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California Bill Would Deem Children Under 12 Too Young for Court

Legislation passed in Massachusetts and pending in California would set a minimum age for children to enter the juvenile justice system.


California Bill Would Deem Children Under 12 Too Young for Court

Legislation passed in Massachusetts and pending in California would set a minimum age for children to enter the juvenile justice system.

This story is co-published with The Chronicle of Social Change, a nonprofit news publication that covers issues affecting vulnerable children, youth and their families.

A bill winding its way through the California legislature would bar the juvenile justice system from hearing most cases of children younger than 12, an idea that has sparked a fierce backlash from district attorneys.

California, like most states, has no minimum age that would prevent courts from hearing cases of children who are charged with criminal offenses.

Instead of linking children to services or out-of-home placements through juvenile court adjudication, Senate Bill (SB) 439 would instead direct counties in the state to develop the “least restrictive” alternatives to the juvenile justice system. That could mean a greater reliance on the dependency court system, where child protective services agencies are tasked with providing services to vulnerable children and families. The bill follows on the calls of some advocates in California and nationally who say that children younger than 12 are just too young to enter the justice system.

“The vast majority of young children in California who’ve been accused of an offense are exhibiting behaviors or minor behaviors that did not require any justice involvement,” state Senator Holly Mitchell, a Democrat and the bill’s co-sponsor, said at a hearing last month. “Involvement with the juvenile justice system can be harmful to a child’s health and development.”

All states have an established “age of jurisdiction,” a bright line for the maximum age of juvenile court jurisdiction, most often at 18. That’s the age at which a young person stops being eligible for the rehabilitative services and resources embedded in the juvenile justice system.

With the increasing influence of developmental brain science that points to a longer time for teenage brains to mature into adulthood, some states are even pushing to extend access to the juvenile system for youth 18 and older through “raise the age” efforts. But there is also an emerging effort on the other end, where advocates hope to limit access to the system for the youngest children.

Currently, 20 states have a minimum age for entry into the juvenile justice system, ranging from age 6 in North Carolina to a threshold of 10 in 11 other states.

This year, Massachusetts became the first state to set minimum age at 12, a precedent that California advocates hope to replicate. Some advocates say that setting the threshold at that age would bring it in line with many other Western European countries, which helped enshrine that age in the United Nations Convention on the Rights of the Child. Among United Nations member states, the United States remains the lone country not to ratify the agreement.

In California, the number of children younger than 12 who end up in the justice system actually is very small. According to a recent analysis of California Department of Justice data by UCLA researchers, there were 687 referrals of children age 11 and younger to probation from law enforcement or schools in 2015, or about 0.8 percent of the total number of referrals in California in 2015.

That included one referral of a 5-year-old child for a “curfew violation” and 452 referrals of 11-year-olds, most often for status offenses and misdemeanor offenses, such as petty theft and minor assault and battery charges. Eighty-five percent of these cases were closed or diverted from the system at the outset of the case.

Most of the cases that did go to juvenile delinquency court were dismissed or resolved informally. Only 30 children younger than 12 ended up being formally supervised by California’s juvenile justice system in 2015. In 2016, that number was 26 children out of 652 referrals, mostly for misdemeanor offenses.

In looking at children under 12 from 2010 to 2015, no youth had a sustained petition for homicide, manslaughter, or rape.

“I think people have an assumption that juvenile court is potentially a helpful intervention for young children,” said Laura Abrams, one of the UCLA researchers who looked at state juvenile justice data. “But in most cases, the charges aren’t sustained or they’re dismissed, so the family doesn’t get any help at all.”

For the children who do end up in the justice system at an early age—and especially those who end up incarcerated at juvenile halls and camps in the state—the impact can be harmful to their healthy development, leading to lower educational outcomes, among other issues.

In looking at children under 12 from 2010 to 2015, no youth had a sustained petition for homicide, manslaughter, or rape.

Some research indicates that the earlier a young person enters the justice system, the more likely they are to become chronic offenders later in life.

