COVER STORY

CRIMINAL Capacity

Parents, politicians, law enforcement and children’s advocates grapple with a question: Should kids be arrested?

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For 26-year-old Samantha Wolf-Hernandez, it was an $8 necklace at a Bealls that altered her life.

In a summer day in Fort Myers, when she was 12, Wolf-Hernandez and her best friend pedaled their bikes to the store. Her mother had given her money to buy jewelry. After browsing, she picked what she liked and clutched it in her hand.

Then, Wolf-Hernandez recalls a “little old” saleswoman barging at her and her friend, ordering them to leave. The girls backed toward an exit, attempting to reason with the woman. In the unexpected confrontation, Wolf-Hernandez says she forgot all about the necklace.

“As soon as my foot made it out the door,” she said, “a 200-pound man came and tackled me. I am 4 feet, 11 inches and at the time I was probably 4 feet, 8 inches and weighed 95 pounds. And this humongous man came and tackled me to the ground, put me in handcuffs and took me to a teeny tiny room and called the police.”

While waiting for officers to arrive, Wolf-Hernandez pleaded to be able to pay for the trinket and be let go. The security guard, however, was having none of it. She remembers him saying that she had looked suspicious on the surveillance camera.

The cops came and took Wolf-Hernandez away. After patting her down and stripping her of her shoes, bra and jacket, the police locked her “in this little concrete room with two women that were doing very inappropriate things in front of a 12-year-old. And I saw fights and I saw horrible things that no child should ever see.”

Wolf-Hernandez had been arrested for petty theft. She says she had no intention of stealing the necklace.

Wolf-Hernandez estimates she spent between six and eight hours confined, cold and horrified about what would happen next. Eventually, they released her to go home with her dad and stepmom. She later appeared before the court, paid a $500 fine, penned letters of apology to Bealls and the judge and attended assigned classes.

Throughout the years, however, the incident stayed with her, as Florida’s juvenile justice system nudged through reforms with varying success.
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BETWEEN CITATIONS AND ARRESTS

Last year, according to data from the state’s Department of Juvenile Justice (DJJ), close to 9,000 Florida minors were arrested, even though they qualified for civil citations. Meanwhile, a little fewer than 10,000 of their peers—or 52 percent of all eligible juveniles—received civil citations.

Under Florida statute, civil citations represent an alternative to arrest “for children who commit non-serious delinquent acts and to ensure swift and appropriate consequences.” Amounting to paper tickets, civil citations carry non-prison sanctions for misdemeanors such as petit theft, non-aggravated battery, trespassing, loitering and alcohol and drug crimes. Unlike arrests, civil citations do not burden children with criminal records.

The entry of juvenile civil citations into Florida’s justice code can largely be attributed to Wansley Walters, who led DJJ from 2011 to 2014. Her commitment to the policy commenced at Miami-Dade’s juvenile agency where, as director, she spearheaded a pilot civil citation program.

As of May 2016, 60 out of Florida’s 67 counties operated civil citation programs, while two were in the process of establishing the programs. Set up at local level with the accord of the state attorney, the chief judge of the circuit, the public defender and the heads of law enforcement agencies, civil citation programs differ across the state in terms of covered offenses and implementation rates.

From May 2016 to April 2017, according to DJJ, Miami-Dade, an early adopter of juvenile civil citations under Walters, cited 96 percent of all eligible youth—an amount that is among Florida’s highest. In Duval and Clay counties, the rate of issuing civil citations to qualified youths hovered around 30 percent, roughly half the statewide average. In neighboring Nassau, the rate is 46 percent. In the Fourth Judicial Circuit, the overall rate of juvenile civil citations is 33 percent, or roughly 300 kids receiving citations and more than 600 getting arrested.

“It is not fair to have something happen in Duval County that a child in Clay County cannot get because they do not have the same program,” said Nancy Ricker of ICARE, a nonprofit organization advocating for a wide and uniform use of juvenile civil citations. “So we are trying to make it equal across the state.”
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OFFICERS’ DISCRETION AND LAWMAKERS’ CCONVICTIONS

After it successfully promoted legislation that allowed civil citations to be issued to minors for their second and third infractions, this past legislative season, ICARE pushed for a bill that would have obliged police officers to cite youths for a dozen nonviolent misdemeanors such as affrays and riots, possession and sale of drug paraphernalia, battery and resisting an officer without violence. Sponsored by Senator Anitere Flores, R-Miami, Bill 196 advanced through the chamber’s committees despite some vocal opposition. It ultimately died on the Senate floor.

