Juvenile justice systems were created to protect young people’s rights and focus on education and rehabilitation rather than only punishment. Sadly, in recent years, we have drifted away from that purpose. Many of our youth fall victim to the school-to-prison pipeline, the policies and practices that funnel children out of schools and into the juvenile and criminal justice systems.
What's Happening in Ohio
Ohio’s Supreme Court has ruled, if confinement is a potential punishment in any juvenile court case, the defendant has a right to due process―including counsel―throughout every stage of his or her legal proceedings.
The ruling found “a juvenile must have waived his or her right to an attorney before an adjudication can be used to enhance a later adult conviction for driving under the influence of drugs or alcohol.” Ohio law “enhances” an OVI (operating a vehicle while intoxicated) misdemeanor into a felony if an offender is convicted of five or more OVIs.
The Supreme Court was considering a case in which a juvenile court in 1992 found a defendant had committed the equivalent of OVI if he had been an adult. Later, as an adult, he received a number of OVI convictions between 1996 and 2011. The 1992 conviction was counted as one of these felonies in the 2011 sentencing (in this case, to 36 months’ imprisonment with another 54 months suspended).
But during the 1992 juvenile hearing, the defendant was not represented by and did not waive his right to counsel. Hence, the Ohio Supreme Court overturned a Fifth District Court of Appeals affirmation of the trial court’s findings, returned this case to trial court, and reinforced the role of due process in juvenile cases.
Read more in this April 23 Court News Ohio case feature.
The American Civil Liberties Union of Ohio consistently has focused attention on―and championed efforts to reinforce―juveniles’ right to counsel. Here are links to three sources illustrating this and providing additional information:
For years, Ohio children have been brought into juvenile courts wearing shackles, leg irons, or handcuffs.
Children as young as nine years old appear in court with restraints before they have even seen a judge and without any determination as to whether the restraint is needed.
Restraint practices vary throughout Ohio. No uniform rules exist to guide juvenile courts. No uniform requirement for hearings exists either.
In 2008 and 2011, the ACLU of Ohio issued a Juvenile Justice Report Card and gave Ohio a grade of F for its juvenile shackling practices.
Courts around the country have ruled that the use of restraints in adult judicial proceedings violates a defendant’s due process rights, and restraints can only be used for those who pose a safety risk or have a documented history of escape. Courts should also make a record to support their reason for using restraints. While adults who appear in Ohio courts have all of these rights, children do not.
Many states have come to realize that indiscriminately shackling or restraining children is barbaric and undermines the constitutional rights of children. Many states have ended the practice of indiscriminate or routine shackling without sacrificing court safety.
As a result of legislation, regulation, or Supreme Court rulings, children in the following states do not routinely appear in court with restraints: Alaska, California, Connecticut, Florida, Indiana, Illinois, Massachusetts, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, Utah, Vermont, Washington D.C., and Washington.
In 2011, at the request of the ACLU of Ohio, Miami-Dade Public Defender Carlos J. Martinez released a policy report, “Unchain the Children: Five Years Later in Florida.” The report provides a detailed account of Florida’s successful and safe court management following their ban on indiscriminate shackling.
In 2010, Massachusetts enacted a court policy that presumes against the use of restraints and provides guidelines if it is determined that restraints are needed. In 2012, Associate Clinical Professor of Law of Suffolk University, Kim M. McLaurin released “Children in Chains: Indiscriminate Shackling of Juveniles,” which examines shackling practices, harms, and reforms.
In a report, “HEALING INVISIBLE WOUNDS: Why Investing in Trauma-Informed Care for Children Makes Sense,” the Justice Policy Institute indicates that the use of restraints can “exacerbate the symptoms of mental disorders, including PTSD” in justice-involved children.
Mental health professionals have weighed in by highlighting the negative impact restraints can have on children. Dr. Marty Beyer, a nationally recognized clinical psychologist with expertise in juvenile justice and child welfare, provided a sworn affidavit detailing these effects.
Ohio is considered a national model in reducing its juvenile detention population without sacrificing safety.
Twelve states have managed to maintain court order and safety without violating the due process and constitutional rights of children appearing in juvenile court.
Ohio can do the same.
The ACLU of Ohio thanks you for taking action. Children in detention will be safer because you spoke up.