That’s the experience of David Rey, who was recently paroled from prison after spending nearly two decades in California prisons. He now assists others re-entering society after incarceration through work with the Anti-Recidivism Coalition.

Rey, now 38, was convicted of murder at age 18. But he first touched the justice system at age 12, when he stole a neighbor’s television for his clubhouse.

Rey said he was “pretty much sheltered” as a kid growing up in San Luis Obispo, a city along the Central California coast. That ended when he was arrested, stripped naked in a room of adults and sent to juvenile hall.

“I didn’t really know what gangs were, I didn’t really know what drugs were, until after I had police contact, until I went to juvenile hall and I met other kids that were dysfunctional,” Rey said.

That experience helped define the course of his life, even after a brief stay in juvenile hall.

“That really shaped me in the direction I was going,” Rey said. “Six years later, I was in the same police station for murder.”

That perspective has drawn strong opposition from several law enforcement entities in the state, including the California District Attorneys Association, the California Police Chiefs Association and the Chief Probation Officers of California.

The Los Angeles County district attorney’s office has been a particularly vocal critic of the bill since it was introduced last year. A letter sent last month to a committee considering the bill highlighted several lurid cases that the office believes show the juvenile justice system is the only way to rehabilitate children and protect public safety.

In one example, a 9-year-old was arrested after allegedly committing a robbery. The case was dismissed due to the boy’s “developmental age and maturity,” but over the next four years, the youth was brought to court nine times. He was described as the “ring leader of a residential burglary crew” by age 11 and became an active gang member during the time.

The boy was placed in group home placements out of county several times, but he kept running away and returning home. “For this rare type of youth, the intervention of the court is necessary. DCFS can offer services and place a minor, but they cannot make him stay,” said the letter, referring to the Department of Children and Family Services.

I didn’t really know what gangs were, I didn’t really know what drugs were, until after I had police contact.David Rey, Anti-Recidivism Coalition

At the hearing for SB 439 last month, Tamar Tokat from the LA County district attorney’s office said there was “no alternative” to serious criminal cases involving children.

“We’re not here because we want to file charges against some kid who stole peanut butter,” Tokat said. “We’re here because we want to rehabilitate the 11-year-old who is continuously sexually abusing the little kids in the house. We want to rehabilitate that child so he does not become the 25-year-old rapist, so he does not become the 25-year-old murderer.”

Proponents of SB 439, like Patricia Soung of Children’s Defense Fund-California, say that the juvenile justice system hasn’t had a strong track record of providing effective supportive services to young people, especially those that address the trauma that many are facing.

Most children younger than 12 who are referred to probation don’t end up requiring any court intervention, which represents a missed opportunity to work with some at-risk children, according to Soung.

With SB 439, dependency courts could be called in to fill the gap for children ages 11 and younger.

“The California courts have said that dependency courts have always been imagined as the better alternative to address young people’s circumstances in a more holistic way,” Soung said. “Counties have overrelied on law enforcement agencies, including probation, to be gatekeepers to services, and we would like this to be a paradigm shift toward something else.”

Under the most recent version of the bill, children under the age of 12 who commit murder, “rape with force,” or other violent offenses would still be sent through the juvenile delinquency courts. But counties would be given a year to draw up plans for how they would work with young people who don’t get sent to juvenile delinquency court.

Santa Clara County is one place where those rules are already in effect. In 2010, the county’s Board of Supervisors passed a motion to limit juvenile detention for children 12 years old and younger. Instead, the county put into place a protocol that sends children into a mental health court instead of the juvenile court, surrounding them with services from several county departments.

Soung would like to see California counties take up some version of this approach in an effort to intervene before children become more involved in the juvenile justice system.

“Early exposure to the justice system is harmful and it can increase the likelihood of recidivating and young people aren’t getting the help they need,” she said. “That doesn’t mean we shouldn’t respond, but let’s respond in a more appropriate way that actually addresses the underlying causes of their behavior.”

