Analysis Law and Policy

Third Pennsylvania Judge Rules Juvenile Sex Offender Registration Unconstitutional

Tara Murtha

Judges from York, Monroe, and Lancaster counties have now all written opinions stating that the law fails to take juveniles' greater capacity for reform into account.

Under current Pennsylvania law, juvenile sex offenders have to comply with lifetime registration requirements. But this month, a third Pennsylvania judge ruled that law unconstitutional, setting the stage for the issue to be addressed by the state supreme court.

Judges from York, Monroe, and Lancaster counties have now all written opinions stating that the law fails to take juveniles’ greater capacity for reform into account. As Lancaster County Court of Common Pleas Judge David R. Workman wrote in his opinion earlier this month:

Statistics demonstrate that juvenile sex offenders have lower recidivism rates than adult sex offenders. This is due, in part, to the fact that juveniles sexually offend for different reasons than adults. For instance, juveniles lack maturity and impulse control, behaviors which lead to the original offense, but which will not exist once the juvenile reaches adulthood. … During adolescence a juvenile’s brain is amenable to substantial change and develops considerably in areas associated with reasoning and emotion … As a result recidivism rates for juveniles are low and strikingly less than that for adults.

The registration rules for juveniles are the same as they are for adults: For initial registration, they must submit photographs, DNA samples, and fingerprints, along with information verifying all physical details such as hair style, hair color, tattoos, and piercings, as well as descriptions of what car they drive, any family cars they may occasionally drive, the names of schools attended broken down by classroom location, employer’s addresses, and Internet monikers. Following initial registration, they must appear in-person at a pre-approved registration site every 90 days to re-confirm this information and be photographed again. If anything changes, such a new hairstyle, job, or car, they must report the change in-person within three days.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

And like adult offenders, juveniles who fall out of compliance are subject to mandatory incarceration for three to five years, with no opportunity to provide a defense.

Aside from the fact that the onerous and expensive system has not been proven effective at making children safer and has been mandated by the federal government, it is very possibly unconstitutional, as the three county-level judges in the state have ruled.

The York County judge cited the work of Dr. Michael Caldwell of the University of Wisconsin, co-author of “An Examination of the Sex Offender Registration and Notification Act as Applied to Juveniles: Evaluating the Ability to Predict Sexual Recidivism” and an expert in juvenile justice issues, as evidence of the disparity in recidivism rates.

From the York County opinion:

In what Dr. Caldwell describes as “the most extensive” research study to date, a meta-study of over sixty-three studies and over 11,200 children “found an average sexual recidivism rate of 7.09% over an average 5-year follow-up.” These rates are compared with a 13% recidivism rate for adults who commit sexual offenses.

Authors of a Human Rights Watch report point out that the concept of sex offender registration relies on the notion that children must be most protected from strangers. They note that 93 percent of sexually abused children are assaulted by family members, close friends, or acquaintances, according to the justice department.

Juvenile assailants are sometimes acting out a cycle of abuse.

“Many of the kids that we represent were sexually abused themselves and were acting out based on what was done to them,” says Riya Saha Shah, attorney at Philadelphia’s Juvenile Justice Center, the organization representing youth on the registry. Or it was inappropriate sexual contact between siblings. Some of these kids [are] intellectually disabled. It’s not like that stranger rape or adult-predator child molester situation that you may think of when you think of adults on the sex offender registry.”

For particularly heinous crimes, a juvenile age 14 and older who commits crimes that would be felonies if an adult, or use a weapon in the course of a rape, can be tried in court as an adult in Pennsylvania.

The law requiring registration, known as the Pennsylvania Sex Offender Registration Notification Act (SORNA), has only been in effect since 2012. Like states across the country, Pennsylvania passed SORNA in order to comply with the Adam Walsh Child Protection and Safety Act, which was signed into law by President Bush in 2006. States must comply with the act or risk losing federal funding for “essential criminal justice services,” including pre-trial diversion projects for non-violent offenders.

More than 100 Pennsylvania juveniles have been put onto the registry since the law went into effect, according to Shah. Most of them committed acts prior to the law’s implementation, but were forced onto the registry after the law was passed.