In December, the ACLU of Ohio launched an administrative rules campaign calling for a ban on the solitary confinement (referred to as seclusion) of children in detention.
ACLU’s National Prison Project, several youth advocates, and hundreds of our members and supporters submitted comments to the Ohio Department of Youth Services (DYS) calling for a ban. The ACLU of Ohio also submitted a letter with our comments.
In March, the U.S. Department of Justice filed a restraining order against the Ohio Department of Youth Services (DYS) to end seclusion of children with mental health needs.
On Wednesday May 21 2014, the Ohio DYS and the U.S. Department of Justice reached a settlement agreement, to ‘dramatically reduce, and eventually eliminate’ the use of seclusion in Ohio’s youth detention facilities. The agreement includes a set of strategies to reduce violence and improve the response to violence in DYS facilities.
Many advocates have devoted years and multiple strategies to ending this harmful practice. Thank you for leading in this effort.
UPDATED: On December 17, 2014, an important loophole was closed. Regulations holding charter schools accountable for the use of seclusion and restraints were amended to HB 178 and passed unanimously out of the Ohio House. The passage of this legislation extends seclusion and/or restraint provisions of rule 3301-35-15 to public charter schools. Now, all of Ohio’s public school children will now have the same protections.
For years, Ohio schoolchildren — many of them with disabilities — have been routinely isolated in cell-like seclusion rooms or physically restrained by educators with little or no oversight from the Ohio Department of Education (ODE).
On April 9, 2013 the State Board of Education finally passed rule 3301-35-15, governing the use of seclusion and restraints practices in Ohio schools. This rule is an important step for the many Ohio schools that secluded and restrained children without guidelines for years and adds extra protections like parental notification and oversight when a child is secluded or restrained.
Currently, the new rule only applies to traditional public schools and not public charter schools, leaving over 115,000 Ohio school children unprotected. However, Ohio Senate Bill 266 has been just been introduced that would require public charter schools to comply with the ODE’s policies and standards for limiting the use of physical restraint and seclusion on students.
The ACLU of Ohio will continue working to ensure that all of Ohio’s public school children are given the same opportunities and protections.
We will keep you posted on opportunities to take action.
Years of zero-tolerance polices have proven to be ineffective, unfair, and excessive and the federal government has finally taken notice. Acknowledging that discrimination in school discipline is a problem, the U.S. Departments of Education and Justice recently issued guidance to schools on the administration of discipline in a non-discriminatory manner.
The Ohio legislature is also examining zero-tolerance policies and taking a much-needed look at school discipline practices. According to the Ohio Department of Education, over 210,000 students received out-of-school suspensions during the 2012-2013 school. Approximately 53,000 students were suspended for fighting, while 131,615 were suspended for disobedient or disruptive behavior.
Ohio Senate Bill 167 would eliminate zero-tolerance school policies for violent, disruptive, or inappropriate student behavior, including excessive truancy, and prohibits the adoption of such policies in the future. Instead, it requires each school district to create its own multi-factored policy to deal with incidents on a case-by-case basis. It also requires school boards to create alternative strategies for handling bullying and harassment, as well as other student behavioral issues.
The ACLU of Ohio is committed to challenging zero tolerance policies that push children out of schools and into the justice system.
Read our testimony on S.B. 167
Read our blog post on the failure of zero tolerance in schools.
Freedom from sexual abuse is not a privilege; it is a right!
Nevertheless, Ohio’s Juvenile Detention facilities have one of the highest rates of sexual assault in the nation. Often the children inside are also being kept in solitary confinement for extended periods of time.
The ACLU of Ohio has asked the Department of Youth Services (DYS) to address these problems by formally declaring that juveniles have a right to be free from sexual victimization while inside Ohio’s detention facilities. We’re also asking them to ban the extended seclusion/isolation of juveniles beyond 24 consecutive hours.
See our 5/22/2014 update: Ohio agrees to end seclusion in youth prisons
The ACLU of Ohio works to protect the rights of families in schools, the community, and the criminal justice system.
