fees.

6. That not a single appeal from the St. Louis County juvenile court was filed over the course of an entire year is quite remarkable. To put the matter into its proper perspective, see In Re MM, 320 S.W.3d 191 (Mo. Ct. App. 2010), an appeal filed from the Circuit Court of the City of St. Louis. (“In her first point, M.M. argues the court erred in denying the Motion to Vacate the Order and Judgment of Jurisdiction because M.M. did not voluntarily, intelligently, or knowingly waive her right to counsel. M.M. contends she felt coerced into pleading guilty under threat of being detained if the hearing was continued for the family to find counsel. M.M. further contends her right to counsel was not properly explained to her in violation of her 6th Amendment right to counsel and her 14th Amendment right to due process of the law and to a fair trial. We agree”).

7. See Gregory A Aarons et al., “Dynamic Adaptation Process to Implement an Evidence-Based Child Maltreatment Intervention,” Implementation Science : IS 7 (2012): 32–32 (noting that senior leadership, team-level leadership, organizational culture and climate are associated with staff readiness to adopt evidence-based practices); Gregory A Aarons and Angelina C Sawitzky, “Organizational Climate Partially Mediates the Effect of Culture on Work Attitudes and Staff Turnover in Mental Health Services,” Administration and Policy in Mental Health 33, no. 3 (May 2006): 289–301 (“Organizational culture is important because shared beliefs and norms affect employee perceptions, behaviors, and emotional responses to the workplace”); Charle s Glisson, “The Role of Organizational Culture and Climate in Innovation and Effectiveness,” Human Service Organizations, Management, Leadership & Governance 39, no. 4 (2015): 245–50 (Differentiating organizational culture and organizational climate, while noting that: “The perceptions that are shared by employees in a given work environment represent an agreement in their personal appraisals of the meaning and significance of their work”); S Serene Olin et al., “Quality Indicators for Family Support Services and Their Relationship to Organizational Social Context,” Administration and Policy in Mental Health 41, no. 1 (January 2014): 10 (“High quality program policies are associated with positive organizational cultures and engaging climates. Inappropriate staff practices are associated with resistant cultures”); Nathaniel J Williams and Charles Glisson, “Reducing Turnover Is Not Enough: The Need for Proficient Organizational Cultures to Support Positive Youth Outcomes in Child Welfare,” Children and Youth Services Review 35, no. 11 (November 1, 2013): 10.101 (“To be successful, efforts to improve child welfare services by lowering staff turnover must also create proficient cultures that expect caseworkers to be competent and responsive to the needs of the youth and families they serve”); Nathaniel J Williams and Charles Glisson, “Testing a Theory of Organizational Culture, Climate and Youth Outcomes in Child Welfare Systems: A United States National Study,” Child Abuse & Neglect 38, no. 4 (April 2014): 757–67 (“Organizational climate is important to outcomes in child welfare systems because of its effects on employee motivation and work attitudes such as job satisfaction and organizational commitment, all of which are associated with individuals’ performance in the organization”); Gregory A Aarons, Michael Hurlburt, and Sarah McCue Horwitz, “Advancing a Conceptual Model of Evidence-Based Practice Implementation in Public Service Sectors,” Administration and Policy in Mental Health 38, no. 1 (January 2011): 4–23 (“Organizational culture and climate can have a profound influence on organizational functioning and effectiveness in public sector services”).

The common language of the legal profession itself serves a role in the perpetuation of the culture of a courthouse, and it aids in the reinforcement of the shared belief system among courthouse staffers. They “issue show cause” or “file capias,” the subtle distinction being that in the case of the former the subject of the order commanded to appear before the court, typically for an alleged violation of a court order, while the later more often than not results in the subject of the order being arrested and brought to the court. An officer of the court cast in the role of an “advocate” for a child may well rationalize that making a “recommendation” for detention to be in the child’s “best interests,” without regard to the totality of the circumstances of the child or her parents. It thus becomes palatable for the “advocate” to coerce a child into waiving her right to counsel in the interest of operational efficiency, such that the overloaded docket is cleared of one case, leaving room for another child to be helped by the availablity of a benevolent “intervention” or “diversion” that is in reality ill-suited to serve either the needs of the child or her family. In this climate, judges don’t issue verdicts, rather they issue “dispositions.” As Patterson et al. explain, “Culture is a powerful, covert force that unifies the organization by giving members a common language.” David A Patterson et al., “Organizational Leaders’ and Staff Members’ Appraisals of Their Work Environment Within a Children’s Social Service System,” Human Service Organizations, Management, Leadership & Governance 38, no. 3 (June 13, 2014): 215–27. In a similar vein, CPS agencies provide “wraparound services,” “differential response,” and “service plans” to families. When families resist the intrusion, the parents are pathologized for “resisting services.” The ultimate question that has yet to be firmly addressed is precisely when a shared belief system or a rationalization that is common to an bureaucratic organization crosses the line from being somewhat at odds with reality, to being a commonly shared delusion or fantasy. As the Children’s Defense Fund explained it many years ago: “Influenced by moral beliefs, political ideologies, or child-saving fantasies, those with decision-making responsibilities sometimes fail to consider the psychological consequences to a child of removal from his family.” Jane Knitzer and Mary Lee Allen, “Children Without Homes: An Examination of Public Responsibility to Children in Out-of-Home Care” (Washington, D.C: Children’s Defense Fund, 1978). p. 18.

8. Rachel Lippmann, “Juvenile justice in Missouri — problems and solutions,” St. Louis Public Radio. October 2, 2016.

9. Rachel Lippmann, “St. Louis County, federal government reach agreement to reform family court,” St. Louis Public Radio. December 15, 2016.

10. Ibid.

11. Nancy Cambria, “St. Louis County Family Court signs agreement with feds to correct racial inequities,” St. Louis Post- Dispatch. Section: Law and Order. December 14, 2016.