The stated goal of SORNA is that “registered sex offenders will perceive that the authorities’ knowledge of their identities, locations, and past offenses reduces the chances that they can avoid detection and apprehension if they reoffend, and this perception may help to discourage them from engaging in further criminal conduct.”

The Human Rights Watch report argues that the real psychological effect on young registrants was profound isolation.

From the report:

They are stigmatized, isolated, often depressed. Many consider suicide, and some succeed. They and their families have experienced harassment and physical violence. They are sometimes shot at, beaten, even murdered; many are repeatedly threatened with violence. Some young people have to post signs stating “sex offender lives here” in the windows of their homes; others have to carry drivers’ licenses with “sex offender” printed on them in bright orange capital letters. Youth sex offenders on the registry are sometimes denied access to education because residency restriction laws prevent them from being in or near a school.

Shah told Rewire that the Pennsylvania Supreme Court is scheduled to address the state’s appeal of the York County ruling, the first of the three, in late March, though it could be postponed if the state also appeals the Lancaster and Monroe County rulings and the cases are consolidated.

Meanwhile, Shah is hearing anecdotal reports that district attorneys and judges reluctant to place kids on lifetime registry are avoiding doing so by offering pleas to non-SORNA offenses or downgrading charges—for example, charging a juvenile for indecent assault, as opposed to aggravated sexual assault.

“That still provides them with the necessary treatment and supervision, but it removes that huge imposition and punishment of the registry,” said Shah.

If the state supreme court rules SORNA unconstitutional, then Pennsylvania will no longer be subject to financial penalties for non-compliance. The other states with SORNA legislation are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, Tennessee, and Wyoming.

Many states haven’t passed a SORNA law because the cost of implementation is higher than the penalty for non-compliance.

Analysis Human Rights

Unanswered Questions Abound in Gynnya McMillen’s In-Custody Death

Kanya D’Almeida

One of the most pressing questions among advocates and attorneys is whether or not there is a link between a scuffle that took place during her intake in the facility and her death several hours later.

It began with a 9-1-1 call and ended with the death of a 16-year-old Black girl in a youth facility in Kentucky.

Little has been written about the girl’s case, but advocates and organizers say it is illustrative of failures at multiple points in the state’s juvenile justice system.

Gynnya McMillen was found unresponsive in her room at the Lincoln Village Regional Juvenile Detention Facility in Hardin County, Kentucky, on January 11, where she had been taken the previous morning following a domestic altercation with her mother.

In the three months since, there’s been a state investigation into her death, lawmakers have proposed legislation to investigate in-custody fatalities, and several staff members at the facility have quietly left their posts.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

And yet the teenager’s untimely death continues to be shrouded in mystery.

One of the most pressing questions among advocates, attorneys, and McMillen’s family is whether there is a link between a scuffle that took place during her intake at the facility and her death several hours later.

By Kentucky officials’ own admission, multiple adult staff members physically restrained McMillen using an “aikido” hold—a modified martial arts move—after the teen allegedly refused to remove her sweatshirt as part of a routine check-in procedure. As Graham Kates has reported for CBS News, surveillance camera footage shows staff bringing McMillen to the ground and holding her there for four minutes and 15 seconds. However, the footage fails to capture the full extent of the incident since the girl was brought down behind a counter and remains hidden from view for much of the incident, according to Kates.

In a February email to Rewire, a spokesperson for Kentucky’s Justice Cabinet (which oversees the state police, the Department of Corrections, and the Department of Juvenile Justice, among others), described the martial arts hold as a “nationally-approved system called Aikido Control Training, which is utilized by various juvenile justice agencies and mental health facilities throughout the country [and] designed to prevent injury to the child and staff.”

“Since strength of the employee is not a factor, only balance, injury to the child and staff is almost nonexistent,” Lisa Lamb, a spokesperson for the state Justice Cabinet, explained. “This control method does not use any type of strike, punch, choke, wrist lock or throw.”

But experts with decades of experience working on inmates’ rights and conditions of confinement tell a different story.

One of them is Paul DeMuro, a senior consultant at the Annie E. Casey Foundation and the current federal court monitor for a juvenile justice settlement in Mississippi. He told Rewire in a phone interview that in all his 44 years of experience he has never once heard mention of this “aikido” hold or known of any facility that has employed it as a form of restraint.