Immigrants Share Horror Stories From Inside Massachusetts's 'Worst' Jail

“Jail is not a country club,” the Bristol County sheriff said. “That’s why once you’ve done time in the Bristol County House of Corrections, you won’t want to come back.”

Bristol County Sheriff Tom Hodgson
Screenshot/Tom Hodgson Committee campaign ad

Immigrants Share Horror Stories From Inside Massachusetts's 'Worst' Jail

“Jail is not a country club,” the Bristol County sheriff said. “That’s why once you’ve done time in the Bristol County House of Corrections, you won’t want to come back.”

Conditions in one Massachusetts jail being used to hold ICE detainees are abusive and dangerous, according to former detainees.

Three people told The Appeal that their time at the Bristol County Jail was marked by poor conditions and abusive behavior from guards.

Siham Byah, a Boston-based community activist who was recently deported to her native Morocco, said that she was placed in the corrections facility instead of the closer Boston South Bay detention center because of her political activism—the same reason she claims she was deported.

“I was put there, it is my guess, to hurt my support system,” Byah said by phone from Morocco, “and because Bristol County is known as the worst prison in Massachusetts.”

After she was placed in the women’s section of the Bristol County Jail while she awaited detention proceedings, Byah said she began a hunger strike to protest her arrest and detention. As a result, the guards put her in segregation.

After about three and a half days, Byah broke the strike. She claims that the guards told her they would force her to eat if necessary because ICE would not tolerate someone dying in the facility.

“They said they would strip me, tie me down, and then shove food down my throat,” said Byah.

The Bristol County Sheriff’s Department denied the majority of Byah’s allegations. Jonathan Darling, the county sheriff’s office public information officer, told The Appeal that Byah only spent one day in solitary so guards could “monitor her meal refusals and health better.”

“In the rare case that a hunger strike becomes a serious threat to an inmate or detainee’s health after weeks of refused meals, a judge is the one who decides if we force feed the individual,” Darling said, adding that Byah’s accusation against jail guards was “completely and 100 percent false.”

Sheriff Thomas Hodgson has proudly instituted a culture of harsh punishment at the facility.

“Jail is not a country club,” Hodgson said in a 2010 campaign ad. “That’s why once you’ve done time in the Bristol County House of Corrections, you won’t want to come back.”

Hodgson’s reputation as a tough jailer—he offered to provide prison labor to help build President-elect Donald Trump’s wall on the Mexican border in early 2017—has earned him some unwanted attention recently: Massachusetts Attorney General Maura Healey called for an investigation in June into conditions at the jail after reporting by the New England Center for Investigative Journalism found that roughly a quarter of all in-jail suicides in Massachusetts occurred at Bristol County Jail, which holds only 12 percent of the state’s county jail inmates. Hodgson dismissed the reports of dangerous conditions at Bristol, and implied that the attorney general had targeted him because he was a conservative. He demanded an apology from her.

Bristol holds ICE detainees through a 287(g) agreement, a federal program that allows ICE to subcontract detention of undocumented people to local municipalities. The program is used across the country. ICE officials told The Appeal that the agency takes a proactive role in ensuring that detainees are treated appropriately.

“The agency’s aggressive inspections program ensures its facilities comply with applicable detention standards, and detainees in ICE custody reside in safe and secure environments and under appropriate conditions of confinement,” ICE spokesperson Khaalid Walls said via email. “Based on multi-layered, rigorous inspections and oversight programs, ICE is confident in conditions and high standards of care at its detention facilities.”

In the most recent inspection on file, from 2016, ICE’s Office of Detention Oversight found that detainees had a number of complaints about medical care, including finding that “in six of the ten mental health records reviewed the facility failed to obtain informed consent from detainees receiving psychotropic medications.” And the report lists other detainee complaints that reflect what the people who spoke to The Appeal said about the facility, including aggressive treatment by guards and nearly inedible food.