It is widely recognized by professionals and the courts that youth differ from adults. Consequently, the Ohio Supreme Court determined in 2012 that youth facing a loss of liberty must have their right to counsel explained prior to waiving this right. However, the Ohio Supreme Court found in In re M.W. that because police interrogations are not considered part of juvenile criminal proceedings, youth do not have to have this right explained to them before talking with police. In his concurring opinion, Justice Lanzinger suggested that this extension requires a change in policy by the General Assembly.
Ohioans want to make certain justice is served. In order to ensure that there is justice for victims, suspects, and defendants, the ACLU of Ohio recommends legislation that:
- Includes police interrogations in juvenile criminal proceedings.
- Ensures youth are explained their right to counsel and the consequences of refusing counsel prior to police interrogations.
 In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538.
Youth of color are more likely than their peers to be arrested, charged, adjudicated delinquent, and detained in a juvenile facility. The ACLU, the ACLU of Ohio, the Children’s Law Center and the Office of the Ohio Public Defender are currently monitoring these disparities, termed “disproportionate minority contact,” and released a Report Card: Evaluating Juvenile Justice in Ohio.
In 2007, the Department of Youth Services began an effort to monitor and reduce disproportionate minority contact. The ACLU of Ohio is currently evaluating if these efforts have been successful and plans to update the Report Card in Fall of 2011.
Update 07.10.12: The Ohio Supreme Court has adopted Juvenile Rule 3, but only after significant changes were made to narrow the breadth of the rule. As implemented, the rule will require children who are facing felony-level charges to consult with an attorney before they may waive their right to counsel.
When the rule was originally recommended to the Court, all children facing criminal charges would have been required to consult with an attorney. This mirrors proposals in other states like Florida and Texas and ensures all children are protected when navigating the juvenile justice system.
Unfortunately, powerful forces like the Ohio Prosecuting Attorneys Association and the County Commissioners Association of Ohio urged the state Supreme Court to reject Juvenile Rule 3. The Court amended the rule to only apply to children with felony charges or lesser charges that could result in a loss of liberty. However, this was still not good enough for opponents of Juvenile Rule 3. They pressured the Court to adopt the current, watered-down rule.
While the ACLU of Ohio is deeply disappointed that the original rule was not adopted, we take great heart that this issue elicited support from a wide spectrum of people. The vast majority of public comment supported Juvenile Rule 3, and we believe Ohio will be able to make more substantial changes to its juvenile justice system in the future.
The Ohio Legislature passed House Bill 86, which made needed changes to Ohio juvenile justice and criminal justice systems. The legislation focuses on restoring discretion to Ohio juvenile court judges to treat children on a case-by-case basis by:
- Allowing a juvenile court to grant judicial release to children in custody of the Ohio Department of Youth Services after the expiration of their minimum term;
- Establishing a competency standard for juveniles;
- Reducing the maximum sentence for a crime with a gun specification for youth who did not provide, use, or dispose of the firearm; and
- Permitting youth to be transferred back to juvenile court if they were subject to mandatory transfer to adult court due to the charged offense, but plead guilty or are convicted of a lesser offense.
Ohio’s juvenile justice system is plagued by unfairness and inefficiency, including youth waiver of counsel, routine shackling of children, disproportionate minority contact, and mandates that children accused of certain crimes be charged as adults. The ACLU of Ohio and its partners have released an updated version of “Report Card: Evaluating Juvenile Justice in Ohio” focusing on these issues.
The Report Card is an outgrowth of a partnership between the ACLU of Ohio, the National ACLU, the Children’s Law Center and the Ohio Public Defender to investigate the extraordinarily high rates at which Ohio youth waived their right to counsel in delinquency proceedings. Ultimately, the Ohio Supreme Court issued new guidelines through in Re: Spears to help ensure youth are adequately advised of their rights before waiving their right to counsel.
The ACLU of Ohio continues to monitor the effect of these new guidelines, and recently filed a legal brief in support of one youth whose right to counsel was violated in the case, In Re. M.W. For more information, visit our legal docket.
Our laws have not kept pace with the rapid growth of technology. Nowhere is this more evident than the criminalization of young people’s speech. The ACLU of Ohio believes young people are free to express themselves online and through cell phones, and we work to ensure that teens are not subject to illegal searches or unjust punishments for their expression.
For more information on Teens and Technology, read the ACLU of Ohio position paper.