Download our latest ebook: Equitable Pathways to Small Business Recovery
This article was produced in collaboration with The Intercept.
“Female on board!” the lieutenant called out, his voice booming off the concrete walls. It was the middle of shift change at the Shelby County Juvenile Detention Center in downtown Memphis, and the two-tiered housing unit was mostly quiet. “Female on board!” he yelled again. “That’s a PREA requirement,” Sheriff’s Department Chief Kirk Fields explained as he ushered me through the door. “Anytime the opposite sex enters the floor.”
PREA is the Prison Rape Elimination Act, sweeping federal legislation targeting the nation’s prisons and jails. Passed in 2003, the law was aimed in part at places like this — facilities for youth who present a danger to others or themselves. But while PREA has proven hard to implement, that’s not why I was there that day. Less than a year after Shelby County Sheriff Bill Oldham took over the detention center that sits directly above juvenile court, officials were running dangerously afoul of a different federal intervention — one designed specifically for Shelby County.
In the spring of 2012, the U.S. Department of Justice released the scathing results of a civil rights investigation into the Juvenile Court of Memphis and Shelby County (JCMSC). Almost 50 years after the U.S. Supreme Court ruled that kids have the same due process rights as adults, the system in Memphis seemed frozen in time. Children received little meaningful defense representation in delinquency hearings and were subjected to hurried, ill-informed and arbitrary decisions, including transfers to adult court. Worse, “we found that African-American children were treated differently and more harshly,” Assistant U.S. Attorney General Tom Perez said. While white kids who broke the law were often sent to diversion programs, black kids were more than twice as likely to be treated like adults. Those kept in custody here were subjected “to unnecessary and excessive restraint,” the DOJ report said, including the use of controversial “restraint chairs.”
It was not the first time the Justice Department had found problems in Memphis. In 2000, the Civil Rights Division investigated 201 Poplar, the notorious adult jail down the road, after a prisoner was gang raped and sued in federal court. Finding intolerable conditions, the DOJ assigned a federal judge to oversee changes who concluded in 2009 that the jail had achieved “substantial compliance” with its reforms.
But this time was different. The investigation into juvenile court was the first time the DOJ invoked a little-known clause of the 1994 Violent Crime and Law Enforcement Act — otherwise known as the Crime Bill — that gave it authority to intervene where it found constitutional violations in a local juvenile justice system. President Barack Obama’s administration offered what Perez called a “first of its kind” deal: a Memorandum of Agreement among the court, the county and the DOJ. It was a blueprint for reform; independent monitors would regularly visit Memphis, submitting progress reports to the DOJ. The process would end when the court achieved — and maintained for one year — “substantial compliance with all substantive provisions” of the deal. The U.S. Attorney for the Western District of Tennessee predicted Shelby County would become “a model for juvenile courts systems across the country.”
But more than four years later, that lofty goal seems out of reach. By the time I came to Memphis in early June, city residents were frustrated. While there was much documented progress in the hundreds of pages of monitors’ reports since 2012, the latest round — made public in March— contained significant red flags. One monitor had found “a serious lack of movement” to address racial disparities. More alarming, in a visit to the detention center last fall, another monitor, David Roush, found an “across-the-board deterioration … since the transfer of the facility to the sheriff.” There were more assaults, more kids exhibiting suicidal behavior and more staff “reporting that they fear for their safety.” Although the restraint chair had been swiftly abolished, there was also “a 303 percent increase in the use of mechanical restraints.”
While white kids who broke the law were often sent to diversion programs, black kids were more than twice as likely to be treated like adults.
In early April, some 200 people attended a public meeting at the Civil Rights Museum, in the shadow of the Lorraine Motel, where Martin Luther King Jr. was assassinated. DOJ Special Litigation Counsel Winsome Gayle had traveled from Washington to speak. Among the attendees was a rapper and activist named P. Moses, co-founder of Black Lives Matter Memphis. The longer she listened, the more she felt “it was all for show.” Moses knew the limits of a federal intervention. She had once written a tribute to a black transgender woman named Duanna Johnson, who was beaten by Memphis cops at 201 Poplar in 2008 — just one year before the DOJ quietly lifted its oversight over the jail. Johnson was later shot dead in Moses’ neighborhood. Just a few days before this meeting, Moses had learned that the white police officer who shot and killed an unarmed black 19-year-old during a traffic stop would be allowed to retire with a government pension after being diagnosed with PTSD. News reports suggested the DOJ was looking into the shooting, but no one had heard much since.