“These allegations are completely absurd,” Darling responded in an email. “Our facility is nationally accredited by the National Corrections Association and regularly audited/inspected by ICE and the state Department of Corrections.”

ICE detainees are held in three areas in the jail. Men are held in two large, open rooms in the C. Carlos Carreiro Immigration Detention Center, a large building not connected to the jail, and held in the jail proper. Women are mixed with the general population. Although ICE holds detainees in the facility, it has little control over the day-to-day operations and does not have staff on site all the time—detainees are watched by jail guards in the detention center and the jail.

Detainees are supposed to be held in different areas according to their criminal record, said Matt Cameron, a Boston attorney specializing in immigration litigation. There are three levels of criminality:  The two higher levels, where detainees have a record of misdemeanors to felonies, generally land offenders in the jail, while low-level offenders or nonoffenders are in the detention center.

“Bristol County House of Corrections houses detainees for ICE in two ICE-only units and commingled with pretrial county detainees,” said Walls.

Cameron said most people entering ICE detention at the jail are booked on minor offenses, most likely because of the Trump administration’s focus on criminalizing all immigration violations. That results in people who aren’t a threat to the community rubbing shoulders with citizens awaiting trial for criminal offenses and detainees with violent records as space in the detention center runs out and the jail puts people where it can.

One former detainee who asked to be identified only as “D” to avoid retaliation as he navigates the immigration system was held in the jail with detainees and prisoners, and faced the full force of the conditions that Hodgson has made his name on. Detainees and prisoners are separated during regular hours — D described it as one group in each half of the room — but mingle during eating time and recreation.

“They treated us just like the prisoners,” said D.

Immigrant detainees in the jail face the same disciplinary consequences as the prisoners. One of the punishment tactics is disciplinary segregation, or solitary confinement. Administrative segregation, which also results in solitary confinement, is generally used for the protection of people in custody—though it can be abused (what Byah claims happened to her because of her hunger strike). According to the regulations ICE uses at Bristol, the Performance-Based National Detention Standards, use of disciplinary segregation is only for the most severe infractions of jail policy, and should be avoided whenever possible.

But that’s not the way segregation is used at Bristol, according to Byah. The second time Byah said she was sent to solitary it was for one day as punishment for arguing with a guard over using a telephone at break time. Byah said she knows of women in ICE detention at the jail who have spent upwards of a week in segregation.

“ICE detainees who do not follow the rules of the institution, including assaulting other inmates, detainees or officers, or other offenses,” Bristol’s Darling said, “are subject to the same disciplinary action as the rest of the jail population, which can include spending time in a segregation unit.”

D, who was at Bristol for six months, told The Appeal that guards at the jail regularly used solitary confinement as a punishment. “They’d lock them up for a month, sometimes a week,” he said. “It depended on what a person did.”

Solitary was used in the detention center as well, said J, a former detainee speaking on condition of anonymity who was held at the facility for a month in the fall of 2017 and is fighting his deportation. He described seeing detainees being put into segregation for not coming immediately when called or, in one case, for (nonviolently) expressing frustration with a guard’s behavior.  

“When a guard felt like it, they found something very minor,” said J.

The conditions in the detention center are hardly better than in the jail itself, said lawyer James Vita, a public defender for the Committee Public Counsel Services. Medical care access—when prisoners have it—is access to what Vita termed “medieval style” health care. J said people held In the detention center waited days for medical attention. Fevers and toothaches were ignored and medical conditions are often neglected, said J. In one case, he said, an epileptic detainee wasn’t given his medication, resulting in a seizure that ended with him falling off his bunk and injuring himself.  

“There is a medical professional in every housing unit and facility every day,” said Darling.

There were no diagnostic tools beyond a stethoscope in the medical bay, said Byah, and the nurse on staff was at best disinterested. When detainees would go to medical, they would have to stay in the bay overnight—a new and unfamiliar cell. Cameron, the immigration lawyer, called this overnight holding a form of punishment, a perception shared by Byah.