Early on, a focal debate stirred around the bill’s abolition of officers’ discretion to cite or arrest youths who have perpetrated the covered offenses. While the bill would not have done away with simple warnings, allowing civil citations instead of arrests for these offenses drew resistance from Florida sheriffs’ and police chiefs’ associations, law enforcement agencies, as well as some senators.

“Ultimately, my belief is that law enforcement should never be left in a position where they cannot remove somebody and arrest them if that is what they feel is the absolute best,” said Senator Jeff Brandes, R-St. Petersburg, in a committee hearing. He cited domestic violence cases where parents may feel threatened by their kids’ presence at home. The bill, however, did not encroach on officers’ rights to detain.

Senate President Joe Negron embraced the bill, which he said decriminalizes youthful mistakes. As a teen, Negron himself erred, trespassing George Bush Sr.’s property and plastering posters of his presidential opponent Ronald Reagan. If this were to happen today, Negron said in a Senate session, he could be charged with criminal mischief, defacement and vandalism. Back then, he received only a plain but strict order from an officer to peel off the banners. Florida politician Don Gaetz chronicled the incident in an opinion piece for USA Today, where he wrote of civil citations as “lessons in humility and citizenship.”

Jacksonville’s Sheriff Mike Williams, who otherwise endorses juvenile diversionary programs, prefers reforms that leave officers’ discretion intact.

“Discretion and judgment is a skill set that is cultivated and trained,” wrote Lauri-Ellen Smith, senior public affairs executive for Jacksonville Sheriff’s Office, in an email. “Throughout the career of an officer, he or she has a supervisor—a manager [who] continues to work with them on these skills and ensures accountability.”

Nonetheless, the exercise of discretion, Ricker said, has led to arrests in hundreds of cases when civil citations could have been issued instead. “Discretion does not work,” she said. “There is always an opportunity if you issue a civil citation that it can be changed to an arrest if need be, after the fact.

“You cannot change an arrest to a civil citation after the fact and once you have done that arrest, that youth has a record that is going to mean they cannot go into the military, they cannot get into a lot of colleges, a lot of people are not going to hire them. You basically have screwed their lives.”

Wolf-Hernandez, who was arrested as a preteen, experienced the stigma first-hand. Although she excelled in school and even graduated high school a year early, universities refused to accept her because of her criminal record. Eventually, she obtained a certified nursing assistant degree from a vocational college. Then another ordeal began—Wolf-Hernandez could not find a job. After a number of hospitals and nursing homes rejected her, she settled for several years of waiting tables at IHOP and Cracker Barrel.
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CHEAP BUT TAXING

A hindrance to youths’ futures, juvenile arrests exert an immediate economic dent as well. DJJ estimates that a juvenile arrest carries a price tag of $5,000, while a civil citation costs $386.

Despite the low expense, however, Duval’s diversion program has a strained budget. Duval’s Teen Court, which handles cited youths, functions on a little more than $300,000 a year–some funds come from donors, some from grants, some from the Jacksonville Journey fund, and some from a $3 tack-on fee on traffic tickets. The sum stretches to cover workers’ salaries and benefits and a multitude of juvenile services.

“It is a really tight budget and we work with our community partners for the betterment of the kids,” said Teen Court Director Stacy Peterson. “That is something we will have to look into more because with the increase of civil citations we are about to get means an increase of kids, more services needed, possibly more staff needed. So that is going to be our next hurdle–getting ourselves ready for an influx of additional clients.”
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NEW STATE ATTORNEY’S AMIABILITY

Locally, Peterson says the uptick of civil citation cases stems from an overhaul of the State Attorney’s Office (SAO). Melissa Nelson, who became State Attorney after defeating incumbent Angela Corey in 2016, has vowed to streamline and enhance the district’s civil citation program. To that end, two major reforms are underway. Battery, which Corey scratched off the list of offenses eligible for civil citations, is reinstated. Corey’s policy that all juvenile civil citations first be reviewed by the SAO before being released to Teen Court is also scrapped. Under Nelson, cited youths are directly routed to Teen Court, trimming the time between citation and enrollment in services, which could take a month during Corey’s mandate.

“I have paid attention, I have listened and my office has acted,” said Nelson during ICARE’s annual Nehemiah Assembly in late March.