Moses had a specific question in mind. She wanted to know why the supposedly cash-strapped juvenile court had received $250,000 from the county commission to install bulletproof safety glass in the judicial chambers. To Moses, the action held deep symbolism. If officials were fortressing themselves from the families they are supposed to serve, “what is that saying to the community about what you think of our children or what they’re gonna be in a few years?” Did they have any faith in their own agreement with the DOJ? And how are Memphians supposed to believe things will get better if the court is preparing for the worst? On the Black Lives Matter Memphis Facebook page in April, Moses posted a news report about the red flags at the detention center. “The problem is the system,” she wrote, “not the children.”
Today, far beyond Memphis, there is a growing recognition that the problems underlying crime are systemic — and that America’s criminal justice system has been a devastating failure for kids — especially kids of color. The Obama administration has sought ways to steer young people away from its grip, through initiatives like My Brother’s Keeper and the National Forum on Youth Violence Prevention, whose selected cities included Memphis. There is also a wider cultural backlash against decades of crime policy that said children stopped being children once they were accused of breaking a law, from the U.S. Supreme Court’s chipping away at the harshest punishments for juveniles to activists who have confronted Hillary Clinton with her past rhetoric about “superpredators.” The shift is especially consequential at the state level, where “adult time for adult crime” is increasingly seen as bad policy. The National Conference of State Legislatures has documented wide-reaching attempts to “restore jurisdiction to juvenile court.”
But as Shelby County shows, any meaningful changes will require a deeper reckoning. The DOJ’s experiment in Memphis could have been carried out in cities across the country. Last year, following the upheaval in Ferguson, Missouri, after the clearing of the cop who killed 18-year-old Michael Brown, the DOJ released an investigation into the juvenile justice system in St. Louis County, which exposed parallel problems to those in Memphis, including the blunt observation that “black children are treated significantly worse than white children.” At a time when Americans have looked to the Obama administration to hold law enforcement officials accountable for violence against black communities, a daunting question looms: Whose job is it to fix systemic problems that have existed for generations? And how do they do it?
As I toured the Memphis detention center in June, I had another question in mind. Why would a juvenile court under federal monitoring hand over control to the local sheriff? The transfer flew in the face of experts like Roush, the monitor who called it “accepted best practice” for kids to be detained in facilities operated by a “youth-serving parent agency … not local law enforcement.” Police are trained to exert authority and force compliance — standard in adult jails, but counterproductive at best when used on kids. It seemed like a blatant step backward.
Nevertheless, Fields and his lieutenant were eager to show that they are running a kinder and gentler jail. The cafeteria had a fresh coat of paint and a ban on talking during meals was being lifted. A Positive Behavior Management System (PBMS) was being rolled out, in which kids could earn points for privileges; bright signs posted messages like “PBMS: SEEKING SOLUTIONS, NOT BLAME.” An empty cell was now a makeshift library, with a rug and plastic chair abutting a metal toilet and a former storage area was being used to expand Hope Academy, the court’s K-12 program. A friendly counselor showed me a monthly “newsletter” she produces, four photocopied pages printed with blurry photos of animals, a poem and word games. One page listed three boys’ upcoming birthdays, alongside a message: “May all your dreams and wishes come true!”
The relative quiet was at least somewhat due to a steady drop in admissions in recent years, thanks in part to the implementation of things like the Law Enforcement Assessment Phone-In (LEAP) — which lets police issue summons rather than arresting kids for minor offenses — and a new Detention Assessment Tool (DAT), which measures whether to hold or release kids brought into custody. The official population that afternoon was 48, an encouraging drop from Roush’s last visit, which found 81. All the kids I saw were black. Fields, who is also black, offered an explanation for some of the alarming figures found in Roush’s reports. “Our policy states that anytime we put restraints on a child, it’s considered ‘use of force,’” he said. This includes such routine tasks as transporting a kid to a medical appointment, where handcuffing is “standard operating procedure.” In the interest of accuracy, Fields said, the department is now separately documenting such routine tasks from confrontational incidents.