“You were torn between having a medical problem and not wanting to go to the med bay,” said Byah.

Hygiene, too, was a concern, D said. He told The Appeal that the area he was held in had only one toenail clipper for the people in that part of the jail. The bathrooms were filthy, D said, and the showers were dirty and moldy.

It was the same situation on the women’s side, Byah said.

“You can clearly see calcification of old filth accumulating on showers and bathrooms and even floors,” she said.

One ICE agent made occasional visits, according to the three former detainees that talked to The Appeal. He spoke only English, said Byah, and threatened to use segregation against detainees.

“Bad News Larry,” as D referred to the agent, never had anything helpful to say. Rather, he only told detainees that they would most likely be deported sooner than later.

When asked whether ICE’s agents were aware of the conditions in the facility, Walls told The Appeal that detention centers are well monitored.

The former detainees said there was nobody to bring their concerns to. With seemingly nobody to turn to for help and a seemingly uninterested regulatory body in charge of the detention center, detainees at Bristol are isolated. Although ICE regulations mandate that the agency’s detainees have access to programs and facilities that are available to other prisoners, Cameron says his clients have been unable to use the library at Bristol County Jail. That treatment makes Cameron uncomfortable, especially in light of the sheriff’s comments about Mexican immigrants.

“Bristol really seems to be reflecting Hodgson’s view on his approach to immigration,” said Cameron. “I’m not seeing a lot of humanity there.”

The human rights group Freedom for Immigrants released a report documenting racial abuse in ICE detention centers in late June. The report named Bristol County House of Corrections one of the sites where detainees were subjected to racial abuse and discrimination. Detainees were called “baboons,” the report claimed, and told by guards that nobody would believe their complaints.

Darling denied the allegations in the report, citing a conspiracy against the jail.

“This is a case of either a detainee lying to drum up sympathy for his/her cause,” Darling said, “or an organization like the report’s author lying to advance its own pro-illegal-alien political agenda.”

With conditions in the jail that are approaching torture, said Byah, the time to end ICE’s contract with Bristol is long overdue. But, she added, that can’t be the end of the story.

“That place needs to shut down, as does the whole program all together,” said Byah.

More in Explainers

The Court Watch Movement Wants To Expose The 'House of Cards'

Prosecutors and judges across the country are starting to feel eyes on them.

Court Watch NYC

The Court Watch Movement Wants To Expose The 'House of Cards'

Prosecutors and judges across the country are starting to feel eyes on them.

In a New York City criminal courtroom on a hot June day, a familiar ritual was unfolding: a middle-aged judge sat on a mahogany platform above the rest of the courtroom, the words “In God We Trust” lettered in silver over her head, as mostly Black and Latinx people paraded before her to plead their cases. Some were accompanied by lawyers; most stood next to a public defender who argued in favor of their release. The majority of hearings were completed in a couple of minutes.

Louise Williams, a 27-year-old white woman wearing a nondescript black T-shirt, jeans, and round glasses, her blond hair held back in a clip, sat among the defendants’ girlfriends and siblings assembled on benches in the back of the room. But she wasn’t there as a supporter. She was there to watch.

She’s part of a new program called Court Watch NYC, launched in February to send volunteers into the city’s courtrooms to observe what happens, gather data, and shine a light on how the system works. She did volunteer work in college with people once they got out of prison, but court watching allows her to “see how it all starts,” she said.

Often she discovers there’s much more to a case than the charges suggest. A frail Black woman who walked slowly with a limp was charged with assault. Yet when the details of what happened were discussed in the courtroom, it became clear that she was the victim—assaulted by someone using her own cane. She reported what happened to the police. She was arrested despite never having been arrested before.

A Hispanic man with tattoo-covered arms faced charges of possessing stolen property and trespassing. He stole boxers and T-shirts from a store while struggling with a heroin addiction that he had tried to overcome by voluntarily enrolling in a detox program.