“From what I know of the case, there was no reason to use this particular restraint on this young woman,” he said. “To use that kind of force to resolve an issue as simple as a teenager saying she didn’t want to take her sweatshirt off goes against both the letter and spirit of most policies regarding physical restraints,” he added.

According to DeMuro, employees at Lincoln Village appear to have dealt with a frightened young girl as though she were a violent offender, escalating her anxiety instead of talking her through it. “Add the race and class elements,” he said, “and you have a situation in which several adult staffers are taking down a 16-year-old kid. This never should have happened—she was essentially going through a simple booking process and she wound up dead.”

Kentucky officials have vehemently denied the allegation that the girl suffered some deadly trauma or injury as a result of being tackled to the ground by multiple adult males. On March 16, the state medical examiner announced at a press conference that McMillen had died of a rare genetic disorder, called inherited long QT syndrome, which can cause “life-threatening arrhythmias [irregular heartbeats] and sudden cardiac arrest,” according to the Centers for Disease Control and Prevention.

But McMillen’s family rejects those findings. Shortly after Gynnya’s death, her sister created a Facebook page to gather and share information about the case. A series of posts, presumably written by a family member who manages the page, suggested that the “aikido” hold caused or contributed to her death.  The family has also consistently drawn attention to the fact that staff members at the facility failed to conduct mandatory 15-minute bed checks throughout the night, and were slow to perform CPR on the girl when at last she was found to be unconscious in her room.

State officials cannot refute this allegation. Investigators said at the press conference earlier this month that Lincoln Village employees acted unprofessionally by neglecting to provide adequate supervision and falsifying documents such as observation reports. After reviewing 60 hours of footage from the facility, Kentucky Justice and Public Safety Cabinet Secretary John Tilley said, “Some of the misconduct smacks of outright indifference,” pointing to one incident caught on video in which a staff member offers McMillen a sandwich and, receiving no reply, later eats the meal himself.

Tilley dismissed two employees in connection with McMillen’s death—Victor Holt and Reginald Windham, both of whom have previously been reprimanded for using excessive force on youth.

“Why Was She Arrested in the First Place?”

While much of the limited reporting around McMillen’s case has focused on events that transpired inside the detention center, juvenile justice advocates are equally concerned about why the girl was arrested in the first place.

“There is a much larger story here, about each of the points in the process where the system failed this child,” Liz Ryan, president and CEO of the Youth First Initiative, told Rewire. “For instance, why was she detained and arrested in the first place?”

Ryan believes McMillen’s case is indicative of the impacts of mandatory arrest laws, and later pro-arrest laws, that were introduced under the Violence Against Women Act (VAWA) in a bid to curb intimate partner violence, by instructing or encouraging police officers responding to domestic violence calls to remove a possible abuser from the household.

Though designed to protect women from spousal or partner abuse, the laws have had the perhaps unintended consequence of driving vast numbers of girls into the criminal justice system for altercations with their families.

According to Francine Sherman, clinical professor and director of the Juvenile Rights Advocacy Project at the Boston College Law School, girls comprise 40 percent of youth arrested for domestic assault, even though they account for just 29 percent of overall arrests nationally.

“Girls are disproportionately arrested for domestic assault, largely for altercations with their mothers,” Sherman told Rewire in a phone interview. “So the events that led up to McMillen’s arrest are not at all unusual nationally.”

Sherman, who co-authored a recent study on girls’ increasing share of the burden of youth incarceration, said that although Kentucky does not have mandatory arrest laws on the books, the state follows what are known as officer discretion laws, which have been susceptible to reliance on arrests as a means of resolving domestic disputes.

It is one of just many “pathways” that are still funneling girls into the juvenile justice system, despite an overall decrease in the national youth incarceration rate. Sherman’s research shows, for instance, that while the Juvenile Justice and Delinquency Prevention Act bars judges from jailing girls for simple status offenses (offenses that apply only to minors, such as violating a curfew), girls who fail to comply with a valid court order (VCO) regarding these offenses can still be detained. In 2014, Kentucky used the “VCO exception” 1,048 times—more than any other state.