Downstairs, I met Juvenile Court Judge Dan Michael, who called the latest figures and media reports overblown. A seventh report was due for release any day now — it would set the record straight.
A bald, bearded man with an affable air, Michael wore a light suit and a yellow bow tie. His signature white cowboy hat hung by his desk. Previously chief magistrate of juvenile court, he had been elected in August 2014, defeating city court judge Tarik Sugarmon. The candidates represented distinct eras in Memphis politics. Although Michael’s campaign website described how he ran his family’s auto shop before becoming a lawyer at age 40, he had first been appointed to the court in 1997 by veteran Judge Kenneth Turner, who embodied the court’s entrenched white establishment. Sugarmon was the son of black civil rights activists; he marched with Martin Luther King Jr. during the sanitation strikes and participated in the “Black Monday” boycotts of 1969, in which students stayed home from school to protest segregation. Sugarmon’s father, a retired judge, previously worked under Turner at juvenile court. On the campaign trail, the younger Sugarmon invoked the DOJ investigation: “We have now a 50-year continuum of a system that, up until recently, we were the only ones that knew it was unfair.”
Dan Michael, judge of the Juvenile Court of Memphis and Shelby County, stands in his office.
Despite his ties to the court’s establishment players, Michael considers himself something of a reformer. “I think of myself as a change agent,” he told me. He exudes compassion for the juveniles in his care, while talking seriously about crime. “My role is to save that child’s life while protecting you,” he assured an audience after his election. He also wanted to make something very clear to me: “We don’t jail children.” The facility upstairs, he reminded me, is “pre-trial only.” A court officer stressed the same thing during our tour — “remember, this is not a jail” — but it seemed like a distinction without a difference. Children may sleep in single occupancy “rooms,” not “cells,” but the steel toilets and thin green mattresses betray the euphemism.
Yet, when I asked why he had handed the detention center to the sheriff, these distinctions were harder to maintain. “The sheriff of Shelby County is the professional jailer, if you will,” Michael explained. “He runs all the pretrial centers.” Faced with hiring and budget challenges, he’d decided to leave detention to the experts, to “make sure those children got the protection they need.”
I asked about the stark racial disparities — or Disproportionate Minority Contact (DMC), in DOJ parlance. The last report on equal protection suggested a lack of will to address it. “Again, the Court MUST take the lead on this,” it urged, in bold text. Although Michael credited LEAP and other tools for reducing the total number of kids in the system, the monitor found that the race gap had actually increased among those in detention. “I’m gonna be real blunt with you,” Michael said. “The federal government cannot point to one DMC program anywhere in the country that they have funded that has successfully lowered the stat,” he said. “Not one.” Memphis is a majority black city. Its problems go back to the era of forced busing, white flight and all the myriad factors that set the stage for the high poverty, crime and unemployment that plagues this and other urban centers. If it was up to any one person to fix this, he seemed to be saying, it was not up to him.
Michael reiterated his commitment to reform — but he doesn’t want the federal government in Memphis forever. “My goal is to complete the MoA and say, ‘Bye, we’re good. Let’s move on.’”
For a tidy history of its youth justice system, Shelby County offers a 30-minute film made in 2010 titled “100 Years of Juvenile Court.” Set to soft piano music, the story begins with an 1898 editorial in The Commercial Appeal, “To Save the Young.” It asked lawmakers to address the problem of kids jailed alongside adults — a growing concern of the progressive movement. “What police need now is a place for juvenile offenders that fall into their hands,” the editorial read, “but they will not get it until this county agrees to share the expenses of establishing one with the city.”
The tension between Shelby County and the city of Memphis has never been resolved. Today, Memphis is surrounded by affluent, nearly all-white suburbs like Germantown and Collierville, which became incorporated towns in the mid-1800s. The largely unspoken divide becomes most explicit where children are concerned; following a controversial plan to consolidate Memphis city and Shelby County schools in 2011, numerous suburbs broke off to form their own municipal districts.