A young Hispanic woman with a conspicuous black eye behind her glasses was charged with assault but said she was the one being abused—slapped in the face and kept from leaving her apartment. The evidence against her came solely from the man she said was abusing her. She had a 7-year-old child and a job to attend to. The prosecutor still requested she be given a bail of $1,500. The judge decided instead to release her without requiring she pay any money, but required her to come back the next day and issued an order of protection against her.

Williams noted of her observations: “They say ‘petty larceny and trespassing,’ you say, ‘OK, he did something.’ But when they read the account … What would it have done to put him in jail? What would that accomplish?”

There was little discussion of whether any of the defendants could afford to pay some of the bail amounts requested by the prosecutor: $10,000, $15,000, $30,000.

Court watching is tedious and sometimes uncomfortable work. The benches are hard. The room is unnaturally cold. There are plenty of rules and regulations, such as a ban on using cell phones of any kind. But it has been eye-opening for Williams.

“I had the same assumptions a lot of people have,” she said. “I thought of bail as being a punitive measure. I thought that’s what it was intended for.”

But then she started watching what happens inside courtrooms. The judge that day let most people go without paying bail. That was unusual; a different judge she watched recently let “absolutely no one” go for free except an older white woman. (A recent analysis conducted by FiveThirtyEight found that bail-setting practices vary enormously by which judge oversees the first arraignment.)

Williams is far from the only New Yorker whose idea of the court doesn’t match reality, said Nick Encalada-Malinowski, civil rights campaign director at VOCAL-NY, one of the organizations behind Court Watch NYC.“There is just in general a misunderstanding by the public of how the criminal justice system works and what on a day-to-day basis it actually looks like. … They see that we have a progressive mayor and they assume that everything is pretty fine,” Encalada-Malinowski told The Appeal.

Court Watch NYC

Only a handful of the cases Williams watched that day involved violent acts; most were for drug possession and larceny. Many appeared to be acts of desperation and poverty. “It’s not what I thought it was,” she said. “This room doesn’t address so many of the issues that are being presented.”

In April 2017, as he was running for election, Brooklyn District Attorney Eric Gonzalez announced that his office wouldn’t seek bail “in most misdemeanor cases” with “certain exceptions.” (The Manhattan district attorney, Cyrus R. Vance Jr., joined him in January, directing his assistants not to request bail for nonviolent misdemeanors with certain exceptions.) Yet the Brooklyn Community Bail Fund continued to receive many requests from people who needed help. “We were still paying a lot of bail, so we were like, ‘Hey, what’s going on?’” said Rachel Foran, managing director of the bail fund. So the organization decided—along with VOCAL-NY and the 5 Boro Defenders—to see for itself.

Since launching in February, the groups say they have watched over 200 court shifts, collected data on 544 cases in its first month alone, and trained more than 300 watchers. They have people watching first appearances, when bail is typically set, six days a week in Brooklyn and Manhattan.

In May, Court Watch NYC released a report detailing some of its findings. The majority of cases it observed were nonviolent—charges like drug possession or driving without a license. Just 13 percent of cases were assaults. The vast majority of cases involved people of color, particularly Black and Latinx.

The group also found that whether the district attorney requests bail has a big impact on whether a judge will set it. Every time the DA requested that a person be released on his or her own recognizance, the judge granted it.

This is the kind of data court watching can yield. But even so, they would rather not have to do it at all.

“It’s really powerful and great that we have this opportunity to go into court and collect this data,” Encalada-Malinowski said. “It’s also a reflection of the failures of city and state government … that they don’t even require basic, basic data.”

Keeping prosecutors’ promises

The idea of court-watching isn’t unique to New York. It’s not even all that new. But it’s having a resurgence thanks to the push for criminal justice reform. Putting eyes in the courts is a crucial way to ensure those reforms are actually having the promised effect, court watch organizations told The Appeal.

“Right now we have this really powerful national movement for bail reform and a lot of terrific momentum,” Sharlyn Grace, the co-executive director of the Chicago Community Bond Fund, pointed out. “Because of that public pressure, we have systems that are trying to make changes and say that they’ve met the demands of the people.”