And as multiple researchers have pointed out, Black girls are disproportionately represented in every stage of the justice system. By Sherman’s estimates, using justice department data, girls of color comprise 61 percent of incarcerated girls. “In 26 states and the District of Columbia, the placement rate for Black girls surpassed the rate for all other race and ethnic groups,” Sherman told Rewire.

Set against this backdrop, McMillen’s arrest and detention are hardly unusual; in fact, the circumstances surrounding her death are indicative of a long history of policing and punishing Black girls that advocates say has been largely sidelined.

“For decades society has placed huge pressure on Black girls: either by sexualizing their bodies, or portraying them as having ‘superhuman’ strength,” explained Chanelle Helm, a Kentucky-based organizer and researcher who has been mobilizing community support for Gynnya McMillen’s case.

“We’ve repeatedly seen Black girls being detained in violent and highly sexualized—we saw it with the officer in Texas using his entire body to restrain a Black teenager in a bathing suit; we saw the same thing with an officer assaulting a Black girl at the Spring Valley high school in South Carolina,” she added.

“If you listen to the 9-1-1 call that McMillen’s mother made right before her arrest, you see this same pattern—of the girl being called degenerate, sexualized names,” said Helm, who is a former board member of the Kentucky Alliance Against Racist and Political Repression and a member of Stand Up Sundays, part of Black Lives Matter-Louisville. “And then you see her being bodily detained by employees at the detention center.”

Helm added that Black girls going through the child welfare system often have health conditions that go undetected “due to an overall culture of negligence when it comes to [their] health.”

“Heart arrhythmias are hard to detect, especially for people who can’t afford that kind of medical care,” Helm said. “And if you’ve gone through as much as Gynnya was going through—being in the child welfare system, getting into a fight with her mother, sitting alone in that detention center—how are you going to know it’s something more than anxiety?”

Advocates Seek Far-Reaching Reforms

The question of who bears ultimate responsibility for McMillen’s death has not yet been answered. Once the Kentucky State Police wrap up their investigation, a prosecutor is expected to present the case to a grand jury to determine whether to bring criminal charges against possible defendants.

Advocates, taking their lead from McMillen’s family, say they want accountability. A Color of Change petition addressed to Gov. Matt Bevin (R) calls for the termination of superintendent Michelle Grady, who was responsible for the Lincoln Village facility, as well as any staff who were involved in the incident.

Local organizers, meanwhile, want further-reaching reforms.

“Our main goal is a complete overhaul of Kentucky’s juvenile justice system,” M.L. Butler, a member of a group called The Voices Unheard, which has been organizing around McMillen’s case, told Rewire. “We want to see the closure of the Lincoln Village facility and the decriminalization of Black youth.”

According to the state Juvenile Justice Department’s 2012 annual report, the 48-bed facility was slated for closure in 2013 in a bid to slash the department’s expenses by $2 million. It is unclear why these plans did not go through, and the state will likely have to answer this question under pressure from activists.

Butler told Rewire in a phone interview that grassroots groups are mobilizing for a protest outside the Hardin County Justice Center on April 8 to demand justice for McMillen. Many of these groups, including Helm’s Stand Up Sundays, were among the first to call attention to McMillen’s death, staging vigils outside the detention center from as far back as January and drawing a smattering of media to an otherwise completely overlooked case.

“We had 50 people at our first vigil and we’re hoping for as many, if not more, supporters on April 8,” said Butler, whose group works with the Oakland-based direct action training collection BlackOUT.

Those familiar with Kentucky’s Department of Corrections say activists are going up against a system that has shown little regard for inmates’ lives.

One of them is Greg Belzley, a Kentucky-based lawyer who has been inmates’ rights lawyer for more than two decades and sued state prisons and county jails “repeatedly” over detainee deaths and conditions of confinement, is not optimistic.

One of them is Greg Belzley, a Kentucky-based lawyer who has sued state prisons and county jails “repeatedly” over detainee deaths and conditions of confinement. He is not optimistic.

“Time and time again there is an inexcusable, horrifying, or grotesque inmate death in Kentucky. And time and time again no one is prosecuted and nothing happens,” he told Rewire in a phone interview, adding that in the two-year period from the beginning of 2012 to the end of 2013, there were more than 100 deaths in Kentucky jails and prisons.