The Commercial Appeal article did not have black children in mind. While today juvenile jails are a symbol of criminalization of black youth and the school-to-prison pipeline, the establishment of the new juvenile court in 1910 reflected the influence of white child welfare activists, particularly the women behind the Memphis Playground Association, which sought to keep children off the street. In Gateway to Justice, an early history of Shelby County’s juvenile court, historian Jennifer Trost describes how it fell to Memphis’ black community to keep pace with new models of juvenile justice. “As long as blacks did not challenge the rules of segregation and took on the responsibility for funding separate facilities,” she wrote, “white reformers were willing to accept their participation.”
The DOJ opened an investigation against the Juvenile Court of Memphis and Shelby County in 2009.
The results were “separate and unequal.” In 1914, the Memphis Digest published an article about a 4-year-old orphan arrested for stealing a pair of shoes. The child was taken in by child welfare activist Julia Hooks, who created a black juvenile court through community donations. Why, the author asked, “are these Negro women of very moderate means and many heavy burdens left by the city to buy a court building, while the white children have recently been moved into admirable quarters provided by the cost of the city?” There was also the Shelby County Industrial and Training School, where a “negro department” was created only after local residents raised funds; the county dictated that white boys receive training, while black boys were “paroled” to do farm work for locals.
Memphis’ juvenile justice system took shape against a particularly dangerous backdrop — at least 15 lynchings took place between 1890 and 1930. Against such instruments of Jim Crow-era racial control, the court’s early, mostly female leadership was benevolent in its enforcement of white supremacy. One judge, appointed in 1920, saw the court as “a strong arm used to supplement home care and training, or to supply it where it does not exist,” according to Trost, who notes that inevitably, this meant using her authority “to enforce deferential behavior of black children toward whites.” There were “white days” and “colored days” for hearing cases, and “files were color-coded” according to race.
The court remained segregated until 1964, the year Judge Kenneth Turner — the judge who first appointed Michael — assumed the bench. A former police captain with no legal training, Turner is the unmitigated hero of “100 Years of Juvenile Court,” lauded for his colorblind approach to justice and for shaping JCMSC into a model admired nationwide. A memoir by an Episcopalian youth minister recalls how, early in his tenure, Turner’s juvenile summons program brought kids to his organization, helping them avoid a criminal record. But news reports reveal Turner’s more punitive innovations, a number of which especially hurt black families. He showed fondness for public shaming, inviting reporters to delinquency hearings and ordering bright orange vests reading, “I am a vandal.” He fined parents for truancy — “If you can’t control your child, call the police,” he told one mother — and charged room and board for kids in detention, a move hailed as “revolutionary” by one widely syndicated editorial. Turner was especially famous for prosecuting fathers who failed to pay child support. One 1967 article describes how he sent a man to Shelby County Penal Farm for nearly a year without advising him of his right to trial. Later, the Sixth Circuit Court of Appeals dismissed a civil class action alleging that JCMSC routinely jailed destitute fathers without any due process.
Presiding over juvenile court more than 40 years, Turner would ultimately embody the flaws of its design. Juvenile justice was rooted in a legal philosophy known as parens patriae, in which the state decides what is in a child’s best interest. For its noble intentions, the U.S. Supreme Court warned in 1966, in Kent v. United States, there was evidence that “the child receives the worst of both worlds … neither the protections accorded to adults nor the solicitous care and regenerative treatment postulated for children.” This was true in the case of an Arizona teenager named Gerald Gault. After he was jailed for “placing lewd phone calls” to a female neighbor, the American Civil Liberties Union challenged his trial as “barren of any legal protection of a juvenile’s rights.” In 1967, the Court agreed, ruling for the first time that juveniles had such due process rights as the right to counsel and the right against self-incrimination.
But Turner’s attention was elsewhere. In March 1968, weeks before King was shot, he ordered arrests of students participating in the sanitation strikes, charging parents $10 a day for each day a child missed school. Asked about Gault that year, Turner said, “I’m more concerned with the fact that in Tennessee, 89 of our counties do not have proper facilities for the detention of juveniles.” While he was not alone in resisting the ruling, the 1973 PBS documentary Juvenile Court offered a glimpse into the result. “Guilt is presupposed by every adult from the outset,” one reviewer writes, “and all procedure seems deliberately geared toward searching for personality disorders, exacting confessions, or cutting plea deals with defense attorneys.” It was in this era, following a different ruling that required judges to be admitted to the bar, that Turner designed a “referee” system, appointing people to hear cases on his behalf, while preserving his authority. A Memphis police sergeant would later describe the atmosphere to journalist Nina Bernstein: Turner’s court had “its own rules, day by day.”