Both Peterson of Teen Court and Ricker of ICARE refer to Nelson as collegial and amiable to their efforts. Peterson expects the changes Nelson has made to how the SAO handles juvenile offenses to “make it easier to get these kids into services quicker.”
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TEEN COURT: HOLISTIC HELP FOR JUVENILES

Teen Court has steered straying youths away from criminality for a little more than a decade. It holds mock trials, where offenders who have already assumed guilt face a jury of teen peers that delivers a blend of sanctions and individualized assistance. A volunteer judge supervises the process.

On a gloomy late afternoon in March, William Maule, a practicing tax attorney, presided over three Teen Court cases, up from the usual two, each taking around a half-hour. As a kid, Maule once sat in the offender’s seat and went through a diversion program himself. After years in the military and time living far from Jacksonville, he now delegates an evening a month to nudging teens back on track.

“I try to spread positivity and hopefully it takes seed,” said Maule. He sends juveniles off with a short motivational appeal for them to seek their best, reminding them that with their civil citations, they have no criminal history to hamper this pursuit.

At the end of their “trials,” along with penalties such as up to 50 hours of community service, juveniles often receive mental health counseling, attend classes on bullying, peer pressure, substance abuse and the law, and sometimes even serve as jurors themselves. Many also research and pen essays on the professions they want to enter.

“It is a holistic approach,” said Trial Court Administrator Joseph Stelma. “You come in the front door but you leave with a bag full of everything that we want you to have” to stay out of trouble.

According to Teen Court data, in 2016, fewer than 200 children, the majority cited for petty theft and possession of marijuana, went through the program–a slight decline from the previous two years. The offenders averaged 15 years of age. Only about 5 percent of them erred within six to 12 months after graduation–a local recidivism rate in line with the state.
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RESTORATIVE JUSTICE OF NEIGHBORHOOD ACCOUNTABILITY BOARDS

For kids in Duval, Teen Court is not the only recourse, however. In the last five years, some 300 cited juveniles stood before Jacksonville’s four Neighborhood Accountability Boards. Fanned out in Ribault, Arlington, Westside and the Beaches (three more locations are in the plans), the boards began as an ICARE initiative closely intertwined with Teen Court. When kids live in a ZIP code where a board exists, Teen Court directs them to that board.

“Since I have been involved with ICARE—and I think my first involvement started in 2006,” said Ricker, “there has never been a year when youth crime is not one of the top issues that people are concerned about.”

This societal worry prompted ICARE to draw inspiration from an Orlando-based diversion program and to devise the boards as vessels of restorative justice. It’s a potent process, Ricker said, that aims to weave the fabric back together, frazzled by an infraction, between the offender, the victim and the community. In simpler terms, boards constitute an adult version of Teen Court, where volunteers replace child jurors but hand down the same kinds of “sentences.”

“As people sit around these boards, they say, ‘I did those kinds of things when I was a kid and nobody thought about locking me up for doing these kinds of things,’” said Ricker. “It is just [that] kids are young, they do stupid things. They have to be held accountable, but you can hold them accountable without putting them in prison.”

And yet, boards carry a score of setbacks. Some members, Ricker said, struggle to strike a balance between punitive and reparative. Victims rarely show up, fraying the curative aspect of boards. Meanwhile, elderly white faces dominate, which may cause a sense of disconnect between them and offenders. While the boards hustle to resolve their shortfalls, they are now starting to hear more cases.
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THE ROAD TO JUSTICE IN SCHOOL

From October 2016 to the beginning of June, the Neighborhood Accountability Boards and Teen Court have collectively heard nearly 180 violations of schools’ codes of conduct—a number slightly outstripping that of civil citations. Peterson expects the tally to even out by year’s end, anticipating a sharp increase in civil citations.

While some in-school infractions make their way to the boards and Teen Court through a dean’s referral, others find resolutions at restorative programs, prompted by ICARE, that operate in the majority of Duval’s public middle and high schools. Yet others hinge on the discretion of school resource officers (SRO), policemen and women who provide security in schools.

“During school hours, if the officer believes that the incident has gone beyond the Code of Conduct, then they have to process it as if it is a crime and that the law has been broken,” said former Duval Superintendent Nikolai Vitti. “But if the incident is within the Code of Conduct, so a fight, which has happened in schools for years, then the officer should not use his or her authority as an officer to then criminalize the incident.”

Vitti, who came to Duval from Miami, where civil citations and restorative justice are the norm, harbors wariness of the “school-to-prison pipeline” and the violence that trickles from neighborhoods into schools. During his tenure, he ushered in better training of SROs and a slew of in-school programs, including the Non-Violence Project. A five-year, $15-million venture, it is designed to connect some 5,000 at-risk students to counseling and therapy.