He is particularly skeptical about a piece of legislation introduced in the house a month after McMillen’s death, which would create an independent panel of experts to review in-custody deaths across the state. Belzley’s biggest concern is that the panel would include 13 nonvoting members—almost double the number of voting members—who “represent organizations that have never shown the slightest interest in spending the time or money required to properly attend to inmates’ medical needs or seriously investigate or prosecute instances of inexcusable detainee deaths,” he said.

These include the Kentucky County Judge/Executive Association, the Commonwealth Attorney’s Association, and the state’s Jailers Association.

“Legislative efforts have made no difference—it’s been business as usual in this office,” Belzley told Rewire, adding that the root of the problem is the ingrained mindset among those directly responsible for detainees, whether jailers or medical personnel, that they do not warrant humane treatment.

“I’m working on cases right now that would turn your stomach,” he told Rewire, adding that he’s represented inmates who died of alcohol and drug withdrawal, covered in their own feces and urine, even though there was a hospital a few miles away.

“I’ve seen it happen so many times—a jailer will look in on an inmate who appears to be sleeping and unless there’s blood all over the floor or the inmate is hanging from a cord they will generally just make a note on their observation log that everything is okay,” he said.

While Belzley’s work has largely focused on adult jails and conditions of confinement, his analysis bears a striking resemblance to the kind of negligence that occurred in McMillen’s case.

“People need to start taking inmates’ lives seriously,” Belzley said. “Any responsible person who heard that a 16-year-old girl was put in a martial arts hold for over four minutes because she wouldn’t remove her sweatshirt and was found unresponsive the next morning, would say there was cause for a serious criminal investigation—and if there is probable cause to believe there was a violation of criminal laws in the treatment of this young woman, somebody needs to be prosecuted and if found guilty they need to go to jail.”

News Human Rights

The Case for Closing Youth Prisons

Kanya D’Almeida

The United States locks up an estimated 54,000 youth on any given day in a range of facilities whose names often fail to reflect the harsh realities of life inside them, according to Youth First.

Youth First, a national campaign dedicated to closing youth prisons, launched Thursday with a call to close 80 of the oldest, largest, and most notorious institutions in 39 states.

Along with a report mapping out these archaic and sprawling facilitiesmany of them over a century old and housing more than 100 beds—Youth First released the results of a survey conducted this year which suggest that an overwhelming majority of Americans support overhauling the juvenile justice system from one of incarceration toward a spectrum of community-based rehabilitation programs.

The United States locks up an estimated 54,000 youth on any given day in a range of facilities whose names often fail to reflect the harsh realities of life inside them, according to Youth First. Colorado uses the term “youth services center”; Florida claims it houses some juvenile offenders in a “youth academy”; Iowa has a “training school for boys.” Diversity of names notwithstanding, these institutions share many commonalities: They are often geographically isolated, practice solitary confinement, utilize security hardware like barbed-wire fences, employ physical and chemical restraints, and have documented histories of physical and sexual abuse.

In a phone interview with Rewire, Youth First National Field Director Mishi Faruqee said only facilities that met a majority of such criteria were on the interactive map released today. “Almost all the facilities we included had documented reports of sexual abuse, according to a 2013 Bureau of Justice Statistics report on sexual victimization in juvenile facilities,” she explained.

Like This Story?

Your $10 tax-deductible contribution helps support our research, reporting, and analysis.

Donate Now

Maltreatment in youth prisons runs the gamut from excessive use of force by prison staff, to beatings, suffocation, and sexual abuse of residents by both staff and other inmates, a 2015 report by the Annie E. Casey Foundation found. Some states have worse track records than others: Georgia’s youth facilities, for instance, were found to have the highest sexual abuse rates in the nation. In 2011, a resident in Georgia’s Augusta Youth Development Campus beat one of his fellow inmates to death.

That facility is just one of many included in Youth First’s report. Another is the Arkansas Juvenile and Assessment Treatment Center, which is notorious for its mistreatment of youth.