In response, the job for advocates is transforming from demanding reform to holding these systems accountable.

“For elected officials, all of the benefits of adopting a reform or championing a reform happen when it’s announced,” Grace explained. “Very rarely do people come back a year later and say, ‘How is this actually going?’” Court watching keeps the pressure on to follow through, she said.

Similarly, Court Watch MA recently launched in Massachusetts after the state’s Supreme Judicial Court issued a ruling last August that found judges have to set bail amounts that are affordable for defendants. Experiences on the ground indicated that judges and district attorneys were “not following the spirit” of the decision, said Atara Rich-Shea, director of operations at the Massachusetts Bail Fund. Yet there is no publicly available data on who is being prosecuted for what offenses. The court watch program’s main goal is to collect data on what is actually happening since the decision. The program is now operating in five counties.

Next, Court Watch NYC plans to focus on drug prosecutions, especially after Vance announced in May that his office would decline to prosecute marijuana possession and smoking cases with “limited exceptions” (after the Brooklyn DA at the time made a similar move in 2014). The plan is to start watching the courts this summer with a particular eye on drug prosecutions before Vance’s new policy takes effect Aug. 1 and then afterward to see if anything changes. Court watchers now fill out an additional form along with the old ones with questions pertaining particularly to drugs, such as whether the charges are related to residue or paraphernalia and whether an undercover officer or informant was involved.

The data “will allow us to say bigger things about how the drug war is still being fought in the city against our most marginalized communities,” Foran, the Brooklyn bail fund managing director, said.

A national collaboration

Each new court watch program leans on the experience of those that already existed. “People who run bail funds around the country are always in conversation with each other,” Rich-Shea said. But each one has to be tailored to the particular community and issue where it’s based. “Every court watch program has to be unique because every court system is its own special Kafkaeqsue hellscape.”

“It’s really new, this sort of mission-driven court watch where it’s not just data collecting,” Rich-Shea added. “We’re all learning from each other what works and what doesn’t.”

New York City leaned heavily on the work that had already been underway in Chicago for some time. “The folks in Chicago led the way… creating the process and the nuts and bolts of this is what a successful program looks like,” said Encalada-Malinowski. Chicago advocates had a template for how to recruit volunteers, how to train them, even down to how to design the forms. “It’s not that the forms will be the same and that the volunteers will be the same and not that the goals will be the same, but these little pieces of this is actually how you put this together and how to do it which is really valuable.”

Court watching has existed in fits and starts in Chicago since at least the 1970s, when the League of Women Voters monitored misdemeanor courts. “There’s been a lot of different court watching efforts focused on different things here throughout the years,” Grace said. But the Chicago Community Bond Fund decided to restart the effort last summer after the chief judge of the Circuit Court of Cook County, which includes Chicago, issued a ruling saying that judges have to consider whether a defendant can afford bail before it’s set. “We wanted to know what impact they were going to have,” she said. “We know there’s a big difference to change a policy on paper than to change a practice in courtrooms.”

The trouble is that Illinois courts aren’t subject to Freedom of Information Act requests, so there is no way to get information other than going to court and observing firsthand. “Part of our role as invested community members is to say, ‘It is better than it was, and we haven’t gone far enough, and it’s not good enough yet,’” she said. “In order to do that we have to know how big that gap is between where we want to be where and where we are. And that requires data.”

But, the organization argues, it shouldn’t have to be doing any of this data collection to begin with. “We shouldn’t have to rely on the organizing and willpower of people to know what’s happening,” Grace said. It takes a huge amount of effort: people volunteering their time to sit in court and record what happens on paper, others collating and analyzing the data that’s brought back, still others sifting through the data and creating reports. “The onus should be on the system,” she said. Still, since the Chicago group began court watching, more information about the numbers and demographics of people in jail has been made available online.