While Duval County Public Schools has endeavored to keep students in classrooms and out of the justice system, its power ends where the SAO’s begins. Under Corey, civil citations for battery were out of SROs’ reach. “Thirty-two students would have been eligible for civil citations in 2015-’16, [had] our SROs [been] able to use civil citations for battery,” said Vitti. This is, nonetheless, a reduction from the total of 53 for the prior year. Vitti said he expected the number to further plummet with Nelson’s adoption of juvenile civil citations for battery.

“We are incarcerating and connecting an entire generation to the criminal justice system very early,” said Vitti. “We are almost ensuring that a group of students will never be productive citizens and that is not necessarily fair to those individuals, their communities and I think it has a detrimental effect on the entire society. The reality is that when you look at those students, there is a disproportionate number that are African-American and male. That is something we have to deal with as a country and in the state of Florida.”
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DISPARITIES IN NUMBERS AND BACKGROUNDS

While less than a quarter of Florida’s youth population, black kids made up half of all arrested youth in fiscal 2014-’15, according to DJJ. While percentage-wise, in 2016, Florida had more black kids than white get civil citations (52 percent and 50 percent, respectively), there were fewer black minors than white eligible for them, DJJ data indicates. In Duval, the statistics reverse–more black than white juveniles qualified for civil citations but fewer received them. Data from Jacksonville’s Sheriff Office (JSO), meanwhile, shows that officers cite more black children than white.

The discrepancies can be attributed to the juvenile operation guidelines that JSO officers heed. The outlined criteria postulate eligibility to only first-time offenders, while Florida’s statute allows for up to three misdemeanors to be diverted to civil citation programs. JSO also mandates victims’ accord to civil citations for property crimes and violations against persons. The statute does not. It also includes battery, which JSO did not recognize as an eligible misdemeanor under Corey.

Those disparities also trigger a gap between DJJ’s and JSO’s overall civil citation issuance rates. “Our current rate is 82 percent of those eligible by our criteria—this is before our new Memorandum of Understanding that aligns our criteria with those of DJJ,” said Ellen-Lauri Smith of JSO. “Should the legislation pass, naturally our new Memorandum of Understating would reflect the legislation passed, with those specifically enumerated crimes listed.”

Sheriff Williams and State Attorney Nelson, along with representatives from DJJ, Duval County School Board and the court system, inked the memorandum for expanding juvenile civil citations and diversion in early May. It is to deliver “swifter accountability and intervention through smart justice,” said Nelson.
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LEGISLATIVE ORDEALS AND CRIMINAL RECORD EXPUNCTION

While local authorities scored a victory for juvenile justice reform, state legislators stumbled. Aside from the juvenile civil citation bill that withered in the Senate, proposed legislation on sweeping clean a youth’s criminal record perished in the House of Representatives. At first, the House bill resembled the Senate’s. Then, in the face of mounting opposition in the committee rounds, it shed its original language for text on expunction of “certain non-judicial records of the arrest of a minor upon successful completion by the minor of certain diversion programs.” It failed to earn support from juvenile justice advocates.

“Expunction will not guarantee kids will not have the same kind of problem they have now,” said The Rev. Jean Cooley of DART, a network of organizations focused on justice reform. Level 2 background checks, which are carried out by the FBI, can still trawl expunged records that are, otherwise, inaccessible to private entities.

Compared to post-arrest diversion, Cooley said, civil citations, which generally do not leave a trail, present a better option.

Wolf-Hernandez, whose arrest at the age of 12 created a criminal record, said she was told it would be expunged when she reached 18. That day came and went, she said, but her record remained. She has since not attempted to erase it.

“What is the point of me sending all that money [to expunge my criminal record], if somebody is still going to see it?” she said.

For three years now, Wolf-Hernandez has been working for a chiropractor, who “saw the person that I [am] today and not who I was when I was 12.” She is also going back to school, contemplating a switch from a medical assistant program to paralegal studies, in order to further her advocacy work on juvenile justice.

Some 14 years after her arrest, however, Wolf-Hernandez said she still fears police officers and worries she might look suspicious in stores.

“Nobody should have to live like I lived, looking over my shoulder every time I walked into Walmart to get my daughter milk,” she said. “[Children] are our future. We could be putting our [future] president in jail. We do not know. They are kids.”

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