“During my 20 plus years at Arkansas Advocates I have witnessed continuous cycles of news exposes of abuse and mistreatment of youth in our youth prison,” Paul D. Kelly, a senior policy analyst at Arkansas Advocates for Children and Families, told Rewire in an email. “These include a series of suicides, physical and sexual abuse, broken bones and other injuries, and the lack of health, mental health, and educational services in this prison. These tragic events occur, the news upsets everyone, they fire the staff and or administrators, change management from public to private entities to run the prison, then it’s quiet for years and everyone forgets about it—and then it happens again. And again. In 2012 the Department of Justice listed our prison among those with the highest rate of sexual victimization … This information was never reported in the state press.”

In 2014, the Arkansas facility saw a 25 percent increase in assaults, fights, and self-harm, according to a local news report. “Again, we asked for this prison to be closed,” Kelly said. “It is still in operation. I must note that in 2011 the Division of Youth Services did reduce its contract with G4S [a for-profit company that operates youth prisons] from 143 beds to 100 beds. It was a small step in the right direction—but not nearly enough.”

In addition to being unsafe, youth prisons cost a lot to maintain: Youth First estimates that most states dedicate the largest chunk of their juvenile justice resources to prisons, amounting to some $5 billion every year. On average, it costs states $100,000 to detain a single juvenile for one year.

On a press call Thursday, Youth First CEO and President Liz Ryan also drew attention to high recidivism rates among juvenile offenders, and highlighted disproportionate rates of incarceration for youth of color compared to their white peers, “even when charged with similar offenses and despite the fact that they engage in similar levels of delinquency.”

States with the highest racial disparities include Utah, where Black youth comprise 24 percent of incarcerated juveniles, despite making up just 2 percent of the state’s overall youth population; Wisconsin, where Black youth account for 58 percent of all incarcerated juveniles compared to 29 percent of white youth, even though only 10 percent of the overall youth population in the state is Black, while an overwhelming 74 percent of Wisconsin’s youth population is white; and New Jersey, where Black kids represent 69 percent of juveniles locked up, even though they account for just 15 percent of the population. In comparison, whites account for 51 percent of the state’s overall youth population, yet account for just 10 percent of its incarcerated juveniles.

Da’Quon Beaver, a community organizer at the Legal Aid Justice Center in Virginia, addressed some of these disparities on Thursday’s call, while also recalling his personal experiences inside youth prisons.

Beaver was just 14 years old when he was charged as an adult and sentenced to 48 years. He spent several years in four facilities across the state, which housed between 280 and 300 residents.

“Anything that you can imagine happening in an adult facility is also taking place in these juvenile prisons: there are fights and riots, threats of sexual abuse, [and] residents with mental illness are not given the treatment they rightly deserved and placed in isolation.”

“But the worst abuse of all,” he said, “is being so far away from our families.”

He recalled one Christmas spent in a facility that was on lockdown due to a riot, meaning residents were denied holiday visits with their families. “I remember like it was yesterday, just crying by myself for hours and hours,” Beaver said. When the lockdown ended and visitation rights were reinstated, Beaver remembers entering the visiting room in a facility of 300 residents, and being one of just six youth to receive a visitor—he said the accumulated costs of travel, missed work, and child care for younger family members make prison visits a luxury that few can afford.

Beaver calls himself a “passionate” advocate for juvenile justice reform, and his efforts are paying off. Thanks in part to pressure from advocacy groups, Virginia is now one of three states whose governors have committed to closing large and outdated prisons. The other two states are Connecticut, under Democratic Gov. Dannel Malloy, and Illinois, under Republic Gov. Bruce Rauner.

Faruqee says such bipartisan support is encouraging, but believes the fight is likely to be a long one. “One of the biggest challenges is that there is a lot of money caught up in the youth prison system, so there are vested interests in seeing that system continue as it is,” she explained. While most of the facilities identified in Youth First’s report are state-run, there are also private entities that profit from juvenile incarceration, she said.

“In Florida, where 100 percent of facilities are privately run, you have a clear profit motive. But there are [also] vested interests in state-run facilities, and concerns about things like the impact of [prison closures] on local communities and fears of job losses,” she added.

Still, with the new poll showing that 54 percent of respondents favor closing youth prisons altogether, with 89 percent supporting the creation of family-centered treatment and rehabilitation plans, the pendulum of public opinion appears to be swinging toward reform.

“Part of what this national campaign is about is building the political will and broad-based political support for closing youth prisons and showing leaders that there is wide support for this initiative,” Faruqee said.