After Chicago, Court Watch NOLA in New Orleans is most likely the oldest and perhaps longest-running court watching program in the country, having been in operation for over 10 years. It started after Hurricane Katrina as part of a larger effort to reform the criminal justice system by providing oversight. “There was just such a calamity on the ground after Katrina that something had to be done,” said Simone Levine, the court watch group’s executive director. Her group started with the mission of addressing “efficiency and transparency problems in the court,” including how long cases got prolonged and how long people were being kept in jail before their cases were resolved.

It casts a wide net. “We monitor prosecutors, we monitor the public defenders, we monitor the sheriffs, we monitor the police, we monitor the clerk of court,” Levine said, “because we think everyone is a stakeholder in this process and we’re pushing everyone toward reform for us to have a healthy system.” And sometimes it has to wrestle with more fundamental issues than in some other states. One of its first battles was to simply get the public, including journalists and family members of the defendants, allowed into night court, where determinations about whether people will be released are made.

Court Watch NOLA takes the data it collects and publishes reports that include the organization’s own researched recommendations on best practices. One particular focus recently was prosecutors’ widespread use of arrests and sometimes fake subpoenas to compel victims and witnesses to testify.

“We work with judges and other stakeholders and say, ‘This is what we’re saying, it’s a real problem, here’s our recommendation about what you need to do, can you embrace it?’” Those that do embrace reform get commended; those that don’t will face a public campaign against them.

The power of visibility

The presence of an unfamiliar person with a notepad in the courtroom can also remind system actors they are being held accountable in real time. Court Watch NOLA strives to bring change and transparency simply by being present. “We’ve seen people incarcerated for failing to take a drug test when they have insisted that have gone to go take the drug test,” Levine said. But just as the person was about to be incarcerated again, “the judge sees us and then all of a sudden the defendant will receive an attorney … all of a sudden the defendant will have another opportunity to take the drug test.”

New York court watchers also say they want to be seen. “We believe that they should know that they’re being watched,” Foran said. It’s about “shifting power.” One important interaction, she said, is between district attorneys and court watchers on Twitter. After the announcement that district attorneys wouldn’t request bail in certain misdemeanor cases, Court Watch NYC’s Twitter account reported it was still happening. The district attorney’s office responded to say that those cases were exceptions to the rule. “That shows that they’re paying attention,” Foran said. It also illuminates the wiggle room in these policy reform announcements.

It’s a new interaction for everyone. Court Watch NYC has found that even though the courts are open, they are not necessarily accessible. On the day Williams was observing, many of the people who spoke weren’t miked, and even those who were were still difficult to understand. Court actors use case numbers and jargon that could be hard to follow. “I often miss the penal law or what they’re saying,” she said. Things moved quickly. At one point police officers stood in front of Williams, blocking her view of the proceedings. Encalada-Malinowski said, “The space is not super welcoming to any kind of public understanding of what’s going on.”

Court actors are still adjusting to being watched. “The court system in New York City is not used to any type of accountability at all,” Encalada-Malinowski said. Judges sometimes ask people sitting and taking notes who they are. “Each judge imagines the courtroom as their kingdom. They set the rules. What they say goes,” he said. But anecdotally, court watchers have found that judges and district attorneys notice when they are in the room and that “things seem to go better,” Foran said.

There are conversations underway in other cities about starting similar projects, and just as Court Watch NYC relied on the experiences of those who came before, they are paying it forward by sharing their insights. But, Foran warned, “Court watching is a tactic, like bail funds are a tactic.” It’s not an end in and of itself; the point isn’t just to send people into courts to experience what happens. “All of these things have to be specific to a particular place and should be leading toward something, oriented toward a focus area they’re trying to effect change in.”

Perhaps the most important outcome of court watching, though, is giving the public an understanding of what goes on inside the city’s courtrooms.

“The whole system is like a house of cards,” VOCAL-NY’s Encalada-Malinowski said. “It’s propped up on the reliance of the public’s false understanding of what’s happening. As soon as people really appreciate what’s happening, it will be forced to change.”

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