By the early 1990s, in keeping with the tough on crime era, Turner was increasingly transferring juveniles to adult court, calling them “vicious young criminals” — or “VYCs” — who should be separated from “juveniles who are more amenable to habilitation.” Today, Shelby County District Attorney Amy Weirich continues the tradition. While Weirich denies that race has any bearing on her decisions, the equal protection monitor has cited a “significant overrepresentation of Black youth” in her requests. One of the most positive results of the DOJ intervention has been a drastic drop in transfers granted by the court — from 194 in 2009 to 47 last year.
But vulnerable teenagers still end up in the adult system. In 2013, the Memphis Flyer described a transfer hearing for a black 14-year-old named Jonathan Ray, who had a history of abuse and mental problems. Ray had set fire to the steps of his house, killing his mother. With little time for his attorney to prepare — and against the pleadings of relatives — Michael concluded that Shelby County “can’t wait six years to see if [Ray] is fit for rehabilitation.” He sent him to adult court, where Ray pleaded guilty. He is scheduled for release when he’s 40 years old.
Around the corner from Juvenile Court, in a former YMCA, I met half a dozen teenagers at JIFF — Juvenile Intervention & Faith-based Follow-up — which partners with the court’s Youth Services Bureau. “We love JIFF,” a JCMSC official told me, and it is easy to see why. It takes some of their most challenging kids, and gives them job training and education, along with serious Bible study. JIFF also pairs kids with ex-juvenile offenders who act as mentors. The resulting bond is clear. When I asked the kids what they liked most about JIFF compared to juvenile court, the word I heard most was “love.”
The kids were not eager to talk about the detention center. They complained that it was cold, that staff played favorites, that the rule against talking made no sense. They especially hated being locked in their room for days at a time as punishment. But one teenager, a veteran of the system, said it was better than other jails he’d been in. At least he had his own room.
At JIFF, like at the detention center, all the kids were black. It reminded me of an old quote in the Tri-State Defender, the black alternative weekly in Memphis, from a county commissioner named Henri Brooks: “You would think that white children never get in trouble.”
Although few were eager to talk about it, the DOJ would never have come to Memphis were it not for Brooks. Elected in August 2006, months after Turner’s official retirement from the court, she immediately caused an uproar. Turner “ran that system down there on what I call ‘Plantation Politics,’” Brooks told the Defender, “and unless we update the court now, there will be no changes.” Brooks worked in juvenile court from 1976 to 1987. Speaking to me over the phone, she described the court’s operating assumption about black people: “There was something criminal in our genes. So we had to be controlled.”
JIFF program participants (from left) Markel Davis, 16, Devion Thomas, 14, Cordarius Lane, 15, Kerron Young, 17, Fredrick Jordan, 13, and Adarius Boltze, 16, prepare for a rope course and zipline in Memphis.
A former state representative and chairwoman of the Tennessee Legislative Black Caucus, Brooks stirred controversy long before setting her sights on juvenile court. Her confrontational manner, while polarizing, was also likely one consequence of working in an environment where the existence of racism was aggressively denied. A 2005 bill she proposed to collect data on racial profiling was dismissed by an opponent as “a waste of money and a waste of time.” When Brooks warned that a 2004 seatbelt law could be used as a pretext to target black drivers, The Tennessean called her claim “amazing.”
But Brooks’ persona also eclipsed her most significant contributions. It was because of her that Tennessee became the first state to pass legislation enforcing Title VI of the Civil Rights Act. Yet she became more famous for a months-long controversy that broke out in 2001, after the speaker of the house confronted her for refusing to stand during the Pledge of Allegiance. “He talked to me like a master to a slave,” Brooks declared, later explaining that honoring the flag would be an affront to her ancestors. That year, a man burned her in effigy on the capitol steps.
“They acted like I was crazy,” Brooks recalled. Yet many Memphis residents agreed with her. In 2006, “my staff set up town hall meetings all over the city.” They met in churches and other venues, inviting parents of children who had been through juvenile court to speak. Attendees shared a litany of complaints, from endless delays to arbitrary decisions by referees. One mother described waiting two years for a hearing date in her child support case, only to have her case worker scold her “for not getting involved ‘with a better man,’” The gatherings were recorded and transcribed. Before long, “I think I had about seven or eight 10-inch binders” filled with grievances, Brooks said. The files became the basis for a Complaint and Request for Investigation, which she formally filed to the Civil Rights Division of the DOJ on Jan. 15, 2007.
While the DOJ considered the complaint, critics denounced Brooks for traveling to Washington on taxpayers’ dime — one letter to The Commercial Appeal called it “outrageous,” saying Brooks “should have paid for the trip out of her own funds.” To “defuse” the controversy, The Commercial Appeal reported, a local pastor collected donations from families “concerned about justice,” offering to cover the $1,000 in expenses. But Brooks would soon be vindicated. In August 2009, the DOJ announced it would investigate Shelby County Juvenile Court. A year and a half later, following repeated visits and a review of some 65,000 defendant files, the DOJ issued its announcement on the Memorandum of Agreement. By then, however, Brooks had been cut out of the process. The deal with the DOJ was signed by County Mayor Mark Luttrell and Person, a vocal skeptic of the department’s report.
Today, Brooks takes little pleasure in having been proven right by the DOJ’s investigation, which she says was too little too late. “It almost brought tears to my eyes to think of the others who had been before juvenile court before this even happened,” she says.
In June, the DOJ quietly released its seventh round of monitors’ reports on JCMSC. Racial disparities persisted and “physical restraints remain a problem,” Roush wrote, having last visited the detention facility in April. The Sheriff’s Department’s efforts to be more nuanced in documenting use of handcuffs have produced new problems. “Mechanical restraints are substantially undercounted,” Roush reported, urging “immediate action” to gather more accurate data.
But the most damning conclusion was perhaps the most predictable. Sheriff’s officers, it turns out, are not trained to work with kids. “An underlying assumption exists that there are no difference between juvenile and adult detention skills,” Roush wrote, calling the mindset “a fundamental problem.” Over email, a Sheriff’s Department spokesperson cited “specialized training” underway for new hires. He also addressed the $250,000 bulletproof glass: It was the result of a safety assessment requested by JCMSC, he said, implemented as part of the sheriff’s takeover of overall security.
The release of the monitors’ reports made no headlines this time. A few weeks later, on July 10, following the shooting deaths of Alton Sterling in Baton Rouge, Philando Castille in Minneapolis, and five police officers in Dallas, a small gathering took place outside the Civil Rights Museum. “The rally evolved into a protest march,” the Memphis Flyer reported, with 1,000 people marching through downtown to the I-40 bridge, which runs over the Mississippi River. Traffic was blocked for hours. Although the Memphis protests ended “peacefully … with no arrests,” they sparked rage among other city residents. Racist comments proliferated on the Black Lives Matter Memphis Facebook page. But others called it a moment of awakening. “Black lives matter,” a Commercial Appeal columnist wrote, comparing it to the declaration “I am a man.”
A few days later, after days of similar protests across the country, President Obama held a town hall, broadcast by ABC News. Attempting a conciliatory tone, he shared his own experiences with racism. “It’s not as bad as it used to be, but it’s still there,” he said.
But for some in the audience, the event fueled further anger. Erica Garner, whose father’s last words, “I can’t breathe,” became a rallying cry, was denied a chance to ask a question. Two years after the DOJ said it was looking into her father’s killing by police, she had no answers. Meanwhile, the man who had filmed his death faced jail time. Garner’s shouts were heard by audience members, journalists and the president alike: “A black person has to yell to be heard?”
This article was supported by Just City, a nonprofit organization with a mission to advance policies and programs within Shelby County and the State of Tennessee that strengthen the right to counsel and mitigate the damage caused to families and neighborhoods as a result of contact with the criminal justice system.
Liliana Segura is a Senior Writer at The Intercept, where she covers the criminal justice system.
Brandon Dill has found a home in Memphis, Tennessee. When not planning road trips with his wife or building blanket forts with his two daughters he likes to take pictures. His work appears in the New York Times, Los Angeles Times, Wall Street Journal, Washington Post and others throughout the US and internationally.